6.C.1 Chief (land/lineage)
Chef de terre ou responsable de la terre (F);
Autoridades locales tradicionales/ Jefe / aldea / Autoridades político-administrativas
(E)
The land chief is a descendant of the first occupier of an area who acts as the mediator between man and land and who traditionally holds power over land in customary societies without actually owning it.
The land chief has both quasi-political and quasi-religious or spiritual roles in relation to land. He is the highest authority on land issues and the chief of his lineage, but there may be other chiefs responsible for matters of war, religion and dispute settlement, for example.
The powers of the land chief may include:
> Division of land between the clans in the lineage group
> Permitting settlers access to land
> Arbitration of disputes relating to land
> Guarantee of the group’s boundaries
The allocational powers of the land chief tend to decline as pressure on the land increases because of population growth. Once parcels reach a practically irreducible size, customary succession rules determine how land passes between generations, and the land chief’s role is reduced to resolving disputes and to ceremonial functions.
6.C.2 Custom / Customary
Coutumes / Coutumier (F);
Costumbres / Consuetudinario (E)
A custom is an action or practice that has taken place since time immemorial that is not regulated by the state or other authority outside the social group, and which is reinforced by customary usage.
Local custom may also be recognised in the formal legal systems of the world, for example, local custom is recognised by English law where it has been continuously enjoyed since “time immemorial”, where it is certain and not unreasonable, and where it is compulsory. Demonstrating time immemorial in this context technically requires proof that the custom existed in 1189. In practice, this will be presumed if the practice could have taken place in 1189, and the oldest local inhabitant affirms its historic existence.
6.C.3 Customary land law / rights
Droit foncier coutumier (F);
Derechos tradicionales o consuetudinarios de tierra (E)
Customary land law regulates rights to enjoy some use of land that arises through customary, unwritten practice rather than through written or codifed law.
6.F.1 Fishery rights
Fishery rights are rights existing in freshwater and marine fisheries which enable the holder to have access for fishing purposes. Water and fishery rights vary considerably from place to place.
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In West Africa traditional management of inland fisheries was based on control of water. These rights, as with land rights, were granted to the first occupiers by the spirits of the water, and were in turn managed by the chiefs of the water. The water chief’s functions include arranging the fishing calendar in the light of spawning seasons, regulating fishing practices and access and arbitrating in disputes. In many West African countries water rights have been nationalised and regulation and access are now controlled by the state. LEONARD, R., and LONGBOTTOM, J., 2000 The indigenous population in Fiji enjoys fishery rights both inland and in the marine reef areas that have been demarcated by the Native Fisheries Commission. These fishery rights are held in defined areas by the designated clan group, whose members are recorded in the Vola ni Kawa Bula that is maintained by the Native Land Commission. In New Zealand, the Waitangi Tribunal has considered the traditional fishery claims of the indigenous Maori people and has ruled that they should benefit from the quota fees paid for marine fishing. |
6.I.1 Indigenous
Indigène (F); Indígena (E)
Indigenous signifies someone who is intimately connected with the land where he lives, who has not arrived by immigration or is not in passage. The idea “indigenous” is necessarily relative. It often expresses a cultural or property claim.
6.L.1 Lineage
Lignage (F); Linaje (E)
Alineage is a group which has common lines of ancestry, whether these are patrilineal or matrilineal.
The head of the ancestral group commonly governs access to the lineage land as the land chief. The members of the lineage can trace themselves back linearly to a common ancestor.
6.L.2 Lineage land
Espace lignager (F)
Lineage land is land available for the use of the members of the lineage.
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On the floodplain of the Mauritanian bank of the Senegal River where the land is flooded annually, the Toucouleur land system is a good example of lineage land and its management. The land does not belong to an individual. It belongs to extended social groups, lineages or collectives. Within these social groups the lands are divided between the families that will cultivate them. The lands are managed by the head of the lineage who distributes the parcels to each of the adult males in the lineage. This allocation lasts until a marriage or a death stimulates a redistribution. The lineage land stays undivided. Moreover it is inalienable whether to members of the lineage or to third parties. The individual and the head of the lineage himself does not have the right to alienate the land to an outsider. It is the collective lineage group that is the owner, not the head of the lineage. On the death of the head of the lineage, the lineage land is inherited collectively by the lineage and the management passes to the next chief in succession. LEONARD, R., and LONGBOTTOM, J., 2000 |
6.M.1 Matrilineal
Matrilignage (F); Matrilinaje (E)
A matrilineal lineage group is one where the line of descent and membership is transmitted by the female.
To illustrate how a matrilineal group works, for two individuals to appear in the same parental group, they must trace their descent down the female line. A man and the son of his brother for example would not appear in the same group. The son of the brother would be a part of his mother’s group.
Although matrilineal lineage determines the constituent members of a group and its inheritance practices, it does not necessarily mean that property will be held by women in such systems. Females in matrilineal societies do, however, tend to have better access to land than in patrilineal societies. LEONARD, R., and LONGBOTTOM, J., 2000
6.N.1 Non-indigenous
Allochtone (F); Foráneo / Extranjero / Exótico (E)
Non-indigenous refers to an entity or concept that originally comes from outside the area specified.
Non-indigenous may commonly refer to people, but may also include for example laws and customs. Non-indigenous people, whether viewed simply as “immigrants” to an area or as people from outside who are from a specific ethnic background, may find it difficult to integrate with the indigenous people and their customs. They may experience particular problems over access to land.
6.P.1 Pasture master
Maître des pâturages (F)
The pasture master is responsible for managing the pasture lands of a lineage group.
The pasture lands are possessed by one or more family from the same lineage group. The pasture master has absolute control over the grazing but not over the land which is held patrimonially. The appointment of the pasture master is on the advice of the lineage group as it is not an hereditary function.
6.P.2 Patrilineal
Patrilignage (F); Patrilinaje (E)
A patrilineal lineage group is one where the line of descent and membership is transmitted by the male. The large majority of traditional societies in Africa are patrilineal. LEONARD, R., and LONGBOTTOM, J., 2000
6.P.3 Priest of the land
Prêtre de la terre (F)
The priest of the land is responsible for limited functions in relation to land, including setting out the calendar of works on the land. The priest of the land only exercises limited functions in the area of land relations.
The chief of the land has a social and cultural role that can extend to include those of the priest of the land. These may include looking after the sequence of works and their intervals or putting right any action that puts the life of the community in danger. The chief of the land can therefore exercise the functions of the priest of the land in certain circumstances, but the reverse is not possible. ROULAND, N., 1988
In practice the two positions are quite close. They depend to a great extent on the history of the village and on the sharing out of responsibilities between lineages of more or less equal power.
6.R.1 Right of clearance / Axe rights
Droit de la hache (F)
Rights of clearance arise from the clearing or cutting of bush with the agreement of the first occupier and thereafter are based on continuous usage.
The right of clearance is closely associated with the right of fire. These signify that the person who cuts or burns the natural vegetation has the right to cultivate the cleared land.
6.R.2 Right of first occupancy
Droit du premier occupant (F);
Derecho del primer ocupante (E)
The right of first occupancy is the indissoluble link between the first occupier, the group and the land.
The ritual following the first occupation of land linked the spiritual and terrestrial powers on that land and formed the basis for the indissoluble link between the first occupier, his ancestral group and the land. The present senior descendant of the first occupier assumes the role of chief (land/lineage) and mediates between the spiritual and terrestrial.
Under customary practices this right refers to:
> The first clearer of the land, the ancestral founder of the lineage group to which the land is inalienably attached
> The right of fire and the right of clearance
The two last mentioned rights can also create a right of use on uncultivated land with the agreement of the authority that possesses a prior right on the land. This right returns to the antecedent lineage when cultivation finishes.
The right of first occupation poses the problem of knowing the effective ownership of these lands in the context of modern legislation. The development of value and alienability of the land in rural areas endangers the use rights acquired by non-indigenous people from the lineage groups of the chiefs of the land/lineage. VERDIER, R., 1986
IMAGE 6
6.R.1 Right of clearance / Axe rights
Land clearance in a hilly district of Japan.
M. Griffin, FAO photo.
6.S.1 Sacred wood
Bois sacré (F); Bosque sagrado (E)
A sacred wood is a wood which has a spiritual significance where the land is held by the local spirits and its spiritual character is venerated.
The legal recognition of sacred land and its inviolability creates problems for agricultural extension on the sacred woodland conserved by the village.
6.S.2 System of succession
Système de succession (F); Sistema de sucesión (E)
A system of succession is an approach to passing land. Adistinction is drawn between succession by horizontal transmission (brother to brother), by vertical succession (father to oldest son), or equal succession (to all children).
6.V.1 Village headman
Chef de village (F); Autoridades locales tradicionales / Jefe / Aldea / Autoridades político-administrativas (E)
The village headman, who may also be a customary chief, is usually the administrative head of the village who derives his authority from the state, or from customary law. In some countries, there may be a hierarchy of paramount chief / chief / village headman / family head / individual household.
There is a distinction in many societies between the customary and the administrative hierarchies.
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The customary chief has the ultimate political responsibility in the village community, in which he may or may not be assisted by one or more chiefs of the land. In some cases village chiefs carry out the function of chiefs of the land. This duality of chieftainship results from the system of alliance between ethnic groups or from the presence of new arrivals. ROULAND, N., 1988 The customary village chief is also the administrative chief when he is recognised as the representative of the state. More frequently, two chiefs represent, respectively, the customary authority and the administrative authority in the village. This dual authority relating to the land, arising from the two different sources of legitimacy, increases the feeling of insecurity when there are land disputes. At the same time, informal practices develop, leading to negotiated solutions on a case by case basis. MATHIEU, P., 1990 The village headman (turaga ni koro) in Fiji is appointed by the central Fijian administration to carry out their administrative functions. The appointment is not a popular one, and would not normally be carried out by the customary chief. It would be considered below the dignity of the customary chief to be the servant of the government to his own people. The village headman is responsible for organising village cleaning, house building and carrying out the orders of the district administrator. NAYACAKALOU, R., 1978 |
6.W.1 Water management
Maîtrise de l’eau (F); Dominio sobre el agua / Fontanero / Aguatero (E)
Water management includes the management of both fresh and marine water for fisheries and other purposes.
Water and fishery rights vary considerably from place to place
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Water management includes management of fishery rights under customary practices. The chief of the water specialises in water management. The chief of the water has specific powers to exercise exclusive control over a given fishery that he has inherited or that is part of the property of the lineage. Each village may have several chiefs of the water according to how many lineage fisheries there are to manage. On the other hand, some sections of the river bank are often managed by a single chief of the water from the village. BARRIERE, O., AND C., 1997 |
IMAGE 7
6.W.1 Water management
Hydrology technician explaining the use of a motor pump to supply additional irrigation to farmers in Cambodia.
FAO photo.
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Water management includes the technical management of irrigated land. The control of water results from investment in development, but its effectiveness depends on good collective discipline for the use of the water and, in the medium to long term, on good maintenance of the irrigation network. Exerting this discipline, and undertaking the maintenance effectively, depend on institutional and organisational factors which are linked to the social relationships between the farmers. The increased value of irrigated lands is an important asset for the rural population, particularly for non-peasant farmers who have invested capital from other, usually urban, sources in improving the land. MATHIEU, P., 1990 |
REFERENCES CHAPTER 6
BARRIERE, O., and C., Approches environnementales: systèmes fonciers dans le delta intérieur du Niger: de l’implosion du droit traditionnel à la recherche d’un droit propice à la sécurisation foncière, in LE ROY, E., KARSENTY, A., and BERTRAND, A., La sécurisation foncière en Afrique: pour une gestion viable des ressources renouvelables, Karthala, Paris, 1996
LEONARD, R., and LONGBOTTOM, J., Land Tenure Lexicon: A glossary of terms from English and French speaking West Africa, International Institute for Environment and Development (IIED), London, 2000
MATHIEU, P., Usages de la loi et pratiques foncières dans les aménagements irrigués, in Politique Africaine, No 40, 1990
NAYACAKALOU, R., Tradition and change in the Fijian village, South Pacific Social Sciences Association, Institute of Pacific Studies, University of the South Pacific, Fiji, 1978
ROULAND, N., Anthropologie juridique, PUF, Droit politique et théorique, 1988
VERDIER, R., Civilisations paysannes et traditions juridiques, in Systèmes fonciers à la ville et au village, Paris, L’Harmattan, 1986
