A more holistic approach to land governance: Recalibrating rights and obligations | Land Portal


In many parts of the world, large-scale projects such as agribusiness plantations, mines and infrastructure have heightened the policy imperative to recognise the rights of socially, politically and juridically marginalised people – from small-scale farmers to forest dwellers, pastoralists, artisanal fishers and people living in informal settlements, including many who identify as Indigenous Peoples. Yet effective responses to land justice issues often require not just securing certain precarious rights, but also addressing imbalances between the rights and obligations of different groups. Land rights are typically subject to limitations and come with obligations, and it is this interplay of rights, limitations and obligations that underpins many of the most difficult challenges.


For example, forest clearances for soy, oil palm and rubber plantations have raised questions as to whether even the most extensive land rights should allow agroindustry to take Earth to the brink of environmental catastrophe: confronting climate change and biodiversity loss often requires halting the award of new land concessions and limiting corporations’ rights within existing concessions. Meanwhile, laws that recognise socially legitimate land rights are often ineffective partly because they condition legal protection to certain obligations that, in effect, hollow out rights from within – such as the obligation to use land ‘productively’, where skewed notions of productivity undermine the rights of pastoralists, hunter-gatherers and shifting cultivators.


Tackling tensions related to the limits of rights or the obligations associated with them can require different policy tools from those commonly used to protect or enhance land rights. But while there is a vast body of research and action on ‘securing’ land rights, less attention has been paid to addressing limitations and obligations. A study I prepared for the Food and Agriculture Organization of the United Nations (FAO) explores pathways for legal reforms to recalibrate rights and obligations in land governance. The study draws on insights from experience in national legal systems and from Indigenous and customary arrangements, discussing diverse approaches to balance rights with social and environmental obligations. It finds that effective interventions to support law reform require both solid conceptual foundations and a fine-grained understanding of context.


Between extraction and stewardship


In many Indigenous and agrarian societies, sophisticated arrangements based on tradition and shared belief systems sustain a close connection between people and nature. Despite their tremendous diversity, these arrangements tend to emphasise the interdependence of humans and ecosystems, reflected in the intimate bond between land and ways of life. A sense of collective obligation towards ancestors, supernatural co-dwellers or future generations permeates a strong emphasis on environmental stewardship.


Economic and sociocultural transformations have been eroding many Indigenous and customary systems. Colonial and postcolonial legal regimes have also undermined Indigenous governance and culture, instead creating proprietary structures premised on the commodification and individual appropriation of ‘natural resources’, and facilitating extractive models that lead to land dispossession and environmental degradation. But even within such proprietary arrangements, rights are – or should be – subject to limitations and associated with obligations.


The Voluntary Guidelines on the Responsible Governance of Tenure – the foremost global instrument on land governance – affirm this coexistence of rights, limitations and obligations. The Guidelines feature the term ‘right’ more than 300 times, emphasise the link between land and human rights, and call for recognising, respecting and protecting all legitimate tenure rights. But they also recognise that ‘no tenure right, including private ownership, is absolute’. Rather, ‘[a]ll tenure rights are limited by the rights of others and by the measures taken by States necessary for public purposes’. Also, rights are ‘balanced by duties’, including as regards the sustainable use of land and forests (paragraph 4.3).


Evolving social and ecological imperatives have placed these issues at centre-stage. The climate and biodiversity crises are highlighting the necessity of protecting the collective land rights of Indigenous Peoples and communities with customary tenure, partly because an emphasis on environmental stewardship often means these groups have a proven track record of caretaking the ecosystems to which they have ancestral rights. At the same time, addressing the crises requires nurturing traditional systems of obligation towards the environment and future generations where socioeconomic change has weakened them.


There are also important social justice dimensions. Because legal frameworks often reflect power relations, those with influence and money may have the most extensive rights and the fewest or weakest obligations. For example, international treaties on foreign investment establish generous protections for businesses’ land rights, over and above national law, without affirming commensurate obligations. In contrast, marginalised groups with the most legitimate tenure rights may see laws limit their rights and subject them to stringent obligations that erode their control over land and territories, particularly as commercial pressures intensify. Efforts to tackle land inequality, then, need to consider not just skewed land distributions but also inequalities in the rights, limitations and obligations applicable to different actors – and their resulting impacts on the concentration of power within society.


These social and ecological dimensions are interrelated – such as where ‘fortress conservation’ approaches impose draconian restrictions on Indigenous Peoples’ territorial rights, while extensive concession rights enable businesses to destroy nature for large-scale mining, logging and monoculture.


Bundles of rights – and obligations


Recognising both rights and obligations affects the way we understand property and operationalise it in national legal systems. A popular notion is that of the ‘bundle of rights’: in relation to a given land area, individual or collective rights can include anything from the right to access, cultivate or graze on the land; to the right to pick fruits from trees; all the way to the right to manage land and territory. Yet while discussions often focus on the array of rights, each bundle also includes limitations and obligations.


Limitations qualify rights. For example, a person’s or community’s land rights are often limited by the rights of others to use or pass through the same land. Limitations can also protect neighbours, by regulating encroachment, or pursue a public interest, such as environmental protection, whereby clearing a forest or establishing a mine is subject to administrative approvals. Constitutional provisions that link property to its performing a ‘social function’, such as in Brazil and Italy, have enabled wide-ranging restrictions on the rights of owners, from land use planning to agrarian reforms. Virtually all legal systems enable authorities to acquire land on a compulsory basis, for example to build a road, hospital or school.


Land governance systems typically also establish obligations that derive from holding land rights. Landholders may owe these obligations to specified others – such as spouses, tenants or neighbours – or to the entire political community, in connection with policy goals such as social justice or sustainable land management. For example, legislation typically mandates landholders to uphold certain environmental standards. Also, many laws require landholders to use farmland productively, in some cases conditioning certain rights in the bundle (such as the right to register the land) to proof of productive land use, as in Cameroon, while in other cases enabling authorities to redistribute underutilised land to the landless.


From concepts to context


The ways such limitations and obligations play out in practice largely depend on how legal concepts, rules and institutions intersect with social realities, including inequalities and power dynamics within families and communities. Where landholdings are concentrated in relatively few hands, legal concepts such as social function and productive use have provided avenues for redistributing land, regulating agrarian contracts and protecting the environment, which an exclusive emphasis on protecting rights could otherwise curtail.


But such broad notions can also create opportunities for abuse. Authorities in many contexts have routinely used compulsory acquisition to facilitate commercial projects, dispossessing small-scale landholders and fostering conflict. And where rights are vulnerable to legal precarity, ill-defined concepts of productive use – often measured solely in terms of visible and permanent land-use change – can make those rights even more fragile. As a result, any concrete action to recalibrate rights, limitations and obligations requires fine-grained contextual analysis.


Pressing problems such as climate change, biodiversity loss and global inequalities call for recalibrating rights with social and environmental obligations. They require moving from material appropriation to environmental stewardship, and learning from Indigenous systems to re-embed rights within notions of obligation and responsibility. They also require redressing imbalances in rights and obligations among and within different groups. Effective reform hinges on clear concepts, careful analysis and continued tracking to consider how evolving social and ecological imperatives shift land governance priorities. 

 


The blog partly adapts extracts from Lorenzo Cotula, “Tenure Rights and Obligations – Towards a More Holistic Approach to Land Governance” (Food and Agriculture Organization of the United Nations, 2021, Legal Paper No. 106). The full paper can be downloaded here. The views expressed are the author’s alone.


Photo Credit: Landscapes of Halimun Salak National Park. Aerial view of the landscape around Halimun Salak National Park, West Java, Indonesia. Photo by Kate Evans/CIFOR


 

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