Administering Land Rights: Alternatives to Individual Property Ownership

International Conference on Agrarian Reform and Rural Development (ICARRD)
Porto Alegre, Brazil
7-10 March 2006

Presentation by Andrew Fuys, Policy Officer, 9 March 2006
International Land Coalition

I. Introduction

Last year, the International Land Coalition organized an assembly that brought together organizations in our network from more than 30 countries. One key message they presented at this assembly is that land is a focal point many complex social and economic relations, and that the same territorial space can have very different meanings to different people and groups.

Land tenure systems govern the relationships that people have with land and land-based resources. Just as there are different relationships that people and community have with the land, there is also variety in the kind of tenure systems that exist.

Debate on land tenure reform, however, does not always reflect the diversity of viewpoints on land and its role in development. This can have the negative effect of excluding the concerns of poor men and women from policy consideration. For this reason, the ILC's network gave us direction at last year's assembly to encourage more open discussion of the range of tenure arrangements that exist, and how different alternatives might have different strengths and weaknesses in terms of making land access more secure for poor families and poor communities.

One step we took in doing this was to collect case studies from our network partners on common property systems. In doing this, we sought to understand better when and how common property can be effective to make land rights secure for then poor, as well as the kinds of challenges facing common property systems and how both communities and governments are trying to address these.

This study is co-facilitated with the CGIAR system's Collective Action on Property Rights initiative, and has involved about 35 case studies that were contributed from partners working in 20 countries in Africa, Asia, Europe and Latin America . We are pleased that two case study authors, from South Africa and Uganda , could join us today as panelists. Hopefully the general observations I share from our review of the cases studies can be basis for considering the specific experiences that they, and our colleague from Brazil , will share next.

II. Overview of case study findings

Most of the cases looked either at common property in context of forest land or agro-forestry, pasture and rangelands; with a few looking at aquatic resources. The case studies reinforced our perception going in that common pool resources make important livelihood contributions to poor families, particularly in reducing household vulnerability.

The cases also suggested that making a sharp distinction between group and individual rights can be an oversimplification, as there were examples where land changed from individual to common property depending on the season, or where individually cultivated land reverts back to group ownership if it is left unused for a certain period, e.g., four years.

This said, in most of the cases, some kind of common property system exists, meaning that at least at some point, the rights to use and manage these resources are with a group, such as community association or village committee. The cases pointed to several key challenges to these systems performing effectively, including:

• Lack of recognition in state laws and regulations;
• Changes to the local social and economic context;
• Power asymmetry within communities and the threat of "elite capture"; and
• Commercialization of land and natural resource use, particularly through outside investment and power asymmetry with external actors

I will first discuss these challenges, and then describe the ways that some communities, governments and other actors have been trying to address them.

III. Key challenges

In a few cases, state law recognized for these rights; but for most, there were other sources of local legitimacy for these common property systems, including customary law and practices, natural resource management projects, or self-organized community action. This reinforced another perception we had, that local systems to manage land rights can and do exist, even where the state system does not recognize them.

This is the first challenge that the study identified. Without recognition by state laws and regulations, there are risks to communities that manage resources as common property, particularly if there are other competing claims that the state tenure system does recognized. Even in cases where laws are in place that recognize group rights, there are often difficulties in implementing them. I think this implementation challenge is something we are hearing quite often during this conference.

A second set of challenges is the strain that local resource management institutions can face when there are changes in the local social and economic context to common property, including population shifts and greater contact with the market economy.

Population increases put more pressure on common property; the most striking cases of this were where there was migration into rural areas by farming households, as in one case from Zimbabwe . Because migrant farmers are outside of the social structures that manage land as common property, they are less likely to know or to follow local rules on using the commons. This can increase the risk of conflict and the likelihood of resource degradation.

In other cases, migration out of rural areas is a challenge to common property management. Particularly where there is an outflow of working-age men, it can become more difficult for community institutions to enforce rules on use of the commons.

Increasing values of cash crops and greater market links often encourage individual use of the commons for agriculture. This can pose challenges when there are multiple groups that use the same territory for different purposes, such as when individual land claims for farming interferes with the access rights to water or other resources for herders, hunters or other groups in the area. And more generally, when rural families increase their participation in the market economy, there may be fewer incentives to take active part in the group activities that are central to effective common property management.

Power dynamics within communities can also be a challenge. At the household level, this can influence which families or community members have access to the commons. Several cases noted the likelihood of common pool resources in community forestry systems being "captured" by better-off households, in part because they have more human and financial resources to invest in using forest resources. One response to this has been to vest common property rights in the most vulnerable community members, such as through forest leasehold groups in Nepal that included only the poorest households, so as to increase their power within management groups.

The case studies, however, were generally less concerned with inter-group power asymmetry than with the difference in power between communities and external actors. In some cases, even where there is difference in power within communities, there is still some room for poor families to negotiate access to the commons with local elites; this is much more difficult when facing commercial or absentee owners.

Competition for resources with external actors, particularly those making commercial investments, can threaten access to common property. In many cases, national policies tended to support commercialization of the commons, such as by encouraging large-scale ranching, logging or plantation farming by outside investors, instead of more secure access to the commons by local communities already using land, water and other resources.

These policies often decrease the pool of land available for poorer households and communities. With less land available to be managed as common property, there is more strain on community resource management, and greater potential for conflict or overuse, which both can contribute to resource degradation.

Commercialization may also have a gender bias that marginalizes women. In a case from Indonesia , while women play important role in household agro-forestry, timber and logging industries tend to be male-dominated. Capital-intensive commercialization in the forestry sector decreases women's access to common forest resources, thus shifting benefits out of women's hands and into men's. This can have negative impact on overall household livelihood.

In cases where commercialization is prompted by outside investment in resource exploitation, local residents may benefit economically, but largest share of benefits is enjoyed by outside investors. Without access to large-scale capital, investment opportunities for local residents may be limited. This creates economic leverage for outside investors when negotiating agreements with local CPR users, or opportunities for "elite capture" by better-off community members who do benefit from outside investment, even while many other families do not.

IV. Adaptations and innovations

While these challenges are significant, the cases also showed a number of responses and innovations, particularly at the local level, that are helping common property systems to adapt and become more effective. In many of these responses, there has been a renewed focus on strengthening local groups to undertake collective actions needed for effective management of the commons. Some have also encouraged changing the relationships between governments and local institutions, so that there is constructive support to institutions that are managing common property.

A number of cases noted the importance of developing strong mechanisms to enforce rules for accessing and using common property, if these systems are to be effective. Community mapping case in Peru's Amazon basin region emphasize not only group involvement in demarcation of the community forest area, but also the development of common rules for managing fruit trees, and sanctions for community members that violate these rules.

Collective action, through the establishment of forest user committees, in cases from India and Nepal also helped to reverse deforestation resource degradation. In one case, women were integrated into armed forest patrols, as a way to improve enforcement in common forest areas in the face of increased out-migration by working-age men.

There were also examples of changing production or economic practices, in response to changing socio-economic environments. In a case from Niger , community groups developed a fuel wood rotation system to reduce pressure on forest resources, and also found new income-generated opportunities, e.g., honey production, that could be managed as a group and help conserve common forest resources. In other cases there are similar efforts to link sustainable agro-forestry initiatives to more secure access to forest lands by community groups.

Collective action also plays an important role in negotiating access rights to the commons, making existing rights more secure, and managing conflicts over different sets of resources users. In a case from West Java, Indonesia, villagers developed communication forums with neighboring communities in order to protect their access and use of common pool resources. In a case from Benin , conflicts between farmers and pastoralists had become a serious problem. New organizations were established, comprised of representatives from the different groups (farmers, herders, hunters), and were able to implement resource sharing agreements, including delineating grazing areas and herders fees for water use and restoring a degraded range.

Changing relationships between government and customary authorities or other community institutions can also help to make access more secure and address conflicts over the commons. One case from Ethiopia , where all land is state-owned, described how administrative powers and authority are being decentralized to local ethnic authorities, helping them to manage local affairs including access to common lands. This has improved communication among community members, and between customary institutions that regulate access to the commons and regional and state authorities, both of which have assisted in managing land-related disputes.

A case from Japan , focusing on irrigation as common property, described how the government provides legal and economic support to irrigation user groups, but also allows these groups real autonomy in managing their local water resources. While the government shares costs with the community organizations, it maintains a "hands-off" approach in operation and management. This reinforces the need for strong self-governance among farmers in the irrigation groups, and encourages greater reliance on group processes and reciprocity as a way of managing resources and resolving disputes.

Finally, the cases show examples where reform to laws and policies is proposed as a means of recognizing or strengthening group rights, or cases where reforms have already been enacted. One example of this is in the Philippines , where the state recognizes group territorial claims through the Indigenous People's Rights Act. In Peru , the constitution guarantees group property rights for campesino communities, in which group land is managed both as individual plots for farming and common property for grazing and other uses. In the case of Thailand , the constitution guarantees the right of people to participate in policy- and decision-making concerning natural resources. This process-oriented provision is now allowing for communities to advocate for laws that recognize common forest areas that are managed by community forest groups.

Based on this review of the cases, there are a few key starting points that are relevant for policy debate and policy reform:

• It is important to be aware that the same land or set of resources may have multiple users, and may be used and managed by groups as well as individuals. An evaluation of existing land tenure systems could begin by the identification of the different households or groups that live in a given territory and are likely to have some claims over lands and resources.

• State recognition of common property and group rights may be a necessary step to make access to common pool resources more secure, particularly against competing claims from outside the community. Equal attention and resources, however, needs to be given to implementation of such reforms, in order for them to benefit poorer households that rely on the commons.

• The potential benefits of common property systems - such as improving livelihoods, reversing environmental degradation and reducing land-related conflicts - are only possible with well-managed group action. In the successful cases, support to collective action came from a range of sources, including local leaders and customary institutions, NGO facilitators, local governments and international organizations.