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

cannot dispose of the lands they traditionally occupy, it is equally true that the Union, although
the owner, has no power of disposition. And indigenous groups may permanently and fully enjoy
all the tenure rights over these lands.” 32 Thus, the permanent tenure and the exclusive right to use
held by indigenous peoples leads to a de facto ownership right. 33 It means that the Union is the
bare owner of the lands, whose utility will be solely and exclusively reverted to the indigenous
peoples inhabiting them, so that they are able to survive physically, to preserve their special
relationship with the land and their cultural identity, and to be respected in their choices and
customs. 34
Thus, the Union cannot make concessions over indigenous lands or natural resources
found therein, unless they are in accordance with the decisions and interest of the indigenous
peoples themselves. The only exceptions to this rule are the possibility of mineral and hydroelectric
exploitation on indigenous lands, both of which are provided for in the constitution (Art. 231,
§3), although they are not yet regulated. In any case, the consultation of indigenous peoples
is necessary. Confirming this understanding, Federal Law nº 11.284/06, which regulates the
use, management, and concession of forests situated on public lands, explicitly determines
“the exclusion of indigenous lands, areas occupied by local communities, and areas considered
for the creation of conservation units with integral protection” from the Annual Plans of Forest
Concessions, which are those that indicate the areas to be submitted to forest concession (Art. 9
c/c Art. 11, IV).
Therefore, there is no risk that indigenous lands become State forest concessions to
private companies. Also, indigenous lands are not going to be used for public purposes other than
the protection of indigenous peoples. For instance, indigenous lands cannot be made available
for population resettlement programs which would obviously interfere with indigenous tenure
over the territory and, subsequently with the integrity and management of the natural resources
therein. Since according to the Brazilian legal system, indigenous peoples are the only subjects
with the power to dispose of the natural resources found on their lands, with the aforementioned
32 DALLARI, Dalmo de Abreu. Reconhecimento e proteção dos direitos dos índios (Recognition and protection of
indian rights), p. 319, Brasília: Senado Federal, v. 28, nº111, Jul/Sept. 1991.
33 CRETELLA Jr. José. Comentários à Constituição de 1988 (Commentaries on the Constitution of 1998).
Rio de Janeiro: Forense Universitária, 1993, vol. VIII, p.4567.
34 Especially the jurisprudence of the Inter-American Commission and Court of Human Rights and the UN
Convention on the Elimination of all Forms of Racial Discriminationº Anaya, S. James, “The Emergence of
Customary International Law Concerning the Rights of Indigenous Peoples”, 12 Law & Anthropology: Int’l Y.B.
Legal Anthropology 127 (2005).
90 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