Synthesis discussion on communal and individual rights to land

In this discussion it became clear that in terms of choosing between individual or communal titling and the formalization of rights, the most important determinants are the history and land use of an area. Depending on these notions titling will have the most effects. Moreover, as stated, the decision of the titling should be decided by the people themselves instead of organizations filling in this gap. There is a lot of knowledge present in communities which should not be overlooked.  

This discussion also gave us more insight on how to avoid exclusion in titling. Exclusion in communal titling is a pitfall for not only women but also for people with little political capital. Especially in the case of individual titling people with less political capital or women are excluded. Within communal rights they are more included in the processes of decision making. In communal titling, communal participation, organization and cohesion are key.  Communal titling often works as a problem solver, disputes are set aside and rules are set up for natural resource management. Costs are also an important  issue that need to be considered in this context, communal titles are more beneficial for the entire community since it is so much cheaper compared to individual titling.

Concluding as Yongjun so nicely put, land tenure can only be sustainable if it matches the local need for sustainable development and governance. Yongjun posed some very interesting questions which may be interesting for a discussion in the future concerning among others how to keep farmers on the land for farming, how are titles perceived, and what constitutes or determines tenure security. I hope this discussion gave you new insights and ‘food for thoughts’.

I would like to give a special thanks to the people participating in the discussion, this outcome would not have been possible without you.

See you on the Land Portal!

Best, Nienke

Hereby the literature and websites that were referred to as interesting to look at:

http://www.ntw.110mb.com/NTWmodel/NTWModeloverview.htm

http://www.laolandissues.org/2012/02/21/press-release-on-communal-land-t

http://www.terrainstitute.org/pdf/Part%20of%20Making%20Land%20Governance%20Real.pdf 

http://www.fao.org/docrep/013/i1945e/i1945e01.pdf 
http://www.namati.org/newsposts/community-land-titling-initiative-report-launch/

www.iasc-commons.org

http://www.capri.cgiar.org/pdf/CAPRIWP35.pdf
http://www.capri.cgiar.org/pdf/CAPRIWP46.pdf

http://www.namati.org/work/community-land-protection/phase-one-findings-and-reports/

http://www.ashgatepublishing.com/default.aspx?page=637&calcTitle=1&title_id=10890&edition_id=14381

Thank you all for this great discussion and all your interesting comments!  I think this information is very valuable in continuing to think about land rights and land titling. Since today was the last day the discussion is open I am posting  summary of the main points that were shared on wednesday.

Best, Nienke

Dear all,

Thanks for the interesting and thought-provoking comments you posted! I would like to share the feeling that the existing studies on the topical issue of land tenure security have been overwhelmed by an overt emphasis on security. Although security is essential to the livelihoods of poor communities in any country context, farmers may ask us the question of what we mean by that or why we feel that they are in a desperate demand for security.

Probably in most contexts, be it a developed or developing country, farming is not an appealing enterprise. It is probably a last resort to eke out a living for farmers when other better economic opportunities are not provided. Many farmer groups except the elderly perceive farming as harsh and even backwards, which is not in their favour to be tied up with the land. They wish to give up their land for other more promising opportunities, which may explain why rural-urban migration has gained prominence in both Asia and Africa.

In the face of land expropriation, conflicts between farmers, governments and companies arise not solely because of the lack of tenure security. For instance, in China, farmers have already enjoyed 30-year extendable land use rights, and the law requires local compliance in a stricter sense. Do you think that if the land is privatized or its long leasehold granted to the farmers, things may turn better? Probably not. There are many other factors for tenure insecurity; as a result, mere legal and policy improvements may not render effective solutions. Land titling to improve tenure security can be perceived very differently by local communities as strengthening land administration or local power structures rather than empowering themselves. They may feel less secure about other opportunities they would like to pursue as they may feel more tied up with the land. Of course, one can easily say that those who do not want to stay on the land can sell or transfer it to others. In practice, this orthodox remains unrealistic given a lack of more prospering opportunities in both rural and urban areas as well as market failure.

What I have been trying to explain is that land tenure security could have been more realistically defined in exploring its wider dimensions. In other words, what constitutes or determines tenure security? What are the conditions and dynamics of land tenure? Even when farmers enjoy absolute security in terms of individualized titles enshrined by law, how long their sense of security can last remains mystic. When other economic, political, social and biophysical conditions change or become less favourable for their livelihoods, tenure insecurity may reoccur. To a certain extent, back to the issue of land expropriation, presumably farmers are given more than enough compensation for the loss of land and other materials and for their future welfare, who would care about the land? They would be so happy to leave the land for other things, of course, not everybody.

We need to think beyond a narrow definition of land tenure security as mainly about legal rights but its broader dimensions. Based on my fieldwork in both poor and relatively rich areas in China, I realized that types of land tenure are actually more dynamic than what we may think along the lines of individual or communal tenure. In fact, both in combination can even work well in a specific location when other economic and political conditions are supportive. In other words, land tenure can only be sustainable if it matches the local need for sustainable development and governance. These three elements are interwoven and interdependent. In designing or improving a specific land tenure system, we should rethink about the following questions:

1) What are the current patterns of land uses? Are they sustainable from a biophysical perspective?

2) Is the current land tenure system conducive or obstructive to sustainable land use and rural development?

3) How local communities have organized themselves in managing the land towards sustainable land use?

4) What are the main issues surrounding poverty, inequality, and governance in a local setting?

5) How farmers can be organized in such as way that their land uses can be more sustainable, economically viable and politically participative?

6) What local government should do to support more realistic land use, social development and inclusive governance that really puts the farmers at the centre of development?

Therefore, I think that we should broaden our studies into the wider dimensions of land tenure and try to answer the question of what it is and how it can be sustainable from a sustainable development and pro-poor governance perspective. It is no doubt a difficult subject of inquiry. I would be very happy to exchange views on this with you!

Further info: my book: http://www.ashgatepublishing.com/default.aspx?page=637&calcTitle=1&title_id=10890&edition_id=14381

Processes and impacts of rangeland fragmentation on group rights

Many parts of the rangeland in the Horn and East Africa have been highly fragmented, putting the pastoral systems in these areas at risk of complete collapse. The pastoralist production system suffers as it is dependent on having access to communally held seasonal grazing areas and water sources, and when migration routes to grazing and water get blocked, pastoralist production becomes impossible on the remaining areas of the rangeland.

The root causes and processes of land fragmentation vary, but some common themes exist:

i) Lack of support for pastoralism and inappropriate land use planning.

There is a general lack of support for pastoralism as the most appropriate land use system for the majority of dryland areas and a general misunderstanding of the interconnectedness of pastoralism, where the different parts of the pastoral system (social and ecological) are highly interlinked. Inappropriate development and land use planning systems fail to accommodate for this. Planning and tenure (where it exists) focus on small administrative units and individual resources. This threatens the health of the rangeland and its ability to support pastoral systems.

ii) Conversion for agriculture

Of increasing concern is the trend of leasing large tracts of land in pastoral areas for commercial investment (both foreign and national). In Kenya the Tana Delta is a primary target for this investment and the planned LAPSET (Lamu Port-Southern Sudan-Ethiopia Transport) Corridor across northern Kenya will open up pastoral areas to (both positive and negative) interventions. In Ethiopia in 2009 the government launched an investment plan to provide 3.7 million hectares of land for agricultural development. To date around 1.3 million hectares have been designated—the majority of which is found along the major rivers in pastoral areas. Taking land from along rivers prevents the access of pastoralists to vital dry season grazing areas.

iii) Conversion for ranching and individual landholdings

Ranching has been introduced to many countries in East Africa. In Uganda for example, the Ankole rangelands form part of the western section of Uganda’s cattle corridor. Over a period of fifteen years 50 ranches of around 1,200 hectares (12 sq km) each were established, with many given to absentee landlords. The large numbers of pastoralists who were displaced were forced into a protracted migration across southern and central Uganda as they tried to access grazing in protected areas and remaining common property areas. Across Kenya settlement has been encouraged in pastoral areas, and some districts—such as Machakos¬—are now totally converted to agriculture. The northern rangelands have been carved up into individual commercial ranches and farms. In Laikipia 48 individuals control 40.3% of the land (937,583 hectares) as commercial ranches or conservancies (the latter with an area dedicated to wildlife conservation). Many are held without clear legal title. In addition there are 23 large-scale farms covering 1.48% of Laikipia. The farms are fenced off and rarely provide livestock corridors for pastoralists. 27.21% of the land is under small-holder agriculture. Most pastoralists are limited to 13 group ranches in the drier northern parts covering 7.45% of the district (Letai 2011). Corruption and bias in land allocations in Kenya has contributed to the displacement of the poorest in particular, and the marginalisation of women (Mwangi 2007).

Additional causes of rangeland fragmentation include: mineral exploitation, the invasion of alien plants such as Prosopis juliflora, conflict and the establishment of protected areas.

Impacts of rangeland fragmentation

Rangeland fragmentation is one of the key reasons why the ability of pastoralists to overcome drought has been severely reduced. With less grazing land available, the poorest pastoralists in particular are unable to retain herds of a sufficient size to survive protracted dry periods. As resources become scarcer, remaining patches are ‘privatised’ by more powerful community members—keen to maintain their own access to them. Such individualistic attitudes are new, and disadvantage the poorest even further by affecting the traditional customary safety nets and livestock redistribution practices that used to support them. Now neither the government nor customary governance systems are effectively protecting resource access for the poorest. As a result new vulnerable groups are emerging in pastoralist communities across the region. These include: asset-poor households; small stockowners; families with few or no working members who are unable to access distant resources including water; widows; aged persons; and households with limited access to social networks. Pastoral resources outside the control of development schemes are now gradually coming under the possession of urban-based traders and herd owners, who exploit the uncertainty surrounding pastoral land rights.

Women and men experience these changes differently. When land tenure is formalised women have not automatically benefited and in some cases have lost out. Weak customary systems no longer protect them. Women are often left as ‘de facto’ heads of their households but without the decision making power or a public voice in community discussions. However it seems that women are better able to make the most of new and opening opportunities and in particular for business development, working well as a group. Though workloads have increased, many women are happy to have a more independent income. However those women who have had less exposure to alternative lifestyles can feel highly insecure about the future.

Recommendations

In order to better secure rights for rangeland users the causes, trends and impacts of rangeland fragmentation need to be better understood. Development and land use planning need to occur at a scale and in a manner that is appropriate to pastoral production systems (usually as a landscape or rangeland), building on pastoral knowledge and tried and tested systems. Land and resources require protection such as (serviced) migration routes for pastoralists. The most appropriate land tenure system for a given context needs to be identified and developed with rangeland users: in particular it should protect the poorer less powerful groups in society. A system of ‘nested governance institutions’ have been identified as the most appropriate.  In some cases rights exist yet pastoralists do not know about them: as such, awareness and understanding needs to be improved. Investments need to be made in secure cross-border movement and regional pastoral development.

These issues are discussed in more detail in the full research report, which can be found on the land portal: “Broken Lands, Broken Lives?”

In response to Amanda's question about impacts on women, it is certainly true that many communal property systems do not give women equal property rights, but individual titling has often been worse, unless there are very particular efforts to make sure that women have rights.  Esther Mwangi did some excellent studies of the subdivision of Maasai Group ranches in Kenya.  These were collectively titled, and some petitioned to subdivide and title individually.  Women lost out (see the links below for 2 papers on this)

http://www.capri.cgiar.org/pdf/CAPRIWP35.pdf
http://www.capri.cgiar.org/pdf/CAPRIWP46.pdf

The work of Rachel Knight and colleagues at Namati on implementation of collective titling is worth looking at:
http://www.fao.org/docrep/013/i1945e/i1945e01.pdf
http://www.namati.org/newsposts/community-land-titling-initiative-report-launch/

The question of individual or collective titling should certainly be decided by people based on the history and land use of an area.  We know a lot about what kinds of resources are generally best managed as common property, and what it takes to make that effective.  For more on this, including links to thousands of references in the Digital Library of the Commons, see www.iasc-commons.org (International Association for the Study of the Commons)
 

Weekly digest

Thank you all for the interesting comments on the discussion! From the remarks the main points that need to be considered in communal land titling are community cohesion and leadership. The land use plan presented by I.P.A Manning, draws upon customary rights and uses guidance of a trust who safeguards the trust funds. These funds are used for appropriate development plans, projects and programs having the full participation and agreement of the whole community. Here again communal participation, organization and cohesion are key.  What also comes to fore in the discussion is access to knowledge, this is something that is often lacking. Exclusion in communal titling is a pitfall for not only women but also for people with little political capital. There is a great role for the investors in working towards more sustainable land rights. Their policies need to be aimed towards sustainability and should be conflict avoiding. Interestingly in the communal land titling case in Laos it is forbidden to use the land title for buying and selling purposes, transfer, collateral, rent to or concession to outside companies. This measure can already solve the issue of having individuals threatening the tenure situation within a community by wanting to sell land to outside actors.  

An example of communal engagement is even found in places where land titles are already formalized and respected. This initiative in Sydney tries to engage people in neighborhood activities. This would have very important social, environmental and economic benefits. With the right sort of rental security and supports, a vibrant, productive, inclusive and sustainable neighborhood culture could be encouraged. So, even in western societies the importance of communal organization is deemed important.

For further reading on communal titling I would like to present a paper by J. David Stanfield on community based rangeland administration in Afghanistan. This is a very interesting article when it comes to their approach to communal titling. In Afghanistan land belongs to the state but is used by many people. Conflict among farmers and livestock dependent families is not uncommon because of the decreasing supply of adequate rangelands. But also because of the rights that are unclear, differences on preservation of the land, and contradictions between governmental agencies and local communities which, by custom and necessity, use the rangelands. As described in the article the ministry in Afghanistan stimulates community based management. This is stimulated to draw upon community knowledge and the practical understanding communities have of local issues. So, in this approach to titling, they directly engage the community. The positive features of this approach is that the system will be viewed as transparent, equitable and legitimate. Also, implementation costs can be kept to a minimum and public access to records will be improved. What is said is that the administration of this community based system should be more effective in avoiding conflicts and misunderstandings, since traditional leaders in villages have the authority for confirming legitimate users that governmental officials do not have. For the entire article see the following link.  

http://www.terrainstitute.org/pdf/Part%20of%20Making%20Land%20Governance%20Real.pdf 

Concluding I think we already have made some important statements on communal titling and how local communities can be strengthened. But as Richard rightfully mentions, “with governments’ addiction to economic growth and the power of corporations, how can this be done?” So, there are still many question left in this debate which are hard to answer.  

Please keep sharing your experiences. The information on individual land titling in developing countries is still rather scarce so I would like to stimulate you to post more of your expertise!

Best,

Nienke

Dear Amanda,

thank you for your comments, these are certainly important issues concerning land tenure and sustainable titling. Can you maybe share your own experiences concerning these aspects?

regards,

Nienke