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Legislation blog ;

Carbon market: legalising pollution as a commodity

It is not new that indigenous peoples and traditional communities are fighting for their survival. And also for ours. In addition to violence, dispossession, threats and harassment that have brutally affected them for centuries, politics and interests of large corporations and agribusiness continue to move forward against their lives and their lands. Legal and illegal mining, agribusiness, including cattle ranching, hydroelectric plants, illegal timber trade and biopiracy are among many other economic activities that continue to consistently threaten the means and ways of life and the cultural identity of these communities and peoples.

Considered guardians of the forest, these peoples also suffer from another set of violence: The commodification of their livelihoods through initiatives of sustainable management of forests known as “standing forest”. These initiatives, presented as a way to combat deforestation, are aimed at monetizing the benefits of carbon mitigation. Even so, the voracious appetite of large corporations continues to press on different fronts for the reduction of indigenous lands. Legislative measures have been advanced by lobbyists in the interest of agribusiness and extractive industries. Likewise, legal claims have been presented aiming at the promotion of legal theses to question in the judicial system the rights of indigenous peoples. An example is the “Marco Temporal”, through which indigenous peoples can only claim the demarcation of lands that were already occupied on the date of promulgation of the 1988 Brazilian Federal Constitution.

Voluntary targets for reducing greenhouse gas emissions to stop the climate crisis, including nationally determined contributions (NDCs) are essential to try to guarantee a present and a future not only for the planet - but especially for those who inhabit it. These targets need to be achieved through urgent, serious and effective measures, which include the discontinuation of certain practices such as the burning of fossil fuels and the intense and irresponsible change in land use. Although the obligations assumed by States through the Paris Agreement have been considered procedural obligations of conduct and, therefore, would not be obligations of result, they should be interpreted in a similar way to internationally recognized economic, social, cultural and environmental rights, following the principle of progressive realization of DESCAs and the prohibition of regressivity. Considering that these NDCs are, so far, the main international mechanism capable of responding to the climate collapse and that this phenomenon intensifies already existing inequalities and vulnerabilities, it is necessary to reaffirm: the climate crisis is a human rights crisis. In a country with historical pendencies in guaranteeing rights for its traditional communities, this issue becomes even more evident.

The main drivers of deforestation in Brazil are aimed at the commodification and privatisation of land through land grabbing and conflict. They dispossess original, traditional and peasant communities from their rights through the conversion of collective rights into individual property rights aiming at profit and accumulation. The processes that consider indigenous peoples through objectification, seeing them as a means to the maintenance of the forest standing initiatives, including through compensations aimed to reduce emissions, do so to serve the capitalist aspirations for REDD+, the green economy and the carbon market. Despite occupying a relevant space within climate negotiations for decades, so far these "solutions" have not been able to mitigate the advance of deforestation in countries that have their highest emissions from this source. At the same time, the ways in which these mechanisms have been applied generate distinct impacts on indigenous peoples and traditional communities, ranging from intensified conflicts between different groups to forced expropriation in territories. In contrast, deforestation rates in demarcated indigenous lands are the lowest in the country (when compared to conservation units and private properties). Despite this, the right of these communities to their territories was never completely guaranteed through demarcation by the Brazilian State, putting many communities that live on lands not yet demarcated into legal uncertainty. This legal uncertainty often translates into violent conflicts with land grabbers, miners and agribusiness sectors.

In the carbon markets strategy, nature becomes a financial “asset” and therefore subject to financialization and monetization. With this, pollution is allowed to be commercialized, through the establishment of a carbon market that legitimizes the corporations' right to emit. They are, therefore, allowed to continue to profit from pollution, as long as mitigation mechanisms are put in place. These mechanisms, in turn, allow corporations that adopt them another form of very profitable entry: the visibility and washing of their brand, the attraction of consumers and investors from an appearance of concern with the future of the planet and the commitment to “doing the right thing”, a practice known as greenwashing and corporate social responsibility measures. The problem, therefore, is not just in the creation of “assets” from nature and their conservation, in the commercialization of “avoided emissions” and “the right to emit” or in their insertion in the financial logic. It is also in the dispossession of the original peoples of their territories, of their traditional ways of life and in the abstraction of the fact that guaranteeing the demarcation of the territories of these peoples is a faster, cheaper and more fair climate solution.

The climate crisis cannot be used as a way of legitimizing predatory mercantile practices based on the necessity or imperative of reducing target emissions. As important as eliminating, for example, the use of fossil fuels is eliminating the carbon market, which treats pollution as a commodity. This “market” should not be presented as an alternative nor used to justify the continuation of predatory practices that generate social and environmental impacts, such as projects that violate human rights and impact the environment. The extractive and market logic of thinking about paths for development is the reasoning responsible for taking us to the scenario of imminent climatic collapse. The search for solutions to this phenomenon within this same logic did not prevent global emissions from continuing to increase even more in recent decades. In this sense, traditional and indigenous communities have been providing examples of sustainable coexistence with the planet for centuries and, not surprisingly, they have never needed to use carbon markets to do so. The fundamental question is whether we really want to solve this problem at its roots or generate market opportunities instead. The two things at the same time are hardly possible and the costs of following this path may end up being too expensive for us to pay.

About the authors

Brazil legal blog

Alexandra Montgomery is a human rights defender from Brazil. She has dedicated her life to advancing human rights, social justice and dismantling inequality, racism and discrimination. Currently, she is the Director of Programmes at Amnesty International Brazil. Previously she was the Director for the Brazil Program at the Center for Justice and International Law, CEJIL.

Brazil legal blog 2

João Henrique Alves Cerqueira is an environmental engineer and climate justice activist. Cofounder on the projects “Cicli - biking for the climate” and “Clima de Eleição”. He was part of the Brazilian official delegation on the 22nd, 23rd and 24th UNFCCC's COP's and in 2019 he won the UN Green Ticket contest for young climate leaders to participate at the first UN Youth Climate Summit. He currently works as a campaign consultant for Amnesty International Brazil.

Video contributions

FOTO Joenia

Joenia Wapichana is the first indigenous lawyer in Brazil and a member of the Wapixana tribe of northern Brazil. After taking a land dispute to the Inter-American Commission on Human Rights, Wapixana became the first indigenous lawyer to argue before the Supreme Court of Brazil. She is also the first Indigenous elected Federal Deputy, current Leader of REDE Sustentabilidade and Coordinator of the Mixed Parliamentary Front in Defense of the Rights of Indigenous Peoples in the National Congress.

Headshot_Photo_Larissa_Boratti

Dr Larissa Verri Boratti is the partner head of the environmental law and regulation practices at ILARRAZ Advogados (Brazil). Larissa has practiced litigation and legal consultancy in the private sector for more than ten years. Larissa holds a PhD from University College London (UK), a Master degree from the Federal University of Santa Catarina (Brazil) and an LL.B. from the Federal University of Rio Grande do Sul (Brazil). She held a Postdoctoral Fellow position at the Federal University of Santa Catarina (Print-CAPES Programme | 2019-2020). She is also an active member of a number of professional and research organisations in the field both in Brazil and in the UK, and lectures on environmental law. She is a Co-Founder of Challenges of Multidisciplinarity in Socio-Environmental Research (CLOSER) and a member of JUST-Side (Achieving Justice and Sustainability in the Territory through Spatial Data Infrastructure Systems).

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