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

guarantee the protection of the indigenous property which is considered to be a fundamental
right as it is directly connected to the right to the physical and cultural survival of the indigenous
people. 52
The constitutional charter recognizes that the indigenous authorities are competent
both to govern their territories as well as freely manage its natural resources (article 329
and 330 of the PC of 1991), and to govern according to their internal regulations and social
organization (article 286 of the PC of 1991). The Indigenous Reservations (hereafter IR) are
currently the only legal institution which refers to the collective property of the traditional
indigenous territories. 53
The right to full use and enjoyment of the forest resources in indigenous territories is
explicitly constrained by the environmental obligation to comply with the ecological function
of the property. According to Colombian law, IRs are subject to the provisions regarding the
protection and preservation of renewable natural resources, according to the uses, customs, and
culture of the indigenous people. 54
This explicit obligation which refers to the IRs extends to all types of indigenous territories
recognized in the Colombian legal system such as indigenous reserves, communal lands of
ethnic groups and indigenous parcels, 55 to the extent that the national legislation equates the
concept of Indigenous Reservations with what the ILO Convention 169 named “defined territory”
and which includes all types of territory traditionally used by indigenous people without
distinction of property title. 56
52 “The fundamental rights of indigenous communities should not be confused with the collective rights of
other human groups. The indigenous community is a collective subject and not a simple sum of individual
subjects which share the same diffused or collective rights or interests through the exercise of the corresponding
popular actions. Among other fundamental rights, indigenous communities are entitled to the fundamental
right of subsistence, which follows directly from the right to life consecrated in article 11 of the Constitution.”
Constitutional Court of Colombia, Judgment T-380 of 1993 Reporting Judge (R.J): Eduardo Cifuentes Muñoz.
53 Before the Political Constitution of 1991 and expedition 160 of 1993, in addition to the indigenous reservations,
there were so-called Indigenous Reserves which were defined as vacant lands occupied by indigenous people.
At present, the 5th paragraph of article 85 of law 160 and the 2nd article of decree 2164 of 1995 state that reserves
should be treated as indigenous reservations for all legal purposes.
54 Article 25 of Decree 2164 of 1995.
55 All of these names for indigenous territories existed prior to the 1991 Constitution. Law 160 of 1994 and decree
2164 of 1995 order that both parcels as well as indigenous reserves are recognized as indigenous reservations, this
being the legal institution in Colombia which fully recognizes the collective rights over the territory traditionally
occupied by the indigenous people.
56 Article 13 and 14 of Law 21 of 1991 which ratifies ILO Convention 169.
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 41