1.1. The Long Evolution of Property in Land
‘For property in land, a local group held by cooperative defense the inalienable rights inherited through group membership. As resource use intensified, households that improved land and houses retained some right of personal property, but without the rights to transfer except through inheritance. Land rights were, however, regularly alienated by conquest, whereby a group and its chief asserted direct control by seizure’.(Earle 2017, p. 23)
1.2. The Survival of Community-Based Tenure
1.3. Bringing Collective Landholding in from the Cold
2. Objectives and Methods
- What are the global extent, strength, and trends in legal provisions for community property?
- What are the contexts through which recognition of community lands as property are provided?
- How equally does the law protect community and private property?
- How is title to community property vested?
- How far is community property able to be freely sold?
- How far do laws enable community members to hold private rights to parcels within community properties?
- To what extent do community owners govern their own properties?
2.2. Materials and Methods
2.3. Community Lands: A Massive Estate
3.1. Legal Recognition of Community Property is Substantial
3.2. Improved Recognition of Community Property is not Confined to a Few Regions
3.3. Laws in Over Half of Sample Countries Provide Strongly for Community Property
- Acknowledgement that community-based, collective landholding produces lawful property interests, including those owned collectively;
- Community and private lands have different attributes, but enjoy equivalent levels of protection;
- Recognition and protection is not restricted to farms and houses; rangelands, marshes, and forests within the community domain are also acknowledged as community property;
- Community regulation of community lands is accepted and/or instituted, with greater formality in law;
- Mechanisms for registration of community properties are legally provided for; and
- Individual and family interests to specific parts of the community property are acknowledged and nested under collective tenure as derivative rights.
3.4. Shortfalls in Legal Provision Are Similar Across Countries
- collective landholding is not given the same legal support as that of individual rights, even where customary rights are acknowledged as property interests (e.g., Ethiopia, Sierra Leone);
- communities are unable to register collective properties (e.g., Ghana, Indonesia); and
- main laws have failed to be followed up with essential regulations or decrees enabling application (e.g., Argentina, Republic of Congo).
Countries with Limited or No Provision for Community Property
3.5. There Is an Upward Trend in Legal Recognition of Community Property
3.6. Legal Provision for Collective Property is Expanding Its Focus
3.6.1. A potential Expansion to Urban Communities
3.6.2. The Legal Focus on Indigenous Peoples Is Widening to Include All Rural Communities
3.6.3. Focusing on the Land Rights of Forest and Pastoral Communities
3.7. Customary Land Tenure Is the Main Basis Upon Which Collective Property Is Legally Recognized
3.8. Provision for Private Parcels within Community Domains Is an Important Part of Laws
- The first is where only forests, rangelands, or comparable communal areas are defined as collective property. In this sample, this is the case for Spain, Portugal, Ireland, Sweden, Norway, Austria, Germany, Romania, Ukraine, Afghanistan, Kyrgyzstan, Mongolia, and Mauritania. These assets are traditionally attached to the farms of members held distinctly under freehold or similar tenure. Many such commons are directly adjacent to settlements, others may be remote (e.g., few community properties in New Zealand are occupied).
- The second arrangement is more usual in Asia, Africa, and Latin America, whereby community land refers to the entire domain of the community, including parcels set aside for the exclusive use of a family, individual or sub-community group under usufruct rights. Where provided for, collective title covers both communally owned lands and parcels allocated for exclusive private use of community members.
- Less frequently, and generally only among hunter-gatherer and pastoral communities, no part of the domain is earmarked for private use. Many laws in Asia, Africa, and Latin America accept this.
- Conversely, there are also communities whose lands are entirely comprised of discrete family parcels, but who use, govern, and transfer these in accordance with community sustained norms (‘customary law’). This is the case in Vanuatu and Fiji (and also in the island states of Samoa, Nauru, Tuvalu and the Solomon Islands, not in this sample).
- Uganda’s Land Act, 1998 does not provide for village or parish property, encouraging each family to secure its property under private customary or freehold title. This alienates those private parcels from the community area or its authority. In respect to shared lands by community members, the law provides for members to either continue their management using informal customary norms, or to formalize rights and rules in registered Communal Land Associations.
- In contrast, Tanzania’s Village Land Act, 1999 obliges each of the country’s 12,000 village communities to identify their communal areas, and register these in the Village Land Register. No certificate may be issued to an individual or family for a private parcel within the village land area until members have assured themselves that these do not encroach upon those common lands.
- South Sudan’s Land Act, 2009 similarly provides for community authorities to distinguish between family and communal lands.
- Kenya’s Community Land Act, 2016 prescribes that a registered community landowner may ‘… allocate part of its land to a member or group of members for their exclusive use and occupation for such period as the registered community may determine’, but that a separate title shall not be issued for such a parcel, and ‘… shall not be superior to community title in any way’ (section 27). The law also spells out that a community may seek to convert part or all of its land into fully private properties rather than usufructs, providing this is agreed to by two thirds of community members (sections 21 and 24).
3.9. Private and Community Properties Are Often Equally Protected
Compensation for Community and Private Lands at Compulsory Acquisition Is Not Fully Equitable
3.10. Absolute Ownership by Communities Is Legally Denied in a Minority of Cases
3.11. Freedom to Sell Community Property Is Freely Permitted in Only One Third of Sample Countries
3.12. Most Nations Require Formal Entitlement to Secure Community Property
3.13. It is Becoming Easier for Communities to Register Directly as Landowners
3.14. Communities May Govern Their Properties to the Same Degree as Private Persons
3.14.1. Customary Rules Play a Major Role in Collective Property Management
‘The wastelands are administered in their own right, by their co-owners in accordance with applicable customs and habits or, in their absence, through democratically elected bodies or organs. Local communities are organized, for the exercise of representation, actions, management and supervision through an assembly of co-owners, a governing board and a supervisory board. The members of the board of the assembly and the governing board and the supervisory board are elected for periods of two years, renewable, and remain in office until they are replaced’.(Law on Uncultivated Lands (Baldios), No 68 of 1993, Article 11)
3.14.2. Links between Community Land Governance and Local Government
- the inherently devolved nature of community-based tenure as governed at the most local level of rural society, pertinent to discernible demand for more devolved and inclusive governance in many regions;
- the ability of this system to encompass naturally collective off-farm resources of critical use to community members—assets that have been long excluded in many countries as owned or generically ownable other than by the State; and
- as being so proximate to land users and their socio-economic and cultural realities, possessing unique relevance to local conditions and easy adaptability in rules and practices to changing demands.
- shifting gender property relations at community level;
- adoption of family tenure into many norms;
- more precise distinction between family and common property within the community domain;
- rising flexibility in to whom and how lands may be transferred; and
- most remarked upon in this study, changes expressing pressing demands for fuller popular inclusion in decision-making on land matters.
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|Region||Countries in Sample||No.|
Sub Saharan Africa
|Angola, Botswana, Burkina Faso, Ivory Coast, Eritrea, Ethiopia, Ghana, Kenya, Malawi, Republic of Congo, Cameroon, Central African Republic, Chad, Liberia, Lesotho, Gabon, Mali, Mozambique, Namibia, Rwanda, Sierra Leone, South Africa, South Sudan, Swaziland, Tanzania, Uganda, Zambia, Zimbabwe||28|
|North Africa||Algeria, Mauritania, Morocco, Tunisia||4|
|MIDDLE EAST||Iraq, Israel, Jordan, Syria||4|
|EUROPE & USSR||Austria, Bulgaria, Germany, Italy, Norway, Czech Republic, Hungary, Iceland, Ireland, Latvia, Russia, Sweden, Turkey, Portugal, Romania, Spain, Ukraine||17|
|ASIA: West and Central||Afghanistan, Armenia, Kyrgyzstan, Turkmenistan, Tajikistan||5|
|East, South, and South East Asia||Cambodia, China, Timor Leste, Indonesia, Laos, India, Philippines, Malaysia, Bangladesh, Myanmar, Mongolia, Nepal, Pakistan, Sri Lanka, Thailand, Vietnam||16|
|OCEANIA||Fiji, Australia, New Zealand, Papua New Guinea, Vanuatu||5|
|Central America||Cuba, Mexico, Nicaragua, Costa Rica, Panama, Jamaica, Dominica||7|
|South America||Bolivia, Ecuador, Brazil, Chile, Colombia, Peru, Argentina, Guyana, Paraguay, Suriname, Uruguay, Venezuela||12|
|Mesa-Region||Number of Countries in Region||Percent in World||Number of Countries in Sample by Region||Percent in Sample|
|Latin America & Caribbean||33||17.0||19||19|
|Region||1. Countries Where Legal Provision for Community Landholding Is Strongest||2. Countries Where Legal Provision for Community Landholding Is Weak||3. Countries Where Legal Provision for Community Landholding Is Especially Weak||4. Countries Where There Is No Discernible Provision for Community Landholding|
|Sub Saharan Africa||Burkina Faso, Kenya, Malawi, Mali, Mozambique, South Africa, South Sudan, Tanzania, Uganda||Angola, Ivory Coast, Ethiopia |
Ghana, Lesotho, Liberia
Namibia, Republic of Congo, Sierra Leone, Swaziland, Zambia, Zimbabwe
Central African Republic
|North Africa||Morocco, Tunisia||Mauritania, Algeria|
|Middle East||Iraq||Jordan||Israel |
|Europe & USSR||Austria, Germany, Italy, Norway, Ireland, Russia, Sweden, Portugal, Romania, Spain, Ukraine||Bulgaria |
|Czech Republic |
|West and Central Asia||Afghanistan, Armenia||Kyrgyzstan||Tajikistan||Turkmenistan|
|East, South & South East Asia||Cambodia, China, Timor Leste, Laos, India, Philippines, Malaysia, Vietnam||Mongolia Indonesia||Nepal |
|Oceania||Fiji, Australia, New Zealand, Papua New Guinea, Vanuatu|
|North America||Canada, USA|
|Central America||Cuba, Mexico, Nicaragua, Costa Rica, Panama, Dominica||Jamaica|
|South America||Bolivia, Ecuador, Brazil, Chile, Colombia, Peru, Guyana, Paraguay, Venezuela||Argentina||Suriname |
|73 (73 percent of sample)||27 (27 percent of sample)|
|Country||Law Referred To||Main Weaknesses in Providing for Community Property|
|Angola||Land Law, 2004||Certificates of Useful Domain may be granted to communities but do not have the same standing as provided to certificated private rights. In addition, community domains may not include forested lands.|
|Ivory Coast||Rural Land Law, 1998||While provisions are made for collective ownership by communities, this is obtainable only through extinction of customary rights and vesting of the shared land in a legal entity, a costly process, with almost zero uptake thus far.|
|Algeria||Law on Land Tenure, 1990||The law coerces sedentization by requiring agro-pastoral communities to develop lands for cultivation in order to secure tenure.|
|Kyrgyzstan||Law on Pastures, 2009||Although communities are fully assisted to establish Pasture Unions to which pastures are allocated, these firmly remain the property of the State.|
|Mongolia||Law on Allocation of Land to Mongolians for Ownership, 2002||As above. Plans to issue longer-term rights to pastoralists are intended in a draft Pasture Code, 2017.|
|Indonesia||Regulation No. 5 of 1999 under Basic Agrarian Law, 1960||Collective tenure (hak ulayat) is legally acknowledged as existing but without a construct yet developed after nearly 60 years through which this may be registered. This is reputedly being developed in 2018.|
|Argentina||Constitution, 1994||While the law commits the State to register indigenous community lands pursuant to the Constitution 1994, and ILO 169 has been adopted in principle, no law yet exists laying out procedures for this registration.|
|Ethiopia||Federal Land Use Proclamation, 2005||Provision for communal landholding is an afterthought in the law, and not as easily registrable as for homesteads. Oromia Regional State is exploring ways to achieve this for the vast rangelands of pastoral communities, with promising progress.|
|Ghana||Constitution, 1992, Title Registration Act, 1986||Collective property as vested in tribal heads and heads of families is constitutionally protected, but land laws are yet to provide for the registration of customary property that is neither allodial title held by chiefs as trustees, nor individual customary freehold allocated to individuals. The Land Bill, 2016 provides for collective title, but yet to be finalized and enacted.|
|Lesotho||Land Act, 2010||While rangelands are held collectively under customary tenure and administered by elected village councils, arrangements for this are missing in the law.|
|Liberia||Public Lands Law, 1973||While the Community Forest Rights Act, 2009 recognizes community forest property, the Land Rights Bill, 2016 providing for community based tenure in general is yet to be enacted. A number of Aboriginal Title Deeds from the 1940s and 1950s exist covering large areas but often overlaid by State forest reserves.|
|Namibia||Communal Land Reform Act, 2002||Changes were made to the law in 2014 to enable families and groups to hold homestead lands in common, but not extended to grazing commonage, the maor asset; grazing lands are retained by paramount chiefs as theirs to allocate and administer. In addition, ownership of Communal Lands in general remained vested in the State,, not the case for freeholds or leaseholds.|
|Sierra Leone||Provinces Land Act, 1927||The law permits the State to reallocate customary lands that are not farmed for private or state purposes.. The new National Land Policy, 2015 proposes reforms that make all customary rights registrable in the same manner as private rights, including family and collective tenure, modernize the role of traditional authorities thorugh inclusive governance measures.|
|Swaziland||Constitution, 2005||The King owns Swazi National Lands (< 50% of country area) on behalf of the nation and administers these through a hierarchy of chiefs extending to village level. No legal procedure exists for communities to identify their domains or protect against Government or King-led additions to the private property sector comprising freehold parcels.|
|Zambia||Land Act, 1995 |
Lands (Customary Tenure) (Conversion) Regulations, 2006
|While the law admits customary tenure as regulating landholding (now estimated as 60% of country), it makes no provision for customary rights to be registered, either as owned individually or collectively. The draft national land policy (2017) provides for this and also for distinct governance of common lands, and limitation on powers of traditional authorities to dispose of lands without community consent.|
|Zimbabwe||Communal Land Act, 1982||Communal Lands are customarily occupied lands and homesteads may be certificated, not the case for community commons although their communal ownership is accepted in principle. A new land policy is in draft. Rural Councils are primary decision-makers although local headmen execute rules.|
|Republic of Congo||Principles of General Application to National Lands and Tenure, 2004. Rights of Indigenous Peoples, 2011||Relevant laws for rural communities and Indigenous Peoples lack implementation decrees after many years.|
|Country||Law and Date of Enactment|
|Afghanistan||Land Management Law, 2017|
|Algeria||Law No. 90-25 of 1990 Concerning Land Tenure|
|Angola||Land Law, 2004|
|Armenia||Land Code, 2001|
|Australia||Native Title Act, 1993|
|Austria||Entire Legislation for Constitution Act, 1951|
|Bolivia||Law 3545 of November 2006 on New Land Reform|
|Brazil||Constitution, 1988 with amendments. Land Statute, 1964|
|Burkina Faso||Law No. 034-2009 On Rural Land Tenure|
|Cambodia||Land Law, 2001|
|Canada||Constitution Act, 1982|
|Chile||Law on Agricultural Communities, No. 5 of 1968. Indigenous Law, No. 19/1979|
|China||Property Law, 2007|
|Colombia||Rural Land Law, 1998|
|Costa Rica||Indigenous Law, No. 6172 of 1977|
|Ivory Coast||Rural Land Law, 1998|
|Cuba||Agrarian Reform Law, 1959|
|Dominica||The Carib Reserve Act, No. 22 of 1978|
|Ecuador||Law No. 46-2006 the Collective Rights Act of Afroecuadoreans|
|Ethiopia||Federal Land Use Proclamation No. 456 of 2005|
|Fiji||iTaukei Land Trust Act, 1940|
|Ghana||Constitution 1992. The Office of The Administrator of Stool Land Act, 1994|
|Germany||German Constitution (Basic Law) 1951. Federal Forest Act 1975|
|Guyana||State Lands Act, 1910 (1997)|
|Indonesia||Basic Agrarian Law, No. 5 of 1960. Regulation No. 5 of 1999 Guideline to Solving the Problem of Communal Land Rights of Customary Communities|
|India||Recognition of Forest Rights Act, 2006|
|Iraq||The Agrarian Reform Law No. 1178 of 1970|
|Ireland||Land and Conveyancing Law Reform Act, No. 27 of 2009|
|Italy||Provincial Act of Trentino-Alto Adige, on Land Matters, 2007|
|Kenya||Community Land Act, 2016|
|Kyrgyzstan||Law on Pastures No 30 of 2009|
|Laos||Land Decree 88 of 2008 On Implementation of 2003 Land Law|
|Lesotho||Land Act, 2010|
|Liberia||Community Rights Law with respect to Forest Lands, 2009. Land Rights Law, 2016 (passed by the Lower House, yet to pass Senate)|
|Malaysia||Sabah Land Ordinance, Cap 68 and Subsidiary Legislation, No. 6 of 1967|
|Malawi||Customary Land Act, 2016|
|Mali||Agricultural Land Law No. 001 of 11 April 2017|
|Mauritania||Pastoral Code, 2000|
|Mexico||Agrarian Law (1934) with amendments|
|Mongolia||Law on Allocation of Land to Mongolians for Ownership, 2002|
|Morocco||Decree on Collective or Tribal Lands, 1919. Decree on Delimitation of Collective Lands, 1924|
|Mozambique||Land Law, No. 19 of 1997|
|Namibia||Communal Land Reform Act, No. 5 of 2002|
|New Zealand||Maori Land Act, 1993|
|Nicaragua||Law of Communal Property Regime of the Indigenous Peoples and Ethnic Communities of the Autonomous Regions of the Atlantic Coast of Nicaragua and of the Rivers Bocay, Coco, Indio and Maiz, 2003|
|Norway||Act Relating to Bygd Commons, 1992|
|Panama||Act No. 72 of 2008 On Indigenous Lands|
|P N. Guinea||Papua New Guinea Land Act, 1996|
|Peru||Law Decree No. 22175 (1978) and Law No. 24656 (1987), respectively on recognition of customary rights of native and peasant communities|
|Philippines||Indigenous Peoples Rights Act, RA 8371, 1997|
|Portugal||Law on Uncultivated Lands (Baldios), No. 68 of 1993|
|Republic of Congo||Law No. 10-2004 Fixing Principles of General Application to National Lands and Tenure. Law No 5-2011 Concerning Promotion and Protection of the Rights of Indigenous Peoples|
|Romania||Restitution Law, No. 1 of 2000. Forest Code, 2008|
|Russia||No. 49-FZ, 2001, Federal Law On Territories of Traditional Land Use of the Indigenous Small-Numbered Peoples of the North, Siberia and The Far East of the Russian Federation.|
|Sierra Leone||Provinces Land Act, Cap 122 (1927)|
|South Africa||Extension of Security of Tenure Act, No. 62 of 1997|
|South Sudan||Land Act, 2009|
|Spain||Law on Forests, No. 43 of 2003|
|Sweden||Act Relating to Collectively Owned Forest Lands, SFS 1952|
|Tanzania||Village Land Act, 1999|
|Timor-Leste||Special Regime for the Ownership of Immoveable Property, No. 36/III, 2017|
|Tunisia||Law on Collective Properties, 2016|
|Uganda||Land Act, 1998|
|Ukraine||Land Code, No. 2768-III of 2001|
|USA||U.S. Code (undated) Title 25 Chapter 37 § 3501|
|Vanuatu||Custom Land Management Act, No. 33 of 2013|
|Venezuela||Constitution, 1999. Law on Peasants and Indigenous Communities, 2005|
|Vietnam||Law on Land, 2013|
|Zambia||Land Act No. 29 of 1995|
|Zimbabwe||Communal Land Act, No. 20 of 1982|
|1. Countries Which Provide Legally for Collective Tenure without Specifying Type of Community to Which This Applies||2. Countries Which Provide Distinctly for Indigenous Peoples and Other Communities in Recognizing Collective Tenure||3. Countries Which Have Enacted Laws on Collective Property That Are Only Applicable to Indigenous Peoples|
|Ivory Coast||Malawi||Timor Leste||Nicaragua||Paraguay|
|Ethiopia||Morocco||Ukraine||Rep of Congo||New Zealand|
|Iraq||Papua New Guinea|
|47 (64 percent)||13 (18 percent)||13 (18 percent)|
|Equivalent Legal Protection of Community and Private Property; as Evidenced by Legal Statement, by the Content of Provisions, or by Court Rulings Interpreting the Law||Unequal Legal Protection of Community and Private Property||Insufficient Information to Draw Firm Conclusions|
|South Sudan||South Africa||Swaziland||Canada (IP)|
|Mali||Ethiopia||Republic of Congo|
|New Zealand (IP)||Ghana||Côte d’Ivoire|
|Papua New Guinea||Austria|
|Costa Rica (IP)||Mexico|
|Paraguay (IP)||Panama (IP)|
|50 (68.5 percent)||14 (19.2 percent)||9 (12.3 percent)|
|The Law Permits Sale of Community Property||The Law Permits Sale of Some Parts of the Property (e.g., Homesteads)||The Law Forbids Sale of Any Community Property but Permits Leasing||The Law Forbids Any Sale or Lease of Community Property|
|Angola||Chile||Papua New Guinea||Mongolia|
|Ivory Coast||Laos||Burkina Faso||Panama|
|19 (32 percent)||15 (25 percent)||18 (30 percent)||8 (13 percent)|
|1. Law Recognizes & Protects Exclusive Collective Possession without Requiring Titling for This to be Upheld||2. As 1, But with Procedures for Titling Provided and Strongly Encouraged in the Law||3. Law Requires Formal Entitlement in Order for Community Property to be Legally Upheld|
|Fiji||East Timor||Bolivia||Ivory Coast|
|South Sudan||Rep. of Congo||Costa Rica||Peru|
|Papua New Guinea||South Africa||Cuba||Portugal|
|18 (25 percent)||14 (20 percent)||20 (28 percent)||19 (27 percent)|
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