5.1 Land tenure analysis should be programmed at an early stage in the design of rural development projects and programmes. This will help to ensure that existing rights are made more secure, and that conflicts are avoided. Giving due consideration to the relationship of tenure to rural development and food security will aid the sustainability of projects. Identifying the range of possible situations where land tenure may be a relevant issue, and where the potential for conflict may be substantial, is a critical part of any project identification. This is particularly the case where dynamic changes, particularly of population movements, affect the existing rights of populations already in occupation, irrespective of whether that occupation is permanent or intermittent. Disputes over land rights have typically been some of the most intractable problems throughout time and through all of the continents.
5.2 This chapter therefore looks at how appropriate expertise can be built into project design and implementation, and at what skills and experience are required by people to deal with these issues.
5.3 The most appropriate approach to identifying whether a land tenure issue is likely to exist, and particularly at whether it is likely to give rise to conflict, is to seek answers to two questions: What is the existing tenure?; and What could be the possible likely effects or impacts of the project? The two questions are discussed below.
5.4 What is the existing tenure? This question requires the identification of the existing tenure arrangements in the pre-project or pre-change situation. This is likely to involve an assessment of what the tenure situation is:
Under the formal, legally defined framework, usually as laid down by statute law, and what formal legal interests actually exist in the area.
Under the communal or customarily defined frameworks, usually as administered by the relevant customary authority, and what informal or customarily defined interests actually exist.
5.5 It is very easy to fall into the trap of thinking that just because no-one is seen to be in current physical occupation of an area of land that no rights exist in relation to it. It is common, for example, for some rights to be enjoyed periodically, whether on a regular or irregular basis. In some cases, an area may be subject to seasonal rights, such as grazing, which are typically used on an annual basis. In other situations, rights may be recognised over land that is only irregularly occupied over periods of years. Examples of these include semi-arid areas where the precise location of rainfall may determine where pastoralists move their herds, or slash and burn systems where specific areas of land may only be cleared for cultivation for three years in twenty.
5.6 What are the likely effects or impacts of the project? The second question requires an assessment of those circumstances that will change as a result of the project. This assessment should take into account changes arising from external influences such as population movements, etc. Examples range from the most obvious, where Internally Displaced Persons (IDPs) are resettled as a result of the initial phases of emergency food provision, to situations where the changing balance of access to resources between the existing settled populations and the assisted incoming settler populations may lead to friction. Policies in relation to gender and access to land and other resources is a further example of the introduction of a new dynamic.
5.7 Identifying likely impacts of these new dynamics in all their dimensions is a complex task. Taken in conjunction with the analysis resulting from the first question, it will result in a set of strategies in the short, medium and long terms. These will introduce the developments that will be necessary to facilitate equitable access to resources to ensure food security and alleviate poverty, whilst recognising existing rights. These developments may range from short term negotiated agreements on access, through medium term legal changes, to longer term cultural change, for example as will be necessary in many cases in relation to gender issues.
5.8 Timing and time scale for land tenure interventions are important aspects of designing projects. Where the analysis indicates that there are likely to be land related conflicts, it is important to make adequate provision at an early stage in project design for support in relation to land tenure.
5.9 In the short term, land tenure inputs are likely to focus on project design. Examples of target areas of input may be in ensuring that appropriate and accepted mechanisms exist for the protection and maintenance of existing rights. Another target area may be in advocacy roles that promote the ability of people to look after their own interests, and that encourage the respect of those interests. Advocacy roles can be played in relation to specific issues such as the unauthorised fencing of communal lands, thereby depriving the food insecure from access to a critical resource.
5.10 In the medium to long term, land tenure inputs are likely to address the major institutional level problems raised by land tenure changes. These may range from changes required in the legal framework, for example, to instituting appropriate forms of registration of land ownership.
5.11 The skills and experience required for undertaking work in land tenure include both appropriate academic training and field experience. Although these may cover a range of skills, the academic background is likely to include specialisation in one or more land-related disciplines. Several recognised professional backgrounds provide a helpful background in land tenure, and fully qualified professionals usually will have been required to undertake a period of supervised and approved professional practice in order to achieve professional status. Such land-related disciplines include:
Land use/spatial planning
5.12 Other broader academic disciplines, particularly in the social sciences, are valuable when supplemented by studies and research into specifically land tenure related areas. Such broader academic backgrounds may include:
Agricultural, natural resource, and development economics
5.13 The requirement for appropriate experience is a combination of duration, period and levels of work. Typically, it is desirable for someone to have ten years of progressively responsible experience in land tenure related work. While all projects may require a common set of core tenure-related skills, the exact combination of skills will be determined by the nature of the proposed rural development intervention, and the context within which it is to take place. Because land tenure is multi-dimensional, designers of rural development projects should aim at benefitting from a fertile collaboration of tenure specialists who bring complementary sets of tenure skills to the project.
5.14 It is not practical to generate a detailed check list of issues that should be considered in project design and monitoring when dealing with projects that may have land tenure related implications. However, areas that should be analyzed include the legal framework, institutional framework, customary framework, and monitoring and evaluation indicators:
5.15 Legal framework. The legislation and areas of law that will be important to check in relation to tenure rights include, but are not necessarily restricted to:
State land management laws - dealing with activities of state agencies in land tenure
Other land management laws
Land transactions including conveyancing and mortgaging
Land use planning and subdivision control
Land Registration laws
Resource management laws
Property taxation laws
Local government laws
Customary tenure laws
It is important to assess how effectively the formal legal framework, defined by this set of laws and any others that may be relevant, is applied in practice. Such an assessment should include discussions with the responsible agencies, private sector property professions (surveyors, lawyers, real estate brokers, etc) and with people on the ground.
5.16 Institutional framework. The land agencies responsible for administering different components of the legal framework are an important source of information. Such agencies include those responsible for land allocation and resettlement, land registration and cadastre, land valuation and taxation, land management, rural development, agriculture, environment, etc. The levels at which the agencies operate should be identified, e.g., central government, regional, district, village, etc. It is important to identify gaps and overlaps in institutional arrangements and the capacity (or lack of it) for providing land tenure and land administration services in the project area.
5.17 Customary framework. Identifying the situation regarding the customary framework, both in principle and on the ground, requires a more field-based approach to information gathering and analysis. It is important to determine if the existence of formally recognized rights to a parcel precludes the legal recognition of the existence of customary rights over the same area of land. The focus in a customary context will include any codification of customary tenure that may have been included in relevant legislation, but will primarily address the way in which customary tenure operates within the project area.
5.18 Monitoring and evaluation indicators. The monitoring and evaluation of the impacts of interventions in rural development that may have an impact on land tenure should be an important part of project design and should be oriented towards ongoing project refinement and development. The appropriate approach is to undertake a baseline study against which change will be measured by subsequent data gathering. The land tenure related elements that should be recorded and monitored will vary according to the nature of the project, but should be based on a range of indicators in the social and economic areas in order to identify what, if any, changes result. It should be noted, however, that information is rarely neutral. Land is a scarce resource over which there are competing interests and changes to land tenure arrangements may result in some people gaining while others lose.
5.19 Local knowledge of land tenure issues is essential because land tenure arrangements are affected by local social, cultural, economic and political practices, which are, in turn, impacted by local history and geography. Although the level of expertise can vary considerably from country to country, it should be possible to identify sources of knowledge using the following approach:
5.20 Government. Relevant government offices, including ministries related specifically to lands, ministries of agriculture, ministries of regional development and others such as environment are likely to be able to provide information about the legal framework for land tenure and land use within the jurisdiction. Specific information on formal land ownership in defined areas may be found in the relevant land registers or cadastres where they exist and where they are adequately maintained. This is commonly not the case in many parts of the developing world and transitional countries. Moreover, statutory law may not require the registration of some formal legal interests such as short to medium term leases, etc.
5.21 Customary authorities and community associations. The communal or customary interests are likely to be best identified by discussions with the appropriate persons in the social hierarchy that are responsible for making decisions about land allocations. Considerable care is required in identifying this, however, because there may be different perspectives - and vested interests - from different stakeholders. Moreover, those involved may wish to obscure the situation regarding interests in land for a variety of reasons, for example, to reduce liability of paying taxes if a property taxation system is introduced later.
5.22 Universities. In many cases it is very helpful to secure the views of those without vested interests, and it is often useful to seek the knowledge of the relevant departments of local universities dealing with land issues. Typically such information may be found in applied departments including those of surveying, land economy, estate management and law (although such departments are rare in many situations) as well as departments such as anthropology, geography, and sociology.
5.23 Non-Governmental Organizations (NGOs) working in the land sector can be useful in bringing forward information and priorities that are different from those of Government land administrators. In addition to local NGOs, external NGOs have sometimes undertaken land tenure analyses.