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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)

Attachment
- Land.pdf
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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