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

legal risk that these lands can be subject to a forest concession to private companies, which is
expressly pointed out in the public forest management law. 33
Additionally, the FC prohibits that indigenous people are removed from their lands
except in case of epidemics that could place the population at risk, or in the interest of the
country’s sovereignty, provided that the National Congress authorizes thus and guaranteeing,
in any case, indigenous people’s immediate return once the risk which justified their transfer
ceases. 34
In this way, even though the Brazilian State does not recognize the indigenous people’s
full ownership , for all practical effects, the legal formula that holds legal title to the property
(inalienable) in the hands of the Union and guarantees the permanent usufruct and possession
rights (imprescriptible) of the indigenous people, it is the same as the full recognition of
inalienable, imprescriptible and unseizable property, as this is the case in other countries in the
region.
On the other hand, it is important to highlight that in the Brazilian legislation, the
indigenous people, as well as their social and economic organizations have full civil capacity to
carry out legal negotiations, indigenous communities may also have rights and obligations.
The new civil code (law 10406 of 2002) altered concept of indigenous people as being
relatively incompetent as mentioned in the previous civil code of 1916, and which still mentions
the Indian Statute (law 6001 of 1973) 35 the new civil code recognizes in Article 4 §1 that indigenous
people are no longer considered incompetent and that special legislation will be responsible for
defining the specific capacity in order to address specific collective and individual ownership
rights and responsibilities of indigenous people.
33 Public Forest Management Law (Ley de Gestión de Florestas Públicas). Law Nº 11.284, of March 2, 2006. The Annual
Plan of Forestry Granting (APFG), proposed by the management body and defined by the grantor, will contain
a description of all the public forests to be submitted to the processes of concession in the year they apply. Art. 11. The
APFG for forestry concessions will consider: (…) IV – the exclusion of indigenous lands, the areas occupied by local
communities and areas of interest for the creation of conservation units for integral protection. (Emphasis by
author.)
34 th FC, 5 Paragraph, Article 231.
35 Article 42 of the Indian Statue, still without explicit revocation, establishes that the National Indian Foundation
(FUNAI) will manage indigenous patrimony, unless it is demonstrated that the “tribal group” who owns that
patrimony has “effective capacity” for this management. This constitutes part of the tutelary politics which the
Brazilian State exerts towards indigenous people, which predates the FC of 1988, but to the extent that FUNAI
remains and the indigenous rules are still, even 20 years later, not updated, many of the tutelary and paternalistic
behaviors continue to be developed based on this relationship.
36 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