National Indigenous Organization of Colombia (ONIC) on land rights
( Translated by Lina Herrera, a CSN volunteer translator)
ONIC: 25 years of struggle and resistance for a more inclusive society!
NATIONAL INDIGENOUS ORGANIZATION OF COLOMBIA (Organización Nacional Indígena de Colombia) - ONIC -
STATUTE OF RURAL DEVELOPMENT: DISMANTLING OF LAND RIGHTS, AUTONOMY AND SUBSISTENCE OF THE
INDIGENOUS PEOPLE'S OF COLOMBIA
"Statement of the Mamos from the Sierra Nevada de Santa Marta: "Since the beginning our territory was given to us as our home, as our bodies, in which we should reside, of which we have to take care as a sacred being. Because of this, we have to live in balance and harmony with the water, the wind, the sun, the soil; in peace with nature which is our own nature, as well as with ourselves and our younger brethren."
ORIGIN OF LAND OWNING IN AMERICA
The Indigenous Reservations: their background, goal, political projections, and subsequent legal repercussions as to the private ownership of the soil and subsoil of the lands contained in said reservations.
"...The control given by Pope Alexander VI to the Catholic Monarchs* and their successors cannot be understood as a certain control over the land, among other reasons, because the Pope was not the owner of those lands, and hence he could not have at his disposal something that was not his. It was, therefore, a political control of which the ultimate goal was to facilitate the spread of the Catholic religion in the recently discovered American territories.
Therefore, the true genesis of the original "property deed" of SPAIN in AMERICA was limited to those lands that were abandoned by the indigenous people -its first occupants -when fleeing or when their race was obliterated. Among these ideas, the different rules set by the Spanish Monarchs, as to the distribution and awarding of the West Indies, have to be interpreted. This is why they promulgated special dispositions for the awarding of lands to the Spaniards, and very different ones to protect the rights of the lands still in hands of indigenous people... As it was already mentioned, SPAIN only had true deed of occupancy over the lands abandoned by the indigenous people in their escape, but not over those lands they managed to keep, whether because the natives fought the Conquistador or because the latter could not reach them. As to the lands abandoned by the natives, it is worth saying that SPAIN created a very lengthy legislation directed at determining the rules to be
followed to award lands to individuals, process which ended by issuing the appropriate deed. The CÉDULA DE SAN LORENZO, promulgated by FERDINAND VI, referred to this type. For the second type, the lands still in hands of indigenous people, the Crown limited themselves to recognize their occupancy as "property deed", making the convenient arrangements for the lands to be appropriately delimited and known. Therefore, when dealing with individuals, ownership of the land in AMERICA could only be proven before SPAIN with the formal deed of award made, among others, through sale, agreement, gift, or occupancy with the subsequent economic exploitation, etc. As to the indigenous people that ownership was demonstrated with the sole occupancy, because the Crown, we repeat, recognized the natives occupancy of their lands as "property deed", same as the Crown did with the lands the Conquistadores seized by force.
In the Recopilación de Leyes de los Reinos de las Indias, it was disposed, as to this matter, the following: "That the Indians be left lands, plenty, all those that belonged to them, in particular those containing communities and water; and the lands where they dug irrigation ditches or any other benefit, which because of their own enterprise have been fertilized. These should be reserved first and foremost, and in any case cannot be sold or expropriated, and that the Judges sent to this, specify the Indians they find in those lands, and leave them to each one of the taxpayers, elderly, Caciques, governors, absent ones, and communities" (Law 16, Title 12, Book IV)
CHARLES V had already, in the Royal Order (Orden Real), given from BARCELONA on April the 4th, 1532, had ruled the following: "... and that the Indians be left THEIR LANDS, INHERITANCE AND PASTURES, so that they don't lack all what they need".
And the Ley 5ª (Law V) of April 4th, 1532, established by Philip II ruled: "having to distribute the lands, water troughs, and pastures among the ones who will populate them, the Viceroys and Governors who had faculty, will distribute them, with approval of the councils of the cities or villages considering the regent ones should be preferred, if they don't have equivalent lands or plots; and that the Indians be left their lands, inheritance and pastures, so that they don't lack all what they need and have all the relief and rest possible to sustain their houses and families".
From the excerpts from the Laws of the Indies that have been cited so far, we can clearly conclude that SPAIN only declared itself owner of the AMERICAN lands they really occupied and which were abandoned by the natives, but not the ones over which the natives still had control. The first type, that is to say the lands that had been abandoned, could be awarded to the Spaniards or to the very natives through a so-called deed of control, issued by the Crown by utilizing the different systems that were established for such goal. The second type, it is worth mentioning, the lands still owned by the natives, were not susceptible to being awarded by SPAIN because the natives' ownership was acknowledged, and they were ordered to respect it..."
CURRENT CONTEXT IN THE INDIGENOUS TERRITORIES
The "territory" has been one of the fundamental principles that identify our vision of the world and our construction of future, which have historically guided the struggles of resistance for the survival of the indigenous peoples of Colombia. This right is part of an integral whole which grants us identity. It is the base for demanding our specific collective rights and the establishment of organizational alternatives and structures typical of the indigenous peoples.
Throughout our history, the indigenous peoples have been able to build in our territories cultural, social, administrative, and political spaces honoring and promoting biodiversity, protection of the natural resources, respect for others, and pacific coexistence. We have done this despite the armed forces which occupy our territories and intend to rule over them ignoring our legitimate, traditional authorities. Despite the State’s terrorism exercised by the national government to respond to our demands for rights. Despite the violence of the drug traffickers who bribe our brothers through intimidation and death threats. And despite the agricultural companies, the multinationals, and the very institutions of the State, which pretend, once again, to expropriate our lands.
We, the indigenous peoples of Colombia, know about regions for life, biodiversity, the protection of the environment, the flow of nature's knowledge; we know about balanced, protective relationships with the natural resources. Regions where friendship and trust rest; where words and dreams respect each other, where a Colombia without crimes against humanity and with respect for human rights is being built. Social regions and scenarios where war is rejected and initiatives for peace and resistance against war arise. Regions with a diverse identity which demands truth, justice and healing. Natural regions and spaces where plans for life, permanence, and food sovereignty have been finalized. This is why we, the residents, say no to the free trade agreement and to the Colombian State's policy of exploitation of the natural resources. These regions are the territories of the indigenous people, where 92 peoples live, where we promote and feel proud of our cultural identity and
our collective integrity.
But also we, the indigenous people, know of the regions where terror and death prevail, where men, women, and children are confined to hopelessness and misery. Regions where fundamental rights are violated, where the paramilitary strengthen their positions following orders from drug traffickers and agricultural companies to force the inhabitants and legitimate land owners to displace. They do all this, in order to expropriate our lands, which they in turn give to the ones who have exterminated us or just declare vacant or without owner. We know of regions and territories where the government's military and police forces abuse and massacre the civil population to protect the interests of invading landowners, multinational companies, and paramilitary forces. We know of regions where nature's life and exuberance once prevailed, but which today are the tomb of hundreds of indigenous peoples exterminated during the last two centuries. These peoples opposed the progress of
those who violently exploit Mother Earth, all those who are protected by a permissive government, a government which works for the welfare and wealth of those who massacre and impoverish the Colombian people. Many of these situations, unfortunately and relentlessly, also happen in the territories of the 92 indigenous peoples of Colombia.
Finally, we want to establish our position in front of the repeated, sinister discourse which the National Government has systematically disseminated before the national and international public opinion, saying that we, the indigenous people of Colombia, are the country's biggest landowners because they have given us more than 31 million hectares, which equal the third part of the country.
Vis-a-vis this posing, we make the following clarifications:
1. We, the indigenous peoples of Colombia, have KEPT approximately 29,800,000 hectares which correspond to our historical property right as the first occupants of America, where nowadays 70% of the country's biodiversity is preserved.
2. The Government has only acquired around 200,000 hectares for the indigenous people through the former Colombian Institute for Agricultural Reform (INCORA) and the Colombian Institute for Rural Development (INCODER) since 1961 to this day.
3. From these 31,000,000 hectares officially declared indigenous reservations, 22 million are rainforest jungle (Amazon – Pacific regions), 1 million are desert (Guajira region); almost all of the country's National Natural Parks lands overlap with indigenous reservations; the snowy peaks, the wastelands, and the ecological reservations minimize even further the indigenous peoples' possibility of having fertile lands suitable for agricultural production.
4. During the last National Dialogue Roundtable between the Indigenous Peoples and the National Government in 2006, the Ombudsman Office said at least 40% of the indigenous population of Colombia lacks of land resources.
The previously explained reasons clearly demonstrate that we, the indigenous people, are not landowners, that our territories are sanctuaries of life for the world. Regions where rivers of life flow, where nature's most majestic, powerful places arise; where men and women watch over the water, the air, the biodiversity so that they can remain in time and space. Our mission since the beginning is no other but keeping the harmony and balance between nature and human beings. To that extent, phenomena like global warming have to lead society to guarantee the prevalence of life. To this end it is vital that the Government guarantees the indigenous people suitable lands for productive development.
THE CONCRETE ISSUE OF THE STATUTE OF RURAL DEVELOPMENT
From different points of view (conceptual, of historical acknowledgement of the territorial rights of the Indigenous Peoples, and legal-technical) this bill is regressive, excluding, and unconstitutional, besides the fact that it trims rights and is legally inconsistent because of the factual and legal reasons exposed in this document.
This Statute of Rural Development, which is a legislative initiative, is an attempt against the collective rights of the indigenous peoples. Because of this, the National Government is responsible for providing effective, reasonable mechanisms of participation according to Convention No. 169 of the International Labor Organization (approved -in Colombia- through Act 21, 1991). According to the Convention, it is imperative to consult the indigenous people before implementing any legislative measure that directly affects the fundamental rights of the indigenous peoples, such as the rights to territory, autonomy, ethnic and cultural diversity, and in
fewer words, the survival of the 92 indigenous peoples.
To that extent, the Article 6 of the Convention establishes that:
"1. In applying the provisions of this Convention, Governments shall:
a) Consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly; (...)".
With the same perspective, Article 7 states:
"1. The peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions, and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development."
Finally, it is necessary to indicate that this international tool, according to Article 93 of the (Colombia's) Political Constitution, is part of the Constitutional Block, and not guaranteeing the right to consultation of the indigenous peoples is a clear and blatant violation of international treaties and conventions, and therefore, of the Constitution. In other words, if there was not a wide and efficient consultation process, as established by international rulings, this project would be unconstitutional, and we would not other alternative but to resort to legal and other actions which before have been the base of the struggle and resistance of the Indigenous Peoples of Colombia.
Next, we will present some necessary legal considerations about the Chapter in reference to the Indigenous Reservations.
Article 99 of the Statute of Rural Development openly proposes the dismantling of Convention No. 169 of the International Labor Organization, whose fundamental goal is to effectively guarantee and protect the right to property and possession over the lands that we, the indigenous people, traditionally occupy. Under no excuses, providing lands to the indigenous communities can be dependent on the survival of interests of rural development. In concrete words, this means that the interests of the oil companies, palm farmers, agricultural businessmen and mercenaries, and multinational corporations which exploit renewable and non-renewable natural resources would be burying one of the strongest historical struggles of the Indigenous Peoples: access to land though the creation, reorganization, and expansion of the reservations, as well as providing lands for the indigenous settlements.
Therefore, the expression "giving priority to criteria of regional development" is clearly unconstitutional and it violates Articles 7, 13, 63, 246; 329 section 2, paragraph 330 and transitory 56 of the Political Constitution, because through this legislation the Indigenous Peoples and other ethnic groups are recognized and protected by the Government, not depending on "regional development", but acknowledging our fundamental right to identity, survival, and reason of being and existing, independently from the regional development, as fundamental realities of our nationalities and cultures.
It is appropriate to clarify that the territorial rights of the indigenous peoples are not exclusively established and recognized on Article 63 of the Constitution. There is a complete legal and jurisprudence frame that guarantees the effective protection of the right to possession, ownership, and access to land since Act 89, 1890 to the most advanced concepts of the current Constitutional Court. The intent of the Statute of Rural Development is to ignore a struggle of more than 100 years to recognize the rights to territory of the Indigenous Peoples. In the same manner, as it was said before, the international tool that is part of the Constitutional Block on this topic is Convention No. 169 of the International Labor Organization (Act 21, 1991) Articles 13 to 19, and not the American Convention as posed on Article 99.
The administrative procedure to clarify the legal validity of property deeds has a duration of more than 10 years. Establishing this procedure as an administrative measure before the restructuring, reorganization, and expansion of the reservations of colonial origin constitutes a measure intended to deny, ignore, and not favor or guarantee the acknowledgment of our historical rights to territory, as we explained at the beginning of this document. As an attachment copies of Administrative Guideline 05, 2005, regarding the Prohibition against Authorizing and Registering Transfer Actions in Collective Territories and Indigenous Reservations (Instrucción
Administrativa 05 del 2005, sobre la Prohibición de Autorizar e Inscribir Actos de Enajenación en Territorios Colectivos y Resguardo Indígenas), are provided. This guideline ratifies Administrative Guideline 01-29 of June 8th, 2001 (Instrucción Administrativa 01-29 del 8 de junio de 2001), which recorded the prohibition against authorizing and registering title deeds entailing actions of landlord and owner over real estate belonging to the indigenous communities.
The excerpt “…but without affecting those who possess equal right”, is legally anti-technical and it ignores, violates, and disrespects the territorial rights of the Indigenous Peoples. Because of law of origin, greater right or our own right, our original rights to property through historical occupation and property entitlement of our territories as indigenous reservations, are not comparable to or hierarchically dependent upon title deeds with false ownership history, and with support of or as a result of political violence, genocide, forced displacement and expropriation through actions in our territories by non-indigenous people.
Finally, the paragraph or Article 99 constitutes a flag salutation, a rhetorical, non-enforceable guarantee. Without political will, resources availability, or the decisiveness to guarantee the exercise of the territorial rights of the indigenous peoples, it is impossible to move forward the dialogue between the Indigenous Peoples and the Colombian State.
The right recorded on Article 100 is legal and fully recognized in the current valid legislation.
Facing Article 101, the Indigenous Peoples, the Traditional Authorities and Town Councils, the Reservations and Territories are public institutions of special character according to Article 1 of the National Resolution of July 29th, 1923 (Artículo 1º de la Resolución Nacional del 29 de julio de 1923), and according to Decree 1088, 1993 (Decreto 1088 de 1993). Similarly, these institutions exercise administrative, legislative, and jurisdictional public functions, in accordance with Articles 7, 246, 286, 287, 329, and 330 of the Constitution.
To that extent, the Constitutional Court has established that neither the National Government (…), nor other authority in general, is authorized by the Constitution to intervene in the governmental sphere of the indigenous jurisdiction (C-027/93; C-139/96).
Therefore, proposing that the Colombian Institute for Rural Development (INCODER) guarantees the equal distribution of lands is a pretension which goes against the jurisprudence of the Constitutional Court and violates the administrative autonomy of the indigenous authorities to manage their territories.
What is set out on Article 102 is unconstitutional because the expansion, reorganizing, and restructuring of the indigenous reservations is based on the acknowledgement and protection of the identity and survival of the ethnic and cultural diversity of the 92 indigenous peoples of Colombia, in accordance with Article 7 of the Constitution.
However, if this is in reference to facilitate and guarantee the fulfillment of the social and ecological function of land ownership in Colombia, the legal rulings (related to legal rights and procedures) must regulate aspects related to latifundio (large landed estates), social inequality in the imposition of taxes, urban and rural ownership, and wages, as well as taxes on environmental pollution, etc.
In reference to Article 103, it was the Colombian Institute for Agricultural Reform (INCORA) the organization responsible for establishing the nature of “indigenous reservations” of the territories historically occupied by indigenous populations. This innocuous disposition denies, ignores, and violates the territorial rights of the indigenous peoples, negatively affected by the legal determination of the nature of indigenous reservations of their territories. An example of this is the reservations of indigenous territories in the Putumayo region.
In reference to Article 104, we wonder: is it possible to ask the Nuka Maku People to apply and comply with this disposition? This ruling is unconstitutional, ethnocentric, and inconvenient. It directly and clearly violates what is set out on Articles 7, 13, 63, 246, 329 section 2, paragraph 330 and transitory 56 of the Constitution. We, the Indigenous Peoples, have the right to cultural self-determination, autonomy, the freedom to choose a development model appropriate for our cultures, and expectations of cultural change freely adopted.
In reference to what is set out on Article 105, this is an innocuous disposition because the Constitution includes and develops this right more in depth on Articles 286 and 329 respectively.
Article 106 is unconstitutional and inconvenient because it confuses the territorial rights to access to collective property as indigenous reservations of our peoples with the processes and decisions of zoning related to the management of land and natural resources, typical of the zoning authorities. The creation, reorganizing, restructuring, and expansion of the indigenous reservations correspond to the fundamental rights to identity, territory, autonomy, participation, implementation of development models culturally appropriate and constitutionally recognized for the benefit of our peoples.
Finally, Article 107 orders the Colombian Institute for Rural Development to refrain from acquiring lands “Intended” to be claimed through “Violence”. This disposition ignores the history of how the Indigenous Peoples have been exterminated through violence. In 514 years 90% of Colombia’s indigenous population was exterminated, and still in this decade hundreds of indigenous sisters and brothers have been murdered, displaced, and stigmatized. And now they come to talk about Violence? What violence? That of just demands agreed upon through agreements with the National Government? Or perhaps in Colombia demanding respect for one’s rights is being violent?
We have no doubts that this disposition is an offence against the firm, irreversible decision of Colombia’s Indigenous Peoples to recover or set Mother Earth free, decision that our brothers, the indigenous peoples of the Cauca region, have already started to work on. Facing a hostile situation such as the one set out on this article, it is necessary to state the following:
All the Indigenous Peoples of the country, with no exceptions, within their traditional vision of the universe, have been given some commands, from the law of origin or greater right, related to maintaining the order, harmony, and balance of the universe. In order to do this, the ancestral distribution of the territory is vital. In other words, all the indigenous people have the unmistakable goal of freeing our territories to guarantee the survival of our peoples and the universe in general. In this perspective, the discussed disposition punishes not only the recovery of lands in the Cauca region, but it also vilifies any possibility of action promoted by the indigenous people for the expansion and reorganizing of the indigenous reservations.
This disposition will not promote dialogue and agreement; instead, of course, it will generate violence. If the National Government does not carry out the agreements they reached with the indigenous people because of acts of territorial violence and expropriation as a consequence of the exploitation of renewable and non-renewable natural resources, and if there is not budget availability so that the National Territory Commission can give priority to acquiring lands for the indigenous people, the uprising and liberation of Mother Earth will intensify more and more throughout the country.
In short, this is an unconstitutional ruling which violates and ignores the historical right to ownership of the Indigenous Peoples, and its implementation can legitimate the excessive use of force by the State against the Indigenous Peoples.
Finally, in 2004, the United Nations’ Special Rapporteur on indigenous peoples, within the recommendations of the Colombian Government, stipulated: “Any draft legislation, draft constitutional reform or other initiative which introduces into the law provisions that violate indigenous peoples’ rights or the principle of diversity should be withdrawn.”
And last week, the Office in Colombia of the United Nations High Commissioner for Human Rights, in their Report on the Situation of Human Rights in Colombia, stated that “the ethnic rights of the Afro-Colombian and indigenous populations and the biodiversity of Chocó, Nariño and Putumayo Regions have been seriously affected by the private exploitation of collective lands. Some communities have stated that no previous consultation took place as required before the start of productive exploitation on their territories”.
Published by ONIC March 2007
* An honorary name given by the Vatican to the Spanish Kings