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

Article 34 of the Indian Statute (Federal Law nº 6001/73) and Article 1 of Law 5371/67 35
confer to Funai the power to oversee and protect the use of natural resources found on indigenous
lands, with the objective of guaranteeing the exclusive usufruct of the resources to indigenous
peoples. This protection is initially related to the combating of illegal actions committed by third
parties on indigenous lands, such as timber theft or any form of trespassing. Along these lines,
Federal Decree 5758/06 establishes the National Strategic Plan for Protected Areas (PNAP) and
defines its general objective “to establish a national program for the conservation and sustainable
use of the biological diversity found on indigenous lands”. Some form of cooperation among the
involved agencies should exist in order to satisfactorily protect indigenous patrimony (Funai and
the Federal Police) and to conserve the environment (Ibama and state environmental agencies –
OEMAs) with the goal of formulating and implementing an environmental conservation program
on indigenous lands.
Analyzing this conjecture carefully, we conclude the following: according to the stated
legal principles, the state police’s scope of action regarding indigenous lands should focus on
illegal deforestation carried out by third parties or, in some cases, by indigenous individuals.
Traditional activities developed by indigenous peoples are protected by law and can be developed
free from restraints; therefore, the prohibition of deforestation is restricted to the cases of nontraditional
practices by indigenous peoples.
Thus, it should be the State’s responsibility, theoretically, to prevent third parties from
stealing or in any way degrading the natural resources on indigenous lands. However, this
responsibility is not exclusive to indigenous cases. Conversely, as set forth in Art. 225 of the
Brazilian Constitution, as well as in Federal Law nº 6938/81 (Law of the National Environmental
Policy), it is the public authority’s obligation to oversee the use of environmental resources
and prevent illegal activities anywhere in the national territory, including on private lands,
supporting each person’s right to an ecologically balanced environment. The consolidated
35 Art. 1 – The Federal Government is authorized to create a foundation, with its own patrimony and legal
personality, under the terms of the civil law, denominated “National Indian Foundation”, with the following
purposes:
I – to establish guidelines and to ensure compliance with indigenist policies, based on the principles listed below:
(...); b) security of permanent tenure of the lands they inhabit and the exclusive usufruct of the natural resources
and all the utilities therein; (...)
II – to manage the indigenous patrimony, towards its conservation, extension and appreciation; (...)
VII – to make use of the police power in reserved areas and in matters related to indigenous protection.
92 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