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

construction of a hydroelectric power plant in an area supplied by diesel power plants. In this
case, the owner of the hydroelectric power plant will be the owner of the CERs since he is the
initiator, or owner, of the activity that generated the reduction.
When REDD+ or reforestation activities are carried out on indigenous lands with a
subsequent generation of CERs or VERs, these shall be the property of the indigenous people
because they are the ones responsible for such activities and hold the exclusive right to use the
forest resources found on indigenous lands. This understanding meets the general orientation
that has been adopted within the scope of the Climate Convention, the Kyoto Protocol, and the
CDM Executive Board.28
Carbon Ownership in Projects Undertaken on Indigenous Lands
Although indigenous lands are property of the Brazilian State (Union) 29 and protected
as public lands, they are unavailable, meaning that the State cannot utilize them for purposes
other than the permanent habitation of indigenous peoples. These lands are also inalienable,
that is, indigenous territories cannot be sold, leased, conceded, or transferred to third parties
under any reason or pretense (Art. 231, §2). This prevents, for example, that indigenous peoples
are forced from their lands, with the constitutional exceptions of disasters and epidemics that
put the population at risk or for the sake of the country’s sovereignty.
This restriction is based on the indigenous peoples’ constitutional right to permanent
tenure and exclusive usufruct of the riches from the soil, rivers, and lakes found on indigenous
lands. This is considered to be a sui generis legal arrangement within the Brazilian system,
because – although it does not recognize that indigenous peoples have ownership over their
lands – they are given all the powers inherent to governing those lands. This arrangement has
been instrumental since it allows for indigenous social organization, 30 which translates into the
peoples’ right to self-determination. 31
With regards to the ownership and tenure of indigenous lands, Professor Dalmo de
Abreu Dallari clarifies that “if it is true that for not being owners, Brazilian indigenous peoples
28 Apud http://www.cdmrulebook.org/513.
29 Article 20 of the Federal Constitution.
30 SILVA, José Afonso da. Curso de Direito Constitucional Positivo (Positive Constitutional Law Course),
São Paulo: Publisher Malheiros, 2006, Ed.: 27, p. 855.
31 ILO Convention 169 (ratified by Brazil on July 25, 2002) and UN Declaration on the Rights of Indigenous Peoples
(approved by the UN General Assembly with a favorable vote from Brazil in 2007).
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 89