Indigenous Land Tenure Research Articles

Patterns of Indigenous Land Tenure and Utilization: Comparison of Customary Law in Balinese and Acehnese People

Aim: This study examines and analyzes changes in patterns of tenure and utilization of customary land in line with changes and developments in society in the era of globalization and tourism industry both in Bali and in Aceh. There were lands that were originally customary lands. Customary. Some have changed their function while others are still functioning as customary lands. The purpose of this study is to analyze the causes of changes in patterns of tenure and utilization of customary lands in the Indigenous Peoples of Bali and Aceh. Before the change in orientation related to the use of customary land which still adheres to the communal and religious functions of customary land, but along with economic development and in the era of globalization, the tenure and utilization of customary land has undergone changes that lead to economic orientation. A controversial issue in land is the concept of economic function and social function of land which is the basis for excessive land use. One of the sources of the problem is the construction of tourism facilities, resulting in the economic value of the land being so high. Methods: This study uses mixed methods as legal research, namely between normative and empirical legal research by using field data and secondary data. Results: Found that in anticipating changes in the pattern of tenure and utilization of customary lands in the indigenous peoples of Bali and Aceh, the government and stakeholders need to design and implement various policy models that can maintain the sustainability of culture, environment, and the interests of the indigenous peoples of Bali and Aceh. A policy model that favors indigenous peoples in providing protection for customary lands in Bali and in Aceh. Community involvement and facilitating institutional development within indigenous peoples in decision-making in the ownership and use of customary land. Conclusion: Indigenous Peoples in the era of globalization have an important role in anticipating changes in the pattern of tenure and utilization of customary land in order to maintain cultural values, identity, and community welfare. For this reason, steps need to be taken, including strengthening indigenous peoples through education and self-awareness, strengthening identity and culture, active involvement of indigenous peoples in decision making and the establishment of customary institutions in representing indigenous peoples related to their interests.

Legal Certainty of Land Tenure of Customary Rights by Indigenous Peoples Based on the Administration of Customary Land

The fact that customary land is not included as an object of land registration in Government Regulation No. 24/1997 causes indigenous peoples' control over customary land not to be based on rights that can be proven in writing. This causes the rights of indigenous peoples over their customary land to be marginalised. Following up on this, the Government enacted Minister of Agrarian Affairs Regulation No. 9/2016 on Procedures for Determining Communal Rights to Land of Customary Law Communities and Communities in Certain Areas, which was later revoked and replaced by Minister of Agrarian Affairs and Spatial Planning Regulation No. 18/2019 on Procedures for Administration of Customary Land of Customary Law Communities. Initially, indigenous peoples' land tenure was based on communal rights, and then it was changed to be based on the administration of customary land rights. Therefore, it is necessary to know the scope and purpose of customary land administration and the difference with land registration to understand how to guarantee the legal certainty of the control rights of indigenous peoples over their customary land. This research is normative juridical type by using a legislative approach and analytical approach. The research results show that customary land is not ordered for registration in Government Regulation No. 24 of 1997 concerning Land Registration. The administration of customary land is to record customary land in the land registry book so that it differs from land registration. Recording customary land in the land registry book can minimise overlapping disputes between indigenous peoples and private parties.

Indigenous communal land titling, the microfinance industry, and agrarian change in Ratanakiri Province, Northeastern Cambodia

ABSTRACT Indigenous Community Land Titles (ICLTs) in Cambodia promised to protect Indigenous land tenure and rotational swidden cultivation. However, the proliferation of microfinance institutions (MFIs) operating in Indigenous communities has threatened the process to establish ICLTs. Through a case study of an Indigenous Brao Tanap/Kreung community in Ratanakiri Province, I demonstrate how an ICLT process fell apart, primarily due to agrarian change, an increase in MFI loans, debt, and the desire for individual land certificates to collateralize MFI loans and sell land. This study is relevant for thinking about communal land titling's relationship with investment frontiers, uneven property formalization, and microfinance.

Protected area downgrading, downsizing, and degazettement in Cambodia: Enabling conditions and opportunities for intervention

AbstractProtected area (PA) sustainability is challenged worldwide by legal downgrading, downsizing, and degazettement (PADDD). National and local case studies of ecologically destructive PADDD events provide useful insights that may help respond to or prevent future events. Using information from legal documents and expert input, we identified 37 PADDD events that affected two adjacent PAs in northeastern Cambodia differently despite similar economic, environmental, and social conditions. Important differences in local context led to the eventual degazettement (100% loss) of one PA and downsizing (10.49% loss) of the other, the rest of which remains protected. This case study confirms the contribution of secure Indigenous land tenure to durable conservation governance and demonstrates the importance of investing in site‐level capacity to ensure that social and ecological conditions are monitored and proposed PADDD events can be successfully challenged.

Is the Formalization of Collective Tenure Rights Supporting Sustainable Indigenous Livelihoods? Insights from Comunidades Nativas in the Peruvian Amazon

After decades of activism by Indigenous Peoples and their allies, the need to formalize Indigenous land rights has received increasing global attention as a strategy to address climate change. Research has highlighted the compatibility between community forest management regimes and carbon sequestration, reiterating the essential role that securing Indigenous land tenure must play in forest-based climate change mitigation strategies. Based on research conducted in six Indigenous Comunidades Nativas with formal collective titles in Peruvian Amazonia, this article argues that titling alone is not enough to ensure that Indigenous Peoples are supported and enabled to access their recognized rights and play a central role in addressing the climate crisis. Indigenous Awajun and Ashaninka informants discussed challenges with accessing suitable livelihoods, excessive restrictions on timber harvest, land conflicts with smallholder migrant farmers and extractive concessions, unclear conflict resolution mechanisms, and policies that assume a communal governance model that differs from actual Indigenous leadership roles and institutions. All of these challenges put pressure on community members, creating incentives for unsustainable land and resource use, and undermining their abilities to protect their forests. Although Peru has included Comunidades Nativas and other co-managed areas in the mitigation actions toward its Nationally Determined Contribution to the Paris Agreement, it must re-examine its titling reforms, and the way that Comunidades’ land and resource access is regulated and weakened. This will allow for titling in practice to live up to its promise in theory as a strategy for promoting equity and mitigating climate change.

Impacts of Socio-political Organisational Structures Underpinning Indigenous Land Tenure Systems. Evidence from Ghana

To benefit from the underutilised potential of urban land resources, the introduction and improvement of land registration and cadastral systems have been advocated. However, evidence from empirical research in a number of developing economies including those in Sub-Saharan Africa (SSA) continues to show mixed or inconclusive outcomes from the implementation and operations of such systems. This paper argues that for introduced formal systems to succeed in providing the relevant outcomes it is essential to examine the socio-political organisational structures that underpin the prevailing customary land tenure practices. The paper focuses on the examination of the changing roles of authority structures and rules regarding control and access to land resources within the context of the customary land sector. Due to the varying influences of colonial and post-colonial policies and laws, a dualistic land tenure regime consisting of formal and customary structures and rules has emerged that mediates the land delivery processes to varying degree across countries in SSA. The findings of the current study highlight the importance of social organisation that gives form, meaning and relevance to a land tenure system. This suggests that there is the need to be cautious when embarking on land rights formalisation activities, since unintended outcomes can occur given the peculiarities of the social context of a jurisdiction. Particularly, any strategy for improving land registration systems for the provision of land information must take into consideration the nature of the land tenure systems, especially the customary structures and rules in a particular jurisdiction.

Of Widows, Furrows, and Seed: New Perspectives on Land and the Colonial Andean Commons

AbstractAlthough much has been written about Indigenous land tenure in the Americas, colonial Andeanists still debate whether pre-Hispanic agropastoral communities held all pasture and farmland in common and, therefore, whether novel forms of private or individual control over land and its products were introduced only in the aftermath of the Iberian conquest. The alleged particularities of the Andean case vis-à-vis other regions for which historians accept a plurality of pre-Hispanic and postconquest land regimes are based on a twin set of oppositions: individual versus collective, and ownership versus use. In this essay, I reassess communal land tenure patterns through the lens of Native colonial customs of commoning and uncommoning. I contend that individual and communal aspects of land within Native collectives were not opposite ends of a spectrum but instead coterminous ways of acting on—that is, exerting power and control over—the same resources.

The Concept of “Indigenous Land Tenure” Surfaces in Namibia: A Comparative Overview ‒ Agnes Kahimbi Kashela v Katima Mulilo Town Council (SA 15/2017) [2018] NASC 409 (16 November 2018)

The facts in this case, which fell to be decided by the Supreme Court of Namibia in November 2018, can be succinctly put: in 1985, Ms Kashela’s late father was allocated a piece of land as part of communal land by the Mafwe Traditional Authority (MTA) in the Caprivi region of the then-South West Africa (now Namibia). In 1985, the Caprivi region fell under the then-South West Africa Administration. Following the independence of Namibia on 21 March 1990, all communal lands became property of the state of Namibia by virtue of section 124 of the Constitution of Namibia Act 1 of 1990, read with Schedule 5 of the Constitution. Paragraph (3) of Schedule 5 of the Constitution states that the afore-mentioned communal lands became property of the state “subject to any existing right, charge, obligation or trust existing on or over such property”.

Transition to Renewable Energy and Indigenous People in Northern Australia: Enhancing or Inhibiting Capabilities?

ABSTRACT This paper uses the capability approach to analyse renewable energy developments on Aboriginal land in Australia’s Pilbara and Kimberley regions. These regions in the north-west of Australia have very high rates of Indigenous land tenure, and are attractive for both solar and wind power generation, particularly as developing technology makes it economically feasible to transport power over large distances. They are also remote from Australia’s electricity networks and often rely on expensive fossil fuels for electricity generation. Resident Aboriginal communities are among the most income-poor in Australia yet live in regions rich in renewable energy. Their ability to benefit from the opportunities offered by a transition to renewable sources of energy varies according to a number of factors. This paper examines the conditions under which Indigenous capabilities may be enhanced or inhibited, through examining three scales of energy generation: large-scale developments for export; remote utility-owned networks; and small-scale standalone off-grid applications. This paper will ask what capabilities can Indigenous people achieve from a just approach to a renewable energy transition in northern Australia, and what capabilities are required in order to gain maximum benefit from this current rapid energy transition?

Local Domain Models for Land Tenure Documentation and their Interpretation into the LADM

With an estimated 50% of global land held, used, or otherwise managed by communities, interfacing indigenous, customary, and informal land tenure systems with official land administration systems is critical to achieving universal land tenure security at a global scale. The complexity and organic nature of these tenure systems, however, makes their modelling and documentation within standard, generic land administration systems extremely difficult. This paper presents a model that loosely integrates a Local Domain Model (LDM) developed for a Maasai community in Kenya with the Land Administration Domain Model (LADM). The LDM is an ontological schema which captures local knowledge in a systematic, formal way that is directly or indirectly relevant to land administration. The integration with LADM is achieved through an ontological schema called the Adaptor Model. The concept of conditional RRR (Rights, Restrictions, Responsibilities) is introduced within the Adaptor Model to express the dynamics of social tenures. The three domain models LDM, LADM, Adaptor Model are used in the community-based land tenure recording tool SmartSkeMa. Four implementation examples demonstrate how the case-specific LDM extends the range of concepts representable in LADM in order to meet land administration needs from the local community’s perspective. A panel of land administration experts found the LDM model and the functionality of the Adaptor Model to be fit-for-purpose for the Kenyan case and to be addressing an important gap in the land administration tools landscape.

The implications of property as self-government

Recent scholarship has argued that many of the distinctive features of Indigenous land tenure in common law countries can be explained by a single basic idea: under these regimes, property in land serves the unusual function of delineating the territorial authority of self-governing political communities. Among the recurring features that can be explained by this self-government function are special restraints on the alienation of land interests, distinctive co-ownership rules favouring collective governance, special group governance powers linked to land ownership, the relaxation of the numerus clausus principle, and special immunities from outside interference. This article attempts to assess the implications of this approach for understanding Indigenous land tenure. The author argues that there are important theoretical implications to this approach, both for understanding the relationship between property and sovereignty as legal concepts and for understanding the values reflected in a property system. In this area of law, property and sovereignty appear to operate as conceptual poles along a spectrum rather than as essentially distinct concepts. Moreover, the comparison with specialized systems of Indigenous land tenure can tell us something about the values reflected in the common law property systems that apply outside of Indigenous communities. Among other things, this approach shows the ways in which common law property systems normally work to discourage cultural enclaves. In addition to its theoretical implications, this approach to understanding Indigenous land tenure also has potential implications for land tenure reform. The theory helps bring into focus the unique trade-offs associated with institutional design in this area of law. It also allows for the identification of anomalous doctrinal features that cannot be explained by this theory. The article concludes with some insights relevant to statutory reform and the judicial development of the common law of Aboriginal title.

Los ch’oles y la tierra: redefinición intergeneracional en tiempos de crisis y migración campesina

In this article we seek to describe and analyze the relationship between Ch’ol families and land, focusing on two distinct generational groups, parents and children. Our research method is qualitative, centered on the narratives of our participant subjects and literature review. The results obtained reveal that within a context of crisis and migration from the countryside, intra-familial changes are occurring and resignifying the relationship between Ch'ol people and land. For parents who remain in their home communities the land continues to be vital to their survival, while for young adult children who have integrated into urban contexts or are temporary agricultural migrants for the international market, the land becomes associated with evocation, memory, rest or leisure. Undoubtedly, this suggests a break in the working relationship with the land for each of these generations. This paper will contribute to discuss intersecting issues such as indigenous peoples, land tenure and migration.

Indigenous protected areas in Sea Country: Indigenous‐driven collaborative marine protected areas in Australia

Abstract In many parts of the world, policymakers, legislators, marine managers, and indigenous peoples have attempted to reconcile marine protected area (MPA) governance and management with indigenous peoples' ancient and ongoing traditional ownership of coastal and marine environments. This paper describes a novel approach in Australia to addressing this challenge through indigenous‐led planning and collaborative governance of holistic coastal land and sea indigenous protected areas (IPAs) based on the indigenous concept of “Country”—traditional land and sea estates and their associated cultural, environmental, and other values. To provide context to this approach, the paper explains the concept of “Sea Country” and provides an overview of the relationship between indigenous peoples and Australia's coastal and marine environments, the legal and policy recognition of Indigenous Sea Country rights and interests, and the engagement of indigenous people in the governance and management of government‐led, legislated MPAs in Australia. The paper then describes the evolution of IPAs from being specifically based on indigenous land tenure to being based more generally on Indigenous Country, across multiple tenures, including marine areas. In recent years, IPAs based on Country have enabled indigenous people to lead planning and governance of land and sea areas over which they have limited legal rights, including over existing national parks and marine parks. Using this approach, some IPAs complement existing protected area governance and management arrangements, whereas elsewhere Country‐based IPAs are adding significantly to Australia's MPA estate. The Dhimurru IPA in the Northern Territory and Girringun Region IPAs in Queensland are presented as examples of this Country‐based approach. This indigenous‐driven, collaborative, nonlegislative approach to dedicating, governing and managing coastal areas and MPAs may serve as a model in other nation states for indigenous people wishing to use a protected area governance framework to support the contemporary management of their traditional marine and coastal estates.

Vertebrate biodiversity on indigenous-managed lands in Australia, Brazil, and Canada equals that in protected areas

Declines in global biodiversity due to land conversion and habitat loss are driving a ‘Sixth Mass Extinction’ and many countries fall short of meeting even nominal targets for land protection. We explored how such shortfalls in Australia, Brazil and Canada might be addressed by enhancing partnerships between Indigenous communities and other government agencies that recognize and reward the existing contributions of Indigenous-managed lands to global biodiversity conservation, and their potential contribution to meeting international treaty targets. We found that Indigenous-managed lands were slightly more vertebrate species rich than existing protected areas in all three countries, and in Brazil and Canada, that they supported more threatened vertebrate species than existing protected areas or randomly selected non-protected areas. Our results suggest that overall, Indigenous-managed lands and existing protected areas host similar levels of vertebrate biodiversity in Brazil, Canada, and Australia. Partnerships with Indigenous communities that seek to maintain or enhance Indigenous land tenure practices on Indigenous-managed lands may therefore have some potential to ameliorate national and global shortfalls in land protection for biodiversity conservation using a mix of conventional protected areas and Indigenous-managed lands.

Política indigenista y política indígena pilagá en materia de tenencia de la tierra

Como corolario del proceso de conquista y colonización de la región del Gran Chaco argentino, acaecida desde fines del siglo XIX, los indígenas han sufrido un proceso de arrinconamiento territorial. En este sentido, uno de los derechos, reclamos y reconocimientos más relevantes en materia de derechos indígenas a nivel internacional, nacional y provincial de Formosa giró en torno a la tenencia de la tierra. En el presente artículo se analizará cómo, de la mano de los reconocimientos normativos se accionaron dos políticas que pueden analizarse en términos de, por un lado la política indigenista de tenencia de la tierra y de una serie de procedimientos burocráticos para operacionalizar dichas políticas en sintonía con la normativa vigente. Por el otro, y como parte de las políticas indígenas de los pilagá, se construyó en torno al territorio un discurso legitimador de dicha tenencia en tanto guardianes de la naturaleza.

Property Law and Collective Self-Government

The property interests of Indigenous communities exhibit distinctive patterns that recur across different countries and in relation to widely differing Indigenous cultures, including in the United States, Canada, Australia, and New Zealand. The principal recurring patterns include alienation restraints, group governance powers as an incident of land tenure, distinctive rules of co-ownership favouring collective governance, and unique collective and individual estates in land. This paper argues that these distinctive doctrinal features can be explained in large part by the functional challenges associated with using property interests in land as a basis for collective self-government. One of the central challenges relates to differences in the optimal scale of various uses that may be pursued on a land base. While uses like housing or farming might best be pursued using individual land titles over relatively small parcels, the collective interest of a group in self-government could require an extensive, contiguous land base occupied by a critical mass of members. The use of land as a locus for a distinctive, self-governing culture is thus an activity that is optimally pursued on a larger scale than would be optimal for most other uses which may be pursued simultaneously. The tension this creates, emerging out of the attempt to manage what the author calls a “cultural semicommons,” is mediated by a distinctive set of institutions. Understanding this functional basis for Indigenous land tenure in common law countries is an important starting point in considering proposals for reform.

Indigenous Land Tenure System as a Hindrance to the Development of Pandam Wildlife Park

Indigenous Land Tenure System as a Hindrance to the Development of Pandam Wildlife Park

The hidden layer of indigenous land tenure: informal forest ownership and its implications for forest use and conservation in Panama's largest collective territory

A growing body of evidence points to the effectiveness of indigenous territories in reducing tropical deforestation, and global development goals call for increased legal recognition of indigenous land tenure. Yet indigenous land tenure systems are typically complex and multi-layered, and as such remain poorly understood in terms of the pathways through which embedded layers, rules, and norms influence the use and maintenance of forests. This paper illustrates one example of this multi-layered tenure in the case of indigenous communities in the Comarca Ngabe-Bugle, a semi-autonomous, shared territory in western Panama. While the comarca holds one formal collective title, research across five communities reveals an informal system of forest ownership that influences how forest resources are managed, and that has implications for longer-term forest conservation efforts. The findings show that indigenous households use and manage a wide range of plant species, but that access to forest resources is uneven, and pressure on existing forests continues to increase, even from within the comarca through population growth. Mature forest surrounding the communities is held in de facto ownership by individuals and families who restrict access to resources, and this informal tenure system appears to be slowing deforestation, at least over the short-term. Many of these forest stewards wish to protect at least part of the forest over the long-term, while several forest parcels are being kept in reserve for the next generation of farmers. This hidden form of forest tenure, embedded within the communally-held lands of the comarca, highlights an important research need for those looking to improve the effectiveness of forest conservation programs in reducing deforestation and improving indigenous livelihoods.

The hidden layer of indigenous land tenure: informal forest ownership and its implications for forest use and conservation in Panama's largest collective territory

The hidden layer of indigenous land tenure: informal forest ownership and its implications for forest use and conservation in Panama's largest collective territory

Governing the Cultural Semicommons: How Specialized Property Regimes Facilitate Indigenous Collective Autonomy

The property interests of Indigenous communities exhibit distinctive patterns that recur across different countries and in relation to widely differing Indigenous cultures, including in the United States, Canada, Australia, and New Zealand. The principal recurring patterns include: alienation restraints, group governance powers as an incident of land tenure, distinctive rules of co-ownership favouring collective governance, and unique collective and individual estates in land. This paper argues that these distinctive doctrinal features can be explained in part by the functional challenges associated with using property interests in land as a basis for collective self-government. One of the central challenges relates to differences in the optimal scale of various uses that may be pursued on a land base. While uses like housing or farming might best be pursued using individual land titles over relatively small parcels, the collective interest of a group in self-government could require an extensive, contiguous land base occupied by a critical mass of members. The use of land as a locus for a distinctive, self-governing culture is thus an activity that is optimally pursued on a larger scale than would be optimal for most other uses which may be pursued simultaneously. The tension this creates, emerging out of the attempt to manage what the author calls a “cultural semicommons”, is mediated by a distinctive set of institutions. Understanding this functional basis for Indigenous land tenure in common law countries is an important starting point in considering proposals for reform.