SECURING COMMON PROPERTY
REGIMES IN A GLOBALIZING WORLD

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

• PREFACE
• EXECUTIVE SUMMARY
• INTRODUCTION
• ACCESS TO RESOURCES VIA COMMON PROPERTY REGIMES
• TENURE SECURITY UNDER COMMON PROPERTY REGIMES
• THREATS TO COMMON PROPERTY REGIMES
  - Markets
  - Demographic Factors
  - Legal and Governance
    Frameworks
  - Conflicts and Conflict
    Management
• EXAMPLES OF REFORM AND INNOVATION
• CONCLUSIONS
• REFERENCES
• ANNEX A: BRIEF DESCRIPTION OF CASE STUDIES
• ANNEX B: CASE STUDY FRAMEWORK
• ABBREVIATIONS
• Other Useful Resources on Common Property

TENURE SECURITY UNDER COMMON PROPERTY REGIMES

This section discusses tenure security under common property regimes, how rights to resources are guaranteed and/or secured under common property, and what challenges exist in situations where tenure is not secure.

As discussed earlier, the potential benefits of managing resources through common property regimes may be possible so long as tenure is secure. Practitioners and scholars often consider tenure security as a function of the breadth of rights, the duration of those rights and whether the rights are assured, i.e., can be exercised without disruption or threats into the future (see Place, Roth, et. al. 1994; Schlager and Ostrom 1992; Wilusz 2006). (1)While breadth and duration are important features of security, some scholars suggest that the assurance of the rights or whether the rights can be exercised continuously without threat or disruption is a superseding aspect (Ostrom, 2000)

In the context of common property regimes, assurance can be broken down further and considered from at least two standpoints: (a) the ability of a group to exercise its collective right to resources, vis-à-vis competing claims from other interests (including the state), and (b) the ability of individuals, households or other sub-units of the group to exercise their rights - particularly access rights - to common property, vis-à-vis other members of the group. This section will address these two elements of tenure security, drawing on the findings of the case studies.

In addition, communities and households that use natural resources have their own perceptions of what tenure security means in practice. Among these, affordability and accessibility of property rights regimes are two key concerns that were identified. This is significant when considering ways to assess changes over time in tenure security (including, but not limited to, common property settings), and to identify measures through which communities and state institutions may improve tenure security in ways that protect both livelihoods and environmental sustainability.

Assurance at Group Level

The right and ability to exclude "outsiders" (those who are not considered members of the group or community that holds rights to common property) is a key concern in a number of the cases. This is particularly evident in communities that face encroachment - such as migration into customary lands in Zimbabwe , exploration by mining companies in Peru , or memory of apartheid-era land seizures in South Africa - such that assurance of resource rights at the group level is a critical dimension of tenure security for communities (AFRA 2005; Burneo 20005; Chidakwai 2005).

One reason that this assurance at the group level is such a concern in many of the cases is that the local, customary-based systems of authority - which underpin many of the common property regimes presented in the cases - are losing power as state administration, markets, increasing populations, migration and other pressures increase. This is noted by the Mau Community Forest Association (MACOFA) in its case from Kenya , where there has been a gradual alienation of the community from resource governance by existing forest administrative structures. This alienation has created opportunities for the collusion of local leaders and government officials to appropriate common lands and monopolize benefits from the commercial exploitation of the natural resources (Karangathi 2005). Sometimes, customary control may be so challenged that land and resources previously managed as common property have deteriorated or are deteriorating into an open access situation, in which there are limited or no group controls over resource use.

Even though several countries examined in the cases recognize some forms of collective natural resource management, most statutory systems do not treat customary norms and rules as legitimate sources of rights to land and other resources. This weakens the assurance of group claims vis-à-vis other parties, particularly in cases where competing claims have been supported (both legally and extra-legally) by the state.

Several case studies noted that state policy and laws are based solely on systems of state or individual ownership, excluding the possibility of common property rights. After independence, the Malian state claimed a tenure monopoly in the country and modern law took precedence over customary practice (Hamadoun 2005). In this and other cases, the problems associated with the imposition of "modern" rules are: a different logic to rules and regulations other than that known and practiced by local users; difficulties in applying and enforcing the state's rules; and no provision for multiple uses of resources (e.g., conservation is equated with stopping of any exploitation).

In other cases, the state backed the privatization of commonly shared resources, excluding customary claimants and undermining customary systems. In Botswana , state policy after independence has favoured privatization of common pasture lands (Taylor 2005). The 1975 Tribal Grazing Lands Policy (developed through a World-Bank supported process), followed by the 1991 National Policy on Agricultural Development, created leasehold ranches to reduce grazing pressure. The exclusion of extensive tracts of lands for private interests has increased pressure on remaining communal rangelands. At the same time, rights to pasture are better protected at the level of the individual citizen than at an aggregated level of social organization, such as tribe. This has served to break down traditional management systems to the extent that many pasture lands are now characteristic of open access systems. Similar government-led programmes in Burkina Faso sought to establish ranches and encourage sedentary use by pastoralists and their herds (Nelen et al. 2004).

Where laws recognizing common property do exist, competing claims to territorial resources may still emerge, as was seen in case studies from Peru (Burneo 2005, Guzman 2005) and Indonesia (Galudra 2005, Santosa et. al. 2005). These situations can arise when laws and policies are in conflict, when different state institutions have different jurisdictions over territorial resources or are providing tacit support to commercial or other interests, or when there is a lack of implementation of laws that recognize common property rights.

Assurance at Individual, Household and Sub-Group Levels

Common property regimes are also subject to internal problems, including the risk of "elite capture" or situations in which some group members are not assured access to common property. Under both customary and state-supported systems, local elites may get away with circumventing rules and evading sanctions, as in cases from India and Nepal (Prasad 2005; Shrestha 2005 ) . Although local councils in Himachal Pradesh in India have the power to enforce rules, local elites very often circumvent these rules as they can afford to pay for court cases (Aggarwal 2005).

In similar cases from Nepal 's leasehold forestry initiative, these actions generated disputes and led to conflict within communities. The forest leasehold groups - which targeted the poorest households - had to negotiate some form of shared rights with non-group members, in order to avoid elite capture (Shrestha 2005). These examples illustrate the challenges of designing equitable policies that allow poorer households to also benefit from the use of commons resources.

The status of women and their participation in decision making is another concern. Despite their established role in commons management and use women are rarely involved in important decisions, creating a gap between those making decisions about common property and those responsible for its use and management. Although women are taking on increasing responsibility for agricultural work in Peru 's campesino communities, but have little say in community decisions concerning land and collectively managed natural resources - despite recent advances in gender equality in other areas (Burneo 2005). In the case of community forests in Kenya the decision-making structure is male-dominated, even though women constitute the majority of users (Karangathi 2005). Here, as in most other areas in Africa , access to land by women mostly is through male family members, i.e., husbands and/or sons. This makes their access to land difficult, especially if they do not have influential people to assist in negotiating with customary institutions. The same situation prevails during land inheritance.

Where women do participate in decision-making, the process is not necessarily tolerant of dissenting views, or sensitive to gender dynamics. In one case from Uganda , women suggested that fast-growing trees be planted, so their fuelwood needs could be met. This suggestion was ignored, and instead the focus was on commercialization of forest resources, purportedly for community benefit (Obaikol et al. 2005; Obaikol 2005).

However, the situation is changing in some places, especially where there are clear affirmative action rules that require the inclusion of women in decision making. The IFAD-supported forest leasehold programme in Nepal is targeted at poor women, providing them a window for influencing commons management in the participating villages (Shrestha 2005). Similarly, the village forest committee in Saigata, established in 1979, provides for gender balance on its executive committee - three women and three men. Through this concerted effort to involve women and other marginalized groups of the community gender disparity in decision-making has been gradually reduced (Ghate 2005).

Affordability, Accessibility and Sustainability of Tenure Regimes

The availability of methods to document rights and tenure relations that are affordable, accessible and readily understood by common property users is yet another dimension of tenure security for communities. In cases from Mali, South Africa and Uganda, the processes, mechanisms and certifications required to register land via the state administrative system are not always understood by or not familiar with local residents. High costs, complicated processes and, in the case from Mali , the signature of the president are some of the requirements for legal ownership. Consequently, people do not follow those rules but find their own ways of securing access to land, including both individually and as common property land (AFRA 2005, Hamadoun 2005, Obaikol 2005).

These examples suggest that the concept of tenure security can and should be broader than conventional definitions used by scholars and practitioners. The cases suggest that, in practical terms, resource-users are concerned not only with the range, duration and assurance of benefits, but also with accessible and affordable methods for documenting those rights, as well as the problem of representing multiple interests or rights claims in the same territorial area.

Among residents of Ekutheleni , South Africa , a key concern is that documenting rights to common property via the state's land administration processes is too costly for local residents. Professional surveys also fail to capture the range of interests represented by the customary tenure system in place. Realizing the benefits of secure access to resources is also perceived as an indicator of tenure security. Access to credit and other support services depend on public recognition of rights to land and property and, in practice, are thus signals to communities that tenure is secure.

Ekutheleni residents, working with the non-governmental Association for Rural Advancement (AFRA), have sought to bridge these local practices with the state's administrative processes in order to increase security of tenure over community lands. AFRA describes the existing system in Ekutheleni as one that "provides a functional tenure security for most people in the community", but which operates with neither state support nor connections to public institutions and the services that they provide.

Ekutheleni has a system around land that works, most of the time, for most people. It's cheap (food and alcohol for the boundary witnesses and R40 a year to the Inkosi ), it's very local (walking distance at any time for a new allocation, access to dispute resolution) and it relies pragmatically on a mix of historical practice, environment and specific social need. AFRA thought that if the system - its mechanisms, rules, practices and institutions - could be described very clearly and a paper system created to reflect and support it, such records would begin to meet household needs (AFRA 2005).

Thus far, the residents of Ekutheleni have yet to succeed in their efforts to gain recognition for their rights, leading AFRA to conclude that "the institutions that uphold registered property rights and the way they are arranged and link to one another are part of a structure that excludes the poor" (AFRA 2005).

Community mapping is increasingly being used to link communities both to state processes for documenting land rights and linking maps to participatory land-use planning and territorial development. The case from the Parinari district in the Peruvian Amazon describes how mapping is used to identify the best uses and limitations of a territory and can serve as the basis for establishing rules on resource use. This second point is especially important considering the lack of clarity of rights to common property, and given that the establishment of norms and sanctions are important options for the sustainable use of resources (Guzman 2005). In this way, community mapping exercises are playing multiple functions: (a) strengthening the ability of resource users to document group claims and systems of managing resources as common property, (b) serving as catalyst for collective action, through which communities can increase the likelihood that their claims will be acknowledged, and (c) increasing the long-term sustainability of the resources being managed as common property and, thus, the sustainability of the tenure regime itself.

Summary

In instances where customary systems of common property are not acknowledged by the state, assurance at the group level will be at risk if competing claims emerge, particularly if they are supported either legally or tacitly by state institutions. While legislation to recognize and support common property may improve this dimension of tenure security, threats to tenure security may still arise if there are conflicts between different laws, policies or state institutions. At the level of individuals or households within groups, elite capture (as will be discussed further in Section 4) may occur when tenure systems - whether customary or state-supported - fail to apply rules and sanctions for resource use fairly, or in ensuring that rights to the commons (particularly access rights) may be claimed. Finally, issues of affordability, accessibility and sustainability of tenure regimes should be considered more fully in discussions of common property tenure security, drawing on resource users' own perceptions of the tenure systems that exist.

(1) Wilusz defines these further: "Breadth of rights refers to the range of rights held, such as right of use and withdrawal, right to decide who may access the resource, right to decide the manner in which access and withdrawal should take place, and the right to transfer ownership (Schlager and Ostrom 1992) . Assurance of rights refers to the degree of certainty people have that their tenure rights will not be violated today. Duration or rights refers to the degree of certainty people have that their tenure rights will not be violated in the future."