Indigenous Land Right

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B I O D I V E R S I T Y S E R I E S

Models for RecognizingIndigenous Land Rightsin Latin America

Roque Roldn Ortiga

PAPER NO. 9

October 2004


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Papers in this series are not formal publications of the World Bank. They are circulated to encourage thought and discussion. The useand citation of this paper should take this into account. The views expressed are those of the authors and should not be attributed tothe World Bank. Copies are available from the Environment Department of the World Bank by calling 202-473-3641.

Models for RecognizingIndigenous Land Rightsin Latin America

Roque Roldn Ortiga

THE WORLD BANK ENVIRONMENT DEPARTMENT

October 2004


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The International Bank for Reconstructionand Development/THE WORLD BANK1818 H Street, N.W.Washington, D.C. 20433, U.S.A.

Manufactured in the United States of AmericaFirst printing October 2004


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iiiBiodiversity Series

Contents

FOREWORD v

PREFACE ix

ACKNOWLEDGMENTS xv

Chapter 1A Short History of Indigenous Legal Treatment in Latin America 1

Chaptyer 2Description of Indigenous Land Tenure Regimes in Selected Countries of Latin America 5

Countries with a Superior Legal Framework 5Bolivia 5Brazil 6Colombia 6Costa Rica 7Panama 8Paraguay 8Peru 9

Countries with a Legal Framework in Progress 9Ecuador 9Guatemala 10

Honduras 11 Mexico 11Nicaragua 12Venezuela 12

Countries with a Deficient Legal Framework 13El Salvador 13Guyana 13Suriname 14

Chapter 3Common Problems in the Legal Framework for Recognition of Indigenous Lands 15


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Models for Recognizing Indigenous Land Rights in Latin America

Chapter 4Case Studies in Indigenous Land Tenure and Its Implications for Natural Resources

Management 17Land Tenure Regime 17Territorial Recognition 20Natural Resources Rights 20Tenure Security 22Autonomy 23Legal Recourse 24Conclusions 25

NOTES 27

BIBLIOGRAPHY 29

BOXES1 Status of ILO 169 Ratification 22 Typology of Indigenous Legal Regimes 33 Key Characteristics of Indigenous Land Tenure, by Country 18


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Foreword

The history of the Americas did not begin withthe discovery by Christopher Columbus. Thepeople of the Americas had already livedthousand of years of impressive development,

including those of science and technology; theforgotten history of that continent.

In many ways, this paper represents animportant dimension in filling historys gapsthrough the lens of land rights. The continentwas populated by many nations thatfunctioned in harmony with nature, had avariety of cultures and languages, anddeveloped many different socio-economicsystems (nationally and locally). These nations

were sovereign and recognized from Alaska toPatagonia.

Many nations grouped actively around animportant metropolis (e.g., Tikal, MachuPicchu), others were mainly agriculturalsocieties and deeply attached to and,dependent on, the land. However, in all ofthem, we know they had very advanced andwell established institutional arrangements andorganizations (formal and informal), created

and nurtured with the view to respond to theneeds and challenges of the time. With avariety of forms of governance, these societiesdid assign rights and responsibilities to thedifferent actors and groups in order tomaintain an acceptable level of social cohesion,to establish important political consensus

around economic and social issues, and tocreate the capacity for the integration of thematerial and the non-material dimensions ofpeoples lives.

Some of the above became importanttraditions, which we find even today in manyparts, including the territories inside thedeveloped countries of North America.

Central to those indigenous traditions wasland and, therefore, land tenure systems andrights were essential to the peoples welfare inmany respects. In particular, land as a majoreconomic asset, and instrument of inheritance,

and a symbol of social status. In all thosesocieties, it is very rare to find a vacuum inboth the legal, or customary arrangements, asregards the assignment of land titles and landrightswhether these are expressed formallyor informally.

Once the Conquistadores realized that therewas not much gold to take away from theAmericas, they clearly saw economic andsocial power, and substantive material gains,

from the land. This created a major pressure onthe Spanish Crown to assign rights (e.g., inSpanish these were called Encomiendas), informs and manners that would benefit thoseConquistadores. Whole valleys and hugechunks of nations were assigned to individuals,without respect for existing customary laws,


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rules and regulations. They created and, at thesame time, superimposed their own colonial

system of legislation on the top of what wasalready a sophisticated and effective system ofland tenure.

Thus, these societies experienced an impositionof one system of governance over another.Physical force and non-discriminating forms ofenforcement were the foundations of theConquistadores new forms of governance.

In todays reality, we know that the peoples

from these nations have not vanished, norhave their ways of empowerment, assignmentof rights, or other forms of institutionalarrangements vanished either. Therefore, wewitness in many countries a great deal ofcomplexity in relation to the access,management, usufruct and control of landassets.

As the political systems of some countries arenow becoming more democratic or open to

listening and embracing the views ofminorities (e.g., power, ethnic), these issues ofland rights have clearly come up to the surfaceof the political life. Issues of sovereignty,customary law and, simply, of traditionalnormsfrom the national to the householdlevelsare being put on the table of what isclearly a complex social dialogue. In someinstances, these dialogues have even causedthe demotion of several presidents in LatinAmerica.

The paper in front of you is an excellent sourceof basic information, sharing an easy andpractical understanding about land tenure/titling, in the same sense discussed above. Inaddition, the paper represents a genuineattempt to:

First, recognize the existence of thesecomplex land rights and land titling

systems across Latin America, oftenignored in the public debate, unless policymakers confront an immediate problem.

Second, study the content at the countrylevel, so that international experiences andcomparisons may spark a move towardspolicy coherence and legislation that willultimately benefit indigenous peoples andthose poor people who live from the land.

Third, demonstrate that land is not only aphysical asset with some economic andfinancial value, but an intrinsic dimensionand part of peoples lives and beliefsystems. The end is not necessarily amaterial product or a level of economicproductivity.

The phenomena addressed in this paper arenot unique to the Americas. In my ownexperience of several years working in theconfines of the Sahelian countries agricultural

sector (e.g., Senegal, Mali, Niger, Gambia), thejuxtaposition of customary arrangements,colonial arrangements, and post-colonialarrangements was really evident. The lack ofcoherence in the land tenure and land titlingpolicies in the mid-eighties constituted one ofthe main sources of povertyparticularly forwomenand of unsustainable agriculturalpractices. Many agricultural programs andstrategies failed because of issues of titling and

tenure. Development institutions tried manyforms of interventions: agrarian reforms,resettlement programs, privatization of land,and the like. The performance of many of theseinterventions was mixed.

Titles over the land represent also a form ofproductive asset that determines the cash


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income of the owner and her/his ability tohave access to credit. In most societies, having

a title over a good piece of the land is a majorsource of credit collateral. Thus, if you do nothave land, then your access to credit is verylimited. It was, in fact, out of these titles overthe land that many landlords (absentee ones)became bankers and industrialists. For thepoor, even tenure and titling of a small plot inrural, or urban, areas represents a major sourceof welfare for her/his and future generations.The market prices value mainly (not always)what is formally owned.

Not less important is the land titles role in thedevelopment of individual and social identity.Land is a source of social power and social self-worth. In many societies, part of the land hassacred meaning and great spiritual value.Thus, whenever governments or the privatesector move people away, or alienate them,from those sacred sites, this process is almostalways accompanied by social disruption,instability and conflict.

While for landlords the land is just aproductive asset, for indigenous peoples it ismuch more than that.

If the main aim of a development institution isto alleviate poverty, it is clear that issues of

land tenure and land titling in the context ofindigenous peoples cannot be overlooked.

Thus, any future debate on land titlingdemands a focus on the fact that those titlesare a significant instrument to take people outof poverty and a major source of economicgrowth, particularly in agrarian economies.

However, this is not all. There is also a humanrights dimension to all of the above. And it isessential to understand this human rightsdimension of land rights, not just as a legalobligation, but as a key element of economic

and social development. Land laws in bothdeveloped and developing countries haveaffected the poor and the powerless the most,particularly women. These rights over the landaffect other human rights; e.g., The Right ToFood (security of food supplies), The Right ToHousing (capacity to own a house), The Right ToHealth (the use of medicinal plants) and TheRight To Development, to name a few.

This paper should be read by development

practitioners and policy makers.

Alfredo Sfeir-YounisSenior Adviser to the Managing Directors Office

The World Bank


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Preface

Over the past several years, the internationalcommunity has become increasingly aware ofthe vital importance of the legal recognition ofindigenous land rights to the cultural survival,

economic development and self-determinationof indigenous peoples and their communities.As far back as 1981, for example, the UnitedNations Subcommittee on Racism, RacialDiscrimination, Apartheid and Decolonisationsponsored a special International NGOConference on Indigenous Peoples and theLand in Geneva, Switzerland which wasattended by over 300 indigenous leaders andNGO representatives from all parts of theworld. The purpose of the meeting was to

bring to the attention of the internationalcommunity the disparate legal, political andeconomic conditions under which indigenouspeoples lived and their struggles to survive asculturally distinct peoples and communities.The root cause of the crisis, the statementwhich resulted from the International NGOconference declared, is the denial of the right of[indigenous peoples] to their land. Their land andresources are plundered by vested interests and particularly by transnational corporations seeking

maximum profits. The constant grabbing of moreof their land and the denial of self-determination isdestroying their traditional value systems and thevery fabric of their societies. (World Federationof Democratic Youth, 1981, p.10).

A year following this conference, in 1982, theUN Human Rights Commissions Sub-

Commission on Prevention of Discriminationand Protection of Minorities established aspecial Working Group on IndigenousPopulations, the purposes of which were to

review current national legislation in relationto the human rights and fundamentalfreedoms of indigenous peoples andrecommend new international standards forthe recognition and protection of indigenouspeoples rights. From the beginning, the issueof indigenous land rights was on the agenda ofthe UN Working Group, and during the 1985session of the Working Group, a group ofindigenous leaders from the Amazon region ofSouth America focused particular attention on

the collective rights of indigenous peoples totheir lands, territories and natural resources.Jose Uranavi, the President of the newlyformed Central Organization of IndigenousPeoples and Communities of Eastern Bolivia(CIDOB) and representing the CoordinatingCouncil of Indigenous Organizations of theAmazon Basin (COICA), related the followingto the members of the UN Working Group atthe 1985 meeting:

Our defense of the land and natural resourcesis for the cultural and human survival of ourchildren, and is the foundation of a moral secu-rity for peoples who have different languagesand customs We indigenous peoples think andplan in terms of the territory, not only the in-dividual plot; in this way, we assure the access


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of the community to the diverse resources ofthe forest (wood, soil appropriate for agricul-

ture and cattle, and wild fauna) For us, the first thing is to secure our land whichbelongs to us by right, because we are the trueowners of the land and natural resources. Weindigenous peoples know that without landthere can be no education, there can be no healthand there can be no life. Uranavi, 1985, p. 20

Continuing along a similar path, in the secondhalf of the decade of the 1980s, theinternational environmental community began

to acknowledge the increasing significance ofindigenous peoples traditional knowledge andland use practices to the new notion ofsustainable development. The WorldCommission on Environment andDevelopment, for example, conductedconsultations with indigenous leaders fromthroughout the world and in its well-known1987 report, Our Common Future, highlightedthe great loss to humanity posed by thedisappearance of indigenous peoples and their

traditional knowledge and experience. Thestarting point for a just and humane policy forsuch groups, the report of the WorldCommission wrote in a section titledEmpowering Vulnerable Groups,

is the recognition and protection of theirtraditional rights to land and the other resourc-es that sustain their way of liferights theymay define in terms that do not fit into stan-dard legal systems. These groups own insti-

tutions to regulate rights and obligationsare crucial for maintaining the harmony withnature and the environmental awareness char-acteristic of the traditional way of life. Hencethe recognition of traditional rights must gohand in hand with measures to protect the lo-cal institutions that enforce responsibility in

resource use. And this recognition must also give local communities a decisive voice in the

decisions about resource use in their area.World Commission on Environmentand Development, 1987, pp. 115116

Finally, in 1989, the International LaborOrganization (ILO), which at the time was theonly UN agency with a special convention inrelation to indigenous peoples, revised itsConvention 107 of 1957 and created a newConvention (ILO Convention 169) whichcountered the integrationist or

assimilationist philosophy of the previousconvention and called for respect for both thecultural integrity of indigenous peoples andtheir communities and for their co-participation in national society anddevelopment decision-making. Land rights,which assumed an important role in bothconventions, are especially highlighted in thelatter convention.

ILO Convention 169 states that the term

indigenous lands should be conceived as thetotal environment of the areas that indigenouspeoples occupy and use. It also defines theconditions for compensating indigenouspeoples for the exploitation of subsoil wealthcontained on their lands, and calls for theparticipation of indigenous peoples in theutilization, administration and conservation ofnatural resources contained on such lands.(See: ILO Convention 169 on Indigenous and

Tribal Peoples in Independent Countries, 1989.)

All of the above provides an internationalperspective for understanding the significanceof the current paper by Colombian lawyer andindigenous rights specialist Roque RoldnOrtega on the current situation of indigenous


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land rights in the constitutions, legislativeregimes and administrative institutions of

Latin American countries. Roque RoldnOrtega is eminently qualified to write on thissubject given his several decades of experienceas the head of the Office for Indigenous Affairsof the Colombian Agrarian Reform andColonization Institute (INCORA), his positionas Director of the General Office of IndigenousAffairs of the Colombian Ministry of theInterior, and his founding and leadership of thenon-governmental Center for IndigenousPeoples Cooperation (CECOIN) in Bogota in1985.

Roque Roldn Ortega has played anhistorically important role in the recognitionand titling of numerous indigenous resguardosin his native Colombia. He has also providedactive and critical support to numerousindigenous and Afro-descendant organizationsin their successful struggle to reform theColombian Constitution in 1991 and to

produce post-Constitutional legislationprotecting the land, territorial and naturalresource rights of both indigenous peoples andAfro-Colombian populations. Background tothis experience is contained in his book,Indigenous Peoples of Colombia and the Law A Critical Approach to the Study of the Past andPresent, published in English by the GaiaFoundation, COAMA and the ILO in 2000.

Roque Roldn Ortega also has had extensive

experience in providing technical advice in thearea of indigenous legislation andadministrative procedures relating toindigenous land regularization to several otherLatin American governments. He has alsoworked as a consultant with such

international agencies as the ILO, theOrganization of American States, the World

Bank, and numerous bilateral agencies inreviewing legislative reforms relating to therecognition of indigenous lands andrecommending changes in administrativeprocedures for the more efficient and justregularization and titling of such lands. He isalso currently involved in a very importantproject sponsored by the COICA in preparinggeneral guidelines for indigenous landregularization and natural resources controlthroughout the lowland regions of SouthAmerica.

From the perspective of the World Bank,Roque Roldn Ortegas paper is also importantbecause over the past decade, and especiallysince the introduction of the World BanksOperational Directive on Indigenous Peoples in1991, the World Bank has been involved infinancing several land administrationprograms in Latin American countries, many

of which contain indigenous landregularization components. Both the originalWorld Bank Operational Manual Statement onTribal Peoples in Bank-financed Projects(OMS 2.34) and its current OperationalDirective on Indigenous Peoples (OD 4.20)contain special directives for protecting theland rights of indigenous peoples. The latterdocument, in fact, states under the section onthe requirement for Borrowers to prepareIndigenous Peoples Development Plans that

when local legislation needs strengthening,the Bank should offer to advise and assist theborrower in establishing legal recognition ofthe customary or traditional land tenuresystems of indigenous peoples. It also notesthat where the traditional lands of indigenous


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peoples have been brought by law into thedomain of the state and where it is

inappropriate to convert traditional rights intothose of legal ownership, alternativearrangements should be implemented to grantlong-term, renewable rights of custodianshipand use to indigenous peoples. Finally, itstates in the same paragraph that these stepsshould be taken before the initiation of otherplanning steps that may be contingent onrecognized land titles. (See OD 4.20,paragraph 15 (c), 1991.)

In the year following the introduction of OD4.20, Alaka Wali (an anthropologist who haddone fieldwork among the Kuna Indians ofPanama) and I published a desk review of 13World Bank-financed projects undersupervision or preparation which containedspecial land regularization programs forindigenous populations in lowland SouthAmerica. The review looked at theachievements and operational problems of

these programs, especially in countering thepotentially negative effects of roadconstruction, land settlement and resourceextraction activities on the lands, naturalresources and cultures of forest-dwellingindigenous groups in several South Americancountries. One of the major findings of thisreview was that although these landregularization programs were instrumental inphysically demarcating and in some casescollectively titling large areas of indigenous

lands, they also contained many outstandingproblems especially in terms of the nature oflegal frameworks, procedural problems inregularizing such lands followingdemarcation, and follow-up activities in termsof controlling land invasions and protecting

the natural resources contained on such lands(see Wali and Davis, 1992).

Since the publication of this report, there havebeen numerous other projects financed by theWorld Bank which contain indigenous peoplesland regularization programs or are stand-alone land administration projects targeted atindigenous peoples. To date, there have beensome evaluations of individual projects,including one very important review done byEnrique Snchez Gutirrez and Roque RoldnOrtega of a Bank-financed land regularizationprogram for indigenous and Afro-descendantcommunities on the Pacific Coast of Colombia(see Snchez Gutirrez and Roldn Ortega,2002). However, there has still not been asystematic comparative study of the lessonslearned from the entire portfolio of indigenousland regularization programs financed by theWorld Bank since the introduction of OD 4.20in 1991.

In all of the above senses, the present report byRoque Roldn Ortega poses a special challengein terms of the need both to better understandthe current legislative frameworks of LatinAmerican countries in relation to indigenouspeoples land rights, as well as to providesupport for the sorts of actions whichinternational donors have or could be taking toassist these countries in actually implementingsuch legislation. In taking up this challenge,the World Bank would not only be responsive

to the international focus upon indigenouspeoples land rights which was first highlightedby international agencies in the decade of the1980s and is contained in its own operationaldirective in relation to indigenous peoples, butit would also assist its borrower countries in


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preparing the legal and institutional conditionsfor the cultural survival, ethno-development

and protection of the lands and naturalresources of indigenous peoples and theircommunities in the years ahead. The currentreport by Roque Roldn Ortega provides anexcellent historical framework for such futureanalytical and operational work on indigenousland and natural resource rights and is worthy

References Cited

Roldn Ortega, Roque, Indigenous Peoples ofColombia and the Law: A CriticalApproach to the Study of Past and PresentSituations (Bogota, The Gaia Foundation,COAMA and ILO, 2000).

Snchez Gutirrez, Enrique and Rolda Ortega,Roque, Titulacin de los TerritoriosComunales Afrocolombianos e Indgenas

en la Costa Pacfica de Colombia(Washington, Banco Mundial, 2002).

Uranavi, Jos, Bolivia: Statement to the UNfrom the Indigenous Peoples of EasternBolivia, IWGIA Newsletter (Copenhagen),Numbers 43 and 44, September andDecember 1985, pp. 15-22.

of close attention by the World Bank and otherinternational development agencies.

Shelton H. Davis, Ph.D.Senior Fellow, Center for Latin American Studies,

Edmund A. Walsh School of Foreign Service,Georgetown University, Washington, DC

Previous position: Social Sector Manager, Latin America and the Caribbean Region, World Bank

Wali, Alaka and Shelton Davis, ProtectingAmerican Indians: A Review of World BankExperience with Indigenous LandRegularization Programs in Lowland SouthAmerica (World Bank, Latin America andthe Caribbean Technical Department,Regional Studies Program, July 1992).

World Commission on Environment and

Development, Our Common Future(Oxford, Oxford University Press, 1987).

World Federation of Democratic Youth, ReportPrepared for the International NGOConference on Indigenous Peoples and theLand, Geneva, Switzerland, 15-18 1981.


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Acknowledgments

The idea of this report came from ClaudiaSobrevila, Senior Biodiversity Specialist of theWorld Banks Environment Department. Wewould like to recognize the generous help of

Karen Anne Luz from the EnvironmentDepartment, who synthesized the originalreport provided by the author and for hercomments during various versions of the

document. We would also like to thank thecolleagues that provided constructivecomments to the manuscript: Anthony B.Anderson, Tania Carrasco, Judith Lisansky,

Kathy MacKinnon, and Alberto Ninio. Thestudy was funded by the EnvironmentDepartment.


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A Short History of IndigenousLegal Treatment in Latin America

The official policy of all the Latin Americanstates towards their indigenous populationsfrom independence until at least the 1930s wasone of assimilation. They used a variety of

coercive means to obtain this goal, from forcedconversion to Christianity and compulsory useof Spanish to outright war. State authoritieswere particularly keen to abolish the institutionsof collective territorial property and communalgovernment of the native peoples of theAmericas.

The justification for this strategy of eliminatingnative peoples as separate entities was nationalunity. Its philosophical underpinning was a

conception of indigenous societies as savage andbackwards, inimical to the project of buildingsolid and prosperous national societies based oneconomic liberty and representative democracy.As one republican ideologue put it, nationalunity was only to be found in a societycharacterized by a single religion, a singletongue, and a single lineage.

Starting in the 1940s, the relationship betweenLatin American governments and their

indigenous populations began to change. InApril of 1940, the First Interamerican IndigenistCongress was held in the Mexican city ofPtzcuaro, which generated the PtzcuaroAgreement, largely based on the indigenouspolicies of the government of Lzaro Crdenas.This did not represent a fundamental change inthe strategy of assimilating indigenous peoples;

rather, it signaled a recognition that the mostexpeditious and constructive way to ensuretheir integration into national societies was toprovide better education, technical training, and

financial assistance to the traditionallymarginalized indigenous populations.

The approval in 1957 of the International LaborOrganizations Convention 107, which lays outnorms for the protection and integration ofindigenous peoples in independent countries,reinforced the strategic approaches codified inthe Ptzcuaro Agreement. All the independentcountries of Latin America and the Caribbeanratified this convention, thereby incorporating it

into their national legal framework, as well asmaking it part of their internationalresponsibilities. Following the spirit of theconvention, some of the new agrarian lawsadopted by countries in the region under theUS-led Alliance for Progress included modestproposals for focusing attention on thenumerous land claims of the regions nativepeoples.

The agrarian reforms undertaken widely

throughout Latin America in the 1960s,although not very successful, did result in thefirst important examples of recognition ofindigenous land claims since the colonial era. Inaddition, the popular mobilization amongcampesinos that accompanied these reformshelped strengthen the indigenous movement inmany countries. As social scientists finally

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discredited the notion that indigenous societieswere stuck in a backwards phase of human

development, the indigenous movementthroughout the region also gained the supportof other sectors of society.

Starting at the beginning of the seventies, thisnew vision of relations between the state andindigenous peoples began to be integrated intonew constitutions as they were adopted by thevarious countries. The PanamanianConstitution of 1972 took the first timid steps inthis direction, while the Peruvian Constitution

of 1979 laid out a clearer vision. Otherconstitutions with a new focus on indigenousissues followed: after waging war against theirindigenous populations, new constitutions inGuatemala in 1985 and Nicaragua in 1987evinced a clearer recognition of indigenousrights; these were followed by constitutionscodifying more progressive indigenous policiesin Brazil (1989), Colombia (1991), Paraguay(1992), Argentina (1994), Bolivia (1995), Ecuador(1998), Venezuela (1999), and Mexico (2001).

With the exception of Panama and Nicaragua,all the other countries mentioned above havealso ratified ILO Convention 169, theConvention concerning Indigenous and TribalPeoples in Independent Countries (see Box 1),which updates ILO 107 by recognizing, amongother indigenous rights, the very closerelationship between traditional lands andcultural identity for indigenous peoples.

The situation in other countries of Latin

America is mixed. Some, like Honduras andCosta Rica, havent recognized indigenousrights in their constitutions, but they haveratified ILO Convention 169. Chile has neitherrecognized indigenous rights in its constitutionnor ratified the convention, yet it has a law thatestablishes norms for the protection anddevelopment of the indigenous population, and

it has created an institution, the NationalCorporation for Indigenous Development(CONADI) to do so. Four other countriesGuyana, Suriname, Uruguay, and El Salvadorhave no legal recognition of indigenous rightswhatsoever.

Today, there is substantial variation in thedegree of legal recognition of indigenous rightsacross the Latin American region. Broadlyspeaking, the countries of Latin America can bedivided into three groups, according to theirlegal treatment of their indigenous populations:

Superior legal framework: These countrieshave made a high-level commitment, througheither their constitution, internationalagreements (such as ILO 169) or both, toindigenous rights, and they have followedthrough with a regulatory framework and

concrete actions to ensure those rights,including legal recognition of indigenous lands.This group includes Bolivia, Brazil, Colombia,Costa Rica, Panama, Paraguay, and Peru.

Legal framework in progress: These countrieshave made a high-level commitment, through

Box 1

Status of ILO 169 Ratification

Source: ILO website.

Ratified

ArgentinaBoliviaBrazil

ColombiaCosta RicaEcuador

GuatemalaHonduras

MexicoParaguay

PeruVenezuela

Not Ratified

BelizeChile

El SalvadorGuyana

NicaraguaPanama

SurinameUruguay


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either their constitution, internationalagreements (such as ILO 169), or both, to

indigenous rights, but they have not followedthrough with an adequate regulatoryframework, and they generally have not mademuch progress in recognizing indigenous landrights. This group includes Mexico, Guatemala,Honduras, Nicaragua, Venezuela, andArgentina.

Deficient legal framework: These countrieshave not entered into any high-level

commitments on indigenous rights, and theyhave made little or no effort to respond toindigenous demands for legal recognition oftheir land claims. This group includes ElSalvador, Guyana, Suriname, and Uruguay.

Box 2

Typology of Indigenous Legal Regimes

Superior legalframework

BoliviaBrazil

ColombiaCosta Rica

PanamaParaguay

Peru

Legal frameworkin progress

ArgentinaGuatemalaHonduras

MexicoNicaraguaVenezuela

Deficient legalframework

El SalvadorGuyana

SurinameUruguay


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Description of Indigenous Land

Tenure Regimes in SelectedCountries of Latin America

In this section, we will review the current legalframeworks for indigenous land tenure inselected countries, illustrating the range ofexperience in this issue across Latin America. In

the following section, we will look more closelyat several countries that are relatively advancedin terms of legally defining indigenous landtenure.

Countries with a Superior LegalFramework

These countriesBolivia, Brazil, Colombia,Costa Rica, Panama, Paraguay, and Peruallhave high-level judicial instruments

(constitutions or international agreements)recognizing indigenous land rights, as well assome national legal and regulatory frameworkoperationalizing the high-level instruments.These countries provide the best practice modelsfor land legalization, despite their shortcomings.Nevertheless, there are important differencesbetween them, which the following country bycountry discussion will make apparent.

BoliviaAlthough it has the largest proportion ofindigenous population in South America, anddespite a powerful popular movement, Boliviaonly recently began to offer legal redress toindigenous land claims. The first measureswere taken as a result of popular mobilization of

the Amazonian and Chaco indigenous groups atthe end of the 1980s and early 1990s, when thenational government issued a series of executivedecrees recognizing some areas as being under

indigenous control and possession. Somesectors of Bolivian society regarded thesedecrees as unconstitutional. The constitutionalreform of 1994 contained a clear recognition ofthe special rights of indigenous people andcommunities, including the character as legalincorporation (personera jurdica) of indigenousgroups, their right to full ownership of theirancestral lands, and their autonomy to exercisetheir own traditional forms of internalgovernment and administration.

In 1996, the National Agrarian Reform ServiceLaw was promulgated; along with theregulations later issued for that law, it definesthe institutions and procedures for legalrecognition of indigenous lands. Despiteserious obstacles, caused by the bureaucraticrequirements of the law, budgetary limitations,the countrys political crisis, and opposition tothe delimitation of indigenous lands, Bolivia hasmanaged to recognize some 5.4 million hectares

of indigenous lands to date. The 1996 law,however, was considered flawed by indigenousgroups for several reasons: the technical rulesfor deciding land allocations, for example, led tosmaller areas than the indigenous groupsclaimed, and gave priority to titling agriculturalcolonists on indigenous-claimed land, leading tothe fragmentation of indigenous land claims. A

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mass protest in 2000 led to the correction ofsome of the flawed regulations. Serious

obstacles to indigenous titling remain in Bolivia,including the complexity of the bureaucraticprocedures required for land recognition, aswell as the inability of indigenous communitiesto define their own administrative andmanagement models for their lands.

Brazil

At the beginning of the 20th century, in reactionto the harm inflicted on indigenous groups as a

result of official policies promoting theexploitation and settlement of the countrystropical forests, Brazil adopted constitutionalprovisions aimed at establishing a paternalisticsystem in which indigenous people would beprotected by the state. It is generally believedthat this policy was inspired by a militaryofficer with humanitarian interests, GeneralCndido Mariano Silva Rondn, after whom thestate of Rondonia was later named. A series ofinstitutions devoted to protecting Brazils

indigenous people were created: first the IndianProtection Service (SPI), around 1911, that wasdisbanded in 1967 when massive corruption inthe agency was exposed; followed by theNational Council for Indian Protection (CNPI)some years later and then the National IndianFoundation (FUNAI) in 1968. In 1988, Braziladopted a new constitution that stipulated thatall indigenous lands in the country would bedemarcated within a space of five years. Article231 of the Brazilian constitution states that

indigenous people have primary, inherent andunalterable rights to their lands theypermanently inhabit and use for productiveactivity, preservation of natural resources andcultural and spiritual well-being. Indigenouslands are the property of the State; however, theregularization process recognizes and

formalizes indigenous rights and specificallyguarantees perpetual usufruct by indigenous

people of their lands.

In 1995, Brazil adopted new legislationrevamping the process of indigenous landsregularization. This was Decree 1775 whichreplaced the previous set of rules andregulations, Decree 22. The addition of a civiladministrative grievance procedure and a 90day period of contention, during which non-Indians can challenge the identification anddelimitation of indigenous lands, was protested

by national and international NGOs,particularly because decree was retroactive andbecause of concerns that already delimitedlands would be reduced in size. Despite theprotests, the vast majority of claims andgrievances to date against existing indigenouslands have been dismissed , and the primacy ofindigenous rights upheld.

The resulting demarcation and recognition ofindigenous lands has been truly impressive. In

total, some 103.7 million hectares, or more than12% of the national territory of Brazil, have beenrecognized as indigenous lands, possessed byindigenous groups representing only 2% of thenational population. Serious problems remain,however. Many indigenous lands continue tobe invaded by landless campesinos or miners,and some of the lands that have beenrecognized are tied up in court with legalchallenges from third parties. Another issue ofconcern is that 15 years after the passage of the

new Constitution, the Indian Statute, which is inclear contradiction to the Constitution, remainsin force.

Colombia

In Colombia, the new constitution adopted in1991 was the first to clearly recognize the


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Description of Indigenous Land Tenure Regimes in Selected Countries of Latin America

special rights of indigenous peoples. Evenbefore this high-level juridical support to

indigenous land recognition, however,Colombia had had an active program ofrecognizing indigenous lands, a product of itsexecution of the agrarian reform laws that werepassed starting in the 1960s. At first these landshad the character of simple provisional reserves;later the concept of indigenous reservations(resguardos) was adopted from the old IndianLaw, which guaranteed the indigenouscommunities full ownership and a high degreeof autonomy in management of their lands.

The Colombian judicial framework grants manyrights to the indigenous peoples, which areaimed at guaranteeing the protection of theirsocial and cultural integrity. In 1989 theColombian Government ratified ConventionNo.169 of the International Labor Organization(ILO) concerning the rights of indigenous andtribal peoples (Law 165, 1994.) The PoliticalConstitution of 1991 defines the Colombiannation as multi-ethnic and pluri-cultural, and

advanced the right of indigenous peoples tomanage the political and administrative affairsof their territories. In addition, indigenouspeoples are defining their own plans for land-use and environmental management, whichprovide the framework for the sustainable useof natural resources in their territories, based ontheir traditional knowledge

The 1991 Political Constitution also opened thespace for the creation of a new territorial

division within Colombia, the IndigenousTerritorial Entity (ETI). The proposed lawregarding the establishment of the ETIs has beenapproved by the Senate and is currently beingdiscussed in Congress. In the meantime,indigenous authorities in the resguardos arelegally responsible for land-use and social

programs in these indigenous territories, andthey receive state funds for their own health,

education and social programs.

In 2001, the Colombian Government presented areform to two articles in the PoliticalConstitution, to guarantee the stability of statefunds for social investment in territorial entitiesincluding indigenous resguardos. Law 715 of2001 was subsequently enacted, to regulate thedistribution of these funds, and their use. Thesame law establishes that indigenous resguardoswill receive a specified percentage of the

available funding each year, to be used foreducation, health, housing, drinking water andproductive projects.

Costa Rica

Costa Rica does not have specific norms onindigenous peoples in its Constitution, and itonly ratified ILO 169 in 1993. Nevertheless, likeother countries in the region, Costa Rica hashistorically established programs to benefit the

indigenous population. In 1973, the NationalIndigenous Affairs Commission (CONAI) wascreated and made responsible for dealing withindigenous demands, including land claims andthe task of integrating indigenous communitiesinto the process of development. Four yearslater, the Indigenous Law of Costa Rica (Law6172 of 1977) was issued, which gave moresupport to the territorial claims, separatecultural identity, and administrative autonomyof indigenous groups. It also decreed that

indigenous reserves are inalienable1,imprescriptible2, untransferable3, andexclusively reserved to the indigenouscommunities that inhabit them. Although therehas been serious criticism of the existing legalprotections for indigenous people, and althoughthe state has been working on a new legal


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formulation that would be more consistent withILO 169 and current thinking on indigenous

rights, Costa Rica has made significant progressin recognizing indigenous lands under theexisting legal framework. Various decisions ofthe countrys Supreme Court have alsocontributed to defining an acceptable degree ofautonomy for indigenous communities inmanagement of their legally-recognized lands.

Panama

The Constitution of 1972, for the first time in

Panamanian history, declared that indigenouslands must be given as property, and not undersome type of usufruct arrangement. Using thisdisposition, the Legislative Assembly hasrecognized indigenous lands through a speciallaw for each indigenous group, in which thelegal figure of the comarca or collectivelandholding is created. To date, six comarcashave been created in Panama, covering morethan 20% of the national territory. Each isgoverned by an executive decree, which gives

the indigenous group wide latitude foradministering its lands, under the general rulesestablished in the legislative act creating thatcomarca. Interestingly, Panama has not ratifiedILO 169, although it had previously ratified ILO107 in 1971. Nevertheless, its model of landregularization and indigenous rights isrecognized as innovative and effective,respectful of indigenous autonomy andsupportive of community initiative.

Paraguay

In 1981, Paraguay passed the IndigenousCommunities Statute (Law 904), which gaveindigenous peoples certain rights, including theright of legal incorporation and the right toobtain the land necessary for their survival and

development. In 1992, the country adopted anew Constitution which recognizes the special

rights of the indigenous population andrecognizes them as ethnic groups with aseparate culture identity. One year later,Paraguay ratified ILO 169.

Like other constitutions in Latin America, theParaguayan Constitution gives indigenouslands the attributes of being inalienable,unmortgageable4, and imprescriptible. Theconstitution and the Indigenous CommunityLaw also guarantee indigenous groups a high

degree of autonomy in the management of theirlands and conduct of their internal affairs.Unfortunately, these general laws have not beensupported by a body of regulations that definesprecisely what powers the indigenouscommunities have, resulting in the potential forconflict between the communities and thenational government and its specializedagencies.

In practice, experience with the implementation

of these higher-level legal norms has beenmixed. With the passage of the IndigenousCommunities Statute, the state created theParaguayan Indigenous Institute (INDI), adependency of the Ministry of Defense; INDIhas wide powers to enforce the guarantee ofindigenous rights, including land rights. Onland rights, INDI acts in close collaboration withthe Institute of Rural Wellbeing (IBR), theagrarian reform agency in Paraguay. INDI hasreceived some financial support from the

government, as well as from some churches andhumanitarian agencies. Nevertheless, exceptingfor some small areas that indigenouscommunities have managed to retain over theyears, the lands they claim have to be purchasedfrom current owners, at high cost; if the ownersare not interested in selling willingly, they must


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be expropriated by an act of Congress. A recentstudy showed that in the Eastern Region of the

country, where according to the law thecommunities require a minimum of 240,000hectares, only slightly more than 66,000 hectareshad been passed to them by 2002; in theWestern Region, where they should have at least1.2 million hectares, they have only been givenabout 972,000 hectares. This same study showsthat after an unsuccessful attempt on the part ofthe government in 2002 to reduce INDIsfunctions and programs, its budget and staffwere cut. The resulting situation is even more

problematic for the indigenous communities,since some of the land that has already beengiven to them has not yet been fully paid for,and INDIs current insolvency could precludefinalization of the payments.

Peru

Peru has a long and rich legislative history infavor of indigenous rights, and in particularland rights. The constitutional provisions in

Peru that recognize indigenous rights areprobably the earliest in the Americas. Thecountry also ratified ILO 107 and, in 1994, ILO169. It was also the first country to adoptspecial legal regimes for the governing ofindigenous communities, in the 70s and 80s.The first Law of Native Communities wasadopted in 1974; a later law on the same topic isstill in force. The 1979 Constitution recognizedindigenous lands as inalienable, unmortgage-able,andimprescriptible; the current

Constitution (1993) represents a step backwardon this issue, weakening the legal treatment ofindigenous lands by making them subject tobeing bought and sold. Despite seriousobstacles, gaps, and ambiguities in thetreatment of different indigenous issues,including the land legalization model and the

internal governance of indigenous communities,the relatively long and rich experience of Peru

in this area is worth close examination.

Countries with a Legal Framework inProgress

These countries have made a high-levelcommitment to indigenous rights, in theirconstitution or the adoption of internationallegal agreements or both, but they have notfollowed through with an adequate regulatoryframework. Despite this, they offer some

interesting insights into the process of landregularization. The countries included in thissection are Ecuador, Guatemala, Honduras,Mexico, Nicaragua, and Venezuela.

Ecuador

In 1998, Ecuador approved its currentconstitution and at the same time ratified ILO169. Like the Venezuelan Constitution (seebelow), the Ecuadorian Constitution guarantees

a wide gamut of indigenous rights; as inVenezuela also, the Ecuadorian Constitutionuses the future tense to refer to indigenousrights, which seems to imply that further actionby the national legislature is necessary in orderto fully establish those rights. Even beforeapproving the new Constitution, Ecuadormanaged to regularize a significant extension ofindigenous lands, utilizing the existing agrarianlegislation. Because of the lack of specificindigenous procedures for land recognition,

these lands were titled not to legally recognizedethnic groups or communities, but rather usingwhatever form of organization, or lack oforganization, the groups had at the moment thetitles were granted. Thus, indigenous landshave been titled to individuals, cooperatives,Centers (Centros) or Associations of Centers


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(Centers are an organizational form introducedby religious missionaries among some

indigenous groups), Communes (a legal figureestablished by several laws in 1937,characterized by communal ownership), andethnic territories. The only one of these that hasany relationship to the indigenous tradition isthe Commune, but this was only used in thehighlands, and not in the Amazon, where thevast majority of the titled land was located.

The lack of legal norms associated with thetitled entities led to the application of the Civil

Code provisions for communal property beingapplied to these titles. While the newConstitution says that indigenous lands areinalienable and cannot enter into the freemarket in property, it appears to require that thecharacteristic of inalienability be grantedthrough a subsequent law passed by thelegislature, such that all the lands that havebeen titled would need an additional legalaction in order to become inalienable. As can beseen from this analysis, the Ecuadorian

legislature urgently needs to issue the lawsnecessary to support the constitutionaldeclarations on indigenous rights, including notonly the specification of an appropriateprocedure for titling indigenous lands, but alsoa legal framework for the incorporation ofindigenous groups and a model for landmanagement after lands are titled to thosegroups.

Guatemala

The Constitution of 1985, which is still in force,recognizes the right of indigenous communitiesto the lands they have historically utilized andproclaims the responsibility of the state toprovide state-owned lands for those groups thatneed lands for their development. In practice,

neither the constitutional provisions nor theratification of ILO 169 by Guatemala in 1996 has

led to much progress on this issue. Guatemalahas relied on its body of agrarian laws todistribute lands to indigenous communities,which has led to land being granted in ahodgepodge of forms, depending on theparticular law being used or the governmentagency involved. Because of this, some landshave been issued under individual titles, whileothers have been titled as collective agrarianpatrimony or in the form of cooperatives.Since most of these titles required payment by

the new title holders, the titles were precarious,subject to being revoked if the payments werenot made on time. It appears that very fewindigenous families were able to obtain theirdefinitive titles in the end, after completingpayments spread out over a period of 10 to15years.

These lands distributed under the agrarianreform laws have not afforded indigenouscommunities the ability to manage their

territories and their internal affairs according totheir own traditions, as opposed to civil law.For the vast majority of the communal landsthat the indigenous communities still control,they have only very precarious titles, or no titlesat all. The only alternative model for legalpossession of their land is in the form of a non-profit civil association under the Civil Code, amodality that exposes them to all the risks ofprivate property and of the free market in land,which can be brought about at the behest of any

one of the members of the association.

In the 1995 peace accords that put an end to thecivil war in Guatemala, the governmentcommitted itself to forming a commission withindigenous representation to proposeprocedures and institutional mechanisms for


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guaranteeing indigenous land tenure, as well asdefining the use and management of natural

resources on indigenous lands. While themembers of the commission have been named,there has been little additional progress to date.

The 1999 Law of the Land Fund, according to itspreamble, was intended to operationalize thepromises about indigenous land titling made inthe peace accords, but in effect it has only threedispositions that concern the indigenouspopulation: it promises technical assistance toindigenous groups in obtaining legal

incorporation (personera jurdica); it promisesthat the Land Fund will not to be applied tolands held by indigenous groups; and it alsoprotects indigenous sacred and ceremonial sitesfrom acquisition under the program. It doesnot, however, define procedures for indigenousland legalization, leaving Guatemala withoutany specific legislation doing so, despite thecommitments in the Constitution and the peaceaccords.

Honduras

In its Constitution of 1982, Honduras recognizesthe responsibility of the state to establishmeasures for the protection of the rights andinterests of the indigenous communities thatexist in the country, and especially of the landsand forests in which they live. TheAgricultural Sector Modernization andDevelopment Law (Decree 31-92), passed in1992, promised to title community lands to

indigenous communities for free, but thisprovision has never been applied.

In 1995, Honduras ratified ILO 169, and in 1997the state decreed the creation of a commissionto prepare a draft law to regulate issues relatedto the indigenous and tribal populations.

Nevertheless, there has been very little progressin recognizing indigenous land rights. While

some land has been adjudicated to indigenouscommunities in the last few decades, this hasbeen done using the general agrarian reformlaws, and not under a special land regime bettersuited to their traditional landholding practices.Serious contradictions between the agrarianreform laws and other regulations, especiallythose governing forests and environmentalissues, have further slowed and weakened anyprogress toward adopting a real policy torecognize indigenous territorial rights in the

country. The very few properties that have beenadjudicated in favor of indigenous peoples,through the efforts of missionaries or, morerecently, under the agrarian reform laws, havebeen granted as regular property under the civilcode, which impedes the autonomy of thecommunities in managing their lands.

Mexico

Historically, Mexico has been a leader on

indigenous policy-making in Latin America.The 1917 Constitution, product of the firstrevolution of the 20th century in 1910,guarantees a wide range of rights to campesinos,within a framework of communal lands. Article27 of the original text recognizes communalproperty for tribes and peoples who de facto orde jure will retain their communal status, andwho will continue to enjoy in common the useof the lands, forests, and waters that belong tothem or that have been returned to them under

the law of 1915. Later, the concepts of tribesand peoples were replaced by the concepts ofejidos and communal populations which are stillin effect today. From then on, the ejido was theofficial form of collective production ofcampesino communities, within which ethnicitywas obscured.


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From the beginning of the 19th century, there isdocumentary evidence of indigenous groups

that insisted on the return of their ancestrallands and the recognition of their own forms ofcommunal property. In 1990, Mexico was thefirst Latin American country to ratify ILOConvention 169. In 1992, Article 27 of theConstitution was reformed, allowing theparcelization and privatization of the ejidos, andthe fourth Article recognized the multiculturalcomposition of the countrys indigenouspopulation

In 1996, the Agreements of San Andrs weresigned in Chiapas, and both sides of thatconflict committed to the construction of a newnational compact defined by the culturaldifferences between Mexicos citizens.Nevertheless, the expectations of the indigenouspeoples were not fulfilled. The proposed law onIndigenous Rights and Cultures, sent toCongress in 2001, was substantially modified,especially in terms of the autonomy,responsibility, and rights of the indigenous

peoples. The Law characterizes indigenouspeoples as entities of public interest, rather thanlegal entities, and it does not define importantconcepts such as territory, habitat, and lands. Italso maintains the reform of Article 27, whichallows for the alienation of ejidal lands.

Nicaragua

In 1987, Nicaragua made great strides forwardin formal recognition of indigenous land rights

on the Atlantic Coast with the passage of a newconstitution and the Autonomy Law (Law 28 of1987). These legal instruments granted politicaland administrative autonomy to the AtlanticRegion of Nicaragua, where the majority of theindigenous population lives, and theycommitted the national government to

recognizing the indigenous claims to the landthey have traditionally occupied. Sixteen years

later, Nicaragua has not recognized more than5% of the lands claimed by indigenous groups.Although the Autonomy Law definesindigenous lands as inalienable, intransferable,un-mortgageable and imprescriptible, therecognition of indigenous lands that hasoccurred has been carried out under the normalagrarian laws, without any special regimen thatintegrates traditional indigenous usage andnorms. While this may not affect theintangibility5 of these lands, it clearly puts the

indigenous groups in a vulnerable position inwhich they could easily lose their lands, eitherde jure or de facto. In December 2002, after along struggle by the indigenous groups, theNational Assembly approved a law which bothdefines the procedures for recognizingindigenous lands and provides a model for theadministration and management of thoseterritories. It is not clear whether there ispolitical will in Nicaragua at this point toenforce this law.

Venezuela

Venezuela adopted its current constitution in1999, and it gives full recognition to indigenousrights. In 2002, the country also ratified ILO169. Before this time, the state had recognizedindigenous lands under the usual proceduresfor titling lands to campesinos. These lands weregiven in collective form, but since no legalrecognition of indigenous groups existed, they

were given to groups of particular individualsby name. In the absence of legislation providingfor their management, these lands came underthe Civil Code, and this imposed seriouslimitations on their use by indigenous groups.The new constitution, like the Ecuadorian,describes indigenous rights in the future tense,


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leading to the conclusion by some that theserights must be embodied in specific laws by the

national legislature before taking effect, and todate this has not happened. The Law forDemarcation and Guarantee of Habitat andLands for Indigenous Peoples, passed in 2001,did not do so, although it did define someconcepts and new strategies of the state onindigenous issues. Currently, the NationalAssembly has before it a new draft law, calledthe Law of Indigenous Peoples, introduced byindigenous legislators in November of 2002,which would define not only the procedures for

recognizing indigenous lands, but alsoindigenous autonomy, the authority ofindigenous representatives and theirrelationship to the state, as well as providing theadministrative model for the legally recognizedindigenous territories.

Countries with a Deficient LegalFramework

These countries have not entered into higher-

level agreements on indigenous land rights, andthey have made little or no effort to respond toindigenous demands for legal recognition oftheir land claims. They include El Salvador,Guyana, and Suriname.

El Salvador

El Salvador is a good illustration of a country inwhich the legal framework protectingindigenous rights is tenuous. The 1983

Salvadoran Constitution establishes equaltreatment for all people, regardless ofnationality, race, gender, or religion. TheConstitution also recognizes the existence ofindigenous national languages which should berespected and protected by law. It also statesthat the artistic, historic, and archaeological

treasures of the country form part of theSalvadoran cultural heritage, which is placed

under the protection of the state and is subjectto special laws for its conservation. There is noexplicit recognition in the Constitution of theexistence of ethnic groups, indigenous peoples,or separate cultures as part of the nationalpopulation, but the clauses mentioned abovecould help form a vague case for legalacceptance by the Salvadoran state of variouscultures within the national polity. El Salvadordid ratify ILO Convention 107 in 1958, but thisdocument alone is not sufficient to support a

policy of land recognition for indigenouspeoples.

Guyana

Guyanas 1980 Constitution, like El Salvadors,contains general assurances of the importanceof the different communities that comprise thenational population, and along with its 1996constitutional reforms and Legislative Act #11 of2000, establishes the obligation of the state to

create a Commission for Ethnic Relations. TheCommissions responsibility is to fightdiscrimination against and promote thedevelopment and equality of opportunity forpersons belonging to the countrys minorityethnic groups. Several additional lawstheAmerindian Law of 1951, amended in 1976 andsubsequently, and the Law of the AmerindianLands Commission, passed in 1966didestablish legal recognition of indigenous landrights. However, the procedures, requirements,

and institutions that these laws establish are socumbersome, incomplete, and ambiguous, andgrant so much discretion to the executivebranch while leaving the indigenous groupswithout any ability to intervene in the process,that in practicality they have had very littleeffect. Guyana has never passed the laws


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required to establish the above-mentionedCommission for Ethnic Relations, and it has not

ratified ILO 169.

Suriname

Laws dating to its period as a Dutch colonydecree that indigenous settlements andMaroons6 be respected, but this respect appearsto have been more a question of commoncourtesy than a legal treatment. Surinamegained its independence in 1975, and itsConstitution of 1987, reformed in 1992, does not

explicitly recognize the ethnic or culturaldiversity of the population, although it doesprohibit any type of discrimination.

In 1992, to put an end to an armed uprising thathad divided the country, the government and

rebel groups signed the Agreement forConciliation and National Development. In

this document, the government promised topass a law recognizing the territorial claims ofindigenous groups living in tribal communities,generating the institutions and procedures toensure land titling and land access for bothsubsistence and market-oriented exploitation byindigenous groups. In this same agreement, thegovernment promised to initiate a nationaldialogue on the ratification of ILO 169. None ofthese promises were ever fulfilled, and to date,Suriname lacks even the minimal legal

framework necessary to recognize the existenceof its indigenous peoples, let alone to guaranteetheir rights.


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Common Problems in the Legal

Framework for Recognition ofIndigenous Lands

There are many common threads amongcountries in the preceding discussion, both inthe elements that lead to successful legalframeworks for the support of indigenous lands,

and those that lead to less successful outcomes.Common problems affecting the legalframework for indigenous lands in LatinAmerica include the following:

Failure to develop the body of laws

necessary to operationalize the rights

guaranteed by the constitution or

international treaties. For example, inEcuador, while the Constitution guaranteesindigenous land rights, no law has been

passed to define how they are to be granted.The only course of action available is to usethe Civil Code, which is actually in conflictwith some constitutionally guaranteedcharacteristics of indigenous land, such asinalienability.

Time-consuming, overly complex, or

poorly conceived procedures for gaining

legal recognition of indigenous lands. InBolivia, for example, the procedures

required in order to resolve conflicting landclaims and assign indigenous land rights areextremely slow and burdensome. In thecase of Peru, indigenous groups seekingtheir lands must first be legallyincorporated, a procedure that can itselftake as long as gaining the recognition of theindigenous territory.

Imprecision in the writing of indigenous

legislation. In many cases, the legislationuses terms that are not defined, and whichare imprecise in meaning, or to which

different definitions have been given indifferent cases. Examples of this probleminclude the use of the concept ofautonomy and the mention ofrenewable and non-renewable naturalresources, all of which can be interpretedin various ways.

Failure to carry out adequate consultation

with indigenous communities. While afew states, such as Ecuador, Colombia, and

Peru, have tried to define participation in ameaningful way, most states have notengaged in meaningful consultation withindigenous communities over issues thatare in their vital interest. Often consultationis in reality simply the act of informingindigenous representatives of programs thatare already approved and about to begin,without giving them time to study theproposals, inform their own communities,or properly comment on them.

Lack of legal definition of ownership

rights over, and use and administration of,

natural resources in indigenous territories.

There is nothing intrinsically difficult aboutprecisely defining the rights indigenouspeoples have over natural resources on theirlands. Nevertheless, in the vast majority of

3


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the Latin American countries this legaldefinition is either ambiguous or completely

lacking. A contributing factor to thissituation is probably the desire of states notto lose control over the income fromconcessions of valuable natural resources.Where indigenous land rights are notrecognized, rights over natural resource useare unlikely to be legally defined.Conversely, where indigenous land rightsare well defined, such as in Colombia andPanama, indigenous rights over naturalresources have been recognized without

great controversy.

Lack of adequate legal definition of the

management of indigenous territories that

overlap with national parks or other

protected areas. In many countries, the

areas that harbor the most importantbiodiversity are the ancestral lands of

indigenous peoples. Since the regions legalsystem cannot recognize two titles to thesame land, there is often a conflict betweenareas that have been declared some type ofprotected area by the national government,but which are claimed as ancestral territoryby indigenous people. While a clearsolution would be to recognize indigenousland with restrictions that would preserveits biodiversity values, states have beenreluctant to do so, perhaps because, as

mentioned above, they fear losing control ofthe invaluable natural resources of thoseareas. Nevertheless, recently Colombia andBolivia have made some progress towardsresolving these contradictions, which giveshope that they are not insoluble.


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Case Studies in Indigenous Land

Tenure and Its Implications forNatural Resources Management

In this section, we will focus in on four of thecountries with superior legal frameworks forindigenous land tenureColombia, Costa Rica,Panama, and Peruand examine how the

differing bodies of law in each countrycontribute to or undermine the ability ofindigenous people to manage their naturalresources. The laws governing land rightsrecognition in these countries have several keycharacteristics which determine the degree ofsecurity and authority the indigenous peopleexercise over the land the state has recognizedas theirs. These include the following:

Land tenure regime: The character of the

right over land that has been recognized,which can range from outright (fee simple)ownership through several types ofrestricted ownership to simple use rights(usufruct)

Territorial recognition: Recognition of landin a form that corresponds to the concept ofan indigenous territory, as defined by ILO169

Natural resources rights: The sorts of rightsover natural resources ownership,administration, and use granted as aconsequence of the land right

Tenure security: The degree of security ofthe type of land title

Autonomy: The amount of autonomy inmanaging their own affairs that is accordedto an indigenous group as a consequence oftheir land rights, including legal recognition

as an indigenous group (personera jurdica),and their ability to use their own traditionallegal and justice systems

Legal recourse: The legal actions to whichthey have recourse in order to defend theirlands.

These characteristics also shape the ability ofindigenous peoples to participate actively in theconservation of the ecosystems and natural

resources on their lands, and they have beenrepeatedly identified by indigenousorganizations as the key attributes necessary fortheir acting as effective agents of conservation.

Below, we examine each of these characteristicsfor each of the countries and analyze theimplications for indigenous management oftheir lands. This information is summarized inBox 3.

Land Tenure Regime

In Costa Rica, the laws and regulations thattreat the subject of indigenous land tenure referto indigenous lands as reserves. Traditionally,in Latin America this word has referred to landsdedicated to a specific purpose, but over whichthe state retains final ownership. During the

4


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Box 3

Key Characteristics of Indigenous Land Tenure, by Country

Costa Rica Panama Colombia Peru

Land tenure

regime

Fee simple. Fee simple. Fee simple. Fee simple over

agricultural lands;usufruct overforest lands.

Territorial

recognition

Territories,

according to ILO169, but in

practice very fewof the recognizedindigenous areas

could bedescribed as

territories.

Not legally

defined, but inpractice

indigenous landsfunction as

territories.

Territories,

according to ILO169. In practice,

indigenous landsare recognized asreservation lands;

courts havesupported full

indigenouscontrol as acommunal

territorial space.

Territories,

according to ILO169. In practice,

indigenous landsdo not function as

territories, due to

reduced size,limited rights over

forest land, andthe fact that landscan be bought

and sold.

Natural resourcesrights

Resourceproperty rights

not addressed inindigenous laws;forest property

rights accordingto Civil Code;

guaran teedexclusive rights inuse and

administration ofresources on

their lands.

No clear legaldefinition. In

practice, widepower toadminister and

use naturalresources on

their lands.

No clear legaldefinition, but the

courts havesupportedexclusive rights of

indigenouscommunities to

administer anduse the naturalresources on

their lands.

Legally, the stateowns all

renewable andnon-renewableresources.

Indigenouscommunities

have exclusiverights to useresources on

their land.Communities

shareresponsibility foradministration of

resources withthe state.

Tenure security Strong tenure

security; noapparentcontradictions

with other laws.

Very strong

tenure security,since eachcomarca is

created by itsown individual

law.

Strong tenure

security; noapparentcontradictions

with other laws.

Laws provide for

strong tenuresecurity, but inpractice,

governmentnorms and plans

are detrimental tothe security of

collectivelandholdings.

(continued)


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Case Studies in Indigenous Land Tenure and Its Implications for Natural Resources Management

first phase of indigenous land recognition inCosta Rica, it appears that recognized landsfulfilled this traditional role as reserves. ButLaw 6172 of 1977 decrees that indigenous landsare the property of the communities, andsubsequent Supreme Court decisions have

confirmed the full ownership of their lands byindigenous communities.

Similarly, in Panama in the years preceding theConstitution of 1972, recognition of indigenousterritories was carried out under the legalconcept of reserves, and the law made clear thatfinal ownership rested with the state. Some of

the Kuna territories in San Blas were recognizedin this fashion. The 1972 Constitution, however,guarantees indigenous communities thereservation of the necessary lands, andcommunal ownership of those lands, to achievetheir social and economic development, and all

the laws that have created comarcas have doneso recognizing full indigenous ownership.

In Colombia, all lands that are recognized toindigenous peoples are recognized in the formof resguardos, or indigenous reservations, a legalconcept that dates to colonial times and whichhas been given full recognition in the

Costa Rica Panama Colombia Peru

Autonomy Legalincorporation of

indigenousgroups is

recognized;customary law forinternal affairs;

wide powers toadminister their

lands and

communityaffairs.

Legalincorporation of

indigenousgroups with

comarcas isrecognized; widepowers to

administer theirlands and internal

affairs according

to customary law;recognition of

comarcas aspolitical andadministrativeentities.


indigenousgroups is

recognized; widepowers toadminister their

lands and internalaffairs according

to customary

laws;reservations are

seen as politicalandadministrativeentities.


indigenousgroups is

recognized;formally, widepowers to

administer theirlands and internal

affairs according

to customarylaws, but in

practice the stateexercisessubstantialcontrol.

Legal recourse Same rights a sother citizens.

Variousinstitutions

charged withdefendingindigenous rights.

Comarcaauthorities are

public servantsand can initiate

judicial actions.Variousinstitutions

charged withdefending

indigenous rights.

Indigenousgroups can

initiate judicialactions. Various

institutionscharged withdefending

indigenous rights.

Same rights asother citizens.

Little judicialrecord of

upholdingindigenous rights.

Various

institutionscharged with

defendingindigenous rights.

Box 3 (continued)Key Characteristics of Indigenous Land Tenure, by Country


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Constitution. Historically, these reservationlands have always been seen as belonging as a

communal territorial space to the indigenousgroups. The highest tribunals in Colombia haverepeatedly acknowledged the full ownership ofthe indigenous peoples of their lands.

In Peru, the current Constitution clearlyrecognizes the different sorts of property in land(individual, communal, and associative), butdoes not state which type is appropriate forindigenous communities. The first Law ofNative Communities (1974) clearly stated that

indigenous communities would have fullproperty rights over their lands. But the secondLaw, which is still in force, makes an exceptionfor forest lands, which are to be ceded inusufruct to indigenous groups, while ultimateownership is reserved to the state.

Territorial Recognition

Three of the four case study countries (CostaRica, Colombia, and Peru) have ratified ILO

169, and consequently have formally acceptedthat indigenous groups are to be consideredpeoples and that their lands should berecognized under the legal concept of territoriesas defined in that Convention. While there isnot complete consensus on what this actuallymeans, for purposes of this paper, we considerthat the status of peoples means that indigenousgroups are associations that are perpetual andnot transitory, in contrast to legal associationssuch as cooperatives, which can be established

and dissolved over time. The legal concept ofindigenous territory is one in which indigenouspeoples retain full ownership of their lands.Territories have the character of beinginalienable, un-mortgageable andimprescriptible, so that indigenous territories,like the peoples that own them, are perpetual innature.

Among our case studies, Costa Rica andColombia have ratified ILO 169, and have

fulfilled their obligations vis--vis thisinternational agreement by embodying in theirlaws or constitutions language guaranteeingthat indigenous lands are inalienable, un-mortgageable and imprescriptible, making themvirtually untouchable legally. Although Peruhas also ratified ILO 169, its current constitutiongives indigenous people the right to buy andsell their lands, and although it states theimprescriptible character of the lands,limitations occur in the event that lands are

abandoned; the territoriality of indigenouslands proclaimed in ILO 169 is not thereforesupported by Peruvian law. Panama is aparticularly interesting case, in marked contrastto Peru. While Panama has not ratified ILO 169,the body of laws that has supported theestablishment of the comarcas clearlydemonstrates that Panama, more than any otherLatin American country, recognizes theterritorial nature of indigenous lands and thestatus as peoples of indigenous communities.

This can be deduced from the size of theterritories recognized to them, their authorityover use and management of their naturalresources, and from the autonomy of their self-government within their territories.

Natural Resources Rights

The majority of indigenous peoples living inforest areas depend on the natural resources oftheir lands to fulfill their subsistence needs.

Hunting, fishing, gathering of forest products,and small garden plots still form the basis oftheir household economy. The security andpermanence of their control and use of thenatural resource base is actually more importantto most indigenous groups than directownership of the land itself. The demand for


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Case Studies in Indigenous Land Tenure and Its Implications for Natural Resources Management

ownership, in fact, derives from the need toensure their access to these resources, so it is of

particular importance to examine how thedifferent national-level legal regimes handle thisaspect of indigenous ownership.

In Costa Rica, the legal norms do not expresslystate whether the state or the indigenous groupscontrol natural resources on indigenous lands.The Indigenous Law and the Forestry Law seemto indicate, however, that at least the forest itselfwould belong to the titled indigenouscommunities, since titled lands are considered

to be under private ownership, which includesthe ownership of forests on those lands. Theindigenous law has two other key provisionsthat govern natural resources rights. One saysthat the communities will have full legalpower to acquire rights and contract obligationsof any type, while the other states that onlythese indigenous people will be able toconstruct houses, fell trees, exploit timberresources or plant crops for their own benefit.These provisions demonstrate that the

indigenous communities have wideadministrative power over natural resources ontheir land, and that the right to utilize thoseresources is exclusive to their communities.

In Panama, it is not yet clear if the staterecognizes the authority of indigenouscommunities over natural resources on comarcalands. The Constitution defines the goods andrights of the State without referring to forestsand wildlife, which would seem to imply that

on private lands, the titleholder would have theright to those natural resources. The laws thatrecognize the comarcas do not explicitly defineauthority over natural resources, and theOrganic Law (carta orgnica)of most of thecomarcas also do not address this topic.However, the Organic Law of the Ember-Wounaan comarca in the Darin states that the

natural resources that exist in the comarca arethe collective patrimony of the Ember-

Wounaan people. Under the assumption thatthis provision is not meant to give a right to theEmber-Wounaan that other indigenous groupsdo not enjoy, this statement clearly indicates anintention to grant indigenous communitiescontrol over at least some natural resources.Finally, all the laws and regulations of thecomarcas do grant a high degree of autonomyand authority to the indigenous communities inthe administration, management, and use ofnatural resources on their lands.

In Colombia, neither the Constitution nor thelaws clearly designate whether the indigenouspeople or the state has ownership of naturalresources in indigenous territories.Nevertheless, the Constitutional Court hasinterpreted provisions in the Constitution andILO 169 to conclude that indigenous groups doown natural resources on their lands,unequivocally stating that the recognition ofthe right of collective property of the resguardos

by indigenous people includes their ownershipover renewable natural resources. In terms ofadministration, management, and use of naturalresources, the Constitution itself givesadministrative authority to the indigenousauthorities, also stating that one of their explicitfunctions is to ensure the preservation of thenatural resources on their lands. Additionally,the regulations that establish the managementand governance systems of the resguardosrecognize specific responsibilities of the

indigenous authorities in natural resourcemanagement, which should be carried outaccording to the customs and use patterns of thecommunities.

Peru is one of the Latin American countries thatcategorically decrees in its body of law that bothrenewable and non-renewable natural resources


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are the patrimony of the Nation, and that thestate is sovereign in the use of those resources.

Both the Law of Native Communities and theLaw of Campesino Communities give localcommunities exclusive rights to utilize thenatural resources on their lands and a certainamount of decision-making power over thoseresources, but they are severely constrainedwithin the limits of their traditional usepatterns. Formally, the responsibility foradministering those resources is shared betweenthe local communities and the state.

Tenure Security

There are many elements that contribute to therelative security of land tenure, but here we willfocus on two: whether the titles have beengiven following the proper regulations andprocedures for that purpose, and whether thosenorms that govern land recognition are inconflict with other laws or regulations withinthe legal regime of a particular country.

Costa Rica is a simple case in which theresponsibilities and procedures for indigenousland recognition are clearly stated in the body oflaw and regulations. There do not seem to beany serious contradictions or ambiguitiesbetween these responsibilities and proceduresand other laws and regulations, such as couldlead to legal questioning of titles granted toindigenous groups.

In Panama, the Constitution defines as the

responsibility of the state the recognition of theland claims of indigenous groups. The state haschosen to fulfill this responsibility through theemission of a special and specific law for eachcomarca, which has served to make these titlesvery secure. One small area of ambiguity,however, is the lack of definition of rights andresponsibilities when an indigenous area

overlaps with a protected area, which is not anuncommon problem; this could in some cases

affect the rights indigenous groups have inthose areas.

In Colombia, the procedures for recognizingindigenous lands have been defined in a bodyof la

Documents

Indigenous Land Right