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

Cultural Issues in Land Information Systems, Part One

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

Aspectos culturales en los sistemas de información de tierras

Contents

• Introduction

• Western Land Information System concept

• Customary land tenures
  • Definition of customary tenure
    
  • Features of customary land tenure
    
    • Dual land tenure systems
    • Land tenure based on custom
    • The concept of ownership
    • Allodial nature of rights
    • Group ownership of rights
    • Religious significance of land
    • The concept of permanent home
    • Transactions in land

Part Two (separate document)

• Incorporating customary land tenure into Land Information Systems in Fiji
  • The issues with particular reference to Fiji
    • Economic issues
    • Institutional issues
    • Social and policy issues
    • Technical issues

• Conclusions

• Bibliography

• Annex: Advantages and disadvantages of incorporating rights, restrictions and responsibilities of customary land tenure into an LIS in Fiji

Introduction

"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

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:

• location (state/province, district, block, absolute coordinates);
• size (area);
• shape (lengths of sides, angles, azimuths or bearings, relative coordinates).

• the nature of the land tenure rights (rights, restraints, responsibilities);
• the identification of those who hold them (names, addresses).

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

• the length of time the use may continue;
• the right of inheritance;
• what rent is due, and when;
• the right to sell the land;
• the right to mortgage the land;
• the nature and limits of land-use;
• the rights of reversion;
• residence and improvement requirements.

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

• ownership (name, postal address, street address);
• occupier (name, postal address, street address);
• full private rights (title reference, dealings, transfer documents);
• parcel boundaries and location (legal description, e.g. plan and lot number, cadastral boundary data, map reference);
• private restrictions (mortgage, covenants, caveats);
• public restrictions (zoning);
• limited rights (leases, water);
• land value (assessed, market);
• other ownership attributes (historic descriptions);
• other parcel attributes (land-use, cultural features, e.g. buildings, roads).

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Customary land tenures

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:

The rights to use or dispose of use-rights over land which rest neither on the exercise of brute force, nor on evidence of rights guaranteed by government statute, but on the fact that they are recognized as legitimate by the community, the rules governing the acquisition and transmission of these rights being usually explicit and generally known though not normally recorded in writing.

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

...leaves wide open the vital question of how the rules are arrived at; also, it is very doubtful if many practical administrators will agree that such rules are usually explicit; on the contrary, it is the uncertainty of these "rules" that gives rise to one of the most valid criticisms of customary land law.

The use of the words "brute force" takes the reader back to Hobbes and the artificial reflections on life in the early days of man. The definition, further, is too narrow: it excludes statutes recognizing customary rights. It also eliminates codes which are written and customarily govern the use and transmission of property among significant sections of the population - the Islamic and Hindu codes.

...the rules accepted by a group of the ways in which land is held, used, transferred and transmitted. These rules may have the "force of law", that is, they may be enforced by the courts of a country even though they [may be] unwritten and not incorporated, or specifically set out, in any statutes.

Formal customary land tenures are those that have been regulated by government laws and regulations and are therefore officially recognized and sanctioned. These include such features as the universal classification of Fijian landowning groups into tokatoka or mataqali; the universal sanctioning of the aristocratic rights of chiefs to a portion of the yields of the land being epitomized in their being permanently apportioned a percentage of all lease rentals.

Informal customary land tenures are those that are not officially sanctioned or recognized by the courts or government, but are practised and accepted as an unspoken long-term customary practice. These systems include such things as complying with traditional beliefs and customary taboos: e.g. lala - providing services to chiefs.

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...

2. 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....

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:

Some legal writers refer to the ownership of a freehold, or ownership of a leasehold; use of the word "ownership" seems unnecessary here since its connotation is merely "to have" and cannot imply any more than this. One does not own a right or series of rights; one has or holds a right, and the possession of a certain quantum of rights in respect of land can be described as ownership of the land.... In Yoruba one can but say, "the land is mine - iltemi ni". (Lloyd, 1962, p. 66)

Care must also be taken in applying the word "ownership" to the complex scheme of relations between the Nigerian and the soil. Under the customary law of tenure there is no conception of landholding comparable to the English idea of a fee simple absolute in possession. The average occupier has something analogous to a possessory title which he, however, enjoys in perpetuity and which gives him powers of user and disposition scarcely distinguishable from those of an absolute freeholder, except that he cannot alienate his holding so as to divest himself and his family of the right to ultimate title.

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

It may be said that the most conclusive way in which a person can demonstrate that he is the owner of a thing is if he can alienate it outright to any one he likes. The real essence of ownership lies therefore in the power of alienation; it connotes essentially the totality of the rights of disposal over a thing. The right to disposal is not only the most conclusive but also the most valuable incident of ownership.

(Nwabueze, 1972, p. 7)

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:

...absolute ownership in this context is used primarily in contradistinction to relative or limited ownership; ...absolute ownership implies not only the fullest amplitude of rights of enjoyment, management and disposal over property, but also that the owner's title is superior to, and not subordinated or dependent upon, any other rights that may exist in the property in favour of other persons. It is not necessary to the concept of absolute ownership that the rights of the owner should be exclusive of all other rights in the property, so long as these others are not superior to his own.

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:

Even among the peoples where one would not expect this, as where herding makes for a nomadic way of life, the controls are nevertheless present, based on well-established principles that arise out of the relationship between the people and the political institutions that they have set up in their historic experience for their own governing.

(Herskovits, 1956, p. 235)

Third, the term may refer to significant group control, reflecting some group interest, over land that is apportioned for the relatively exclusive use of individuals or families of the group. The group may be an extended family, a lineage, a clan, a village, or a tribe. It is usually defined by common descent, common residence, or some combination of the two principles. The group's interest may be as a property right or couched in political and administrative terms. It is only in this last sense that most indigenous tenure in farmland is "communal".

(Bruce, 1988, p. 25)

...a social institution consisting of all the persons who are descended through the same line (the male line in a patrilineal, the female line in a matrilineal, society) from a common ancestor, and who still owe allegiance to or recognize the overall authority of one of their number as head and legal successor to the said ancestral founder...

(Coker, 1966, p. 9)

...a group of closely related people, known by a common name and consisting usually of a man and his wives and children, his sons' wives and children, his brothers and half-brothers and their wives and children and possibly near relations.... All the people born in a village believe themselves to be descended ultimately from a common ancestor.

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?

There is perhaps no rule of customary law that is more firmly established than that no member of a landowning community or family has a separate individual title of ownership to the whole or any part of the communal land. indeed the constitution of the community, village or family for purposes of landownership makes such a view of the nature of communal ownership quite untenable....

The alternative of regarding the community, village or family as a corporate entity, distinct from its members, must also be rejected. With regard to the community or village it is necessary to distinguish its social from its political aspects.... It is the community or family as a social unit which is pre-eminently important for this purpose; in this capacity the community, village or family is not a corporate entity in law, but merely a society or collection of persons with a common interest in land, all of whom are jointly, severally and directly liable for debts properly incurred on behalf of the land.

(Nwabueze, 1972, p. 53-54)

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.

Another factor of importance in all the continent that must be taken into account in dealing with Africans, and which certainly must enter into the discussion of the tenure problems and land-use in other parts of the world, is the role of the supernatural. It may seem curious to inject this note here, but I submit that in any civilization where a cult of the ancestors, for example, dictates the reason why people are devoted to their land, this element in their belief system is crucial if proposals to introduce changes in the holding or use of the land go beyond technical considerations and are to achieve any measure of cooperation. Certainly, in Africa, the relationship between a given group and the deities believed to control the land plus the ancestors who are attached to the particular plots where they lived is absolutely critical.

(Herskovits, 1956, p. 235)

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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