Post‐Conflict Ambon: Forced Migration and the Ethno‐Territorial Effects of Customary Tenure

In post‐conflict contexts characterized by large‐scale migration and increasing levels of legal pluralism, customary land tenure risks being deployed as a tool of ethno‐territorialization in which displaced communities are denied return and secure land rights. This thesis will be illustrated through a case study of the Indonesian island of Ambon where a recognition of customary tenure — also called adat — was initiated in 2005 at the end of a high‐intensity conflict between Christians and Muslims. Although a system of land tenure providing multiple forms of social security for the indigenous in‐group, adat in Ambon also constitutes an arena of power in which populations considered as non‐indigenous to a fixed historical territory are pushed into an inferior legal position. The legal registration of customary tenure therefore tends to be deployed to settle long‐standing land contests with a growing migrant community, hereby legally enforcing some of the forced expulsions that were brought about by the recent communal violence.     

‘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.     

Constituencies of conflict and opportunity: Land rights,narratives and collective action in Darfur

Grievance-based narratives are a primary component of civil wars. While present among the general population affected by conflict, the variants held by the segment of the population most proximate to the armed factions – constituencies – play a primary role in the development and conduct of a conflict. Such narratives can coalesce around specific volatile issues and enable non-combatant constituencies to participate in the conflict through the use of specific 'legalities' or legal precepts. These legalities facilitate the engagement of sets of collective action that are opposed to those derived by constituencies of the opposing side. However such constituencies and their narratives are also where potential opportunity resides for peace-building, both during and subsequent to hostilities. This article looks at the case of Darfur to examine these ingredients, with a focus on land rights as the volatile set of issues around which narratives have developed. In Darfur, opposed narratives which maintain how and why groups claim and deserve access to land and territory, and how groups were unjustly displaced or excluded from lands (and hence power), became solidified and acted upon prior to the conflict to become a primary driver in the current war. In certain cases however narrative change has led to interaction between members of opposed constituencies for the purpose of exploring cooperative arrangements.     

‘NOBLESSE DE ROBE’ IN A CLASSLESS SOCIETY

This article deals with the effect of ownership and control of land on women's remarriages in early modern Western Norway. Marrying a tenant widow gave her new husband the right to tenure. On freeholder farms the eldest son, according to Norwegian odelsrett and åseterett, had the right to inherit the farm. When land-seeking youngsters obtained tenure by marrying tenant widows, these widows became highly attractive marriage partners, in contrast to widows of freeholder peasants where no secure position could be obtained for the new husband. Legal succession rights thus highly restricted the decisions of freeholder peasants' widows. Tenant widows had a wider range of choices closely linked to their control over land and land transfer. They were not mere passive marriage objects. In an open tenant land market widows could choose between running their farm by hired labour or with assistance from their children, they could remarry and thus acquire male labour in their household or they might benefit from giving up their tenure. Their decisions to a considerable degree influenced succession patterns on Norwegian tenant farms in the early modern period.     

EXPLORING THE CONNECTIONS: LAND TENURE, SOCIAL IDENTITIES, AND AGROBIODIVERSITY PRACTICES IN GHANA

This article employs qualitative and quantitative evidence from primary social research in Ghana to examine the link between land tenure security and social identities (of wealth/income and gender), and how they condition farmers' investments in practices that contribute to the rehabilitation of tree biodiversity (agrobiodiversity). Statistical analyses of the significance of the effects of farmers' de jure land tenure security regimes, and income and gender on agrobiodiversity practices were inconclusive. The conventional causation link between investments and more secure formal land tenure rights, for instance, was confirmed in investments in four out of eight agrobiodiversity practices. Testimonial-based evidence of farmers provided a clearer concept of land tenure security and an explanatory framework about the interacting and complex effects of income and gender on land tenure security. The theoretical and empirical argument developed from these testimonies portrays land tenure as embodying negotiated social processes, influenced by gender and income of individuals, whereby breadth of land rights, duration of rights over land, and assurance of rights are established, sustained, enhanced or changed through a variety of strategies to shape tenure security. These processes – tenure building and renewal processes – are critical because all farmers have lingering anxiety about land tenure rights, even among farmers with more secure formal rights. Investments are made in agrobiodiversity practices as a strategy to strengthen land tenure security and thereby minimize anxiety, leading to reverse causation effects between land tenure, social identities, and investments.     

Land titling and poverty reduction in Southeast Asia: realising markets or realising rights?∗

AusAID has supported land titling projects in Southeast Asia with the World Bank for over two decades. These involve the first-time issuance of a land title in cases where the ownership rights of current occupiers are largely assured. Reflecting neoliberal thinking on private property rights and development, the rationale is that titling builds land markets and increases tenure security, investment and access to institutional credit. However, international research indicates that land titling can be neither sufficient or necessary to deliver such benefits and, under some circumstances, can harm poor landholders’ wellbeing. In this respect, attention is paid to political factors in addition to property rights per se which influence their tenure security. It is argued that the value which neoliberalism places on the exclusivity of ownership of land, to enable its efficient use and allocation, can be in conflict with the importance to poor people of secure access and use rights. If AusAID is to fully commit to poverty reduction goals, then there will need to be more attention paid to the social justice dimensions of land distribution in Southeast Asia and elsewhere.     

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.     

Ruling by Record: The Meaning of Rights,Rules and Registration in an Andean Comunidad

This contribution looks at land property relations in a peasant community in the central highlands of Peru. Rather than using a rights‐based approach, the authors propose a ‘practice force field approach’ for their analysis of property relations under communal land tenure regimes. Their study combines qualitative ethnographic case studies with quantitative analysis of data on land distribution. In contrast to rights‐based approaches, this perspective understands the legal discourses that people draw upon to explain property relations as ‘justifying rule talk’ rather than the reflection of a system of property rights. It is shown how property relations are shaped in mediated interactive processes, where official rules, moral principles, shared histories and strategic games come together. The authors use this practice force field approach to study Usibamba, an Andean community that has developed a true disciplinary regime of communal governance based on control over land. The role of ‘rule talk’ and the function of elaborate local systems of land registration are examined in the context of the annual reallocation of communal land. Particular attention is paid to the performance of the president of the comunidad during this delicate process and his reflections on the course of events.     

Land Tenure, Archaeology, and the Ancestral Pueblo Social Landscape

Archaeology relies upon evidence of past human modification of the natural landscape in order to infer past human social dynamics on the site, local, and regional levels. Given the inferential linkages between past landscape use and social relationships, archaeology can benefit from an approach that more explicitly delineates relationships between systems of land use and land tenure, the social means through which people define and assert land use rights. This research outlines a set of methods for modeling prehistoric land tenure systems and developing a middle range theory of land tenure relationships that may assist archaeologists in their investigations of prehistoric resource access systems. Land tenure systems are complex risk-buffering strategies that are conditioned by the labor invested in food production, the size of groups holding direct access to productive lands and resources, and the temporal duration of land access rights. The role of these variables is supported by cross-cultural data from a worldwide sample of food-producing societies. The land tenure model is applied to data from the prehistoric Southwest to help explain local and regional changes in food production, settlement size, and community organization in southwest Colorado between 900 and 1300 A.D.     

Reproducing the Plot: Making Life in the Shadow of Premature Death

A protracted process of policy development has been underway in Jamaica to curtail the widespread incidence of informal settlements. Against the logic of emerging policy, this article aims to reconnect present-time unauthorised use of space to ancestral refusals of plantation land monopoly. Through ethnographic research and a reconsideration of historical texts, the article situates insecure tenure in a long history of conflict over land and livelihood—conflict that produces a boundary around the authorised use of space. That boundary is porous and mobile, the outcome of a palimpsest of colonial violence and its negation. This argument interrogates the gap between “landless” and “ownershipless”, revealing both the role of incomplete dispossession in racialised social reproduction and the spatial practices through which Jamaicans “make life” even in the shadow of premature death.     

Land Tenures as Policy Instruments: Transitions on Cape York Peninsula

Over the last four decades, Australia's most remote marginal lands have provided an expansive space towards realisation of emergent national goals, involving recognition of Aboriginal land rights together with protection of ‘wilderness’ and semi‐natural ecosystems. This has been achieved by the revival of land tenures as instruments for the delivery of public policy, requiring innovative federal and state legislation, often driven by judicial determinations. More so than any other bioregion, Cape York Peninsula has experienced radical shifts in landownership, land titles, and property rights, reflecting its pivotal role as an arena in which emerging national goals are contested. The most immediately visible evidence of these changes is depicted in the tenure maps for 1970, 1990, and 2010. However, these maps provide an incomplete account of tenure changes, including new titles such as non‐transferable communal freehold and common‐law recognition of traditional native title, requiring belated responses by state and federal governments. The three benchmark maps provide a starting point for an examination of the currently resurrected role of land titles and land rights as policy instruments. The time‐specific attributes of each tenure category are discussed and linked to the policies underpinning each tenure and to the communities, political constituencies, resources, enterprises, and national values engaged with each tenure. Land titles and land rights are pivotal in political contests about regional futures, with the peninsula acting as a crucible in shaping wider national directions.     

No Change for Thirty Years: The Renewed Question of Women's Land Rights in Rural China

Since the mid‐1990s, a new land‐use rights regime has gradually come into effect in China. It follows upon a series of earlier changes — land reform, collectivization and the first wave of contracting land to households — that paid attention to women's role in publicly recognized work and provided access to land. The new regime, which has gradually come into effect as previous (usually fifteen‐year) terms expired, authorizes an adjustment in land allocation which is then normally frozen for thirty years. An apparently inadvertent effect of this policy is not only the exclusion of young people from direct access to land for up to thirty years from birth, but the de facto separation of the majority of women who marry or remarry patrilocally from allocated land. ‘No change for thirty years’ (sanshi nian bu bian) has thus become the distinctive feature for women of China's current land‐use regime. The state has renounced its potential to reallocate land periodically and there is no indication that market mechanisms are filling, or are capable of filling, the void thereby created. This article examines local conceptions, responses and practices regarding land‐use rights and their transfer within this new framework, using field evidence from three upland agricultural communities in Chongqing and Sichuan (studied in 2003, 2004 and 2005), where land allocations were fixed in 1995, 1999 and 2001 respectively. The ethnographic findings are further explored in relation to contemporary research on gender and land rights.     

The Títulos de Ebtún,Yucatan, Mexico: Mapping Maya Communal Identity in a Colonial Spanish Notarial Context

ABSTRACT

The main focus in this article is on four maps from colonial Yucatan, Mexico (c.1542?1821). The maps illustrate a two-volume set of Maya notarial documents called the Títulos de Ebtún and concern disputed communal rights to Tontzimin, one of the sparse water sources (cenotes) of this arid limestone region, and its surrounding arable land. Mention is also made of two maps of the province of Mani that were included in treaties agreed with the Spanish authorities as a final record of Maya claims to traditional agricultural rights. Although all these maps were produced by Spanish officials, they relate to broader colonial mapping traditions in Yucatan and embody a clear Maya influence. At the same time, they reveal the effect of Maya mapping practices on Spanish notarial and mapping traditions at the close of the colonial period.     

Property,Authority and Citizenship: Land Claims,Politics and the Dynamics of Social Division in West Africa

In the contemporary African context of rising competition and anxiety over access to land, neoliberal policy interventions designed to clarify property rights, broaden political participation and increase official accountability have frequently provoked rather than alleviated social and political conflict. Comparing case histories of local struggles over land and authority in selected rural areas in Ghana, Côte d'Ivoire and Bénin, this paper argues that in situations where access to land has been linked historically to claims on authority and social belonging, pressures to privatize or clarify ownership have intensified debates over citizenship and governance as well as over land claims per se. Ensuing struggles over land and entitlement have intersected with national as well as local economic and political dynamics, reinforcing ‘traditional’ hierarchies, contributing to the proliferation of formal and informal governing agents and institutions, and frequently disrupting or subverting open governance and sustainable resource use, rather than helping to create conditions for sustainable development and democratization.     

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.     

Making Law Work: Restructuring Land Relations in Africa

This article explores a number of issues concerning the appropriate role for the law to play in the restructuring and reform of land relations and land tenure in Africa. Given current (external) donor tendencies, and (internal) pressures for reform from within, this is a particularly topical issue: in seeking to explore it, the author draws on his own experiences and involvement in land law reform, as well as other sources of information, concentrating on countries and events in Eastern and Southern Africa. After examining various models and country experiences, the article concludes that, while there is no single ‘right way’ to tackle land tenure reform in Africa, there are a number of factors which may be crucial to success, and in which the law—and lawyers—can play a vital role.     

Land as fictitious commodity: the continuing evolution of women's land rights in Uganda

In sub-Saharan Africa, colonial influences have altered traditional practices as a way to manage that which Polanyi labeled as ‘fictitious commodities’ of land, labor, and money. Land has now become a highly marketable commodity and an intrinsic part of the global economy. Over the past century, Uganda's land rights have evolved from communal rights to that of male-dominated, individual ownership practices that have excluded women. Despite constitutional provisions, which confer title of both a deceased husband's property rights and equal rights to property within a marriage to a wife, postcolonial patriarchal tradition prevails. This article examines historical changes in land rights in Uganda and discusses the impact of shifts in land rights from communal ownership to individual tenure, altering power structures and attempting to create marketable land title. The Ugandan women's movement's opposition to policies and implementation of laws that exclude women has been unable to facilitate the required changes in unbiased access to land rights, despite apparent victories in revisions to the letter of the law. Situated within contemporary interpretations of tradition and pressures of market demand, this article shows that women's access to landownership and use are restricted by misinterpretation of traditional law and a lack of enforcement of contemporary legal rights. To illustrate the impact of a lack of access to land, this article examines an empirical case study of widowed subsistence farmers in southern Uganda. Women in Uganda continue to lose ground, quite literally, decreasing the possibility of gender equity in terms of land.     

清代地权交易形式的多样化发展

There were three kinds of financial transactions involving rights of land during the Qing Dynasty: debt financing through rights of land, the direct transferring of the rights of land, and the transaction of shares. This article attempts to clarify the confusion between several types of debt financing through rights of land. Ya 押 was loan through land as guaranty and repaying the interest and capital by the rent of land or harvest. Dian 典 was loan through temporary transferring of usage rights and harvest in a certain period of time. Dang 当 referred to various types of loans which involved the rights of land. Di 抵 meant using a certain portion of land right as repayment of debt. Similar with modern financial methods, these financial transactions in the Qing Dynasty allowed peasants to preserve their possessive rights over the land and also satisfied their financial needs. The direct transactions of rights of land and repayment of debt by harvest included juemai 绝卖 (finalized sale of land), huomai 活卖 (not finalized sale of land), dianquan dingtui 佃权顶退 (sell or purchase tenancy), zhaojia 找价 (price add-on after transaction), and huishu 回赎 (redemption). The main purpose of these transactions was to protect the land proprietors as far as possible. Share transaction and co-tenancy of land also appeared in the Qing Dynasty. Such diverse financial transactions not only were substitutes of modern financing tools which allowed peasants to weather financial hardship, but also promoted the changing ownership of land which further encouraged the combination of different production elements and reallocation of resources in the land market. This paper is the research result of the National Philosophy and Social Science Fund Project “Market of land rights and the evolution of its system, 1650–1950.”     

Persistent land use patterns and the mid-Holocene housepits of Wyoming

Abstract

The cyclical use of sites and locales over decades, centuries, and even millennia is an important aspect of hunter-gatherer land use that is rarely considered in studies that focus on a single annual cycle. The long-term perspective provided by archaeological data can be used to delineate persistent land use patterns and contribute to an understanding of the complexity of hunter-gatherer behavior. Mid-Holocene Wyoming housepit data document persistent land use over at least a 2000-year period at three spatial scales—the reuse of housepits, reuse of sites containing housepits, and use of different sites within the larger region. Slab-lined cylindrical basins at many sites in southwest Wyoming provide evidence for stable long-term land use during the middle Holocene. The focal point of this pattern was probably a predictable resource, possibly some type of root plant that would have been available during the dry middle Holocene.     

TREES AS TOOLS,TREES AS TEXT: STRUGGLES OVER RESOURCES IN ZAMBRANA-CHACUEY,DOMINICAN REPUBLIC

The people of the Rural Federation of Zambrana-Chacuey, in the Dominican Republic, are engaged in complex and multivalent struggles over resources in a forest and farm landscape subject to rapid land use change. Acacia mangium, a fast growing tree recently introduced as a timber cash crop, has become an object, a site and a tool of struggle in conflicts between local and state interests, and between women and men. Until recently, tree cutting has been illegal, so the government-approved acacia has reversed the role of trees from liabilities to assets in land tenure. The acacia has also begun to alter the pattern of land use, land cover, and the species composition of the region's forests, gardens, and fields, and could replace women's diverse gardens with single species blocks of timber.