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Scaling-up, Replication and Innovations: 3. Describe some examples of those innovations related to communal land claims. (6 answers)

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    Dec 31, 2008
    In terms of innovations:

    Property rights are dynamic, relative, socially embedded, bundles. They interact with other rights and the development situation. In some cases systems of common property management have been developed, and supported by the government and civil society. The conservancy program Namibia is a perhaps an example of successful common property management of wildlife resources. The program compares favorably when matched up to Ostrom's design principles. Through this program local natural and social capital (as well as other assets) have increased dramatically over the years - wildlife populations have made impressive comebacks in conservancy areas and the conservancy organizations have become a forum for collective action on a range of fronts (such as HIV/AIDS). On some aspects of the bundle of property rights the program does very well - use rights, management and modification rights, duration, etc. all work to promote good management.

    One element of good common property management that continues to puzzle me is the transferability issue. If someone from a conservancy in Namibia wishes to leave the area and move to Windhoek how does she transfer her rights? How is she compensated for her contribution to the impressive build-up of capital and increased revenue? This seems to be a constraint and may even be an encouragement to free-riding - if I want to leave but can't benefit front my investment my next best option may be to "remain" a member in a very passive sense. Of course one way of approaching this issue is to see group members as "share-holders" in the conservancy and that members can sell their shares - to other members or back to the group.

    I have heard that systems of 'share-holding" for common property have been piloted in Southern Africa. Does anyone know about this experience in Southern Africa or elsewhere and can they give us an indication of how successful its been?

    Thanks.

    Jon Anderson
    USAID/EGAT/LRMT
    Natural Resource Policy Advisor
    1325 G St NW
    202 219 0452
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      Dec 31, 2008
      In South Africa major debates have taken place in recent years around how to
      secure the land rights of people in 'communal areas', and these may resonate
      with efforts at tenure reform elsewhere in the drylands. Some innovative
      approaches have ben proposed.

      For example, a draft Land Rights Bill (LRB) developoed in 1998-99 attempted
      to provide full recognition of the underlying land rights of people who
      occupy areas registered as 'state land' in the Deeds Registry. The land
      rights specified in the LRB were thus to be vested in the members of group
      systems, not in institutions such as legal entities, the chieftaincy or
      Tribal Authorities. From the distinction between 'ownership and 'governance'
      set out in the White Paper on Land Policy of 1997 flowed the result that
      group members have the right to choose which institution should manage and
      administer land rights on their behalf. Group systems had to provide "bottom
      line" protections for their members, consistent with constitutional
      principles of democracy, equality (including gender equality) and due
      process. In situations of overlapping and contested rights, transfer would
      only take place after a rights inquiry, with government providing incentives
      to local stakeholders to negotiate solutions, mainly in the form of funds
      for additional land to relieve overcrowding.

      At first policy was based on a paradigm of transferring ownership from the
      state to its rightful owners. However, experience in a number of test cases
      revealed inherent difficulties and as a result the LRB did not adopt a
      "transfer of title" paradigm. One major difficulty arose in relation to
      defining the "unit of ownership" in communal areas: should land be
      transferred to "tribes", or "nations", often consisting of hundreds of
      thousands of people, or to wards, or to villages, or to groups at Tribal
      Authority level?

      Vesting land ownership in the larger group could make it difficult for
      smaller groups to make meaningful decisions about land within their own
      localities; conversely, vesting rights at the local level might deny some
      rights inherent in the larger group. These questions derive from the nested
      and hierarchical character of land rights in communal systems. The test
      cases provided important lessons in relation to the processes involved in
      land transfers. Investigation and consultation with the prospective rights
      holders was necessarily resource intensive, intricate and time-consuming.
      They showed that the prospect of transfer triggers intractable conflicts;
      "*. the irrevocable nature of land transfer is an effective alarm clock for
      latent social tensions".

      As a result of these difficulties, the drafters of the LRB moved towards a
      paradigm based on statutory rights which are secure but do not convey full
      ownership. The law would create a category of protected rights, for which
      the majority of those occupying land in the former 'homelands' would
      qualify. Rights holders would be the key decision makers on matters related
      to their land, and derive the full benefit from its use or transfer. The
      Minister of Land Affairs would continue to be the nominal owner of the land,
      but with strictly delimited powers. Her ownership would be an "empty shell",
      with high content statutory rights held by the occupants.

      These protected rights would vest in the individuals who use, occupy or have
      access to land, but in group systems these rights would be subject to those
      shared with other members ie. individual rights would be relative to "group
      rules", as decided upon by the majority of members. These in turn would
      require the definition of the boundaries of the group * also a key
      difficulty, as pointed out above, for the "transfer of ownership" paradigm.
      The solution proposed in the LRB was as follows:

      Boundaries' must be seen as flexible. In other words, the boundary of the
      group would be determined with reference to who (which group of people) is
      affected by the particular decision. Thus, if the decision is about a change
      in grazing practice then the people affected by the change must be
      consulted, not the entire 'tribe'.

      Protected rights, defined by statute, would thus confirm in law the rights
      of the 2.4 million households (the de facto rights holders), occupying and
      using land in the communal areas of South Africa, without having to first
      resolve, in each and every case, disputes over the extent of rights. The
      possible content was set out in the LRB and allowed for rights to occupy and
      use land, to bequeath, transact and mortgage the right, to benefits from the
      land, and to evict others. To balance individual and group rights, and to
      maintain a necessary element of flexibility, a local process of defining or
      limiting the specific detail of the content of rights would have to take
      place.

      Before these ideas could be tested, the LRB was set aside by an incoming
      Minister of Land Affairs and the new Communal Land Rights Act of 2004 has
      adopted a 'transfer of title approach.

      Somewhat similar to the approach adiopted in the LRB is Mozambique's land
      law of 1997 and Tanzania's of 1999, which recognize and protect existing
      occupation and use of communal land, and give them the status of property
      rights, without requiring their conversion to Western notions of private
      ownership. This is facilitated by the fact that underlying ownership of all
      land in these countries is held by the state. Strong statutory rights are
      then vested in the people who occupy the land, and the law enables the
      rights holders to further define and record these rights at the local level.
      An ongoing balancing act between group and individual rights, at different
      levels of social organization, is facilitated. However, it is also clear
      from these cases that dedicated support from government to these local
      processes is critical to their success, and limited state resources and
      commitment constitute a major problem.


      Professor Ben Cousins
      Director
      Programme for Land and Agrarian Studies (PLAAS)
      School of Government
      University of the Western Cape P. Bag X17, Bellville 7535
      Tel: (021) 959 3961
      Fax: (021) 959 3732
      Cell: 083 635 4279
      email: bcousins@uwc.ac.za
      www.uwc.ac.za/plaas
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        Dec 31, 2008
        Thanks to Ben for this fascinating and real-world example. I encourage
        others to contribute examples of how this process has proceeded in their own
        country
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    Dec 31, 2008
    Dear colleagues,



    We want to thank the contributors from Week 4 on Scaling-Up, Replication and Innovations. Although we only had three contributors, we were encouraged by the importance of sharing such experiences to our range of networks. This is the added value of the Nairobi workshop convened by UNDP DDC, ILC and CAPRi and of the post-workshop e-conference, facilitated by FRAME. I would like to highlight the three contributions in the attached matrix.



    Jing (by way of Charlie)
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    Dec 31, 2008
    Hello all -

    Please find attached the summary document for the e-conference.

    Thank you all for your participation in the discussion, we hope you found it to be an interesting experience.

    We encourage you to continue to use FRAME (www.frameweb.org) to share your knowledge and experiences. The FRAME website makes it easy to post documents on the web thereby sharing your experience with the global NRM community.

    Thanks,

    Denise Mortimer - (on behalf of the e-conference coordinators)
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      Dec 31, 2008
      Thank you for sharing the summary with us. We shall use it to inform our process.

      Tom Mugisa
      ProgrammeOfficer, Technical Services and
      Secretary PMA ENR SUb Committee
      Tel: +256 41 252 263/4
      Cell: + 256 77 436 683
      E-mail: tom.mugisa@pma.go.ug
      Website: www.pma.go.ug

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Date CreatedWednesday, December 31, 2008 2:13 PM
Date ModifiedTuesday, May 1, 2012 12:34 PM
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