Avoided Deforestation (REDD) and Indigenous ... - Amazon Fund

Thus, the guarantee of special rights granted in indigenous territories before the new rules
took effect seems to take precedence over constitutional reforms and the validity of international
regulations such as ILO C169. In the understanding of Bolivian judges, forest concessions
superimposed on indigenous territories were perfectly in line with the current law when they
were issued, making the retroactive application of the new legal framework impossible.
It remains to be seen how the new constitutional court interprets the forest concessions
that were allocated for a period of 40 years or more and that are currently at the midpoint of
this period. Article 30.17 of NPCBS guarantees the indigenous peoples’ right to autonomous
territorial management and to the exclusive use and utilization of renewable natural resources
existing in their territories “without prejudice to rights legitimately acquired by third parties.”
It is probable that this subtle exception in the constitutional text which guarantees the rights of
third parties enables Bolivian judges to justify the maintenance of the forest concessions which
are currently superimposed on indigenous territories; however, there is no established case law
regarding this aspect.
With regard to the overlap of natural protected areas and indigenous territories, the
Constitution itself recognizes that “Where an overlap of protected areas and indigenous,
original and agrarian territories exist, the shared management will be subject to the rules
and procedures of the indigenous, original and agrarian nations and people themselves,
respecting the purpose for which the areas were created” (Article 385 II). This means that there
will necessarily be co-management agreements between the indigenous and environmental
authorities. The aforementioned constitutional provision should prevent indigenous people
from being forced off their lands for environmental conservation.
With respect to the question whether or not the Bolivian State can unilaterally dispose of
natural resources in indigenous territories without securing the free, prior and informed consent
of the affected people, it is important to mention that Bolivia formally guarantees indigenous
peoples’ right to consultation and consent, both through incorporating UNDRIP as a domestic
law, as well as through the NPCBS itself which guarantees the right to “mandatory previous
made by Ernesto Noé Tamo, Hugo Dicarere Méndez and José Tubusa Matarero, President, Vicepresident, and
Secretary of Natural Resources of the Central Indigenous People of Beni, against the Attorney General of the
Republic. Page 4. Other decisions in the same sense are: 200005-Sala Plena-1-057 Guarayos Native People v.
Attorney General of the Republic Board of Central Indigenous Community Concepcion, Director of the Indigenous
Center Paiconeca of San Javier and Center of Organization of 200005-Sala Plena-1-058 v. General Attorney of the
Republic Subcentral Indigenous Council of Multiethnic Indigenous Territories.
Av o i d e d d e f o re s t A t i o n (redd) A n d i n d i g e n o u s p e o p l e s: experiences, chAllenges A n d o p p o r t u n i t i e s in t h e A m A zo n c o n t e x t 31