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

More documents

Recommendations

Info

forms.” 41 In this role, their tradition of the sustainable use of natural resources, including conservation of native forests, is paramount. Another possible argument towards the alleged ownership of REDD credits by the Union seeks to combine the definition of Brazilian Indians’ land as “Goods of the Union” (“Bens da União”) 42 with the concepts of “legal nature of forest resources,” as stated in the Brazilian Forest Code, 43 and “the social function of the rural property,” as stated in the Federal Constitution44 and the Brazilian Civil Code. 45 This interpretation would favor the concept of public ownership of forest resources (even those located in private land), allocating to the Union the their economic benefits. The applicability of such an argument over private land is outside of the scope of this paper. Suffice it to say, however, that such arguments would not impact the Brazilian Indians’ rights herein discussed. As stated, the hybrid nature of the Brazilian Indian lands comprises a sui generis legal proprietary regime, whereby the exclusive usufruct by the Brazilian Indians is explicitly recognized by the Brazilian Constitution. In that respect, the fact that the land (including the native forests) traditionally occupied by Brazilian Indians belong to the Union does not impact their rights herein discussed, which derive from their original rights over such lands and their exclusive usufruct rights. With respect to the extension of their usufruct rights, it is important to note that the expression “the richness related to soil, rivers and lakes which exists within them” stated in Art. 231, paragraph 2 of the Constitution shall be interpreted in the broader sense and does include forest resources located on their land. The exceptions to the concept of “soil” embedded in the Federal Constitution are expressly stated in Art. 176, which reads as follows: Art. 176: Mineral deposits, whether being exploited or not, and other mineral resources and hydraulic energy potential represent property separate from the soil, for purposes 41 Supremo Tribunal Federal (Brazilian Supreme Court) Pet 3.388, Rel. Min. Carlos Britto, julgamento em 27-8-08, Plenário Informativo 517. 42 Brazilian Constitution, Art. 20,XI. 43 “Artigo 1º, caput: As florestas existentes no território nacional e as demais formas de vegetação, reconhecidas de utilidade às terras que revestem, são bens de interesse comum a todos os habitantes do País, exercendo-se os direitos de propriedade, com as limitações que a legislação em geral e especialmente esta Lei estabelecem.” [Article 1, main section: The forests that exist in the national land and other types of vegetation, recognized as the ones which are useful to the lands they cover, are common interest goods, with the rights over the lands, subject to some legal limitations established in law and in the Forest Code in particular]. 44 Federal Constitution, Art. 186. c.c. Art 5, XXIII. 45 Brazilian Civil Code (Law 10,406/2002), Art. 1.228, paragraph 1. 140 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
of exploitation or use, and belong to the Republic, the grant holder being guaranteed ownership of the mined product [“As jazidas, em lavras ou não, e demais recursos minerais e os potenciais de energia hidráulica constituem propriedade distinta do solo, para efeito de exploração ou aproveitamento, e pertencem à União, garantida ao concessionário a propriedade do produto da lavra”]. Further, this wording is consistent with the remaining requirements of Art. 231, paragraph 3, which states that the only exceptions to the Brazilian Indians’ exclusive usufruct rights over their lands are in the case of hydraulic and mineral resources. Even in those cases, the Brazilian Indians are entitled to share in the economic benefits from such activities, and not otherwise. It is worth mentioning that two other important constitutional aspects of REDD projects that are not restricted to projects in Brazilian Indians’ land come from the combination of Art. 170 (which regulates the Brazilian economic order principles, including the harmonization of free will – “livre iniciativa” – and respect for the environment) and Art. 225 (which demand protection of the environment by public and private entities and individuals) of the Constitution. Accordingly, the protection of the environment can also be achieved through the use of market mechanisms such as REDD through the voluntary market or CDM under the UNFCCC and Kyoto Protocol. Any interventionist approach against those principles must be based on a very clear and strong case on behalf of the national interest and must be further tested against the rights and principles as stated in the Brazilian Constitution. Project Governance Due to the uncertainties of a future REDD regime, the inherent permanency and leakage risks of any forestry project, and the need for building up a robust and efficient national policy, it is recommended that the structure of REDD projects in the Surui lands allow, to the extent possible, the inclusion of such projects in a future Brazilian national REDD legal regime. In that regard, the Surui may consider voluntarily allocating a portion of the economic benefits from the projects (e.g., a portion of the income resulting from the sale of CERs or VERs) to be invested in an emerging REDD national system, particularly, in actions that can be implemented in the area of influence of the Surui project. Such investments can be made through the donation of funds or equipment to public entities such as Funai, the Brazilian Institute for the Environment and Natural Resources (Ibama), or the Federal or State Police who can play an important role in the enforcement of measures avoiding or interrupting any action by third parties that may jeopardize the integrity of the forest resources or the overall objectives of the project. 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 141
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 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 and 140: Sole paragraph. The rule of this Ar
Page 141: constitutional rights of Brazilian
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?