Download the full guide:www.fern.org/securing-community-rights

Why is land tenure security fundamental?

Land tenure systems determine who can own, use and manage which land areas and resources, for how long and under what conditions.

It guarantees the existence, recognition and protection of land rights.

It can help to protect biodiversity and improve livelihoods by reducing conflict over resource control

It encourages responsible investment by providing certainty about whose consent is needed to use the land.

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The building blocks of law

Substantive rights - the right to have or do something.

For a legal system to work well, it needs three key elements. Laws are ineffective if they do not establish procedures and responsibility to making sure they are enacted.

Procedural rights - a process that supports the claim to a right. They enable you to exercise your substantive rights.

Institutional responsibilities - to provide effective, transparent and accountable enforcement of substantive and procedural rights.

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Legal Pluralism

In practice, different systems of law co-exist and operate in the same place, at the same time, over the same issues. Finding a way to integrate these different systems, using the best elements of each, offers the best chance of achieving a clear, socially just system.

Customary lawEstablished community rules, continually evolving.

National lawThe written (statutory) law of a country’s constitution, legislation and court judgements.

International lawPrinciples that countries commit to upholding, including human rights principles.

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Cameroon: customary, national and international law in conflict

Under national law, the government can reallocate unregistered land that is without houses, farms or grazing to other uses – mining, logging, national parks etc.

Under customary law, many communities claim collective rights over their traditional land, even if it has never been registered in national law. This includes most of the traditional territories of the Baka and Bagyéli hunter-gatherer peoples.

International laws which Cameroon has signed up to affirm communities’ right to own land, territory and resources that they have traditionally owned, used or occupied, including that claimed under customary law. Cameroon’s constitution recognises the legal priority of international law over national law.

Cameroon’s national law is in conflict with the constitution, with customary and international law.

In practice, this conflict leads to large-scale dispossession and impoverishment of communities because the land they own under customary and international law is considered available for reallocation

by the state.

Reform processes provide an opportunity to embed human rights principles into both national and customary laws, through ‘domestication’ of international law.

Using human rights laws to secure community land rights

Protection for communities’ land and resources rights in international law is often based on human rights.

Under international law, customary ownership of community lands and resources must be recognised, respected and protected by States.

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The concept of Free Prior and Informed Consent (FPIC) derives from international law. It is increasingly being applied to communities whose customary lands are sought by outsiders.

How to approach law and policy reform processes

Clarify key objectives and principles at the outset – if all rights holders and stakeholders agree on these at the beginning, the reform process can proceed more smoothly.

Make customary land ownership rights equal in weight and validity to documented land ownership claims.

Incorporate overarching principles expressed in the constitution as well as international law in to reforms.

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South Sudan’s Land Act sets out several key land tenure objectives, including:

• Resolving land disputes in line with customary practices and community interest

• Integration of customary law into national statutory law

• Creating a decentralised system for land administration, based on community participation

South Sudan: Land act 2009

Southern Sudan’s Land Act is an example of the kinds of objectives that could be included in a law or policy.

• Incentivising investment and economic growth

• Reintegration and resettlement for those displaced by civil war

To strengthen community rights through land and resource tenure reforms:

Ensure legal reforms comply with core principles, including when customary traditions are in tension with these principles.

Tanzania’s Village Land Act protects women’s land rights in the event of land sale, transfer, surrender, as well as in cases of divorce and widowhood. If a man surrenders his land, his wife has the right to be offered that land before anyone else.

The act also mandates for gender balance on land administration and management bodies.

Tanzania: incorporating women’s rights in land reform

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Clarify who has rights to land, and what kinds of evidence should be accepted as proof of land claims.

Suggested two-step process of clarification:

1. Confirming existing, collective community rights

2. Authorising customary law and procedures for administering tenure rights within communities.

To strengthen community rights through land and resource tenure reforms:

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Enable rights holders to use their land rights in relations with others, meaning that parties outside the customary community, including investors, must respect and understand those rights.

Mozambique’s land law recognises a ‘local community’ as a formal legal entity, whose borders are clearly protected from infringement by outsiders and within which traditional mechanisms of land use and management prevail.

The definition of ‘local community’ is grounded in community occupation and use of land, and is designed for use in the wide variety of cultural and ecological contexts of Mozambique.

Mozambique: Community as a legal entity

To strengthen community rights through land and resource tenure reforms:

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Clarify roles, responsibilities and procedures for upholding land and resource rights, ensuring that institutions and processes responsible for implementing the laws are accessible and accountable.

Legal reforms can incorporate checks and balances to ensure:

Upward accountability: accountability to the state to ensure compliance with core principlesDownward accountability: accountability from customary authorities to communities, emphasising that the rights belong to communities not traditional leaders.

To strengthen community rights through land and resource tenure reforms:

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Enable rights holders to claim, monitor, enforce and enjoy their land and resource rights

Legal reform must include procedural rights which make it possible for rights holders to claims their tenure rights.

• Transparency – community and civil society access to information• Participation – communities play a real role in decisions that

impact their rights• Access to justice – systems that communities can use to enforce

their rights

To strengthen community rights through land and resource tenure reforms:

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Enable rights holders to claim, monitor, enforce and enjoy their land and resource rights

Ensure legal reforms comply with core principles

Clarify who has rights to land

Enable rights holders to use their land rights in relations with others

Clarify roles, responsibilities and procedures for upholding land and resource rights

To strengthen community rights through land and resource tenure reforms:

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When legal reform is based on a multi-stakeholder process, with the support of communities, NGOs and others, they are more likely to be implemented effectively

Opportunities for legal change and how to use them

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Multi-stakeholder engagement in Voluntary Partnership Agreement (VPA) legal reform processes, and increased transparency and accountability achieved through that, can contribute to positive tenure reform.

VPA negotiations have tended to focus on national law, to the detriment of international and customary law. This should change in future.

Liberia: Stakeholder participation in through VPA processes

Community Forestry Development Committees (CFDC) in Liberia provide a structure for communities to meaningfully participate in national processes related to their land and resource tenure rights.

Communities were able to take part in FLEGT VPA negotiations through CFDCs right from the start, enabling community representatives to take an unprecedentedly active and influential role in shaping policy and objectives for legal reform.

Regulations in Liberia acknowledge that meaningful public participation in decisions related to forests is essential to the long-term success of forestry reforms.

Download the full guide:www.fern.org/securing-community-rights