The Land Law Bill: forward and back
ToolBox Virtual Weekly ("Semanario Virtual Caja de Harramientas")
Edition No. 00286—Week of December 23 to 30, 2011
(Translated by Steve Cagan, a CSN volunteer translator)
The Land Law Bill: forward and back
By Héctor Mondragón, Researcher and member of the Continental Social Alliance ("Alianza Social Continental")
The proposal for a land and rural development law of the national government has undergone important modifications. Some of them, if they are approved and put into practice with political will and an adequate budget, would allow agrarian reform measures to be taken, but others on the contrary would openly allow the driving people off their land to be legalized, while others are harmful for the indigenous peoples, and especially those whose territories are indigenous reservations completely or in part and for itinerant, nomadic and semi-nomadic horticulturists.
The proposal insists on validating fabricated titles and in extraordinary processes to formalize property titles. This might lend itself to different routes towards legalizing false ownership and moving people off their land. It also insists on the concept of "surface use rights," which could have the effect that for decades the displaced might cede their properties, and that these might be bought and sold in the financial market. It further insists on redrawing the boundaries of all the forest reservations of the country.
All these issues could be seen as contributing to preparing land that is apt for cultivation so it will be used in agriculture, more than 17 million hectares that are being squandered, especially by the large landowners, or as deepening the existing model, which aims to have the planted areas, and especially commercial agriculture and cattle-raising, increase at the cost of the lands of the peasants, Indigenous and Afro-Colombian people, and the destruction of the forests.
One central issue is that treated by Number 2 of Article 152 of the proposed law, which will "accredit private ownership of rural land...any judicial decision negotiated between private persons and elevated to a public deed before this law goes into effect, and supported by a transfer of ownership twenty (20) years or more old." This means that all the fabricated titles that are supposedly from before 1992 will serve as "proof" of ownership. Thousands of displaced people and of people forced off their land will be treated as if they were invaders of land whose ownership had been fabricated by the supposed owners.
The peasant and indigenous struggle has many times confronted deeds fabricated by venal notaries [note: Notaries in Latin America are legal professionals, not in the same position as our "notary publics."—SC], which served to force off their lands peasants who were the owners, and people from colonial indigenous reservations and from unrecognized indigenous territories. Since then, the struggle has been oriented to gaining recognition only of titles given by the State, and the disqualifying of documents fabricated in the offices of notaries or in any place else. This point summarizes a century of mobilization, legislation and jurisprudence about land ownership.
Article 44 of Law 110 of 1912 of the Fiscal Code established that any plot for which no ownership is demonstrated through an original title from the State will be presumed to be vacant land under the dominion of the Nation. The Supreme Court dictated the same in two memorable findings, one in 1926 and the other in 1934. So, if the land is presumed to be vacant, no peasant owner, and much less an indigenous community that has been inhabiting their land since time immemorial, can be thrown from the land by a presumed owner who only shows documents fabricated in a notary's office.
Law 200 of 1936, however, fixed the date of February 19, 1917 as the last date for the due registration of deeds that did not come from the State as a proof of ownership.
Law 1152 of 2007, while it was in force, made a totally regressive change in terms of establishing ownership by derogating Law 200 of 1936, and at the same time it declared valid fabricated documents registered up to 1997. This went along with the disposition in Law 791 of 2002, which reduced the statute of limitations and was completed with the legalization of false conveyances by Law 1182 of 2008.
Now, Article 152 of the last known version of the proposed law eliminates the important concept of "deeds coming from the State," and converts it all into administrative acts or juridical deals, making state decisions about vacant lands comparable to deals between private parties about land which is not theirs.
It fixes the date of 1992 as the limit for the validity of fabricated documents, but as a result of some editorial juggling, does not even demand that the documents should have been registered by that year, because the transfers do not have to be "attested" (in the registry), but rather the deeds of sale "sustain" the documents, or rather they sustain themselves, and the registry may be interpreted as being after the transfers of ownership; with this, the opportunities for fraud are multiplied. Not even the Rural Statutes dared to go that far, not even Law 1182 of 2008 reached that far because, even though it demands a much shorter lapse of time, 5 years and not 20 years, it demands a judicial process in which in the end a displaced person forced off their land could defend their rights, if indeed that could get to the municipality. In the current edition of the official proposal, deals between private parties automatically generate recognition of ownership after 20 years, without its being clear even how to prove when they were made. Thus, this proposed article follows completely the line of formalizing ill-gotten properties.
If this article is approved, in addition to being fatal for the displaced who were forced off their land, it could affect indigenous reservations and Afro-Colombian collective territories, with the appearance of multiple "deals between private parties elevated to being public documents" within their territories. There might appear fabricated documents, which right now the law does not recognize, created before—or supposedly before—the collective territories or reservations were constituted by INCORA [Spanish initials of the Colombian Institute for Agrarian Reform—SC] or INCODER [Spanish initials of the Colombian Institute for Rural Development—SC]. This would be laying a terrible trap, so big that the rest of the new law would not be enough to put the brakes on a wave of legalizations of kicking people off their lands via notaries.
In the initial version of the government's proposal the failed "subsidized land market," under which the country saw the amount of land in the hand of big owners increase while an extremely small number of peasants were receiving subsidies to buy land (without having access to quality land), was held on to as the only program for peasants to gain access to land. Now a path is beginning to be opened for proposals under which the loss of ownership might be applied not only to the parcels that are not planted, but also to those that are not worked according to the quality of the soil, and beyond that for a procedure for expropriation through an administrative path with indemnification, when the owners do not agree to negotiate for a parcel that is required for agrarian reform.
The norms that will allow land to be acquired for agrarian reform, both through direct negotiation and through expropriation through an administrative path might allow taking advantage of land that is not being well used. The expropriation that Colombian law authorizes now for various purposes was already in effect from Decree 1185 of 1984, which made it possible for the Nasa Kiwe corporation to acquire land, without expropriating it from anyone, but giving the corporation an instrument that would assure that they could buy land they would need at adequate prices.
The first versions of the government's proposal wanted to limit peasant reserves to the zones where vacant lots predominate and to zones of colonization, as Laws 508 of 1999 and 1152 of 2007, since declared unconstitutional, tried to do. A later version reached the point of proposing to eliminate peasant reserves, but later room was given to the ides of constituting peasant reserves as well within the "agricultural frontier."
The possibility of constituting peasant reserves in geographical areas whose agro-ecological and socio-economic characteristics would require regulation, limitation, acquisition, redistribution and organizing of the ownership or holding of rural parcels and land, is already contemplated in the norms in effect, but it is very important that the new law include in its text Decree 1777 of 1997. Peasant reserves are not simple instruments for marginal zones or areas of serious conflicts; they are an alternative for peasant development.
Ethnic and cultural diversity
A topic that comes and goes is that of respect for ethnic and cultural diversity. The government's first version was openly anti-indigenous, copying the norms that were the most harmful for the indigenous peoples from that law as well as those that relate to the Pacific region and eliminating the special protection in force for the territories of nomadic, semi-nomadic or itinerant agricultural peoples. Later, the preparatory debates on prior consultation served to move successive versions towards recognizing indigenous and Afro-Colombian rights, and to understanding furthermore that the priorities of development cannot be imposed on ethnic groups and they they have the right to determine their own [priorities] and to establish their own life plans in their territories.
But the government is moving backwards again, and in a serious way, in this terrain. There are still those who do not understand the autonomy of indigenous territories, the powers of the indigenous peoples' own authorities and indigenous jurisdiction.
There are those who still believe that "all the norms in effect in the rest of Colombia are in effect in the reservations," even when since the Constitution of 1991 their own norms and procedures rule in the indigenous territories (Article 246), and the indigenous authorities have autonomous power, for example, "to watch over the preservation of natural resources." Indigenous norms are applied in harmony with the Constitution and with national norms, but they are different, because the Constitution opted to defend and protect diversity.
The new version does not recognize indigenous jurisdiction and the environmental powers of the indigenous authorities, and instead of determining that the usages, customs , norms and culture will be applied in harmony with national norms, as was the case in the version of September 29, it reintroduces the criterion by which the use and exploitation of the reservations and collective territories "will have to move forward in conformity with the norms of use and management established by the National Land Council."
Now there are those who want to eliminate the norm of Law 160, which declares that the indigenous reserves are lands belonging to ethnic groups and therefore inalienable, as well as the one that protects the territories of the nomadic and itinerant horticultural indigenous peoples.
Formerly, indigenous reserves were constituted that were formally the property of the nation, and that starting in 1961 were constituted by ICORA. In fact, INCORA changed the boundaries of the reserves to suit their taste and was slowly reducing the original areas.
The indigenous movement demanded that the indigenous reserves be converted into reservations, as property of the communities that could not be cut back to please the government in office or to respond to the pressures on them. Starting with Law 30 of 1988 INCORA only constituted reservations, but the indigenous reserves already constituted remained in force, although subject to modifications of their area. The reserves were converted into reservations with a smaller area, and the remainder was little by little given in title to non-indigenous persons.
The Constitution of 1991 determined that the communal lands of ethnic groups are inalienable and Law 160 of 1994 defined that therefore the indigenous reserves are inalienable, and it is precisely this that the proposed law in its current version is intended to erase. Eliminating this norm, currently in effect, in accordance with Paragraph 5 of Article 85 of Law 160 of 1994, would have very concrete and precise effects against specific indigenous peoples, like the Kofán of Putumayo or the Sikuani of Meta.
The Kofán indigenous reserves, constituted in 1973 and 1976 in Valle de Guamuez, Puerto Asís and San Miguel, come to 28,012 hectares, of which only 5,671 were recognized as a reservation on May 13, 1998. The reserves could not be dissolved as the previous state practice was, given the norms of 1991 and 1994, which they now want to eliminate. For the remaining 22,341 hectares INCODER must carry out the commitment of INCORA to bring up to date the socio-economic studies on the non-constituted area to begin the long-term cleaning-up process. Eliminating the legal disposition currently in force would open the possibility of not carrying out this commitment and of the Kofán territory being amputated forever.
Itinerant horticulturists and nomadic hunter-gatherers
The new version suppresses the article of September 1st, which contained the norms in effect from Paragraphs 5 and 6 of Article 85 of Law 160 of 1994:
"The territories traditionally utilized by nomadic, semi-nomadic and itinerant horticultural indigenous peoples for hunting, gathering or horticulture that are found in zones of the forest reserve when this law goes into effect can only be destined to the constitution of indigenous reservations." About the itinerant horticulturists and hunter-gatherers, it is especially important to preserve the article in effect because since, according to the proposed law, the forest reserves are going to be dismantled, various ways of not recognizing their territory will appear.
In Article 200 there is a norm that would prohibit adjudicating these lands except "where ethnic communities are traditionally settled, according to certification published by the Ministry of the Interior." That is to say, on one hand it talks of "settlements," that is to say sedentary communities, which excludes nomadic or itinerant communities, and on the other hand it does not make a reference to those territories' being exclusively dedicated to constitute reservations.
It is true that the new version introduces Article 221 on isolated peoples, in which it says that "they will have a right to a territory into which the entry of outsiders will not be permitted...these territories will adopt the figure of Special Territorial Reserves of the State—Indigenous Reservations," which is an ambiguous formula because if a reserve is constituted, it can be undone, and the correct thing would be specific recognition of the ownership of that territory as a RESERVATION for all the territory used by them or that constitutes their habitat.
While it is true that some of these indigenous persons might be in reservations already constituted for other peoples—one proven case is that of the Yuri or Caraballos of the river Puré (in Amazonas), from whom a reservation has to be constituted. If they are voluntarily isolated the State, on recognizing them as collective owners, recognizes their right to remain isolated. It is also serious, but it understands a "reserve" without ownership if the article that considers the reserves inalienable is eliminated. We must demand that a reservation always be recognized in all the territory used by them or that constitutes their habitat.
The article about colonial reservations should leave clear that it is presumed that all those who have deeds that came from the Spanish crown, duly registered, remain in force and that restructurization is to be applied to those reservations that are covered by Article 12 of Law 89 of 1890: "In the case that a party has lost his titles because of a fortuitous case or by deceitful and speculative machinations by some persons, he will prove his rights to the reservation by the fact of judicial ownership or of not being disputed for a term of thirty years, in the case that he does not have this procedure, and according to the dispositions of the Civil Code. This latter requisite of peaceful ownership is given credit upon the testimony of five respected witnesses, examined upon being cited by the Prosecutor of the circuit, who will express what they know or may have heard said to their predecessors about the ownership and boundaries of the reservation."
One very difficult point is that which refers to the general redrawing of the boundaries of the forest reserves that the government is proposing. What will be the outcome of this in the midst of the mining steamroller and international speculation on land by finance capital? Is this not repeating a sad history, to senselessly eliminate the forest reserves so that the big properties can expand that the colonial farmer keeps advancing against the forest because he has no alternative in the agrarian frontier, even while 17 million hectares of agricultural soil is unused?
The Ministry of Agriculture has echoed the denunciations made by our society about the mining steamroller and its destructive effects on ecosystems and agrarian land? But, like with the FTA, the practical effects are not seen because the expansion of mining and the FTAs are central policies of the current government.
The proposed law proposed a Land Council which would regulate the use of the soil. But there are two problems: on the one hand it does not propose the participation of the rural communities and peasant, indigenous and Afro-Colombian organizations in this Council, and on the other hand if it is decided that a territory is for mining, the current profitability of mining will mean that it will be exploited immediately, but if it is decided that the land is for agriculture or animal raising, the impact of the FTAs will be a gigantic barrier to agricultural profitability, and only those programs that support production and reduce the price or the rental cost of the land will really be capable of augmenting the agricultural use of the zone.
The entering into force of the FTAs will of course be a serious limitation for the success of the agricultural sector and will generate greater pressure for the exploitation of the natural resources of every one of the territories.
The successive decisions of the Constitutional Court, which declared the Rural Statute, the Forestry Law and the Law of Commercial Reforestation unconstitutional because they had not been subject to a prior consultation with the indigenous peoples and the Afro-Colombian communities, have imposed consultation about the proposed law on land and rural development before its presentation to the Congress of the Republic.
As a result, an interesting process was unleashed. Once the government announced the bases of its proposal and had an agreement on the procedure and events of the consultation, various versions of their proposal have been produced, which began to change as a reflection of the criticisms by indigenous leaders, and in the last phase have changed in order to try to respond both to the criticisms of academics and researchers and to those expressed openly by the peasantry. Nevertheless, the attempt to legalize driving people off their land remains present.
The peasant organizations of the Mesa de Unidad Agraria (Agrarian Unity Roundtable—SC] developed an alternative proposal that was very different from the initial one of the government, and they asked that it also be included in the indigenous and Afro-Colombian consultations. This proposal has also had some changes since it was first distributed; the most important was the inclusion of a specific chapter about norms having to do with gender that will guarantee the rights of rural women.
All this is something different from what we are accustomed to, when in the majority of the debates about proposed laws, the government and the members of congress limit themselves to applying their dominion in parliamentary votes, and the quantity of criticisms and proposals of thousand of persons and of highly representative organizations are gone with the wind or remain archived on the shelves indefinitely, while the pupitrazo is imposed at the moment to approve the new laws. [The pupitrazo is a way of voting in the Colombian Congress in which those voting "yea" or "nay" pound on their desks; the vote that makes the most noise wins. It's something like a voice vote in our Congress in the sense that implies no real controversy, or at least no real chance for the minority to prevail—SC]. That's how it was in the debates on the Rural Statute, in which the government furthermore at the last moment pulled out of the shadows norms that went against the indigenous peoples and were approved in the final quarter-hour of the last vote.
Prior consultation has turned out to be not only the exercise of a right of indigenous peoples and Afro-Colombians, but also of the social sectors that until now have been marginalized from decision-making, like peasants and academics. At the same time, the exercise of the consultation shows how they insist on moving backwards on the norms that protect the indigenous peoples, failing to recognize their territories that have been declared colonial reserves or reservations, and once again bypassing the territorial rights of the itinerant horticulturists and of the nomadic hunter-gatherers.
In the midst of the coming and going of the versions of the proposed law, in which articles that are decisive for the fortunes of 11 million persons who live in the the countryside, of the land and the territories, of the food for all Colombians, come and go.