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

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are also facilitated by the strong and consolidated indigenous movement, which is an important particularity to consider when comparing the possibilities for the implementation of similar initiatives in other countries in the region. Brazil In the Amazon Basin, Brazil has the largest percentage (60%) of the biome under its jurisdiction. The territory recognized as the Legal Amazon in Brazil25 includes nine states: Tocantins, Maranhão (in part), Pará, Amapá, Mato Grosso, Rondônia, Acre, Amazonas, and Roraima, covering an area of approximately 5,217,423 km2 corresponding to about 60% of the Brazilian territory. Besides the legal Amazon, the Amazon forest is the largest of the ecosystems in the country occupying almost half of the entire national territory. The deforestation pressure of the Amazonian forest is especially high here compared to the rest of the basin, and in fact, deforestation is the direct cause of approximately 75% of the GHG emission in the country. 26 Both Indigenous Lands and Conservation Units (CUs) are currently fenced off and are under strong pressure from the advance of the agricultural frontier which promotes forest land use change for agricultural and livestock economies. 27 In this important Brazilian biome, indigenous people play a leading role. The majority of the Indigenous Territories (ITs) in the country are concentrated in the legal Amazon: there are 405 areas, equivalent to 1,084,665 km2 , representing 20.7% of the Amazon territory and 98.61% of all the ITs in the country. Because of this, indigenous people in the Brazilian Amazon are fundamental actors in any discussion about natural resource use and definition of social and economic development options in the region. Brazil is one of the first countries in the Amazon Basin to recognize and protect the territorial rights of indigenous people. The Federal Constitution of 1988 (hereafter FC) recognizes the original rights over the lands which the indigenous people traditionally occupied as well as their social organization, customs, languages, beliefs, and traditions (Chapter VIII of the FC). 25 This term refers to a political, not biogeographical, definition of the Amazon region in Brazil. 26 On generating sources of GHG in Brazil, see: http://wwf.org.br/natureza_brasileira/reducao_de_impactos2/ clima/mudancas_climaticas/ 27 This part of the present study is based on the legal concept elaborated by the lawyers Erika Yamada and Raul do Valle from the Socioenvironmental Policy and Law Program of Instituto Socioambiental (ISA) completed for Brazil in parallel to the production of this regional study. 34 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
In the same way, the Brazilian political charter declares indigenous lands inalienable, unseizable, and imprescriptible, explicitly guaranteeing the real use rights to the riches of the soil, the rivers and the lakes existent therein to the indigenous people. 28 In the Brazilian legislation, the bare ownership of indigenous territories remains with the Federal Union,29 with the only objective of protecting and guaranteeing the exclusive possession of the indigenous people over their lands. 30 Even though the legal system in Brazil does not recognize the bare ownership of indigenous people over their territories, it gives them the inherent powers of control through guaranteeing them the exclusive usufruct of the natural resources and their permanent possession in an imprescriptible and inalienable manner. On this particular legal form of property and ownership of indigenous territories in Brazil, Professor Dalmo de Abreu Dallari notes that: “If it is true that by failing to be owners, Brazilian Indians cannot dispose of the lands that they traditionally occupy, it is equally true that the Union, although owner, does not have the power of disposition. And the indigenous groups permanently enjoy, and with all amplitude, the possessory rights over their lands.” 31 It is important to clarify that the exclusive usufruct rights of indigenous people over the natural resources in their territories is different from the common institution of usufruct referred to in the civil code. 32 The recognized right of indigenous people is characterized by collective ownership and is not limited in time or conditional on the lifetime of its first owners. Thus, the real indigenous usufruct right should be understood as the right to dispose, administer, distribute, and control the natural resources of their territories according to their uses, customs, and traditions to guarantee their survival and reproduction, subject to the economic, social, and cultural development options of each village. Even though indigenous lands are property of the Union, the state cannot freely dispose of them. That is to say, the Union cannot use them for means that are not for the permanent habitation of the indigenous people. Additionally, they are inalienable lands and their concession to third parties is not possible under any title or pretext (art. 231, §2nd ). In Brazil, there is no 28 st 1 paragraph of article 231 of the FC. 29 FC, Article 20, No XI. 30 SILVA, José Alfonso. Positive Constitutional Law Course. São Paulo: Editor Malheiros, 2006, Ed. 27, p. 855. 31DALLARI, Dalmo de Abreu. Reconhecimento e proteção dos direitos dos índios (Recognition and Protection of the Rights of Indians). Brasilia: Senado Federal, v. 28, n.111, jul/sept. 1991, p. 319. Free translation. 32 Civil Code, Law 10.406/2002, Title VI of Usufruct. 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 35
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 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
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Indigenous Peoples as Protagonists
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e considered a security under Brazi
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cannot dispose of the lands they tr
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Article 34 of the Indian Statute (F
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is a legal obligation and there is
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State or to third parties. Since ca
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equired for the acts of civil life,
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indigenous peoples could only have
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Indigenous Collective Ownership Fin
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of their interest is indivisible (L
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equired before the benefits may be
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The Surui Project: Building Indigen
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has decimated much of their forest.
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Reducing Risks: Framework for Proje
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Michel Pellanders/Hollandse Hoogte,
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evitalization. Therefore, the REDD
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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
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• Article 11, IV of the referred-
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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
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