Land tenure Institutions

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

Cultural Issues in Land Information Systems, Part Two

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

Contents

Part Two


Incorporating customary land tenure Into Land Information Systems in Fiji

As discussed earlier, customary land tenure refers to the accepted practices and conditions under which rights, responsibilities and restraints are created for individuals and groups of individuals with respect to land. Table 1 describes some of the rights attached to the land and the associated restrictions and responsibilities attached with the rights to the land.

TABLE 1. Rights, restrictions and responsibilities associated with customary tenures in Fiji
Rights Restrictions Responsibilities
Right to build a houseHeight and style restrictions
On others not to rebuild over land without consent, even in case of absenteeism
Contribution to village maintenance
Community obligations
Agricultural rights
Contribution to village maintenance
Community obligations
Inherited ownership and land-use rights of individual Cannot transfer right without first obtaining consent of community Fulfilment of social and traditional obligations
Good land management practices
Inherited land-use rights of older siblings Cannot transfer right without first obtaining consent of community Maintenance of interests of younger siblings and their families
Good land management practices
Acquisition rights of womenRights attach only until marriage or migration, when they revert to remaining members Fulfilment of social and traditional obligations
Good land management practices
Rights of chiefs to a portion of the profits of the land
Fulfilment of social and traditional obligations
Maintenance of interests of people
Land-use rights of migrant settlersRights restricted to use and occupation of land
Rights not inheritable
Fulfilment of social and traditional obligations
Passing of part of harvest to supplier of land
Fishing and hunting rightsLocation-specific method restrictions
Rights restricted to allocated areas
Seasonal restrictions (e.g. during breeding season)
Observation of conservation practices
Access to sites of spiritual, historical significance Free access to selected individuals only (e.g. priests, chiefs) Dress and behave respectfully, in accordance with customs and traditions

It has been explained that land information systems are systems for managing land-related data to support land management and land administration. So far, the LIS has been applied in areas where land is held under "western"-style laws but there is no reason why the same concepts of informed management and administration should not be applied to all lands, irrespective of which land tenure system they are held under. Ezigbalike and Benwell (1994) have suggested that applying cadastral concepts to customary tenure areas has tended to reform the customs to fit the western concepts, with some cultural costs. In order to ensure that the LIS will be relevant to the needs of the community, the cultural dimension should be considered when incorporating customary tenure rights into the LIS. As a first step towards this consideration, Table 2 lists some important features of customary tenure, classifies them into formal and informal and compares them with western tenures.

TABLE 2. Comparative attributes of Land tenure systems in Fiji
Customary land tenure Western land tenure
Informal Formal
Rights legitimized by:Recognition and acceptance by community (and reinforced by occupation and amicable relationships within community) Statutorily by legislationStatutorily by legislation
Land rights transmitted by: For landowning members: inheritance qualified by place of residence, need, gifts, number of children, etc.
For immigrants: transmitted in response to their needs or other circumstances, e.g. gift, reward
Statutorily, only by inheritance or legally documented gift
By sale, for registered leases
All by statute
Inheritance
By sale
All by statute
Land used:Individually IndividuallyIndividually
Land owned:By group
Groups vary in size and type, according
Expiry of temporary user rights
By group
Group size and type permanently defined, legally (e.g. commonly mataqali)
By individual or corporation, but held allodially by state/crown
Conditions for reversion of land rights from individual back to group Abandoned land
Extinction of individual user subgroup
Renouncement of allegiance to group
Appointed term, e.g. two years of absenteeism from village, but rarely, if ever, enforced Not applicable, since rights held either in perpetuity for freeholds or for term of lease for leaseholds
Social, mystical or religious attributes attached to land Sanctity of spiritual sites
Ancestral sites
Not legally acknowledged or recognized None, apart from reserves set aside for cemeteries or religious sites
Degree of rights heldVaries according to political/social status
May not be distinct or clear-cut
Varies according to political/social status
Varies according to size of land allocation
Equally by individuals

In this analysis, a Hohfeldian approach, which attempts to match rights with associated responsibilities and restraints, is taken (see, for example, Dias 1985; Stoljar 1984).
Where customary tenure has been formalized and/or codified it is expected that the attributes of land that are incident on such customary tenures could be accommodated, as is done in Fiji. Informal features of customary tenure, however, are yet to be systematically documented and included into an LIS.

The issues with particular reference to Fiji

Incorporating customary land tenure into an LIS raises issues of economic, social, institutional and technical significance. The cultural dimensions of these issues are discussed below. The annex on p. 36 tabulates the possible advantages and disadvantages of recording the rights, restrictions and responsibilities in customary lands in a LIS.

Economic issues. Most communal lands are at present used for subsistence agriculture, although in Fiji they may also be used for very small-scale commercial farming - for instance the cultivation of vegetables or fruits that are sold locally to pay for immediate daily needs. There may also be some low-level cottage industry. The income from these activities is limited and the taukei (indigenous Fijians) in these areas sometimes have to depend on relatives "abroad" - i.e. in urban centres and overseas - for local development funds. An objective of the government is to encourage the development of the taukei by improving their access to basic needs and services, resulting in a higher standard of living. This will be achieved by enhancing the taukei's ability to derive higher independent incomes from the available natural, mainly land- and sea-based, resources. This implies an improvement in the exploitation and marketing of these resources. Information is needed to evaluate the capabilities of the land and sea and to decide on suitable and appropriate technology for sustainable exploitation.

A fundamental economic problem "is that the return on capital investment in the development of LIS is neither immediate nor guaranteed" (Dale and McLaughlin, 1988, p. 188). This problem is even more serious in customary societies which are not expected to be economically self-sufficient and depend on contributions from relatives in cities and abroad for development projects. The source of initial seed funds for an LIS project would be a major issue as banks, by their nature, would normally be interested in systems that are market-driven and where the investment is relatively secure.

Institutional issues. Where institutions to administer the affairs of the indigenous people currently exist, it will be advisable to involve those institutions that closely interact with the indigenous people, in order to collect the data that will be required for the LIS efficiently and authoritatively. In Fiji, three institutions are responsible for administering the affairs of the indigenous people. These institutions, the Native Lands and Fisheries Commission (NL&FC), the Fijian Affairs Board (FAB) and the Native Lands Trust Board (NLTB), have different functions. FAB monitors the socio-economic aspects of indigenous Fijians and accordingly initiates village development projects; NLTB looks after the administration of the land of indigenous Fijians; and NL&FC looks after the maintenance of the Vola ni Kawa Bula (VKB - the register of indigenous Fijians) and the Register of Native Lands and resolves any disputes or claims that may arise relating to posts of customary authority, including land and fishing rights. The active involvement of these three institutions is essential for the success of any LIS project, each being given definite responsibilities in the project. These institutions are also expected to be the major institutional users of the LIS for decision-making; their mandates and requirements need to be considered in the system design. It is particularly important to examine the relationship between them and the traditional institutions and to exploit such links in seeking community support and participation, particularly regarding FAB which is closely involved with the daily affairs of indigenous Fijians and maintains links with the heads/leaders of the traditional communities

Social and policy issues. The sustainable development of the taukei has tended to be closely linked to the maintenance of the social and kinship relationships that are to be found in traditional Fijian society. As in Nigeria, customary land tenure rights and responsibilities in Fiji are closely linked with kinship. The key social issues raised in incorporating customary tenures into an LIS are discussed below.

Legal status of the LIS. Although the LIS has developed as an extension of the cadastral concept, and usually draws ownership information from the land registration system, it is not a land registration system and it is not a computerized cadastre. Because there is confusion in the literature regarding these three related terms, there is a danger that the information in the LIS could erroneously be used for legal purposes. It is important to emphasize that the LIS is not a computerized land registration system at the beginning of the project. If this is not established, the LIS is likely to meet with resistance because it will be perceived as a means to introduce changes in the land tenure system. As concluded by Ezigbalike and Benwell (1994), cadastral and land registration systems are still too specific to western culture to be applied to customary land tenure without cultural costs. While the LIS should contain relevant tenure and ownership information, it should not be used as a back door for such cadastral reform; it should only be a tool for maintaining and disseminating information that will enable more informed land management decisions.

Credibility. Although the LIS does not necessarily have to be computerized, its development in western countries has always tended to be computer-based because the computer is the current technology for information processing. The written word almost always takes precedence over the spoken word - and certainly over human memory. Computer-generated information has a strong air of credibility about it. Over time, the LIS could eventually be regarded as the authoritative source of tenure information. The rules of customary land tenure are usually not precisely defined, relying on goodwill and the kinship relationship among the members of the community for their operation. They are usually flexible, being interpreted to suit changing social conditions. With the air of certainty associated with computerized information, customary tenure rules could lose their flexibility. While predictability and certainty are preferred for decision analysis, the flexibility of the customary land tenure system helps reduce the chances of landlessness by providing for the rights of yet unborn generations. In addition, the crediblity of computer-generated information could be misused or abused by the educated elite who may refer to it as authority for claiming undue rights and advantages. This danger would be more serious if the LIS is perceived as a land registration system, as discussed above.

Misinterpretation and misrepresentation. Another issue to contend with is the fact that much of the data collection will rely on recollections and opinions, and may therefore be subjective. In Fiji, as in many island nations of the South Pacific, belief in the old traditional ways is still strong. While this is encouraged, it is important in data collection to be able to sieve out romanticized glorification of custom and tradition from correct facts. Another point to note is the possibility of intentional misrepresentation of information in response to survey questions. This is because people tend to give answers they think will favour them, based on what they perceive as the objective of the data collection exercise.

Publicity and sacred information. An important aspect of traditional societies is the role of some traditional institutions in the maintenance of order and morality. The efficacy of some of these institutions depends on the secrecy of certain aspects of their procedures and methods. These have variously been translated into English as "cults" and "secret societies". For example, the mmuo or mmonwu institution of the Igbo in Nigeria is translated as the "masquerade cult" or "masquerade society". These institutions are usually linked with the land and exposing them to an increasingly materialistic, profit-oriented public may not be desirable. In Fiji, this would apply to taboo areas where ancestral spirits or local deities are believed to reside. Chapelle (1978) points out that these lands were not cultivated or even walked on, and access to them was controlled by the descent groups in the area. Failure to respect these concerns will undermine the moral fabric of the community and create social problems. It is therefore important to have well-defined policies regarding what data to collect and access restrictions where the custom requires them.

Technical issues. Jeyenandan and Williamson (1990) pointed out that attempts to build land information capabilities have often been supply-driven and, therefore, closely tied to the commercial or scientific interests of technology suppliers. As discussed in the section "Western land information system concept" on p. 22, the LIS has been developed for western conditions where land is divided into parcels, with unique identifiers for cross-referencing. While the "formal" customary lands in Fiji are surveyed, lands in the "informal" sector are not so defined. Cultivation lines are enough to delimit the boundaries and there is no need for a survey of such lands. This is also as a result of the kinship and goodwill among neighbours, as already mentioned. Surveying such lands in order to be able to identify them unambiguously would only increase the cost of using the land. The owners of the land can already define their lands as unambiguously as they need. Even in western countries, with all the precise surveying equipment that is available to them, it is recognized that occupation bounds and "metes and bounds" descriptions take precedence over surveyed coordinates. The Nigerian Land Use Act of 1978 requires only a sketch to support an application for a customary right of occupancy. LIS designers should provide for such imprecise systems, based purely on topological information about neighbours.

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Conclusions

This article has considered some of the implications of incorporating customary land tenure into an LIS. It is recognized that LISs have traditionally been initiated and implemented by government agencies in industrialized countries, with the main objective of improving the administration and management of their land resources and government systems. Any direct benefit to the general public has usually been an incidental result of the main objectives of the LIS.

The conditions that facilitated the development of the LIS include the long-established practice of dividing land into parcels and recording all dealings in them. In addition, the substantive rights in land are individually held, with their transmission being controlled by the land market. Introducing an LIS therefore requires the extension of the already available information and computerizing it.

The main objective for the Fiji LIS is to improve the government's administration and management of its land resources. It has also been found that the direct benefit to the general public will be minimal. The benefit to the population will be indirectly through the effect on government and other institutional users. This is expected to be the case in other countries contemplating the introduction of an LIS.

A major problem with customary land tenure systems, however, is that they are not homogenous but differ from place to place. Western land tenure systems can be classified into a few types. With any investment, the investor wants a guarantee, or at least a reasonable expectation, of a good profit margin. Therefore it is encouraging for vendors of LIS-related technology and services to invest in the development of products for a few types, assured of a large market. Investing in the development of systems that provide for the needs of customary tenure jurisdiction is not as attractive. This may explain why designers sometimes prefer to reform customary land tenures rather than design systems for them.

Customary land tenure concepts do not have direct equivalents in English (and other European languages) and are therefore regarded as complex, unclear and uncertain. Because of these conceptual difficulties, they seem not to lend themselves easily to computerization, but this is only a technical problem, and technical problems have technical solutions. The more serious problems with incorporating customary land tenure into an LIS are the economic, social and policy problems.

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

TABLE A1 - Incorporating customary tand tenure rights: advantages and disadvantages
Rights Advantages Disadvantages
Acquisition rights of individual by inheritance Improved efficiency in resolving disputes and claims
Enable VKB to be up-to-date with existing situation
Danger of flexibility of original system eventually being lost, if LIS taken as final authority taken as final authority
Possible cause of dissension, particularly with loss of flexibility
Acquisition rights of older siblingsImproved efficiency in resolving disputes and claims
Enable VKB to be up-to-date with existing situation
Danger of flexibility of original system eventually being lost, if LIS taken as final authority
Potential for future conflicts and dissension, when rights of younger siblings (and their descendants) are not officially recognized
Acquisition rights of womenImproved efficiency in resolving disputes and claims
Enable VKB to be up-to-date with existing situation
Danger of flexibility of original system eventually being lost
Possible cause of dissension
Acquisition rights of chiefsImproved efficiency in resolving disputes and claims
Capability of LIS to store historic data will allow verification of chiefs entitled to receive lease rentals, in cases of disputes
Danger of flexibility of original system eventually being lost
Possible cause of great dissension
Possible cause of failure of LIS, if chiefs find this measure offensive
Land-use rightsAllows monitoring of land-use for land conservation; allocation of land rights based on land usage, when disputes occur; compensation; and monitoring of problems of access, topography, soils, etc.
Can evaluate value of lands; effectiveness of existing land tenure
Can eventually override the existing traditional way of encouraging disputants to resolve their differences through dialogue and consideration of others' needs Ð thus, can encourage slow conversion to individualism and materialism
Can be a source of petty bickering
Fishing rightsImproved efficiency in resolving disputes and claims Must be defined accurately
Land-use vakavanua with migrant settlers Monitoring of such incidents to allow assessment of vakavanua arrangements Can lead to LIS data being used as basis to formalize arrangements, using existing legislation

TABLE A2 - Incorporating customary land tenure restrictions: advantages and disadvantages
Restrictions Advantages Disadvantages
Traditional customs, e.g. sevu to chiefs; death of chiefs More cultural awareness, thus less conflict with land developers and foreigners Private, personal property publicized
Misinterpreted restraints can be a source of dissension and conflict
Spiritual, e.g. taboo areasMore cultural awareness, thus less conflict with land developers and foreigners Cultural insensitivity could lead to possible desecration of sites
Legislative restraints on land sales, leases, etc., e.g. majority group consent required Monitor frequency of disallowed group consents and reasons why Misinterpreted LIS information on restraints can be a source of dissension and conflict
Specified maximum size and/or number of individual holdings Egalitarian ideals; monitoring of land-use will identify those who have exceeded their quota

TABLE A3 - Incorporating customary land tenures responsibilities: advantages and disadvantages
Responsibilities Advantages Disadvantages
Financial
Contribution to village projects Indicator of possibility for fund-raising for community projects Cause of further dissension, since generous peopleare usually those that can afford to be so
Difficult to always get a fair assessment, since many factors involved
Social
Compliance with customary taboos and traditional beliefs, e.g. tribute payment to landowners; ai sevu or offering of first fruits of land to chiefs; sevusevu or formal introductions or requests of visitors Less conflict with land developers and foreigners owing to increased cultural awareness
Retention of customs and traditional values owing to increased cultural awareness
Misuse of social practices can be monitored
Strengths and weaknesses of such practices can be assessed
Cultural insensitivity could lead to desecration of sites
Danger of flexibility of original system being lost, if LIS taken as final authority
Possible cause of dissension, particularly with loss of flexibility
Environmental
Land conservation practicesMonitor misuse of practicesAssess strengths and weaknesses of such practices Can be an expensive exerciseDifficult to quantify, since many factors involved
Spiritual
Compliance with customary taboos over sacred areas, burial sites, etc. Less conflict with land developers and foreigners owing to increased cultural awareness
Ensure sites are preserved and not desecrated by land developers
Cultural insensitivity could lead to possible desecration of sites
Misinterpreted LIS information on responsibilities can be a source of dissension and conflicts



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