6
oriented towards increasing agricultural or any other productivity in the Community; ii)
improve the Community’s infrastructure according to its present and future needs; iii)
restore the deforested areas, and iv) others considered appropriate in benefit of the
Community of Triunfo de la Cruz.”14
24. Furthermore, the judgment indicates that the State shall destine a specific amount
for investment “in benefit of the territory titled to the Community of Triunfo de la Cruz”
and that the parties must “forward to the Court a yearly report during the execution
period detailing the projects in which it will invest the amount destined to the Fund.”15
25. Now, the reason behind this measure of reparation ordered by the Court is that it
reflects the understanding that the main or first adequate reparation to make good a
damage suffered by indigenous or tribal peoples collectively, is a collective reparation.
26. In this sense, it is important to point out some of the characteristics of collective
reparation, for example that: i) it must be considered as independent from the reparation
for the damages that may have been suffered by the members of the Community as
individuals; ii) its objective is the reparation of damages that, based on the
characteristics of indigenous and tribal peoples themselves (especially their relationship
with traditional lands), are collective and require specific measures of reparation; iii)
they seek to protect and be implemented according to the Community’s customs and
cultural identity; iv) they have a purpose related to the strengthening of the
Community’s social and economic situation, and v) the Community effectively
participates, through its legitimate representatives, in the decisions made regarding the
implementation of the collective reparation granted.
27. The acknowledgment that indigenous or tribal peoples, as such, can be entitled to a
right to reparation is enshrined, inter alia, in Article 28(1) of the United Nations
Declaration on the Rights of Indigenous People that states that: “[i]ndigenous peoples
have the right to redress, by means that can include restitution or, when this is not
possible, just, fair, and equitable compensation.” Moreover, its Article 40 states that
“[i]ndigenous peoples have the right to […] effective remedies for all infringements of
their individual and collective rights” and that “[s]uch a decision shall give due
consideration to the customs, traditions, rules, and legal system of the indigenous
peoples concerned.”16 In this same sense, Articles 15 and 16 of Convention 169 of the
ILO refer to compensations of which the peoples or communities are the beneficiaries.
28. The legal concept of collective reparation corresponds to the understanding that: i)
indigenous communities are entitled to human rights; ii) these rights are different to the
rights of each member of the Community and to the addition of these, and iii) these
rights are not assimilable to the collective rights of other social groups. 17 Additionally,
we must recall that the damage suffered by an indigenous or tribal community is
collective, but this does not mean it is less concrete. The difference with the damage
suffered by an individual is that collective damage is caused to a group as a whole and
it is not comparable to the sum of individual damages.
14
Para. 296 of the judgment.
15
Paras. 298 to 299 of the judgment.
16
See also Articles 20(2) and 32(3) of the United Nations Declaration on the Rights of Indigenous
Peoples.
17
Constitutional Court of Colombia, judgment T-514 of 2009.