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«Key words possession, land rights, remedies, food security, tenure security Summary Ubi remedium, ibi jus: rights result from remedies. Cadastral and ...»

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USING REMEDIES AND RELATIVITIES TO REGULARISE

ACCESS TO LAND

Jude Wallace and Ian Williamson

Key words possession, land rights, remedies, food security, tenure security

Summary

Ubi remedium, ibi jus: rights result from remedies. Cadastral and tenure systems

presuppose state based infrastructure or at least organisational capacity to give

formal written records sufficient meaning to influence behaviour. Much of the world lacks these advantages, but might have minimal state infrastructure. A minimalist capacity however can deliver security in land occupation by raising expectations of continuing protected use by providing local relief from ejectment or eviction. This builds expectations through solution of trouble cases or disputes.

Relativity of title and possessory claims developed in English property law offer some ideas for governments faced with relative chaos rather than relative quiet, where most participants are illiterate, agricultural practices are undergoing profound change, and the relationship between citizens and state is volatile. The experience allows a transition of anti-eviction ideas from the urban poor into the more complex rural landscapes.

INTRODUCTION

This paper aims to expand appreciation of the roles of remedies and relativities in land regularisation processes and to suggest tools for land regularisation capable of operating in periods of relative civil unrest, dislocation, post conflict and breakdown of the state.

As with other solutions, success depends on the capacity of a state or regional government to allow local decisions to operate and give sympathetic recognition to local activities. For this, no single or foolproof recipe exists. While an organised group is far more able to influence its own future than a disorganized one, its fate will depend on factors beyond its control, ultimately on the capacity of the nation at large.

The strategies in the paper aim to Build on the much more flexible approaches to land policy and project design Permit and organise relatively useful occupation and eventually titles, and Regularise land attachments through remedies based systems (not tenures and property rights based systems).

Identification of methods of betterment or scaling up to more formalized and familiar tenure arrangements is also an outcome.

Wallace and Williamson, Using remedies and relativities to regularize access to land

LAND POLICY AND PROJECT DESIGN

Advanced theories for pro-poor land delivery Approaches to formal tenure delivery are now well documented, and, increasingly, so are the less formal approaches driven by HABITAT and active NGOs. Enrichment of development policy and land policy debates and introduction of more flexible tenure delivery tools are to be applauded and form the background for even more adaptable systems of regularisation of access to land. For our purposes, historical development of pro-poor land delivery systems within organised land administration systems (LAS) coalesced in the UN/FIG Bathurst Declaration and Melbourne Conference in 1999 (UN FIG, 1999). The Conference built on previous work beginning in the 1980s and offered a strategic refocus of land policy, project design and administration. Changed directions in land policy include Recognition of the significance of communal and customary humankind to land relationship reflected in the World Bank policy (Deninger, 2003), European Union Land Policy Guidelines (2004) and in food security literature (MeizenDick and Di Gregorio, 2004).

• Use of extensive collaborative efforts to settle policy statements: World Bank Development Report, 2005 draft was available for comment before being settled (Payne 2004), and EU Land Policy Guidelines (2004) consultation process.

• The realization that titling works in countries with already existing, or capacity to invent, land markets, widespread acceptance of individualised humankind to land relationships and an expensive and reliable government infrastructure capable of delivering sustained support of land allocation by market methods. And the more significant consequential realization that individual titling is not inappropriate for people suffering dramatic strife and poverty (Holger Magel, 2001). The UN Millennium Project Interim Report for Taskforce 8 (UN, 2004, p 62) expands the critique of attempts to draw land into market based systems.

• Development of pro-poor strategies, including an inchoate tool kit for emergency securing land relationships. An expanded literature (Delville, 2002) has identified possible tools as alternative approaches in pro-poor strategies including food security delivery, sustainable livelihood approach, and social protection of agriculture, particularly as discussed in Natural Resource Perspective Papers of Overseas Development Institute, www.odi.org.uk.

• Recognition of the need to build a land regularisation system from people up not government down. The key factor of commitment of beneficiaries to the particular method of delivering land security is now not only on the table, but recognised as the starting point. Similarly, the cognitive capacity of participants is now recognised as an essential ingredient in modern land markets (Wallace and Williamson, 2004). The flowering of this idea is perhaps best seen in communityWallace and Williamson, Using remedies and relativities to regularize access to land driven development (CDD), now taking about US$ 2 billion aid in 2003, critically assessed by Platteau (2004).





• Recognition of the interconnectedness of land delivery and delivery of basic amenities, particularly water, sanitation and housing and particularly food security (Slaymaker and Newborn, 2004).

• Recognition broad scale differences between rural and urban needs, and the consequential and gradual abandonment of the assumption that “one size fits all” titling systems can assist.

• Recognition of the unique nature of local land holding and distribution patterns, and, at the highest level, the movement of the land policy debate away from recognition of local land rights and towards local management, as ideas of legal dualism permit recognition of national or regional laws and local customs (Delville, 2002, p 11).

The relationship between secure land and civil peace is now regarded as axiomatic: the place of regular access to land in delivering small business opportunities, food security and sustainable lives is also accepted. Land markets are no longer the only or even the principle focus of land projects for the poor. In many countries, opportunities to deliver security need to be constructed well before a land market appears. While securing land particularly by delivering sufficient regular and protected access to enable people to self manage their lives is the standard aim of many of pro-poor projects, the methods of delivering security now rely on how people attach themselves to land and how they manage these attachments, rather than formal land identification and titling (Fourie, 2001). The depth of the influence of these (and other) changes is seen dramatically in the title of Task Force 8 of the UN Millennium projects: What is now accepted as a Slum Dwellers Betterment Program would, in 1995, probably have been designed and described as a Land Title Delivery Program.

Disengagement from standard legal theory and property rights analysis The analysis here is independent of theories of law in which legal apparatus partakes of neat and tidy relativities between rights and obligations, or which see law as statements of a sovereign, (classic legal positivism of Jeremy Bentham and John Austin) or normative derivatives of a Grundnorm (Kelsen’s Pure Theory of Law.) The analytical versions of property theory of Honore, Hohfeld and Salmond, inter alia, and of land rights as bundles of opportunities are likewise unhelpful. We are technically outside the formal legal analysis and must build on the realpolitik of how people behave when unconstrained by organisational power. The effort to implement land policy by developing tools capable of working in much more unstructured situations is better assisted by critical legal theory and its antecedents in legal realism, especially from American and Scandinavian jurisprudence.

Some land policy analysts have favoured the conceptual capture of virtually all people to land relationships within tenure categories (McAuslan, 2002; Craig Johnson, 2004).

While this has advanced our capacity to use tenure theory to assist inclusive administration and law for informal land uses (especially the nomadic and indigenous Wallace and Williamson, Using remedies and relativities to regularize access to land uses, urban fringe dwellers and illegal squatters), the focus of land policy analysis capable of working in post-conflict or severely challenged administrations needs to be shifted away from tenures and towards managing people’s behaviour. This change of focus is apparent in land management literature which suggests analysis of the people to land relationship must move away from a model of possession/individual ownership to comprehend open-ended, locally defined, sociopolitical arrangements in which people (rather than norms) distribute land according to criteria of infinite variety, principally not through application of rules but through protracted, multi faceted, negotiation of selected opportunity sets: transmission, management, transfer, access for a purpose by a time of the surface, water, trees, land, inheritance, payment terms, and so on. These experiences are dynamic.

[I]n a field of interaction characterized by: (i) the procedural logic of the actors (individual and collective), (ii) the weakness of stable and respected legal frame and (iii) the complexity of land tenure and land use, we observe a double dynamic of innovation, through which actors try – as much as they can – to create new rules or institutional arrangements, and to stabilize certain procedures of negotiation or arbitration to warrant them, in order to be able to instil a minimal predictability in everyday life and to assure a minimal securing of land rights which have been acquired on a longer term, outside or parallel to the market or to the rules guaranteed by public authorities. Local agents of official public organizations (who act according to non-official norms but in the name of the legitimacy which is recognized to the state services), as well as private actors who have a local legitimacy, are involved in these configurations, eventually leading to a certain land securization combining the two types of legitimacy.

(Delville 2002, p 9 (emphasis added.) Later, when degrees of institutionalisation have been absorbed by the intended beneficiaries so that the levels of predictability work not only among participant groups but between their members and strangers, governments can identify clearer paths to market construction via tenures and property rights (though we should never underestimate the difficulties of delivering these in practice) (Deininger and Feder, 2002;

FAO and World Bank, 2001).

PROTECTION OF POSSESSION AND RELATIVITY OF TITLE

Introducing relativity of title The English were late arrivals at the cadastral door. In contrast to the comparatively systematic European cadastres, the English land administration system (LAS) had to rationalize reliance on general boundaries

• possession as a source of unassailable title and repairer of defective titles generated by deeds conveyancing, and

• a poorly designed deeds registration system of the late 19th century.

Wallace and Williamson, Using remedies and relativities to regularize access to land On the other hand, the English developed highly flexible property theory: they simultaneously recognised three different legitimate sources of property rights – legal, equitable and possessory ownership.

Formal rights depended on simultaneous running of two legal systems, common law using the Kings Courts and equity law using the courts of the Chancellor. Separate administration of the courts lasted till the late 19th century and both sets of rights survived amalgamation. Multiple valid ownerships left English property theory with a heritage of relative titles. While no one (other than lawyers) would recommend any other country go through this process, the English legacy demonstrates that a country can industrialise and modernize by institutionalizing multiple and complex property systems in which neither spatial boundaries or legal definitions are absolute, in contrast to the hard-wired approach of modern land administration. The tools the English used to manage the relativities provided sufficient transaction certainty while retaining and indeed encouraging flexibility. These tools included Prioritisation system: Priority rules to determine the order of interests Alert system: Patterns imposed on holders of interests to alert members of the group to their existence Transparency mechanisms: Patterns imposed on transactions to publicise or put interests within the realm of knowledge of strangers, eventually deeds and registration Discovery systems: Patterns for searching to discover interests, including looking at the land, and eventually title searching and register searching Removal or failure systems: Overreaching of titles and interests if they were concealed from a person dealing with the land.

While the practices related to these changed as land formalised, the tools remained universal until they were absorbed into the land registration system. At the initial stage the tools work within the group, but as formalities are introduced, the tools become useful in land allocation and regularisation processes between group members and strangers.

Possessory titles The English experience with possessory rights was sourced in pragmatism (Rose, 1985).

The relative title system worked because the English very early on refined methods for distributing possession in terms of present and future entitlements and for pacifying landgrabbing behaviour. The predominantly legal tools protecting possession from interference became so seamless and successful that the idea of a owner who could claim to be “seised” of the freehold estate and eventually “registered” owner was also accurate.



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