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Sophie's Choice for Communities: Sacrificing Land Rights to Gain Security

More than 3,000 indigenous people recently marched outside Congress in Brasilia, protesting encroachment on their ancestral lands and the taking of their natural resources. They were met by riot police and pushed back by tear gas. The Brazilian government argues that it is committed to protecting indigenous lands, but it has yet to officially demarcate, register and document many of their territories – which effectively deprives tribal members of their legal rights.

This incident highlights a global problem. Around the world, Indigenous Peoples and other communities seek formal recognition of their land to help prevent it from being taken away by more powerful outsiders. But there's another side to this issue that offers these communities a troubling "Sophie's choice": In getting their land officially registered and documented, communities oftentimes lose some of their rights to use it.

Bundles of Land Rights

More than half of the world's land is held by communities, yet only about 20 percent of it is formally recognized by governments as belonging to them. Much of the remaining 80 percent is held solely under customary institutions and rules. For generations, these traditional arrangements provided tenure security, but today, many families and communities are losing their land to local elites and foreign investors, often with the support of governments.

The registration and documentation of land rights with the government can help communities protect their lands. Yet while most governments grant private property owners a large "bundle of rights" to their land—including rights of access, exclusion, management, alienation and withdrawal (Box 1)—these same rights are usually not afforded to communities. In a Rights and Resources Institute study of 59 indigenous and community land tenure types across 27 countries, only 5 percent included the full bundle of rights. In many countries, the law does not recognize community land and does not establish a process to register this land.

Recognizing only small bundles of rights can limit the use of community land and jeopardize local livelihoods. Without exclusion rights, for example, communities can't protect their lands from unwelcome intruders interested in extracting valuable trees or hunting wildlife. Without full withdrawal rights, communities cannot use their land for commercial purposes, jeopardizing livelihoods and potential sources of income. Without alienation rights, communities can't lease their land to outsiders, limiting their ability to compete with private property holders.

Table 1 shows the situation in Latin America. In these six Amazon Basin countries, the principal tenure type of indigenous land does not provide the five critical land rights; only access and management rights are granted to all six tenure types, while four countries provide exclusion rights. All types grant withdrawal rights, but for subsistence purposes only. Withdrawal rights for commercial purposes requires a separate procedure, including the development of a government-approved management plan. Five of the six tenure types do not include alienation rights.

Table 1. The Bundle of Land Rights for Indigenous Peoples in the Amazon

A Better Way

Governments grant communities small bundles of rights for several reasons, but many do so to protect them from making "poor" decisions, such as leasing or selling their land to outsiders or logging their forests for short-term gains. Essentially, governments do not believe that Indigenous Peoples and communities can manage their lands well. Denying rights is preferred to regulating rights. This paternalistic approach must change if communities are to take charge of their own development.

There is a better way - one that grants communities the same large bundles of rights over their land as private property holders while also promoting sound land use and management. Many governments have a long history of effectively using incentives and regulations to promote sound land use and management on privately held land. In Ecuador, for instance, the government provides direct monetary incentives to landowners who protect native forest and other ecosystems on their lands. And in the United States, the government provides tax breaks to landowners who establish conservation easements on their property.

Governments have also enacted regulations that limit or restrict certain land uses. In Uganda, the National Policy for the Conservation and Management of Wetland Resources prohibits the draining of wetlands and farming on river banks to protect the environment. And Kenya's Agriculture Act gives the government the authority to issue land preservation orders to prohibit clearing of private land for cultivation, grazing livestock on private land, and burning or destroying vegetation. The government can also require the reforestation of private land and undertake drainage works.

These approaches have worked on privately held land, and are far more respectful of Indigenous Peoples and communities than granting them small bundles of land rights. Most importantly, they do not force communities to forfeit important land rights for the promise of tenure security.

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