## **Land Tenure Security and Sustainable Development**

*Edited by* Margaret B. Holland · Yuta J. Masuda Brian E. Robinson

## Land Tenure Security and Sustainable Development

Margaret B. Holland • Yuta J. Masuda Brian E. Robinson Editors

## Land Tenure Security and Sustainable Development

*Editors* Margaret B. Holland Department of Geography & Environmental Systems University of Maryland, Baltimore County Baltimore, MD, USA

Yuta J. Masuda Global Science Te Nature Conservancy Arlington, VA, USA

Brian E. Robinson Department of Geography McGill University Montreal, QC, Canada

ISBN 978-3-030-81880-7 ISBN 978-3-030-81881-4 (eBook) https://doi.org/10.1007/978-3-030-81881-4

© Te Editor(s) (if applicable) and Te Author(s) 2022. Tis book is an open access publication. **Open Access** Tis book is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.

Te images or other third party material in this book are included in the book's Creative Commons license, unless indicated otherwise in a credit line to the material. If material is not included in the book's Creative Commons license and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

Te use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specifc statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use.

Te publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. Te publisher remains neutral with regard to jurisdictional claims in published maps and institutional afliations.

Tis Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG. Te registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

*We dedicate this volume to land rights defenders around the world, both those who have come before, and those who are working now to raise the voices of local peoples.*

## **Foreword**

In the ferce competition for resources, property rights and tenure security are vital centerpieces of the global development agenda. For this to be actionable, we need a coherent articulation of relationships between tenure security and sustainable development. Land tenure underpins the socio-economic relations surrounding natural resource use and, especially, decisions around whether to increase agricultural production, decrease environmental degradation, support urban development, empower women, and support property rights for Indigenous Peoples and local communities. Without a doubt, tenure security signifcantly infuences how diferent persons will respond to and participate in development processes. Whoever holds tenure controls the outcome of production, including the benefts, the fow of which is kept in check by institutions developed by and within communities. It directly determines who has the right to beneft from land-based resources and who has to protect them. Security is thus the assurance that the rights of a landholder will be respected and upheld in the event of a challenge, dispute, or risk as the competition for land and its resources ensues. It is a fallacy to ascribe security to any particular form of land tenure.

Tenure security is inextricably linked to current global sustainability agendas that merge the aspirations of humanity with dignity and the respect for human rights, especially those of persons involved in regeneration and restorative actions, seeking to reboot the health and functioning of our environmental systems, biodiversity, and ecological richness. Te case studies in this book mirror my understanding of tenure security as bi-relational in character, bridging the twin role of benefciary and steward as intertwined with people's livelihoods and the lands they depend on. I have seen this illustrated by pastoralist communities in the Karamoja region of Uganda, where tribal elders are holders of collective tenure, demarcating their grazing lands into dry pastures, shifting them from wet grazing areas during times of harsher weather conditions, to ensure continuity in the benefcial and sustainable use of their land.

Progress toward universal conditions of equity of human agency is strongly dependent on how such interests and rights over land are governed to secure tenure. Still, contradictions and conficts between and within institutions remain, given diferent actors carry distinct visions of how such trade-ofs should be resolved concerning resource use. Within the chapters of this book, it is clear that women, Indigenous Peoples, and local communities are at the heart of ensuring the continuous fow of ecosystem services for current generations and into the future. Sustainable development is squarely focused on promoting human agency and wellbeing, both within current generations and in the generations to come.

All forms of land tenure, whether private, community, state, or common, are susceptible to insecurity. Teir susceptibility depends on the composition of their bundle of rights in a particular context: how rights are defned, or how they are enforced. Each context has a unique mix of bundles, defnitions, and delineation—hence a diversity that sometimes creates confusion or results in divergent development paths. Tis book demonstrates the criticality of secure tenure to sustainable resource use and to intra- and inter-generational equity that safeguards the vast majority of the world's ecosystem services, despite the variation or binaries in the paths taken in the pursuit of development. In my capacity advising the government of Uganda on the National Land Policy 2013, it was clear that a universal or 'one-size-fts-all' path to secure tenure for all social-economic groups, such as pastoralists, women, urban dwellers, and forest dwellers, was not tenable. However, our eforts were based on shared principles to balance the role of land in the national economy, while at the same time continuing to secure livelihoods and create incentives to safeguard resources into the future.

Institutions, whether formal or informal, are devised to uphold tenure rights or property rights associated with the land, to shape human interactions, and to regulate behavior or relations through deterrents and rewards. Secure tenure has a triple dimension of legality, legitimacy, and certainty, which is essential to realizing the benefts within a bundle of rights, mediating investment, safeguarding incentives, securing inclusion in governance, and guaranteeing the safety of property over land. Legal security is based on rights established and defended in law, as protections or restrictions, conferring rights and requiring action, such as preventing arbitrary loss of rights. Legitimacy is inextricably linked to the common or popular acceptance of a practice within a system, whether social, cultural, governance, or leadership. Perceived security is situational certainty or uncertainty linked to the presence or absence of a condition, based on the soft concept of conscious observation.

Tese three strands of tenure security scrutinized in this book reveal their interrelations in the pursuit of development agendas. For instance, giving legal title to a property in a manner that recognizes possessory claims has been linked to economic development and poverty reduction in much of the developed world. However, tenure security wields greater relevance and importance to the problems of the poor in Africa and Asia, and perhaps to a lesser extent in South America. Tis variance in assumptions that govern the defnition, delineation, and enforcement of property rights has delivered a diferent reality in Africa where rights are collective or customary, as the favor is bestowed upon formal, individual, and registered tenure, to support the functionality of the market, even as this sometimes lacks legitimacy within society or amongst communities. Tis results in binaries of economic formality versus informality (the dual economy). Indeed, sustainable development that is inclusive and equitable has to embrace the fexibility, diversity, duality, or plurality that arises with the deployment of tenure security for individual and collective, state, and private entities, given the bi-directional and multi-directional nature of rights over land, as well as the varied meanings of land rights to people and societies.

What is of essence is an appreciation of what exists in tenure systems that are socially entrenched and laden with economic potential to ft existing political circumstances. Tis helps expand the recognition of property rights to spur, support, and sustain progress consistent with the aspirations of the 2030 Development Agenda. It is essential to keep the enduring forms of property relations and land institutions to guarantee the dividends of tenure security, accepting the diversity of tenure regimes without losing sight of the basic functions and value of resources on land is at the heart of sustainable development. In this book, approaches to strengthening tenure security are discussed, vividly demonstrating the blend of social, cultural, spiritual, natural, and economic aspects of tenure security as a complex relational reality, constituted in co-existence of enduring norms with formal rules and the highest level of acceptance of diversity in development paths and agendas.

Landesa Dar es Salaam Tanzania

Margaret A. Rugadya

## **Preface**

Land tenure security has come to the forefront of the sustainable development agenda in recent years. In part this is due to its foundational and fundamental nature. Ways to manage and allocate rights over resources, and our relationships to it, are some of the frst 'commons' issues fedgling societies face. Te ripple efects of land tenure security are now widely recognized as having implications for not just the way natural resources are managed, but also for household income and investment, well-being, and health.

Tis book came out of discussions from a series of working group meetings convened by Maggie, Yuta, and Brian (the editors of this book). These workshops focused on the role of land tenure security in conservation activities and programs, but as a group we quickly recognized conservation was just one topic that land tenure security afects. Te working group met three times over two years, and several participants in the working group are authors on chapters herein. In the fnal meeting, the group discussed critical resources needed for practitioners, students, policymakers, and researchers interested in land tenure security and its role in advancing sustainable development, and whether these resources existed. Te group converged on the idea that a book project could provide a space for grounded, approachable discussions on the various topics land tenure security afects.

Why did we think a book was needed? Tere are several reasons we thought a book like this would fll a gap in what is already volumes written on land tenure (and tenure security). First, little exists that links land tenure security across a range of topics and conveys how land tenure has fundamental links to so many important social and environmental outcomes. We also recognize that land tenure is complex but is gaining wider attention, so we hoped to examine these complexities in ways that are easily accessible to a general audience. For readers that are unfamiliar or new to tenure security, the topic can be overwhelming, complicated, and costly to study. We believe this is a primary barrier for many that are eager to understand the nuances around tenure security, but lack the time, expertise, or assistance to do so. We hope this book can serve as an introduction to issues around land rights and how these ft into the sustainable development agenda, but also be rich with real-world cases that showcase fundamental topics and issues.

Land and resource rights are central to many conversations that have been emerging in the past several decades. Tis includes taking steps to reconcile deep imprints of colonial histories and recognize rights of Indigenous, marginalized, and vulnerable communities. Tese conversations have emerged in low-, middle-, and high-income regions. We also recognize that many of the authors of chapters in this book are working from universities and institutions that are often founded on unceded territories, that much of our academic training is embedded in an exploitive and systemically racist society, and that academic reputations are sometimes built on knowledge and examples which are not their own. When soliciting authors to contribute chapters, we had an explicit goal for each chapter to not just draw from leading academic and theoretical perspectives around land tenure security, but to also include and recognize voices from practitioners and those embedded in the programmatic side of making land rights secure for people around the world. Tis is perhaps a small step toward addressing the large issues we face in developing a more just and inclusive society, but our greatest hope is that perhaps these chapters collectively elevate issues and voices and spark conversations that help address current and historical injustices.

Tis book is organized into four sections. In Chaps. 1, 2, and 3, we lay out some foundational and introductory information. Our goal for this section is for it to serve as a primer for foundational concepts and history tied to land tenure security. Chapters 4, 5, 6, 7, 8, 9, and 10 are more empirically focused, presenting cases and details on how land tenure security underpins numerous sustainability challenges that face us today. Chapters 11, 12, and 13 describe several approaches to addressing land tenure security issues. Te fnal section of the book, Chaps. 14 and 15, close with robust methods for assessing and researching land tenure security, as well as thoughts about ways forward for integrating research and policy.

As we continue to strive for targets laid out by the Sustainable Development Goals, and as we develop new international frameworks and agendas to pursue, the security of land and resource rights will remain key challenges faced by many communities. We hope these chapters help increase the awareness of key issues and challenges, and we look forward to continuing these conversations with communities, academics, NGOs, multilateral institutions, and others as we move forward.

Margaret B. Holland Baltimore, MD, USA

Yuta J. Masuda Arlington, VA, USA

Brian E. Robinson Montreal, QC, Canada

## **Acknowledgments**

We are grateful to the generous fnancial support provided by the David and Lucile Packard Foundation (Grant/Award Number: 2016-64676), Te Nature Conservancy, the Social Sciences and Humanities Research Council of Canada (Grant/Award Number: 244615), and the McGill Sustainability Systems Initiative. Teir support allowed us to convene a diverse group of experts to cultivate many of the ideas that emerge in this book and provided the fexibility needed to work on this project. We are also deeply grateful to the many practitioners, community members, and others who took the time to provide thoughtful, detailed, and interesting stories that ground many of the concepts in this book.

## **Contents**

**xvii**

#### **Index** 327

## **Notes on Contributors**

**Rodrigo Arriagada** is an environmental economist focusing on ecosystem services and impact evaluation tied to environmental policy and governance. He holds a PhD in Environment and Resource Economics from North Carolina State University and the geographic focus of his work has been oriented within Latin America. Dr. Arriagada is an Associate Professor and Director of Environment and Sustainable Development at the Pontifcia Universidad Católica de Chile.

**AllenBlackman** is an environmental economist and Principal Economic Advisor in the Inter-American Development Bank's Climate and Sustainable Development Sector. His research focuses on land use/cover change, agricultural supply chains, and impact evaluation of conservationoriented policies. He holds a PhD in Economics from University ofTexas-Austin and worked for many years with Resources for the Future.

**Brianna Castro** is a doctoral candidate in Sociology at Harvard University studying the social impacts of climate change with specializations in climate displacement and slow-onset environmental stressors such as drought, coastal erosion, and nuisance fooding. She holds a BA in Public Policy and Spanish Language and Literature, served in the US Peace Corps in Colombia, and has collaborated with organizations such as UN Women, Sierra Club, and Te Nature Conservancy.

**Malcolm Childress** is a multidisciplinary land resources specialist with 30 years of global experience, including on urban and rural property rights, as well as developing strategies for managing critical global ecosystems. His focus areas include land policy and governance, land markets, land registration, property taxation, cadastral systems, and spatial planning. Dr. Childress is the Executive Director with the Global Land Alliance.

**Pranab Choudhury** is a practicing researcher and consultant in the areas of natural resources management and governance, with two decades of experience. He works on inter-disciplinary issues around forest, land, water, and livelihoods in India, Nepal, and Bangladesh. Mr. Choudhury is a Vice President for NRMC at the Center for Land Governance in India.

**Shipra Deo** leads Landesa's work to strengthen women's land rights in India. She is a development practitioner with more than 20 years of experience in managing multidisciplinary programs addressing women's empowerment, women's land rights, violence against women, agriculture, collective action, livelihoods, and institution building.

**Moustapha Diop** is a land tenure specialist with nearly 15 years of experience working on land tenure issues and property rights in Africa. He holds a PhD in Geography from the University of Maryland Baltimore County (UMBC), and his research focuses on the intersections between tenure security, food security, and sustainable agriculture in West Africa.

**Diana Fletschner** is the Chief Program Ofcer at Landesa. She is a development economist with over 25 years of experience teaching, conducting research, designing programs and tools, monitoring and evaluating interventions, mentoring, and conducting strategic advocacy with a special focus on rural women. She has co-led sector-wide eforts that resulted in the successful inclusion of land rights among Sustainable Development Goals' targets and indicators, creating both an ambitious commitment to ensure land rights for all and a global mandate to generate land rights data.

**Lea Fortmann** is Associate Professor of Economics at the University of Puget Sound. Her primary research focuses on the role of community forest management in reducing deforestation and promoting sustainable livelihoods with a particular focus on Guatemala's Maya Biosphere Reserve. She holds a PhD from Te Ohio State University and an MPA from the University of Washington.

**Alain Frechette** is the Director of Strategic Analysis and Global Engagement at Rights and Resources Initiative. He has over 25 years of experience in natural resource management, biodiversity conservation, and climate change. He began his career with state and provincial forest and protected area agencies in the US and Canada before pursuing strategic consultancies with multilateral organizations, development agencies, and NGOs such as IUCN, DFID, the World Bank, and various UN institutions across Africa, Asia, Europe, and Latin America.

**Fernando Galeana** is Assistant Professor of Sociology and Integrative Conservation at William and Mary. He specializes in political ecology, environmental justice, and development studies. His professional experience includes working with multilateral organizations, NGOs, and Indigenous organizations in the defense of collective land rights.

**Raoul Herrmann** is an Economist and Associate Researcher at the German Development Institute. His research interests concern sustainable economic and social development, including large-scale land investments.

**Margaret B. Holland** is an Associate Professor at the University of Maryland, Baltimore County (UMBC). She is an applied humanenvironment geographer whose work explores the intersections between land tenure, rural communities, land use dynamics, and conservation strategies with a focus on forests and protected areas. She has active research in Maryland, Central America, Ecuador, and Mozambique. Maggie holds a PhD in Environment & Resources from the Nelson Institute at the University of Wisconsin-Madison.

**Sarah Holzapfel** is a former Senior Researcher at the German Development Institute. Her work has focused on how to increase the results orientation of agricultural, rural development, and food security interventions in line with the aid efectiveness agenda.

**Kelly W. Jones** is an Associate Professor at Colorado State University. She applies microeconomic theory and methods to understand relationships between conservation governance, land cover change, ecosystem services, and human well-being. She holds a PhD in Agricultural and Natural Resource Economics from the University of Wisconsin-Madison.

**Christina Kuntz** has over ten years of experience working in international development including as a Peace Corps volunteer, program director, and researcher. Based in Colombia, she holds a BA in Psychology and an MA in International Development and works with the Global Land Alliance and USAID on land tenure research in Colombia.

**Steven Lawry** holds a PhD from the Nelson Institute of Environmental Studies at the University of Wisconsin-Madison. He is a Senior Associate at the Center for International Forestry Research and has worked for the Land Tenure Center at the University of Wisconsin-Madison and the Ford Foundation. His research focuses on farmer and community responses to land tenure interventions and on the conditions that enhance community stewardship of forests and other natural resources.

**Edward Lekaita** is an advocate of High Court of Tanzania and Subordinate Courts thereto save for Primary Courts. He has been a legal advisor, and Head of Advocacy and Coordinator for Kiteto Program. He has worked for the Ujamaa Community Resource Team since 2010 mainly on policies, laws on natural resources and governance, land use planning, certifcates of customary rights of occupancy, and wildlife management areas for over ten years.

**Henry Machina** is a gender, land, and youth specialist whose work has focused on land policy, youth in agriculture, and women in agribusiness in Zambia. He is afliated with the Indaba Agricultural Policy Research Institute (IAPRI) and is the director of the Zambia Land Alliance.

**Monica Mhoja** has more than 25 years of experience in managing and leading women's and children's rights programs. She has been designing, managing, and implementing community, national, regional, and international programs on advocacy, legal and human rights awareness on land rights, inheritance rights, and the impact of child marriage and genderbased violence using collaborative and human rights-based approaches. Dr. Mhoja works at Landesa as the Outreach Director for Africa.

**Jackson Marubu** is the Kenya Program Coordinator at Te Nature Conservancy, managing various projects under the country program with a wide array of stakeholders in the Kenyan government, multinational organizations, and global conservation teams. Prior to his current role, he worked as a technical ofcer at Freeland-Africa managing a small team working with wildlife law enforcement agencies across the region, with the vision of a world free of wildlife trafcking and human slavery.

**Yuta J. Masuda** is a Senior Sustainable Development and Behavioral Scientist in Global Science at Te Nature Conservancy. His work at the Conservancy investigates the impacts of conservation programs on human well-being, and he has a particular interest in land tenure, gender, development, institutions, and human health. His work looks at integrating human well-being considerations into conservation programs to better understand their risks and benefts to people.

**Roan McNab** is the Guatemala Program Director for the Wildlife Conservation Society based out of their Flores, Petén feld ofce. He holds an undergraduate degree in Anthropology from Duke University and master's degree in Tropical Conservation and Development from the University of Florida's Center for Latin American Studies.

**Daniela A. Miteva** is an applied microeconomist working primarily on sustainability issues in developing countries. She is an Associate Professor in the Department of Agricultural, Environmental, and Development Economics at Te Ohio State University in Columbus, OH (USA).

**Iliana Monterroso** is a scientist and co-coordinator of Gender and Social Inclusion Research at the Center for International Forestry Research. In 2022 she joined the Climate and Land Use Alliance (CLUA) as Lead Consultant for Mexico and Central America. Her research focuses on gender, tenure, collective rights, environmental governance, and socio-environmental conficts predominantly in Latin America.

**Patricia Mupeta-Muyamwa** is a natural resource governance specialist and the Africa Indigenous Landscapes Strategy Director at Te Nature Conservancy. She has 20 years of experience in protected area management, community conservation, and rural development. She has worked for TNC since 2011. She leads the Indigenous Landscape program, which supports communities in eastern and southern Africa with stronger land and resource rights, builds their leadership capacity to manage landscapes, and creates economic opportunities for improved livelihoods.

**Chewe Nkonde** is a lecturer and a researcher in the Department of Agricultural Economics and Extension at the University of Zambia. His research covers the following thematic areas: agricultural productivity, food and nutrition security, food and agricultural markets, land distribution and farm structure change, and issues at the nexus of agriculture, natural resource sustainability, and economic development.

**Kerstin Nolte** is an economic geographer holding a PhD in Economics from the University of Göttingen, Germany. She is an Assistant Professor at the Institute of Economic and Cultural Geography at Leibniz University Hannover, Germany. Her research focuses on sustainable rural transformation with a focus on large-scale land acquisitions. Her research on the processes in which land acquisitions take place, on the determinants and impacts, builds on feld research in Mali, Zambia, and Kenya.

**Daudi Peterson** has supported and facilitated Indigenous land rights and community-based conservation in Northern Tanzania for the last 30 years. He is a co-founder and current board member of the Dorobo Fund, Dorobo Safaris, and the Ujamaa Community Resource Team (UCRT) in Tanzania.

**Brian E. Robinson** is an Associate Professor at McGill University. He has published widely on the role of property rights in conservation and resource management. His research looks at policies that mediate the relationship between humans and the environment, how people meet their needs through the use of ecosystems and natural resources, and the role these issues play in human well-being. His methods draw from environmental and development economics, development geography, ecology, and land systems science.

**Margaret Rugadya** holds more than two decades of experience as a development practitioner and academic research, and she is a leader in the area of land policy and gender equity, with contributions to the economics of gender, land, and resource tenure. Rugadya holds a PhD in Economics—Governance and Public Policy from Maastricht University. Te focus of her work is on women, pastoralists, forest dwellers, indigenous persons, and urban dwellers across Africa.

**Paul Samboko** is an agricultural economist whose research interests span the development environment nexus in sub-Saharan Africa. His previous work involved capacity building, evidence generation, and outreach activities relevant to agriculture in Zambia and other countries in Eastern and Southern Africa.

**Jolyne Sanjak** is an agricultural economist with specialization in development economics. She has more than 25 years of technical, research, and managerial experience relating to inclusive global economic development, with technical expertise in areas including rural and urban land governance, as well as with rural livelihoods and agricultural development. Dr. Sanjak is a Sector Director for Land Tenure and Property Rights, with Tetra Tech, ARD.

**Laura Aileen Sauls** is a Leverhulme Early Career Fellow in the Department of Geography at the University of Shefeld and an afliated research scientist with the Clark University Center for the Study of Natural Resource Extraction and Society. Her research primarily concerns movements for Indigenous and community forest rights in the context of global political and environmental change. In late 2022, she starts as an Assistant Professor of Global Afairs at George Mason University in Virginia.

**Chira Schouten** is a natural resource manager with over 25 years of experience in project management, organizational management, and strengthening networks that involve multiple stakeholders in both the conservation and agriculture sectors. She has worked for Te Nature Conservancy since 2013 frst as the program lead for northern Tanzania and now manages the Africa conservation portfolio consisting of four regional strategies and nine program teams.

**Mourad Shalaby** is a Project Evaluation Analyst at the Global Environment Facility. He is a multilingual climate change expert with over ten years of professional experience with several prominent international organizations and research institutes in the environmental feld with expertise in environmental and social impact assessments. He holds masters' degrees in Environmental Geography and Urban Planning from McGill University and Université de Montréal, respectively.

**Erin Sills** is a Professor and Head of the Department of Forestry and Environmental Resources at North Carolina State University, as well as a long-time associate of the Center for International Forestry Research. Her research lies at the interface of environment and development, including rigorous evaluation of the local impacts of conservation interventions across the tropics.

**Mitelo Subakanya** is a Research Associate at the Indaba Agricultural Policy Research Institute (IAPRI). Her research interests include environment and natural resources management, climate change, poverty analysis, impact evaluation, agriculture, and rural development and rural fnancing.

**William D. Sunderlin** has conducted research on the underlying causes of tropical deforestation, forests and livelihoods, forests and climate change (specifcally on REDD+), and forest tenure. He worked at the Center for International Forestry Research (CIFOR) in Bogor, Indonesia, in the periods 1994–2006 and 2009–2015 and at the Rights and Resources Initiative (RRI) in Washington, DC, 2006–2009. He is now a Senior Associate (CIFOR), a Fellow (RRI), and a Visiting Professor at the State University of New York—College of Environmental Science and Forestry.

**Hannah L. Timmins** has over seven years of experience developing technical expertise in conservation area best management practices, expansion, restoration, and connectivity. She has managed and led conservation and research projects and developed publications for organizations including Zoological Society of London, Te Nature Conservancy, International Union for Conservation of Nature, Convention on Biological Diversity, Forest Conservation Fund, and BirdLife International.

**Tzu-Wei Joy Tseng** is an epidemiologist and works on a variety of topics related to human health and social policy. She has experience assessing how land tenure security afects conservation and human well-being outcomes and has also investigated the link between household air pollution and health in China. She is a graduate researcher with the Institute for Health and Social Policy at McGill University in Montreal, Canada.

**Jon Unruh** is a Professor at McGill University, and his work focuses on war-afected land and property rights. He has conducted research, policy and practice work in Syria, Yemen, Lebanon, Sudan, Liberia, Somalia, Mozambique, East Timor, Sri Lanka, Sierra Leone, Zambia, Ethiopia, Uganda, Cambodia, Angola, Cameroon, Turkey, Slovenia, Jordan, Colombia, Peru, Tanzania, Kenya, and Saudi Arabia and generally with the UN, World Bank, USAID, DFID, and other bilateral donors and NGOs.

## **Abbreviations**

#### **xxxii Abbreviations**

## **List of Figures**

#### **xxxiv List of Figures**

## **List of Tables**

## **List of Boxes**

**xxxvii**

# **1**

## **Property Rights, Tenure Form, and Tenure Security**

**Yuta J. Masuda, Brian E. Robinson, and Margaret B. Holland**

While trekking through the forests of Indonesia Borneo far from any urban center, the sound of insects, mammals, reptiles, and the roaring river can be deafening. It is a testament to the forest's immense biodiversity—some of which is found nowhere else in the world. Yet no more than a few kilometers away, the forests open up to an expanse of oil palm trees that stretch to the horizon, neatly planted in rows like corn felds in central Indiana. Tis stark contrast in landscapes masks the tension around land ownership and land use in Indonesia Borneo that has lasted for several decades. Market forces fueled by policies that catalyzed demand for oil palm led to targeted increases in the production of oil palm. Tis

Y. J. Masuda (\*)

Global Science, Te Nature Conservancy, Arlington, VA, USA e-mail<EMAIL_ADDRESS>
B. E. Robinson Department of Geography, McGill University, Montreal, QC, Canada

M. B. Holland

Department of Geography & Environmental Systems, University of Maryland, Baltimore County, Baltimore, MD, USA

led the way for international conglomerates to purchase hundreds of thousands of acres for oil palm production. But the lands being targeted for oil palm production were oftentimes occupied by local Dayak communities and others who have lived in the forests of Indonesia Borneo for generations, many of which settled the area there long before land titles. Indeed, in the 1980s, the Indonesian government recognized longstanding settlements and arranged systems whereby villagers could arrange a proft-sharing agreement with organizations interested in cultivating and developing the land in exchange for transferring development rights. But as an extensive *New York Times* piece (Lustgarten, 2018) documented, "companies often secured the permits they needed through some combination of intense lobbying, bribery and strong-arming, and the result was broken promises and missing payments." Villagers lacked the resources or institutional knowledge of how to defend their rights. Due in part to the power diferential between villagers and international conglomerates and the enormous demand for oil palm, 16,000 square miles of rainforest have been lost since 1973, which accounts for approximately 20% of deforestation in impacted areas (Gaveau et al., 2016). Te overall socioeconomic impact of oil palm expansion remains difcult to generalize (Sheil et al., 2009), but increasing evidence suggests land ownership and land use remains central to concerns, confict, and debate about increasing oil palm production and who ultimately benefts (Rist et al., 2010).

On the other side of the world in the Middle Belt region of Nigeria, National Public Radio (McDonnell, 2018a) reported a vicious cycle of retaliatory attacks between permanent farming communities and the nomadic pastoralist Fula that has persisted for years. Amnesty International (2018) suggests a primary cause stems from disputes over access and ownership over water, land, and pasture, resulting in over 3600 people killed from January 2016 to October 2018. Recent shifts by farmers to dry season farming, population growth, and shifting livelihood strategies by both herders and farmers increased demand for natural resources. Water, for instance, was needed by farmers for irrigation and by herders for their livestock in the same season. Prior to these changes, traditional agreements between farmers and herders largely prevented confict, and when conficts did occur, they were quickly resolved. Individual herders lacked land rights and instead utilized communal lands, and herders also received permission to graze livestock in areas that were not being used for agriculture by farmers. In response to increasing conficts, some state governments instituted restricted grazing to enclosed ranchland (McDonnell, 2018b). Tis did little to stem confict, however, as many herders were unable to comply because they relied on communal lands that were not enclosed and also did not own any land. In return, the policy has been attributed with an increase in fatalities as, "Te grazing laws pushed people to a level where they really felt like they had to fght, especially in rural areas where there is no presence of security" (McDonnell, 2018a).

## **A Common Thread Underpins Pressing Sustainability Challenges**

Te cases above illustrate how land tenure security (herein just tenure security) is an important factor for sustainable development. In these cases, tenure insecurity is both a primary and underlying issue exacerbating other pressures that create confict and uncertainty for sustainable natural resource use or equitable development. In both cases, clarifying land tenure is critical for resolving a diverse set of issues. Te cases are by no means representative of the range of issues where tenure insecurity is either a primary or a tertiary exacerbating factor. But they highlight how tenure insecurity can intersect and is driven by historical inequities, political power and infuence, population growth, economic development, and other factors. Ultimately, tenure security is important for resolving issues at local, regional, and global scales, although this may not always be immediately clear.

Take, for example, the case of Indonesia Borneo, which highlights how insecure tenure has created conditions for unsustainable and arguably inequitable development of the region. Te cascading efects from insecure tenure have implications for climate change, biodiversity, and sustainable economic development at all scales. On the local scale, Indonesia Borneo's forests are home to historic Dayak tribes and hold immense biodiversity. Borneo is one of the richest biodiversity regions in the world, and it is known as a global diversity "hotspot." Beyond being home to the well-known orangutan, it is home to over 14,000 plant species, among which an estimated 28% are found nowhere else in the world (Roos et al., 2004). Dayak tribes have called Borneo home for hundreds of years, and the land, the forest, and everything on and below it hold cultural and spiritual signifcance and also play a critical role in daily life. For instance, an estimated 34% in the rural areas of Kalimantan reported forests as a source of traditional medicine to treat kidney disease, malaria, fever, and digestive problems (Abram et al., 2014). At the regional scale, insecure land tenure may have contributed to slashing and burning of peatland and forests (Lustgarten, 2018), which in just one year is estimated to have contributed to poor air quality and led to 100,000 premature deaths in Indonesia, Malaysia, and Singapore (Koplitz et al., 2016). On the global scale, forests and peatlands in Indonesia Borneo store signifcant amounts of carbon, and these lands are critical for meeting ambitious global climate change goals. Here again, fres can severely setback important climate change targets. To put this into perspective, the 1997 peat and forest fres contributed to the largest increase in carbon emissions since records began (Page et al., 2002), and the 2015 fres in Indonesia Borneo released so much carbon that the daily carbon emissions were more than that of the entire European Union (Huijnen et al., 2016).

Tenure security can afect a diverse set of issues at multiple scales, so it is perhaps unsurprising that it has grabbed the attention of conservationists, ecologists, climate scientists, women's empowerment advocates, food security specialists, public health practitioners, and others. Tenure security is foundational for many global agendas, such as the Sustainable Development Goals, the Paris Agreement, and the Aichi Targets. As a result, tenure security is an explicit component of many policies and programs, such as Reducing Emissions from Deforestation and Degradation plus programs, establishment of protected areas, gender equity programs, and even sustainable agricultural programs that aim to decrease fertilizer runof.

Te interest of multiple stakeholders has led to signifcant growth in research on tenure security and has created a rich body of knowledge (Fig. 1.1). But it has also created fragmented research agendas and

**Fig. 1.1** Number of research articles for property rights and tenure security across time. Data were extracted from Scopus using the following search strings. For *property rights*, "(TITLE-ABS-KEY(("land" OR "lands") AND (("ownership right\*" OR "property ownership" OR "property right\*") OR ("property titl\*" OR "titl\*") OR ("land right\*" OR "right\*")) AND NOT "urban") AND PUBYEAR > 1949 AND (LIMIT-TO (DOCTYPE,"ar")) AND (LIMIT-TO (LANGUAGE,"English")))." For *land tenure security*, "Your query: (TITLE-ABS-KEY(("land" OR "lands") AND (("tenure secur\*" OR "tenure insecur\*" OR "secure tenure" OR "insecur\* tenure" OR "land tenure")) AND NOT "urban") AND PUBYEAR > 1949 AND (LIMIT-TO (DOCTYPE,"ar")) AND (LIMIT-TO (LANGUAGE,"English")))"

approaches to resolving land tenure insecurity. Fragmentation has occurred across disciplines (e.g., economics, geography, political economy) and policy interests (e.g., nature conservation, women's empowerment). A lack of clarity in terminology (Schlager & Ostrom, 1992; van Gelder, 2010) has also created signifcant challenges (Masuda et al. 2020), such as inconsistent measurement, well-intentioned but poorly designed policies, and a multiplicity of theoretical frameworks. Given the complexity of tenure security, precise language and terminology is important for facilitating discussion and advancing knowledge.

**6 Y. J. Masuda et al.**

Here, we provide descriptions and defnitions of *property rights*, *tenure form*, *institutions*, and *tenure security* to facilitate consistent discussion on tenure security. Tese are all concepts that are important for understanding tenure security (Arnot et al., 2011; Robinson et al., 2018; van Gelder, 2010). Here, *rights* are "particular actions that are authorized," and a *property right* is "the authority to undertake particular actions related to a specifc domain" (p. 250, Schlager & Ostrom, 1992). *Property rights* include access, withdrawal, management, exclusion, alienation, and due process and compensation (Table 1.1). For example, often implicit in home ownership is the right to possess the property, control the property, make modifcations, and exclude others from the land on which a home sits, among others. However, in (for example) the case of Sweden, the codifed principle of Allmansrätten grants individuals the right of public access. Property rights also imply the duty to not exercise a right, such as a restriction on one's own action as in the case of conservation easements on private land.

*Tenure form* "determine[s] who can use what resources, for how long, and under what conditions" (FAO, 2002). *Institutions* are "the humanly devised constraints that structure political, economic and social

**Table 1.1** Defnition of rightsa

aRights adapted from Rights and Resources Initiative (2016) and Schlager and Ostrom (1992)

interaction. Tey consist of both informal constraints (e.g., sanctions, taboos, customs, traditions, and codes of conduct), and formal rules (e.g., constitutions, laws, property rights)" (North, 1991). In essence, they are the "rules of the game" (North, 1990). Finally, *land tenure security* is a landholder's perception that rights will be upheld by society (Sjaastad & Bromley, 2000). As a result, tenure security results from an interaction between these concepts, and is multidimensional. Below, we use these terms to provide a better understanding through a case study.

## **Maasai Communities Around the Foothills of Mount Kenya**

In southwest Meru County at the foothills of Mount Kenya, several Maasai villages have lived communally for generations. Te Maasai pastoralist culture has had to adapt to colonialism, economic and social development, globalization, and other forces. Tis shift has meant that recent generations have adopted a more semi-pastoralist way of life, having permanent settlements with some small-scale agriculture, all while maintaining pastoralist traditions. Cattle provide the main form of wealth for these communities, and a collectivist culture whose identity is centered on cattle and pastoralism still dictates individual behavior and community governance. Communal land for livestock grazing continues to provide an important resource for communities.

Agricultural plots farmed by the Maasai contain many individual-level *property rights*. Property boundaries are established, giving a household individual rights to access the plot, withdraw products grown there, manage the plot as the household sees ft, exclude others from trespassing, and divide and sell the plot if they so desire. Tis is typically seen as the "full" bundle of rights that come along with the *tenure form private property* (Table 1.1).

Te Maasai communities also retain rights to designated communal grazing land. In the case of Maasai villages in southwest Meru County, several villages graze livestock on communal land. Cattle and other livestock move around these lands to take advantage of seasonality and variation in the production of grasses, which are largely driven by rainfall patterns. Te Maasai also have many *rights* associated with these lands. At the individual level, each person has access and withdrawal rights on their designated land. At the community level, there is a collective right to management and exclusion of others from enjoying the benefts of the land. However, the right of alienation does not exist either individually or collectively. In 2016, the Kenyan government formally recognized community land via the Community Land Act, designating the *tenure form* of these grasslands as community or *communal land*.

Here, property rights are enforced by both informal and formal *institutions*. First, the informal institution relies on traditional village governance structures within the Maasai communities and is made up of village elders who have advanced through traditional Maasai warrior culture. Tis system consists of older villagers who have been initiated as warriors, practiced as young elders, and have since graduated to becoming village elders. Warriors are grouped by age-sets—or cohorts—and are initiated into adulthood at the same time. Tey form close bonds and perform community duties such as protecting cattle and community members. Decisions involve all village elders through discussion about the infraction and appropriate penalty, and expectations are established via long-held social and cultural norms, and warriors are often tasked with enforcing punishments if needed. In this way, grassland tenure is socially upheld from within the community and with tacit or explicit support from other surrounding communities. Te formal institution here is the state, as it bestows and enforces property rights through the Kenyan Community Land Act. Both these institutions can work together to provide assurances that society (either socially, at the local level, or statutorily, at the governmental level) will uphold these rights. Yet the institutions at the local level and the ones provided by the state can be unequal, and the Maasai communities largely use these informal or socially-upheld institutions to give landholders longer-term assurance over their rights, which provides *tenure security*.

Societal change, economic development, climate change, demographic change, changing cultural preferences, and other forces will likely test the resilience of property rights, the institutions that uphold and enforce them, and the Maasai communities' tenure security. For instance, unpredictable rainfall patterns have, in recent years, caused drought in neighboring pastoralist communities, resulting in decreased grass production. Tis threatened the health of cattle and other livestock, and as a result neighboring communities encroached on Maasai communal land as they searched for healthier pastures to feed their livestock. Tis event tested the strength of the Maasai community's informal institution, as it only provide tenure security as long as it is respected and adhered to by those within communal land boundaries. Recent migrants who were unfamiliar with and may not have respected or adhered to the existing informal institution can create confict by breaking the existing social contract. In practice, elders from both the Maasai communities and the encroaching communities met to resolve the dispute, although skirmishes still occurred as information about the agreement took time to disseminate across the community. Tis event highlights how, in some ways, tenure is broadly secure through informal institutions and federally recognized land, and in theory there is an arbitration system that can deal with land disputes. In other ways, there are numerous ways in which tenure is insecure, which can prevent landholders from making land management decisions that involve long-term strategies or land investments.

## **Defnitions Affect How We Analyze Issues and Develop Solutions**

As demonstrated above, tenure security is complex, and the way in which we talk about the factors afecting it is critical for developing a consistent understanding of its drivers, its efects, and ways to resolve tenure insecurity. Providing clarity in descriptions and defnitions is a frst step, but the real world presents complex situations where understanding, for instance, how property rights intersect with the enforcement of property rights by informal and formal institutions is more than just acknowledging these are linked concepts. Further, the cases highlight how tenure security is connected to seemingly unrelated or distant issues. Te primary efects of drought in a neighboring community (i.e., decreased biomass from a lack of rain impacting cattle and livestock health) may have been exacerbated by tenure insecurity in the Maasai communities. Tis is because droughts also afected neighboring pastoralist communities, and searching for more grazing land, these communities encroached on Maasai village communal land, thus creating greater land use pressure that expedited the degradation of communal grasslands. With stronger institutions that allow enforcement of property rights to exclude outside community members, the efects of the drought may have been minimized.

Te following chapters use the terms outlined above to ensure a consistent discussion about tenure security and sustainable development. Tis book, collectively, is about showcasing how land tenure and secure rights over land are fundamental to many of the most basic tenants of human well-being and environmental sustainability. We hope to help illuminate the foundational role that tenure security plays in development and how it connects to many of the contemporary issues we struggle with today.

Starting from fundamental tenants and taking a long view of history, Chaps. 1, 2 and 3 aim to show the broad societal-level factors and determinants of tenure security. Tis comes through a review of terms with illustrative examples (this chapter), a view of the historical evolution of land rights (Chap. 2), and a perspective on how legal and customary rights are both needed for tenure security (Chap. 3). Te core of this book, Chaps. 4, 5, 6, 7, 8, 9 and 10, focus on how tenure security interacts with contemporary topical issues, while Chaps. 11, 12 and 13 summarize potential ways to address tenure insecurity. In these chapters, in some cases tenure security may afect the Chapter topic itself (e.g., insecure land tenure can create confict). In other cases, tenure security might mitigate how a particular issue afects social and conservation outcomes of interest (e.g., how tenure security interacts with conservation programs). Finally, Chaps. 14 and 15 synthesize across these issues to discuss new and emerging directions for research and practice.

## **References**

#### **1 Property Rights, Tenure Form, and Tenure Security**

**Open Access** Tis chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/ licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence and indicate if changes were made.

Te images or other third party material in this chapter are included in the chapter's Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

## **2**

## **A Historical Perspective on Land Tenure Security**

**William D. Sunderlin and Margaret B. Holland**

## **How Did We Get Here?**

Why do vast numbers of people in rural areas of the Global South lack tenure security over the lands they use (RRI, 2015a; USAID, 2016)? We answer this question by examining how various processes in the course of socioeconomic development have produced this outcome. In doing so, we intend to show that the answer—far from being straightforward or obvious—is more complex than one might suppose. Our overarching argument is that understanding the past is essential for addressing present challenges tied to tenure insecurity.

Answering this question is encumbered by several obstacles. First, there are no historical measures of tenure security. Recall from Chap. 1

M. B. Holland (\*)

Department of Geography & Environmental Systems, University of Maryland, Baltimore County, Baltimore, MD, USA e-mail<EMAIL_ADDRESS>
W. D. Sunderlin

Center for International Forestry Research (CIFOR), Bogor, Indonesia

that we defne tenure security as the landholder's perception that rights will be upheld by society (Sjaastad and Bromley, 2000). For lack of historical information on peoples' perceptions of land tenure security, we use information on past patterns of land dispossession and regaining of land control as a proxy for tenure insecurity and security. We draw attention to certain historical developments and trends that we believe have obvious (if not measured) impact on tenure security. Moreover, we look at episodes of contested land rights and their violations as a stand-in measure of security gained and lost. Parts two and three of this chapter, focusing as they do on a historical period when there is no measurement of tenure security, are necessarily conjectural and hypothetical. Parts four and fve, which encompass the period after World War II, are more empirically grounded.

Second, we are undertaking a vast topic that could itself be a whole book, recognizing the relevance and importance of providing historical context for contemporary tenure security issues. Of necessity, our chapter is more a theoretical sketch with a few historical illustrations rather than the historical treatise that the topic deserves. We sacrifce detail to reveal the forces and trends that might otherwise escape our attention.

Tird, the general propositions we make mask variations across and even within continents and countries. Because tenure security can vary by gender, ethnicity, and other social categories as well, a deeper analysis of tenure security requires careful study of the local context and history of any given population group of interest.

Tere are several assumptions and values underlying this efort that should be disclosed. We recognize that tenure security, in practice, has sometimes been a zero-sum situation where gains in tenure security of the powerful are often achieved at the expense of the security of the less powerful (Broegaard, 2005; Chomba et al., 2016; Robinson et al., 2018). With equity in mind, we are concerned mainly with the tenure security and rights of less powerful "common" people in rural areas. Recent reports by donor and development agencies imply the emergence of a normative focus on the tenure rights of the poor (IFAD, 2015; World Bank, 2019). Unfortunately, some donor initiatives push for large-scale impact through uniform approaches that fail to recognize the nuance required in attending to issues of equity in land rights and tenure security. We are concerned about those who have sufered in the development process, in particular, Indigenous Peoples and their customary systems, other traditional peoples, and peasant farmers (Gilbert, 2016; Komey, 2008; Lawry, 2014). We are concerned not just about land, but also about non-land resources above and below the land (e.g., water, forests, and minerals) because they too have been the object of appropriation in the development process. Moreover, we believe that customary land and resource claims have inherent value and can be legitimate even if not formally recognized by the state (Peters, 2009; Unruh, 2006). We believe hierarchy and class (e.g., who holds power) are key conceptual lenses for understanding the historically salient trends and shifts we document.

Te chapter is comprised of fve parts. In the next section we explain the ways socioeconomic development has often placed rural people in developing countries in a disadvantageous position with regard to their tenure security. In the third section we identify the structural and natural forces at work in the development process and how they produce varied outcomes. In the fourth section we look at major episodes in the ebb and fow of rights and tenure security. Te concluding section points out the relevance of these historical insights as we enter an uncertain and volatile period.

## **Development and Dispossession**

Across history, dramatic changes have occurred in the way humans have lived on planet Earth, due largely to the development and spread of capitalism. How did rural people view the security of their access to and control of land in the feudal centuries (mainly ninth through the ffteenth), during early capitalism (beginning in the seventeenth century) and at the time of the emergence of industrialism (beginning in the eighteenth century)? It's difcult to know with certainty for lack of information, but we can suppose it exhibited the wide range of possibilities we see today. At one extreme, peasants on *early* feudal estates (Editors of Encyclopedia Britannica, 2012) and slaves on eighteenth-century American plantations had no meaningful control over their livelihoods and had no land tenure security. At the other extreme, some customary hunting and gathering societies living far from cities and villages (and therefore far from the ravages of emerging capitalism) probably had reasonably strong confdence in future land and resource control—if we set aside the possibility of territorial confict.

In what follows, we make the case that precarious access to and control over land would undergo changes in its causes, geographical scope, and intensity in the ensuing centuries. As socioeconomic change unfolded, the causes of land tenure insecurity were no longer just nation states, city states, kingdoms, and chieftains fulflling territorial ambitions, but were also driven by centers of urban economic production seeking land (Royston, 2002; Unruh, 2007), increasing demand for natural resources (raw materials) and labor, and growing markets for selling their products (Cattaneo, 2001; Firmin-Sellers, 2000). Te growing and shifting causes of land tenure insecurity frst grew within and then across national and continental boundaries. Land markets and the process of formalization and commodifcation were factors that increased tenure security and insecurity (Deininger et al., 2011; Kelly & Peluso, 2015).

In medieval times under feudalism, and more specifcally under the manorial system (organization of the economy under feudalism), aristocrats provided peasants (small farmers or landless laborers) military protection against outside aggression in exchange for services on land they supplied (La Croix, 2002; Ellsworth, 2002; Editors of Encyclopedia Britannica, 2012). Tese services were typically of four kinds: money; labor through the use of the peasants' own plow and oxen; reaping and processing of the harvest; and military service (Editors of Encyclopedia Britannica, 2012; Ellsworth, 2002). As explained above, early on, feudal tenure was insecure inasmuch as the lord could evict the peasant tenant at any time. With the passage of time feudal tenure became more secure. Trough cultural change and recourse to royal courts, lords could no longer arbitrarily force peasants of the land, but instead had to ensure permanent access to that land (Editors of Encyclopedia Britannica, 2012). Tis arrangement signaled the beginning of the idea of secure land tenure (Bruce, 1998; Ellsworth, 2002). Feudalism went into decline from the eleventh century onward. With the growth of the money economy and of cities and towns, and with increasing demand for agricultural surplus, it became more efcient and proftable to have free workers who paid rent or received wages (Editors of Encyclopedia Britannica, 2012).

#### **2 A Historical Perspective on Land Tenure Security**

**19**

We defne capitalism as "an economic system based on market competition and the pursuit of proft, in which the means of production or capital are privately owned by individuals or corporations" (OESD, 2020). While according to some observers, capitalism and globalization have played a role in reducing global poverty (Chandy & Gertz, 2011; Ortiz-Ospina, 2017), these same forces have triggered or aggravated uneven access to land, often to the detriment of rural tenure security in the Global South (UN-Habitat, 2014; UN, 2020). Exponential growth of capitalist production has translated to considerable geographic reach in the search for profts through additional land, resources, labor, and markets. Contemporary cases of this are discussed in the next section of this volume (Chap. 7) concerning large-scale land acquisitions (i.e., "land grabs") in parts of Africa. An important associated phenomenon, made possible in part through capitalist development (Magdof & Foster, 2013), is the exponential net increase in the global human population growing from approximately 650 million in 1750 to 7.7 billion now (a more than ten-fold increase). Just as important, from the standpoint of increasing resource pressure and extraction, is exponential average per capita growth in resource and energy consumption (although with considerable disparity) (FOE, 2009; Ritchie, 2020). Te creation of a largely urban consumer class underlies the vitality of capitalist development and the growth in consumption (Naik & Oldfeld, 2015; Ghosh, 2019).

No less important in terms of rural impact have been the ways in which early capitalism actively suppressed land rights. Tis was not limited to the Global South. In England, for example, the Enclosure Acts of 1750–1850 overtook the common lands used by small farmers, preventing their access and creating the basis for much larger farms owned by the wealthy (Rosenman, 2012). Many rural people who had heretofore relied on those lands for survival were forced to migrate to urban areas in search of wage labor opportunities.

International commodities trade long predates the birth of capitalism and the industrial revolution. But the onset of capitalism and industrialization led to *colonialism* (the practice of acquiring control over another country, occupying it with settlers, and exploiting it economically) and *imperialism* (the practice of extending a country's power and infuence through diplomacy or military force), which shifted the search for land, labor, and markets from the industrializing North to Africa, Asia, and Latin America.

A combination of economic drivers, woven together with religious and racial ideologies, were key to motivating European white settlers to suppress the rights of other peoples and lay claim to vast areas of land around the world. Te Doctrine of Discovery, proclaimed as a papal edict in the ffteenth century, laid the groundwork for the outlook that white Christians were intellectually and morally superior to non-white and non-Christian people and that "discovery" and occupation of lands inhabited by "barbarians," "savages," and "heathens" was an essential frst step in the civilizing process (Mark & Soong-Chan, 2019; Miller et al., 2012; Special Rapporteur on Human Rights, 2010). Te idea of racial superiority manifested itself in a wide array of proclamations and campaigns aiming at land seizure across countries of the Global South, as well as North America (Bonds & Inwood, 2016; Smith, 2012).

In the eighteenth and nineteenth centuries, opportunities for the production of cotton and tobacco in the United States and sugar in Brazil led to the importation of hundreds of thousands of slaves from Africa to meet growing agricultural production goals (Galeano, 1997). Te search for gold in the Andes, mining ores in the Congo Basin, and spices in the Netherlands Indies were the entry point for incipient colonization in those regions. Tere were genocidal conficts that greatly reduced Indigenous populations and constrained them to restricted areas in large areas of the South. European settler populations subjugated wide areas of the globe, created governance structures that turned countries into dependent clients, and organized production and development activities to be of direct service to foreign occupying armies and economic elites (Braudel, 1979; Cardoso & Faletto, 1979; Wolf, 1982; Harvey, 1982).

Te simple sketch we have given of this apparent "march of history" suggests that the process of socioeconomic development has led relentlessly and uniformly to the appropriation of lands and suppression of land and resource access in remote rural areas. But this is not the case. As we shall see in the next section, in which we decompose some of the basic elements of the development process, the trajectory of change in land tenure security is far more complex than a cursory glance would suggest.

## **Development Dynamics and Tenure Security Complexity**

We identify four forces at work in the development process that help explain the variability and complexity of pressures on access to land and resources across time (what we call tenure security today): vertical social interactions; horizontal social interactions; technological dynamism; and catastrophes (both natural and human-induced). Some of the synergies among these four forces that will be alluded to are for illustrative purposes. Although it would have been possible to include a ffth category on tenure policies, we chose not to, seeing that such policies are in a sense subsumed in, and artifacts of, the other categories. Moreover, we recognize that, in the land tenure literature, attention to policies tends to overshadow the structural forces shaping them. Several chapters in the following sections of this volume explore diferent land tenure policies, including the post-colonial period of land reform and formalization (Chap. 11) and more recent national and global policy shifts toward recognition of Indigenous Peoples and local communities (Chap. 4).

#### **Vertical Power Interactions**

People lose access to land or can feel insecurity at the perceived risk of losing the land they have long held and used because someone, or some group, more powerful than them can take it away. Vertical land pressure (induced by hierarchies of power) is a constant across recorded history. Te more powerful actors seeking land or resources could be an invading army, the state (acting either through the threat of violence or eminent domain), or a private enterprise. A key characteristic in these interactions is the use of violence, intimidation (threat of violence), or other threat of reprisal (e.g., legal confscation or economic penalties) by the powerful actor(s) to accomplish their goals. Across time the threat of land appropriation has become more sophisticated, layered (e.g., collaborative and coordinated activities of the military, state, private enterprises, and groups of individuals), and far-reaching in a geographical sense. In the past, land appropriation often involved direct violence linked to increasingly sophisticated use of weaponry, counterinsurgency, rape, and torture as an instrument of conquest, and other forms of subjugation (e.g., Escobar, 2004; Daudelin, 2003; Grajales, 2013; Ward & Marsh, 2006). In recent decades there has been increased use of forms of subjugation that are less visibly brutal and achieve their goal through economic coercion, negotiation, and manipulation (e.g., Dell'Angelo et al., 2017; Regassa et al., 2018; Alden Wily, 2012). Also, in recent decades, there has been a growing role of land speculation, ofshore land investment, loan sharking, drug trafcking, and coercive conservation in land appropriation (e.g., McMichael, 2012; McSweeney & Pearson, 2016; Peluso, 1993; Agrawal & Redford, 2009). Tis trend is further discussed in Chapter 7 of this volume.

Across history there has always been resistance to vertical oppression and threats of land appropriation. Although often futile (in the sense that land is often seized precisely because the claimant is more powerful), organized resistance movements have had some notable successes. Examples are agrarian movements involving guerrilla warfare against oligarchies in Latin America (Stavenhagen, 1970; Teubal & Ortega Breña, 2009), the deployment of "weapons of the weak" (covert but powerful resistance to domination through non-cooperation or cultural resistance) (Scott, 1998) to undermine elite control and act in defense of land and resources, and international and national coalitions in support of Indigenous land rights that have been helpful in achieving formal statutory Indigenous land claims (e.g., Anaya & Grossman, 2002).1

#### **Horizontal Social Interactions**

Te sources of land pressure are also horizontal, in the sense of being created by the multiplied presence of people with more or less equal power. Exponential and accelerating rates of human population growth—with the highest rates experienced recently in the Global South—have greatly increased population density, land scarcity, and competition in rural areas. Note that there are important synergies with vertical pressure. For

<sup>1</sup>Te breakthrough international court case of Awas Tingni in Nicaragua opened key legal pathways for claims by Indigenous Peoples all over the world.

example, in Latin America the seizure of vast areas of the best lands for as pasture by rich landlords led to a growing number of land-poor and landless peasants competing for remaining land or migrating to cities (Carlson, 2019; Kay, 1997; Shaw, 1974). Land reforms that may have been able to redistribute lands to the rural poor instead avoided doing so in favor of colonizing rainforest areas, which were lands often already customarilyheld by Indigenous groups (Jones, 1990). Migration is a key factor in land scarcity and pressure (Bilsborrow, 1992; Bilsborrow & DeLargy, 1990; Carr, 2009). Migrations to settled areas can be the result of seasonality (e.g., for fruit harvesting and pastoralism); state-sponsored relocation (e.g., Indonesia's transmigration program of the 1980s to reduce land pressure in Java (Fearnside, 1997)); war involving religious, ethnic, or racial persecution (e.g., refugees in search of security on either a temporary or a permanent basis); or natural cataclysm (more on this further in the chapter).

Although there has been considerable human population growth and an increase in displacement and human migrations, this does not translate monotonically to increased rural land pressure. Some of the release in pressure is planned (e.g., Indonesia's transmigration), but much of it is spontaneous and unplanned. A key characteristic of capitalist development has been the growth of urban areas, where much of manufacturing and industrial production takes place and where there is a growing service and tertiary sector. Te rural "push factor" (land and employment scarcity and low income) is matched by the urban "pull factor" (relatively higher wages). Net rural outmigration in developing countries is part of what explains the steady growth of urbanization in countries of the Global South (Keats & Wiggins, 2016:5). Economic crisis can reverse this process. Examples are the "return to the village" in Cameroon in the aftermath of the devaluation of the CFA franc in 1985 (Franqueville, 1987), and the current urban to rural migration resulting from COVID-19 (Shylendra, 2020; Boillat & Zähringer, 2020).

However, in net terms urbanization has proceeded across the planet, with Africa as the only remaining continent with majority rural population (UN, 2019). Another pressure relief valve is intensifcation in agricultural production. Greater yields on a unit of land through technological development (see below) can potentially contribute to relieving land scarcity and competition (Byerlee et al., 2014). Te Danish economist Ester Boserup demonstrated that increased agricultural population density can induce innovation and increase production, contrary to Malthusian theory (Boserup, 1965).

## **Technological Dynamism**

In hundreds of ways that cannot all be catalogued here, technological innovation is at the heart of the capitalist and industrial revolutions that have expanded the consumption of resources and appropriation of lands in rural areas. Invention of the steam engine in the seventeenth century, closely followed by the fossil energy-fueled internal combustion engine, greatly increased the capacity and efciency to access natural resources, transform them into processed consumer goods, and deliver them to markets. Te transportation revolution (from walking, to animal draught, sail boats, engine-powered boats, railroad system, and air travel) meant not only improved speed, capacity, and efciency of transport, but also increase in the means of the military, state, and private enterprise to conduct their work at increasing distances. Likewise, the communications revolution (voice, written letter, telegraph, telephone, electronic mass media, Internet) contributed to the same outcome.

Yet in all sorts of identifable ways, technological dynamism has also contributed to reducing land pressures in rural areas. Agricultural intensifcation through irrigation, fertilizers, pesticides, fungicides, and highyielding varieties of seeds has not only increased yields on per unit areas of lands and increased the number of harvests in a year (Pingali, 2012), but the application of technology is viewed as key to future global food security (Rosegrant et al., 2014; Fuglie et al., 2020). Agricultural intensifcation, diversion of rural labor from agricultural to non-agricultural activities, and migration to urban areas can logically make rural land pressure lighter than it would otherwise be. As explained by García et al. (2020), agricultural intensifcation can spare land for nature (i.e., reduce agricultural land demand), but it can also have a rebound efect involving further expansion of cropland. Technological development is an essential facet of rural-to-urban migration described above. Te relatively high subsistence wage in urban areas is directly related to increases in productive efciency in the manufacturing and industrial sectors over time. Rural to urban migration is motivated not just by economic factors (higher average wages), but also by security (e.g., avoidance of war and confagration) and culture. Tese two-edged efects of technology are also evident, for example, in the case of advancements in communication. Electronic dissemination of information (news, entertainment) to remote regions has drawn attention to alternative life experiences outside the rural realm and made migration to the city attractive to some. However, the same communication advances, notably the cell phone, have also enabled some agriculturalists to increase production and income, enhancing the security of rural livelihood (Aminou et al., 2018; Fabregas et al., 2019).

#### **Catastrophes—Natural and Human-Induced**

Since time immemorial natural disasters of various kinds have been a threat to rural people's access to and control over land. Tere is ample documentation across the centuries of mass migration provoked by natural disasters such as foods, droughts, fres, earthquakes, landslides, pestilence and disease (such as the plague), insect infestation and consequent crop decimation, earthquakes, and tidal waves. Tere are also catastrophes caused by human agency that can profoundly disturb rural land tenure security. Examples are excessive or inappropriate resource use and consequent drop in productivity (e.g., over-grazing, hillside agriculture, and landslides) and industrial disasters (e.g., Bhopal chemical disaster in India). Te most notable contemporary case is the climate crisis, which is an exacerbating factor for droughts, extreme heat events, hurricanes, and other natural disasters. Te World Bank has predicted that climate change will force 140 million people to migrate by 2050 (Rigaud et al., 2018). Increasing average temperatures are also altering the optimal locations for the production of certain crops. Producers of these crops will be forced to either adapt locally or relocate. Evidence is emerging that hot temperatures are decreasing labor hours in rural communities in tropical lowlatitude countries, threatening existing livelihood activities that are often tied to the land (Masuda et al., 2019). Rising seas threaten inundation of coastal lands, which is where the highest densities of human populations currently live (Podesta, 2019; Le, 2020). It is forecast that the most devastating consequences of threatened crop production will happen in rural areas of developing countries (Morton, 2007; Mendelson, 2008; Nelson et al., 2009; FAO, 2016; FAO, 2017; Arnall, 2019; Sloat et al., 2020). Chapter 2c of this volume explores the relationship between this shifting and increasing food insecurity and land tenure insecurity.

## **Historical Trends in the Ebb and Flow of Security and Insecurity**

We have seen that, in broad terms, the diversity, geographical reach, and intensity of threats to rural tenure security have tended to increase over time—with considerable variation across and within countries, and with forces that increase insecurity often encountering other forces that decrease it. Are there any clear net tendencies in the ebb and fow of tenure security across space and time? It is not possible to answer this question with a high degree of specifcity because of insufcient information, especially from the distant past, and because of the wide diversity of patterns across countries. Nevertheless, we can illustrate trends by pointing to a sequence of deprivation, gains, and rollback in the last century.

Roughly in the frst half of the twentieth century we can see increasing threats to rural land access across the developing world. In Asia and Africa, capitalist penetration into the countryside was implemented through strong colonial domination, often facilitated by a captive national government acting as a client and surrogate to foreign powers (Newbury, 2000). Resistance to seizure of land and resources, and to colonialism in general, was uneven among countries (Maddox, 1993; Tussing, 2017; Chandavarkar, 1998; Bogaerts & Raben, 2012). Cities were not yet absorbing a large fow of migration from the countryside, with a consequent build-up of rural population. In the agricultural sector, there was wholesale appropriation of lands by occupying powers and rural elites, and increasing rates of landlessness (Frankema, 2010). In Latin America the dynamics were similar but with a tendency toward direct rather than indirect rule. By the early 1900s, the extremely inequitable land ownership system (called "latifundio-minifundio")2 had already taken hold throughout the region, as demonstrated by Gini coefcient data from that era: 78 in 1920 Brazil, 80.3 in 1914 Argentina, and 83.7 in 1927 Chile (Frankema, 2008).3 Te Mexican revolution (1910–1920) was the best organized, earliest, and most successful movement to fght and partially reverse this inequality (McLynn, 2002). It resulted in the legal recognition of the *ejido* in the 1917 Mexican Constitution, which set the stage for land redistribution and the formal recognition of communal agrarian landholding (Perramond, 2008).

Across all three regions of the Global South, national governments carried forward eighteenth- and nineteenth-century state ownership over forest estates; the aim was to assert control over resources deemed strategic and to occupy remote areas for the protection of national borders (Peluso, 1992; Scott, 1998; Fay & Michon, 2012). Appropriation of forests as part of the national estate caused tenure security and displacement for Indigenous Peoples in remote regions. Forest estates were then exploited for timber, minerals, and petroleum and subsequently converted to plantation agriculture—a pattern that intensifed in the second half of the twentieth century. Wars of national liberation and/or guerrilla movements across the developing world in the middle of the twentieth century were in part a response to rural exploitation (Wolf, 1969).

By the second half of the twentieth century, most developing countries gained independence from colonial powers. Nevertheless, post-colonial elites in many countries deepened control over land and resources and exploitative practices. Under neo-colonialism, national elites (in government and in the private sector) continued to beneft fnancially through trade and aid relationships with wealthier countries and consolidated a process of national capital accumulation for their own gain. During this period, leftist movements acquired national control and waged war

<sup>2</sup> "Tis dualistic tenure system is characterized by relatively few large commercial estates known as latifundios, which are over 500 hectares and numerous small properties known as minifundios, which are under 5 hectares. Minifundios are mainly subsistence-oriented smallholdings and are generally farmed by peasant households" (Wikipedia, 2020a).

<sup>3</sup>Te Gini coefcient for land ranges from perfect equality at 0 to perfect inequality at 100. For comparison, the earliest data from Indonesia (1963) show a Gini of 52.7 (Frankema, 2008).

against former colonial powers (e.g., Congo and Vietnam). In the 1960s and 1970s we witnessed the emergence of leftist social movements in defense of land rights, and in some countries, guerrilla warfare was waged against national governments allied with oligarchies, for example, in El Salvador (Wood, 2003) and Nicaragua (Baracco, 2005). Movements for land tenure reform and land redistribution aimed to right extreme inequalities in the agricultural sector. In the Americas, agrarian reforms were undertaken in almost every country, sometimes by left-wing governments (e.g., Nicaragua and Cuba), but also by moderate governments responding to external and internal pressures and attempting to difuse social unrest (de Janvry, 1981; Kay, 1997). Some analysts claim the transformations made by those reforms are disappointing: they were poorly or partially implemented, unleashed new conficts, and were met with counter-reforms that, in the end, benefted capitalist farming while further marginalizing peasant farming (e.g., Kay, 1997). Lipton (2009) observes, "At least 1.5bn people today have some farmland as a result of land reform, and are less poor, or not poor, as a result. But huge, inefcient land inequalities remain, or have re-emerged, in many low-income countries. Land reform remains both 'unfnished business' … and alive and well" (Lipton, 2009: p. 8). A 2020 study fnds that, in most countries, land inequality is increasing and that: "Tis trend directly threatens the livelihoods of an estimated 2.5 billion people worldwide involved in smallholder agriculture" (Anseeuw & Baldinelli, 2020:7).

More recently, national and sub-national movements in the forest sector emerged to defend forest land rights as well as to demand forest tenure reform (Larson & Dahal, 2012). Most notably in the 1970s and 1980s, some developing country governments began to devolve forest management to Indigenous People and local communities; the initial motivation of this devolution was forest restoration rather than the recognition of rights, but also with the goal of conserving and sustainably managing forests (Larson & Dahal, 2012). Various factors motivated this change, including acknowledgment that state-led forest management has been a failure; willingness of governments and the private sector to relax their grip on lands that have already been stripped of most of their timber wealth; a worldwide trend toward decentralized governance; greater acceptance of collective and customary systems; and increasing efectiveness of international and national campaigns to recognize the human rights and resource rights of Indigenous Peoples (Larson & Dahal, 2012; Barry et al., 2010). Te area devolved is documented in detail by the Rights and Resources Initiative (RRI) and updated every fve years (RRI, 2020). As explained by RRI, "As of 2017, Indigenous Peoples, Afro-descendants, and local communities had legally recognized rights to 15.3 percent of the world's forests, a 40 percent increase from 2002. Over 98 percent of this progress occurred in developing countries. Communities now have legal rights to 28 percent of the developing world's forests in Africa, Asia, and Latin America" (RRI, 2020).

Tis notable progress notwithstanding, in the last 10–15 years, in some developing countries, we are witnessing a slowdown and the threat of rollback of some gains for land rights and tenure security made in the last half century. Dating from the time of the 2007–2008 global recession, agribusinesses, governments, and speculative investors in wealthier countries have appropriated 20–60 million hectares of land (about 1% of agricultural or 1% of forest lands worldwide) (Wikipedia, 2020b). Trough this "land-grabbing" phenomenon—defned as very large land acquisition through either buying or leasing—investors have aimed at food production (about 37% of investments) and biofuel production (about 20% of investments). Among the motivations have been the emergence of shortages of arable lands in richer or rapidly growing economies, and the aim to produce a larger share of food, fber, and fuel abroad and import them. Another factor is recovery from the efects of the global economic recession, which temporarily lessened rural investment; it has since been restored. A disproportionate share of this activity has been in Asia, notably Indonesia, Malaysia, and India (Von Braun & Meinzen-Dick, 2009; Borras Jr et al., 2011; GRAIN, 2016; Land Matrix, 2020; Wikipedia, 2020b). Land grabbing has also involved appropriation of water resources (Rulli et al., 2013). In terms of the typology explained earlier, this phenomenon is best understood in the sphere of vertical dynamics and can be viewed as a reassertion of coercive power by elites at the top of international and national power hierarchies. (For more discussion of land grabbing as a more recent phenomenon, see chapter 2d.)

In the forest sector in some countries, there has been a slowing or even a reversal of progress on extending tenure rights to Indigenous Peoples and communities (RRI, 2015b pages 19–21; RRI, 2018 pages 21–23). Tis includes some areas appropriated in the interest of conservation (Agrawal & Redford, 2009). In recent years, there has been a growing number of murders, death threats, acts of sexual violence, and legal and illegal intimidation against people in resource-rich areas in developing countries (Sunderlin et al., 2018). In 2016, there were at least 201 forest defenders murdered, followed by 197 victims in 2017, in various conficts over land and resources (Global Witness, 2017). A 2017 letter composed by rights defenders in 29 countries demanded that the United Nations urge governments to increase legal protection from violence. Te letter states: "We need global action to counter the threats we face. Tis is not just a struggle for resources, it's a struggle for justice and social equality" (Human Rights Defenders, 2017).

## **The Current Situation**

In countries of the Global South, tenure insecurity is widespread for common rural people in both agricultural and forest landscapes. Knowing how we got into this situation is vital because it gives insights into the scope of opportunities for defecting further threats, maintaining gains achieved, and improving tenure security.

Te variability of tenure security is frmly rooted in the dynamics of capitalist development. We therefore need to be attentive to the contemporary permutations of this economic system which so pervasively afects human existence and natural resource use on planet Earth. Attention to capitalism is often set aside as a given or ignored as a topic too intractable, large, or disturbing to talk about. Its importance is in direct proportion to its absence from the discussion.

With this theoretical framework as a backdrop, we have seen that there are four overarching factors at play in historical capitalist development that can both aggravate or ameliorate rural tenure security in the Global South: vertical power interactions; horizontal social interactions; technological dynamism; and catastrophes whether natural or human-made. Tere are cross-synergies among these four factors that are alluded to notionally in this chapter that deserve further research attention. Furthermore, we have postulated a succession of epochs in rural tenure security: undermining of tenure security under rapid expansion of rural capitalist development and colonial domination in the early twentieth century; some (by no means thoroughgoing) improvement of tenure security through rural to urban migration, resistance to oppression, and devolution of tenure rights to some Indigenous Peoples and local communities in the late twentieth century; and undermining of tenure gains in recent years in relation to the land-grabbing phenomenon, rollback of some rights, and human rights violations against defenders of land and resource rights. We emphasize that there is a great deal of variation in these tendencies across and within countries.

We are entering an uncertain and potentially volatile period for tenure security. On the one hand, rhetorical commitment to the importance of secure tenure rights has never been stronger among multilateral agencies, international development organizations, and the donor community, as evidenced in the current set of Sustainable Development Goals (SDGs) and related targets. Notably, there has been ofcial recognition of the importance of Indigenous management of tropical forests and associated strengthening of tenure rights in relation to global climate change mitigation (IPCC, 2018). On the other hand, land grabbing, rollback of rights, and violence against land and resource rights activists have all increased.

In this context, we believe it is appropriate to call for an ever-stronger commitment to upholding and strengthening tenure security for rural people by governments, donor organizations, and NGOs. Relatedly, it is important to expand research on tenure security to propel and support this stronger commitment.

**Acknowledgment** We wish to acknowledge the many valuable criticisms and suggestions made by Anne Larson and Nancy Peluso on an early draft of this chapter. We take full responsibility for any errors or omissions that might remain.

## **References**

Agrawal, A., & Redford, K. (2009). Conservation and Displacement: An Overview. *Conservation and Society, 7*(1), 1–10.

**Open Access** Tis chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/ by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence and indicate if changes were made.

Te images or other third party material in this chapter are included in the chapter's Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

## **3**

## **Who Defnes Land Tenure Security?**  *De Jure* **and** *De Facto* **Institutions**

**Brian E. Robinson and Moustapha Diop**

## **Introduction**

Let us begin with a simple thought experiment. Consider a space explorer heading of into the uncharted edges of the galaxy.1 Tat explorer and their family fnd a new habitable planet with water, other life, and many other resources. Not too hot, not too cold. Luckily, they do not fnd other signs of any imminently dangerous or sentient life with whom to negotiate, so they decided to settle there in the peace and quiet as the frst and only (human) family there. Tat early explorer family may choose to

M. Diop

<sup>1</sup>Loosely inspired by real-life possibilities envisioned in President Trump's last *Economic Report of the President* (USA) 2021 (Executive Ofce of the President Council of Economic Advisers, 2021).

B. E. Robinson (\*)

Department of Geography, McGill University, Montreal, QC, Canada e-mail<EMAIL_ADDRESS>
Department of Geography & Environmental Systems, University of Maryland, Baltimore County, Baltimore, MD, USA

settle wherever they like. Tey end up at a foodplain that has plentiful fsh in the river, freshwater, and nice sunset views. Grasslands nearby are easy to till and convert to some small agricultural plots (they brought seeds). Tey use the foodplain part of the year for farming and then retreat during the rainy season to avoid foods. Tere are also forests across the valley that house plenty of small wildlife creatures for hunting, new herbs to discover, various fungi, and woody species to use for building and heating. Tey use these multiple pieces of land throughout the year as they please.  Tey can choose to use (or not use) resources as they please, only bound by environmental and biological constraints of the landscape and the climate. Tere are no other people with whom to negotiate any concept of fair use and, as such, there is no need to defne the concept of who has a *right* to certain resources, to engage in activities, or otherwise draw benefts from the land.2

Eventually, others hear of the bounty that exists on this previously unknown planet and come to settle down. At frst, some settle in other parts of the planet and face limited or no social pressures. But as time passes lands become more crowded, and some others come to settle in the same area as the frst family. Wildlife is plentiful, and resources are abundant. As more newcomers arrive social relationships and agreements begin to develop. A community, in fact, is built based on common understandings of how land and resources will be used and managed by community members. Sometimes these understandings emerge through discussion, negotiation, and shared principles. Sometimes they emerge through confict. With time, however, boundaries are defned, collectively agreed-upon (even if implicitly) rules of use are devised, and a functional and socially coherent society evolves.

Te foundational basis of property rights is a social agreement. Members of a society must, even if implicitly, agree on who can and cannot use particular resources and in what way, and these agreements must be backed by a recognized authority (Bromley, 1992; Meinzen-Dick & Mwangi, 2009). In the space frontier example, as unoccupied areas are settled, rights emerge as understandings and agreements among community members. Tis is much how John Locke formalized ideas of the

<sup>2</sup>Tis is akin to John Locke's early ideas of a "state of nature" (Locke, 1689).

emergence of property rights in the seventeenth century (Locke, 1689) (see Chap. 2). Our understanding of property relations has developed since then (see Bromley, 2004), in part this is because it is exceedingly rare, if even possible, that there is "uncharted" territory in which other members of society do not have pre-existing claim or, at the minimum, have no interest (Banner, 2009; Ellis et al., 2021). Still, the example helps illustrate that as societies grow and land pressure increases, there becomes a need for clear and transparent processes that assign and enforce rights among various parties, and spell out the rules for how rights can be accessed, transferred, terminated, or gained. Locke even argued that the *primary* function of government is to secure and protect such property institutions (Locke, 1689). In any case, granting rights over land and property is like a social contract. As a society we agree to let some people have rights to some things and in turn agree that others do not have a right to that same thing.

Tis chapter briefy reviews how the "governors" of that social contract can exist (and throughout history, have existed) at various levels of society or administration. Tey can be part of a formal system of governance or equally a more informal system of social relations or local land management. Te most common way land rights and land tenure is discussed is through contracts, titles, or deeds that are formalized by the state (here: government). However, the state is not always necessary or present for having rights—so-called informal rights can exist without a higher-level state sanction. Tese are often referred to as "customary" arrangements, or *de facto* community-level understandings of simply "how things work."

As we will discuss, legitimacy and security of rights can be strong in both formalized and *de facto* situations. Te *security* of land tenure refers to how confdent a landholder is that their land rights will be upheld by and within their community (Sjaastad & Bromley, 2000) (for key terms see Chap. 1). Te community must be a recognized authority, but it is not always necessary that the authority is a centralized government (Diop, 1968; Pélissier, 2008). In some cases, especially when the state is absent or weak, household-level land tenure security may be more a function of local community dynamics and informal governance mechanisms. Still, in most current contexts, land pressures from outside parties are only increasing (e.g., see Chap. 7), meaning that sustained land tenure security must likely come with state-recognized backing of land rights. Here we review *de jure* (of the law) and *de facto* (common local practice) perspectives on where the authority over rights can be held, and their relationship to land tenure security.

## **Formal, State-Sponsored,** *De Jure* **Land Tenure**

With the growth of the state and the increasing reach of capitalism (see Chap. 2), defning and adjudicating property rights over land and territory, even historically ignored remote areas, has become a common concern of national governments. When land rights and tenure over land are formalized, they are an institutionalized part of government and governance. State judicial and enforcement systems that adjudicate and uphold the rule of law also, similarly, uphold and enforce property relations.

Various types of rights can be conferred to individuals and groups which defne the stream of benefts to which an entity is entitled from a parcel of land. A common way of describing types of rights is presented in Chap. 1 (see Table 1) as the right of access, withdrawal, management, alienation (the ability to sell), and due process of land (Schlager & Ostrom, 1992). Sets and subsets of these right "bundles" are often implied in common ways of talking about diferent types of property in terms of private, common, or public land (Robinson et al., 2018). For example, western thought traditions consider rights "well-defned" when all possible rights are held by a single entity or landholder, what is generally referred to as full ownership or private property (Cooter & Ulen, 2012). However, in some countries such as China, Ethiopia, Tanzania, and Mozambique, the state is the sole owner of the land and, as such, rights are never "well-defned" in a strict sense, since rights of alienation do not hold. What is still generally thought of as "private" land in these cases is land that is contracted from the state in long-term (leasehold) agreements, up to 70 years in the case of China (Ma et al., 2020; Wang et al., 2015). Still, when the substance (does the right exist?) and assurance (is the right upheld?) of rights (Sjaastad & Bromley, 2000) are clear to a household, leasehold agreements via long-term contracts can lead to high rates of land investment and productivity (Deininger et al., 2011; Lin, 1992), similar to expectations of freehold private property. With formalized private rights, governments typically develop parcel-based land registries, or a cadastral map, that document who has an "interest" in the land (see Chap. 11). When geolocated cadasters do not exist, land registries may hold legal recognition of land properties in the form of titles and deeds.

In cases where some rights or duties are shared between the public and private individuals, for example, in communal and public lands, rights may be formalized or *de jure* recognized by the state in various other ways. Some common terms that imply formalized rights include laws and regulations, zoning, policies, management plans, protected areas, or private easements. Box 3.1 describes these terms and how rights can be formalized within them.

#### **Box 3.1 Common Terms Associated with Formalized (***De Jure***) Rights**

*Laws and regulations*: Property rights or right bundles may be defned or outlined in specifc laws or regulations enacted by the governing body.

*Zoning*: Federal, regional, or municipal zoning regulations, especially in more developed contexts, often defne uses and restrictions on land use, which amount to rights enforcements handed down by the state. Zoning is also featured in public protected area management (in, e.g., biosphere reserves) by defning access, withdrawal, and sometimes management rights restrict certain activities to specifc areas.

*Policies*: Often rights, duties, and responsibilities can change with specifc and often shorter-term policies or programs that are put in place that may be more ephemeral than codifed laws or regulations. Payment for ecosystem service programs and other incentive-based policy tools are effective contracts that landholders enter into with a governing body, that imply duties or restrictions in lieu of some compensation mechanism.

*Management plans*: National, regional, or local agencies can develop strategies or management plans with specifc goals. These sometimes have land use restrictions or duties that must be upheld in adherence with what is determined to be in the public interest.

*Protected areas*: Protected areas are often developed to safeguard unique landscapes, ecosystems, and biodiversity in general. Overall goals of protected areas, or the subject of what is being "protected," can range from environmental to social, cultural, or historical (e.g., UNESCO World Heritage Sites). These areas have historically represented primarily topdown strategies that limit actions, behaviors, or uses of land. Also see note about protection in Zoning above.

*Private easements*: Sometimes referred to as fee-simple easements, these are legally codifed restrictions on a privately owned land parcel. These effectively transfer some portion of landholders' rights to the state and have become a more common form of environmental protection for some developed regions, especially the USA and parts of Europe.

Te categories in Box 3.1 constitute a simple descriptive (and far from an exhaustive) list. Tey are also not mutually exclusive of one another, as noted by the *Zoning* and *Protected area* categories, and can sometimes constitute overlapping or strategies that could be characterized in various ways. Similarly, laws, regulations, zoning, and policies are all somewhat overlapping, fuzzy, and sometimes synonymous categories. Tis list simply represents common terms that describe situations in which the state plays a key role in the formalization of land rights.

Additionally, it is important to recognize that formalization of land rights by the state does not equate to land tenure security for landholders (also discussed in Chap. 11). Too often security is equated with private land and formalized title, but simply creating rules or allocating rights through some of these formal mechanisms does not guarantee security of rights for an individual (van Gelder, 2010). Security requires that the proper institutions are in place to ensure that conficts and claims can be adjudicated fairly and requires the landholder perceive those institutions are trustworthy and reliable. Governance needs to be clear and transparent, and the process by which individuals make a claim on their rights needs to be accessible.

A number of factors can limit the strength and efcacy of institutions and governance systems. For example, weak state governments may be understafed or otherwise lack the capacity to monitor or enforce rights especially in more remote regions. Tis can create institutional imbroglio, where there may be a formal right on paper but little ability for a landholder to exercise that right in reality. For instance, in many countries in Sub-Saharan Africa, the decentralized local governance and elected ofcials in more rural communes do not have the necessary human and economic resources capabilities to properly manage and control individuals' tenure rights, at least in the way envisioned by the central government. In cases where formal governance is lacking, local governance flls in, which can be prone to be overly infuenced by the locally powerful or allow for discrimination (Higgins et al., 2018). Tis "elite capture" manifests particularly in places where the land has high value and is attractive for domestic and international agri-business and extractives investors (Wolford et al., 2013). Terefore, when governance resources are limited, much of the monitoring and enforcement capabilities tend to be concentrated in population hubs and economic centers—the state may have a more limited capacity to develop its interest in more remote or far of areas (Bromley, 2008). As the old Chinese proverb says, "Te mountains are high, and the emperor is far away."

## **Local, Self-Governed, and** *De Facto* **Land Tenure**

Te opening to this chapter described the imagined emergence of a local and self-governed property system. Of course, historically, local-level governance has been ubiquitous. Farming communities, Indigenous groups, nomadic pastoralists, and others have developed governing systems that worked for their communities. Te growth of the nation-state has given rise to larger needs to formalize governance and rules, in ways that were not typically necessary beyond regionally agreed-upon systems. In many places where the state has not (yet) claimed an interest, customary land rights are the norm (see Chap. 4, which explores indigenous and customary tenure). Tis is especially true in Sub-Saharan Africa, where it is estimated around 78% of the land is under customary or "neocustomary"3 control (Alden Wily, 2018). In these cases, the role of higher levels of governance and administration can be unclear, poorly enforced, or purposefully disengaged (via "devolution" of management or within autonomous regions, for instance). Tis leaves land tenure and land governance decisions to local communities.

Just as in the discussion above regarding statutory or formalized rights, *de facto*, or informal land tenure arrangements, can also span any combination of right bundles. What *de facto* cases have in common is that the local community (in some form), rather than a centralized government, is the source and arbiter of rights. Tese rights can be *socially* upheld and are often discussed in several ways. Some common ways *de facto* regimes are described include customary or traditional tenure, communal management, norms, and *de facto* management regimes. Box 3.2 describes these in more detail.

<sup>3</sup>Neocustomary tenure refers to cases where the state has attempted to recognize customary lands but generally allow for autonomous governance within that land (see Chimhowu, 2019).

#### **Box 3.2 Common Terms Associated with Informal (***De Facto***) Rights**

*Customary or traditional tenure*: Community-specifed rights can be unique, highly locally specifc, and often represent long-negotiated differences and nuances that defned the rights and duties for individuals versus the greater community. These are often referred to as "customary" tenure arrangements, generally representing a wide range of conditions that summarize heterogeneity in conditions rather than any kind of commonality between cases in this categorization.

*Communal management*: Similar to customary rights, reference to communal management systems is vague and lacks specifcity needed to understand who holds which kinds of rights. Still, this term is often used to discuss a system where some kind of collective governance over land or resources is practiced, and generally with rules that are agreed upon and enforced by a community.

*Norms*: When individuals or members of society behave according to some kind or rule or practiced behavior that becomes normalized by the group, these are often referred to as norms. These behaviors maybe are internalized as part of "culture" or simply as "the way things are done" (e.g., inheritance norms that can vary widely across communities), but these can constitute sometimes unspoken rules about how land management and property relations are governed.

**De facto** *management regimes*: Land is sometimes managed without law or an overarching governance system. In such cases "*de facto* management" indicates that however land is being managed by local actors *is* its management system. Again, this can capture a huge range of local conditions.

Local and indigenous management systems have sometimes evolved over generations, responding to social and environmental stresses. Recent eforts to formalize some traditional and customary management systems aim to keep traditional, customary, or otherwise indigenous knowledge or norms intact while formally recognizing these informal institutions in the eyes of the state (Knight, 2010). Still, the adoption of customary institutions can have equity implications that do not align with modern sustainable development objectives, for example, when local rules reinforce overly local power imbalances or social, ethnic, or gender-based inequalities.

Importantly, individuals and households in informal land tenure arrangements can feel either secure *or* insecure that their *de facto* rights will be upheld by the community. Teories on the emergence of property rights as a social system note that private and individual rights are responses to competition and pressure for land and resources. Rights specify "how persons may be benefted or harmed and, therefore, who must pay whom to modify the actions taken by persons" (Demsetz, 1967: 347). But rules are costly to enforce, so it only makes sense to increase the strength of rights and protection of rights when a community feels the benefts conferred by the right are worth the cost of monitoring, enforcement, and adjudicating fair processes (Ostrom, 2002; Robinson et al., 2013).

Recent eforts show that in many cases perception of tenure security is often high, even without formalization of rights. For example, the Prindex project recently began collecting annual nationally representative data from several countries on the perception of rights. A recent report showed that while 83% of those with formal land documents felt secure in their rights, still 63% felt secure even *without* any formal documentation (Prindex, 2020). Tus, as discussed above, formalization is neither necessary nor sufcient to guarantee land tenure security (see Chap. 11 for further discussion). Local competition, gender, migration and population change, external land pressures from outside interests, and civil confict can all afect the security of land rights (Ghebru & Lambrecht, 2017; Robinson et al., 2018; Stickler et al., 2017). Land tenure security in these informal and *de facto* situations often depends on how clear, transparent, and legitimate rights are within a community.

## **Informal Rights, Formalization, and Sustainability**

Sources of insecurity exist for both formalized and informal land tenure arrangements. In some cases, the core source of tenure insecurity can be thought of as a lack of congruence between *de jure* and *de facto* rights. Tis "tenure gap" can be a source of confict, confusion, and dispute that alone can manifest (Robinson et al., 2018). Closing the gap between these two is important and has been a core efort of many land tenure interventions in the past several decades (Tseng et al., 2021). Tis requires ensuring customary lands are recognized at the state level, and also that local rights are just and appropriate at the community level. Other challenges come when there are overlapping or confictual claims, which can often be brought on by development pressures. Regional land disputes can be difcult to resolve, and indeed are the resource at the core of violence and war (see Chap. 8), as well as overlapping claims between local communities and the state, for example, indigenous lands versus protected areas (Holland et al., 2014). Still, addressing these may not be easy—managing and resolving land disputes can quickly become an exercise in confict resolution and possibly involve generations of disagreements.

Te formalization of rights is sometimes a precursor to development, and in other cases is a messy and confict-ridden consequence of development (Fenske, 2011; Ho, 2015). Regardless, if the process of defning and determining rights begins when dispute or confict is active, those rights are bound to be contested and fought over (see Chap. 8). Formal recognition of customary land rights is ideally proactive and happens prior to any imminent "need" for those rights to be clarifed. Land pressures are only expected to increase across the Global South (see Chap. 7), making open and transparent legal recognition of rights all the more needed.

Understanding the nuances of how customary and formal systems align (or do not) is challenging but critical for recognizing and elevating customary lands to legitimate legal status (Knight, 2010). Even when formalization of customary and traditional lands has been attempted, the initial weak legal status of these traditional lands (especially ones that have not been put into "productive use") can leave them vulnerable to claim or co-opt by outside parties (Alden Wily, 2011). Still, it is encouraging that recognition of forests as owned or designated for Indigenous People and local communities grew steadily from 2002 to 2017 (RRI, 2018).

Moving forward, aligning *de jure* rights—the statutory and legal codes and policies that defne and provide backing for rights—and *de facto* understandings of who holds which rights, and how tenure security plays out on the ground is necessary for equitable and transparent governance of land and for landholders to feel secure in making sustainable investments in land and property. In many cases, communities can leverage rights "on the books" or in the legal code. Ensuring communities know their legal rights, and have ways to monitor and enforce those rights, is also fundamental to ensuring congruence between *de jure* and *de facto* realities. In the context of our space explorer, small, isolated communities can develop *de facto* arrangements to help bring order to land and property relations within their own landscape. As populations grow and various (outside) entities develop interests in scarce land resources, governance mechanisms must develop coherent ways of allocating land to address growing populations and emerging economic activities. A state helps formalize governance, back right holdings, and adjudicate disputes. In some cases, the core role of the state may be to provide formal recognition of *de facto* right contexts.

Troughout the remainder of this book, some chapters discuss situations and attempts to formalize rights, while others grapple with understanding strategies to recognize customary or *de facto* contexts. A recognition of how "on paper" rights and "on the ground" rights can difer, as well as strategies and mechanisms for how we might align these, is one key to developing sustainable and equitable land management into the future.

## **References**

**Open Access** Tis chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/ by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence and indicate if changes were made.

Te images or other third party material in this chapter are included in the chapter's Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

## **4**

## **Indigenous and Customary Land Tenure Security: History, Trends, and Challenges in the Latin American Context**

**Laura Aileen Sauls, Fernando Galeana, and Steven Lawry**

## **Why Indigenous and Customary Land Tenure?**

Globally, land rights advocates consistently argue that the statutory recognition of Indigenous and customary forms of tenure can encourage the sustainable management of local resources, contribute to global environmental services (such as carbon sequestration), and leverage new forms of

L. A. Sauls (\*)

Department of Geography, University of Shefeld, Shefeld, UK

Global Afairs, George Mason University, Fairfax, VA, USA e-mail<EMAIL_ADDRESS>
F. Galeana Sociology and Integrative Conservation, University of William & Mary, Williamsburg, VA, USA

S. Lawry CIFOR, Bogor, Indonesia public and private investment that enhance livelihoods (Blackman et al., 2017; Rights and Resources Initiative, 2018a; Robinson et al., 2014). But what are these Indigenous and customary tenure forms? Where do these tenure regimes come from? And what role do they play in promoting sustainable development?

Addressing these questions requires that we frst put the contemporary trend of recognizing Indigenous and customary land rights into a historical and geographical perspective. What we now call customary forms of tenure refect the interactions over time between pre-colonial land-holding institutions with new forms of tenure introduced during the colonial period. After independence, these forms underwent transformation as part of state-building programs and continue to evolve in tandem with evolving policy priorities. Far from static and anachronistic, today's Indigenous and customary tenure regimes are dynamic systems of governance that refect local conditions, national legal frameworks, and international policy priorities (Fitzpatrick, 2005). Because of their dynamic and often hybrid nature, these regimes resist categorization under the dominant binary of private versus public land (Ostrom, 2009). Tey refect cultural and spiritual values and practices that represent distinct forms of relating to place and nature, which cannot be reduced to a statutory classifcation of property (Escobar, 2008).

Indigenous and customary land tenure regimes are as diverse as the landscapes and regions in which they exist, and this chapter can only provide a partial view of the core issues facing Indigenous and customary land tenure security today. Tat said, by highlighting the diversity and dynamism of these systems and their common diferentiation from Western property systems, we aim to provide key defnitions and background for understanding their status today. Tis chapter also analyzes contemporary trends for these regimes to highlight the vital role that such tenure regimes still play for human-environment relationships across the globe and prospects for sustainable development more broadly.

We will frst defne what we mean by a customary land tenure regime, explaining the particularities of making claims on the basis of indigeneity. Next, we will explain how the systems that we recognize today as Indigenous or customary have their roots in pre-colonial governance systems but co-evolved with changes during colonial times and in the postcolonial period. From there, we examine contemporary trends in Indigenous and customary land rights recognition and tenure security, with a focus on lowland tropical regions in Latin America where more extensive recognition has taken place (Rights and Resources Initiative, 2018b). Finally, we consider current and projected challenges to achieving security for communities whose livelihoods and territory depend on recognition of their customary and Indigenous land tenure regime, especially in the context of increasing pressures on their historic lands.

#### **Defning (Customary and Indigenous) Land Tenure Regimes**

According to a Rights and Resources Initiative (RRI) study of land rights in 64 countries, Indigenous Peoples and local communities hold nearly 64 percent of the world's land and have formal recognition to about 18 percent of it (RRI, 2015).1 Other estimates suggest that these communities may have rights to up to 25 percent of the world's land area, including 40 percent of terrestrial protected areas (Garnett et al., 2018). At least 1.5 billion people depend on lands under customary or Indigenous control for their livelihoods (Rights and Resources Initiative, 2015). Many, though not all, of these areas are remote or in frontier zones, containing some of the most globally signifcant remaining intact forest landscapes recent estimates suggest over 1 billion people reside within 5 kilometers of a forest (Fa et al., 2020; Newton et al., 2020).

Many communities around the world have developed collective land tenure systems to manage the lands, forests, and resources that they held in common. Over long periods of time, communities have adapted these systems to their local environments resulting in highly diverse institutional forms responsive to local ecological and cultural conditions (Cotula, 2007; Trawick, 2001; Unruh, 2006). Not all collective land tenure systems, however, are held under customary tenure. Te case of the Association of Forest Communities in Petén (Guatemala) demonstrates a contemporary example where forests are collectively managed, but the state is the guarantor of and has jurisdiction over the resources (Gómez & Ernesto

<sup>1</sup>Te RRI study classifed diferent types of land tenure systems as community-based tenure regimes if ownership or management were held at the community level. Formal recognition included ownership and management rights. Several United Nations agreements also use this language to cover a range of traditional and customary land and resource rights arrangements.

Mendéz, 2007; Sauls, 2020). Tis system also evolved out of negotiations between the state and communities in the context of the 1996 Central American Peace Accords, which stipulated that 100,000 ha of land be turned over to organized communities within the Maya Biosphere Reserve (Gnych et al., 2020). Te Mexican *ejido* system, codifed in the post-revolutionary Constitution of 1917, similarly situates a form of collective land management frmly within the state's purview, although it did grow out of customary forms of post-colonial collective land-holding (Barnes, 2009).

Customary and Indigenous land tenure regimes are those where community, rather than statutory, norms and rules usually prevail when it comes to land use decisions. In these tenure regimes, "people gain access to the commons as a social right derived from their membership in the local community or collective" (Gnych et al., 2020, 2). Te ways in which people gain access are mediated through often unwritten protocols and practices that set criteria for membership and status in the territorial groups. Tese protocols may incorporate various conceptualizations of the rights of nature into these regimes, refecting distinctive, place-based worldviews (Escobar, 2008; Sánchez Canseco, 2017). For this reason, the range of "diferent relations of authority, identity or territory" between people and land—or *land tenure regimes*—that we defne as customary or Indigenous thus are important for understanding social, economic, and environmental conditions across a range of geographies (Boone, 2015, 173).