The Federal Public Prosecutor’s Office and the Public Prosecutor’s Office of Pará released technical instructions this week as guidance for state and federal prosecutors on protecting the rights of Indigenous peoples, traditional communities, and quilombola communities of rebel slave descendants during negotiations with companies proposing contracts to generate carbon credits from forest conservation. As shown in a June report by SUMAÚMA, these Amazonian populations have been approached by companies who want them to enter into commitments of sometimes dubious value. There are also cases of private negotiators who claim to own farms that overlap conservation units.

The technical instructions, drafted by the human rights and environment operational support centers at the Public Prosecutor’s Office of Pará, stipulate that all carbon contract negotiations should be overseen by the government agencies responsible for the territories, which at the federal level includes the National Foundation of Indigenous Peoples (FUNAI) and the Chico Mendes Institute for Biodiversity Conservation (ICMBio). This also applies to quilombola communities, which collectively own their land – Indigenous peoples have exclusive usufruct and other traditional communities hold a concession over the lands they occupy. According to the document, authorities must provide oversight, because quilombos, as quilombola communities are called, are “specially protected” territories and are part of the cultural heritage.

Nevertheless, in each case the decision of whether to sign these contracts should respect the “autonomy” and “free will” of these populations and their decision-making authorities. The guidance also states that the government, and not private companies, must hold prior, free, and informed consultation, as established by International Labour Organization (ILO) Convention 169 and by Brazilian law, with broad participation and according to the protocols approved by Indigenous peoples and traditional communities. They should decide how the money made from selling credits will be distributed and they have the right to preserve their traditional ways of life.

An analysis by anthropologist Andrea Oliveira, of the Federal University of Paraná, is included in the guidance’s discussion of this issue, noting that Indigenous peoples and traditional communities have a different relationship with the forest than the carbon market or people not living on these lands. These peoples do not see themselves as “conservationists,” but as “builders of their spaces,” it quotes her as saying, while companies intend to purchase “management of not just part of the forests, but of the life and future” of the communities.

The guidance also says that contracts should be public and registered with a notary public and it recommends measures for striking private properties overlapping public lands involved in carbon projects from Brazil’s national environmental registry of rural properties. It goes on to state that companies certifying or purchasing credits must perform audits to ensure that communities’ rights are being protected, while also creating ombudsmen to receive outside reports of wrongdoing.

Finally, the document recommends including a “flexibility clause” in contracts so that they could be reviewed upon request by communities. It also proposes inclusion of contractual guarantees to divide benefits that were not originally established, but that resulted from traditional knowledge and natural resources in these territories.

The initiative from the Public Prosecutor’s Office is an attempt to compensate for a lack of unified standards for these contracts, since deals to generate and sell carbon credits take place on the so-called “voluntary market,” which is not government-regulated. Analysts are calling some of the agents in this market “carbon cowboys,” because of the fierce dispute for public lands containing large swaths of preserved forests. The sixty-nine page document says that there are already four processes open with the Public Prosecutor’s Office of Pará and ten with the Federal Public Prosecutor’s Office in Pará to monitor or investigate negotiations between companies and Indigenous or traditional peoples.

According to the guidance, these processes regard contracts where different irregularities were found, such as a lack of authorization from the managing public agency, the presence of “scurrilous or illegal clauses,” or where there was no free, prior, and informed consultation of communities. Additionally, the contracts are not public and do not make it clear how any benefits from carbon projects would be divided. The document cites the report by SUMAÚMA, along with other reporting and academic studies.

The Lula administration intends to place clauses protecting Indigenous and traditional peoples in a bill being drafted to create a regulated carbon market in the country. Following congressional approval, it would take two years to implement the regulations.