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

On the other hand, the Colombian legal system recognizes indigenous people and
communities as collective subjects with fundamental rights, 57 which in turn are represented
legally and extra-judicially by their traditional authorities. The law defines traditional authorities
as those “members of the indigenous community who exercise, within the structure of the
respective culture, a power of organization, government, management or social control.” 58
Traditional authorities already incorporated in the law are the indigenous councils,
recognized in law 89 of 189059 and the Traditional Indigenous Authority Associations (TIAAs)
recognized as organizations of indigenous authority representation in Decree 1088 of 1993. 60
It is worthwhile to note that the Colombian legal system has been categorical in affirming
that indigenous authorities do not have omnipotent power to dispose of the natural resources
in indigenous lands by themselves, as they are always subject to the ultimate decisions of the
communities and people they represent. Thus, the Colombian Constitutional Court points out
that “The right to collective property of the renewable natural resources which are found in
their territories does not grant an all-embracing power to the representatives of the respective
indigenous communities to freely dispose of them. The autonomy of the indigenous authorities
in the management of their own issues, especially in regard to the use of natural resources, should
be exercised with full responsibility. The indigenous community can always argue the ultra
vires doctrine against acts of their authorities who have illegally or arbitrarily disposed of the
57 Currently, the Constitution itself explicitly mentions indigenous communities in articles 96, 171, 246, 329 and
330 and defines them as “the set of families of Amerindian descent who have awareness of identity and share
values, features, uses or customs of their culture, as well as forms of government, management, social control or
their own normative systems which distinguish them from other communities, having property titles or not, or
being unable to legally prove them, or whose reservations were dissolved, divided or declared vacant. Article 2
Decree 2164 of 1995.
58 Article 20 Decree 2164 of 1995.
59 The law defined Indigenous Council as “a special public entity whose members are members of an indigenous
community, elected and recognized by them, as a traditional socio-political organization whose function is to
legally represent the community, exercise authority and perform the activities attributed to them by the laws, uses,
customs and internal regulation of each community.” (Emphasis by author.)
60 TIAAs are defined as “entities of Public Law of special character with juridical status, and with separate patrimony
and administrative autonomy”, and which do not compromise the autonomy of the communities and their
associated authorities. Among the objectives of the TIAAs is to “advance industrial and commercial activities,
whether directly or through agreements made with natural persons or legal entities,” which means that this has
a legal status that includes both the traditional character of the authorities of each community, and also acts
as a legal institution for activities not necessarily traditional, as could be the realization of REDD project for the
emission and commercialization of carbon credits belonging to indigenous communities possibly associated with
TIAAs. Decree 1088 of 1993.
42 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