This paper aims at showing a new instrument to protect traditional communities’ rights in accordance to international law, starting from the recognition of indigenous peoples’ lands, since the intellectual property rights system and the plant breeders’ rights one are not suitable for the traditional knowledge guardians. In this paper, we will briefly introduce the Brazilian legal framework for indigenous peoples’ lands, showing the national policies to protect them, some results from these policies and the problems they encounter. But what is so innovative about Brazilian law? It is the fact that environmental matters are no longer considered in isolation of social demands. This leads some avant-garde legislators to the concept of “social and environmental law." This innovative approach is reflected in the legal texts mentioned above, as we will discuss, and also in the debate on how to implement the 1992 international engagements under the Convention of Biological Diversity on traditional knowledge and benefits sharing. This innovative approach is tied to the concept of nature developed by François Ost. We are no longer discussing about untouched nature and birds. We are dealing with a sort of “socialized nature," because we cannot ignore that nature is used, commercialized, managed, threatened and polluted by men. In that manner, the best guardians of nature are those in close contact with it, and creating parks to isolate men from nature, as we used to do, is not the best solution for nature, and even less for men. Therefore, the main consequence of this social and environmental law concept is that public participation is largely required to make it work properly. In the case of traditional communities and indigenous peoples, although their participation is improving with the contribution of some NGOs and other civil society actors, it is still far from satisfactory. So, how can we possibly evoke governance with poor participation of the main actors? This constitutes one of the causes why the existing laws are not considered appropriate by some national and international observers. In fact, if we read NGOs sites on Brazilian indigenous peoples, they are never satisfied of the policies towards them. However, the problem is not deeply rooted in juridical considerations, but rather in the lack of political measures to implement the laws already created concerning indigenous peoples. Although the legal framework has changed in the last 20 years and the federal government has worked with non-governmental organizations in order to induce changes, the trained staff is not sufficient, and nor is the necessary equipment. Also, the systems of communication to fully control the implementation of laws and compliance in the whole territory are very poor
