Key aspects of community-level tenure conversion for economically blocked land with customary links

D.P. Goodwin
School of Surveying, University of Otago, Dunedin, New Zealand.

This article starts from the position that certain land may be economically paralysed by customary links: either by customary law that is still in force today or, even if customary law has been superseded, by factors associated with a surviving kinship attachment. This may have ramifications, for example in access to land and food security. Two cases of economically blocked land with customary links are compared, one (the Communal Areas of Zimbabwe) where traditional tenure has been allowed to evolve to the point at which spontaneous tenure conversion is occurring towards individualized tenure, and the other (Maori land in New Zealand) where traditional land was initially constrained to freehold but where strong customary links have persisted. In the two cases, contrasting options for “bottom-up” tenure conversion and modification have resulted from the different tenure paths taken.

CUSTOMARY LINKS MAY PARALYSE LAND ECONOMICALLY

Customary links between people and land may be a factor in paralysing land economically. For example, Maori land is “more likely than any other private land not to be actively managed” (Grant, 2000: section 9), and Zimbabwean Communal Land is often severely degraded and subject to massive erosion. In Fiji “... [the traditional tenure system] has helped the taukei [indigenous Fijians] to maintain their land-based customs and traditions, which are based fundamentally on the basic principles of sharing and caring. Ironically however, it is this very principle that has been one of the major stumbling blocks in the quest by the taukei for economic progress” (Fonmanu, Ting and Williamson, 2003).

This situation may be unsatisfactory both for citizens and authorities for several reasons:

• land everywhere is under pressure and no country can really afford to have it lying idle as a sort of cultural exhibit;

• those who in theory have access to land may not do so in practice;

• underutilized land may have implications for food security;

• unused land may also have an environmental cost;^[88]

• lack of individualized marketable land rights may inhibit entrepreneurial activity, disallow transfer of wealth between generations and disqualify land as the basis of collateral for credit (Deininger, 2003);

• the absence of land records and inconsistencies in them are a nuisance and an impediment to the orderly administration of land (e.g. Grant, 2000: section 48).

NO “QUICK-FIX” ANSWER

Unfortunately, there is no simple, obvious solution to the problem. Governments and donor agencies often view some form of tenure conversion as a starting point in “unblocking” land, either registering customary land for individualized, marketable title or else modifying or rationalizing tenure status to improve productivity. However, tenure conversion processes are complex and frequently fail to improve the lives of intended beneficiaries. Cases around the globe tell us that there is still much that we need to learn about the process. The following report is probably fairly typical:

When communal lands are parcelled up and individual titles are given out, the result has often been a disaster, as in the case of Thailand. Communities that had held relatively stable tenure over their land for many generations lost them in just a few years after the new titles were used as collateral for bank loans, generating destitution and despair. In cases where the poor were given credit to buy land from willing sellers, as in Brazil, Guatemala, and South Africa, the results have been no better.

(Food First Institute for Food and
Development Policy, 2002)

Barry and Fourie discuss “wicked problems” in titling programmes, these being situations in which complexity and a difficulty with formulating clear objectives make conventional techniques unlikely to succeed:

... a number of attempts to implement cadastral systems have been deemed to be a failure, especially in the developing world. Individualisation of tenure, cadastral systems and land titling and registration can lead to confusion and create more uncertainty in a land tenure system than existed before these processes were implemented.

(Barry and Fourie, 2001)

There are many possible pitfalls, including the following:

• Wealthy speculators may buy up land and either take it out of production or lease it out while impoverishing former landowners.

• Women’s rights may be ignored and the environment neglected, and rich indigenous traditions may be lost irretrievably.

• Registration, once established, may be avoided and land records consequently become outdated and no longer an accurate reflection of the position on the ground. This leaves a void because it is impossible at that stage to reintroduce customary checks and balances.

• Newly titled land may be mortgaged and lost where owners have not understood the process fully.^[89]

• Conversely, financial institutions may try to foreclose only to be told that the land is still regarded as customary and therefore not saleable (Bruce, 1998: p. 176).

In short, the cadastral problem has not been satisfactorily solved, and nowhere is this more true than in developing countries. It is also a persistent challenge where a sector of the population still has traditional links with land, as is the case for Maori land in New Zealand.

LARGE-SCALE, “TOP-DOWN” APPROACHES TO TENURE CONVERSION

Where land with customary links is economically blocked, we do not need to go far to find sincere attempts to unblock it. Very often, donor agencies and governments favour systematic (i.e. comprehensive or large-scale) approaches to tenure conversion as being cheaper per unit and neater. This sort of reform generally has to be initiated and driven by governments and it has to be coercive because rarely will there be complete unanimity. Kenya is a well-documented example of large-scale planned conversion from indigenous land tenure to individualized private ownership, and so is Thailand.

However, “top-down”, imposed tenure conversion is not always either possible or suitable, and instances are common of land that is stagnant economically but where it would be impossible or inappropriate for governments to change its status prescriptively. Large-scale tenure reform may also prove disappointing on a number of grounds, and human tragedies have occurred where a wrong mix or a wrong weighting was used. For example, in Kenya tenure reform met with only limited success and in many cases there were severe repercussions (although these were in part the result of growing population pressure and therefore land scarcity, together with other miscellaneous factors; A. Knox in Bruce, 1998: p. 176).

THE SIGNIFICANCE OF VOLUNTARY APPROACHES TO TENURE CONVERSION

One of the advantages of communitylevel, “bottom-up” tenure conversion is that consensus is in theory easier to achieve for smaller numbers, and tenure conversion may therefore be voluntary rather than coercive. This has a number of implications - the following providing a starting point:

• Choice rather than governmental directive may be important to rightsholders where there is a history of colonial duplicity and land grabbing.

• Choice implies the power of refusal. Government and investors wanting land to become leaseable or saleable would need to be very clear not only about what outcomes were desirable to themselves but also what they were prepared to pay or sacrifice in order to achieve these outcomes. For the government, a desirable outcome might be environmental sustainability or a homogeneous record-keeping system; for private investors it might be financial returns. In either case, however, they could not come to the negotiating table empty handed.

• Piecemeal (i.e. sporadic or localized) conversion is more likely to result in fair prices for converted land. Comprehensive (i.e. wholesale or systematic) conversion tends to bring many new parcels on to the market simultaneously, which, by the laws of supply and demand, may have the effect of depressing prices and inviting speculation in land.

• Choice could help to avoid a potentially damaging “all-or-nothing” fallacy. In other words, if an option exists to convert some customary land parcels to individualized tenure where there are sound reasons do so, this may remove pressure from other parcels where conversion would be inappropriate, for example where land is a safety net for the unemployed, sick and aged.

• Unforced choice would suggest that those involved in change have sight of the “goalposts”, or have glimpsed the “vision” of where they were headed. As such, they should be their own changemanagers without needing constant costly) supervision. This may prove to be a key factor for responsible, sustainable, true development.

• If those involved in tenure conversion understand what they are doing and its advantages, then problems of the legal process (e.g. registration for title) being ignored and becoming out of date might be avoided.

• It might also be possible to avoid problems of lending institutions losing money when, on trying to foreclose, land is declared still to be customary and unmarketable (A. Knox in Bruce, 1998: p. 176).

• Problems of people losing land because they do not fully understand the implications of a mortgage should also largely be avoided.

• Wherever customary is changed to individualized marketable tenure, it is axiomatic to say that custom is thereby modified. If the conversion process is large-scale and coercive, then decisions regarding what aspects of custom are no longer significant are likely to be taken by central government and one, “best-fit”, rule will probably be applied to every parcel involved in the change. Such decisions would perhaps be made better at community level, where traditional custodians may suggest options that accommodate local variations in custom or different priorities.

• Choice might prove to be an important indicator showing that communities have “crystallized” their future direction through discussion and negotiation. This discussion process has the potential to strengthen existing communities, form new communities and foster natural leaders. The process could conceivably achieve not only consensus but also cohesion. People might as a result pull together rather than in different directions.

• Consensus, exponentially more difficult to achieve with greater numbers, should not present a difficulty in voluntary tenure conversion where non-conforming units can be excluded.

• As a caveat stemming from choice, care would have to be taken that women and traditional authorities were not excluded from such choice (A. Knox in Bruce, 1998: p. 179). This would vary from culture to culture and even area to area but, as an illustration, in Shona society important voices that should be party to decisions might include such figures as the vatete (father’s sister, who is charged with certain authority) and the vadzimbuya (i.e. grandmothers, again with a traditional role and wisdom).

• Thought would be needed to decide on an optimum scale, both from the point of view of technology and sociologically. In the past, technology has, by the economies of scale, made unit costs much lower when surveying many properties over large areas, but one solution does not necessarily fit all, and today technology is more flexible and probably capable of accommodating customized solutions. The equation has changed significantly because of both the global positioning system (GPS) and advances in information technology; although proper costing will be necessary, it is now felt that a real possibility exists for cost-effective survey and registration of nearer 2 - 10 parcels than for hundreds or thousands.

• Once decided, an incentive would be needed to favour an optimum scale conversion unit, perhaps a graduated scale of fees or selective subsidies.^[90]

A COMPARISON OF BLOCKED LAND WITH DIFFERENT HISTORIES

In New Zealand, a University of Otago project is in progress that aims to compare two cases of economically blocked land with customary links and, in particular, to examine how rights-holders reconcile economic imperatives with tenure status. In other words, in the contrasting case studies, to see what rights-holders perceive as their options for converting or modifying tenure on a piecemeal basis to make land more productive. For the purposes of the study, only options that add to, subtract from or modify rights in land are considered. Non-tenure-related improvements are only mentioned in passing. It is hoped that the comparison will help to isolate key aspects of “bottomup” tenure conversion for economically blocked land with traditional links.

The first case is the Communal Areas of Zimbabwe, where traditional tenure has been allowed to evolve to the point at which today spontaneous tenure conversion is occurring in a minor way towards individualized tenure.

The second case is Maori land in New Zealand, where indigenous land was constrained early on to freehold but where strong customary links have persisted. These would seem to provide a fruitful comparison. They have not-dissimilar colonization histories, with an initial treaty followed by a period of unrest as the implications regarding land became apparent.^[91] In both countries, customary links between people and land have remained strong. The Maori freehold land that remains (about 6 percent of New Zealand’s land area) has steadfastly resisted market pressures for over a century and is generally:

... not regarded by Maori land owners as a freely marketable, entrepreneurial resource but, rather, as a source of identity with deep cultural and social significance. Notions of ownership tend to be seen in terms of stewardship and connection, rather than proprietorship; of permanence rather than transience.

(Grant, 2000: section 11)

In Zimbabwe, where introduced and indigenous land tenure each occupy approximately half of the country, formal tenure has been in a state of chaos for several years and customary tenure has even proved to be the more stable and robust of the two, with traditional land remaining a focus for kinship links between extended families (analogous to whakapapa^[92] for the Maori).

A third example would be of interest if time and funding permitted. Fiji would seem to provide one option (e.g. Strack, 2000), or the Solomon Islands, where:

... to develop economically, the customary land situation needs to be sorted out. The immediate answer is not, as some in the World Bank would have it, to encourage more and more alienation of customary land, including land ownership by foreigners.

(Brown, 2003)

Comparison should serve to make the study more general, because factors that are latent in one case might be obvious in another. Central to the debate on customary tenure conversion is the question of which “bottom-up” tenure conversion options are open today to different types of economically blocked land with kinship links.

OPTIONS FOR MAORI LAND

One of the most difficult aspects of Maori freehold land to grapple with today is multiple ownership. There are on average 62 owners per title, and in the highest 10 percent of cases there are 425 owners. Land is generally found in the poorest land-use capability classes (80 percent being in non-arable classes). About half the titles remain unsurveyed. There are also restrictions and protections that only apply to Maori land (Grant, 2000: section 1). Alienation of Maori freehold land and interests in that land can now only be effected by a judicial decision from the Maori Land Court (New Zealand Government, Te Ture Whenua, Maori Land Act, 1993, sections 145 and 146).

From the perspective of the people on the ground, the most common options are as follows:

• To do nothing, and let the land lie fallow. Unmanaged land such as this may not have great value or produce any returns, but it may provide the locus of belonging for extended families. It can also form the basis for an ethnic register that may qualify rights-holders for certain status and subsidies. One cannot, however, help thinking that perhaps there may be a more satisfactory state of affairs for both people and land. It would be interesting, for example, to know what other creative tenure modifications have been tried, perhaps for example along the lines of the following suggestion:

  ... a more appropriate point of contact for absentee owners may be a more generalised whanau or hapu centre... It may be appropriate for a grouping of owners to set land aside as the focus for turangawaewae for everybody associated with that area, and then hold all the other parcels in trust for that whanau or hapu group. The land parcels could then be aggregated to create appropriate economic units to support a leaseholding farmer (or eventually a freeholding owner), the lease income of which can feed back into the hapu funds. This would enable the hapu to provide work and economic opportunities to those wanting to live and work on the land...

• To modify the existing tenure position by forming trusts and incorporations. Different percentages of owners are needed to vote for different procedures (leases, sales, etc.) under the Land Transfer Act of 1952 and the Te Ture Whenua Maori Act of 1993 plus their associated regulations. Trusts and incorporations are based on land but can then diversify to include other interests (e.g. tourism and logging).

• To retain ownership as it is, but enter into an agreement with a third party, such as the Department of Conservation to manage the land. An example of this may be found on Stewart Island.

Quite possibly, this list can be extended as the study progresses.

OPTIONS FOR TRADITIONAL LAND IN ZIMBABWE

Looking once more at the most common options as perceived by people on the ground, these might be:

• To do nothing, or perhaps to work on improving land management (e.g. CAMPFIRE,^[93] conservation farming [e.g. Oldrieve, 1993; FAO, 2002], animal impact grazing [Savory, 1992, and in a video lecture to the University of Albuquerque in 1995]).

• Some form of “creative” leasing: for example, the Umi crocodile farm on Lake Kariba where a long lease has been negotiated with Communal Area authorities, even to the extent of having a survey done of the lease area. It is not clear what form of contract was used or how legally binding it would be because it applies to customary land that is not, in theory, leasable. This and similar initiatives might merit further study.

• Spontaneous tenure conversion. There is probably most to learn from this option, and it is examined in greater detail in the following section.

FACTORS WE NEED TO UNDERSTAND MORE FULLY REGARDING SPONTANEOUS TENURE CONVERSION

Of particular interest is spontaneous tenure conversion in Zimbabwe, which may provide a starting point when we explore key aspects of “bottom-up” transition because, despite its limitations, neither coercion nor incentives were used by centralized government to bring it about. It is driven by customary rights-holders who, “voting with their feet”, have in some instances divested themselves of use-rights to customary land in return for a capital sum. “Sale” is perhaps not is not the name that should be given to the transaction. Vendors may soothe their conscience by saying they are selling not the land but merely the house, or perhaps the fruit trees. However, the bottom line is that today an exchange of money may mark a change in beneficiaries of customary land.

As well as a change to the name or names of those who can use or benefit from the land, when money changes hands for customary land then the type of tenure is also altered, perhaps irrevocably because it is unlikely that anyone who has paid money for land or land rights will pass that land on without expecting to recoup at least the amount they have invested. The land has become capable of ownership, sale and lease. Without ceremony, it has moved from one dispensation to another, from customary to individualized tenure.

There is still much that is not actually understood about this process. For example:

• Customary land is generally held under a sort of usufruct, comprising family use-rights in a residential parcel plus an arable parcel or parcels (minda), together with grazing rights and rights to take fruits and materials from common land. However, although the family use-right might be the primary interest, there are other, lesser interests. For example, it may be considered unsociable to prevent another person’s cattle from grazing maize stubble on one’s own fields in certain seasons, and if someone digs a well for their personal use the water may be viewed as a community resource. Even if the well does not have adequate water to go around, there may be threats that if it is not shared with everyone it will be poisoned or infilled. It is not clear how these secondary community rights are dealt with when customary land is sold.

• Boundaries: a certain amount of work has already been done on customary boundary forms, but it is unclear whether the perception of boundaries alters when land assumes a cash value and, if so, how it alters. For example, there might be a diminishing importance of imprinting the awareness of boundary positions on the young when boundary records move from being orally described to being paper-based (Goodwin, 2002a: section 6).

• Belonging and identity: even where there is a strong demand for individual rights, communities (or subgroups within communities) may insist on vetting land transfers (Barry and Fourie, 2001).

• A “cutting down to size”, “no tall poppies” factor: where this exists in custom, one point of view is that it is commendably egalitarian. Another way of looking at this is that the “social risk” involved in a member of a community improving themselves may prove stifling for the innovative and motivated. Those individuals who persist in working harder or obtaining higher yields may be threatened with witchcraft or perhaps the death of their first born (Norton, 1995: p. 24; Goodwin and Matambanadzo, 1997: p. 10). Again, it is unclear whether putting customary land under a different dispensation will effectively eliminate this negative practice and allow hard work to be suitably rewarded.

• It would also be of interest to see what ceremonies/rites of passage mark the change in status of the land and whether these are sufficiently high-profile and public (Goodwin, 2002b).

• The influence of a prevailing world v iew and world norms/weltanschauung in changing the perception of land rights.

• Vision: how the presence or absence of a “road-map” or view of the goal of tenure conversion may perhaps be a factor in its success or failure. People may not change unless they have glimpsed the final outcome, believe it will advantage them (economically, through increased security, etc.) and feel that there is a reasonable chance of arriving there. However, beliefs and cultural norms may promote, inhibit or otherwise modify forward vision. For example, Barry (1997) considered the influence of beliefs, norms and controls in predicting behaviour with regard to cadastral systems.

• Whether a “shakedown period” is of relevance (Goodwin and Regedzai, 1997). In other words, are there windows of high boundary activity (with associated high risk of doubt/dispute and consequently low security) before neighbours arrive at a mutually agreed position, followed by periods of low activity (with lower risk but possible conflict between the legal and agreed positions)? For spontaneous tenure conversion it is not known how long it takes for newly created boundaries to be mutually agreed and marked along their length.

• The place of customary land as a social security system in the absence of viable state alternatives, and as a guarantee of the right to work (Törhönen and Goodwin, 1998; Goodwin, 2002a: section 3.2).

• The principle of acquisitive prescription (gaining rights by uninterrupted possession and/or labour invested in land or in improvements).

• A desire to pass on the fruits of one’s personal labour to offspring or others for motives that may include caringlinks and/or an extension of personal influence or power.

• A further aspect of power, namely the desire to have an influence beyond the grave.

• Greed and self-interest as a factor, and means of mitigating the influence of powerful elites in land dealing. This is indeed a significant factor in the southern African situation, and it has been suggested that the lack of progress in land tenure reform has not been because promising models are not available but because of elites pursuing self-interest: “Even in those states once most committed to a radical egalitarianism, Mozambique and Angola, the governments are now presiding over massive land-grabs from rural people as elites move to take advantage of normative confusion created by the abandonment of socialist policies” (Bruce et al. in Bruce, 1998: p. 202).

• Finally, inheritance and gender issues, and multiple ownership and fragmentation.

Different mixes of these and other factors, and their relative weighting, make for an extremely complex equation.

CONCLUDING REMARKS

A project of this nature could never provide a complete blueprint for solving customary land problems in New Zealand and Zimbabwe; nor is that the intention. Rather, the idea is to view different ways in which people respond to tenure conversion possibilities in contrasting situations: one in which indigenous land was constrained to freehold at an early stage and the other in which land remained unconstrained. Options for Maori land in New Zealand, where freehold dates back nearly 150 years,^[94] may also offer insights into more recent conversions of customary to individualized tenure such as ocuured in Kenya [dating from the Swynnerton plan of 1954 (A. Knox in Bruce, 1998: p. 175]. Different options for tenure conversion and modification have been created by the different tenure paths. For example, bringing Maori land under a legal umbrella at an early stage means that today controls may be easier to introduce by way of statutory instruments (e.g. Maori land may not be alienated other than in accordance with the Te Ture Whenua Maori, Maori Land Act, 1993, section 145). On the other hand, there is a cost associated with record-keeping, and the condition of Maori land records would suggest that more resources need to be channelled into their administration for them to be effective.^[95]

By contrast, the low administrative cost and comparative flexibility of Zimbabwe Communal Areas can allow creative application of customary law, but set against this is the fact that it perhaps affords greater opportunities for exploitation along gender or economic lines.

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