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

One of these bills relates to the expedition of the Environmental and Water Code 85 which
is currently under discussion and has provoked controversy regarding its constitutionality, both in
its reference to the rights recognized by indigenous people, 86 as well as the same environmental
protection principle that was incorporated in the 2008 Constitution. 87
The current legislation, the law of Forestry and Conservation of Protected Areas
and Wildlife of 2004, guarantees that the forest areas in indigenous territories are exploited
exclusively by the indigenous people who own them, on authorization by the Ministry of the
Environment. 88 This same law points out that indigenous people have the exclusive right to
use of forest resources other than wood and the wildlife in their lands of their domain or
position.
Article 39 of the forestry law states that the exclusive right of forest resource use
belongs to indigenous people and should be understood according to Articles 83 and 84 of
the PC of 1998. 89 It is important to highlight that in the previous Political Constitution, the right
to inalienable, unseizable and imprescriptible collective property of indigenous territories was
already guaranteed, the reason for which was that the mentioned provisions could be considered
compatible with the principles of the new constitution, 90 however, this should be confirmed
85 See the text of the bill in: http://www.asambleanacional.gov.ec/index.php?option=com_docman&task=cat_vie
w&gid=935&dir=DESC&order=date&Itemid=188&limit=10&limitstart=10.
86 To see a complete analysis of how the mentioned bill limits the reach of indigenous people, see: http://clavero.
derechosindigenas.org/?p=1705.
87 See criticism regarding the content of the bill for limiting indigenous rights and defining the State as exclusive
owner of any ecosystem service produced in Ecuadorian territory in: http://www.accionecologica.org/index.
php?option=com_content&task=view&id=1146&Itemid=1
88 Art. 37 – Except for the provisions in the present chapter, the productive forest areas of the State that are
found in community lands of the indigenous, black or Afro-Ecuadorian people, which will be exclusively used
by them, upon authorization of the Ministry of the Environment subject to what is laid out in this law. (Forestry
and Conservation of Natural Areas and Wildlife Law. Codification 17, Official Registration Supplement 418 of
September 10, 2004). (Emphasis by author.)
89 Art 39 – Indigenous, black or Afro-Ecuadorian communities have the exclusive right to the use of forest products
other than the wood and the wildlife in the lands of their domain or possession, in agreement with Articles 83 and
84 of the Political Constitution of the Republic. (Forestry and Conservation of Natural Areas and Wildlife Law.
Codification 17, Official Registration Supplement 418 of September 10, 2004). (Emphasis by author.)
90 SPC 1998. Art. 83 – Indigenous people who self-define as nationalities with ancestral roots, and the black or
Afro-Ecuadorian people form part of the Ecuadorian State, unique and indivisible. Art. 84. The State will recognize
and guarantee to the indigenous people, in accordance with this Constitution and the law, respect for the public
order and human rights and the following collective rights: (…) 2. Conserve the imprescriptible property of the
community lands which will be inalienable, unseizable and indivisible, except the power of the State to declare its
52 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