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

in the region, national legislation which will govern REDD projects and its compatibility with
indigenous legislation is yet to be defined.
The State Political Constitution (hereafter SPC) guarantees the right of the people,
communities, and indigenous nationalities to “conserve the imprescriptible property of their
community lands, which will be inalienable, unseizable, and indivisible” (art. 57.4) and to
“maintain the possession of their lands and ancestral territories” (art. 57.3). This means that
in Ecuador the right of indigenous people to the collective ownership of their territory is fully
recognized. 82 In the current Constitution, four different collective subjects are identified as holders
of indigenous collective rights: 1) communes, 2) communities, 3) villages and 4) indigenous
nations. All forms of political and social organization recognized and promoted by the state have
full autonomy to define their representative structures. 83
The actual political Charter is more ambiguous with regards to the right of usufruct and
control of natural resources in indigenous lands, than with regards to property rights. Thus, the
SPC guarantees in numeral 6 of article 57 that indigenous people have the right to “participate
in the use, usufruct, administration and conservation of renewable natural resources on their
lands.” In principle, this constitutional regulation, together with international instruments, 84
should be sufficient to confirm that indigenous people have the right to control and administer
the natural resources which exist in their territories. However, the fact that the cited numeral
6 refers to a right of “participation” in the use, administration and conservation of the natural
resources, leaves open the possibility that indigenous people are not the only legitimate owners
of the regulation rights these resources, this will be further defined by legislation posterior to the
Constitutional Charter which is being prepared in the Ecuadorian Congress.
82 Even though article 57 does not explicitly define “community lands” or “ancestral territories,” it is possible to
interpret that it refers to the concept of indigenous territory as defined in Articles 13, 14 and 15 of ILO Convention
169 and Articles 26 and following of UNDRIP, since the title of the cited article makes reference to the respective
international norms.
83 § 9, 10 and 15 of Article 57 of the SPC states that indigenous people have the right to: “9. Conserve and develop
their own forms of coexistence and social organization and of generation and exercise of authority in their legally
recognized territories and community lands of ancestral possession. (…) 15. Construct and maintain organizations
that represent them, and that pluralism and cultural, political and organizational diversity. The State will recognize
and promote all forms of expression and organization. (Emphasis by author.)
84 The title of cited article 57 indicates that the collective rights of indigenous people, according to the
constitution, should be interpreted “in conformity with the pacts, agreements, declarations and other international
human rights instruments.”
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 51