Resource Tenure and Property Rights: Access and Ownership

A person or community’s rights to land and other natural resources defines their natural resource tenure. Legally, tenure is a bundle of both rights and obligations: the rights to own, hold, manage, transfer, or exploit resources and land, but also the obligation not to use these in a way that harms others (Bruce 1998a:1; FAO 2002:10). In other words, tenure defines property and what a person or group can do with it—their property rights.

However, tenure is not only a legal concept but a complex social institution, often involving traditional practices and customary authorities as much as formal laws. It governs ownership and access to natural resources, which is the gateway to use and benefit from these resources. As such, tenure is at the heart of the poor’s ability to derive income and subsistence from ecosystems—to make them part of a sufficient and sustainable livelihood. (See Box 3.1.)

In many parts of the world today, resource tenure systems and property rights regimes are undergoing an important evolution. Fundamental shifts are occurring in the way that people and institutions think about the ownership of land, water, forests, fisheries, and other natural assets—about who controls these assets, who benefits from them, and where the power to make decisions about them is vested.

Two countervailing global trends in the evolution of resource tenure are evident. One trend stems from globalization. The growing economic integration of nations and societies has increased the sphere of private property and private responsibility, with government assuming a lesser role with respect to the private sector and civil society. This has important implications for how public lands and natural resources—often common pool resources—are managed, with more power over resources transferred to corporate interests through privatization or the granting of resource concessions (Johnson et al. 2001).

At the same time, there is a trend toward decentralization of natural resource management. Local and community-level institutions have become more assertive in the management of local resources, and this decentralized approach also has important implications for resource tenure. Indigenous groups have, for example, been more vigorous in pressing their ancestral claims to lands they inhabit but to which they lack formal title

These two trends are shaping—and promise to profoundly transform—the capacity of the poor to earn environmental income from natural resources. For example, as illustrated in a study on the impact of globalization on the implementation of community-based natural resources management (CBNRM) in the Philippines, these global trends have the potential to both undermine and strengthen governance conditions that benefit the poor (La Viña 2002:24). Growing economic integration through increased trade and the emergence of multilateral environmental agreements, such those as on climate change and biodiversity, pose both threats and opportunities for poor communities worldwide.

The significance for the poor of changes in resource tenure systems and property rights systems is not limited to their economic impacts. For many rural communities, resource tenure is a central social institution that governs not only their relationship to the land and natural resources but also the relationships between families, between members of the community and those outside it, and between villages, communities, and peoples. Therefore, changes in tenure and property regimes have implications for the entire social fabric of rural communities. This is true for all tenure and property systems relevant to natural resources, but is particularly evident in the evolution of land tenure.

The Insecurity of the “Landed Poor”

Most of the rural poor in developing countries have some access to land on which they can collect forest products, graze animals, grow crops, gather medicinal plants, or in other ways benefit from nature. These “landed poor” typically remain poor not only because their land holdings are small, but because their rights to the land are weak, their tenure insecure (Bruce 2004:1).

Insecure tenure translates to a lack of assurance that one’s land or resource rights will be respected over time (Meinzen- Dick et al. 2002:1). In many countries of Southeast Asia, for example, long-term forest dwellers such as indigenous peoples and local farmers often have de facto access to forests, but their tenurial control over trees, timber, and the right to manage forest uses is often limited in scope and unrecognized in law (Lynch and Talbott 1995:29). For instance, the traditional system of forest tenure (called adat) recognized by many forest dwellers in Indonesia has often been ignored by the government, which asserts legal ownership of all forest areas in spite of customary or historic uses (WRI et al. 2000:36-37).

In addition, the ability of the rural poor to participate in political decisions that affect their livelihoods often is limited by the power of other, more politically connected, parties with an interest in the same resources. Government agencies, corporations, large landowners, poor farmers, indigenous peoples, and different ethnic or cultural groups frequently make overlapping and conflicting claims on the same set of natural resources. Unfortunately, unless the tenure rights of the poor are secure, they usually lose out in these conflicts over competing claims (Alden Wily 2004:5).

While many forms of resource tenure are important, land tenure—rights over the land itself—is often the most fundamental building block of prosperity for the poor (Deininger et al. 2003:5). That is because land rights underpin most other resource rights, with the exception of offshore marine resources. Without secure land tenure, it is difficult to conceive of the poor being able to generate wealth from nature.

Tenure Security and Environmental Investment

Security of tenure exerts tremendous influence on how land and resources are used. Secure tenure can be defined as the certainty that a person’s rights to continuous use of land or resources will be recognized and protected against challenges from individuals or the state. This kind of certainty provides an incentive to make long-term investments in maintaining or enhancing the productivity of that property. For instance, a person with the right to use an agricultural field for decades or a lifetime may invest in an irrigation system whereas a farmer leasing a field for only a year will not (Bruce 1998a:2).
(See Box 3.1.)

When insecurity of tenure acts as a disincentive to longterm investments in soil conservation, irrigation, and the like, land quality can deteriorate and agricultural productivity suffer. For this reason, tenure reform is frequently a component of development projects aimed at enhancing food security and sustainable livelihoods for the rural poor. Tenure reform is distinct from land reform in that it does not redistribute parcels of land per se, but rather makes adjustments in the rights to hold and use land. Examples of land tenure reforms include strengthening informal tenure rights by making them legally enforceable and transforming state-issued permits for specific land uses into leases that provide more protection for users of the land (FAO 2002:20).

This is true as well for tenure rights over forests, fisheries, and other natural resources where the benefits of good stewardship can only be gained over time. For example, given their limited resources, it is unlikely that the poor would see a value in investing in sustainable forest management practices, including reforestation, if their tenure over forests is restricted and they can’t count on reaping the benefits of such practices. Tenure reform, in this context, would require addressing these tenure insecurities by providing longer time-frames for forest management agreements, or by recognizing the communal ownership rights of groups who have long occupied forest lands. Thus, one study of joint forest management agreements in India—agreements between local communities and the state allowing limited local management and use rights on state forest lands—notes an urgent need to first resolve the issue of tenure security to give these community-state agreements a foundation for success (Reddy and Bandhii 2004:29).

Security of tenure is important for poverty reduction because it allows poor people to grow more food, harvest products for consumption or trade, invest more in economically productive activities, or use property to obtain credit. Some studies report that investment doubles on land where tenure is strengthened (Feder 2002, cited in Deininger et al. 2003:8). Recent research also indicates that countries with equitable, efficient land tenure systems, ensuring property rights for both women and men, tend to achieve faster, more sustainable economic development with high levels of food security, health, and welfare (FAO 2002:5; Deininger 2003:17-20).

Case studies from Asia, Africa, and Latin America have also shown that tenure security affects people’s long-term investments in modern management practices that can raise productivity, such as agroforestry techniques, livestock feeding practices, or integrated pest management (Meinzen-Dick et al. 2002:1). Failure to invest in agriculture, fisheries, and forest management due to tenure insecurity can greatly impede development goals. In Ethiopia, the nation’s tenure regime changed radically in 1975 as the government nationalized all rural land with the intent to distribute land rights more equitably. Unfortunately, continued changes in tenure laws, a growing rural population, and insufficient land to meet demands, have led to markedly insecure land tenure for many. This has undermined investment in agriculture, worked against food security, and contributed to land degradation (Kebede 2002:138-140).

The Importance of Communal Tenure

Property rights can be held by private entities or by the state, and by an individual or a group. Property rights experts generally identify four basic kinds of tenure or ownership (FAO 2002:8):

• Private, or owned by an individual, corporation, or institution;
• Communal, or owned in common by a defined group of individuals, such as a village, tribe, or commune;
• State, or owned by the government;
• Open access, or owned by no one.

The term “communal” has been used to cover a plethora of ownership situations, ranging from resources that can be used by virtually anyone (more accurately described as open-access) to resources that are used simultaneously or serially by multiple users, such as land on which all community members have grazing rights or traditional fishing grounds where they can fish. It also applies to tenure arrangements in which ownership is vested in the community, which in turn allocates land or other resources among households for cultivation, resource extraction, and other uses. Communal tenure systems thus may encompass strong household and individual rights to use a particular resource or parcel of land, often passed down by inheritance through a family. In fact, holding exclusive use-rights in a traditional, community-based tenure system can be as secure as private, individually titled property rights in Western countries (Rukuni 1999:4). (See Figure 3.1.)

Property rights regimes involving significant communal control over land or resource use have been the prevailing land tenure arrangements in Africa and Asia for centuries. More recently, however, European colonial powers introduced the western concept of private, individual property. In colonial Africa, both the British and the French created enclaves of individually owned property in urban areas as well as white settler farms, but only cautiously expanded the concept of individually titled property to selected Africans (Bruce 2000:17). Among West African countries, individualized tenure often appeared in tandem with the introduction of cash crops for export (Elbow et al. 1998:5).

Contrary to the belief of some Western observers, communally owned resources (which are a form of common pool resources) are not inevitably subject to overuse and destruction— the so-called “tragedy of the commons” popularized by Garrett Hardin in his scholarly article in 1968 (Hardin 1968). Hardin’s thesis—that natural resources held in common will inevitably be overused—more accurately pertains to open-access resources rather than to communally owned and managed resources.With open-access resources, such as ocean fisheries in international waters or state forests where the government presence is weak or absent, all potential users have equal access to the resource and none can be excluded. In contrast, in well-functioning communal tenure situations, the community itself is able to exclude outsiders from using the resource and to enforce norms of behavior—such as fishing or grazing limits—for its own members’ resource use (Ostrom et al. 1999:278).

Recent research has shown that community-based tenure systems can be quite compatible with sustainable resource use under the right conditions. For instance, a study of two Guatemalan communities, Las Cebollas and Moran, found that when community members perceive a resource as both necessary and scarce, they invest in efforts to protect it from overuse (Jensen 2000:641). In Jordan, herder cooperatives with management rights on their traditional pastures are achieving higher range productivity than state-managed reserves, without requiring expensive fencing and guarding (Ngaido and McCarthy 2004:1).

The Duality of Emerging Tenure Systems

In practice, property rights in many developing countries reflect a diversity of tenure regimes. Customary regimes based on local traditions, institutions, and power structures such as chiefdoms and family lineages may exist alongside the formal legal tenure system sanctioned by the state. Customary tenure systems have evolved and adapted over time to meet the needs of community members, and they continue to do so in response to modern-day pressures (Elbow et al. 1998:10). This includes the introduction of more individualized property rights arrangements in traditional communal arrangements.

A rural community’s customary tenure system is often composed of several different kinds of tenure, each of which defines different rights and responsibilities for the use of diverse resources. Clear individual or household rights are generally allocated for more or less exclusive use of arable and residential land, while group rights may prevail for use of pastures, forests, mountain areas, waterways, and sacred areas (Rukuni 1999:2).

But customary tenure systems today do not exist independently. They inevitably live in relationship—often uneasily—with modern state-sanctioned tenure systems. The upshot is that in many parts of the developing world, land tenure systems exhibit a dual nature—that is, property rights that are partly individualized and formalized in legal statutes, and partly community-based and grounded in customary practices (Elbow et al. 1998:16).

For example, in many African countries—including the Republic of the Congo, Cote d’Ivoire, Ghana, Mali, and Togo—land markets based on individualized tenure have developed in response to a perceived commercial potential. For instance, in Cote d’Ivoire, immigrants to forest areas “buy” land from the local population in order to produce cash crops (Elbow et al. 1998:10).

Tenure systems are also evolving because of changing patterns in herding versus sedentary agriculture. In parts of Burkina Faso, Mali, Mauritania, and Niger, tenure systems traditionally have been based on overlapping rights to use land. For example, herders might leave their animals on croplands during the dry season, effectively exchanging the soil nutrients in animal manure for the right to graze their animals on crop stubble, while sedentary farmers might grow crops on pasture land during the rainy season. Increasingly, however, cultivators are expanding into herding, and herders into sedentary agriculture. This has led to a breakdown in traditional tenure arrangements, growing tensions between competing groups, and an apparent shift from overlapping rights to exclusive rights over particular land parcels (Elbow et al. 1998:10).

The state frequently adds to these conflicts through changes in national land policies that weaken customary or community-based tenure practices. In Niger, tenure reforms in the 1960s and 1970s abolished the system of “tithe” payments that tenant farmers paid to local chiefs under customary tenure practice and asserted state ownership over all lands. The intent was to give greater land rights to tenant farmers. However, later reforms in the 1980s reasserted the right of traditional chiefs to control land use by allocating pasture and agricultural land. The confusion brought on by these land policies has created conflicts between farmers, pastoralists, and customary chiefs and landowners, and has weakened tenure security for all parties (Bruce et al. 1995:19-21.)

The dual nature of land tenure arrangements persists whether national policies explicitly recognize customary tenure systems, ignore them, or actively work to dismantle them. Attempts to completely overturn customary tenure systems and replace them with formalized systems of purely individual property rights have rarely been effective, prompting a shift in approach from replacement to adaptation (Bruce 1998b:81). For instance, in the case of forest land claimed by the state, the state may grant individuals from a community the right to collect medicinal plants or fallen branches for firewood, and local groups might have the right to plant trees, but the state might reserve the right to approve any felling of trees and to collect revenue from timber users (Meinzen-Dick et al. 2004:7). Joint forest management agreements between communities and state governments in India often follow this pattern, recognizing in law certain community use-rights but retaining for the state many of the other prerogatives of property ownership, including ultimate title.

The balance between the two components of dual tenure systems is dynamic and ever-shifting. In general, however, customary systems operate as the de facto allocators of land and natural resources in rural areas, with the rules of such allocation increasingly subject to modification by national policies and institutions and in response to changing economic conditions (Elbow et al. 1998:16-17).

Grassroots Pressure for Effective, Equitable Tenure Reform

Today there is mounting pressure for government tenure reform, a mark of the centrality and dynamism of the rural tenure issue. In part, rural populations themselves are responsible for this pressure, as land sits idle and grossly unequal land holdings coexist uneasily with landlessness, poverty, and the hovering specter of hunger in many parts of the developing world.

Additional impetus comes from research showing that unequal access to land and other productive assets is a defining feature of persistent poverty (Riddell 2000). Peruvian economist Hernando de Soto argues that the lack of a well-defined system for recording, transferring, and enforcing the property rights of the poor is a major source of continued poverty, since it does not allow the poor to make use of their assets for collateral and credit, thus barring them from productive investments (de Soto 2000).

These and other findings have contributed to a growing consensus that establishing secure property rights and making rural land markets work for poor farmers and rural producers is one of the keys to effective poverty reduction. In fact, de Soto goes so far as to predict that the countries that achieve substantial economic progress over the next two decades will be those that have developed strong property rights institutions (Riddell 2000).

Against this backdrop, tenure reform has emerged as an essential component of a broader sociopolitical transition to greater democracy and decentralization in developing countries. Governments are starting to recognize that customary, community-based tenure systems are legal in their own right. They are beginning to put these systems on an equal legal footing with Western, individualized property rights (Alden Wily et al. 2000). Tenure reform movements are active in all regions of the developing world, including Sub-Saharan Africa, Asia, Latin America, and Central and Eastern Europe, with dozens of countries initiating major tenure-reform efforts in the past decade. For example, Thailand has recently completed a major initiative to provide the country’s rural population with access to modern land registration, deeds, and credit institutions (Riddell 2000). Mexico has undertaken reforms to strengthen land and credit markets and improve the access to land among poorer households (Carter 2003:52).

Whether tenure reforms positively or adversely affect the poor depends on who designs and ultimately implements them. The extent to which the interests of the poor are represented and promoted by national and local institutions—both critical players in enforcing tenure rights—is key to ensuring that tenure reforms do in fact assist the poor.