A Long Time Gone: Post‐conflict Rural Property Restitution under Customary Law

Mass displacement of people due to violence poses a unique set of challenges for property restitution when people return to their homes after a long absence. This is particularly evident in rural areas where the dominant form of land holding is customary tenure. Violence‐induced displacement, unlike voluntary migration, challenges both customary and public legal‐administrative structures. The lack of written documentation of customary holdings and the importance of the support of community leaders means that incorporating returnees back into a community can be easier for those who choose to return, while reclaiming property without physical return is nearly impossible. This article seeks to make three contributions: 1) to note the diversity of return processes after long displacements in terms of timing and demographics; 2) to demonstrate that the nature of the claims people can make on customary tenure systems is at odds with international legal norms on property restitution after displacement; and 3) to introduce a set of observations and questions on how conflict can change customary law. The article is based on fieldwork conducted in Uganda, Liberia and Timor‐Leste, all countries with extended displacement where most of the rural land is held via customary claims.     

Mapping Common Futures: Customary Communities,NGOs and the State in Indonesia's Reform Era

The post‐Suharto ‘Reform Era’ has witnessed explosive revitalization movements among Indonesia's indigenous minorities or ‘customary’(adat) communities attempting to redress the disempowerment they suffered under the former regime. This study considers the current resurgence of customary claims to land and resources in Bali, where the state‐sponsored investment boom of the 1990s had severe social and environmental impacts. It focuses on recent experiments with participatory community mapping, aimed at reframing the relationship between state and local institutions in planning and decision‐making processes. Closely tied to the mapping and planning strategy have been efforts to strengthen local institutions and to confront the problems of land alienation and community control of resources. The diversity of responses to this new intervention reflects both the vitality and limitations of local adat communities, as well as the contributions and constraints of non‐governmental organizations that increasingly mediate their relationships to state and global arenas. This ethnographic study explores participants’ experiences of the community mapping programme and suggests its potential for developing ‘critical localism’ through long‐term, process‐oriented engagements between communities, governments, NGOs, and academic researchers.     

‘Best Practice’ Options for the Legal Recognition of Customary Tenure

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.     

Gendered frontiers of land control: indigenous territory,women and contests over land in Ecuador

Agricultural and rural land has become the site of considerable policy, governmental and scholarly concern worldwide because of violence and dispossession, food insecurity and contests over private property regimes. Such issues are highly gendered in territories with majorities of indigenous populations where overlapping legal regimes (statutory, multicultural, customary) and histories of dispossession have created complex spatialities and access patterns. States' formalization of indigenous rights, neoliberal restructuring and land appropriation are the backdrop to Ecuadorian women's struggles to access, retain and pass on land. Despite a burgeoning literature on Latin American indigenous territories, women are often invisible. Using collaborative research among two indigenous nationalities, the article analyses the political–economic, legal and de facto regimes shaping women's claims to land and indigenous territory. Focusing on Kichwa women in the rural Andes and Tsáchila women in a tropical export-oriented agricultural frontier area, the article examines the criteria and exclusionary practices that operate at multiple scales to shape women's (in)security in tenure. Women's struggles over claims to land and territory are also discussed. The article argues that Latin America's fraught land politics requires a gendered account of indigenous land–territoriality to unpack the cultural bias of western feminist accounts of multiculturalism and to document the racialized gender bias across socio-institutional relations.     

Está listo (Are you ready)? Gender,race and land registration in the Río Plátano Biosphere Reserve

Geographers and political ecologists are paying increased attention to the ways in which conservation policies disrupt indigenous customary tenure arrangements. However, much less attention is given to the particular ways protected area management shapes natural resource access for indigenous women. With this in mind, this article examines how a recently proposed state land project in Honduras, Catastro y Regularización, requires that Miskito residents individuate collective family lands in the interests of ‘sustainable development’ and ‘biodiversity protection’. In the debates that followed the project's announcement, Miskito women feared that such measures would erase their customary access to family lands. As the state's project seeks to re-order Reserve land, intra-Miskito struggles intensified among villagers. Such struggles are not only gendered but are shaped by longstanding processes of racialization in Honduras and the Mosquitia region. Drawing upon ethnographic research, I argue that Miskito women's subjectivity and rights to customary family holdings are informed by their ability to make ‘patriarchal bargains’ with Miskito men inside the Río Plátano Biosphere Reserve. Such findings suggest that scholars and policy makers continue to reflect on the ways global conservation and sustainable development practices may undermine indigenous customary tenure securities, whether intentionally or not.     

Pastoralism and Land‐Tenure Change in Kenya: The Failure of Customary Institutions

Until recently, the Pokot in the highlands of the Baringo area in Kenya have practised semi‐nomadic pastoralism. Today they are rapidly sedentarizing and in many areas suitable for farming, they are adopting rain‐fed agriculture. As a result of these dynamics, claims to individual property on de facto communal rangelands have arisen, and to such an extent that they seriously threaten the peace of the community. This article explores the conflicts that emerge in the transition from common property to private tenure. Using locally prominent land disputes as exemplary cases, it focuses on the role of traditional gerontocratic authorities in the attempt to resolve a growing number of land disputes; on the emerging power of patrilineal clans and local elites in the enforcement of access to land; and on the incompetence of government agencies to intervene. The failure of customary institutions to ensure land tenure security leads to a situation in which women and marginalized actors in particular are threatened with displacement, and in which most local actors want the state to intervene and establish formal property rights.     

Land Rights under Stress in Darfur: A Volatile Dynamic of the Conflict

Abstract

The aggravation of land rights over time in Darfur was a primary factor in the initiation of the conflict, and has emerged as a particularly dif?cult set of issues in the search for viable peace. While the prospect of being able to keep land acquired in course of the conflict was a primary factor in recruitment for the Janjaweed, it came on the heels of a set of changes in the environment, land use and population patterns, institutions, law and governance that produced a highly unwieldy and volatile land rights scenario. This article explores the role of land tenure in the Darfur conflict, examining the aggravation of rights, custom, and law over time, and then focusing on two of the primary war-related tenure problems currently facing Darfur — use of land rights as tools of belligerence, and the land dispossession — secondary occupation problem.     

‘Your work is of no use to us…’: Administrative interests in ethnographic research (West New Guinea, 1950–1962)

Abstract

The extent of customary land in Samoa and the laws pertaining to its protection create a presumption of state dependence on the regulation of custom in effecting state policies within local contexts. The principal means of regulating custom in Samoa has been and continues to be through state court adjudication of conflicts over customary land and chiefly titles. The transitive nature of ‘custom’ and conceptions of ‘custom’ in Samoa created an opening for court influence in the construction of custom, if not custom's partial reinvention through the agency of the courts. This occurred principally through the courts’ privileging principles of English common law in confirming asserted land rights generally considered unenforceable at the time of Samoa's political partition. The courts re‐interpreted as customary, conceptions of land rights the colonial state's influence attempted to effect within Samoan society. But the source of the changes, and the courts’ role in promoting them, tended not to be equally reflected upon. To the extent such influence is ignored in analyses of Samoan land tenure and customary law, and reproduced within state policies and court adjudication of conflict, custom's social construction is left unexamined, assumed to be more general than it is, and likely to exacerbate tensions and conflict within Samoan society rather than reduce them.     

Orphans’ Land Rights in Post‐War Rwanda: The Problem of Guardianship

In 1994, the Rwandan civil war and genocide produced thousands of orphans. Alongside the war, the growing HIV/AIDS crisis in Rwanda has produced a current population of about 300,000 orphans — many of whom are compelled to head households. These orphans urgently require land use rights, but many find that their rights to their deceased parents’ customary land holdings are denied or restricted by their guardians and others. Despite the legal protections for children that are guaranteed within Rwanda's laws, the reality is that many guardians do not respect orphans’ land rights and few orphans have sufficient access to administrative and legal forums to assert and defend these rights. In contrast to most accounts in the literature that discuss more generally the issue of African orphans’ land rights in the context of adults’ land rights, this article focuses on specific cases in which Rwandan orphans independently pursued their land rights. Ultimately, the article concludes that in Rwanda — and elsewhere in Africa — government officials should re‐examine their ideas about guardianship and grant orphans urgent attention as individuals and as a special interest group.     

(RE)MAPPING INDIGENOUS ‘RACE’/PLACE IN POSTCOLONIAL PENINSULAR MALAYSIA1

ABSTRACT. This paper focuses on how indigeneity has been constructed, deployed and ruptured in postcolonial Malay(si)a. Prior to the independence of Malaya in 1957, British colonial administrators designated certain groups of inhabitants as being ‘indigenous’ to the land through European imaginings of ‘race’. The majority, politically dominant Malays were deemed the definitive peoples of this geographical territory, and the terrain was naturalized as ‘the Malay Peninsula’. Under the postcolonial government, British conceptions of the peninsula were retained; the Malays were given political power and recognition of their ‘special (indigenous) position’ in ways that Orang Asli minorities—also considered indigenous ‐ were not. This uneven recognition is evident in current postcolonial political, economic, administrative and legal arrangements for Malays and Orang Asli. In recent years, Orang Asli advocates have been articulating their struggles over land rights by drawing upon transnational discourses concerning indigenous peoples. Recent judicial decisions concerning native title for the Orang Asli potentially disrupt ethno‐nationalist assertions of the peninsula as belonging to the ‘native’ Malays. These contemporary contests in postcolonial identity formations unsettle hegemonic geopolitical ‘race’/place narratives of Peninsular Malaysia.     

The Discourse that Silences: Beneficiaries' Ambivalence Towards Redistributive Land Reform in the Philippines

This article argues that the persistence of non-capitalist dimensions within land relations in the Philippines is basic to rural livelihood strategies, and has been a major but widely-neglected factor in the failure of land reform programmes. Addressing the issue of non-capitalist relationships brings into focus the indigenous or ‘customary’ land tenure relationships that exist in lowland land tenure arrangements, with the result that the conventional dichotomy between lowland and upland ‘cultural minority’ land relations becomes spurious. The article offers some suggestions as to why, for the major part of this century, the indigenous norms of lowlanders have been overlooked, with a discussion which links up to issues of national identity and nation building.     

The Threefold Logic of Papua‐Melanesia: Constitution‐writing in the Margins of the Indonesian Nation‐State

Clashes over the status of West Papua and the political future of the territory proliferated markedly following the end of Indonesia's New Order regime in 1998. Amid a wide variety of demands for justice and independence, and a series of demonstrations, mass gatherings and prayers, only a few Papuans mused on how Papua could become a state and what would constitute its nature as being distinctly Papuan and/or Melanesian. One exception is the work put into the Constitution for West Papua entitled Basic Guidelines, State of West Papua, a document edited by Don A.L. Flassy, a bureaucrat, writer and thinker, with a preface by late Theys H. Eluay, then chairman of the Papuan Council. In this article I analyse this Constitution to show how a combination of Christianity and local customs, and a mimicry of elements of Indonesian nation building and symbols of the Indonesian nation‐state are reshaped to oppose Indonesian nation‐building agendas. The Constitution shows that when Papuans imagine an independent state, forms of vernacular legality play a central role. ‘The state’ has journeyed to Papua and encouraged faith in ‘the law,’ and Basic Guidelines is partly the effect of this growing vernacular legality. My analysis shows that it is essential to see how legal mobilisations and imaginations of the state articulate with other normative systems and practices – in particular Christianity and custom (adat) – and how they mutually allow for and invite strategies.     

The Robustness of Aboriginal Land Tenure Systems: Underlying and Proximate Customary Titles

While Aboriginal 1 1 I do not deal with Torres Strait Islander land relationships in this paper, although the arguments may well apply in that case. I have restricted myself to systems with which I am more familiar
land use patterns may have been fragile in the face of colonisation, and severe limits were consequently placed on Aboriginal people's capacity to physically enact local traditional entitlements on many lands, the basis and key content of traditional title to such lands is not fragile but has generally been maintained with considerable robustness. In this paper I suggest that this robustness arises in a critical sense from the pre-existing and widely continuing dual structure of traditional land tenure, which may be understood as consisting of an underlying title held within the relevant regional jural and cultural system, which underpins proximate entitlements enjoyed by small groups of individuals. There is scope within Australia's Native Title Act (1993) for the recognition of this system of customary law under the western legal concept of native title.     

The Double Movement of Immovable Property Rights in Papua New Guinea

ABSTRACT

Papua New Guinea (PNG) is one of many countries around the world where the relationship between customary land tenure and economic development has been hotly debated for a long time. A commonplace of the debate in PNG is that 97% of the nation's land is held under customary tenure, while only 3% has been alienated, and these proportions have not changed since the country became independent in 1975. This paper shows that the boundary between customary and alienated forms of land or immovable property was already showing signs of instability in the late colonial period, and this instability has been greatly magnified in the post-colonial period. The areas of land subject to some form of partial alienation have increased along with the ways and means by which immovable property has been ‘mobilised’, while a variety of customary claims to previously alienated areas have grown stronger over the same period. Although Karl Polanyi's idea of a ‘double movement’ can throw some light on this phenomenon, the PNG case also reveals a new side to the application of this concept.     

Family Property and the Limits of Intervention: The Article 27 Reforms and the PROCEDE Programme in Mexico

In the 1990s the Mexican peasants witnessed the introduction of a new Agrarian Law and the implementation of the land regularization programme, PROCEDE. In this article it is demonstrated that the privatization of previously communally held ejido land did not lead to the promised dynamic land market, nor to an increase in agricultural productivity. On the basis of an in–depth study of land tenure practices in the ejido La Canoa in Western Mexico, it is shown that the changes of 1992 did not address the main problems of peasant agriculture. The new Agrarian Law legalized practices which, although illegal, had already become quite common in ejidos throughout Mexico. In addition, it is argued that legal security does not necessarily reside in official registration by the state, but can also be based on local recognition of land rights. The main argument of the article is that property consists of complex sets of claims, rights and obligations that cannot be manipulated by forms of state intervention that reduce land tenure predicaments to technical problems.     

Mare Nullius: Indigenous Rights in Saltwater Environments

This article uses two case studies to illustrate the subjection of indigenous peoples’ marine territories to a ‘double jeopardy’ of exclusion — jurisdictional and proprietary — through the legal and administrative practices of European ‘settler’ states in Australia and Canada. While the fiction of terra nullius as a legal rationale for refuting indigenous rights of property and governance has steadily eroded in recent decades, its counterpart mare nullius has proven, so far, more resistant. The authors examine how state conceptions of jurisdiction, property and boundary‐making in coastal areas accomplish the distortion and fragmentation of the coastal and marine spaces of Torres Strait Islanders in northern Queensland, Australia, and of the Cree and Inuit peoples of James and Hudson Bays in northern Que´bec, Canada. Assumptions of land–sea continuity underlie these peoples’ cultural constructions of coastal and marine environments. In examining the progress that each has made in reasserting ownership and control of coast and sea, it seems that recognition and reinforcement of their institutions for managing marine spaces and resources offer the best prospect for reconnecting fractured jurisdictional domains, and for bringing about social equity, environmental protection, and self‐determined regional development.     

Indigenous migrants negotiating belonging: Peticiones de cambio de fuero in Cajamarca,Peru, 17th–18th centuries

Prehispanic corporate social units in northern Peru, the pachacas or ayllus and the guarangas, continued to structure social life in Cajamarca throughout the Spanish colonial period. They were restructured by Spanish rule, as they had been by the Inca conquest before. Spanish rule also reshaped indigenous migration and the social categorization of the migrants, which was closely intertwined with the regime of land tenure. This article takes a look at the integration of new and old migrants and their descendants into the local social structure and examines how they negotiated their belonging in petitions to change or defend their fuero. The petitioners successfully argued on the basis of their ancestry, whether legitimate or not, and activated personal networks on their behalf. In that, they paralleled mestizo and mulatto petitioners who, like migrants, benefited from fiscal prerogatives, which were however challenged during the course of the 18^th century, leading to a partial re-categorization. The redistribution of land was an important motive in these late colonial re-categorizations, but also earlier in the colonial period the absence of bonds to the land was an essential characteristic of being categorized as a ‘migrant.’     

RE‐INVENTING TRADITIONAL LAND TENURE IN THE ERA OF LAND COMMODITIZATION: SOME CONSEQUENCES IN PERIURBAN NORTHERN GHANA

In northern Ghana periurban areas are encroaching on rural areas and agricultural land ends up being sold for residential purposes mainly by chiefs and “earth” priests. The changing customary land tenure systems have generated a state of uncertainty and tension as the title and responsibilities of titleholders are subject to the interpretation by those who administer custom. Increasing commodification is taking place that benefits an emerging political‐traditional and economic elite. The centralized systems restrict the benefits of the commoditization process mainly to chiefs and their collaborators, whiles acephalous systems allow more space for objections and struggles by those whose land is expropriated. Neoliberal development policies have shaped the commodification of land and entrenched existing socio‐economic inequalities that marginalize the poor who are unable to seize the opportunities of the emerging urban economy.     

Communal Tenure and Rural Poverty: Land Transactions in Svosve Communal Area,Zimbabwe

The idea of communal tenure has formed a key plank in the rural governance of Zimbabwe since independence, but its retention following the Fast Track land reforms of 2000–2002 perpetuates a distinction between ‘commercial’ land governed by a land market and ‘communal’ land on which market transactions are illegal. This article draws on recent research in Svosve Communal Area to examine the dynamics of land access and their implications for rural poverty in Zimbabwe. The authors argue that, as in many other parts of Africa, access to land governed by customary authority in Svosve is increasingly commoditized via informal, or ‘vernacular’, sales or rental markets. In failing to acknowledge and address this commoditization of land, the ‘communitarian’ discourse of customary land rights that dominates the politics of land in Zimbabwe — as elsewhere in much of Africa — undermines, rather than protects, the livelihoods of the rural poor.