Collective land tenure in Colombia Background and current status

The current legal regime protecting collective land tenure in Colombia is based on the inclusion of the principle of the social rule of law in the Colombian Constitution of 1991. It sets forth that the State and its authorities should pursue the satisfaction of social needs and the protection of human rights, and then identifies ethnic communities as collective subjects of special protection. This protection is granted through the link with territorial mechanisms (specifically, the legal entity or institution created) that include indigenous resguardos (reserves) and the territories of Afro-Colombian communities. The communal territories of ethnic groups are inalienable, imprescriptible and not subject to seizure. The exploitation of natural resources in these territories must be carried out with the agreement of the communities involved and with respect for their cultural, social and economic integrity.


Introduction
The current legal regime protecting collective land tenure in Colombia is based on the inclusion of the principle of the social rule of law in the Colombian Constitution of 1991.It sets forth that the State and its authorities should pursue the satisfaction of social needs and the protection of human rights, and then identifies ethnic communities as collective subjects of special protection.This protection is granted through the link with territorial mechanisms (specifically, the legal entity or institution created) that include indigenous resguardos (reserves) and the territories of Afro-Colombian communities.The communal territories of ethnic groups are inalienable, imprescriptible and not subject to seizure.The exploitation of natural resources in these territories must be carried out with the agreement of the communities involved and with respect for their cultural, social and economic integrity.
Overall, the existing legal regime of collective land tenure protection in Colombia includes appropriate regulatory instruments to enforce compliance.However, in spite of these instruments, the legal dimension needs to be weighed against the existence of other variables that prevent the effective implementation of law.These include, for example, the interplay between the regulations that govern ethnic communities' collective property rights; the regulations aimed at defining a territorial planning scheme; the legislation that defines how and under what conditions the use of natural resources can be carried out for economic purposes; the regulations for environmental protection; and recently the introduction of legal measures for transitional justice and peacebuilding.This interplay entails challenges that go beyond the interpretation of regulations to the power struggles among ethnic groups, regional and State authorities and groups outside the law, to mention a few of a wide range of stakeholders.Taking into account Colombia's current situation, where a post-conflict scenario is beginning to take shape, one of the main concerns is how to ensure the protection of collective land tenure within a transitional justice context characterized by a proliferation of norms and two contrary perspectives on the land and resources that have been "unavailable," due to the conflict, until now: as resources falling under the autonomy rights of indigenous people's territory, or as economic assets that are finally accessible due to the end of the war.
Given that the legitimacy of collective land tenure is the result of a variety of processes, it is worth exploring not only the content and scope of the current legal regime for protecting land tenure but also the way in which it has been consolidated as part of the constitutional order.

History of the legal protection of collective land tenure in Colombia
The first appearance of the concept of collective land tenure in Colombia can be found in the indigenous resguardo mechanism introduced during the colonial period.This notion was used by the Spanish administration as way to segregate indigenous people.Indigenous resguardos served as a control mechanism: they ensured access to cheap labor while reducing the potential for an uprising.Resguardos also played an important economic role 2 , since the village economy depended on them.Nevertheless, indigenous families only had the right to land use and exploitation within their lots. 3ter the Valladolid debate over the treatment of colonized peoples in 1551, the "defenders of Indians"4 , and the Laws of the Indies5 were introduced, under which certain rights of indigenous people started to be recognized.Nevertheless, as the economic structure began to change, the status of the indigenous resguardo declined.With the emergence of tobacco and cotton companies and with the construction of roads, the colonies became the "factories" of the colonial power.Thus, to consolidate the economic hegemony of upper classes in the Americas, the laws that protected indigenous people were largely disregarded across the continent.At the same time, slave labor began to be massively adopted.
In the case of the Afro-descendant population6 , the first record of their territorial rights can be found in the creation of independent communities or palenques in the Colombian Caribbean during the 17 th century.Since palenques were formed by escaped slaves, these areas were never recognized by the Spanish Crown as legitimate Afro-descendants' territories.Still, it was in palenques where Afro-descendants formed communities, and political, social, economic and cultural expressions took shape.
Table 1 presents a brief summary of the concept of collective land tenure from the process of decolonization of the Americas to the 20 th century.

Socio-legal analysis of the legal protection of collective land tenure in Colombia
The recognition of collective land tenure became a mechanism to restore the rights of indigenous peoples and Afro-descendants.These groups, exposed throughout the centuries to diverse forms of violence that sought the elimination of their cultural identities through systematic assimilation policies, became the object of legal protection

Law Content
Law 70 of 1993 Recognizes the collective land tenure rights of the Afro-Colombian communities that had occupied vacant lands in the coastal areas of the rivers of the Pacific basin.

Decree 2664 of 1994
Sets forth the procedures for the allocation and recovery of "vacant" lands, including safeguard provisions in favor of ethnic groups.

Decree 2164 of 1994
Includes all issues concerning the granting and titling of lands for indigenous communities.

Decree 1397 of 1996
Adopts provisions with regard to the need to perform impact studies in the face of the request and granting of environmental permits for projects implemented in indigenous territories.

Decree 1320 of 1998
Regulates prior consultation procedures regarding the national government and indigenous and Afro-Colombian communities for the exploitation of natural resources within their territory.

Decree 1953 of 2014
Addresses the lack of regulations in the field of indigenous territorial planning.

Decree 2333 of 2014
Includes a special administrative procedure to determine traditional and/or ancestral tenure.

Law 1776 of 2016
Establishes the interest areas for rural, economic, and social development [zonas de interés de desarrollo rural, económico y social, ZIDRES].

Law 2 of 1959
Sets out regulations on forest economy and natural resource conservation.Different areas of the country are selected as forest reserve areas.In addition, it establishes that the areas recognized as national natural parks are public goods and that vacant lands allocation is forbidden in these areas.

CONPES 2834 of 1996
Sets forth that, given that most of the forests in the country are located within indigenous resguardos or in lands collectively allocated to Afro-descendant communities, the aspects related to land tenure and forest titling should be revised, in order to propose management and administration schemes in line with the conditions of each region and type of property.

Art. 80 of Law 160 of 1994 Decree 1777 of 1996 Agreement 024 of 1996
Create campesino reserve zones [zonas de reserva campesina, ZRC] a to stabilize and consolidate the Colombian peasant economy; the ZRC creates the possibility of allocating unused lands acquired by the government through purchases from private stakeholders or through expropriation.

Arts. 82 and 83 of Law 160 of 1994
Establish the creation of entrepreneurial development zones [zonas de desarrollo empresarial, ZDE] to promote and protect private capital investment in the Colombian rural sector.

Court ruling SU-039 of 1997
Safeguards the rights of an ethnic community to life, territory, self-determination, and the defense of ethnic culture.This court ruling is a milestone in terms of the protection of the prior consultation right.
a The country now has six campesino reserve zones that were created between 1997 and 2000, covering 452,000 hectares; others are in process.

Table 4. Regulatory frameworks developed for community reparations in the context of the peace talks between the
Colombian government and FARC-EP in Havana a .

Law Content Law 1448 of 2011
The restitution of lands from which people were evicted is seen as a consequence of the armed internal conflict, the content and scope of which derive from the regulations on forced displacement (Law 387 of 1997 and regulatory decrees) and from the guidelines established by the Constitutional Court concerning the rights of victims of forced displacement (Court ruling T-025 of 2004).

Decree-Law 4633 of 2011
Establishes measures for the assistance, attention, full remediation, and restitution of territorial rights of victims belonging to indigenous communities and peoples.

Decree-Law 4625 of 2011
Establishes measures for the assistance, attention, full remediation, and restitution of territorial rights of victims belonging to Afro-Colombian communities and peoples.
a In the final agreement to end the armed conflict and build a stable and lasting peace signed in Havana, several factors related to collective land tenure are included that seek to remediate and redistribute territory.This is especially evident in section 1, Comprehensive Rural Reform, related to a structural transformation to enhance the socio-economic opportunities of Colombia's ethnic and campesino communities.Similarly, the Chapter on Ethnic Perspectives (section 6.2 of the agreement) identifies ethnic communities as population groups that have been victims of armed conflicts, which should thus have the maximum guarantees for the full exercise of their human and collective rights conceived from their own worldview.

Case study: San José del Guaviare -Understanding the tensions between the process of land appropriation and territorial planning
The department of San José del Guaviare, and more specifically, the municipality of San José, provides an opportunity to explore the complex nature of the legal regime of collective land tenure in Colombia.In addition, the implementation of the Havana peace agreement and post-conflict construction pose new challenges in this context, where a variety of narratives -on territoriality and on victimization -intersect.
In San José del Guaviare, there are tensions over access to and use of land and other natural resources.Recently, Jiw peoples have started to generate claims for the expansion of their resguardos.In particular, the claim over La María resguardo has brought to light the historical nature of the conflict.At the root of the current conflict is the superposition of the territorial ambitions of the different groups (campesinos, indigenous and Afro-Colombian peoples) and the national project of territorial planning, which proposes opening these lands for other uses.This is reflected in the way in which the State has tried to implement regional planning in the municipality through national laws, while at the same time other processes of territorial formation were progressing, out of step with this planning process and, often, contrary to existing rules.
Finally, this scenario needs to consider the emergence of coca cultivation in the territory and, with that, the influx of armed groups.The coca boom weakened the productive structures for activities such as agriculture or ranching.Furthermore, the armed violence led to the displacement of the civilian population.
The coca economy led to the creation of a "rootless" population in the municipality.The Jiw settled in the Guayabero River to cultivate coca and left La María resguardo.
When they returned, this area had already been occupied by campesino settlers.Initially, the Jiw went to Barracón, where they encountered difficulties meeting their subsistence needs, as did the established population.As a consequence, they again considered returning to La María.After the entry into force of the 2011 Law of Victims, they made a legal claim on the territory.The Jiw have appealed to their rights for collective lands and have asked for an expansion of their territory.
The Jiw (who were historically nomadic) are currently "locked up" inside their resguardos, where the area and natural resources available are insufficient to ensure their survival.In this same area, there is a clash between indigenous and campesino territoriality.Territoriality implies an exercise of appropriation involving the way in which natural resources are used.In this case study, campesinos have more technologically sophisticated hunting and fishing practices than the traditional techniques used by indigenous people.Consequently, the Jiw have limited food sources.They also face the effects of tourist projects on the contamination of their water sources.9 Recently, the Department for Ethnic Affairs (DAE) of the Land Restoration Unit (URT) has won some battles for indigenous and Afro-descendant groups.In these cases, rights prevailed over the development of mining and energy projects.For this reason, when URT's visit to La María resguardo was made public, various politicians pronounced that restitution was like a "bulldozer".As a consequence of this misinformation, local campesinos entered the resguardo to protest, concerned that if the Jiw claim was successful, then they would be forced to abandon their territories and, hence, lose their investments.

Conclusions
The consolidation of the current legal regime for the protection of collective land tenure in Colombia is the result of a series of processes -social, political, economic, cultural, and legal-that have shaped and restructured collective tenure, both as a concept and as an institution.This process was based on the encounter and dialogue between the social function of property and the recognition of the special rights of ethnic and other social groups.
In light of the above, collective land tenure in Colombia is basically presented as a form of recognition of the identity and territorial rights of indigenous and Afro-descendant groups.
An understanding of the socio-legal development of this idea permits the consideration of other historical issues related to: the recognition of indigenous people and Afro-Colombians as political subjects; the trajectory of Colombian nation-state building; and the presence of tensions between ethnic groups' actual opportunities for fully exerting their cultural identities and the State's tendency to simplify and homogenize.It also permits the consideration of historical claims and identity in shaping land policy.
The issues discussed here provide the general context for the development and assimilation of collective land tenure into Colombia's constitutional order in 1991.The strengthening of this legal structure and its institutional mechanisms is influenced by the establishment of international agreements, protocols and policies and by the struggles of indigenous, Afro-descendant and campesino social movements.
In tracing the historical-intellectual trajectory of collective land tenure in Colombia, the resguardo emerged as the main mechanism for the recognition of the communal nature of the relationship between individuals and territory.Although indigenous resguardos were conceived as a means to control the population, the resguardo later contributed to the development of protection mechanisms for those same communities, by granting them the rights to their ancestral territories.Simón Bolivar was the first to recognize these settlements during the decolonization period.After the colonial resguardos were dismantled in the interest of homogenization policies, they were later re-interpreted by indigenous resistance movements and served as a baseline for subsequent legal developments for the protection of collective land tenure.
The results of all of this have determined the nature of the collective property right in Colombia.With regard to access rights, Colombian legislation reserves collective property rights for ethnic communities.The campesino population is not seen as a subject of collective land tenure rights under this legal regime.Furthermore, campesinos are treated as subjects of production who should be integrated into the market economy.Finally, initiatives aimed at campesinos by state institutions such as INCORA/INCODER 10 have not had positive results.As a result of this and of the current postconflict situation in Colombia, new tensions and debates have emerged regarding the possibility of considering the existence of a campesino identity.
The case of San José del Guaviare serves to illustrate some of the tensions underlying the collective land tenure regime.In spite of the existence of a regulatory framework that in theory is adequate to guarantee access rights to community territories, this is not always effective.Two variables are important in the current post-war context.The first is the overlap of territorial trajectories and the history of victimization of indigenous groups.The other is the interplay between the different legal frameworks used to regulate land use and tenure, particularly those associated with environmental protection and economic exploitation.

10
Colombian Institute of Agrarian Reform (now Colombian Institute of Rural Development).

Table 3 . Environmental regulations. Law Content Decree 2278 of 1953
Introduces 'protective forest zones' and 'general interest zones' .