Who will protect the land?
A May 2021 protest in Paro Nacional Colombia (Oxi.App/Medellin/WikiCommons)
They called him ‘the protector of the river of five colours’. Javier Francisco Parra Cubillos came from the Sierra de la Macarena, an isolated mountain range in northwest Colombia, where the unique red, purple, yellow, green and blue algae in the Caño Cristales river give it the appearance of a liquid rainbow. When he was gunned down on 3 December 2020, reportedly by a couple on a motorcycle, he joined a long list of environmental campaigners murdered for trying to defend the mountains, jungles and rivers of their country.
Colombia is the deadliest place in the world for human rights activists and those trying to protect the environment. In 2020, 177 campaigners were murdered in the South American country by guerrillas of the former Revolutionary Armed Forces of Colombia (FARC) and other armed groups – the highest rate in the world, according to the human rights organization Global Witness. Covid-19 has only made things worse, with such groups violently imposing quarantines and restrictions on movement, in order to tighten control over land and the valuable trade of coca, the main ingredient in cocaine. Like Cubillos, many of those who are dying are engaged in a struggle to protect the unique natural ecosystems of Colombia.
It’s been almost six years since the government struck an uneasy pact for peace with the FARC. A key part of persuading them to lay down arms was a government promise of land reform – both titling peasant lands and returning land stolen by armed groups during the 50-year civil war. But peasant farmers and indigenous communities are still waiting for promised land restitution.
Rural areas make up 75 per cent of Colombia’s territory – some have been overrun by commercial interests, further displacing indigenous people and resulting in the destruction of vast rainforests. As Colombia gears up to a presidential election in May 2022, legal scholars and human rights organizations New Internationalist has talked to fear it is more at risk than ever of falling back into unchecked conflict. Yet a progressive movement for agrarian justice offers a kernel of hope, as communities go to ever greater lengths to make claims to land. Peace in Colombia – and the survival of some of the most important environmental ecosystems in the world – might depend on them.
Thriving biodiversity
Colombia spans three tectonic plates. The Amazon jungle lies to the south and expansive plains, including the Colombian Andes, lie to the northwest. The second most biodiverse country in the world after Brazil, its location in the centre of Latin America also makes Colombia a critical point in the migratory path of birds and animals. But the country’s biodiversity is under threat. As much as 13 per cent of the species in the forest along the Pacific coast are endangered, along with a rare and delicate ecosystem of tropical forest.
South of here, hidden away from the world, in one of the most remote areas of Colombia, is the Sierra de la Macarena, a region spanning some 5,250 square kilometres. At its centre, lies one of the oldest mountains in the world: a huge, 400-million-year-old sandstone outcrop which stands more than 2,600 metres high. Many species of flora, fauna and wildlife found up here are unique to this region as only a few species can survive the humidity and daily rain. They include the Andean condor, the planet’s second-largest flying bird and the woolly monkey, which moves between the tree tops using its tail; multiple species of hummingbirds feast on different flower nectars.
The Orinoco basin lies in the heart of the Sierra de la Macarena, where the river runs through forests and flooded plains. For centuries, its remote location protected it from development. But over time, humans also learned to withstand the flooding and the humid climate. Cattle ranching is big business here as the ground, which is too poor for arable farming, is perfect for grazing animals. And since the 2016 peace accords, it remains a stronghold for dissident members of the FARC. Research and work to protect the environment in such areas can be perilous.
Victor Gutierrez-Velez left Colombia in 2006, at the peak of the civil war. Growing up he experienced violence, including car bombings and assassinations. As a young researcher studying biodiversity, he was sometimes stopped by armed groups when he went to do field work and detained for several hours. He would listen in terror while his captors debated whether or not he was worth kidnapping. In the end he left the country and he now works in the US as a geographer at Temple University, Philadelphia. His work involves using satellite imagery to track biodiversity in his home country from afar.
Gutierrez-Velez reports that land-use change – the conversion of natural habitats into agricultural land – is the main driver of biodiversity loss in Colombia. He explains how FARC rebels, rightwing paramilitaries and drug gangs have expropriated land for coca plantations, mining and cattle ranges. Deforestation was falling slightly before the 2016 peace agreement. But afterwards it began rising again – by 23 per cent in 2017, according to figures from the environment ministry, and 25 per cent in 2018. About 200,000 hectares of forest are cleared each year in Colombia.
Armed groups contribute to the loss of biodiversity in two main ways, Gutierrez-Velez says: by clearing the land for economic development and, due to the absence of the rule of law, making it harder to implement consistent, well-rounded environmental policy. In the end, he adds, everything comes back to the same issue: the lack of land reform. ‘Land is at the core of violence in Colombia historically. Unfortunately, it continues to be a feudal country, in the sense that having control over the land itself is a source of power and wealth.’
Illustrations: Léo Hamelin
The business of land
Colombia’s unequal land distribution dates back to colonial times. Ever since its independence from Spain in 1821, the country has implemented a nationwide land-reform programme. It’s based not on breaking up large farms, but on distributing vacant publicly owned land to farmers and landless peasants. Now, Colombia is one of the most unequal countries in the world when it comes to land distribution. In 2016, Oxfam reported that 84 per cent of small Colombian farms were squeezed into just 4 per cent of productive land.
Today, more than half of Colombia’s 110 million total hectares are registered as privately held property. Around 32 million hectares are designated as indigenous reserves. Between 1901 and 2012, the state granted nearly 23 million hectares of land to peasants and agricultural businesses – the equivalent of nearly 20 per cent of Colombia’s total area. But peasants have been prevented from acquiring much of the land to which they had rights by the high cost of the titling process, landowners blocking access to titles or uprooting peasants once they acquire them.
The current legal system offers little in the way of solutions. Ten years ago, Natalia Ruiz was working as a legal scholar at the National University of Colombia. It held regular clinics in which law students would offer assistance to people free of charge as part of their training. But it was days of travel away for the peasant farmers who were most in need of support. ‘These small-scale farmers contact universities and say: “Please help us”,’ Ruiz remembers. ‘Many of them have informal agreements to work on the land. There is no civil contract, so they can’t go to a civil court. It’s not a labour situation, because you don’t have a labour contract. You try to address the problems but the students are only there for six months and the problems take years.’
Now a postdoctoral fellow at Georg-August-Universität in Göttingen, Germany, Ruiz works on articulating the legal basis for the development of a system of judges to serve small farmers and indigenous people in Colombia. She says Covid-19 has made existing problems even worse in the cities. The state has redirected funding away from rural areas, to cope with rising poverty and Venezuelan migrants – even though many urban problems have their roots in the countryside.
‘The small farmers are suffering – the lack of justice impacts their wellbeing, their credibility,’ Ruiz says. Without a right to the land, the farmers cannot protect the environment from deforestation associated with large agrobusinesses and rebel groups. Research has shown that when peasants are supported to steward the land, their identity as farmers – and their wellbeing – is restored. ‘One, they have a special connection with nature,’ Ruiz says. ‘Two, they protect against food insecurity. And three, they help to maintain forestry and conservation projects. But if there are any problems, for example between farmers and indigenous people, and there is not a single judicial mechanism to solve conflict. We need judges to solve the problem.’
Sinking Noah’s Ark
Travel east from the Sierra de la Macarena, into the Colombian Amazon, and you reach the savannas surrounding Marpiripán. Here, small farmers have been routinely displaced as commercial farming has taken hold. This area has totally transformed from 30 years ago when it was the great epicentre of Colombian coca farming. Today, the landscape is dominated by large-scale commercial eucalyptus farming. Environmentalists are fearful: in neighbouring Brazil, the lucrative tree-crop has sucked streams dry and left the land in a state of drought.
But perhaps most striking of all are five large cattle farms spanning more than 980,000 hectares, which cross the Amazon, from the savannas of La Fuga to the Inírida River, taking up more than a third of the Nukak reserve. Rodrigo Botero, director of the Foundation for Conservation and Sustainable Development, explains that Nukak indigenous people have been so utterly displaced from the area by commercial interests that their culture is dying. ‘Restoration is urgent,’ he says. ‘This would be the first great indigenous reserve of Colombia that would be completely lost.’
Reporters and environmentalists describe the horror of descending by plane into the Amazon amid live forest fires, scorched jungle and white clouds of smoke. Blazes along roads carve routes through the reserve. The road fires signal that new settlers have arrived here, exiling the indigenous inhabitants of the land.
This matters to everyone. ‘A single national park in Colombia can have all the biodiversity of Europe,’ Botero says. ‘We are talking about sinking Noah’s Ark, where all the genetic heritage of humanity was. This biodiversity is associated with preservation by indigenous groups, who have a gigantic, super-sophisticated knowledge of the biodiversity that constitutes their cultural heritage.’
The idea that humans are connected to global ecosystems has been long lost in much of the Western world. What is currently understood as environmental conservation in the West has developed in four distinct phases. Before the 1960s, conservation-thinking was dominated by what Georgina Mace, the late British ecologist and conservation scientist, calls ‘nature for itself’. This approach prioritizes wilderness and natural habitats, generally without people. This thinking resulted in special areas of conservation or protected zones that still characterize approaches to conservation today.
In the 1970s and 1980s, conservationists began to develop strategies to reduce or reverse human threats to species and habitats. Mace calls this ‘nature despite people’. Ideas about ‘minimum viable population’ sizes and ‘sustainable harvesting levels’ emerged during this period and persist to this day. By the late 1990s, however, as extinction rates increased, it was obvious that conservation efforts were failing. Conservationists started to think more about ecosystems than single species, with the idea of creating sustainable ecosystems to provide benefits and goods for people, or ‘nature for people’.
Most recently, the emphasis has moved away from what nature can do for people, towards a more dynamic perspective, taking into account two-way relationships: what Mace calls ‘people and nature’. Because these three theories have developed in just a few decades, each still underpins contemporary approaches to conservation. Even the most recent, ‘people and nature’, does not capture the relationship between many indigenous people and the natural world. For many communities, the world is non-dual: humans and the natural world are interrelated and interdependent. There is no separation between the material, the cultural and the spiritual. The indigenous people of Colombia believe that humans are not the only beings with agency, but that this agency extends to hills and caves, water and houses, plants and animals. Everything lives and is sacred.
Belkis Izquierdo was born in Nabusímake, the political and spiritual capital of the Arhuaco people, deep in the Sierra Nevada of Santa Marta. She explains that the indigenous tribes of this region call it ‘the heart of the world’ or U’munukunu. The land of the Sierra Nevada is described as a living physical entity, with snowy peaks at the head, the rivers as veins and vegetation as hair.
Found on the northernmost tip of Colombia, the Sierra Nevada de Santa Marta is the highest coastal mountain range in the world and a unique ecosystem. Four indigenous peoples inhabit this land: the Arhuaco, Wiwa, Kogi and Kankuamo. These four tribes believe that what happens there happens everywhere: when its rivers run dry, the ice caps melt and the species die out, the same happens across the world. They call themselves the Elder Brothers, the guardians of the Earth. The rest of modern civilization are the Younger Brothers, who are destroying the ecosystem of the mountain – and the entire planet – with logging, mineral extraction and coca plantations.
Belkis Izquierdo became the first indigenous Auxiliary Judge of the High Council of the Judiciary in Colombia in 2014, where she is responsible for co-ordination and co-operation between indigenous justice systems and the wider justice system. Izquierdo says that spiritual leaders, or Mamos, consider the relationship between humans and the Sierra Nevada reciprocal and interdependent, in both positive and negative ways. In other words, when humans harm non-humans or nature, an energy imbalance is created that can cause global warming, water scarcity, disease and land infertility.
When the land speaks
Unlike with displaced peasant farmers, the collective rights of indigenous people, including the right to self-determination and to land and territory, have been recognized by international human rights regimes and the Colombian Constitutional Court. It is therefore legally accepted that indigenous people have a ‘special relationship’ with land that far outstrips Western ideas about conservation.
Izquierdo believes that Colombia has the potential to blaze a trail. It could become a laboratory where indigenous people, together with policymakers, transcend the limits of different approaches to conservation and land protection. She notes that a 2011-decree (law 4633) gave a legal basis to recognize Colombia’s territories as ‘a living whole’ that ‘suffers damage when it is violated or desecrated by the internal armed conflict’. She describes this as ‘more rights of the territory than rights over the territory’. The 2016 peace agreement also promised to take into account the ‘principles, logics and rationalities of the ethnic peoples’ justice systems’ as part of the Special Jurisdiction for Peace (JEP).
Even though major obstacles remain, Izquierdo is optimistic. ‘How can concepts of damage to mountains, hills and rivers be included into the legal arena? This is the great challenge the Colombian transitional justice process faces,’ she says. When the land speaks – she asks – can the Western world hear?
Luis Armando Tolosa Villabona, a Colombian lawyer and philosopher, says that this idea – that what goes on in the Amazon (or other indigenous territories) impacts the whole world – is not just the preserve of indigenous tribes. ‘The forest and the sea are the main means to oxygenate the planet and prevent global warming,’ Tolosa says. ‘Meanwhile this whole area of the Amazon is the preferred pantry for supplying the world with raw material. And that has a direct impact on indigenous groups, because the Atrato River and its fish are poisoned with mercury.’
‘Colombia seems extremely progressive [in some ways], because the rights of the Atrato River have been recognized, the Amazon has been recognized, animals are considered subjects of law – and that is very advanced if we compare it internationally,’ says Ruiz. ‘But in practice we see illegal mining continuing, and the Amazon continues to be destroyed. How can we ensure that the judgments of the Constitutional Court, the judgments of the Supreme Court of Justice have a greater impact?’
Tolosa says Colombia’s legal judgments have the same problem as the Paris climate agreement: the question of who should enforce them. An area like the Amazon is subject to many overlapping interests, from gold buyers, timber exporters, traffickers and investors in soy and oil. ‘They are unwilling because of the resources available there. They need to create 20 jobs to search for mercury, magnesium, gold or other products that we need for computers, phones and batteries. So, there is a conflict. That is why the answers here have to be very creative.’
Failed reform
Unlike indigenous people, Colombia’s peasants have not been given the right to self-government. However, under the constitution, the state has an obligation ‘to protect the social, economic and cultural rights of peasants’ and says that the ‘participation and inclusion of peasants in the economic, social and political order must be strengthened’. Agrarian reform – that is to say, the government-backed redistribution of agricultural land – is conceived of, in the Colombian political agenda, as a peace agenda with a promise of more equal access to land and reparations for victims of the conflict.
Putting power over the land into the hands of small-scale peasant farmers and indigenous people is key to its ecological protection. Colombia has had three major – failed – attempts at agrarian reform. The first, in 1936, was introduced to address the global economic crisis of the 1930s, which had led unemployed workers – now peasants – to occupy fertile land. This law, introduced by the radical liberal President Alfonso López Pumarejo, worked to formalize the land occupied by peasants, creating judges to rule on land possession actions, agrarian prescription and disputes arising from evictions. But by 1943 the judges had been abolished, and their function passed to civil circuit or district courts.
In the decades that followed, disputes over land were passed back and forth between civil and labour courts, meaning farmers never had proper access to justice and disagreements over land remained unresolved. Then in 1961, Carlos Lleras Restrepo, then leader of the Liberal Party, introduced the Colombian Institute for Agrarian Reform (INCORA), which aimed to distribute public lands, expand zones of colonization, offer credits for rural development and improve rural infrastructure through road and irrigation projects. The programme was largely ineffective. It never envisioned the nationalization of privately held property or land.
Miguel Samper, former director of the Colombian National Land Agency, says that in Colombia the main division between the Liberal Party and the Conservative Party has always been the matter of agrarian reform. ‘For conservatives, it has always been necessary for agricultural holdings to be on large estates, while historically for liberals it has always been a necessity to do so on small farms,’ he says. That explains why the agrarian reforms of 1936 were truncated by successive conservative governments, while the 1961 reforms were limited by President Misael Pastrana Borrero, who came to power in 1970.
The third attempt at reform, Law 160, was introduced in 1994 and still applies today. This legislation attempted to combine two visions – one, to promote rural development by creating the Campesino Reservation Zones, and two, to grant unoccupied land to farmers who have none. On paper, this would be done by the development of Territorial Organizational Plans in every municipality, setting out the rules for use and cohabitation of the land that exist in that area.
But almost 30 years have passed and those plans have yet to be drawn up, partly because municipalities still have little access to information about how much land is available. Hence, in 2016, the state agreed to grant unoccupied land to companies, providing they are remote and of low productivity. This modifier to the 1994 law prioritizes large scale capital investment over protecting the rights of farming communities and environmental conservation.
The Campesino Reservation Zones were set up as co-operatives, to prevent farmers from selling off small pieces of land and ending up landless again. But these have also not worked as expected, according to Arnobi Zapata Martínez, a renowned Córdoba social leader and president of the National Association of Peasant Reserve Zones. In these zones, 96,000 peasant farmer families voluntarily eradicated 36,000 hectares of coca. But after President Iván Duque Márquez took office in 2018, peasants began reporting that they were not receiving the substitution payments nor the technical assistance promised to help them transition to food crops. ‘This was a historical milestone in the country, because the cultivation of coca is the only thing that generates economic returns in the territory,’ Zapata Martínez says. ‘But it has been four years since they signed the collective agreement, waiting for the government to implement the [substitution] programme. The peasants are practically going hungry. There is even a risk that they will replant coca.’
Ruiz says the desperate situation of peasant farmers means they are even less likely to seek justice. ‘In this moment, no one wants to go to judges, because they don’t want to be attacked by criminal groups,’ she says.
Illustrations: Léo Hamelin
A life’s mission
Today, Colombia still lacks comprehensive rural reform. Miguel Samper describes this as his life’s mission. Colombia still imports 30 per cent of its food and a land titling programme would go some way to addressing this, as well as solving the problem of illicit crops. ‘If we implement a truly comprehensive, rural reform, we can fix the food issue, environmental problems, productivity and illicit crops, reducing violence associated with drug trafficking and dispossession.’
A key commitment of the 2016 peace agreement was defeated in the Senate on 21 June 2021. The ‘Agrarian Specialty’ law would have established a system of judges specializing in rural issues, such as recovering unused public land. The bill passed the House of Representatives, winning support from President Duque’s rightwing and conservative Centro Democrático party. But it ran into problems in the Senate.
One of those who opposed it, the ultra-conservative María Fernanda Cabal, has spoken out in defence of large landowner’s interests. The Centro Democrático senator’s husband leads Colombia’s cattle rancher federation, Fedegán. In the run up to the debate in the Senate, it was reported that Cabal had urged peasants to call their senators to oppose the law, for fear that it would create a system of judges ‘to persecute rural property’. ‘María Fernanda Cabal and her husband José Félix called the Palace and the Minister of Justice and told him that the bill cannot go forward,’ says Miguel Samper.
In the end, the Senate failed to table a discussion on it. ‘Building an agrarian judicial branch was never a priority for the Colombian government or the judiciary,’ Ruiz says. ‘The Colombian legal system is controlled by the elites, resulting in a permanent [incompatibility] between fundamental constitutional rights and judicial rulings.’
The defeat of the agrarian justice bill is part of the government’s strategy to reduce the peace agreement to the fulfilment of a handful of commitments, according to Plataforma de DDHH, an autonomous network of more than 100 human rights organizations throughout Colombia.
Since President Duque came to power, the main commitment of the peace agreement has been breached; instead of dismantling paramilitary structures and bringing security and access to justice to regions affected by the conflict, the opposite has been true. Colombia’s war with the FARC is indeed over but the fighting continues — against other Marxist guerrillas, dissident former members of the FARC, organized crime groups, drug traffickers and the remnants of rightwing paramilitaries. Dissident-FARC rebels now number 2,500, according to intelligence reports leaked by the Colombian media at the beginning of 2021. Meanwhile violence by these various groups against social leaders and human rights campaigners has increased. In the last year, there have been a total of 950 attacks, ranging from threats and disappearances, to sexual assault and murder. ‘The government, on the one hand, tries to deny the situation by manipulating the numbers and, on the other, continues to neglect the tools incorporated in the peace agreement to deal with it,’ Plataforma de DDHH says.
Rachel Cox from Global Witness, an international NGO, says that this is a trend globally, not just in Colombia. Indigenous communities tend to be most at risk because they are engaged in self-determination and protecting the environment, and can get caught up in conflicts over natural resources as governments occupy land for business developments. ‘As they encroach onto indigenous areas or where these communities are making claims around land rights, we tend to see an increase in attacks,’ Cox explains.
She says there is a need for an institutional framework and infrastructure that enables human rights defenders to carry out necessary consultations, prevent the installation of projects linked to abuses and guarantee the right to health and the environment.
Illustrations: Léo Hamelin
‘They take every day’
As the peace agreement falters, attacks on indigenous people increase and rural communities find themselves without access to justice. At the end of 2019, close to eight million people were registered as internally displaced in Colombia, the highest number on record – and in the world. Without the formalization of land through agrarian reform, the illegal and speculative market for land will continue to grow, resulting in more displacement, alongside massive deforestation.
‘Without titles, they take every day,’ says Tolosa. ‘We need land judges with enough teeth and competence to investigate, with resources and training and knowledge, the Colombian conflict and the democratic solution. And they have to pay attention to the problems of the Earth.’
Ricardo Camilo Niño Izquierdo is co-ordinator of the National Commission for Indigenous Territories, which was created in 1996 as a ‘space for dialogue and agreement’ between the government and the indigenous peoples of Colombia. He says that indigenous people are too often seen as ‘the stick in the wheel of development’.
‘In other words, we are opposing large infrastructure that leads to the potential development of the country, which will bring economic dynamism,’ he says. ‘But they do not recognize the importance of traditional knowledge for conservation. If we oppose it, we are the obstacle. We are putting ourselves to the test right away.’
Niño says there is no formula for solving the complicated issue of land rights in Colombia. But in a country that has lived through war and violence, he says conflict resolution must be through dialogue. ‘Dialogue is a mechanism through which all types of conflict can be resolved,’ he says. ‘The national government has to be the guarantor of that process.’
Ruiz says you can see the mutation of violence in the Sierra de la Macarena, the mountain range that Javier Francisco Parra Cubillos was murdered for trying to defend. ‘Now we are seeing illegal groups enter, increasing deforestation and using small farmers to plant coca. In order to block that process, the state has to enter, not just with programmes or with foreign aid, but with real agrarian reform.’
The upcoming national election creates an opportunity to look at whether Colombia’s peace agreement has a future. There is widespread public dissatisfaction. Colombia has been experiencing an economic crisis and in 2021 the government faced the biggest demonstrations the country had seen in decades. They were sparked by a proposed tax rise and spilled over into anger about growing inequality, human rights violations and lack of implementation of the peace deal. The police came down violently on protesters, to an international outcry.
‘People ask me, with all the money pouring in internationally to support the peace agreement, why doesn’t the government achieve long-term results?’ Ruiz says. ‘I say: if there is no legal clarity of the situation of the land, this is going to be a very fragile project. The future of the peace agreement is at stake.’
Hazel Sheffield is a freelance investigative journalist based in Hastings, UK. She is the founder of Farnearer.org, a project documenting alternative economies in Britain, and writes about economics and business for publications including the Financial Times, the Guardian and The Atlantic.
