4.1 Projects to promote rural development often have land tenure implications. In some cases, the design of a project may include improvements to land tenure arrangements in order to support its development goals. In other cases, activities of a project may have an impact on land tenure arrangements. Such potential impacts may not be always apparent at the design phase. However, failure to consider land tenure implications from the start may result in unanticipated consequences. Such failure might result in no overall improvements if the land tenure effects cancel out gains made elsewhere in the project, or it could cause the situation to become even worse.
4.2 This chapter illustrates the importance of considering land tenure in at the design phase by illustrating some implications that projects to promote environmental sustainability, gender mainstreaming, and resolution of conflicts and displacement have on land tenure.
4.3 Land tenure and environmental conditions are closely related: land tenure can promote land use practices that harm the environment or it can serve to enhance the environment.
4.4 Unsuitable rules (either formal or informal) for acquiring access to land can lead to environmental degradation. In many parts of the world, clearing the land has become an effective way to lay claim to it. For example, forests have traditionally been used for slash-and-burn agriculture by local people who had customary rights to those resources. The ability of people who are not members of local communities to acquire land by cutting down trees has resulted in the clearing of land on an extensive scale leading to, for example, the fires and smoke that blanketed parts of Asia and South America in recent years.
4.5 Insecure land tenure is linked to poor land use which in turn leads to environmental degradation. Lack of clear rights can reduce the incentive to implement long-term resource measures. In the case of privately-held land, for example, tenant farmers with short-term leases may not undertake soil protection measures, plant trees, and improve pastures if they do not hold the land long enough to receive the benefits of their investments.
4.6 Inappropriate tenure arrangements on state lands can also lead to environmental degradation. In the case of arid or semi-arid grazing systems, some rangelands regarded officially as state property have been converted from traditional pastoralist production to commercial ranching or cultivation. Such policies have failed to recognise that the variability of rainfall requires pastoralists to have access to extensive rangelands. Removal of some of the lands for commercial ranching restricts the mobility of pastoralists. As a result, there is an over-concentration of pastoral livestock in those rangeland areas still accessible to the pastoralists.
4.7 The notion of unsustainable use of common property resources received considerable publicity through the tragedy of the commons described by Hardin. This analysis of over-exploitation has been faulted because it was based on the unrestrained ability to use open-access property systems rather than the community-controlled access of common property resources. However, at times common property tenure systems have been transformed into open access systems, for example, when a communal system becomes too weak to prevent the communal grazing lands from being used by people from outside the community.
4.8 In contrast, well-adapted land tenure rules can promote sustainable land use. Projects should ensure that existing, successful land tenure arrangements are strengthened, rather than threatened. For example, recognition of the strengths and complexities of traditional pastoralist land tenure systems may allow for the flexibility of resource use needed to avoid degradation of the natural resources. Designers may also be able to improve tenure arrangements in order to strengthen natural resource projects. A project may be able to improve security of tenure of tenant farmers, for example, by ensuring that the conditions of their leases encourage them to adopt sustainable land use practices. For example, a lease agreement could encourage investment by providing compensation for unexhausted benefits at the end of the lease period, or by increasing the term of the lease and making it inheritable so that the disincentive effect becomes negligble.
4.9 In order to improve the sustainable use of natural resources, land tenure strategies should be linked with appropriate land management tools, such as agro-ecological zoning, to ensure that the land is put to a use that is suitable for its soil, land form and climatic characteristics. Increased participation and the empowerment of community structures are also required to ensure effective self-management of the natural resource base.
4.10 In most societies, women have unequal access to rural land and associated natural resources. In many cases, societies may have protected the interests of women through customary law, religious law, and legislation in the past, but changing socio-economic conditions often result in the old rules failing to ensure that women have access to the resources needed to raise and care for families. Communities that now experience land shortages or rapidly increasing land values may be unable or reluctant to prevent male relatives from claiming land over which women, particularly widowed or single women, have rights.
4.11 Migration to urban centres has resulted in a rapid rise in the number of rural families that have women as the de facto or de jure heads of households. Many of these women are those with the least social power (i.e., single parents, widows, divorcees, wives of migrant workers, the aged and the infirm). They are largely without effective decision-making powers, often without a voice in community governance, and increasingly without security as individuals under traditional law. Attempts to assert their rights can cause conflicts at the community or even national levels. Too often, women are left holding whatever rights they have at the will of male relatives. Single, divorced or widowed women can end up dependent on the goodwill of distant family members. In an increasing number of countries, the HIV/AIDS pandemic is a major cause of female-headed households.
4.12 Yet increasingly, female-headed households are faced with the responsibility for food production necessary to feed growing populations. Even in male-headed households, women often have prime responsibility for food production while men commonly concentrate more on cash crops. Rural women in particular are responsible for half of the worlds food production and produce between 60 and 80 percent of the food in most developing countries. In sub-Saharan Africa and the Caribbean, they produce up to 80 percent of basic foodstuffs. In Asia, between 50 and 90 percent of the work in the rice fields is done by women. After the harvest, rural women in developing countries are almost entirely responsible for storage, handling, stocking, marketing and processing.
4.13 The introduction of formal legal rules, through land reform and titling and registration projects, often failed to recognise the rights of women. The involvement of men in such projects was considered sufficient and land titles tended to be vested in men on the assumption that women and children would benefit as dependants. Low literacy levels of women in some countries further impede their ability to deal with bureaucratic requirements of formal legal ownership.
4.14 In many societies, improving access and security for women will require changes in policy and legislation, for example specifically recognizing the rights of a woman to hold land, and allowing a legal title to be issued in her name, either individually or jointly with her spouse. More importantly, it may require changes in cultural norms and practices. A countrys laws may declare that men and women have equal rights to hold property and to inherit it, but if cultural norms and practices are in conflict with such laws, the rights of women are likely to be ignored.
4.15 The UN Commission on the Status of Women noted in 1998 that land rights discrimination against women is a violation of human rights. It urged states to design and revise laws to ensure that women are accorded full and equal rights to own land and other property, including through the right to inheritance. The range of laws that affect tenure and gender is broad and includes national constitutions and legislation pertaining to family, inheritance, privatization, agrarian reform, land titling and registration, and resource management. While language and wording of statutory laws are usually gender neutral, the laws themselves may be gender biased, for example, by orienting ownership programmes and regulations towards the male head of the household.
4.16 Dissemination programmes are needed to complement legal reforms. Programmes can vary widely from educational or informational programs that inform women of their rights to land and other resources, through programmes that support womens groups in protecting their tenure rights, to those that raise community consciousness about womens tenure rights. The State has a responsibility to ensure effective communication with citizens in such matters. At the same time, civil society organizations often play valuable roles in informing people of their rights.
4.17 Within development projects, the design of land tenure components should incorporate gender analysis from the start to ensure that particular constraints faced by women are not overlooked. Attempting to incorporate gender considerations once the project objectives and design are in place often results in unproductively forcing gender issues into an inappropriate framework.
4.18 There is typically a close link between tenure and conflict over land. Within a society, competing claims for control and use of land may provoke conflicts. Population growth and changing economic factors can in turn increase competition for access to land. Competition is usually regulated by a societys tenure rules which are developed in response to dynamic social, economic and political relationships. When these tenure rules are unable to adjust sufficiently rapidly to changing circumstances, the chance of conflict arising is increased. For example, customary tenure systems usually originated in areas where resources were extensive compared with the population and, importantly, where there was a shared social consensus between the various holders of rights. When this social consensus breaks down, the door is open for possible conflicts.
4.19 The impacts of changes and uncertainties increase when there is confusion and conflict between customary rules and modern laws. Discrepancies provide ambiguities to be exploited. Parties in a sale of customary land may have differing views as to whether the transfer is permanent or temporary, or whether the buyer has the right to sell the land to another person. Such situations can become complicated when personal interests, arising for example through the personalization of power in a society, interact with competing group interests. Conflicts may arise because of the potential for an owner to sell the same piece of land to more than one buyer through duplicate sales. There may be conflicts between members of a family if the family head sells part of the lineages patrimony without the agreement of other entitled members. State interventions can also increase insecurity and generate conflicts in some circumstances. Inadequate registration procedures, or abusive expropriation may, for example, increase the risk of an owner being dispossessed of rights.
4.20 In other cases, conflicts in a society may involve external actors. Very often, societies accept migrants who then enjoy security provided they honour the conditions of their tenure agreements and other social contracts. Their access to land may have no finite time limit even though they might be considered temporary residents. Conflicts may emerge subsequently when circumstances change. For example, in periods of economic downturns or land shortages, the acceptance given to migrants by local communities may be withdrawn. Conflicts may also arise when outsiders gain access to a communitys land in a manner that does not follow customary rules. The most violent and serious conflicts derive from an explosive mixture of political manipulation of competition for land and challenging of national affiliations against a background of ethnic divisions. As access to land is often related to social identity, the land rights of certain social groups may be contested in relation to national and ethnic identity, providing a breeding ground for the potential political exploitation of tension. Tenure issues are essentially political and the object of political discourse, and tenure relationships are imbedded in and affected by inter-ethnic relationships. Put simply, tenure issues are liable to be politicised and political issues are liable to ethnicised.
4.21 Conflicts can also arise when development projects cause problems rather than solving them. External interventions have the potential to change existing relationships and balances. They may, for example, result in relative changes in land values. In such cases, the redefinition of the local political power equilibrium may create uncertainty over the rules of the game which define use and control of the resources thus leading to potential for conflict. Ironically, some projects to assist people displaced because of war have placed those victims in the midst of new conflicts by resettling them on land that was incorrectly identified as vacant just because no-one appeared to be using it at the time of inspection. Failure to negotiate with existing rights-holders put the victims of conflict in an insecure situation. The situation can become even more problematic when those holding existing rights are also displaced and return after new settlers have moved into the area.
4.22 A problem in many countries is that formal conflict resolution mechanisms are weak or effectively non-existent. Many formal court systems are severely overburdened, with insufficient capacity in terms of personnel and expertise to handle the huge number of cases that come before them. And in some countries, it is precisely land-related disputes that make up the majority of the cases that come before courts and that are frequently the most difficult to resolve quickly - land cases can languish in courts for many years. For many ordinary people, courts are seen as expensive, time-consuming, unpredictable and sometimes even corrupt. The language of lawyers and judges appears alien and complex.
4.23 The creation of specialised tribunals, with special expertise in land matters and in applying alternative dispute resolution techniques is increasingly being explored. There is a growing appreciation of the importance of recognising and strengthening non-state mechanisms for resolving disputes. This may involve building upon existing community-based models, some of which may have been operating for a long time in parallel with government court systems, some of which may be of more recent origin. Exploring and creatively building upon such civil society alternatives may prove the most promising route to reducing the burden on court systems and to ensuring accessible dispute resolution mechanisms that are synchronised with the norms, customs and language of the disputants.
4.24 Land tenure issues related to the environment are not isolated from tenure issues associated with gender or conflicts. Instead, they co-exist in societies. For example, designing a project to promote community forestry or to improve the livelihoods of pastoralists raises the need to incorporate land tenure practices that promote environmentally sustainable land uses, that ensure access to resources by disadvantaged groups, and that address conflict over the rights to use the land.
4.25 Promoting changes, such as gender equity in land ownership, might require not only changes in land policy and land legislation, but also in the attitudes of much of the population. Because land tenure is a relationship among people, the rules defining the rights of access to land reflect the balance, or imbalance, of power as much as anything else. Changing the rules is not simply a matter of increasing access to some; it may result in a fundamental shift in existing power structures. Increased gender sensitivity has resulted in several countries enacting legislation that provides for women to hold legal rights to land. However, in the absence of effective mechanisms of governance and administration to implement such legislation, traditional practices are likely to continue. Advocacy is important, but it should be understood that many changes being advocated might not be implemented in the short-term.
4.26 While strengthening or adapting land tenure arrangements can play a significant role in the outcome of development projects, the effects, of course, are impacted by other factors. Providing more equitable access to land and increased tenure security is often an important part of rural development, but secure access to land itself is not enough. People also need access to complementary productive and institutional resources, including financing, training, open and effective markets, technology, and rural infrastructure if the potential benefits of improved access to land are to be achieved. And when increasing population pressures result in the size of family holdings decreasing with each generation, the creation of opportunities for off-farm income becomes increasingly important to reduce pressures on the land.
4.27 One of the best ways to address these issues is through the development of a comprehensive rural development strategy which focuses on rural infrastructure, creating off-farm rural employment opportunities, reducing labour mobility costs, and increasing education and skills in combination with measures to improve land tenure arrangements and land management. This cross-sectoral approach is more likely to contribute successfully to farm development and to an increase in rural household welfare.