The Paradox of the Indigenous Question in Colombia

Juan C. Herrera

Universidad de Los Andes

Introduction

According to the 2018 national census, almost two million Colombians are indigenous. This is equivalent to 4.4% of the country’s total population. Official figures show that 50.1% of indigenous Colombians are women, and 49.9% are men. The majority of indigenous Colombians, 79%, live in populated and dispersed rural areas. The remaining 21% live in towns with urban characteristics.

There are 787 indigenous reserves, distributed among 102 registered indigenous peoples, that occupy 28.9 million hectares, equivalent to a total of 25.3% of the national territory. As a point of reference, this area represents approximately seven times the size of Switzerland.

The distribution of these indigenous territories is marked in purple in this map. Given their geographic features and pristine conditions, Indigenous lands attract the attention of national and foreign actors seeking to carry out (legal and illicit) activities in agriculture and resource extraction.

Regulatory and Jurisprudential Contextualization 

The rights of indigenous peoples in Colombia, like those of other historically marginalised groups, were not constitutionally recognized until the 1991 Constitution. In fact, it was the first time in 181 years of Colombian republican history that indigenous peoples were represented with voice and vote before the National Constituent Assembly.

Several articles in the Constitution recognize the multicultural nature of the country and the special status of indigenous peoples. These include recognition of Colombia’s ethnic and cultural diversity (Art. 7), its many languages (Art. 10), the principle of citizen participation (Art. 40), a reserved indigenous seat in the Senate (art. 171), as well as the creation of indigenous territories as (self-governing) authorities with judicial jurisdiction and the power to administer and manage their own affairs and policy development (Arts. 246, 286, 287, 287, 329 and 330). 

According to Article 330, the indigenous territories are governed by councils formed and regulated according to the traditional practices and customs of their communities, and exercise the following functions: (i) implement regulations for land use and settlement of their territories; (ii) design policies, plans and programs of economic and social development within their territories, in accordance with the National Development Plan; (iii) promote public investment in their territories and ensure its proper implementation; (iv) collect and distribute resources; (v) ensure the preservation of natural resources; (vi) coordinate the programs and projects promoted by the different communities within their territories; (vii) cooperate with the maintenance of public order within their territories in accordance with the instructions and provisions of the national government; (viii) represent their territories before the national government and other entities of which they are members; (ix) attend to matters stipulated by the Constitution and the law; and (x) exploit natural resources without harm to the cultural, social and economic integrity of indigenous peoples.

In conformity with this constitutional mandate, the exploitation of natural resources in indigenous territories shall be carried out without detriment to the cultural, social, and economic integrity of the indigenous peoples. In the decisions adopted concerning such exploitation, the government should promote the participation of the representatives of the concerned communities.

Over the last thirty years, to comply with the aforementioned constitutional mandates, more than forty legal instruments (including laws and decrees) have been issued to validate and regulate the direct interests of Indigenous peoples. Furthermore, during these three decades, the Constitutional Court of Colombia has developed and given scope to the constitutional provisions through a rich case law that includes about 150 judgments, which I have assessed in-depth here.

The Legal Paradox and the Current Stakes

One of the developments that has arisen from these multiple interventions and expansions of the indigenous question by the constitutional judiciary is that, through its case law, the Colombian judiciary has established free, prior, and informed consent as a fundamental right. At the same time, the judiciary has expanded the duty of consultation beyond the preliminary stages to include the periods during and after intervention in Indigenous territories.

Precedents of the Colombian Constitutional Court have resonated beyond the country’s borders, to the extent that the highest standard of protection of Indigenous rights in Latin America has been established through a judicial dialogue with the Inter-American Court of Human Rights.  

All this is proof that, from a legal point of view, indigenous rights have been taken seriously in Colombia for the last 30 years. However, this has had adverse side effects as well.

A deleterious consequence of proactive jurisprudence, according to Gargarella, is a judicialization of the indigenous question that threatens to remove the communities’ control over decisions intended for their own benefit. In fact, due to the normative and regulatory blockage, given that prior consultation is now a fundamental right, the issuing of a ley estatutaria (Statutory Law) is required. This is a special type of legislative instrument that requires an absolute majority, and it must be debated in Congress and approved within a legislative period of one year.

Once enacted, the approved legislation is subject to automatic (or instant) review by the Constitutional Court. If the standard set by the case law is not met, the bill must be resubmitted in parliament in light of the judiciary’s objections. 

The core of the problem lies in the direct or indirect creation of a veto power. In this regard, the Court has clearly stated that there is no veto power and that the discussion should not be conceived  in terms of who vetoes whom, but rather as a dialogue between equal, involved parties working across difference. 

The Colombian government, the private sector, and several leading civil and indigenous organizations that do not represent all of the 102 officially recognized peoples, are trying to discuss a bill that, paradoxically, is stuck due to the lack of prior consultation. Given the sort of legal lacuna due to the absence of regulation, investments that have been initiated or proposed in several parts of the country have stalled and the State liability, in terms of economic assets derived from national and international commitments, could be extremely high.

While this regulatory deadlock is perpetuated, different —illegal— actors are aggressively intervening in Indigenous territories through logging and mining. These are but two among the many tangible and intangible threats to distinct groups and natural resources.

Conclusions 

The paradox of the indigenous question in Colombia, and the legal protection of indigenous rights over the last 30 years, is perhaps best explained though the metaphor of a blanket that is too short to cover both shoulders and feet at the same time.

There has been an awareness of the need to regulate and protect the rights of indigenous peoples as a historically discriminated community within Colombian society. This awareness has, at least, translated into actions equivalent to covering the chest of the subject and keeping the core warm. But the corollary effect has been to expose the extremities, leaving the feet uncovered. This has occurred through an excessive judicialization of the indigenous issue, regulatory paralysis, and loss of control over illegal activities that threaten indigenous lands.

Given that the colonial period on the continent began in 1492, and independence came around 1810, colonial rule has lasted some 318 years. The slightly more than two hundred years of the republican era of ‘independence’ are not counted equally by all Colombian and Latin American citizens. For many Indigenous peoples, the long night of these 500 years continues. Nevertheless, the last three decades of transformative public law in Colombia have been a period of advances that augurs the first signs of light. The Colombian experience, in such a short period, is full of positive and negative lessons to be shared and studied, which are highly relevant for other countries and jurisdictions as well.

Dr. Juan C. Herrera, Consultant on Public Law and Latin American Affairs. Lecturer and Research Fellow, Universidad de Los Andes, Bogotá (Colombia).

Suggested Citation: Juan C, Herrera, ‘The Paradox of the Indigenous Question in Colombia’ IACL-AIDC Blog (14 October 2021) https://blog-iacl-aidc.org/independence-and-indigenous-peoples/2021/10/14/the-paradox-of-the-indigenous-question-in-colombia.