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

indigenous groups and tribal communities. The political Charter, in reality, in its
Art. 231 §1, created a bound or reserved ownership destined, on one hand, to
guarantee indians the rights they were constitutionally granted (FC, Art. 231, §§ 2,
3 and 7) and, on the other, to provide indigenous communities the well-being and
the conditions necessary for their physical and cultural reproduction according to
their uses, customs and traditions.” (RTJ 93-1291 – RTJ 101/419). (STF – RE 183.188-0/
MS, Opinion of Reporter Justice Celso de Mello, p.19-22)
The jurisprudence of the Inter-American System of Human Rights that Brazil subscribes
to follows this same line of reasoning. The Inter-American Court of Human Rights has been
emphasizing that the right to ownership as provided for in the Declaration on the Rights of
Man and in the American Convention of Human Rights, for indigenous peoples, is collective
and should consider the manner in which the lands are being occupied, which is directly
influenced by indigenous customs and traditions. The agencies of that human rights system
understand that the protection of indigenous lands and indigenous territorial rights is essential
because the relationship indigenous peoples have with their lands is unique and constitutes a
base for social, cultural, and economic collective rights and for securing the existence of these
peoples. 20
Article 13 of Convention 169 of the ILO also supports this idea. It establishes that
governments must respect the significance of the special relationship indigenous peoples
have with their lands in addition to the preservation of indigenous cultures and spiritual
values. Article 15(1) of the same Convention states that “the rights of the interested peoples
to the natural resources found on their lands shall be especially protected and these rights
include the right of these peoples to participate in the use, administration, and conservation
of said resources.”
20 The main jurisprudence on property rights over indigenous territories can be found in the Court’s following
decisions: Case of the Saramaka People vs. Suriname. Preliminary Objections, Merits, Reparations and Costs.
Judgment of November 28, 2007. Series C, nº 172; Case of the Saramaka People vs. Suriname – Interpretation of the
Judgment of Preliminary Objections, Merits, Reparations and Costs. Judgment of August 12, 2008. Series C, nº 185;
Case of the Mayagna Community (Sumo) Awas Tingni; Case of the Sawhoyam Indigenous Community and Case of the
Yakye Axa Indigenous Community vs. Paraguay. Merits, Costs and Damages. Judgment of June 17, 2005. Series C nº
125. And in the Commission: Case of the Yanomami People vs. Brazil. Resolution nº 12/85, in Case nº 7615 of March
5, 1985. And Case of Maia de Toledo People vs. Belize. Judgment of October 12, 2004. All of these cases are available
at this website: www.corteidh.or.cr.
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 83