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Re: HLPE consultation on the V0 draft of the Report: Investing in smallholder agriculture for food and nutrition security

French Council of the Notarial Profession , France
25.01.2013
FSN Forum

Food insecurity created by the increase in the price of foodstuffs has led to a new phenomenon in Africa: the acquisition or leasing by governments or firms from certain countries of vast stretches of agricultural land in order to meet their own food needs. According to the FAO, between 20 and 30 million hectares have been taken over in recent years.

Causes of the land grabs

In order to feed the 9 billion people who will inhabit the earth in 2050, it will be necessary to double agricultural production: land—and the water that comes with it—has now become a means of exerting power and ensuring economic security, alongside oil. States aim to secure their sources of water and agricultural supplies for the long term, either directly or indirectly, through public companies or sovereign funds.

50% of potentially cultivable land is currently underused, as the people who live on it do not have the necessary resources to develop it, nor do they have secure legal access to the land. Land of this type is the first target of these new investors.

The question that now arises is which production model will best enhance the value of this land.

The right to food and land security

Access to natural resources, without which the right to food cannot become a reality, is closely linked to secure access to land. It is particularly difficult to determine the real-property rights of rural populations in developing and emerging countries as laws are imprecise or overlap, customary rights are not codified and land registries are either non-existent or obsolete.

It is for this reason that the issue of land governance must be central to our thoughts about food security: economic security cannot exist without legal certainty, particularly land security. In consequence, the legal system [that guarantees the real-property rights] must come into existence before the economic system.

If Africans are provided with secure title deeds they can be helped to fight poverty themselves, because secure title deeds make it easier to get credit. With this end in mind, the French High Council of the Notarial Profession set up a working group on real-estate titling, or real-property registration. Its aim is to provide support for countries that wish to introduce a secure system of land registration.

How can countries affected by land grabs be protected?

In order to ensure that the countries concerned derive a benefit from these massive investments, firstly, the rights of the rural populations must be made secure, and secondly, the contracts made by the governments of these countries with the investors (whether companies or states) must be regulated.

1 - SECURING THE RIGHTS OF RURAL POPULATIONS

The inhabitants of the areas transferred to investors are powerless in the face of these newcomers, as their real-property rights are recognized neither by the players involved in these operations nor by the governments of the countries concerned.

While the issue of why to protect these rights is political and economic, the issue of how to protect them is mainly legal.

French notaires can make a real contribution in this latter area. The practical implementation of such protection requires a conceptual framework and also a modus operandi.

The task of securing the rights of rural populations over the land divides into three stages :

- identification

- recognition

- protection

a) The identification and definition of land rights

Ascertaining and recognising a number of rights, whether individual or collective, over land, begins with an investigation into the land and involves listening to the people concerned. This is followed by a legal analysis of the rights as they are understood by their holders.

It is imperative to recognise the great diversity of systems of real-property rights and to relate them to public-interest issues, such as the careful stewardship of land and of natural resources.

b) The recognition of land rights

The next stage is the recognition of rights (whether ownership rights, customary rights, surface rights, concessionary rights, rights conferred by a lease or sui generis rights) which, in order to be effective, must be registered—usually as a result of registration or titling campaigns. This enables the people concerned to have their rights in the land, which were defined at the previous stage, formally recognised (see for example the land registration offices in Madagascar).

The possession of an effective, indisputable title deed enables the owner’s rights to be recognised. It is the deed that gives the holder access to the law. Apart from the security that it brings, the recognition of real-property rights has a number of positive consequences, such as the recognition of the dignity of the person, particularly the rights of women, the improvement of assets and therefore agricultural production, and access to microcredit.

The most important thing is to recognise the land right, as it is understood by the holder of the right.

c) Protection of land rights

The protection of land rights is guaranteed by the registration of those rights in a public register. In the interests of good land governance, the rights recognition process, which is the work of a field legal officer, should be distinct from the process of registration, which is a job for a state official or the authority responsible for keeping the register up to date.

An efficient land registration system must therefore include not only access to the right but also its later protection, placing emphasis on the prevention of disputes.

2 - MANAGEMENT AND REGULATION OF CONTRACTS ALLOWING FOR THE ACQUISITION OF LAND ON A MASSIVE SCALE

As the acquisition of land on a massive scale is usually achieved by signing a contract, it is important to set up a quality charter for each country concerned, which will lay down precisely all the rights and obligations of the beneficiaries.

Such contracts must be regulated insofar as they may harm the territory as a whole, the country’s natural resources and the rights of the local population. For this reason, the World Bank has expressed the wish that henceforth reference will be made to the voluntary guidelines deriving from the consultation procedure that was set up by the FAO on responsible governance and the right to access land and adopted in 2012 by the United Nations thanks to the work of the CSA and the FAO.

Good governance should therefore include regulation, which means that contracts must be fair : it is normal for an investor to derive a profit from its investment, but only insofar as it undertakes to acknowledge a certain number obligations.

The obligations to be borne by investors may be :

  • Respect for the rights of local populations
  • Obligation to pay a land tax
  • Requirement to participate financially in the setting-up of agricultural cooperatives
  • Training of the local people
  • The choice of crops
  • The determination of a “fair price”
  • Obligation to choose agricultural workers from the local population
  • Respect for a minimum wage
  • Etc…

The introduction of such a policy would be totally consistent with three of the eight Millennium Development Goals (MDG) which the United Nations Member States hope to achieve by 2015 :

  • To eradicate extreme poverty and hunger
  • To ensure environmental sustainability
  • To develop a global partnership for development

Willy Giacchino

Expert Land Tenure Security for the French High Council of the Notarial Profession

January 2013