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.
Box 1. Bundle of Land Rights
Access. The right to enter or pass through the land.
Exclusion. The right to refuse an individual, group or other entity access to and use of the land.
Management. The right to make decisions about the land and its natural resources.
Alienation. The right to transfer the community’s land rights to another entity, including the right to lease or sell the land.
Withdrawal. The right to benefit from the land and its natural resources for subsistence and commercial purposes.
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.
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.