SECURING COMMON PROPERTY REGIMES IN A GLOBALIZING WORLD

SECURING COMMON PROPERTY
REGIMES IN A GLOBALIZING WORLD

Synthesis of 41 Case Studies on Common
Property Regimes from Africa, Asia, Europe
and Latin America.

FRANÇAIS

ESPAÑOL

ACCESS TO RESOURCES VIA COMMON PROPERTY REGIMES

Customary law and practice forms the basis of group tenure and collective resource management in many parts of the world. According to a recent UNDP discussion paper, more than 90 percent of the rural population in Africa accesses land and natural resources via customary tenure systems; among this figure, there are an estimated 370 million people defined as poor. (Wily, 2006) A large number of cases demonstrate the authority of customary and reciprocal institutions in the regulation of common property regimes. In at least 28 of the 41 cases contributed to this study, there are indications of some level of reliance on customary authority (both with and without state support) for regulating access to forests, fisheries and lands that are managed as common property.

Access through Customary Institutions

Customary systems generally have a collective element to resource management, e.g., forms of group decision-making that determine access and use, or joint use and management of resources in common areas. In at least 14 of the cases, rights to access common property (as well as individual lands under communal tenure) are based on some form of group membership, including ethnicity, village affiliation or residency. In some cases, outsiders are excluded from accessing common property under all circumstances. In others, exclusion is seasonal, such as in pastoralist settings where exclusion occurs in the dry season. A few cases described the flexibility of customary authorities to negotiate access with outsiders, such as migrant farmers.

One common factor in customary-based common property regimes, according to the cases, is the significant role that group identity plays in managing access to land and resources. Group identity can be conferred in different ways, often based on lineage, clan-affiliation or long-term residency. In the case study from India 's Meghalaya State , rights to communal lands are derived through residency, which is itself a function of clan affiliation. Land and resource allocation and distribution is the function of recognized customary institutions, often being restricted to members who share a common lineage. Individual rights of constituent families or individual members are recognized and allocated on a long-term basis, with limitations on land transactions. Transfer is limited to inheritance in families and no sales are allowed, especially to outsiders. The duration of rights is often determined by evidence of continuous use (Kumar and Nongkynrih 2005). Lineage-based access to common property was most commonly described in cases from Africa - e.g., Cameroon, Ethiopia, South Africa and Zimbabwe - but also in studies from India, Peru and Scotland (AFRA 2005; Guzman 2005; Kumar and Nongkynrih 2005; Mbog 2005; Mgugu 2005; Seki 2005; Unruh 2005).

Beyond providing the basic rules that determine who can access what resource, when and with what responsibility, customary institutions are the basis of norms of reciprocity among subsets that have authorized access to resources. Land access in pastoralist areas of Ethiopia are cemented by reciprocal social practices, e.g., exchange of milk and animals for land access, or "bond friendship" in which households keep cattle on their land on behalf of herd owners, in exchange for keeping a portion of their products (Aredo 2005a). In some cases, this mutual exchange has such a long tradition that the source of livelihood for family groups has become highly interdependent. (1)

Customary institutions may also provide authorization for access to common property by non-community members. Because of the connection of common property rights to ancestral or lineage-based claims, migrants and other newcomers may face difficulty gaining access to land and other natural resources. In the Chabe community of Benin , migrant farmers and herders have gained access to common land following negotiation with the agani , the family groups which are native to the area and who control local decision-making institutions. Migrant farmers borrowed land from the Chabe lineages, while transhumant herders were provided with areas for seasonal settlement. However, any interventions on the land that may confer more permanent rights, such as tree planting, were restricted from migrants and farmers. Implementing negotiated agreements are difficult, however, in part because of different concepts of land rights held by migrant farmers and pastoralist herders - this creates need for agani to facilitate negotiation between the two groups as well ( Dangbégnon 2005).

How do customary institutions manage access to resources as common property? As described in the examples above, the case studies illustrated that group identity and the respect for customary authorities may play a role in deterring violations of collective tenure arrangements. Compliance is more often than not based on collective respect for local authorities over and above the possibility of punishment for infringements. However, among Somali pastoralist communities where clan affiliation is strong, grazing rights are also enforced via collective guilt and group deterrence . The idea of collective (clan) guilt as opposed to individual guilt and responsibility for infractions, along with the threat of punishment and retaliation by opposing clans, prevent clan members from breaking rules (Unruh 2005). In other examples, such the case study from Saigata village in India , material sanctions serve to enforce the collective interest. The village forest committee set fines that are graduated to fit the nature of the offense (Ghate 2005).

Religious norms and beliefs also play a role in maintaining adherence to rules governing common property. In several cases, use and access to the commons is restricted by local religious institutions, both in terms of kinds of use, e.g., prohibitions in northern India on collecting leaves in spring season, or where resources may be accessed, e.g., delineation of sacred forests in the Halimun area of West Java, Indonesia and in the Himachal Himalaya region of India (Galudra 2005, Santosa et. al. 2005). Violation of religious norms can cause an individual to be shunned, with social, economic consequences.

Dialogue between groups is also fundamental in establishing rules and resolving conflicts. In the Chabe case from Benin , local leadership encouraged the different groups to negotiate boundaries, which has led to an agreement and co-existence of hunter and herder groups in the area (Dangbégnon 2005). Among the Karamajong cluster in Uganda , dialogue between the elders of different groups allows them to define rules for conflict management. However, more and more pastoralists ignore the rules and decisions taken through this system, which leads to an increase in armed conflict (Mwebaza 2000).

Within customary systems of common property, balancing the rights of the individual and the group in an equitable manner may be a challenge. While group rights may serve to protect the rights of the group as an entity, women's rights or the rights of lower castes continue to be constrained. Women's access to common property is often indirect, through male relatives, i.e., husbands or sons (see for example Karangathi 2005). This form of secondary access may serve to protect and maintain minimal rights for women under two conditions: (a) as long as they are married/and their husband is alive, and (b) for as long as common property is not individualized.

Externally, customary systems often have little or no legal standing relative to state-backed systems. This creates difficulty for resource-users to defend their rights to common property as established under customary tenure, particularly if other groups or interests bring forth resource claims that have backing under state law.

Common Property and Roles of the State

In 14 cases, or about one-third of the total, the state plays some role in supporting or recognizing access to resources held under common property regimes. Only in some of these cases, however, do statutory laws exist that explicitly recognize common property regimes ( Japan , Peru , Scotland , South Africa and Uganda are among these examples). In other cases, forms of state action have taken or are taking place, which also provide some degree of state recognition to common property regimes.

In the statutory legal systems described in the case studies, written titles are the most common form of proof of land rights. In some countries, though, there are now laws that allow for certification of communal property, through which the common property rights of community associations are recognized. In Scotland , the 2003 Land Reform Act similarly provides for communities of small-scale farmers known as "crofters" to make collective purchase of land that has been cultivated under customary practice (Seki 2005). Uganda 's 1998 Land Act provides a framework for group ownership, including a process to form and register Communal Land Associations (Obaikol 2005). This does not mean, however, that resource users necessarily manage communal land as common property; communal titles may be provided for land that is, in practice, individually used and managed. Within communal lands, individuals have also established their separate parcels, in accordance with customary law and practice.

Some statutory laws recognize collective rights, but only of certain groups or in certain areas. In India a tribal rights bill has been recently proposed at the national level that would give ownership rights over land to tribal communities in India (Ghate 2005). In 1997, the Philippines passed a similar bill, the Indigenous Peoples Rights Act (IPRA), which recognizes the rights of indigenous communities to ancestral lands and provides for a framework through which these land claims are registered with the state. (2)

In several cases, under statutory law forest land is property of the state or the nation (e.g., India , Indonesia and Niger ). Local residents may not have state-recognized ownership rights to forest land or other forest resources under these systems, but only usufruct and sometimes management rights at best. In practice, as the cases from Indonesia and Niger illustrate, there may be space for negotiation between communities and the state to establish rights claims and make them more secure (Bachir et. al. 2005, Galudra 2005, Santosa, et. al. 2005). Alternatively, as described in the case from India 's Orissa state, an "assumed commons" develops, in which communities use and manage lands as commons so long as government agencies remain inactive in the management of areas under state tenure (Singh 2002). In these cases, the state may create forms of rights for local communities through pieces of legislation, although these stop short of providing a state legal framework for recognizing common property nationwide.

Joint Forest Management in India represents a longer term effort by the Indian government to grant and provide statutory backing for local forest users. Under these programmes, local committees are registered as trusts and thus become recognized bodies. This is intended, at least in principle, to benefit forest resource users by allowing them to receive support services from the government and participate in benefit-sharing. However, communities' enthusiasm for joint projects with government is often coloured by a general distrust of forest departments. In the case from Saigata village, even though the forest department instructed all divisions to implement joint forest management, it took four years of negotiation before communities registered their committees. In addition, it was not until the state intervened that women were provided an opportunity to participate in JFM council meetings (Ghate 2005).

State action of a different kind played a key role in recognizing collective rights in Guatemala , where in 1984 the government established agrarian communities as a counter-insurgency move. In this case, farmers' cooperative associations ( Empresas Campesinas Asociativas or ECAs) were created by government. Initially, the government sought to control their leadership and disassociate ECAs from the communities, leading to corruption within the associations. Five years later in 1989, at a time of political change in the country, a new ECA was formed by local farmers in the Santo Domingo municipality. A more genuinely community-based (i.e., bottom-up) approach has helped address farmers' land access problems, and also has supported collective sales and actions to improve farmers' market strength (Vay Ganon 2005).

Devolution and Decentralization

Beyond recognizing local use and creating minimal usufructuary rights, the case studies indicate that the devolution of state functions to lower administrative units and, in certain cases, to communities is impacting common property regimes. Some cases illustrate how this form of state action, often in collaboration with local users, can serve to strengthen the rights of local communities and the basis for their organizing to manage the commons, including in building their accountability to different groups of resource users. Other cases identify aspects of decentralization that may weaken common property regimes, particularly when the commons are managed under customary law and decentralization occurs via state action, but the linkage between the two is inadequate.

Under state devolution and decentralization programmes, such as those in Burkina Faso, Ethiopia, Mali, Niger and Uganda, specific legislation recognizes local management groups, committees or councils and accord them rights to use and manage the resource base (Bachir et. al. 2005; Hamadoun 2005; Obaikol 2005; Unruh 2005). (3) Under its Ethnic Federalism policy, the Ethiopian government allows local customary authorities to assume a stronger role in managing conflicts over common lands (Unruh, 2005). (4) Afari leaders are able to draw on the support of the national government for this effort, which has included the establishment of special committees to mediate land disputes.

Decentralization may weaken commons management by establishing a parallel local administrative structure whose authority undermines customary institutions. In Zimbabwe , the 1998 Rural District Councils Act provides natural resource management powers to rural councils - functions formerly carried out by local chiefs. This has contributed to the decline of customary institutions for managing the commons. The chiefs have no legal power to create and enforce rules on natural resource management in communal lands. It now rests with the Rural District Councils (RDCs) who can make decisions without consulting the chief. In Muzarabani, even low-level leaders from the Village Development Councils or councilors can challenge a chief's decision. Nonetheless, people have continued to apply local regulations, although in a very limited way (Chidawkai 2005).

By contrast, decentralization in Thailand has empowered local government authorities but without reducing the authority of existing village institutions to manage community resources (Kijtewachakul 2005). The sub-district administrative organizations (SAOs) have the ability to tax land where sor-por-kor (a form of state-recognized land certificate) exists and to manage a budget for forest conservation activities. SAOs also allocate individually managed cropland. Village committees retain the authority to mediate and negotiate land access among villagers, particularly lands that are used for shifting cultivation.

Access through Projects

In at least three cases, state-sanctioned wildlife or conservation projects in national parks or forest reserves provide opportunities for communities to negotiate agreements with their governments to improve tenure security. One common element of these cases was the involvement of international organizations in the funding and/or implementation of these initiatives.

In Thailand, the implementation of the Upper Nan Watershed Management Project (UNWMP), a joint project between the Danish and Thai governments that began in 1997, has created a channel through which forest resource users can negotiate some recognition of their access and use rights (Kijtewachakul 2005). Through this project, villagers were able to negotiate for zoning forests between conservation and utilization areas to ensure recognition of their access and use rights to valuable timber and non timber products. The project was able to facilitate this outcome largely by enhancing the bargaining power of communities with the state and providing space and opportunity for the users to interact with state officials.

Similarly the Takieta Joint Forest Management Project in Niger was started by SOS Sahel in 1995, with the aim of promoting processes that would lead to decentralized and sustainable management of the Takieta Forest Reserve, taking into account the needs of the different user groups. By the end of the project, the Forest Service signed an agreement recognizing and supporting participatory management of the forest by adjacent communities:

In the Takieta case from Niger , the forest user Association Kou Tayani, working with facilitators of the Takiéta Joint Forest Management Project, outlined a process to identify resources, exchange information with other user groups, convene multi-stakeholder forums to determine common concerns and approaches and to elect representatives from among different users to serve on a commons management group. Over a five-year period, these processes - which were made possible in the first place through the state's agreement to devolve natural resource management - helped to bring about changes in social relations and improve the ability of user groups to manage and resolve conflicts over the commons (Bachir et al. 2005).

Projects have played a similar role in Nepal , where the state claims ownership rights to forest areas. Through a partnership with the International Fund for Agricultural Development (IFAD), the Nepalese government now leases forest lands to community groups, targeting poor people, women and the disadvantaged. In this case, with support via an international development project, the state has re-created group rights in areas where common forest lands previously existed and is still recognized and understood by local residents. Leasehold areas are degraded forest lands, so there is less competition for their use by more powerful people (Shrestha 2005).

As will be discussed further, state-driven conservation may also be an obstacle to strengthening common property regimes, particularly where there are now channels for communities to participate in projects and for local tenure systems to be recognized and incorporated. While the positive examples were few, they nonetheless illustrate how state action and projects may, with the appropriate design, interface to create more secure tenure and access opportunities for local communities that manage resources as common property.

Community Action and Common Property Regimes

Systems of common property may also emerge through organized action by communities, either for management and regulation of resource use, or action aimed at defending the resource from unwarranted incursion. In Saigata village, in the interior of India 's Maharashtra State , the self-organization of a forest users association in the 1970s, in response to deteriorating forest condition, established clearer rights and responsibilities to common forests (Ghate 2005). Active collective management of forest resources has prevented resources from being treated as open access, facilitated by strong leadership from within the community:

In this case the growing denudation of the forest disturbed Mr. Suryabhan Khobragade, a resident of Saigata. He had witnessed the changes in land-use patterns since the days of the ' Malgujar ', when he was working for him as child labourer. Between 1955 and 1975, the forest around Saigata had changed from thick canopy forest to degraded land. Yet, he was also aware of the fact that it would be difficult to dissuade the fellow villagers from giving up their income generating pursuits without offering them an alternative. After many discussions with like-minded people in the village, it became clear that asking the fellow villagers straightforwardly to stop anti-forest activities would not yield the required response. Instead, something positive needed to be done circuitously, to bring the community together. Community action first began with setting up of 'Krishak charcha Mandal' (farmers' discussion group) where majority of the farmers shared his concern about the deteriorating condition of the forest, resulting in scarcity of fuel wood and fodder. After many rounds of discussions, it was thought that a plan was needed to start the process to rejuvenate the forest. Mr. Khobragade initiated an effort to first identify the dependence of each household on forests. (Ghate 2005)

This process led to the establishment of a local forest protection committee, which is now elected by the forest users' association. The committee has taken steps to make common property rights more secure through more sustainable use of the forest. It established, for example, different forest zones and regulations such that harvesting could take place in one zone, but not in all simultaneously. Uses were also restricted - in one zone, fresh wood cutting was prohibited; another was set aside for cutting grass to use as fodder (Ghate 2005).

In Laid village in Scotland and among campesino communities in Peru , proposals for mining exploration generated self-organized community mobilization (Seki 2005; Burneo 2005). In the case from Peru , poverty rates are higher where mining takes place - 50 percent and 77 percent in the two regions of the country where gold production is highest. Campesino communities are not able to oppose concessions, but according to the laws, they may receive compensation. In recent years, this situation has pushed communities to organize themselves in defense of collective rights, in the face of the threats and conflicts posed by mineral exploration, such that collective action may increase the security of their rights (Burneo 2005).

Collective action is also taking place in Indonesia with communities reclaiming common lands that lie within national park space, often working together with non-governmental organizations (Galudra 2005; RMI 2005). In West Kalimantan, Indonesia, the NGO-facilitated Community Forestry Strengthening Program ( Program Pemberdayaan Sistem Hutan Kemasyarakatan - PPSHK) has complemented local collective action, such as community mapping, with an advocacy campaign in the provincial capital. In the absence of a statutory framework that recognizes indigenous rights to land and territory, this combination has provided some improvement in tenure security for common property users, via informal agreements between communities, their NGO partners and provincial officials. These examples demonstrate how collective action by communities, including that undertaken in alliance with supportive outside organizations, can contribute to expanded and increasingly secure access. (5)

Summary

On the one hand, customary systems remain a common means of providing or managing access rights to the commons by individuals, households and groups. This may include groups and individuals that are not necessarily 'members' for as long as the non-members are willing to negotiate and follow the general rules of access, particularly those rules that discourage the creation of permanent rights that may compete with legitimate members. On the other hand, customary systems are vulnerable to non recognition by state systems and often fall short of being representative of the interests of all relevant community members. As this paper will discuss further, these are key issues to consider when evaluating options to improve tenure security within common property regimes, particularly the security of access rights for vulnerable groups and poor households.

Meanwhile, the state can create, encourage, or sustain community rights and access to resources in various ways - national legislation to recognize common property is one means, but not the only state action being observed. Through a more involved process of decentralizing authority and rights, states may provide a basis for creating, and strengthening common property regimes. By mandating joint management, the state also creates access and legitimizes local use. In other cases, tension may still remain between local bodies and the state, even though state recognition has been given.

Access created through the state programmes can also pose challenges. While having the potential to strengthen common property regimes and secure the rights of women and the poor, there is the risk that decision-making and benefit flows may be captured by more influential groups. Yet, this situation might also provide a chance that would otherwise not exist, for the poor and marginalized to access natural resources. In addition, there is need to harmonize overlapping sectoral laws and policies during decentralization processes to minimize the risk of cross-sectoral conflict.

In summary, access to common areas can be created and sustained in several ways: through customary systems and institutions, including those based on group identities, through the state's recognition of common property claims and provision for use and/or management rights, through project-based innovations, and also through community organizing, whether self-organization or with some form of external facilitation.

(1)Reciprocity was also evident in a study of irrigation as common property in Japan , even though the common property institutions in this case based on a statutory framework rather than customary laws. Among Japan 's collective irrigation associations, rules concerning common water resources are rarely violated, in part because reciprocity and group identity are strong norms in rural Japanese society (Sarker 2005).

(2) For more information on IPRA and its implementation, see www.pafid.org , www.tebtebba.org , www.ncip.gov.ph .

(3)In this paper, decentralization refers to the provision of state authorities, such as the power to establish laws or generate public revenue, to local government. Devolution refers to the transfer of management or implementation functions from central institutions to local institutions, such as resource user associations.

(4) "With the change in government in Ethiopia in 1991, the country has pursued an 'ethnic federalism' approach to governance whereby administrative boundaries (Regions) were redrawn along broad ethnic lines ... While the current Ethiopian constitution indicates that all land belongs to the state, much power has been given over to these ethnic regions to govern their own affairs . The constitution also gives the regions the power to recognize customary dispute resolution mechanisms." (Unruh 2005)

(5)For more information on PPSHK's activities in West Kalimantan , see www.jeef.or.jp/EAST_ASIA/indonesia/PPSHK.html , www.landcoalition.org/partners/ppppshk.htm .

Land, Dignity and Development