COPENHAGEN, Denmark – A tribe in the Brazilian Amazon region owns carbon trading rights in future global warming deals, finds a new legal opinion from one of the world’s largest law firms released at the Copenhagen climate summit.

Because the opinion should apply to other indigenous groups in Brazil it provides a path to preservation of vast areas of the rainforest say forest advocates. At least 40 percent of the world’s remaining rainforest lies within Brazilian borders.

But just as the legal opinion appears to advance rainforest safeguards, the section of the Copenhagen text dealing with Reducing Emissions from Deforestation and Degradation, REDD, is being weakened, conservation groups warn.

The opinion on the carbon rights of the Surui tribe by international law firm Baker & McKenzie was commissioned by Forest Trends, a forest conservation group based in Washington, DC.
“This really is a landmark opinion,” said Michael Jenkins, president and CEO of Forest Trends. “What we have been able to demonstrate here is that there will be opportunity and a path forward for indigenous groups to participate in emerging markets from a global warming deal. In fact, the indigenous groups would now be part of the solution.”

The conclusion is based on the Brazilian Constitution and legislation, which “reserves to the Brazilian Indians … the exclusive use and sustainable administration of the demarcated lands as well as…the economic benefits that this sustainable use can generate.”

“This study confirms that we have the right to carbon, and is also an important political and legal instrument to recognize the rights of indigenous people for the carbon in their standing forests,” said Chief Almir Narayamoga Surui, leader of the Surui tribe. “It helps in our dialogue with the government, businesses, and other sectors, strengthening the autonomy of indigenous peoples to manage our territories.”

The Surui have developed a project that depends on international carbon offset finance that pays them to leave standing forests on their lands, which are situated in the Brazilian state of Rondonia.

Many indigenous groups have expressed concern that the climate change deal being negotiated in Copenhagen would be yet another international agreement that erodes their rights.

In response, Forest Trends asked Baker & McKenzie to research whether Brazilian law would allow the Surui and other indigenous groups in Brazil to claim benefits under any deals involving the framework for Reducing Emissions from Deforestation and Degradation, REDD, now being negotiated as a part of global climate talks taking place this week in Copenhagen.

The REDD part of the proposed climate deal is meant to reduce the 20 percent of global greenhouse gas emissions that result from deforestation and forest degradation in developing countries.
The legal opinion states that under the REDD framework, the Surui indigenous group would be able to oversee management of the rainforest as well as reap any economic benefits from carbon trading arrangements.

Baker & McKenzie’s work was done through its Brazilian-associated office, Trench, Rossi e Watanabe Advogados. Its finding is not binding but comes against the political backdrop in Brazil of strong federal government support for indigenous groups.

“This finding should greatly help the Surui and, by extension, other indigenous groups in Brazil,” said Beto Borges, director of the Communities and Markets Programs at Forest Trends. “Not only do the indigenous groups have the ethical right for carbon credits projects on their land and because of their stewardship role over the generations, but this finding now means they have the legal right as well. It’s a major step forward.”

The finding could safeguard the survival of the Surui tribe, which has endured many threats to its existence. With just 1,200 members overseeing 600,000 acres of land, the Surui tribe first came in contact with Brazilians of European descent only 40 years ago.

Their population immediately was reduced from over 5,000 to 290 people from disease for which members had no immunity. Then, illegal loggers invaded the Surui’s land, and 11 regional indigenous leaders have been assassinated, killings believed to be directed by logging and mining captains.

Chief Almir, who has received assassination threats and for a time fled to the United States for his safety, has been one of several Surui leaders trying to win national and international support on environmental issues.

Most recently, the tribe has won support from the Brazilian national government and from conservation organizations, and through a mapping project with the Amazon Conservation Team and Google Maps that documented the natural and human history of their traditional land.

However, in Copenhagen, REDD text leaked to observer groups over the weekend has removed numeric targets for ending deforestation and weakened safeguard language.

Targets for deforestation in the previous REDD text aimed to cut deforestation by 50 percent by 2020 and eliminate it by 2030.

“Without targets, REDD becomes toothless,” said Peg Putt of the Wilderness Society. “The so-called safeguards will be nothing but fancy window dressing unless they are given legal force.”

Of equal concern to conservation groups, language ensuring critical safeguards for biodiversity, forest conversion, indigenous rights, and monitoring has been moved from operational text into the preamble to the REDD section.

“Limiting safeguards to the preamble weakens the agreement and deprives it of any assurance of compliance,” said Alistair Graham of Humane Society International.

The language moved to the preamble recognizes the role of timber-consuming countries in deforestation but puts no obligation on them to address the problem.
“Global demand for forest commodities like illegal timber and palm oil is one of the leading causes of tropical deforestation around the world,” said Andrea Johnson of the nonprofit Environmental Investigation Agency. “If we don’t address the causes of the problem, how can we find a solution?”

“Currently, an acre of forest is cut down every second, depriving the world of critical carbon reservoirs and creating huge emissions bursts into the atmosphere,” said Stephen Leonard of the Australian Orangutan Project. “A REDD deal without global deforestation targets or safeguards makes it much more likely that the orangutan and other critical species that rely on the forest will become extinct.”

While text can still be changed, ministerial level actions this week may be required to reinsert targets and strengthen safeguard language.

“Clearly, everyone agrees that the world’s tropical forests need to be protected,” said Bill Barclay of Rainforest Action Network. “But good intentions aren’t enough, they have to be paired with action.”

There are many views of what constitutes the best course of action to protect forests and indigenous rights.

The International Indigenous Peoples Forum on Climate Change is demanding, as a minimum, explicit inclusion of indigenous rights protections in climate mitigation and adaptation treaty text.

The U.S.-based advocacy group Amazon Watch warns that, “Without robust indigenous rights protections in the next climate treaty, proposed mechanisms such as REDD will exacerbate social conflicts and result in human rights violations in places where customary land rights are not fully recognized or legal frameworks are weak or non-existent.”

Amazon Watch believes that any international mechanism to reduce deforestation should be de-linked from emissions offsets and carbon trading.

“We do not support the concept of one to one offsets,” Amazon Watch said in a statement Thursday. “We consider offsets as an ultimately unreliable scheme, where polluting industries and industrial nations can continue business as usual without making any real reduction in their emissions. Concerning financing mechanism for REDD, we highlight the deep flaws being widely documented in carbon markets where fraud is rampant and actual reductions are exaggerated and often not ‘additional.’”