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

that the subsoil resources belong to the State and that the State can exploit them directly or
through third parties, to whom the State can grant exploitation rights, which basically guarantees
the right of non-binding consultation for the inhabitants.
With specific relation to mineral exploitation in indigenous lands, 76 it is now permitted in
Colombia in areas defined by law as indigenous mineral zones; these are areas inside indigenous
territories in which the exploration mineral wealth is possible77 by the indigenous communities
themselves, who have the priority right of exploration, which can be exercised by them or by
third parties which they contract to carry out partial or total explorations in their territories. 78
Individuals can only access the indigenous mining zones if the community desists to exercise
their preferential contractual right to explore mining resources of their territories. 79
In conclusion, in Colombia indigenous people are collective owners of their lands and
the natural resources which exist therein. Except in a few n cases in which the use and enjoyment
of the renewable natural resources by indigenous people in their territories is limited, they have
76 According to Article 5 of Law 685 corresponding to title 1 regarding general regulations of the Code, minerals
of any class and location in the soil or subsoil in any form are the exclusive property of the State without
consideration of the property, possession or tenancy of the corresponding terrain belonging to other public
entities, individuals, communities or groups. Therefore, it should be considered that, for the protection of ethnic
groups, the law defines indigenous territories as areas owned in regular and permanent form for a community or
indigenous group in accordance with the provisions of Law 21 of 1991 and other laws which modify, expand or
substitute it.
77 Law 685 Article 122. Indigenous Mineral Zones. The 1st subsection was declared Conditionally Enforceable
by the Constitutional Court through Judgment C-418-02 Speaking Magistrate Dr. Álvaro Tafur Glavis; “under the
understanding that in the marking and delimitation process of indigenous mining zones should comply with
the paragraph of Article 330 of the Constitution and Article 15 of ILO Convention 169 approved by Law 21 of
1991” that is to say, for the declaration of these indigenous mining zones, it will be necessary to carry out prior
consultation with the directly affected people.
78 Law 685, Article 125. Concession. The concession will be granted on request of the community or indigenous
group and in favor of them and not the people who compose it. Their participation in the mining jobs and in their
projects and yields and the conditions for how they can be substituted in said jobs within the same community,
will be established by the indigenous authority which governs them. This concession will not be transferrable in
any case.
79 Once mining zones are declared, the law does not allow indigenous people to deny the existence of mineral
exploration in their territory. However, when marking off indigenous mining zones, the law provides that the
people themselves can indicate restricted indigenous areas that can be excluded from exploitation, as Article 127
of law 685 mentions that “the indigenous authority will demarcate within the indigenous mining zone the areas
that cannot be subjected to mining explorations or exploitations because of special cultural, social, and economic
meaning for the community or aboriginal group, according to their beliefs, uses, and customs.” Therefore, the
indigenous people in Colombia only have the option of excluding small areas inside of their territories from
mineral exploitation.
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 49