Land Policies and Agrarian Reform. Proposal Paper. Part I. How might the rights of land users be secured? (2 of 2)

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3. Building local management mechanisms in order to empower rural populations

Recording tenure rights is not enough in itself. Rights are in a constant state of change: they are modified by sales, tenancy agreements, inheritances, etc. Their very nature can be changed little by little through the development of social relationships.

• Hence land tenure rights must be updated all the time, otherwise it would be necessary after a certain length of time to repeat the costly task of creating a land register (cadastre).

• Gradual social changes must influence the evolution of both legal concepts and ways to make tenure official. Laws often make use of terms stemming from distinct realities, referring to times and places different from those to which they apply, thereby sometimes leading to considerable distortions.

The usual land and property registration systems can function fairly well for relatively large properties and for the well-off. The costs of surveyors, solicitors and the registration of transfers, inheritances, etc., do not amount to an excessive proportion of the value of real estate. The opposite is true for poor growers’ small plots, as well as for farmers living in areas far from administrative centres. In both cases, transaction costs are prohibitive and the users have no other choice but to remain or return to unofficial management, subject to partial or inexistent legal recognition. The costs of remedying this situation by a centralised system are very high and, if combined with the huge diversity of local situations, it becomes obvious that decentralised devices for updating land ownership rights are of inevitable necessity. However, at present very little effort and few resources are devoted to bringing about such changes within national governments and international development organisations.

This is undoubtedly because the type of work required to achieve such a goal is much more complicated than what is involved in ordinary development projects. Developing local apparatuses for managing rights cannot be limited to mechanical registration operations and often demands competency in the political management of rights. This supposes that the society concerned is adequately organised at the local level, or in other words, enough social capital must exist in order to settle conflicts, mediate and arbitrate without having to systematically resort to ordinary courts⁴⁸. Generally, the latter do not present a just forum for conflict resolution since different classes of populations often have very unequal access to legal information and procedures. The poorest can only rely on themselves to defend their rights.

Managing rights is often done according to unwritten rules, known and accepted by all the stakeholders at the local level, and which can be very different from one place to another. In addition to these local rules, common legal principles having a wider scope of application, i.e. customary law, need to be taken into account. So-called modern law in many developing countries is often a vestige from the colonial era, which constitutes a distinct entity often in contradiction with customary law. Customary law and modern law are in a constant state of change, though at varying speeds.

Very few national policies have explicitly sought to strengthen the capacities of local governance and the management of common property. An exception to this tendency is Mexico’s innovative form of land management, known as ejido (see box 11). Having originated as a means to manage farmland during the agrarian reform within the peasant revolution of the early 20th century, this system employs a device for managing common property that had been used in indigenous communities⁴⁹.

The marked intervention of the State within Mexico’s extraordinary political setting, with the Institutional Revolutionary Party, is another key aspect of this original design.

Box # 11 An original way of managing land ownership in Mexico: the ejido. Origins and operation⁵⁰

At the beginning of the 20th century, agrarian affairs were a central issue in the Mexican revolution against the dictatorship of Porfirio Diaz. The unequal access to land inherited from the past had increased considerably and huge latifundia were created from the commons. In 1905, 0.2% of owners possessed 87% of the land! The forces led by Emiliano Zapata and other peasant movements wanted to return the lands seized from the villages peopled by mestisos and Indian communities, and limit the size of landed estates (Zapatist Agrarian Law of 1915).

The Mexican agrarian reform, as conceived and practised by the farmers, set up a property management scheme in which farmers’ individual rights were linked with the collective management of the territory, the ejido. Although this entailed a certain continuation of methods used by indigenous communities, it is quite original as compared to procedures applied during later agrarian reforms. The 1917 Constitution (article 27) not only recognised common ownership, but also declared that villages without land must be given land expropriated from large farms. The system used by indigenous communities was recognised and legalised in the territories controlled by the Indians. In other cases, a new land ownership system was set up: the ejido⁵¹. Its role was strengthened by the agrarian reform implemented under the government of Lazaro Cardenas. From 1930 to 1940, half of the arable land became « ejidales », contributing to a little more than 50% of the nation’s total production.

The ejido land tenure system is characterised by the fact that its members are entitled to use the plots they cultivate on an individual basis⁵². They can bequeath them to their descendants and may lose their plots if they abandon them for more than two years. The ejido’s common plots and shared companies contribute to a common fund, which cannot in principle be distributed individually or be used toward political or religious ends. The highest decision-making level of the ejido is the general assembly of the ex-officio members. It elects a comisariado ejidal, which is responsible for managing the common property, and a supervisory board. The comisariado ejidal is also invested with the power to settle internal land disputes and is authorised to make sanctions when the rules are not applied.

The industrialisation of Mexico in the forties was to a great extent based on the expansion of the internal market, a result of the improved living conditions of the farmers who had benefited from this type of land distribution.

However, the ejido system is not flawless. Supervising government agencies’ considerable interference has turned the ejido into a hybrid apparatus between local management and national dependence. Internal differentiation within the ejido has often been substantial, and was facilitated by the formation of financial institutions that benefited only a minority of the ejido members (ejidatarios). In some cases where many inhabitants did not have formal rights, ejidatarios converted themselves into powerful and wealthy elites (caciques). As a result, the authorities responsible for exerting social control were unable to prevent the development of a static, inelastic land access system. Rules were bypassed through more or less illicit arrangements wherever good economic prospects were at stake. The division of farms has become common. In 1988, 49% of ejidal plots had a surface area of less than 5 ha (12.4 acres).

The modification in 1992 of article 27 of the Constitution, which had established the ejido system and had served as the basis of the agrarian reform, stirred a heated national debate. It led to the recognition and registration of individual rights within the ejidos, as well as their conversion under certain conditions into private property rights. The corresponding process known as PROCEDE (ejidal rights certification procedure) acknowledged to a great extent the changes that had started in many ejidos well before the 1992 law even though the apparatuses for social control had not yet caught up to these changes. For example, property rights were being transformed into commodities even though there was no legal framework to accommodate this sort of transaction. The PROCEDE does not entail the total disappearance of common land management; rather it aims to modernise its regulatory devices. It has been applied in different ways depending on the region and, generally, has not induced massive privatisation of land during the first ten years of its application.

It is a great challenge to modify the ejido system without returning to a system of absolute ownership, thereby defeating the ejido’s original purpose of supporting common property management.

Some international development institutions now refer to experiences intended to rebuild or found a local capacity to manage natural resources. Record # 1 in the second part of this paper on the experience of Mayo-Kebbi in Chad is a sub-Saharan African illustration⁵³

A similar need, though in a very different context, has led to the constitution of the Larzac Lands Civil Society Group in France, which is the subject of record # 17⁵⁴.

A certain number of tools now exist that strengthen land resource management capacities. For example, participatory mapping of land and its resources illuminates complicated spatial holdings in terms that persons outside the local environment are able to understand.

Thus participatory mapping is a means of communication, but it is also an instrument capable of increasing transparency and making land tenure rights clear in a rapidly changing context. It requires local actors to have access to modern means of cartographic representation and remote sensing⁵⁵. The feasibility of such actions has been demonstrated by pilot experiments⁵⁶.

Some additional tools, although they may not be directly related to land matters, can help to improve social capital. In particular, different ways of learning how to manage common property⁵⁷ come to mind, as do, on a wider level, the means to strengthen the organisation and capacity of populations to control their own destinies (empowerment), based on social innovation, experimentation and learning by doing.

4. A critique of key concepts pertaining to land rights is now necessary

The « Tragedy of the Commons », an essay published in 1968 by G. Hardin, has often been evoked to justify the need for the privatisation of natural resources. According to this author, all collectively owned limited resources tend to be managed in a non-sustainable way until exhaustion, each person seeking to profit as much as possible before someone else does in their place. However, the problem is not so much the existence of common property as that of the lack of rules and mechanisms to ensure that management is carried out in the interest of most people.

This reflection on the management of common property has to be carried out on different levels: local, regional and national. However, it is now obvious that it must be extended to regions covering several countries and even the entire world. In view of this, the issue of land is a major global problem, since many of the world’s resources are increasingly considered as being the common property and heritage of humanity.

The issue of sustainable management of natural resources goes beyond the scope of land tenure matters, though it is intrinsically related to them. Debates on the common management of resources in developing countries with rural populations (hence unable to limit themselves to conservation policies based on reserves and national parks that exclude human beings), and debates on the multi-purpose role of farming in European countries point to the fact that we are looking for new methods and rules such as the concept of heritage management⁵⁸, among other things.

Better land tenure security requires the creation of new social capacities, better organisation of rural societies and the development of renewed institutions; it cannot be achieved solely by technological improvements in the field of land registers. Given the experiences mentioned above and the changes in progress, we need a fundamental overhaul of the prevailing values and concepts related to property in order to progress and overcome the obstacles formed by their inadequacy vis-à-vis the current situation. As already seen, this involves giving up the illusion of absolute ownership and recognising that in whatever circumstances, land incorporates an element of common property that ought to be managed by the appropriate bodies.

This conceptual evolution is far from over, as shown by the violent debates and struggles around the world between civil society, multinational corporations, governments and international institutions. Major private interests will continue to put up violent resistance for a long time to come and progress cannot be made without powerful, representative and democratic farmers’ organisations. Consequently, the debate on land property rights is an integral part of the quest for genuine world governance.

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⁴⁸ Ordinary courts are the British equivalent of what would be called “law courts” in the U.S.

⁴⁹ In Mexico, indigenous communities’ land tenure systems are generally characterised by collective tenure with recognition of the right of individual benefits for community members over the section they cultivate. These rights are usually transferred to children, but can be transferred or sold to another member of the community. Upholding rights implies that each “comunero” (the beneficiary, generally the head of the family) accept of a certain number of personal obligations: providing a certain number of workdays for the community (tequio) and completing tasks carried out in the general interest of the community (cargos), which are assigned periodically by the Assembly. The community is governed by a sovereign Assembly of « Comuneros », alongside which reside important consultative bodies (the elders’ council or the honoured persons’ council). There is an executive structure known as the « Comisariado de Bienes Comunales », which, as its name implies, is responsible for managing common property, and there are also supervisory bodies.

⁵⁰ From La transformación agraria. Origen, evoluciones, retos. Ed Sec de Reforma Agraria, 1997. See also Laura Randall (Ed.), Reformando la Reforma Agraria Mexicana, UAM, 1999.

⁵¹ Although the name comes from the Spanish and colonial agrarian past, it designates a new and original way to manage land tenure.

⁵² The work was wholly collective only in a very small number of ejidos.

⁵³ See record # 1 of part 2. Bernard Bonnet. “Concerted management of common land and resources in Mayo-Kebbi, Chad”, IRAM - GTZ.

⁵⁴ See record # 17 of part 2. José Bové, “The SCTL (Larzac Land Trust), an innovative and original approach to rural land management. France.”

⁵⁵ It is advisable to not limit oneself to the use of simple tools such as participatory rural appraisals, a cursory device that was very popular during the previous decade. It was erroneously applied in order to induce participation and was employed mechanically for a large number of projects in developing countries.

⁵⁶ See for example the mapping experiments carried out by the mestizos and indigenous peoples in the Farm Frontiers Project (EU) in Central America, directed by Michel Laforge and Pablo Torrealba.

⁵⁷ See for example the experience of IRAM in Mali, with the Local Investment Fund of Sikasso. One of the fund’s aims was to ensure better management of subsidies, by limiting their negative and adverse effects as much as possible, and increasing social capital through improved rural organisation. This was done by increasing rural populations’ control over their environments, and their capacities for collective management of common problems arising in their territory. The three basic principles of their method were: 1) to recognise the existence of local dynamics with the goal of allowing excluded social groups to build their own institutions and their own futures; 2) to empower farmers and other local actors to make decisions, by placing them in the position of resource-owners and getting them to act as project managers; 3) to train actors on the job, allowing them to learn through their mistakes. This implies making a distinction between technical and financial functions. Also, it entails providing specific support to project management and service providers, implementing a progressive approach to the amount of funding assigned to projects, setting up checks and balances and systematic cross checking to increase accountability and avoid self-serving attitudes and corruption, seeking sustainable investments and a satisfactory period of action, during which the mechanisms and community authorities responsible for talking decisions can be established.

⁵⁸ The concept of heritage or patrimony management proposes a way to move away from the notion of state ownership and management of resources. If all natural resources are the heritage of all citizens, then these persons are in turn endowed with a legitimate right to manage the resource (R. Leonard and J. Longbottom, A Glossary of Terms from English and French Speaking West Africa, London: IIED, 2000.) Also see the texts by Jacques Weber, Alain Karsenty and Etienne Le Roy in Quelles politiques foncières pour l’Afrique rurale ? Paris : Karthala, 1998.