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

y the new Constitutional Court through declaring the validity of norms preceding the new
Constitution. 91
The same is true with respect to the laws regarding the areas of overlap between
indigenous lands and natural protected areas. The law of environmental management, although
prior to the SPC, orders the consultation of the indigenous people who are in conservation unit
areas in order to define the management and the applicable regime in said areas. 92 The law does
not mention anything about its administration or the extent of indigenous participation in the
decisions referring to the compliance with environmental objectives. However, due to the current
indigenous legislation in Ecuador, the applicable norms in these situations should be compatible
with the recognition of full rights over the territory and the natural resources of article 57 of the
EPC of 2008.
One point that continues to be controversial and ambiguous in the Ecuadorian
indigenous legislation refers to the legal effects of the right to consultation and free, prior and
formed consent of indigenous people. Article 57.7 of the SPC observes that in the case of not
obtaining the consent of the consulted community, it will proceed according to the Constitution
and the law.
Based on the previous statement, part of the Ecuadorian doctrine interprets that, as
there is no current applicable law, and since the Constitution itself, in the title of Article 57 points
to the rights of the indigenous people, it should be interpreted in accordance with the pacts,
agreements, declarations and other international instruments for human rights. It is only possible
to understand Article 57.7 in the terms of the right to free, prior and informed consent. That is to
say, §7 of Article 57 should be harmonized with Articles 19 and 32 of the UNDRIP, which guarantee
the right to free, prior and informed consent of the indigenous people regarding any legislative
or administrative measure capable of affecting them. For now, this is a possible interpretation of
public utility. These lands will be exempt from the payment of property tax.” (Emphasis by author). The content of
the cited articles is different from the equivalent text in the SPC of 2008 for the phrases highlighted in red, which,
evidently, were repealed in the current legal order of Ecuador.
91 http://www.tribunalconstitucional.gov.ec/
92 Law of Environmental Management, 2004-019. Art. 13. – The provincial councils and municipalities will dictate
sectional environmental policy subject to the Political Constitution of the Republic and the present Law. They will
respect the national regulations regarding the Patrimony of Natural Protected Areas to determine land use and
will consult the representatives of indigenous people, Afro-Ecuadorians and local populations for the delimitation,
management and administration of conservation and ecological reserve areas.
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 53