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

framework of ecological function and the environmental obligations of the property, which
prevents indigenous peoples, even if they wanted to, from completely changing the forest land
use in the overlapping territories.
Cases of indigenous territories overlapping with NNP will have to be included under the
idea of promoting conservation and forest cover maintenance and will have to form part of the
group of incentives to comply with the necessary conditions for the conservation function of
these areas. Eventually, resources derived from REDD projects, in these cases, should help ensure
existing economic pressures so that the people living in these areas can continue to conserve
forest resources as they have done up to now.
Finally, the most important legal consequence of the overlap between IRs and NNPs is
the impossibility of carrying out an exploration of subsoil resources in the area of NNP, which
guarantees that indigenous territories located in these areas are exempt from this type of
territorial expropriation, 70 which is becoming a growing threat in the Colombian Amazon. 71
With regard to the overlap between Forest Reserves and Indigenous Reservations, the
current law is not as explicit as in the case of overlap with NNPs. However, it declares the possibility
for the creation of reservations inside forest reserves, allowing the possibility that they are not
exclusive institutions, and for this reason they should harmonize their ecological, as well as their
cultural, function. To this respect, law 160 of 1993 in the 6th paragraph of Article 85 points out that
“the territories traditionally used by nomadic, semi-nomadic or indigenous people who practice
shifting cultivation for hunting, gathering or horticulture which may be located in forest reserve
areas according to this law can only be designated as the indigenous reserves, but the occupation
and harvesting should also be submitted in addition to the procedures established by the Ministry
of the Environment and the current regulations regarding renewable natural resources.”
It is possible to interpret that in the case of the overlap of reservations with forest
reserves, in addition to the same exceptions of traditional use of the natural resources which
are in place in the case of overlap with NNPs, forest reserves are a type of protected areas much
70 Judgment C-649 of 1997. Constitutional Court.
71 The general regime of the NNPS (National Natural Park System) is not applicable to indigenous territories,
except in the case of the authorization of exploration and exploitation of subsoil resources belonging to the State
or commercial or industrial renewable natural resource permissions. Thus, members of indigenous communities
in overlapping areas have been conducting the management, use and harvesting of their natural resources in
an uninterrupted and peaceful manner, without the limitations set forth under this rule.” LABORDE, Ramón. “Los
Territorios indígenas Traslapados con áreas del Sistema de Parques Naturales.” In: Public Policy Document Nº 23,
publication of the National Environmental Forum. December 2007.
46 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