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

Since a new Indigenous Peoples Statue has not yet been issued, the legal reference to
which the 2002 civil code refers does not exist and as such, the rule of legal capacity of indigenous
people must adhere to the rules and principles established in chapter VIII of Title VIII which deals
with the officially recognized rights of indigenous people as collective subjects.
Environmental Legislation and Indigenous Lands
In Brazil, the issue of territorial rights of indigenous peoples is inevitably associated with
the current legal environmental framework. In the Brazilian legal system, indigenous people are
legal subjects who have the power to dispose of the natural resources existing in their lands.
The only exceptions to this rule are mineral and hydraulic exploration in indigenous lands. Both
activities are anticipated in the constitutional text; however, until now the necessary legislation to
release the realization of these activities within indigenous lands as required in the FC, paragraph
§3 of article 231 has not been enacted. 36
The principal comparative advantage of indigenous territories in the Brazilian Amazon
in comparison with indigenous territories in neighboring countries relates to the fact that, since
the laws that permit mineral and hydroelectric exploitation inside the perimeter of indigenous
lands have not been regulated, they do not currently face threats from such projects. However,
large hydroelectric projects in the Amazon region are beginning to consolidate independently
from the territorial rights of the indigenous people as is evidenced in the case of Belo Monte
Hydroelectric Exploitation in the Xingu River, State of Para. 37
The Brazilian Constitution determines that the use of water resources in indigenous lands,
as well as mineral prospecting and exploitation can only be done with the previous authorization
of the National Congress, as noted in Article 231§3, 38 which provides that the National Congress
36 Unfortunately, even though the necessary legislation for the exploitation of mineral and hydroelectric
exploitation in indigenous lands does not exist, the Brazilian State has been promoting the realization of
hydroelectric infrastructure works within or affecting indigenous lands, without respecting the constitutional
rights of these people, including the right to free, prior and informed consent. See, for example, the case of
Belo Monte Hydroelectric Plant in the Xingu River which directly affects indigenous people in the Xingu River
watershed and is ready to be given on concession without having met the requirements of the indigenous
legislation. For more information about the case, see: http://www.socioambiental.org/esp/bm/index.asp.
37 To see the complete information about the Belo Monte and how it affects indigenous people of the Xingu River,
enter: http://www.socioambiental.org/esp/bm/index.asp.
38 Brazilian Constitution. Art. 231, §3 (The use of water resources, including energy potential, research and
exploration of mineral wealth in indigenous lands can only take effect with the authorization of the National
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 37