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Registering and Administering Customary Land Rights : PFRs in West Africa. Conference « Land Policies & Legal Empowerment of the Poor » The World Bank November 2 - 3, 2006. Outline. Intro. Issues of Legal Empowerment

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Registering and Administering Customary Land Rights : PFRs in West Africa


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registering and administering customary land rights pfrs in west africa

Registering and Administering Customary Land Rights:PFRs in West Africa

Conference « Land Policies & Legal Empowerment of the Poor »

The World BankNovember 2 - 3, 2006

Ph.Lavigne Delville

outline
Outline
  • Intro. Issues of Legal Empowerment
  • I. Identify and Formalise Local Rights : « Plans Fonciers Ruraux »/Rural Land Maps
  • II. Formalise “Customary Ownership” or Bundles of Rights?
      • Land Mastership and “Bundles of Rights”: A Conceptual Framework
      • Methodological Implications for Surveys
      • Implications for Land Administration

Ph.Lavigne Delville

intro issues of legal empowerment
Intro : Issues of Legal Empowerment
  • In West Africa, most rural people’s rights to land and resources are “illegal” or at the least informal/extra-legal
  • Complexity and cost of legal procedures : the “glass bell jar” (De Soto)
  • -> Issues of productivity, social peace, poverty allevation and citizenship

Ph.Lavigne Delville

slide4

Intro. Issues of legal empowerment

  • When does formalisation of rights lead to empowerment of the Poor ?
      • -> a debate on the impact of formalisation on productivity
      • -> a debate on the impact of land markets on the poor (distress sales, etc.)
      • -> risks of exclusion during adjudication processes
    • > a need to better assess the conditions and modalities of legal empowerment ?

Ph.Lavigne Delville

slide5

Intro. Issues of legal empowerment

  • Besides that, two underestimated issues :
    • the nature of the rights to be recognised/formalised
        • is the implicit model one of private ownership, or does it really build on local rights and rules, which are more diverse?
    • the institutional framework able to administrate these rights
        • reliable, transparent, cost-effective,
        • and coherent with the nature of rights

Ph.Lavigne Delville

i identify and formalise local land rights plans fonciers ruraux pfr rural land maps

I. Identify and Formalise Local Land Rights : « Plans Fonciers Ruraux » (PFR) (Rural Land Maps)

Ph.Lavigne Delville

1 in french speaking west africa a legal dualism
1. In French Speaking West Africa : a legal dualism
  • « Immatriculation » and State Domain vs local customary rights : a legal dualism
  • Unregulated legal dualism often leads to unsecurity, conflicts and land grabbing
  • Contexts are highly diverse, and evolutive

Ph.Lavigne Delville

2 plans fonciers ruraux pfr rural land maps
2. Plans Fonciers Ruraux (PFR)/ Rural Land Maps
  • Identify and map land rights as they are lived by people
      • Pilot projects since 1990 in Ivory Coast, and then Benin, Burkina Faso, Guinea (French Agency for Development and/or WB funding)
  • A procedure to identify, map and record consensual local rights over land
          • individual or collective rights
          • systematic contradictory survey at plot level,
          • plot demarcation
          • publicity, conflict resolution and adjudication
          • “land certificates” as a new land title

Ph.Lavigne Delville

2 rural land tenure maps
2.Rural Land Tenure Maps
  • Obvious Interests
      • a pragmatic approach, based on what exists
      • ends the dead end of classic cadaster and titles and gives legal status to all rights
      • a response to land tenure insecurity, at plot level
      • an operational and relatively inexpensive methodology (cadastral survey: +/- USD 7-10 per ha)
      • (at least partly) decentralised management of land tenure information
      • can be used in different policy frameworks

Ph.Lavigne Delville

1 pfrs an hybrid approach
1. PFRs : An Hybrid Approach
  • Two conceptions of land tenure securisation
      • titles and legal acknowledgement of ownership rights, promoting investment and productivity
      • legitimacy of local/customary rights and the effectiveness of local land management institutions

Ph.Lavigne Delville

slide13

1. PFRs : An Hybrid Approach

  • PFRs, an hybrid approach, originating from a “topographic” conception of rights
  • Evaluations and studies raise the issue of rights
      • a structural ambiguity on the nature of rights
      • distorsions in the process
      • may lead to exclusion and conflicts
      • problems with natural resources and commons

Ph.Lavigne Delville

2 a conceptual framework for customary land rights
2. A Conceptual Framework for Customary Land Rights
  • Local/ customary land rights in West African savannas
      • (collective, family, village, etc.) holdings/estates and individual properties
      • bundles of rights
        • rights as “socially authorised actions”
        • different “bundles of rights” held by individuals or groups
  • What kind of rights are registered ? Which are forgotten/transformed ?

Ph.Lavigne Delville

slide15

“Customary Landowner”

Usus/Fructus (sometimes Abusus)

Ph.Lavigne Delville

transfer of land use rights

Users

family rights holders

married women

installed migrants

renters, borrowers

temporary land use rights

Land Chiefs : ritual powers and arbitration

Lineage Segment/Elder

Transfer Rights

Transmission Rights

Inclusion/Exclusion Rights

Internal Management Rights

AdministrationRights

Chief of Household lineage right holder

Settled foreigner

Investments Rights

Cropping Rights

Withdrawal Rights

Operational Rights

Derived rights holder(various statuses)

Youths

Married women

Other right holders for renewable resources

slide16

3. Methodological Implications for Surveys

  • Thinking in terms of (individual or even collective) “ownership” leads to selecting one level of rights holders and increasing its rights, to the detriment of other rights holders
      • at the risk of increasing exclusion and precariousness instead of security
      • and causing conflicts instead of resolving them
  • One must therefore
      • take the nature of local rights seriously
      • simplify, in a rational way, the complexity of rights enough so that information can be processed, but without altering ittoo much

Ph.Lavigne Delville

slide17

3. Methodological Implications for Law and Surveys

  • > issues about survey tools and methodologies
      • an applied ethnography of land rights, with skilled field surveyors and anthropologists working together
      • pay attention to identification, transcription, validation processes and to the content of registers and certificates

Ph.Lavigne Delville

slide18

4. Implications for Land Administration

  • How to design the « certificate » in the law, so that it can work for different kind of rights?
  • How to manage land certificates when bundles of rights are recognised?
      • In terms of « customary ownership », the certificate’s holder may legally act as a full owner, without reference to local norms and other right holders. He may sell or ask for private immatriculation in his own name.
      • Contradictions between the nature of recorded rights and the legal rights given by the law. New risks of opportunist behaviour and exclusion.

Ph.Lavigne Delville

slide19

4. Implications for Land Administration

  • In terms of « bundles of rights », the certificate’s holder can sell or ask for immatriculation only on private plots, or with theconsent of the other rights holders on family estates
  • The legal procedures for land rights administration have to be coherent with the nature of the rights recorded
  • People wanting to sale, immatriculate, or pledge a plot on a family estate must first negociate a formal agreement from the other family right holders

Ph.Lavigne Delville

conclusions
Conclusions
  • Legal empowerment of the Poor needs to take seriously the ambition of recording existing rights as they are
      • A necessity where poor people rights are complex, to avoid exclusion
      • A necessity to deal with rights over natural resources

Ph.Lavigne Delville

slide21
Articulating local and public regulation
      • local land rights are dynamic and individualisation and commoditisation are historical processes
      • such a broad framework
        • can work for remote areas with few economic stakes and for highly individualised agriculture with dynamic land markets
        • and allows for evolutions and change
    • > the first stake of contemporary land policies is to buildthe bridge between legacy, legitimacy and practices

Ph.Lavigne Delville

slide22
A practical approach
      • Applied ethnography to build methodologies
      • A learning process approach
        • for surveys
        • for land management
  • Also a political choice, regarding the definition of property rights and relations between State and citizens
      • Policy makers and surveyors are often not aware of these issues
      • A need for public debate on the policy choice
      • A need for coherence between objectives, tools and procedures

Ph.Lavigne Delville