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

In October, 2024, Tuxa Ta Pame (Ka'apor Management Council), a political organization representing the Ka'apor People, filed an Common Procedural Action, with a request for urgent relief against the Federal Union, Funai (National Foundation for the Environment), and Wildlife Works Brasil Projetos para o Meio Ambiente Ltda., due to the defendant company's implementation of a carbon credit (REDD+) project in the Alto Turiaçu Indigenous Land (TI), home to the Ka'apor People, in Maranhão. The plaintiff claims 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) with all the indigenous people of the people was not carried out and that the company lacked standing to carry out FPIC in the territory. The company, of US origin, allegedly operated for a year without proper registration in Brazil, and Funai allegedly failed to act to contain illegalities in its operations. Only after a year of operating in the territory, Wildlife Works reportedly contacted Tuxa Ta Pame, who expressed their objection to the company's presence and requested a suspension of activities, which was not complied with. The Tuxa Ta Pame argues that, because the territory is Indigenous land, any agreement to develop and sell carbon credits could not be formalized without the participation of the Federal Government and Funai. The request is for an injunction to (i) suspend the defendant company's activities in the Alto Turiaçu Indigenous Land; (ii) require the Federal Government and Funai to conduct inspections in the territory. The final requests are for the preliminary injunctions to be confirmed. In its response, 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 possibly facilitating a partnership to implement the REDD+ project in the Alto Turiaçu Indigenous Territory, and that these representatives had not yet been heard by the court. It argued that the Ka'apor Management Council represents a small portion of the Indigenous Territory's inhabitants, who had refused to participate in the discussions promoted by the company, presenting unsubstantiated allegations. It argued 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 that the lawsuit be dismissed without a ruling on the merits or that the claims be dismissed as unfounded. The court considered the possibility that the consultation process conducted thus far lacks democratic legitimacy and lacks clear consensus among the groups representing the affected Indigenous people. It partially granted the request for an injunction to provisionally suspend the REDD+ Project implementation activities in the Alto Turiaçu Indigenous Land until judicial clarification is provided regarding the legitimacy of the Indigenous representatives involved and the regularity of the consultation process. Funai filed a defense arguing that it had not committed any negligent conduct. It argued that it had drafted a Public Note directing Indigenous organizations and leaders not to participate in negotiations and negotiations 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 had already developed other initiatives to regulate the matter. It noted that, despite the guidelines, according to Article 232 of the Federal Constitution, Indigenous people have full civil capacity, and it is not possible to absolutely prevent them from entering into agreements with private institutions. It requested that the claims filed against the agency be dismissed.