Land 2018, 7(2), 68; doi:10.3390/land7020068
Van Vollenhoven Institute, Leiden Law School, P.O. Box 9520, 2300 RA Leiden, The Netherlands
Received: 30 April 2018 / Accepted: 21 May 2018 / Published: 29 May 2018
1.1. The Long Evolution of Property in Land
As Earle in 2017 analyses, using ethnographic and archeological evidence in the absence of written records, identifiable property goes back 40,000 years . Villages were the dominant landholding units in both the Old and New Worlds. After 10,000 BCE, population growth, intensification of land use, and more settled lives heightened territoriality and needs to defend valuable lands against outsiders. Earle writes
‘For property in land, a local group held by cooperative defense the inalienable rights inherited through group membership. As resource use intensified, households that improved land and houses retained some right of personal property, but without the rights to transfer except through inheritance. Land rights were, however, regularly alienated by conquest, whereby a group and its chief asserted direct control by seizure’.
(Earle 2017, p. 23)
The comparative utility of collective and individual tenure has been debated in writing since the treatises of Plato and his student, Aristotle, in the 4th century BC . By then, landed property was tied to state-making; property only existing on the say-so of the State, and from which its protection descended. From the outset, state-defined property was individual, male, and private—a relation which individuals held with the State, not with each other. Collective or communal tenure was, in contrast, described by Plato as ‘natural’; its relations were controlled by, and internal to a self-defining community.
The next two thousand years would refine state-made property as being inseparable from power, wealth, and class formation, and in due course with capitalist transformation, its detachability as a commodity that could be sold sight unseen [3,4]. The umbilical cord of property as a social relation was cut—or so it seemed. How far the greater good of society could be achieved through the accumulation and use of land-based wealth for investment, or through paradigms focusing on equalizing wealth, became one of the great—and continuing—debates of the last four centuries. No philosopher, from Hobbes and Locke onwards, could ignore the role of private property in social change, or battling ideologies around this . Locke’s theory of labor in property (1689) was especially influential in distinguishing lands as being either developed or undeveloped (e.g., cultivated or not). This was unhelpful to societies that purposely harvested from, rather than transformed, their lands. This legacy which continues to discriminate against off-farm communal ownership over forests, rangelands and marshlands, key resources for millions of land dependents.
By the 20th century, mitigation against rampant involuntary losses of unrecorded property focused either on welfarism to support the landless, homeless, unemployed, and amassing urban poor in industrialized nations, or upon redistribution of productive farmlands in 50+ agrarian economies . Post-war liberation of colonial polities generally failed to liberate these from European definitions of property; many new administrations promptly vested their entire land area in the state in the name of nationalism. Communities with unfarmed lands were most affected, these widely declared as public properties controlled by governments . Whether ideology was communist, socialist, nationalist, or capitalist, a dominant shared strategy in the 20th century was that community-based tenure (or customary tenure as usually known) must be extinguished in the interests of progress, along with feudal or neo-feudal tenure where this existed (especially in Asia and Latin America). Extinction of community tenure was advanced either through individualization and market-led concentration of ownership, or by the mass reconstruction of rural land use in state-run collectives on national lands .
1.2. The Survival of Community-Based Tenure
In this context, it may seem extraordinary that community-based property relations still vibrantly existed as the 20th century drew to an end. Or that community claims to shared off-farm lands within their traditional domains, had hardened, rather than dissipated. Reasons included: local reaction to decreasing land availability and rising threats of official takings; the reality that coerced conversion of customary rights into individualized statutory forms was never as widespread or successful as intended; and that, despite massive social transformation, traditional community-based tenure retained an embedded logic as practical, cost-free, and adaptive through iterative consensus. The values of shared off-farm lands also came to the fore, and collective claims more defined. This was in relation to rights within the community as class formation advanced, in relation to defining ‘our land’ in relation to neighbouring communities, and in relation to the claims of government agencies. Frustration with state land policy, and the statutory failure to protect untitled but locally ‘owned’ lands grew [9,10].
1.3. Bringing Collective Landholding in from the Cold
The last three or four decades launched widespread reformism. This has been less focused on redistribution than on forms of admissible ownership. Political upheavals have regularly been a trigger. By 1989 redistributive farmland reforms in Asia and Latin America had largely ground to a halt. The Soviet Union and its dominance of Eastern Europe ended officially on Christmas Day, 1989, with the demise of state collectives and in some countries, saw the conversion of local smaller collectives into self-governing community domains, comprising both private farms and attached communal pastures and forests. China had gone through a reform of its own regime of collectivization, with a new household responsibility system in 1984, permitting the privatization of farmlands, and new rules concerning off-farm lands within the collective .
The communist/socialist world was not the only one to be affected; the 1990s also saw a rash of transformations of one-party states into multi-party democracies in Africa, Asia, and Latin America. These regularly included constitutional commitments to devolved governance, impacting upon land governance. Forceful structural adjustments by global lenders also provided a trigger; while these demanded accelerated individualization and a free land market, national reviews prompted rethinking as to the viability of individualization in all circumstances, to which lending agencies would themselves begin to concede [12,13].
Meanwhile, Indigenous Peoples, a comparatively small sector of traditional community landowners, were making progress in claiming territorial lands in Latin America, Canada, Australia and New Zealand [14,15]. They were rewarded in 1989 with a United Nations Convention, which stated that “the rights of ownership and possession of the peoples concerned over lands which they traditionally occupy shall be recognized”, that “Governments shall take steps as necessary to identify these lands” and “guarantee effective protection…” (ILO 169, Article 14) . Peasant and former slave communities also organized, notably in the creation of La Via Campesina in Brazil in 1993. This expanded globally and along with other new people-led organizations share demand for recognition of the right to own and control occupied and used lands including those that are uncultivated or cleared [17,18]. A draft Declaration on the Rights of Peasants and Other People Working in Rural Areas is to be debated by the United Nations later this year, including sections on property rights .
Legal land reform since the 1980s has been expansive. By 2000, more than 50 countries had both new national constitutions in place pledging tenure reforms, and new laws delivering the details. Not all were as transformational as originally intended. Yet most opened the door to new recognition of untitled rural lands. Some radically transformed 20th century prescriptions of how property in land is defined and protected.
2. Objectives and Methods
The goal of this study is to examine this development as it exists today, and the form which reforms take in respect to community landholding, whether this has been customary and of long-standing, or more contemporarily constructed. Specific objectives are to answer these questions:
What are the global extent, strength, and trends in legal provisions for community property?
What are the contexts through which recognition of community lands as property are provided?
How equally does the law protect community and private property?
How is title to community property vested?
How far is community property able to be freely sold?
How far do laws enable community members to hold private rights to parcels within community properties?
To what extent do community owners govern their own properties?
2.2. Materials and Methods
All 195 sovereign states of today govern themselves and their lands through statutory laws including, as relevant, how customary land law is positioned. The focus is therefore on the content of state laws. Table 1 lists the 100 countries where these are surveyed. This is a sufficient number to compensate for the absence of entirely random sampling. The selection of countries was determined in large part by the author’s familiarity with the laws, or ease of access to reliable information for other countries. Table 2 shows that the sample roughly coincides with the numbers of countries in each continental zone. For a number of subjects addressed in this research, smaller samples are used, thereby excluding countries where the information on the subject was insufficient.
Table 1. The Sample: Countries Assessed for National Law Provision for Community Property.
Table 2. Percentage of States by Region and in the Research Sample.
Laws examined include national constitutions and land laws. The latter often include laws dedicated to the subject of community landholding (e.g., Kenya’s Community Land Act, 2016, Nicaragua’s Law of Communal Property Regime of Indigenous and Ethnic Communities, 2003, Kyrgyzstan’s Law on Pastures, 2009, and Norway’s Law On Bygd Commons, 1992).
Data derives from the author’s research for 61 countries, highlighted in bold in Table 1. Data for the remaining 39 countries derives from legal reviews at LandMark (www.landmarkmap.org). LandMark is an interactive global site providing information on the lands of indigenous and other communities, to which the author contributes. While legal critique at LandMark is sometimes incomplete, its conclusions are considered sufficient for the broadly comparative purposes intended here. The use of LandMark and other secondary information was necessary in 36 of the 39 cases due to unavailability of texts in English. Relevant laws in Canada, Australia, and USA were only partially examined due to their immense number. Deciding whether a country’s laws were deservedly assessed as positive or negative was not easy in especially six cases, fortunately falling equally in where they were ultimately located.
2.3. Community Lands: A Massive Estate
Readers are reminded that this critique focuses on what the law says, not what exists in practice.
It should also be noted that reference to community lands covers lands belonging to both Indigenous Peoples and to other rural communities, and is also without distinction as to how far these are defined on the basis of custom. Globally, community landholders include an estimated 2.5 to 3 billion rural dwellers, and their combined community land estate is estimated as more than 6 billion hectares, although much of this is not yet acknowledged as their property . Figure 1illustrates high proportions of community lands where country data is available. Figure 2, with information also available for only some countries, illustrates where community lands are mapped and are legally acknowledged as existing, thus far with or without registration and issue of title.
Figure 1. Slowly Discovering a Massive Community Land Resource (as of 2015). Note: The darker the shade, the higher the percentage of country area that is the land of communities (including Indigenous Peoples). The darkest shade is where these lands are estimated to constitute 80 percent or more of the country area. Community/Indigenous Peoples lands may, or may not be, recognized as owned in national laws . Source: Screenshot from the publicly- available site on community and Indigenous Peoples land: www.landmarkmap.org.
Figure 2. Partial Progress in Mapping and Recognizing Community and Indigenous Peoples Lands (2017). Note: Brown refers to Indigenous Peoples lands. Blue refers to lands of other communities. Dark brown and dark blue means these lands are registered or otherwise legally acknowledged. Light brown and light blue mean these mapped lands are not yet formalized, on a case-by-case basis. Blank means no data; millions of hectares of unidentified community lands exist in many countries, and where no mapping has yet been conducted. Source: Screenshot from the publicly—available site on community and Indigenous Peoples land: www.landmarkmap.org.
3.1. Legal Recognition of Community Property is Substantial
Most jurisdictions provide for land to be held individually or in association as others. The latter has been conventionally interpreted as ownership by corporations, cooperatives, and associations, or as co-owners of listed assets, such as lifts and basements in condominium law. Legal provision for social entities to be legal owners, such as the family, clan, village or community, is historically uncommon. It is therefore noteworthy to find that 73 percent of countries in this sample do provide for collective tenure by communities (Table 3).
Table 3. Countries where laws provide for community property presented by region.
3.2. Improved Recognition of Community Property is not Confined to a Few Regions
Table 3 also illustrates the extent of legal acknowledgement of community property by region. Some regions deserve note. All reviewed countries in North America and Oceania provide for community-based ownership. These include many Pacific Island states, where recognition of customary land ownership has existed for some decades. Legal change in Latin America and Africa is also positive; respectively, 84 percent and 78 percent of sampled countries in these regions acknowledge community lands as being lawfully owned.
Latin America is also a part of the world where farmland redistribution dismantling large estates was advanced in 14 states during the 20th century . This contributed significantly to present-day provisions for communities to be lawful landowners, whether as farming collectives (Chile, Peru, El Salvador, Nicaragua, Mexico), land associations (Honduras), peasant lands (Bolivia, Peru), or state cooperatives (Cuba). Political reforms also resulted in Indigenous Peoples acknowledged as collective landowners of traditional territories, embedded in new Constitutions in Panama (1972), Peru (1979), Chile (1979), Guatemala (1985), Nicaragua (1987), Brazil (1988), Colombia (1991), Paraguay (1992) Argentina (1994), Bolivia (1995), Ecuador (1998), Venezuela (1999), and Mexico (2001). Despite different phases of reformism over the last century, including de-collectivization and privatization, collective landholding and jurisdiction remains an active component of the property system in Latin America. In Mexico, for example, collective lands exist in 29,000 ejidos (farming communities) and 2160 comunidades (domains of Indigenous Peoples) . Together, these cover nearly half of Mexico. Around 7000 out of 10,000 comunidad nativa and comundidad campesina in Peru hold formal collective titles to their lands .
State law recognition of community lands in Africa is also notable. This is partly due to the limited reach of compulsory conversion programs, extinguishing customary rights in favor of individual, state-issued titles, thereafter administered by Governments, not communities. Such ‘private property’ dominates in only six of 54 states, and covers only 10 percent of Africa . Customary tenure is estimated to prevail over 78 percent of the continent. Political will to forcefully individualize community lands declined from the late 1980s, not least because many beneficiaries failed to collect their certificates, or to record transfers (2), women and family members resented the absence of their names on such documents, and (3) promised opportunities for bank loans on the basis of title deeds failed to be available for small farmers [26,27,28]. Where individualization was especially active, such as in Kenya, titling eventually reached arid areas, where individualization was rejected as irrelevant by pastoral and agro-pastoral communities, more interested in securing their communal pasturelands .
Political reforms swept Africa a decade later than in Latin America, but with comparable incentives to adopt new approaches to property, among other changes. Some new national constitutions in the 1990s led the way in acknowledging customary tenure as producing lawful interests, and as a lawful system for regulating these rights; Constitutions of Namibia (1990), Mozambique (1994), Uganda (1995), South Africa (1996), and the new land laws of Tanzania in 1999.
Twenty years later, in 2018, 31 of 54 African states (57.4 percent) have enacted new land laws. Twenty-one of these are in this sample. Only three fail to improve community land security: two by abolishing customary tenure (Eritrea, Mauritania), and one by co-opting traditionally communal valley and forested lands as state property (Rwanda). Mauritania has since found it necessary to assure pastoralists’ collective rights to traditional grazing lands, and is accordingly included in the list of (weakly) positive providers of lawful collective landholding.
3.3. Laws in Over Half of Sample Countries Provide Strongly for Community Property
Columns 1 to 4 in Table 3 above cluster variations in the strength of legal support for community property. Laws of countries listed in column 1 share these attributes:
Acknowledgement that community-based, collective landholding produces lawful property interests, including those owned collectively;
Community and private lands have different attributes, but enjoy equivalent levels of protection;
Recognition and protection is not restricted to farms and houses; rangelands, marshes, and forests within the community domain are also acknowledged as community property;
Community regulation of community lands is accepted and/or instituted, with greater formality in law;
Mechanisms for registration of community properties are legally provided for; and
Individual and family interests to specific parts of the community property are acknowledged and nested under collective tenure as derivative rights.
3.4. Shortfalls in Legal Provision Are Similar Across Countries
It is useful to identify common shortfalls in providing for community property. Table 4 gives reasons why countries listed in column 2 of Table 3 as “providing for community property” do so weakly. Three limitations dominate:
collective landholding is not given the same legal support as that of individual rights, even where customary rights are acknowledged as property interests (e.g., Ethiopia, Sierra Leone);
communities are unable to register collective properties (e.g., Ghana, Indonesia); and
main laws have failed to be followed up with essential regulations or decrees enabling application (e.g., Argentina, Republic of Congo).
Table 4. Weaknesses in Legal Provision for Community Property.
It will be observed that many countries listed in Table 4 have proposed changes in the handling of community/customary tenure in hand in the form of draft policies or laws.
Countries with Limited or No Provision for Community Property
Table 3 also lists the 27 countries in the sample where lawfully protected community landholding is especially weak, or for which no such provision for is found. Borderline cases are illustrated below.
Article 67 of the 2007 Constitution of Thailand establishes that communities have the right to participate in the management, maintenance, and exploitation of natural resources, but without provision for ownership. Indigenous communities have only the right to use state-owned lands for livelihood under the Regulation of the Prime Minister’s Office on the Issuance of Community Title Deeds, 2010.
The Constitution of Pakistan recognizes customary law in the Federally Administered Tribal Areas in the west of the country. The Land Reform Act, 1977 did not entrench collective rights or governance by village and higher tribal councils.
In Botswana, Tribal Land is the main class of landholding by area and number of persons affected and acknowledged by the Tribal Land Act, 1968. However, rights to allocate lands have since been centralized into largely unelected boards reporting to the national government. Opportunities for villages to formalize their traditional rights to specific rangelands have also been undermined by legal provision for individuals to access these lands under common law leases. Legal provision does not exist for either Indigenous Peoples (San hunter-gatherers) or settled agro-pastoral communities to obtain collective certificates over shared lands, without forming commercial ranching syndicates.
In Turkey, communities may access grazing lands on a collective basis under the Law on Pastures, 1998, although allocation is vulnerable to changes. This is also the case in Tajikistan (amendments in 2008 may have altered this, not accessible in English).
In Nepal, the elderly Land Act of 1964 does not recognize collective landholding. This is despite failed protection of land rights being one of the grievances inducing a decade-long civil war, and the reality that 18,000 forest user groups have rehabilitated local forests since the 1980s, and are seeking secure tenure over those forests. Anticipated provision for collective property did not appear in the new Constitution of 2015, but is briefly referred to with respect to Indigenous Peoples but not to all communities in a draft National Land Policy (2018).
3.5. There Is an Upward Trend in Legal Recognition of Community Property
An upward trend is implied (but not proven) in the dates of relevant enactments thus far. Table 5 lists the main law considered in the 73 countries where protection for community-based land rights is provided for. Fifty-seven of these 73 laws were enacted after 1980 (78 percent).
Table 5. Principal law recognizing community property in 73 states.
Constitutions, as observed earlier, have been influential in establishing rights. Examples from different regions include Articles 9 and 10 from China’s 1982 Constitution, which distinguishes between the property of the national state and the property of rural and suburban collectives; Articles 231–232 of Brazil’s 1988 Constitution, which assures indigenous Indian communities permanent possession of traditional lands, and their right to defend their interests; Article 237 of Uganda’s Constitution of 1995, establishing customary tenure as a lawful property regime alongside freehold, leasehold, and mailo tenure (a hybrid statutory-customary form); and articles 180 to 184 of Armenia’s post-liberation Constitution of 1995, establishing communities as legal entities and lawful owners of property.
Devolutionary forest tenure from state to communities has also contributed to or responded to reforms, forested lands being a prominent communal asset in many regions . The formalization of community rights to traditional rangelands is more recent .
Perhaps more indicative of continuing new recognition of community property is that nearly one quarter of key laws (17 of 73) have been enacted in the last decade. Draft laws also exist quite widely, such as in Nepal, India, Myanmar, and Indonesia, and more concretely, in Ghana, South Africa, Liberia, and the Central African Republic. In addition, commissions of inquiry are sitting in 13 other African states in 2018, charged with drafting new land policies and laws, all of which must address the status of customarily held but untitled lands (Tanzania, Zambia, Madagascar, Cameroon, Zimbabwe, Namibia, Senegal, Ivory Coast, Nigeria, Sierra Leone, Niger, Burundi, Comoros). New laws are also under consideration in an unknown number of Latin American economies.
Nevertheless, a comprehensively positive future for legally entrenched community property is not necessarily assured. Supportive laws are taking much longer to be enacted today than in the 1990s. Failure to enact implementing regulations is also familiar. From Brazil to Cambodia to Tanzania, administrations regularly seek to backtrack on key provisions, as the implications of loss of state control over large areas are recognized, and as neoliberalism reasserts the notion that the only path to economic growth remains privatization of property in the hands of individuals and under freehold and like constructs widespread in the industrial world . Globalized investor demands for lands help drive this, with still limited legal provisions for communities to lease directly to investors. The result can be contradictory policies, coercing subdivision of already-titled lands , permitting major encroachments on community lands by expanding definitions of public property , and even attempts to do away entirely with recently enacted protection of community property .
Still, communities themselves appear more vigilant and resistant to involuntary dispossession or forced privatization, including petitioning the courts [36,37]. International support for secure community tenure is also growing, most recently illustrated in a founding principle of environmental rights articulated by the United Nations obliging member states to recognize and protect the lands, territories and resources of communities .
3.6. Legal Provision for Collective Property is Expanding Its Focus
3.6.1. A potential Expansion to Urban Communities
At this point, most laws target or assume that collective landholding