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

The ownership of CERs and VERs generated by the project is clearly a situation where
economic benefits result from the demand for credits created by the Kyoto Regime and/or the
voluntary market. Regardless of the definition of the legal nature of CERs and VERs, which is
still under debate by Brazilian scholars, both are characterized as a right (in the case of CER, as
established by international law), the economic benefits of which shall be obtained through
project activities.
It is clear that the Surui have the legal title over CERs and VERs which may result from
sustainable forest practices conducted by the Surui on their land. Such rights, such as in any other
case, must be exercised in compliance with the rules and sustainability criteria established by
the relevant legislation, including the regulations regarding CDM project approval or Voluntary
Market standards and the sustainable management of natural forests as foreseen in the Brazilian
Forest Code.
Federal Public Forest Concession Law
With regards to the possible intersection between Surui Carbon projects in Brazilian
Indians’ land and Federal Law Nº 11, 284/06 on Management of Public Forests, 30 we understand
that the public forest concession regime established by the law does not apply to forests that
cover Brazilian Indians’ land, due to the following reasons:
• The Brazilian Indians have exclusive constitutional rights of fruition from their land;
• The concept of concession established by Federal Decree Nº 271, of February 28, 1967
and Administrative Law doctrine clearly does not apply to activities conducted on
Brazilian Indians’ land; 31
30 Public forests are classified by the Brazilian Forest Service as “A,” “B,” or “C”. The public forests of category “A” are
located in areas destined to Environmental Protection and Conservation Units (Unidades de Conservação de
Proteção Integral e de Uso Sustentável) and to the use of traditional communities (e.g., Brazilian Indians),
as well as other forms of destinations established by law. The public forests of category “B” are located in
public areas but were not object of specific destination, and public forests of category “C” are located in
areas of indefinite domain. Further information is available at http://www.florestal.gov.br/
31 Besides the definition of concession regarding public forests set forth in Law Nº 11,284/06, the legal
institution of concession was established in Article 7 of Federal Decree Nº 271 on February 28, 1967.
In addition, the Administrative Law legal doctrine defines it as “the agreement by which the Administration
transfers a payable or free use of a public land to a private entity, as a resolute in rem right, for the specific
purposes of urbanization, industrialization, cultivation or any other exploitation with social interests.
See MEIRELLES, Hely Lopes. Direito Administrativo Brasileiro [Brazilian Administrative Law], São Paulo:
Ed. Malheiros, 2001.
134 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