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

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provided by more recent policies established by the Federal Government. 38 In that regard, any allocation of a portion of the economic results of the project by the Surui to Funai should be considered on a voluntary basis from a project governance standpoint. REDD: Some Discussions in Light of a Possible Future Regime Although our initial legal analysis focuses on the afforestation and reforestation aspects of the Surui project, we were able to further consider some aspects related to REDD projects in the absence of national and international regulations regarding REDD, based on the overall objectives of REDD projects (conservation of forests and sequestration of GHGs) and the overall legal framework in place. However, the current absence of specific Brazilian legal requirements regarding REDD projects may be impacted by the Brazilian ratification of a possible future REDD international regime. In this scenario, provided that some kind of agreement is reached in the near future, the ultimate REDD legal regime will be conditioned to (i) the extent that REDD credits will be recognized as a tradable right in the international market and (ii) the possible impact of REDD credits in future Brazilian emission reduction targets mandates, if any. The combination of those factors, among others, may trigger a more or less interventionist approach by the Government in trying to define a specific REDD legal regime in Brazil. In theory, some level of restriction on such rights may be possible, depending on the existence of a regulated market (for example, through taxation of economic benefits deriving from REDD projects). Such regime may or may not seek to include some innovation regarding ownership of carbon credits vis-à-vis the general rule in place, whereby carbon credit ownership is connected to the main rights attached to each project activity. (The person or group who owns the economic results of the project activities that generate the credits, or is a legal beneficiary thereof, owns the credits). 39 Regardless of the ultimate design of a Brazilian REDD Strategy and its corresponding legal and policy contours, its legality will depend on its alignment with the Constitution, including the 38 Federal Decree Nº 4.645 of March 25, 2003, Art. 25 (amending Law Nº 5.371 of December 5, 1967, which initially established Funai). Funai is merely entitled to take care of and manage the Indigenous Heritage of Brazilian Indian Communities that are isolated or do not have the capability to defend and represent their own interests. The situation of the Suruí Community is different in that its members have organized themselves by constituting Associação Metareilá do Povo Indígena Suruí which has represented their interests since 1989. 39 Under a more restrictive international scenario, some stakeholders have suggested that some governmental interventionist approach over credit ownership may be necessary to assist the country in complying with a possible mandated emission reduction target in a future international regime, thus avoiding the risk of double counting credits arising from Brazilian forests. 138 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
constitutional rights of Brazilian Indians. In that respect, under the current constitutional regime and legal framework, we do not envisage any possible elimination of the Brazilian Indians’ rights over REDD projects originating in their demarcated lands, as previously discussed, due to their clear exclusive rights of usufruct to such lands. It is important to note that, even under the few constitutional exceptions regarding the Brazilian Indians’ exclusive usufruct of their land (namely, the utilization of water resources, included the energetic potential and the prospecting and exploitation of mineral resources) and based on a relevant national interest, 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 such activities. We tested our conclusion against other arguments in favor of a interventionist governmental approach in a future REDD National Policy, and the results of our analysis remained the same. One possible argument would be that the Union’s full ownership of, or share in, the economic benefits resulting from the REDD projects could be based on the role of the Union in demarcating and safeguarding Brazilian Indians’ land in the country. A similar argument is raised by some stakeholders when discussing REDD rights in private areas on the grounds of an alleged lack of effort by property owners or forest users in relation to the conservation of native forests. In both cases, those arguments are not sufficient to restrict the Brazilian Indians’ rights over REDD credits originating from their lands. As we have discussed throughout this paper, the Union’s proprietary rights over Brazilian Indian lands are instrumental to protecting the Indians’ rights recognized by the Constitution as original rights over their lands, preceding the Constitution itself. 40 The constitutional obligation of the Union in securing the Brazilian Indians’ rights is not pre-conditioned to any type of duties by the Indians as a counterpart obligation and should not entitle the Union to any economic compensation by the Brazilian Indians. In fact, any discussion of possible payments for environmental services considers the users of forestry land as beneficiaries of such payments, not the contrary. On the other hand, the original rights of Brazilian Indians over the land they traditionally occupied, as recognized by the Federal Constitution, derive, among other factors, from their ancient and historic role “as the first of all genuine Brazilian cultural and civilization 40 See “A Constituição e o Supremo – Supremo Tribunal Federal”, art. 231, paragraph 1, citing the decisions (“Voto”) of Ministry Carlos Ayres de Britto and Ministry Celso de Mello in Pet 3.388 and RE 183.188, respectively (available at www.sft.jus.br/portal/constituicao/artigo). 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 139
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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
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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 and 138: • Article 11, IV of the referred-
Page 139: Sole paragraph. The rule of this Ar
Page 143 and 144: of exploitation or use, and belong
Page 145: alignment with the Brazilian consti
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