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

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has the duty (and exclusive competency) 39 to consult the indigenous communities potentially affected before authorizing such ventures. 40 Despite the constitutional declarations and doctrinal interpretations, there is not clarity regarding the true extent of the autonomy of indigenous people with regards to the management of their natural resources. The infra-constitutional legislation, which refers to the management of natural resources and the legal regimen applicable to indigenous people, 41 has not been revised and updated with the constitutional framework of 1988, which permits the coexistence of many norms which conflict with the new constitutional provisions. This causes ambiguous interpretations, principally, regarding the rules for economic uses that are different from traditional uses, which indigenous people carry out in their territories. Thus, the currently one finds law which defines indigenous lands as permanent preservation areas in which, according to modifications included in 2001, 42 indigenous communities can carry out the exploration of forest resources limited to a sustainable forest management regime for their subsistence needs. 43 Thus, even though indigenous lands are considered permanent Congress, and after the affected communities have been consulted, thus assuring their participation in the results of the exploration, in the form of the law). 39 st Brazil, Federal Regional Tribune of the 1 Region, Report of Judge Selene Maria de Almeida Interlocutory Appeal No 2006.01.00.017736-8/PA, Federal Public Ministry v. IBAMA et al., State of Pernambuco, 2006, page 6 “The Consultation is done directly with the community involved in the construction project. The National Congress has the exclusive competence to carry out the consultation, as only it has the power to authorize the work. Article 231, §3 of the FC/88 conditions the authorization to hearsay. 40 This is the only instance in which the FC refers to an institution similar to the consultation. In fact, once ILO Convention 169 and UNDRIP were ratified and incorporated, the consultation mechanism which is referred to in the 3rd paragraph of article 231 should be interpreted in terms of the right to consultation and free, prior and informed consent of which these international instruments speak. 41 The current indigenous rights law is called the Indian Statute which was issued in 1973 under the conception of the tutelary State regime relating to the indigenous people and the Brazilian State. Currently, a bill which seeks to update the indigenous rules in the new constitutional framework; however, this bill has been in the National Congress for more than 14 years. 42 Article 3-A: The exploration of forest resources in indigenous lands can only be done by indigenous communities under a sustainable forest management regime and to meet their subsistence needs, as stated in Articles 2 and 3 of this Code. Article included by the Provisory Measure No 2.166-67 of August 24, 2001 in the Forest Code, Law 4771 of 1965. 43 The definition of the Sustainable Forest Regime according the Brazilian legislation is limited to the “administration of the forest to obtain economic, social and environmental benefits, respecting the supporting mechanisms of said ecosystem for management and considering, cumulatively or alternatively, the use of multiple wood species, multiple non-forest products and sub-products as well as the use of other goods and services of natural forest.” Item VI of the 3rd Article of law 11.284 of 2006. 38 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
environmental protection areas, the cutting and commercialization of native woods is permitted, provided that a “sustainable forest management plan” is established for the exercise of said activity and in strict compliance with the environmental restrictions in the region. 44 Additionally, Article 46 of law 6001 of 1973 (current Indian Statute) modifies the forest code on harvesting in indigenous lands through a special law: the cutting of wood in indigenous lands considered to be permanent preservation “is conditional on the existence of use programs and projects on the respective lands for agricultural, industrial or reforestation exploration.” With regards to the Brazilian legislative framework, it can be concluded that, in the same way that the State cannot impose the specific activities through which indigenous people exercise their exclusive usufruct, neither can indigenous people avoid their environmental obligations involving the use of natural resources for activities that are not considered traditional. Thus, in the development of non-traditional commercial activities, the indigenous people should maintain the native forest cover at the percentage that the law requires for each biome. 45 For the Amazon region, this means that both traditional activities as well as non-traditional activities should keep a ratio of at least 80% of native forested area and 20% of non-forest use areas. In sum, the usufruct of the forest resources is exclusive for indigenous people; the Brazilian State is prohibited from granting forest concessions to third parties in indigenous lands and the execution of non-traditional economic activities are conditional on compliance with the national environmental legislation. In this line of thought, according to the Brazilian legislation, indigenous people have the exclusive control over the natural resources which exist in their territories, and do not depend on the authorization or permission from any public body in order to use the resources in a traditional manner. At the same time they must comply with the environmental obligations in their territories for the execution of non-traditional activities and economic exploration. Thus, given that indigenous people are the exclusive usufructaries of forest resources, the economic benefit 44 A comprehensive legal analysis regarding the application of environmental restrictions to the economic activities done by indigenous inside their lands was carried out by Mathias Baptista, Fernando. “A gestão dos recursos naturais pelos povos indígenas e o direito ambiental” in Lima, Andre, O Direito para o Brasil Socioambiental. Sergio Antonio Fabris, Editor: Porto Alegre, 2002. 45 In this way, the indigenous lands in the Amazon biome must maintain 80% of native forest cover in their territories, 35% of forest cover in the indigenous territories located in the cerrado biome within the region defined as the Legal Amazon and 20% of native cover in the remaining biomes in the country. Forest Code, Law 4771 of 1965, article 16. 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 39
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 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 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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