Land tenure Institutions

Land Reform Bulletin: 1996
Réforme agraire: 1996
Reforma Agraria: 1996

Cultural Issues in Land Information Systems, Part One

I. Chukwudozie Ezigbalike
M.T. Rakai and I.P. Williamson
Department of Geomatics
University of Melbourne
Parkville, Victoria 3052
Australia

This article considers the cultural dimension of applying the land information system (LIS) concept to lands held under customary land tenure. The article recognizes that the LIS concept has been developed primarily to serve the needs of countries with a western-style land market where individual land rights are the norm. However, many countries where customary landholdings exist, or predominate, are also interested in establishing LISs to manage their land resources better. The article has three main sections. In the first section, western LIS concepts are reviewed, placing their development in a historical perspective. This section includes a sample of the main attributes of land that are stored in a typical LIS. The article then reviews the main features of customary land tenure systems that distinguish them from western systems. Drawing examples from Fiji, where one of the authors is involved in establishing an LIS, the article compares land rights under western tenure to those under customary tenure and discusses the cultural implications of including these attributes in an LIS.


Questions culturales dans les systèmes d'information sur les régimes fonciers

Cet article considère la dimension culturale de l'application du concept du système d'information sur les régimes fonciers (LIS) aux terres gérées par un régime foncier communautaire. Il reconnaît que le concept LIS a d'abord été développé pour les besoins des pays utilisant un marché de style occidental où le droit individuel à la terre est la norme. Cependant, de nombreux pays où les régimes fonciers existent ou prédominent souhaitent également instaurer des LIS afin de mieux gérer leurs ressources en terre. Cet article se compose de trois sections principales. Premièrement, les concepts LIS occidentaux sont examinés en plaçant leur développement dans une perspective historique. Cela comprend un échantillon des principaux attributs de la terre qui sont stockés dans un LIS typique. Puis l'article examine les principales caractéristiques qui distinguent les régimes fonciers communautaires des systèmes occidentaux. En prenant comme exemple les Fidji, où l'un des auteurs participe à l'installation d'un LIS, cet article compare les droits à la terre sous un régime foncier occidental à ceux sous un régime communautaire et discute les implications culturales de l'intégration de ces attributs à un LIS.


Aspectos culturales en los sistemas de información de tierras

El documento considera la dimensión cultural en la aplicación del concepto de un sistema de información de tierras (LIS) en un régimen tradicional de tenencia de la tierra. El estudio reconoce que los conceptos LIS han sido desarrollados para dar respuestas a las necesidades de los países con un mercado de la tierra de tipo occidental donde la norma prevé derechos individuales sobre el uso de la tierra. Sin embargo, algunos países, en los cuales existen sistemas tradicionales de la tenencia de la tierra, están interesados en adoptar el sistema LIS para poder administrar con mayor eficiencia los recursos de tierra. El documento se compone de tres secciones. Primero, los conceptos LIS occidentales son examinados desde una perspectiva histórica. Ello incluye una muestra de las principales características de la tierra que podrían ser registradas en un LIS típico. Sucesivamente, el documento toma en consideración las características del sistema tradicional de la tenencia de la tierra comparado con el sistema occidental. A partir de algunos ejemplos de implementación de un LIS en la islas de Fiji, donde uno de los autores está participando, en el establecimento de un LIS, el documento compara los derechos sobre la tierra según el sistema occidental y según el régimen consuetudinario, discutiendo las implicaciones culturales de incluir estas atribuciones en un LIS.


Contents

Part One

Part Two (separate document)


Introduction

The ownership of land and its resources has been the basis of wealth for most societies since the beginning of civilization. However, the management of such land and resources, while being central to most societies, has seen many different approaches and systems. Traditional agrarian societies, usually based on a complex form of customary land tenure, maintained a balance in the environment that sustained the food supply over generations, subject to the vagaries of nature. Examples of such societies are found all over the world, including in Australia, North America, Africa and the South Pacific.

"Western" countries, on the other hand, have developed land registration and cadastral systems that record the details of all land parcels in a state or jurisdiction. The primary purpose of these systems is to manage land and to support a free land market. Today's land information systems are often outgrowths of many of these land registration systems or, at the very least, land registration systems are an important component of such modern LISs. As a result of this development being primarily in the western world, these LISs are inevitably based on western concepts of land tenure, including the perception of land as a commodity and an agent for economic growth.

De Soto (1993) has pointed out, however, that as many as two-thirds of the countries of the world are still classified as developing countries. The majority of these countries operate under customary land tenure systems that do not encourage the commoditization of land based on cultural ties. The introduction of LISs in these countries would invariably have to accommodate some of the lands held under customary tenure. It is therefore essential to examine the appropriateness of LISs for such lands.

McLaughlin (1981) defines land tenure as "rights, responsibilities and restraints that individuals and groups of individuals have with respect to land". In this article, the discussions relating to land tenure emphasize this triad of rights, responsibilities and restraints, while the reviews and discussion on customary land tenures draw on the first-hand knowledge and experience of two of the authors from Nigeria and Fiji.

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Western Land Information System concept

Cadastral systems were first developed in Europe to support land taxation, which was a major source of government revenue. They were also used for managing and controlling the population. The eleventh-century Doomsday Book of William I in England and the modern cadastres of Napoleon I in France and in many other parts of Europe are prime examples. In general, "a cadastre is a complete and up-to-date official register or inventory of land parcels in any state or jurisdiction containing information about the parcels regarding ownership, valuation, location, area, land use and usually buildings or structures thereon" (Williamson, 1983). There has been a trend for cadastral systems to become closely linked to title registration and landownership. This is owing to a move towards the development of active land markets and an expansion in the use of bank finance for mortgages in supporting the land market, which, in turn, was caused by a trend away from land taxes as the primary source of wealth for governments in the nineteenth and twentieth centuries. Over the last century, cadastral systems have increased in sophistication and developed a multi-purpose role, especially with the advent of computer technology. In cities, these systems are becoming a basic framework for local government administration, city planning, the collection and assessment of rates and the management of utilities and transport systems. Such cadastral systems have developed into parcel-based land information systems, as shown in Figure 1.

FIGURE 1: A statewide parcel-based land information system based on a legal cadastre

Source: Williamson 1985a; and 1985b

In its multi-purpose form, the cadastral concept "has been considerably broadened and the cadastre either contains additional information or is linked to other databases, especially when in digital form" (Benwell and Ezigbalike 1994). The term "land information system" (LIS) has been used increasingly worldwide to describe such systems which support the management of spatial data of all forms within a government context. It has been used in many countries as the global term to include all cadastral and parcel-based, environmental and natural resource systems on both small and large scales. LIS refers primarily to systems and processes, with minimal emphasis on technology. A successful LIS should be able to store and provide all the information relevant to the nature, extent and possession of land rights. The widespread practice in western countries of recording all dealings that affect the ownership of land has facilitated this task. The standard western LIS has adopted the parcel of land as the basic organizational unit for referencing land tenure data and information. This basic organizational unit links all disparate data sets with each other. The attributes of land maintained in such an LIS can be classified according to two types - spatial attributes and textual or non-spatial attributes. The spatial attributes of a land parcel determine the following:

These attributes can be collected directly by conventional field surveys or remotely by means of aerial photography, or through some combination of these methods. Textual or non-spatial attributes of the land parcel determine the following:

The textual attributes, which generally require some form of adjudication or legal investigation, include :

The following is a list of typical tenure information that may be found in a western land tenure-based LIS:

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Customary land tenures

Definition of customary tenure

Acquaye (1984) suggests that customary land tenure "does not lend itself easily to precise definition" for two main reasons. First, "it can never be of universal application because it varies between communities". Second, "it is constantly undergoing natural evolution, and [is] being modified or even completely changed by the grafting on of foreign legal concepts". A report prepared for the United Nations (UN) defined customary land tenure as:

(quoted in Noronha and Lethem, 1983, p. 7)

This definition has been criticized by Simpson (1976, p. 224) because it

The definition has also been analysed and criticized by Noronha and Lethem (1983, p. 7-9) who pointed out: In the light of the above criticisms, Noronha and Lethem (1983, p. 9), preferring the word "traditional" to "customary", defined traditional land tenure as: The latter definition is used in this article. It is no longer true that customary land tenure is not recognized by statute law nor that it is always unwritten. Rakai (1993, p. 144) observed that customary land tenures in Fiji can be classified according to formal and informal land tenures:

Features of customary land tenure

Dual land tenure systems. As has been mentioned in the definition and customs subsections, customary tenure is changing under several influences. The most significant agent of change is the direct or indirect contact of communities with outside communities, especially European ones. Colonial governments, and sometimes post-colonial governments, have introduced land laws fashioned along the lines of "western" (or European) economies. These laws usually include incentives or sanctions to encourage or persuade landholders to convert their land rights to the perceived superior system. Despite the efforts made in this direction, the customary systems have proved resilient. The result is therefore a dual land tenure system in which some lands are held under western/European laws, while others are held under customary laws, albeit formalized by legislation. Two main factors account for the resilience of customary land tenure systems. First is the kinship and lineage organization of societies whereby descendants of a common ancestor live together and discourage immigration into their community. The second factor is that "access to land in most of rural Africa continues to be determined by indigenous systems of land tenure" (Bruce, 1988). Fourie (1994) came to similar conclusions from extensive fieldwork in an informal settlement: "Even in an urban area behaviour in significant measure is shaped by historically determined relationships and perceptions of land, rather than exclusively by economic forces." The most important source of land rights is through inheritance. Before the introduction of the European concept of testacy, which is still not very commonly observed, when the holder of land rights died, the rights either devolved on the holder's children as family property or reverted to a communal pool for reallocation by the responsible authorities. Nwabueze (1972, p. 45­46) notes that, in Nigeria, the devolution of the property upon children "applies with equal force even where the property has been acquired and held by the intestate under English law. The operation of this rule imposes a severe limitation upon the process of individualization; for it means that whatever progress is made in one generation is stultified in the next." While the 1978 Land Use Act of Nigeria attempted "to provide a uniform mode of access to land in Nigeria" (Aina, 1990, p. 196), it created another dual system, that of "customary" and "statutory" occupancy.

Land tenure based on custom. Customary land tenure is assumed to be based on "custom". There has been considerable discussion in the literature regarding this assumption. "These systems are frequently referred to as ëcustomary' or ëtraditional', a misleading practice because they change and evolve rapidly; often an important customary rule turns out to be only a generation old" (Bruce, 1993, p. 35). Such problems arise because "custom" seems to be used in its specialized context: "in English law to denote a peculiar exception to the common law of the Land; ...and [which] must be shown to be of antiquity" (Lloyd, 1962, p. 16). This usage explains why it is also referred to as "traditional", implying long-established practice passed down from previous generations.

No system has maintained its "indigenous" (another term commonly used to describe customary tenure) purity. In view of this fact, and of the points raised above for definition, the sense in which "custom" would now refer to land tenure practices and rules is in the sense of "a synonym for usage - what is usually done" (Lloyd, 1962, p. 15). This implies some element of the English law usage, viz. that such practices and rules "be accepted by those to whom they refer as certain, reasonable and obligatory".

It is no longer true that customary land tenure is based on unwritten law. Rakai (1993, p. 144) referred to "formal customary land tenures" as "those that have been recognized and regulated by government laws". The Nigerian Land Use Act of 1978 provided as follows:

2.(1) As from the commencement of this Decree...

  1. all other land shall, subject to this Decree, be under the control and management of the Local Government within the area of jurisdiction of which the land is situated....
(5) There shall also be established for each Local Government a body to be known as "the Land Allocation Advisory Committee" which shall consist of such persons as may be determined by the Military Governor....

6. (1) It shall be lawful for a Local Government in respect of land not in an urban area:

  1. to grant customary rights of occupancy to any person or organization for the use of land in the Local Government area for agricultural, residential and other purposes;

  2. to grant customary rights of occupancy to any person or organization for the use of land for grazing purposes and such other purposes ancilliary to agricultural purposes as may be customary in the Local Government area concerned.

    (Government of Nigeria, 1979)

The rules and practices are also no longer simply passed on by word of mouth. With the introduction of literacy, more people are documenting, although not necessarily registering, their land rights and transactions. It is not uncommon now for a father who is barely literate to prepare a document allocating residential sites to his sons. Such a document would confer the customary rights of occupancy. It would not be a will and would not be registered nor registrable, except for the possibility of conversion to a "statutory right of occupancy" as provided by the 1978 Land Use Act. Although the Act provides for the passing on of land upon death, according to "the customary law of the region" (Igbozurike, 1980, p. 16), it does not expressly provide for such allocation but, by recognizing customary law, the Act allows such modern expression of the custom.

The concept of ownership. Ownership of a thing is comprised of "the right to make physical use of a thing, the right to the income from it, in money, in kind or in services and the power of management, including that of alienation" (Nwabueze, 1972, p. 7). In customary land law, the concept of ownership is different from the western concept, for example:

While the rights held under customary law may be only rights of occupancy or use, Nwabueze (1972, p. 26) observes that in many cases "a customary right of occupancy has an indefiniteness and infinitude of duration, which is a striking indicum of absolute ownership." Elias (1971, p. 74) cautions that:

This inability to alienate the land is the main indicator, in the western sense, of an interest or right which is less than ownership:

Allodial nature of rights. Although the cardinal right of alienation may be missing in customary rights in land, the rights that exist tend to be absolute in nature, as Nwabueze (1972, p. 28) explains:

This does not however mean that the rights are exclusive. Customary owners may grant passage or usufruct rights over the land they occupy, thereby qualifying their own rights. However, Nwabueze (1972, p. 29) points out that "such rights do not have the same incidents as under modern law". In addition, the right of any owner is qualified by the restrictive rights vested in the planning authorities. Lands held under customary tenure are usually in rural areas, outside the ambit of such planning, and therefore less restricted.

It should be pointed out that among societies that had central government structures, whether indigenous or introduced by colonial governments, the allocation and control of land is one of the most important attributes of the power of the authority. However, Elias (1971, p. 74) notes that "the chief has no right, even under ancient customary tenure, of continuous or detailed supervision over any land which has once been granted to a family, or to an individual, whose right of enjoyment and user cannot be lightly disturbed unless for good cause shown."

Group ownership of rights. The most important feature of customary land tenure is the predominance of group ownership of whatever rights exist in land. Acquaye (1984, p. 17) notes that rights are usually "held corporately by a social group". This group could be "a tribe, village, clan, lineage, or family". This is a consequence of the group control and discipline which exist at a very high level:

Such group control is commonly described as communal ownership. Bruce (1988) discussed three common situations covered by the term "communal". The first connotation, of real communal ownership with no individual rights whatsoever, he found to exist ìonly in exceptional cases". The second connotation is the concept of "a right of commons" whereby each member of a group uses independently the full extent of certain land. This, explains Bruce, is found mostly with grazing land and areas used for hunting and the collection of fuelwood, but never in arable lands. There is a third connotation: The most important type of group landholding is family land. While the word "family" has a precise meaning in English, its meaning varies according to which of several approximate concepts it is translated into. For instance, in Southern Nigeria, the primary meaning of family is: Elsewhere, quoting the work of an earlier writer, Coker (1966, p. 24) provided a more precise definition of an extended family among the Igbo as: The family, however defined, is the most important landowning unit. Family lands usually result from the descendants of a founder preferring to hold the land together rather than individually, the size of the family increasing as new generations are added.

A question that arises naturally regards the nature of the rights of each member of the landowning group in the group's property. Does each person hold a separate individual interest over the whole land or an aliquot portion of it? Alternatively, does the community constitute a landowning corporate entity? Group ownership is not uncommon in western land tenure, for example English law has joint tenancy, but how does this compare with group ownership under traditional tenure?

Religious significance of land. In places where customary tenure exists, there is usually some religious significance attached to land. It is regarded as a gift from God, to varying degrees. Among the Igbo of Nigeria, for example, land, ground and earth would synonymously be translated as Ala, the Earth-goddess. She is the most significant and most cherished of all Igbo deities, being responsible for the place where one lives and plants crops (Igbozurike, 1980, p. 113), the fount of all fertility and the guardian of public morality (Meek, 1957, p. 147). Still using the Igbo example, ancestors play an important part in the lives of the living. The final resting place of the group's ancestors is therefore made sacred.

The result is that even though land now has a commercial value and even customary lands are exchanged for value, there are some plots with special religious or metaphysical significance that will not normally be offered for sale.

The concept of permanent home. Even today, most traditional non-urban communities are comprised of people who are related by blood. These relatives have varying rights and responsibilities in the community lands. People have always been able to travel out of their communities on commercial ventures for varying lengths of time and, while on such trips, they usually set up temporary homes. To most people, their real home is the ancestral home to which they always return, where their rights are never lost and they are never discharged of their responsibilities. These communities do not usually have a concept equivalent to the English word immigration. While on the trip, the "stranger" may be given rights to land for housing, agriculture or other industry, but these rights are limited and do not usually extinguish the rights of the original owner or community. While the stranger has some responsibilities in the community, these are not usually the same as those of the permanent members. Aina (1990, p. 196) observed that in Nigeria, "distinction [is] made in all indigenous communities between ëstrangers' and members of the community. Again this distinction contributed to the restrictions placed on providing land to migrants for building." This "stranger" classification is the recognition of the fact that strangers do not lose their membership of their original, ancestral communities. Their rights to land, and associated responsibilities, are still respected and binding. Thus, a Fijian who lives in Suva still has land rights and development responsibilities in Sawana, her permanent home, and a Nigerian who in the past 12 years has spent a cumulative total of two months in Nigeria still regards Nimo as his permanent home. As far as the relatives "back home" are concerned, these movements are no different from the seasonal movements of farmers or fishermen who return at the end of the season. In the meantime, part of the earnings of those living away from their permanent homies are repatriated and applied towards general development projects and sometimes the sustenance of older relatives who can no longer earn independent incomes. Even children born in these "places of work" know that their real home is wherever their parents originally came from. Hardin (1990, p. 63) reporting on "the extended family labyrinthian web of rights and duties" of an Accra-based lecturer in Ghana observed that the system "does not follow free-market precepts, Marxist dogma or the rule of law. It is governed by blood, of tradition, of guilt." Even in modern Nigeria, in spite of the access to land anywhere that was guaranteed by the 1978 Land Use Act, access to some official entitlements is still determined by the ubiquitous "state of origin" question on many forms.

Transactions in land. Even where there is an abundance of land, the land might not be equally suitable for agriculture, grazing, housing or whatever other uses people might have for it. In an agricultural community the more fertile lands normally attracted more attention during the initial settlement of the community when land was being cleared and colonized. Some people would eventually gain control over more parcels of land of a certain desirable nature than they could effectively use, while others would have fewer. In spite of the religious attitude which discouraged outright sale, and the apparent abundance of land, various types of land transactions developed.

Lease. In Nigeria, the lease under customary tenure is very similar to that under English law. The usual form is where one person creates use rights in favour of another for a specific period, for a specific purpose (usually agriculture) and for some material return. The rent was usually paid in goods or services but, with economic evolution, cash rent is now common. The residential leases that are normally granted to strangers are usually for the indefinite period of the latter's sojourn; although agricultural leases are usually for one farming period, indefinite arrangements are not uncommon, especially for strangers.

Pledge. This is the practice of using land as a security to borrow money or goods or to get services for credit. It contrasts with the western concept of mortgage because the pledgor surrenders possession of the land to the pledgee until the debt is discharged. With the introduction of land sales, the pledge sometimes merges into a sale, the parties agreeing on a time limit after which the pledgor can no longer redeem the land.

Gift. This is the gratuitous granting of rights to land to another person. No price is fixed, nor are any conditions stipulated. The giver transfers whatever interest they had in the land to the beneficiary. Land gifts are made for varying purposes. A parent may make a land gift to a child, outside and separate from the child's entitled inheritance. This could be done to circumvent inheritance provisions, for example to provide for a child in societies where a person's land passes on to the surviving blood siblings or to provide for a daughter where land is inherited only by sons.

Outright sale. While it may be true that land did not have an exchange value in times of abundance and that religious beliefs discourage the sale of certain types of land, land is now being bartered and sold. Not all societies were blessed with an abundance of land. For example, the people in the southern forest regions of Nigeria did not have much land and therefore have developed more sedentary lifestyles, with closely knit societal structures where descendants of a common ancestor live together. The land available to the community was limited and was a measure of wealth and importance in the community, among other measures of affluence. It should therefore be expected that, with the introduction of the cash economy, some people would be expected to convert such wealth into cash: "With increasing commercialization, land has become a fertile source of income in the form of periodic rent or lump-sum payment" (Nwabueze, 1972, p. 7).

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