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

The law permits and stimulates reforestation and forestation activities in degraded areas in
indigenous territories that overlap with forest reserves, in Article 231 of RNRC.
Finally, it is important to point out that in the Colombian legislation the right of
indigenous people to collective property is not an absolute right and that the State can limit
the use and enjoyment of renewable natural resources that exist in the indigenous territories
to exploit subsoil natural resources and implement infrastructure projects considered to be
of environmental interest, while any opposition of indigenous people on the decision has no
binding force.
Simultaneously, the Colombian legislation recognizes the right of previous consultation
as a fundamental right of indigenous people. “It is foreseen when seeking to implement natural
resource exploitation in indigenous territories, the participation of the community in the
decisions that will be adopted to authorize said exploitation. Thus, the fundamental right of the
community to preserve integrity is guaranteed and effected through the exercise of another
fundamental right, namely the right of participation of the community in the adoption of the
aforementioned decisions.” 74
However, the right of indigenous people to be consulted about the exploration of
natural resources has not been regulated and the existing jurisprudence agrees that the right to
be consultation does not imply that the indigenous people have the right to veto a government
decision. The internal norms and jurisprudence pertaining to this issue are extensive and
all conclude that the final decision of legislative and administrative measures which affect
indigenous peoples lies with the State. 75
In relation to the exploitation of subsoil resources which can affect indigenous people’s
right of use and enjoyment of the forest resources in their territories, it first needs to be confirmed
74 Judgments SU 039 of 1997 and T-652 of 1998.
75 “When reaching an agreement or compromise is not possible, the decision of the authority should be devoid
of arbitrariness and authoritarianism; should be objective, reasonable and proportionate to the constitutional
aim which demands of the State the protection of the social, cultural and economic identity of the indigenous
community. In any case, they must find the necessary mechanisms to mitigate, correct or restore any possible
effects taken by authorities could produce possibly to the detriment of the community or its members. Therefore,
the value of consultation of information or notification which is done with the indigenous community regarding
a natural resource exploration or exploitation project. It is necessary that they comply with the mentioned
guidelines, that they present compromise or agreement forms with the community and that finally they manifest,
through their authorized representatives, their conformity or unconformity with said project and the manner in
which it affects their ethnic, cultural, social and economic identity.” Judgment SU 039 of 1997.
48 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