Avoided Deforestation (REDD) and Indigenous ... - Amazon Fund
Avoided Deforestation (REDD) and Indigenous ... - Amazon Fund Avoided Deforestation (REDD) and Indigenous ... - Amazon Fund
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
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- Page 5: Summary Introduction Raul Silva Tel
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- Page 30 and 31: which they have traditionally owned
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In the same way, the Brazilian political charter declares indigenous l<strong>and</strong>s inalienable,<br />
unseizable, <strong>and</strong> imprescriptible, explicitly guaranteeing the real use rights to the riches of<br />
the soil, the rivers <strong>and</strong> the lakes existent therein to the indigenous people. 28 In the Brazilian<br />
legislation, the bare ownership of indigenous territories remains with the Federal Union,29 with<br />
the only objective of protecting <strong>and</strong> guaranteeing the exclusive possession of the indigenous<br />
people over their l<strong>and</strong>s. 30<br />
Even though the legal system in Brazil does not recognize the bare ownership of<br />
indigenous people over their territories, it gives them the inherent powers of control through<br />
guaranteeing them the exclusive usufruct of the natural resources <strong>and</strong> their permanent<br />
possession in an imprescriptible <strong>and</strong> inalienable manner.<br />
On this particular legal form of property <strong>and</strong> ownership of indigenous territories in<br />
Brazil, Professor Dalmo de Abreu Dallari notes that: “If it is true that by failing to be owners,<br />
Brazilian Indians cannot dispose of the l<strong>and</strong>s that they traditionally occupy, it is equally true that<br />
the Union, although owner, does not have the power of disposition. And the indigenous groups<br />
permanently enjoy, <strong>and</strong> with all amplitude, the possessory rights over their l<strong>and</strong>s.” 31<br />
It is important to clarify that the exclusive usufruct rights of indigenous people over<br />
the natural resources in their territories is different from the common institution of usufruct<br />
referred to in the civil code. 32 The recognized right of indigenous people is characterized by<br />
collective ownership <strong>and</strong> is not limited in time or conditional on the lifetime of its first owners.<br />
Thus, the real indigenous usufruct right should be understood as the right to dispose, administer,<br />
distribute, <strong>and</strong> control the natural resources of their territories according to their uses, customs,<br />
<strong>and</strong> traditions to guarantee their survival <strong>and</strong> reproduction, subject to the economic, social, <strong>and</strong><br />
cultural development options of each village.<br />
Even though indigenous l<strong>and</strong>s are property of the Union, the state cannot freely dispose<br />
of them. That is to say, the Union cannot use them for means that are not for the permanent<br />
habitation of the indigenous people. Additionally, they are inalienable l<strong>and</strong>s <strong>and</strong> their concession<br />
to third parties is not possible under any title or pretext (art. 231, §2nd ). In Brazil, there is no<br />
28 st 1 paragraph of article 231 of the FC.<br />
29 FC, Article 20, No XI.<br />
30 SILVA, José Alfonso. Positive Constitutional Law Course. São Paulo: Editor Malheiros, 2006, Ed. 27, p. 855.<br />
31DALLARI, Dalmo de Abreu. Reconhecimento e proteção dos direitos dos índios (Recognition <strong>and</strong> Protection of the<br />
Rights of Indians). Brasilia: Senado Federal, v. 28, n.111, jul/sept. 1991, p. 319. Free translation.<br />
32 Civil Code, Law 10.406/2002, Title VI of Usufruct.<br />
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
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