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Customary tenure - global and regional

Websites/Multiple Documents

Title: Elinor Ormstrom
Description/subject: Elinor "Lin" Ostrom (born Elinor Claire Awan; August 7, 1933 – June 12, 2012) was an American political economist whose work was associated with the New Institutional Economics and the resurgence of political economy. In 2009, she shared the Nobel Memorial Prize in Economic Sciences with Oliver E. Williamson for "her analysis of economic governance, especially the commons". To date, she remains the only woman to win The Prize in Economics. ...She was a lead researcher for the Sustainable Agriculture and Natural Resource Management Collaborative Research Support Program (SANREM CRSP)..."
Language: English
Source/publisher: Wikipedia
Format/size: html
Date of entry/update: 08 December 2014


Individual Documents

Title: The impact of swidden decline on livelihoods and ecosystem services in Southeast Asia: A review of the evidence from 1990 to 2015
Date of publication: 01 October 2016
Description/subject: Abstract: "Global economic change and policy interventions are driving transitions from long-fallow swidden (LFS) systems to alternative land uses in Southeast Asia’s uplands. This study presents a systematic review of how these transitions impact upon livelihoods and ecosystem services in the region. Over 17 000 studies published between 1950 and 2015 were narrowed, based on relevance and quality, to 93 studies for further analysis. Our analysis of land-use transitions from swidden to intensified cropping systems showed several outcomes: more households had increased overall income, but these benefits came at significant cost such as reductions of customary practice, socio-economic wellbeing, livelihood options, and staple yields. Examining the effects of transitions on soil properties revealed negative impacts on soil organic carbon, cation-exchange capacity, and aboveground carbon. Taken together, the proximate and underlying drivers of the transitions from LFS to alternative land uses, especially intensified perennial and annual cash cropping, led to significant declines in pre-existing livelihood security and the ecosystem services supporting this security. Our results suggest that policies imposing landuse transitions on upland farmers so as to improve livelihoods and environments have been misguided; in the context of varied land uses, swidden agriculture can support livelihoods and ecosystem services that will help buffer the impacts of climate change in Southeast Asia." Keywords: *Alternative land uses *Ecosystem services * Livelihood security *Shifting cultivation *Southeast Asia
Author/creator: Wolfram H. Dressler, David Wilson, Jessica Clendenning, Rob Cramb, Rodney Keenan, Sango Mahanty, Thilde Bech Bruun, Ole Mertz
Language: English
Source/publisher: The Royal Swedish Acadamy of Sciences, Crossmark
Format/size: pdf (1.8MB)
Alternate URLs: http://www.burmalibrary.org/docs23/2016-Dressler_et_al-swidden_review.pdf
Date of entry/update: 20 November 2016


Title: COMMUNITY LAND AND NATURAL RESOURCE TENURE RECOGNITION: REVIEW OF COUNTRY EXPERIENCES
Date of publication: February 2016
Description/subject: EXECUTIVE SUMMARY: "In recent years, many governments globally have formally recognized community land and natural resource tenure, either based on existing customary practices or more recently established land governance arrangements.1 These tenure arrangements have been called by a variety of names, such as community, customary, communal, collective, indigenous, ancestral, or native land rights recognition. In essence, they seek to establish the rights of a group to obtain joint tenure security over their community’s land. This approach is not necessarily limited to use by those communities that largely manage their lands solely on a communal or collective basis, because it can encompass individualized arrangements within it. In fact, recognizing the boundary of all lands held by a community, and then allowing the community itself to define individual rights within that community land boundary, can be much more cost-effective (Deininger, 2003). Neither is it an approach solely used by indigenous, ancestral, or native communities, because any rural community with established occupation of their lands can potentially be eligible for such protections. We use the term “community land and resource tenure” because many community-based forms of tenure encompass a range of different land use types, including permanent agricultural land, shifting or swidden cultivation areas, forests, grazing areas, and water bodies. The Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries, and Forests in the Context of National Food Security, established in 2012, affirm the importance of recognizing and respecting all legitimate tenure rights holders and their rights, whether formally recorded or not (Food and Agriculture Organization of the United Nations [FAO], 2012). This includes indigenous peoples (IP) and other communities with customary tenure systems that exercise self-governance of land, fisheries, and forests..."
Author/creator: Nayna Jhaveri , Vaneska Litz , Jason Girard Robert Oberndorf Organisation, M. Mercedes Stickler
Language: English
Source/publisher: USAID
Format/size: pdf (1.8MB-reduced version; 3MB-original)
Alternate URLs: http://www.burmalibrary.org/docs21/USAID-2016-Myanmar_Community_Tenure_full-report-en.pdf
http://www.burmalibrary.org/docs21/USAID-2016-Myanmar_Community_Tenure_brief-red-en.pdf
http://www.burmalibrary.org/docs21/USAID-2016-Myanmar_Community_Tenure_brief-en.pdf
http://www.usaidlandtenure.net/sites/default/files/USAID_Land_Tenure_Community_Tenure_Report_Burma....
Date of entry/update: 08 March 2016


Title: Communal Land Tenure - A Social Anthropological Study in Laos
Date of publication: 20 January 2016
Description/subject: CONCLUSION: "A developing country like Lao PDR is struggling to gain recognition from other countries in the world. This requires that the country applies a human rights perspective to governance of land. In this case the land rights are the rights of the ethnic groups in the uplands that practice customary communal tenure. These groups would like the government to accept and register their communal land use legally. The first step towards this is in the development of the National Land Use Policy which is still in draft. This study provides evidence-based arguments for the inclusion of a respect for customary communal tenure in the land policy. The field study on communal tenure in Houaphan can serve the government in terms of integration of local land governance aspects into its development planning process. The research has brought an increased understanding on biological characteristics of the common resources and how communities use and manage such resources in a way that everyone including how the poor share benefits and responsibilities to keep the resource sustainable and thus contribute to the national land management process. The research analyzed how local ethnic group farmers in Houaphan view the resources that they have traditionally used as the property of their community. They have communally organized institutions that provide sufficient incentives to ensure equity in access to land and for the farmers to invest in enhancing the productivity of the resource system through internal rules that assign rights to individual households, while protecting the outer boundaries. These rules are oral internal rules. They are collectively created, used and developed by generations of villagers. The internal rules include characteristics of natural and social aspects and they support the improvement of local life in terms of protection of the resources for future use. The research has found that the communal tenure system in Houaphan is slowly affected by legal land and forest management activities of the government, particularly where the government does not integrate local practice of use and management of local resources of local ethnic people. Currently, many international and local business investors are looking at natural resources in Houaphan province as business destination. Evidence-based research result shows that it is necessary to protect the land of the ethnic groups to safeguard against land loss to business activities which may be planned without considering existing communal tenure. Many local communities will lose their customary rights to their common property resources and the country will at the later stage have to address more complicated political issues if local communities see that they are losing land to outsiders. The evidence-based findings of this research suggest an option that communal tenure rights of local communities in Houaphan should be legally recognised along with provision of clear set of management rules and the formation of the village as a legal entity to fully exercise the management of the resources through an issuance of communal titles to the land parcels that make up the common property of the village. The communal tenure should include the fallows of the shifting cultivation uplands and all the customary communal tenure of upland and lower land communities. The cultural and social dimension of communal land use is a critical aspect to consider in order to work out strategies for the future development of rural life in the province. This will lay a foundation for local people to improve their social-economic condition and ensure their participation in the country’s development process. The study has applied selectively the theory of Thomas Højrup to form a macro view of the country’s development process in the remote areas. As part of the interpellation conditions highlighted by Højrup, the country is experiencing a profound process of transformation. The Government of Laos organizes local societies and re-arranges land and forests in order to transform a traditional subsistence economy to a market economy. In practice, interpellation does not always turns out successfully because many economic development activities destroy a local practice that is worth preserving in terms of livelihood and human rights of the communities. This happens in particular where traditional common property systems are found and the systems that have existed long before Lao PDR came into being. The transformation means change and this change is a question that needs to be clearly answered before communities agree to participate in the development process. Where such change is proposed by outsiders, local people need to know that it brings to them better results in comparison to what they already have. Otherwise they are reluctant to participate in the country’s transformation process as they value their own customary ways. This reveals that not only the country’s worldview, but also the view of local people towards how communal resources should be managed is important for the transformation. So far the local perceptions and practices of communal tenure is not widely understood by government officers and the more studies that are carried out to feed into the finalization of the land policy and new land law the better."
Author/creator: Luck Bounmixay
Language: English
Source/publisher: Universidad de Murcia, Escuela Internacional de Doctorado
Format/size: pdf (5.1MB-reduced version; 9.3MB-original)
Alternate URLs: http://www.burmalibrary.org/docs22/Bounmixay-2016-01-20-PhD_Thesis-Communal_Land_Tenure.pdf
Date of entry/update: 15 July 2016


Title: Customary Land Management and Legal Frameworks: Experiences from Around the World (English)
Date of publication: March 2014
Description/subject: "A Report to Enhance Discussions about Customary Land Rights in Burma.....This purpose of this paper is to present a brief summary of the issues and current situations facing ethnic and indigenous communities around the world that are using a customary rights framework to manage their land and natural resources. By outlining these experiences, ethnic groups in Burma will be able to better understand their own context and possibilities as they struggle to gain control over their lands during this transitional time. While examining how other countries have incorporated customary land management structures into the ir rule of law, it is hoped that the ethnic groups in Burma can more eff ectively discuss, debate and outline their own strategies to obtain just and participatory land management systems..."
Author/creator: Jason Lubanski
Language: English
Source/publisher: Ethnic Community Development Forum (ECDF)
Format/size: pdf (555K)
Date of entry/update: 01 July 2016


Title: Customary Land Management and Legal Frameworks: Experiences from Around the World - Burmese (ျမန္မာဘာသာ)
Date of publication: March 2014
Description/subject: "A Report to Enhance Discussions about Customary Land Rights in Burma.....This purpose of this paper is to present a brief summary of the issues and current situations facing ethnic and indigenous communities around the world that are using a customary rights framework to manage their land and natural resources. By outlining these experiences, ethnic groups in Burma will be able to better understand their own context and possibilities as they struggle to gain control over their lands during this transitional time. While examining how other countries have incorporated customary land management structures into their rule of law, it is hoped that the ethnic groups in Burma can more eff ectively discuss, debate and outline their own strategies to obtain just and participatory land management systems..."
Author/creator: Jason Lubanski
Language: Burmese (ျမန္မာဘာသာ)
Source/publisher: A report by Ethnic Community Development Forum (ECDF)
Format/size: pdf (528K)
Date of entry/update: 01 July 2016


Title: THE FUTURE OF CUSTOMARY TENURE. OPTIONS FOR POLICYMAKERS PROPERTY RIGHTS AND RESOURCE GOVERNANCE BRIEFING PAPER # 8
Date of publication: 2014
Description/subject: SUMMARY: "For years, policy makers have debated how to deal with customary tenure — sometimes known as ―informal,‖ ―indigenous,‖ or ―traditional law.‖ This concern arises because dual (or multiple) legal systems coexist in many countries: statutory law alongside informal, customary practices, religious law, etc. Educated urban elites tend to use the statutory system while rural citizens, the less educated, and the poor typically rely on the customary system. The presence of multiple systems can contribute to insecurity and conflict; finding ways to effectively integrate the two is an important policy challenge in many countries. In the past, most countries thought that with time and ―modernization‖ they could simply erase customary tenure systems, replacing them with statutory systems based on titled private property. Experience now shows that this is not realistic (at least in the short term) and neither may it be desirable since customary tenure systems have attributes and strengths that respond to real needs in man y countries. Furthermore, as customary systems are undermined, they leave a void that statutory administrative systems are ill equipped to fill, given the limited administrative capacity in many countries. For these reasons, policymakers now seek some sort of accommodation with customary tenure and are looking for guidance and experience with how these issues have been dealt with in other countries. As many as two billion people are currently estimated to live under customary tenure regimes. When these systems are undermined, people lose rights that are critical to their livelihoods, spawning resistance and increasing poverty among already marginal populations. This process is accelerating as international companies seek land in remote communities, forest resources are commoditized (with REDD and Payments for Eco - system Services), and periurban development creates new land markets. This brief proposes that valorizing customary tenure systems can mitigate the pressures that undermine local tenure security. This can be done by formally recognizing and providing a legal ―space‖ for customary tenure rights, by registering rights established under customary tenure regimes as statutory rights, or by implementing a hybrid model that combines elements of customary and statutory systems. In all cases, the goal is to provide cost - effective tenure security. The first section of this issue brief reviews the concept and characteristics of customary tenure systems. It next summarizes the factors contributing to the evolution of customary tenure in response to a wide range of institutional and economic pressures. This is followed by a brief assessment of how statutory and customary rights systems interact, the circumstances that propel one or the other to dominate, and examples of where and why the two are likely to come into conflict. The brief concludes with a short summary of the types of interventions that USAID projects have implemented in this domain..."
Language: English
Source/publisher: USAID Land Tenure Project
Format/size: pdf (345K)
Date of entry/update: 15 July 2016


Title: COMMUNAL TENURE AND THE GOVERNANCE OF COMMON PROPERTY RESOURCES IN ASIA
Date of publication: April 2011
Description/subject: Summary: "This paper presents an overview of the distinctive features of communal tenure in different community-based land and natural resource management systems. Communal tenure refers to situations where groups, communities, or one or more villages have well defined, exclusive rights to jointly own and/or manage particular areas of natural resources such as land, forest and water. These are often referred to as common pool resources: many rural communities are dependent on these resources for their livelihood. In communal tenure, both the boundaries of the resource owned in common and group membership are clearly defined. These are necessary conditions to exclude outsiders and to secure the rights of group members so that these rights cannot be taken away or changed unilaterally. Two models of communal tenure are presented in the paper; these models differ in terms of the function of the state, the length of tenure and the characteristics of the resource system concerned. In the first model, the permanent title model, the state fully and permanently hands the land over to local indigenous communities for private collective ownership. In this situation, the resource system is often multi-facetted, comprising agricultural lands as well as forest, water and pasture land. Permanent title for indigenous peoples’ communal land is a special claim supported by national legislation and by international conventions, coven ants and declarations that many countries have endorsed. Examples of permanent title in Asia include the Philippines and Cambodia, where legislation provides for collective rights of indigenous communities. In many instances such as Cambodia, Philippines or, for instance, Papua New Guinea, the indigenous groups or communities that are eligible by law for private and permanent communal tenure need to become a legal entity to be recognized as a communal right-holder by the state. This may require community incorporation. However, the process of incorporation can be cumbersome for people who are not necessarily literate in the national language or in the demands of state bureaucracy. In the second model, the delegated management model, the state maintains ownership of the resources and delegates management to local groups, most often villages, for a specific period of time, with the possibility of renewal. Such agreements are generally subject to national legislation only. In this case, the resources are often uniform and relate to, for example, community forestry, community fishery, pasture or irrigation group tenure that all come in many different forms with different bundles of rights. This model is far more common than the first, with Nepal, India, Thailand, Cambodia or Mongolia providing examples. In addition to these two general models, one may still find traditional customary communal tenure in remote communities. Here the state does not actually regulate or intervene in the management of resources, but all local communities in the area would know of the local rules of harvesting and withdrawal rights. Both the permanent title in communal land and the d elegated management model may originate from an existing customary arrangement, where the rules are known and have been adhered to by right-holders – and their neighbors – for generations. The state can acknowledge these existing communal systems through formalization of existing rules and rights. In a different situation, where customary arrangements are no longer present and the resource is degraded and under open access, the formalization of Communal tenure and the governance of common property resources in Asia delegated management of, for example, a new community forest, may imply setting up or inducing communal tenure institutions, where they did not previously exist. Inducing institutions is a major exercise in social engineering; the resulting induced institution must be carefully aligned with the physical and natural characteristics of the resources or resource system and, ideally, should build on an existing set of norms in the community. Where governments and/or donor projects have a pro-poor approach in inducing communal tenure for natural resource management, the pro-poor targeting mechanisms must be mainstreamed in the institution building. In all communal tenure systems, the physical and biological characteristics of the resource system factor decisively into the regulatory frameworks that communities establish. One must match with the other. In situations where both subsistence and market value products can be withdrawn from the resource system there are also many kinds of interlinked and embedded rights: the communal tenure is usually embedded within a larger nested hierarchy of institutions." Nowadays the communities will often need support an d recognition by the state in order to manage effectively their common pool resou rces. As a consequence, communities will need to establish two sets of rule s: (i) those rules that constitute the community as an entity in the eyes of the state and (ii) those that define internal rules of benefit sharing. Whereas constitutional rules de fine the community as a legal entity, internal community rules establish the management r ights in the resources and the fair appropriation of benefits. Interest in communal tenure and common property res ource management has risen since the 1980s among academics, governments and internat ional development organizations working on land and natural resources management. D ebates on communal tenure are still ongoing in many countries in Asia, in the con text of market pressures and dynamics, which call for privatization to increase productivity, and in the context of big business vying for a stake in valuable land and other natural resources, in some instances leading to land grabbing. The current mar ket driven pressures on natural resources create both challenges and opportunities for communities and governments. Overall, policies and institutions that promote acc ountability and good governance over these resources, both by the government at nat ional and local level and by communities, are required. Some specific approaches , such as communities’ mapping of their territories, are proving useful tools to s afeguard their lands, although they are not sufficient conditions: the wider political and regulatory environment must be supportive too. Communal tenure will very likely play a significant role in the policies and actions for climate change mitigation. With the emergence of in itiatives for Reduced Emissions from Deforestation and Degradation (REDD and REDD+) , governance and benefit sharing of carbon finance become critical questions in defining who owns the carbon stocked in forest. Marketable community rights to t his special resource unit (stocked carbon) must be supported by national legislation t hat favors communal tenure of some of the carbon properties. This may lead to a separa tion of rights to carbon from the broader rights to the forest and land, an aspect no t yet addressed by theoretical work on communal tenure..."
Author/creator: Kirsten Ewers Andersen
Language: English
Source/publisher: Food and Agriculture Organisation (FAO)
Format/size: pdf (464K-reduced version; 3.12MB-original)
Alternate URLs: http://www.fao.org/docrep/014/am658e/am658e00.pdf
Date of entry/update: 08 December 2014


Title: THE FUTURE OF CUSTOMARY TENURE - OPTIONS FOR POLICYMAKERS
Date of publication: April 2011
Description/subject: Summary: "For years, policy makers have debated how to deal with customary tenure —sometimes known as ―informal, ―indigenous, or ―traditional law. This concern arises because dual (or multiple) legal systems co-exist in many countries: statutory law alongside informal, customary practices, religious law, etc. Educated urban elites tend to use the statutory system while rural citizens, the less educated, and the poor typically rely on the customary system. The presence of multiple systems can contribute to insecurity and conflict; finding ways to effectively integrate the two is an important policy challenge in many countries. In the past, most countries thought that with time and ―modernization‖ they could simply erase customary tenure systems, replacing them with statutory systems based on titled private property. Experience now shows that this is not realistic (at least in the short term) and neither may it be desirable since customary tenure systems have attributes and strengths that respond to real needs in many countries. Furthermore, as customary systems are undermined, they leave a void that statutory administrative systems are ill equipped to fill, given the limited administrative capacity in many countries. For these reasons, policymakers now seek some sort of accommodation with customary tenure and are looking for guidance and experience with how these issues have been dealt with in other countries. As many as two billion people are currently estimated to live under customary tenure regimes. When these systems are undermined, people lose rights that are critical to their livelihoods, spawning resistance and increasing poverty among already marginal populations. This process is accelerating as international companies seek land in remote communities, forest resources are commoditized (with REDD and Payments for Eco-system Services), and periurban development creates new land markets. This brief proposes that valorizing customary tenure systems can mitigate the pressures that undermine local tenure security. This can be done by formally recognizing and providing a legal ―space‖ for customary tenure rights, by registering rights established under customary tenure regimes as statutory rights, or by implementing a hybrid model that combines elements of customary and statutory systems. In all cases, the goal is to provide cost-effective tenure security..."
Language: English
Source/publisher: USAID ISSUE BRIEF (PROPERTY RIGHTS AND RESOURCE GOVERNANCE BRIEFING PAPER #8)
Format/size: pdf (345K)
Date of entry/update: 02 August 2015


Title: "Best Practice" Options for the Legal Recognition of Customary Tenure
Date of publication: May 2005
Description/subject: ABSTRACT: "Is there a ‘best practice’ model for the legal recognition of customary tenure? If not, is it possible to identify the circumstances in which a particular model would be most appropriate? This article considers these questions in the light of economic theories of property rights, particularly as illustrated by the World Bank’s 2003 land policy report. While these theories have their flaws, the underlying concept of tenure security allows a typological framework for developing legal responses to customary tenure. In particular, this article suggests that the nature and degree of State legal intervention in a customary land system should be determined by reference to the nature and causes of any tenure insecurity. This hypothesis is discussed by reference to a wide variety of legal examples from Africa, Papua New Guinea and the South Pacific. The objective is not to suggest that law determines resource governance outcomes in pluralist normative environments, but to improve the quality of legal interventions in order to assist customary groups to negotiate better forms of tenure security and access to resources."
Author/creator: Daniel Fitzpatrick
Language: English
Source/publisher: "Development and Change" Volume 36, Issue 3, pages 449–475, May 2005
Format/size: pdf (250K)
Date of entry/update: 02 August 2015


Title: LEGAL RECOGNITION OF INDIGENOUS GROUPS
Date of publication: December 1998
Description/subject: "...The main purpose of this paper is to examine legal measures taken to recognize indigenous groups and provide for their ongoing operation; the paper starts, therefore, from an underlying assumption that indigenous groups have continued relevance to the needs and wishes of the people who operate within them. Nevertheless, while it is beyond the scope and purpose of the paper to explore this complex issue in any depth, it may be useful to present – however briefly – some of the arguments made for and against the preservation of indigenous groups. In the course of this brief discussion, the focus of the present paper will be narrowed to a concentration on the role of indigenous groups in the ownership and control of land and other natural resources. It should, perhaps, be stressed at the beginning that it is the role of groups as groups which is under consideration - that is, the group as an entity over and above the individual members which make it up..."
Author/creator: J. S. Fingleton
Language: English
Source/publisher: FAO Legal Papers Online December 1998
Format/size: pdf (270K)
Date of entry/update: 02 August 2015


Title: Governing the Commons
Description/subject: "The governance of natural resources used by many individuals in common is an issue of increasing concern to policy analysts. Both state control and privatisation of resources have been advocated, but neither the state nor the market have been uniformly successful in solving common pool resource problems. Offering a critique of the foundations of policy analysis as applied to natural resources, Elinor Ostrom here provides a unique body of empirical data to explore conditions under which common pool resource problems have been satisfactorily or unsatisfactorily solved. Dr Ostrom first describes three models most frequently used as the foundation for recommending state or market solutions. She then outlines theoretical and empirical alternatives to these models in order to illustrate the diversity of possible solutions. In the following chapters she uses institutional analysis to examine different ways - both successful and unsuccessful - of governing the commons. In contrast to the proposition of the tragedy of the commons argument, common pool problems sometimes are solved by voluntary organisations rather than by a coercive state. Among the cases considered are communal tenure in meadows and forests, irrigation communities and other water rights, and fisheries."
Author/creator: Elinor Ostrom
Language: English
Source/publisher: Internet
Format/size: pdf (2.2MB)
Alternate URLs: http://www.kuhlen.name/MATERIALIEN/eDok/governing_the_commons1.pdf
Date of entry/update: 05 January 2015