Traditional Land Rights Research Articles

Protection of the Rights of Traditional Communities in the Ownership of Traditional Land Rights for Public Interests (Study of the Drafting of Traditional Legal Community Legislation)

Protection of the Rights of Traditional Communities in the Ownership of Traditional Land Rights for Public Interests (Study of the Drafting of Traditional Legal Community Legislation)

Bottom-up and bottom-top institutional changes in environmental management in the Niger Delta

Research into how changes occur in repeated human practices, or ‘institutions’, is expanding rapidly. Yet there is still only limited understanding of how institutional change involves social networks. To address this gap this paper proposes a new Network Communication Framework, which predicts how ‘bottom-up’ and ‘bottom-top’ institutional changes can arise through interplays between state and civil society networks. While ‘top-down’ institutional change requires perfect compliance with state policies by a civil society network in a ‘strong state’, bottom-up institutional change can occur in a ‘weak state’ when a civil society network has high autonomy and adapts to a vacuum in state institutions at local scale by devising new informal institutions itself. Bottom-top institutional change, proposed here for the first time, can occur when a state network has a moderate ability to enforce its formal institutions throughout a country and a civil society network has moderate autonomy, and members of the two networks jointly negotiate new hybrid informal institutions. This paper reports evidence from the Niger Delta region of Nigeria for: (a) a bottom-up change by a clan network in its traditional land rights institutions which enabled it to sell communal land to an oil company; and (b) a bottom-top change in timber harvesting institutions, negotiated between members of a logging network and an informal government network (comprising staff of the state forestry department), which allowed loggers to extract more timber than permitted under formal state institutions. The example of bottom-up institutional change reported here leads to higher environmental impacts than under the original informal traditional institutions, showing that autonomous bottom-up change is not always as environmentally benevolent as previously assumed, though environmental impacts will vary according to circumstances. The example of bottom-top institutional change has higher environmental impacts than under perfectly implemented formal state institutions. This is likely to be typical of bottom-top changes generally, and shows that it is difficult to treat overlogging as ‘illegal logging’ if state personnel are complicit in its operation.

PERLINDUNGAN HUKUM TERHADAP PEMEGANG TANAH HAK ADAT

As Lahat Regency's Indigenous Peoples, the Dalian have inherited land from their ancestors. The land belongs to the late Maijah binti Jamun, and according to the customary certificate with the number 038/P/TS/2018/1994, she had the status of having customary land rights. By entering into an agreement and a contract with the late Maijah Binti Jamun, Arta Prigel has control over the customary land that is owned by Dalian as the plaintiff and the land certificate has been issued as a Cultivation Right. However, the agreement was not paid for until a lawsuit was filed by Dalian as well as one of the heirs. The issue is whether DALIAN as successors' possession of land with customary ownership rights complies with national land law according to certificate of traditional land rights 038/P/TS/1994. Based on SUPREME COURT DECISION 3173 K/Pdt/2019 by PT. Artha Prigel, how is the legal protection of owners of traditional property rights in connection to land tenure. This style of legal study is descriptive normative. Secondary data is what was used.

Protecting Indigenous Collective Land Property in Indonesia under International Human Rights Norms

This essay examines the applicability of international human rights instruments as the legal basis to protect indigenous rights to land, territories, and natural resources to non-ratification countries of the Convention on indigenous peoples’ rights, especially to the Indonesian context. In the last few decades, the United Nations has developed and recognized the rights of indigenous peoples, including rights to their ancestral lands, territories, and resources. These rights have been stipulated in several instruments, such as the ILO Conventions No.169 and UNDRIP. Nevertheless, most Asian and African countries have not ratified the Treaty, including Indonesia. Consequently, the rights failed to be adopted into national policies, which the ratification is a pre-condition before came into force through the national regulations. Indonesia also doubted the exclusive rights of land, territories, and resources traditionally owned by indigenous peoples. Legally, lands, territories, and resources are controlled by the States, as mentioned in Article 33 of the 1945 Constitutional law. Economically, Indonesia relies on land, territories, and natural resources to boost its national revenues. To achieve this aim, the expropriation of indigenous land and territories often occurs through land concession policy for private or state-owned companies. As a result, land tenure and social conflict were common phenomena from the New Order Regime until the current day. This conflict spreads across the country from the west part (Sumatra) to the east of Indonesia (Papua). Therefore, author argues that applying general international human rights instruments will be an alternative approach in protecting the fundamental rights related to their traditional land rights in the Indonesian context.

Mining and Communities in the Arctic: Lessons from Baker Lake, Canada

In this paper, we explore mining in Arctic Canada from the perspective of the people on the communities there, in particular the Inuit, the pre-colonial people of the area. To do so, we first provide a brief overview of the history of mining in Canada including recent incursions into Nunavut. Then, we examine the place of aboriginal people including the Inuit in the modern global economy. We focus on their desire to participate in this economy on their own terms, meaning the respect of traditional land rights, and the respect and incorporation of traditional environmental knowledge, culture, values and practices in economic activities. Following this, we examine aboriginal land rights and settlement in Northern Canada. After this is done, we go on to consider the particular case of Baker Lake in Nunavut. Finally, we draw some conclusions from the case that can be generalised to other communities in the Arctic.

Looking Beyond ‘Land’ in ‘Land Grabbing’: Water, Fiscal Resources and Police Power

A close analysis to the content of the states-investors land agreements reveals that public-private contracts are about something more than the disappearance of common and traditional land rights and the creation of new private rights. Land concessions are about much more than land. They are about water, a crucial ‘asset’ when it comes to large-scale agricultural production. They are, interestingly but not surprisingly, about taxes and the privatization of public revenues. They are, moreover, about the securitization and the control of the investment, about the power of policing and controlling the area that has been identified and enclosed. Overall, land concessions are about something more than enclosing land and transforming it into a factor of global production . They are tools to implement the neoliberal project, building blocks of an ideological, legal and economic model that transforms the way in which resources are allocated and managed, and funnels common value into private hands.To provide material evidence of the role of concession agreements, this paper relies on a selection of some of the 193 land concessions that are publicly available thanks to the Open Land Contracts database, a collection of state-investors agreements realized by the Columbia Centre for Sustainable Investments which represents a fraction of the totality of land deals concluded in the last decade. The juxtaposition of concessions offers the opportunity to discuss diversity and similarities and engage with the legal, political, economic and social reasons behind each combination of rights and obligations. Lawyers, development scholars and policy makers should thus pay attention to the content and implications of the concessions and engage with their tensions and background conditions.

Risks to the sanctity of community lands in Kenya. A critical assessment of new legislation with reference to forestlands

Important new legislation protects community lands in Kenya. Delivery is principally dependent upon each community securing formal collective entitlement to its land. Many factors may impede this. While some are experienced in all titling programmes, others are specific to Kenya, exacerbated by low confidence in the readiness of the state to embrace new approaches to property after a century of subordination of traditional land rights. Forestlands, customarily shared by members of a community, are a likely early casualty, needlessly retained by the State. This paper focuses upon loopholes in new laws that could exclude forested lands from collective entitlement, impairing constitutional advances in the process. Ambiguity within the Constitution itself plays a role. Therefore, while lesser impediments to land justice may be remedied through clarifying regulations and parliamentary removal of offending clauses, judicial interpretation of constitutional intentions is required. This is better sought sooner than later to limit wrongful land takings and evictions of vulnerable forest communities, active until the present.

Participatory mapping to identify indigenous community use zones: Implications for conservation planning in southern Suriname

Large-scale development projects often overlap forest areas that support the livelihoods of indigenous peoples, threatening in situ conservation strategies for the protection of biological and cultural diversity. To address this problem, there is a need to integrate spatially-explicit information on ecosystem services into conservation planning. We present an approach for identifying conservation areas necessary to safeguard the provision of important ecosystem services for indigenous communities. “Community use zones” (CUZs) were generated using participatory mapping methods that identify place values indicating significant hotspots for ecosystem services. Using principles from landscape ecology, these areas are buffered to provide connectivity and to delineate ecosystem service delivery areas. We demonstrate the use of CUZs for five villages in southern Suriname (n=191 participants) to inform the South Suriname Conservation Corridor project. The mapped data reveal overlapping hotspots for different ecosystem services depicting multifunctional landscapes that provide an empirical foundation for delineating CUZs. In the absence of legal and traditional land rights for indigenous people, CUZs based on the provision of ecosystem services provide a defensible, spatially explicit approach for integrating indigenous needs into regional conservation plans in southern Suriname. We discuss the utility of CUZ maps for promoting land tenure and security and as a basis for collaborative governance in indigenous and community-conserved areas (ICCAs).

Pastoral Mobility in a Spatially Constrained Environment: A Case of Butana locality in Northern Gedarif State, Sudan

This paper is designed to explain the main constraints that hinder pastoral mobility in arid and semi-arid lands. It aims to investigate the main factors behind the decline of herd mobility. It also determines the implications of mobility constraints on pastoral farming. The data discussed in this paper were based on fieldwork, which involved the use of questionnaires to elicit information from 300 respondents in 19 villages located at Butana, Northern Gedarif State, Sudan. The paper shows that the top down approach in policy formulation has failed to address the needs of pastoral communities. Under the pretext of land reforms, several pieces of legislation have been introduced to privatize the communal land tenure system. These laws, particularly the Unregistered Land Act 1970, have impacted negatively on pastoral mobility. This Act has led to rapid unplanned expansion of farming agriculture at the expense of pastoral land and has become a point of departure in land grabbing. Conversion of the communal land tenure system into private property has prevented pastoralists from accessing their traditional land rights and hence disrupted pastoral livelihoods. It is recommended that the bottom up approach should replace the top down approach, and that Melville Herskovits’ theory of the “East African Cattle Complex” and Hardin's theory of “the Original Research Article Elhadary; JSRR, 5(4): 307-319, 2015; Article no.JSRR.2015.099 308 tragedy of the commons; which have shaped planning in pastoral areas for several decades, need to be revised.

Mining and communities in the Arctic: lessons from Baker Lake, Canada

In this paper, we explore mining in Arctic Canada from the perspective of the people on the communities there, in particular the Inuit, the pre-colonial people of the area. To do so, we first provide a brief overview of the history of mining in Canada including recent incursions into Nunavut. Then, we examine the place of aboriginal people including the Inuit in the modern global economy. We focus on their desire to participate in this economy on their own terms, meaning the respect of traditional land rights, and the respect and incorporation of traditional environmental knowledge, culture, values and practices in economic activities. Following this, we examine aboriginal land rights and settlement in Northern Canada. After this is done, we go on to consider the particular case of Baker Lake in Nunavut. Finally, we draw some conclusions from the case that can be generalised to other communities in the Arctic.

Kekuasaan Politik dan Adat Para Mosalaki di Desa Nggela dan Tenda, Kabupaten Ende, Flores

This article discusses the relevance of applying the concepts of source of origin and system of precedence, that provide legitimacy for the Mosalaki of Lio in their construction and production as well as reproduction of power in everyday life, especially in their traditional political system. The data analyzed in this article is the result of fieldwork undertaken in the villages of Nggela and Tenda, District of Wolojita, the Regency of Ende Lio, Flores, with qualitative methods, specifically through the techniques of in-depth interviews and participant observation. The Mosalakis, as a matter of a fact, dominate the traditional political system as rulers of adat and adat land. Their practices of power are manifested mainly in ritual activities and the management of traditional land rights. The legitimated rights are transmitted through patrilineal descent, and is based upon source of origin and system of precedence, that are embeded in Lio culture. Key-words: source of origin, system of precedence, traditional political system, reproduction of power

Freeport-McMoRan Copper & Gold, Inc.: An Innovative Voluntary Code of Conduct to Protect Human Rights, Create Employment Opportunities, and Economic Development of the Indigenous People

Environmental degradation and extractive industry are inextricably linked, and the industry’s adverse impact on air, water, and ground resources has been exacerbated with increased demand for raw materials and their location in some of the more environmentally fragile areas of the world. Historically, companies have managed to control calls for regulation and improved, i.e., more expensive, mining technologies by (a) their importance in economic growth and job creation or (b) through adroit use of their economic power and bargaining leverage against weak national governments, regional and international regulatory bodies. More recently, the industry has had to contend with another set of challenges that involved treatment of indigenous people and their traditional land rights, fair treatment of workers, human rights abuses, and bribery and corruption involving local officials and political leaders. These challenges currently fall outside the traditional areas of regulation and control. Nevertheless, they pose serious threat to the industry’s business practices because of their global scope, threat to company’s reputation, and long-term risks of political instability leading to increasing cost of capital. Industry has responded to these challenges by creating voluntary codes of conduct that would signify their intent to comply with higher standards of conduct, and assuage public opinion that no further action is called for. These codes, however, lack any monitoring mechanism and reporting integrity to assure the public that the industry members are indeed meeting their commitments. Consequently, pressure on the industry continues unabated and with ever increasing calls for mandatory regulation and oversight. This article examines the activities of one mining company, Freeport-McMoRan Copper & Gold, Inc., which has taken a radically different approach in responding to these challenges at its mining operations in West Papua, Indonesia. While cooperating with industry-based efforts of voluntary codes of conduct, Freeport also initiated a radically different response through its own voluntary code that would directly focus on issues of human rights, treatment of indigenous people on whose traditional land its mine was located; economic development and job creation and, improvements in health, education, and housing facilities, to name a few. Additionally, the company earmarked large sums of money and involved representatives of the indigenous people in their management and disbursement. The company took an even more radical action when it committed itself to independent external audits of the company’s compliance with the code, and that these findings and company’s responses would be made public without prior censorship by the company. We analyze the nature of corporate culture, vision and risk-taking propensities of its management that would impel the company to embark on a high risk strategy whose outcomes could not be predicted with any degree of certainty before the fact. The parent company also had to confront discontent among the management ranks at the mine site because of cultural differences and management styles of expatriates and local (Indonesian) managers. Finally, we discuss in some detail the extensive and intensive character of a two phase audit conducted by the outside monitors, their findings, and the process by which they were implemented and reported to general public. We also evaluate the strengths and challenges posed by such audits, their importance to the company’s future, and how such projects might be undertaken by other companies.

Maps and Counter-Maps: Globalised Imaginings and Local Realities of Sarawak's Plantation Agriculture

This article examines differences and overlaps in imagined spatial ideas of rural Sarawak which underpin official and community mapping. It looks at the ways in which ‘counter-mapping’ is used by indigenous communities to support their claims to traditional land rights when these are contested by other parties.

"This is Ghanaian territory!": Land conflicts on a West African border

Most African borders have remained permeable, not least because the colonial and postcolonial states have lacked the necessary resources to enforce them more rigidly, "top‐down." In this article, I analyze the ways in which an African border has been dealt with "from below," partly ignored or subverted and partly appropriated. The border between Ghana and Burkina Faso, drawn up in 1898, was soon adopted by the borderlanders as a political resource, capable of shielding them from colonial tax and forced‐labor requirements. Local networks of kinship and strategies of land use, on the other hand, usually ignored the border. Although the border cut through many earth‐shrine areas, the indigenous institution on which land rights are traditionally based in the region, the shrine custodians continued to exercise their ritual control on both sides of the border. In recent conflicts over land, however, lineal boundaries separating sovereign national territories have been used to usurp traditional land rights. I discuss one such conflict, in which rights to use a fishpond are contested, to explore local perceptions of space and boundaries and how these change in relation to international borders, [international borders, concepts of space, earth shrines, land rights, authochthony, West Africa, Dagara, Sisala]

Rethinking Land Rights: Divesting Ownership of Its Dominative Features

Although private property can be construed as providing individuals and their communities with essential personal and social benefits along with economic opportunities, traditional land rights retain a strong dominative character. Historically, they have been used as a medium for subjugating women and exploiting wildlife. While there has been some limited progress in protecting nature, including environmental statutes such as the Endangered Species Act, these measures do not go far enough. Rather than eliminate land-ownership, as some suggest, I propose reformulating ownership in a way that expunges some of its noxious tendencies by devising an ecofeminist understanding of land rights within a legal framework using the doctrine of public trust. While originally applied to water and air, there have been recent court cases in the United States that have broadened the trust to include public parks, coastlines, and private property. This article goes a step further to redefine the meaning of the trust by addressing the relationship between land, owners, and the public; the redefinition of property rights; and how these changes can be incorporated into public policy and political practice.

When do Agricultural Exports Help the Rural Poor? A Political-economy Approach

Many economists have argued that agricultural exports should be one of the best ways to reduce rural poverty in developing countries, through the creation of productive employment in the rural areas. Non-economists have tended to be sceptical, often seeing such exports as competitive with food crops and thus potentially threatening to an adequate supply of food. The historical record includes many cases in which the prospect of profitable agricultural exports prompted the rich/powerful to appropriate land formerly occupied by lower income agricultural workers, often squatters or people with traditional land rights. That record, as currently understood, leaves it unclear whether such exports have more frequently brought benefits to the rural poor or hurt them. An adequate model of the poverty effects of agricultural exports must thus take account of how control of land (and labour as well) may be shifted among groups without compensation as it becomes more valuable. Two major issues/questions are of current interest. First, have the unjust mechanisms whereby the rich wrested valuable resources from the poor in the past become less common? Second, is there evidence that the sort of labour-intensive agricultural exports most likely to benefit the poor are growing fast enough to suggest an important poverty effect at present and in the future? More in-depth research is needed to clarify both points. For the present, it appears unlikely that agricultural exports will be a major source of poverty reduction for the rural poor in the Third World taken as a whole.

Renewing country: Aboriginal people and their lands in rangeland environments

After long campaigns demanding recognition of traditional land rights, Aboriginal people have regained control over some properties, but in circumstances that are greatly changed from pre-invasion conditions. Much of this newly acquired land is in rangeland areas, where the environmental degradation arising from pastoralism has lowered land values, thereby making land available for Aboriginal acquisition but at the same time making it less commercially viable without major capital investment, with the attendant possibility of further damage. In this context there can be no simple return to 'tradition', nor are there easy blueprints to follow to redevelop a viable approach to land management. Aborigines are faced with the question of choosing practical management decisions that will meet their cultural and ecological, as well as economic, needs. They are seeking also to take an active role in the broader management of the rangelands for which they feel responsibilities, beyond the fencelines of any one property. They are finding, however, that environmental decision-making is still embedded in the long colonial history of rural conflict over land and resources. While there are some approaches in common with non-Aboriginal neighbours and despite severe pressures and constraints, Aboriginal land managers are developing a distinctive pattern of decision-making which privileges social and cultural uses, together with an interest in implementing practical conservation measures for a wide variety of native biota. But the expression of Aboriginal interests in environmental decision-making continues to be obstructed. The long history of rural racial conflict over land and resources has left a legacy of severe structural disadvantage and of persistent, hostile alliances which act to marginalise Aboriginal voices despite the appearance of increasing inclusivity. The paper argues that these obstructions to an active Aboriginal role in environmental decision-making need to be recognised and addressed if Aboriginal interests and knowledge are to contribute justly and effectively to rangeland sustainability.

Growing security: land rights and agricultural development in northern Senegal

Are “traditional” or “indigenous” land rights an obstacle to development? The question seems simple enough. And the liberal economic perspective currently being advanced by free market advocates such as the Bretton Woods institutions answers: yes, to the extent that those traditional relations hinder the free exchange of land, they do slow development. But of course the question is more complex and requires answers to a number of subsidiary and ancillary questions. Some are definitional and empirical: what are these “traditional land rights”? To what extent do they, rather than codified law or administrative practices, define the relationships of social actors and groups to land and to each other through land? Other questions are more hypothetical: what are the alternatives to the current regime, what costs would installing them incur, and what would be their costs and benefits, once in place? Finally, there are ancillary, but still central questions: what other factors, such as ecological conditions, state policies and non-state institutions, may account for development or the lack thereof, apart from land tenure regimes?

Native Land Rights in Australia

How do aboriginal traditional land rights fare in the face of modern business? “Belatedly, Australia is dealing with a major human rights issue it has attempted to sweep under the rug for 200 years”. The author is completing his MBA at London Business School and is a mining engineer of Australian origin.

Land alienation, land tenure, and tourism in Vanuatu, a Melanesian Island nation

Land is a primary resource for international tourism development. The relation of indigenous systems of land tenure and the history of land alienation to tourism in Pacific Island nations, however, is problematic. Governments of some Pacific Island nations are now emphasizing the traditional land rights of indigenous people in determining land use for economic development. Land is a key resource for the local participation of Islanders in development, and indigenous land claims are a volatile political issue. There has been little substantive research on tourism and land tenure in Melanesia. This paper examines the history of the problem of land alienation, the nature of traditional land tenure, and the relation of current land claims to tourist development in Vanuatu. Land alienations are tied to modern tourist developments, and issues of land tenure are a central aspects of political debate in local cultures. Suggestions are offered for regional planning for tourism, and local control of tourist development and land use.