Case Name: Tuxa Ta Pame vs. União Federal, Funai e Wildlife Works Brasil (Carbon credits and adequate prior consultation with the indigenous community)

Summary

This is a lawsuit for specific performance (Common Procedure Action - ProcedCom), with a request for urgent relief, filed by Tuxa Ta Pame (Ka'apor Management Council), a political organization representing the Ka'apor people, against the Federal Government, FUNAI (National Indian Foundation), and Wildlife Works Brasil Projetos para o Meio Ambiente Ltda., due to the implementation of a carbon credit (REDD+) project by the defendant company in the Alto Turiaçu Indigenous Territory (TI), home to the Ka'apor people, in Maranhão. The plaintiff alleges that the project was initiated through a partnership agreement with the Ka'apor Ta Hury Association of the Gurupi River, but that free, prior, and informed consultation (FPIC) was not carried out with all the indigenous people of the tribe, and that the company lacked the legitimacy to conduct FPIC in the territory. The company, of US origin, allegedly operated for a year without proper registration in the national territory, and FUNAI allegedly failed to act to prevent illegalities in the company's activities. Only after a year of operating in the territory did Wildlife Works contact Tuxa Ta Pame, who stated that he did not accept the company's presence and requested the suspension of activities, which was not respected. It is argued that, since it is indigenous land, any agreement for the creation and commercialization of carbon credits could not be formalized without the participation of the Federal Government and FUNAI (National Indian Foundation). The granting of urgent relief is requested to (i) suspend the activities carried out by the defendant company in the Alto Turiaçu Indigenous Land; (ii) that the Federal Government and FUNAI carry out inspection actions in the territory. As final requests, confirmation of the preliminary injunctions is requested.

In its defense, Wildlife Works Brasil Projetos para o Meio Ambiente Ltda. alleged that in 2023, 21 chiefs of the Ka'apor people had expressed interest in learning about and potentially establishing a partnership for the implementation of the REDD+ project in the Alto Turiaçu Indigenous Territory, and that these representatives have not yet been heard by the court. It argued that the Ka'apor Management Council represents an insignificant portion of the inhabitants of the Indigenous Territory, who have refused to participate in the debates promoted by the company, presenting unsubstantiated claims. It raised the point that the National Policy on Climate Change (Federal Law 12.187/2009) establishes guidelines for reducing emissions and includes combating deforestation as one of its main pillars, encouraging conservation initiatives such as REDD+ projects as a mitigation tool. It requested the dismissal of the action without prejudice or that the claims be dismissed as unfounded.

The court considered the possibility that the consultation process conducted so far has weak democratic legitimacy and that there is no clear consensus among the representative groups of the affected indigenous people. It partially granted the request for urgent relief to temporarily suspend the implementation activities of the REDD+ Project in the Alto Turiaçu Indigenous Territory until the legitimacy of the indigenous representatives involved and the regularity of the consultation procedure are clarified judicially.

Funai (National Indian Foundation) filed a rebuttal defending itself, arguing that there was no omission in its actions. It argued that it had prepared a Public Note advising indigenous organizations and leaders not to participate in negotiations and dealings for the commercialization of carbon credits on indigenous lands, suggesting that contracts not be signed until criteria and guidelines for the inclusion of indigenous lands in the voluntary carbon market are defined. Furthermore, the agency claimed it had already developed other initiatives to regulate the issue. It recalled that, despite the guidelines, according to Article 232 of the Federal Constitution, indigenous people possess full civil capacity, and it is not possible to absolutely prevent them from entering into agreements with private institutions. It requested that the claims made against the agency be dismissed.

The Union filed a response arguing that no oversight negligence on its part regarding the carbon credit trade on Indigenous land had been demonstrated. It alleged that the responsibility for protecting and defending Indigenous communities lies with FUNAI (National Indian Foundation) and that the federal entity has only a subsidiary role. It requested that the action be dismissed without prejudice due to its lack of standing, or that the claims against it be dismissed as unfounded.

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Main norms mobilized

• Article 231 of the Federal Constitution (CRFB/88)
• Brazilian Greenhouse Gas Emissions Trading System Law - SBCE (Federal Law 15.042/2024)
• Federal Constitution (CRFB/88)
• Forest Code (Federal Law 12.651/2012)
• ILO Convention 169 (Federal Decrees 5.051/2004 and 10.088/2019)
• Paris Agreement (Federal Decree 9.073/2017)
• United Nations Framework Convention on Climate Change - UNFCC (Federal Decree 2.652/1998)

Case timeline

Case documents