- Current situation and prospective challenges - Pontificia Universidad Javeriana – Center for International Forestry Reserach CIFOR   COLLECTIVE LAND TENURE IN COLOMBIA - Current situation and prospective challenges - Marco A. Velásquez-Ruiz, PhD “Securing Tenure Rights for Forest-Dependent Communities: A Global Comparative Study of Design and Implementation of Tenure Reform”   Project “Scoping Report on Actors, Interests, and Tenure Reforms in Colombia” World Bank Land and Poverty Conference Washington DC, 22 March 2017

Structure of the presentation Research question and methodology Context and brief historical account of collective land tenure in Colombia Key elements on collective land tenure in Colombia The right to territory Global influences Social and judicial mobilization Current state of collective land tenure in Colombia Prospective challenges in the context of the country´s transitional justice and peacebuilding Project

Research question and methodology What is the current situation of the legal recognition and protection to collective land tenure in Colombia? Which are the prospective challenges that such institution faces in the context of the country’s development model / transitional justice and peacebuilding project ? Methodology: disaggregated-contextualized analysis of property rights regimes (Edella Schlager and Elinor Ostrom, Property-Rights Regimes and Natural Resources: A Conceptual Analysis, 1992) Access Withdrawal Management Exclusion Alienation

Research question and methodology Access: Capacity to enter a defined physical property. Withdrawal: The right to obtain products of a resource. Management: The right to regulate internal use patterns and transform the resource by making improvements. Exclusion: The right to determine who will have an Access right –and who can not- and how that right may be transfered Alienation: The right to sell, transfer or lease one’s rightto another entity.

Latin American country Colonial legacy (Spain) 2. Context and brief historical account of collective land tenure in Colombia COLOMBIA: Latin American country Colonial legacy (Spain) Recurrent violence (both structural and direct) - 60-year armed conflict Political, social and economic instability Multicultural background (white, indigenous peoples, afro-Colombian communities) Great amount of unexployed lands and natural Resources Important transitions taking place after peace agreement with the guerrilla group FARC

BRIEF HISTORICAL ACCOUNT: 2. Context and brief historical account of collective land tenure in Colombia BRIEF HISTORICAL ACCOUNT: Resguardo indígena (indigenous reservation): central figure of collective land tenure in Colombia Colonial institution created to preserve indigenous peoples and access labor After Independence from Spain, the Colombian government tried to dismantel resguardos in order to access lands and natural Resources Law 89/1890 - Colombian statute on indigenous reservations, used in different –and opposite- ways throughout history 1991 Constitution: breaking point as collective land tenure is formally recognized in Colombia, including Afro-Colombian territories Pot-constituional Legal developments take place: Peasant reservation zones, regulation on collective land tenure Transitional Justice and Peacebuilding Project: new opportunities and challenges

3. Key elements on collective land tenure in Colombia The right to territory Integral view of CLT. Representative dyamic of the Colombian national-political, legal, social- project Reparatory measure in favor of ethnic groups: Development of particular legal mechanisms. Crystalization of the constitutional principle of “social function of property” Special protection Particular restrictions to private property Global influences CLT as a legal system is highly influenced by global dynamics International legal instruments (C169 + UN Decl) Global processes such as environmental protection Social and judicial mobilization Transnational and local social movements representing ethnic groups and peasants Fundamental task of Judicial activism on the Development of CLT

4. Current state of collective land tenure in Colombia Legal recognition and protection to Collective Land Tenure Indigenous peoples (resguardo) Constitutional recognition: art. 63 Law 21/1991: adoption of ILO´s Covenant 169 Decree 1088/1993 (Political representation of reservations through associations) Decree 1809/1993: resguardos considered as municipalities in regards of public budget transfers. Law 160/1994: rural statute, chapter XIV on resguardos Decree 2164/1995: Regulation of Law 160/94 – constitution, expansion, restructuring of resguardos Decree 1320/1998: prior consultation for resources-exploitation (declared unconstitutional by the Constitutional Court) Law 715/2001: public resources allocation to resguardos Transitional Justice: Law 1448 and Decree 4633/11 (collective land restitution procedure)

4. Current state of collective land tenure in Colombia Legal recognition and protection to Collective Land Tenure Afro-Colombian communities (Consejo comunitario) Constitutional recognition: Art. Trans. 55 Law 21/1991: adoption of ILO´s Covenant 169 Decree 1232/1992: committee to develop Constitution´s A.T. 55 Law 70/1993: collective land tenure to Afro-Colombian communities through consejos comunitarios. Decree 1745/1995: regulation of Law 70 on collective titling procedure. Decree 1320/1998: prior consultation for resources-exploitation (declared unconstitutional by the Constitutional Court) Transitional Justice: Law 1448 and Decree 4635/11 (collective land restitution procedure)

Resguardos (Indigenous peoples) 36 million Hct. (31,5%) 4. Current state of collective land tenure in Colombia Ethnic groups in Colombia (collective land tenure) Resguardos (Indigenous peoples) 36 million Hct. (31,5%) Consejos Comunitarios (Afro-Colombian communities) 4.7 million Hct. (4.13%)

4. Current state of collective land tenure in Colombia Peasant Reservation Zones (special protection to certain relations peasantry-lands) Zonas de Reserva Campesina Law 160/1994 (Peasant reservation zones) 831.111 Hct. (0.72%)

4. Current state of collective land tenure in Colombia Forestry Reservations (law 2 1959) and zones of environmental protection

4. Current state of collective land tenure in Colombia Mining titles and oil production

5. Prospective challenges In the context of the tension between different regulatory areas (discussion on the model of development) National Development Plan Regulation on certain economic activities (mining, oil, agribusiness, infrastructure) Protection offered to foreign investment – investor-state arbitration ZIDRES and strategic mining areas regulation Institutional challenges New institution: National Lands Agency Land Restitution Unit? (AMEI) Prior consultation? In the context of the Colombian Transitional Justice and Peacebuilding Project Implementation of collective land restitution? One big decision and….. Implementation of Rural Reform included in the Peace Agreements with FARC