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

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The Brazilian Civil Code of 2002 also digressed from the guardianship regime of the previous Civil Code of 1916 by transferring this issue to a future specialized law. 34 In view of this new perspective of the Brazilian Federal Constitution and considering that the Brazilian Indian Statute has not been formally revoked, it shall be interpreted in accordance with the current Constitution regime. Any provision of the 1973 Statute which conflicts with the 1988 Constitution is no longer valid. With regard to Brazilian Indians’ guardianship, the main provision of the Brazilian Federal Constitution of 1988 is Article 232, 35 which sets forth that the Brazilian Indians have rights to sue in order to legally defend their interests. Accordingly, the Brazilian Indians have been granted independent access to the court system (the participation of the District Attorney is under the custom legis position, as in several other cases foreseen in Brazilian laws). As a consequence, the Brazilian Indians do not need to be represented by Funai to exercise their rights. 36 This means that the Brazilian Federal Constitution changed the extent of the Brazilian Indians’ guardianship concept of the 1973 Brazilian Indian Statute, since the Funai role, although still extremely important, is confined to implementation of public policies or to enforcement activities against violations of the rights of Brazilian Indians. 37 It is important to note, anyway, that even in the former regime, the participation of the National Indian Foundation (Funai) as a precondition for a given act to be legally valid was linked to communities that were not integrated into Brazilian society and were incapable of understanding and defending their own rights. As established by the Brazilian Indian Statute: Article 8 - The acts practiced between Brazilian Indians not integrated into Brazilian society and any stranger to the Brazilian Indians communities, when there has not been assistance from the competent guardianship entity, are considered null. 34 Civil Code of 2002, Article 4, sole paragraph. 35 Article 232: Indians, their communities, and organizations have standing to sue to defend their rights and interests, the Public Attorney’s Office intervening in all the procedural acts. 36 We adopt thae position that “generally, the capacity required from the part to the legal proceeding is the same which is required for the acts of civil life, i.e., to practice the legal acts of substantive law [...]”. Please refer to Humberto Theodoro Junior, as quoted by Luiz Fernando Villares. Direito e Povos Indígenas [Law and Indigenous People]. Juruá Editor, 2009, p. 60-61. 37 We support the thesis of non-reception of the “guardianship-non-capacity” concept by the 1988 Constitution Respectively, see Helder Girão Barreto, Direitos Indígenas [Indigenous Rights]. Juruá Editor, 2003, p. 42-43 and Luiz Fernando Villares, cit. 136 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
Sole paragraph. The rule of this Article does not apply in the case where the Brazilian Indians show consciousness and knowledge of the practiced act, given that it is not prejudicial to him/her, and of the extension of its effects. As mentioned above, since the late 1980s, Brazilian Indians have organized themselves in order to defend and represent their own interests by constituting Brazilian Indian Associations under the Brazilian legal system. In this sense, the Associação Metareilá clearly meets those requirements and is entitled to fulfill the role of project participant and representative of the Surui in the project development and credit commercialization, provided that (i) Associação Metareilá acquires a specific mandate to take decisions and implement the project on behalf of all the clans which comprise the Surui present in the areas where the project will be implemented and (ii) the economic results of the commercialization are reverted to such clans. Those conditions establish the autonomy of the Surui to conduct the project and legitimate that their association acts in accordance with the overall interests of their community. Finally, it is important to clarify that although Funai’s participation is not a pre-condition for the legal act to be deemed valid; however, it is important to submit the project to Funai to allow the agency to fulfill its role of identifying any potential situation which can result in damages to the Brazilian Indians’ rights. On the other hand, the fact that Funai’s participation is not a pre-condition for the validation of legal acts of Brazilian Indians does not restrict Funai’s duties and power to seek, whenever necessary, administrative and judicial remedies to protect Brazilian Indians’ rights. It also does not impair its remaining important role in formulating the national policies and implementing administrative actions aimed at protecting the Brazilian Indians’ rights, including the demarcation of Indians’ lands and many other supportive actions. Based on the Surui’s constitutional rights discussed in this paper (permanent possession over their lands, exclusive usufruct and perception of economic benefits resulting from its sustainable use, and carbon credit ownership) and their autonomy to implement the projects, we conclude that the participation of Funai as a project participant is not mandatory to validate the actions of the representatives of the Surui in project development and credit commercialization. However, given the role of Funai in protecting Brazilian Indians’ rights, it is recommended that obtaining Funai’s formal analysis and institutional support of the project as part of the stakeholders’ consultation conducted by the Surui. Further, Funai may play an important role in implementing policies that favor the implementation of these types of projects. The fact that the Surui are able to autonomously implement the project also displaces consideration of the economic results of the project as part of the “Indian Heritage” concept 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 137
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Avoided Deforestation (REDD) and In
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Avoided Deforestation (REDD) and In
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Summary Introduction Raul Silva Tel
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Amazon region is currently the pref
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Indigenous Lands and the Climate Cr
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“Amazon biome,” which does not
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approximately 13 million hectares,
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The tables below display data regar
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In practice, the main decisions reg
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Nogueira, EM., Fearnside, PM., Nels
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22 Av o i d e d d e f o re s t A t
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Given the absence of legal definiti
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internal debates on this issue, pre
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which they have traditionally owned
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which Bolivian legislation calls
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consultation” in its articles 30.
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are also facilitated by the strong
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legal risk that these lands can be
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has the duty (and exclusive compete
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derived from them, such as from the
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On the other hand, the Colombian le
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“the special norms which regulate
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framework of ecological function an
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The law permits and stimulates refo
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the use, enjoyment, control, admini
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One of these bills relates to the e
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the constitution which still has no
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Since there is not a specific law r
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communities of the sierra and jungl
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the lands that they possess and tha
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and legal instruments to guarantee
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those recognized “in internationa
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limitation for implementing eventua
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REDD in Venezuela Since REDD mechan
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to implement REDD projects with bec
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Can IPs dispose of the forestry res
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Ecuador Yes. However, it will be ne
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to reductions in GHG emissions and
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did not establish any mechanism to
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On the other hand, there is a growi
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the co-existence of diverse culture
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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 and 132: of representing their respective co
Page 133 and 134: they are entitled to participate in
Page 135 and 136: In the case of Brazil, the prolifer
Page 137: • Article 11, IV of the referred-
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
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