Avoided Deforestation (REDD) and Indigenous ... - Amazon Fund

More documents

Recommendations

Info

provided that immediate return as soon as the risk ceases shall be ensured under all circumstances. Sixth Paragraph: Acts aiming at occupation, domain, and possession of the lands referred to in this article, or at exploitation of the natural riches of the soil, rivers, and lakes existing thereon, are null and void and of no legal effect, except in the case of relevant public interest of the Republic, according to a supplemental act; such nullity and voidness shall not create a right to indemnity or to sue the Republic, except as to improvements derived from occupation in good faith in accordance with the law. Seventh Paragraph: The provisions of Article 174 (3) and (4) shall not apply to Indian lands. The Federal Union’s proprietary rights over the Brazilian Indians’ land established by Article 20, XI of the Constitution are clearly restricted by Article 231 above, since the Union does not have the rights of fruition related to the property, e.g.,rights concerning the usufruct over the richness related to soil, rivers, and lakes on Brazilian Indian lands. As a result, as discussed below, these property rights have to be interpreted as a strategic instrument for the Government in order to assure the country’s sovereignty along with securing to Brazilian Indians their original rights over the land as needed to survive and preserve their culture, as well as to protect Brazilian biodiversity and traditional knowledge as defined by Art. 231. 19 Such “rights of fruition” are exclusively granted to the Brazilian Indians (with the exceptions of some limitations on the use of certain water and mineral resources, or exceptional circumstances of national interest to be established by supplemental acts, as established by the fourth and sixth paragraphs of Article 231), and, therefore, the Union’s property rights are instrumental to protect Brazilian Indians’ fundamental rights. 20 In light of this, the Brazilian Federal Constitution declares that the Brazilian Indians’ land and its fruition belong to the Brazilian Indians, who have the exclusive usufruct of the soil and rivers. In this context, the irregular use of the Brazilian Indians’ land by unauthorized people is considered invalid. 21 It is important to note that, even under the few constitutional exceptions regarding the Brazilian Indians’ exclusive usufruct of their land; 19 In that regard, an important proceeding to guarantee the Brazilian Indians rights over their land is the demarcation conducted by the Federal Union. Please see more information on the proceeding of demarcation at www.mj.gov.br. 20 SILVA, José Afonso da. Curso de Direito Constitucional Positivo [Course of Positive Constitutional Law]. Editora: Malheiros, São Paulo, 2006, Ed.: 27ª, p. 855. 21 th Article 231, 6 Paragraph. 130 Av o i d e d d e f o re s t A t i o n (redd) A n d i n d i g e n o u s p e o p l e s: experiences, chAllenges A n d o p p o r t u n i t i e s in t h e A m A zo n c o n t e x t
they are entitled to participate in the discussion process (the ultimate decision being approved by the National Congress) and to share in the economic benefits of approved activities. In this context, the concepts of “usufruct” and “property” shall also not be interpreted in light of the Brazilian Civil Code22 when referring to the Brazilian Indians. The concepts differ in the sense that the Union’s property of the Brazilian Indians’ land aims to protect the permanent possession over the lands by the Brazilian Indians. As a result, as pointed out by José Afonso da Silva, the possession of the lands occupied traditionally by the Brazilian Indians is not a simple possession regulated by the civil law, it is the so-called possessio ab origine, the permanent possession that is constitutionally guaranteed in Article 231, §§ 1 and 2, recognizing that the right of the Brazilian Indians to the land existed previously to its possession. 23 Along the same lines, some authors even consider it as a “special legal regime” that guarantees to the Brazilian Indians the right of absolute use and fruition of the land as well as its natural resources; 24 or, as Professor Cretella Jr.states, the Brazilian Indians’ rights of permanent possession and usufruct literally translates into a de facto property right. 25 In the same sense, some judicial decisions support the idea that the Civil Code possession right concept is not applicable to Brazilian Indians’ lands. 26 In this sense, based on the Constitutional Rights of Brazilian Indians, the proprietary regime of Brazilian Indians’ land is of a hybrid nature: the Union holds formal property rights and the Brazilian Indians have the permanent possession and exclusive right to use the land and its natural resources. The Constitution clearly recognizes the Brazilian Indians’ original rights over their land (which means that such rights are not granted by the Constitution, but formally 22 Brazilian Civil Code, asserts in Article 1394 that a “usufructuary has the right to possess, use, administer and gather fruits”. 23 SILVA, José Afonso da. “Terras tradicionalmente ocupadas pelos índios” [The lands traditionally occupied by Brazilian Indians] in Os direitos indígenas e a Constituição.[Indigenous Peoples Rights and the Constitution]. Porto Alegre: Sergio Antonio Fabris Editor, 1993, p.49-50. 24 NASCIMENTO, Tupinambá Miguel Castro apud TOURINHO NETO, Fernando da Costa. “Os direitos originários dos índios sobre as terras que ocupam e suas consequências jurídicas” [The Brazilian Indians original rights to their occupied lands and its legal consequences] in Os direitos indígenas e a Constituição [Indigenous Peoples Rights and the Constitution]. Porto Alegre: Sergio Antonio Fabris Editor, 1993, p. 39. 25 CRETELLA Jr, José. Comentários à Constituição de 1988 [Comments to the 1988 Constitution]. Rio de Janeiro: Forense Universitária, 1993, vol. VIII, p.4567. 26 Respectively, see TRF, 3ª Região, AgMS 93.03.107415/SP, rel. Juíza Salette Nascimento, 1ª Sessão, decisão: 16- 11-1994, DJ2, 21-11-1995, p. 80208; TRF, 4ª Região, RcCr90.04.22095/RS, rel. Juiz Paim Falcão, 1ª Turma, decisão: 7-5-1992, RTRF, v. 10, p. 291, DJ2, 24-6-1992, p. 18662. Av o i d e d d e f o re s t A t i o n (redd) A n d i n d i g e n o u s p e o p l e s: experiences, chAllenges A n d o p p o r t u n i t i e s in t h e A m A zo n c o n t e x t 131
Page 1 and 2:
Avoided Deforestation (REDD) and In
Page 3 and 4:
Avoided Deforestation (REDD) and In
Page 5:
Summary Introduction Raul Silva Tel
Page 8 and 9:
Amazon region is currently the pref
Page 11 and 12:
Indigenous Lands and the Climate Cr
Page 13 and 14:
“Amazon biome,” which does not
Page 15 and 16:
approximately 13 million hectares,
Page 17 and 18:
The tables below display data regar
Page 19 and 20:
In practice, the main decisions reg
Page 21:
Nogueira, EM., Fearnside, PM., Nels
Page 24 and 25:
22 Av o i d e d d e f o re s t A t
Page 26 and 27:
Given the absence of legal definiti
Page 28 and 29:
internal debates on this issue, pre
Page 30 and 31:
which they have traditionally owned
Page 32 and 33:
which Bolivian legislation calls
Page 34 and 35:
consultation” in its articles 30.
Page 36 and 37:
are also facilitated by the strong
Page 38 and 39:
legal risk that these lands can be
Page 40 and 41:
has the duty (and exclusive compete
Page 42 and 43:
derived from them, such as from the
Page 44 and 45:
On the other hand, the Colombian le
Page 46 and 47:
“the special norms which regulate
Page 48 and 49:
framework of ecological function an
Page 50 and 51:
The law permits and stimulates refo
Page 52 and 53:
the use, enjoyment, control, admini
Page 54 and 55:
One of these bills relates to the e
Page 56 and 57:
the constitution which still has no
Page 58 and 59:
Since there is not a specific law r
Page 60 and 61:
communities of the sierra and jungl
Page 62 and 63:
the lands that they possess and tha
Page 64 and 65:
and legal instruments to guarantee
Page 66 and 67:
those recognized “in internationa
Page 68 and 69:
limitation for implementing eventua
Page 70 and 71:
REDD in Venezuela Since REDD mechan
Page 72 and 73:
to implement REDD projects with bec
Page 74 and 75:
Can IPs dispose of the forestry res
Page 76 and 77:
Ecuador Yes. However, it will be ne
Page 78 and 79:
to reductions in GHG emissions and
Page 80 and 81:
did not establish any mechanism to
Page 82 and 83: On the other hand, there is a growi
Page 84 and 85: the co-existence of diverse culture
Page 86 and 87: In accordance with this internation
Page 88 and 89: Indigenous Peoples as Protagonists
Page 90 and 91: e considered a security under Brazi
Page 92 and 93: cannot dispose of the lands they tr
Page 94 and 95: Article 34 of the Indian Statute (F
Page 96 and 97: is a legal obligation and there is
Page 98 and 99: State or to third parties. Since ca
Page 100 and 101: equired for the acts of civil life,
Page 102 and 103: indigenous peoples could only have
Page 104 and 105: Indigenous Collective Ownership Fin
Page 106 and 107: of their interest is indivisible (L
Page 108 and 109: equired before the benefits may be
Page 111 and 112: The Surui Project: Building Indigen
Page 113 and 114: has decimated much of their forest.
Page 115 and 116: Reducing Risks: Framework for Proje
Page 117 and 118: Michel Pellanders/Hollandse Hoogte,
Page 119 and 120: evitalization. Therefore, the REDD
Page 121 and 122: Volume: To assess the volume of the
Page 123 and 124: 2009). The Surui are also engaging
Page 125 and 126: will be critical, given that eventu
Page 127 and 128: Legal Aspects of the Surui Carbon P
Page 129 and 130: from afforestation, reforestation,
Page 131: of representing their respective co
Page 135 and 136: In the case of Brazil, the prolifer
Page 137 and 138: • Article 11, IV of the referred-
Page 139 and 140: Sole paragraph. The rule of this Ar
Page 141 and 142: constitutional rights of Brazilian
Page 143 and 144: of exploitation or use, and belong
Page 145: alignment with the Brazilian consti
show all

Avoided Deforestation (REDD) and Indigenous ... - Amazon Fund

Create successful ePaper yourself

Delete template?

Save as template?