How do private lands and community lands interact?

I want to share a thorny legal and procedural question that I, @jaronvogelsang @davidarach and @rorypulvino of the Community Land Protection team are grappling with in Liberia and Kenya, and I expect will resonate with those working in other contexts. Maybe @badara113 @Husna_Mbarak @yeyinth @vivekmaru @tehtenamebratu or others have ideas?

In communities where there are private or family land plots already existing, but also communally held areas and resources, how should these be addressed in the community land protection process? Should their existence impact the design and implementation of the process, and if so how?

Here’s a sample scenario: Community X in Liberia identifies as a cohesive community unit with an estimated customary territory of 10,000 hectares - the majority of which is forested. Households are clustered in small settlements and families are customarily recognized to hold the land around their house and the land for their gardens. Otherwise, land and natural resources are communally held. Over the years, a number of the families have applied for official title, or at least documentation, of their land rights from the government and received various types of certificates or documents acknowledging that they have some degree of private property rights to the land. Other people, including community members now residing in the capital and powerful elites in the capital, have also applied for title to areas of the Community X’s territory, most of which do not contain specific spatial information, only a vague mention of area and that it is within Community X. Many of these claims are not known about, or recognized, locally. It is unclear how much of Community X’s territory is covered by these private claims, but it seems possible that most - or even all - of the territory is claimed in some way or another. The majority of the community wants to use the community land protection process to secure their communal-level land rights and protect their common areas and natural resources, but some individuals within the community and the capital are concerned that the process will overturn or weaken their private claims. The legal framework is not yet clear on how individual and communal land claims interact, from a legal or jurisdictional stand-point. How should the facilitating organization approach this situation?

And another scenario: Community Y in Kenya has a large customary territory of 20,000 hectares - many of which is uncultivated and used for grazing or is forested. Households and families within the community also are recognized, customarily, to have private rights to small areas of land around their homes and settlements, but the community has decided that they do not want to demarcate individual plots because of a fear that it will fragment the community’s land and restrict their pastoral livelihoods. Community Y - and the region in generally - has had a long history of concern about land grabbing by powerful elites in the area and in Nairobi. In typical cases, elites with access to information, influence, and money apply for private title to parcels of the community’s land and receive it without any notification or consultation to the community. Sometimes this is a result of corruption, other times it seems it may be because Community Y’s lands are not recorded or mapped anywhere in the official land registry so the usual mechanisms for ground-truthing applications are not triggered. It is possible to see where these registered claims are by applying to the land registry for information, but the community is not aware of this and no one knows the extent or location of all the registered plots. The community is preparing to map their lands in the community land protection process, but now some families and elites are attempting to disrupt the work because they are concerned about the impacts on their claims (and that secretly registered claims will be discovered). As in Liberia, the legal framework is unclear on whether existing private plots or customary community claims take precedence or how they relate in terms of overlapping rights. How should the facilitating organization counsel the community?

Do these scenarios resonate with experiences in your contexts? What have you done, or are considering doing to manage the relationship between private and communal land claims in the same area?

Here are some initial, draft thoughts to get the discussions going. This is likely the foundation of content that we will create to add to the Facilitator’s Guide, so your thoughts and discussions will help us to ‘crowd-source’ the ideas and recommendations for that chapter!

  • Scoping - during initial community visits and scoping, organizations should attempt to ascertain the extent to which private claims cover the community’s estimated territory. Where a reliable registry exists, this may include a request for information to the government. Where one does not, this may have to rely on conversations and focus group discussions.

  • Introducing and explaining the process - facilitating organizations should be upfront with communities if there is legal confusion about how individual and communal land claims interact. They should explains that existing private titles will not be erased by the community land protection process, and if there are private claims that the community contests this may require legal guidance and conflict resolution.

  • By-laws - during the activities focused on strengthening community governance, organizations should encourage communities to decide for themselves how they think individual and communal lands relate to each other. If possible, the organization should explain how the national law deals with this.

  • Mapping - communities should be supported to map both the boundaries of their overall community and the boundaries of any known common areas (such as a central grazing area or wetland) to protect them from encroachment or private claims. Families or individuals with private claims are encouraged to participate in mapping in order to raise any concerns about how their lands interact with the community boundaries. The facilitating organization has to spend more time in conflict resolution given the high number of boundaries to negotiate.

  • Zoning/Land Use Planning - communities are supported to bring together their by-laws and mapping in a clear zoning plan that explains how different rules apply to different types of land - including communal vs. private areas. While demarcation of individual plots is not part of the community land protection process, during the zoning communities indicate approximately which areas are held privately and which are held and managed by the community.

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I wonder if courts/the government generally take an easy route - the private title holder wins and there’s nothing the community can do about it; or a more complicated route of trying to resolve who deserves the land based on justice norms and principles laid out in Constitutions and laws.

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How should the facilitating organization approach this situation?

The Liberian situation is a common one: a particular customary commons is made up of usufructuaries having common access to the remainder of the land. In this situation the carbon is locked in and all but secured; religious, cultural and judicial matters are also secured. Two main threats to this system inevitably arise: one, the areas outside of usufructuary land is raided by all and sundry for natural resources, both by plunderers and by a rent-seeking government; 2) the alienation of some customary area – usually the common access areas - takes place, by villagers under the influence of outsiders, by venal customary authorities, by state alienations for industrial agriculture, and for conservation etc. The facilitators have to oppose any alienations by emphasizing that it is more than the land that would be alienated, the communal culture, religion and justice – would be all imperiled by such moves. And with fences inevitably following, the impacts on wildlife would be considerable, as would leakages from the carbon bank. The facilitators have to explain the full picture. It is not just a matter of the land but the very survival of a particular clan or grouping.

Kenya situation

Typically Kenyan, heading down the road to a customary area where the land is all parceled out, villages broken up into family shambas with or without fences, cattle and wildlife nowhere to go. A disaster, especially in the light of us rushing to 2 + 4 degrees centigrade with their particular contribution to the carbon bank, zero.

Overall, it becomes a legal issue in the medium term, but with the votes of all the members of a particular commons put into the hat, a political one. Common land occupied in a de jure or de facto sense must be sacrosanct. And the state has to back this up.

And as we know that secure customary areas lock in carbon, as apposed to open access or demarcated areas, the imperative is for government to maintain the cohesion and rights of customary commons residents. They have a duty to mankind to do this.

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That’s a fascinating question – and a challenging one! I could imagine that the tension between individual and community land claims could also undermine the unity of a community as they go through what should be a fully participatory and inclusive process. What might be the best way to frame the process so that individuals or families feel their current private claims will be respected as well as support the community-led process because they understand how they too benefit from commons and other areas being protected? That may be easier if the challenge is family plots rather than larger scale holdings by elites or local leaders - or maybe both situations are equally difficult to manage!

This is an issue likely to come up in an urban context in the Nubian community in Kenya as well – some individual/family land titles have already been secured while the community works to obtain a communal title deed. @mustafa_mahmoud @zena @laurabingham @lore

Looking forward to learn how others have navigated these issues!

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