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Photo Credit: Leta Spencer

Indigenous Rights,
Land Restitution, and Extractive Industries
In the context of the
Colombian Victims and Land Restitution Law (1448/2011)

The following policy brief highlights major implementation challenges that have
emerged in relation to the prioritization of the extractive industry sector over
the redistribution of expropriated land as outlined by the Colombias Victims
and Land Restitution Law 1448/2011 and provides a recommendation to
ensure a more transparent and accountable reparations process.

Leta Spencer
GISDE Graduate Student
November 2016

Overview
Since the 1960s, Colombia has been in a
state of continuous internal conflict, with
numerous factions vying for social,
economic, and political control. The
situation has played out in extreme
violence and been the cause of massive
waves of forced displacement. Between
1985 and 2014, over 6,044,000 people were
internally displaced in Colombia as a direct
result of the internal conflict that continues
to the present day.i According to the
National Administrative Department of
Statistics (DANE) 2005 census, Colombia is
home to more than 90 indigenous peoples,
comprising some 1,374,000 inhabitants or
3.2% of the national population.ii Due to
lack of awareness or out of fear, indigenous
groups and Afro-Colombians under register
their status, making official statistics on
internally displaced persons (IDPs) difficult
to validate but nonetheless, these
vulnerable groups represent a
disproportionate percentage of Colombias
IDPs population.

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In accordance with the ILO 169


Convention, the special relationship
between indigenous peoples and
their lands was legally acknowledged
by the Colombian government with
the creation of reservations and
communal land titles (Constitutional
Court, Sentence T-652-1998 and
Constitutional Court, Sentence T380-1993).iii As a result of these
decrees, Afro-Colombian
communities were granted 170
collective land titles on 5.6 million
hectares covering about 5% of the
countrys territory, and indigenous
groups were granted 720 reservations

Figure 1. Indigenous Territory in Colombia

titles covering nearly 32 million hectares.iv


Most of the claims, as shown in orange in

control is very minimal, has left these marginalized

Figure 1, are in very remote areas of the

groups extremely vulnerable to violence and

country including large swaths of the

displacement.v Given the vital relationship

Amazon basin. This geographic overlap

indigenous peoples have with their land, forced

between the internal armed conflict which

displacement intensifies the severity of loss for a

operates most heavily in particularly far-

sector of the population who already exists on the

flung regions of Colombia in which state

margins.

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Victims and Land Restitution Law 1448/2011 as Transitional Justice


While peace talks between the Revolutionary

citizens whose properties were stolen or who were

Armed Forces of Colombia (FARC) and Juan

forced to abandon them due to violence between

Manuel Santos Administration continue in spite of

1991 and 2025.vi With the addition of Presidential

the failure on October 2, 2016 to ratify yet another

decrees No. 4633 and No. 4635, the Colombian

peace agreement, the administration has already

government made a commitment to Afro-

instated legal structures for transitional justice. In

Colombian and indigenous victims (both as

2011, the Colombian legislature enacted the

individuals and as a collective); recognized the

Victims and Land Restitution Law (1448) which

existence of cultural and environmental damages;

was significant for two reasons. Principally, the law

acknowledged the importance of the participation

was the first official recognition of the 52-year

of ethnic leaders and authorities in the legislative

internal armed conflict. The consequences of this

process; and explicitly incorporated the concept of

recognition require for the first time that the

the territory as a victim.vii While this legal

administration comply with international

framework provides important protection for Afro-

humanitarian law in enacting measures of

descent and indigenous communities, Law

response and assistance. Second, the law

1448/2011 has faced implementation challenges

incorporates all of the comprehensive reparations

related to the prioritization of extractive industry

standards established by the Inter-American Court

sector as a crucial means of domestic economic

on Human Rights by reestablishing land rights to

development by the Santos Administration.

Exploitation and Extraction


Between 1985 and 2012, Oxfam estimated that
between 6.6 and 8 million hectares of land in
Colombia were expropriated as a result of the
internal conflict.viii This process further exacerbated
the historical hoarding of land by large landowners,
drug traffickers, paramilitary forces and big

The geographical convergence


between the restitution policy of
lands forcibly stripped and the
emphasized, intensive-extractive
mining model generates a series of
challenges for the restitution
judges.
Colombias Comptroller General,
Julio Csar Turbay Quintero

business.ix As such, one area of controversy that has


risen in association with the implementation of Law

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1448/2011 involves the illegal exploitation of

mineral rights, noted by the increased in mining

expropriated land by multinational extractive

concession from 221,000 hectares in 2002 to

industry corporations. As a whole, Colombia faces

7,402,000 hectares in 2010, is happening at the

a deeply corrupt political arena that serves the

same time that expropriated lands are to be

interests of the most powerful domestic and

returned to those who registered with the Special

international economic sectors. The unstable

Administrative Unit for Land Restitution (URT).x In

political environment coupled with the Santos

addition, when mining exploration applications are

Administrations 2014-2018 National Development

received, concessions are being granted without

Plan All for a New Country, which bases

verifying if the land is titled to indigenous peoples

Colombias economic development on the

or Afro-Colombians and in some cases, granted

exploitation of raw materials, provides minimal

with a title knowing held by an Afro-Colombian or

inclusion of the nations IDPs. The mass sell-off of

indigenous group.

In 2000, in La Toma, an Afro-descendant community in the Cauca Department, paramilitary forces seized
control of communal land displacing hundreds. Shortly thereafter, international mining companies began to
register mining applications in the territory; many of which were granted without adhering to the process of
consultation and free, prior and informed consent as required by Law 685/2001. xixii In response, the
Colombian Constitutional Court ruled in 2010 to suspend the mining operation in La Toma and on all
expropriated registered and titled communal land. In spite of this monumental verdict, enforcement has been
lacking and mining activities continue to the present day. xiiixiv Criminal investigations into those suspected of
illegally appropriating lands have also made little progress, underlining serious implementation challenges to
Law 1448/2011.

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Mapping Accountability

Colombias comptroller general, Julio Csar Turbay

implementation of Law 1448/2011. The creation of

Quintero, emphasized that the geographical

an open sourced and freely available national

convergence between the restitution policy of

mapping database that compiles all existing land

lands forcibly stripped and the emphasized,

titles, protected areas, mining concession

intensive-extractive mining model generates a

information and all other relevant spatial data

series of challenges for the restitution judges.xvii

would democratize the land restitution process.

Recognizing the special relationship between

This database would institutionalize collaboration

indigenous people and their land, the Colombian

between the URT, which was created in 2012 to

government must provide special protection to

implement reparations in accordance with Law

ensure that raw mineral extraction does not

1448/2011, and the National Mining Agency

infringe on communal land tenure while restitution

(ANM), the agency responsible for granting new

is in limbo. Colombia must seek to optimize inter-

mineral extraction titles. At the same time, the

agency communication and coordination to

database could be accessed and utilized by non-

prevent the unlawful titling of mining concessions

governmental organizations and actors as a

on expropriated indigenous and Afro-descent

mechanism of transparency and accountability.

communally registered land. The lack of

Upholding the process of consultation and free,

systematized digital data on ethno-territorial

prior and informed consent must be a priority

reservations and communal land titles poses a

when redressing internal conflict produced

significant challenge to the full and successful

expropriation in Colombia.

ii

Colombia IDP Figures Analysis. Internal


Displacement Monitoring Centre (IDMC). Accessed
November 12, 2016. http://www.internaldisplacement.org/americas/colombia/figuresanalysis.

Censo General 2005. National Administrative


Department of Statistics (DANE). 2005.
https://www.dane.gov.co/index.php/estadisticaspor-tema/demografia-y-poblacion/censo-general2005-1
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iii

Meja, Claudia Helena and Luis Jos Azcarate.


Restitution of Ethnic Territories in Colombia: A
Contribution to Peace in Rural Areas." The World
Bank. March 2016.
iv Colombia: Restoring the Land, Securing the
Peace. Amnesty International. November 2015.
Accessed November 12, 2016.
https://www.amnesty.nl/sites/default/files/public/
colombia_land_-_briefing.pdf.
v Ibid.
vi Yepes et al., Law and Reconciliation in
Colombia. Americas Quarterly Cuba and Colombia.
2014.
http://www.americasquarterly.org/content/lawand-reconciliation-colombia
vii Meja, Claudia Helena and Luis Jos Azcarate.
Restitution of Ethnic Territories in Colombia: A
Contribution to Peace in Rural Areas." The World
Bank. March 2016.
viii Martnez Corts, Paula. The Victims and Land
Restitution Law in Colombia in Context: An analysis
of the contradictions between the agrarian model
and compensation for the victims. Forschungsund Dokumentationszentrum Chile-Lateinamerika
(FDCL), Transnational Institute (TNI). December
2013. Accessed November 12, 2016.
https://www.tni.org/files/download/martinezvictims-law-web.pdf.
ix Martnez Corts, Paula. The Victims and Land
Restitution Law in Colombia in Context: An analysis
of the contradictions between the agrarian model
and compensation for the victims. Forschungsund Dokumentationszentrum Chile-Lateinamerika
(FDCL), Transnational Institute (TNI). December
2013. Accessed November 12, 2016.

https://www.tni.org/files/download/martinezvictims-law-web.pdf.
x Returning Land to Colombias Victims.
ABColombia. May 2011.
http://www.abcolombia.org.uk/downloads/returni
nglandreportforweb.pdf
xi Betancur, Ana Cecilia and William Villa. Mining
and Indigenous Peoples in Colombia. International
Work Group for Indigenous Affairs (IWGIA).
February 2016.
www.iwgia.org/iwgia_files_publications_files/
0739_Mining _a
nd_indigenous_peoples_in_Colombia.pdf
xiiColombia: Restoring the Land, Securing the
Peace. Amnesty International. November 2015.
Accessed November 12, 2016.
https://www.amnesty.nl/sites/default/files/public/
colombia_land_-_briefing.pdf.
xiii Ibid.
xiv Meja, Claudia Helena and Luis Jos Azcarate.
Restitution of Ethnic Territories in Colombia: A
Contribution to Peace in Rural Areas." The World
Bank. March 2016.
xvii Glade, Jim. Colombias comptroller warns mining
could impede land restitution. Colombia Reports.
May 11, 2013.
http://colombiareports.com/comptroller-warnsthat-mining-could-impede-land-restitution-incolombia/

Figure 1.
Mingorance, Fidel. Territorios Indigenas en
Colombia. HREV/Tierra Proeanada. November 24,
2015. http://geoactivismo.org/territoriosindigenas-en-colombia/

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