The rise of collective land ownership

Consider this: despite several centuries of industrialisation, 150 of 194 of today's economies are agrarian, based on the use and exploitation of lands and resources. Rural land dependants will number 2.5bn by 2050. Even allowing for soaring urbanisation and physical sprawl, rural land will still constitute 90% of the total global land area and be primarily responsible for feeding 9bn people while capturing carbon to slow climate change.

Permanent farmland will expand from its present 15% of global land area by 2050. Nevertheless, the shared off-farm resources of communities in the form of forests, rangelands and swamplands will remain significant. These play critical roles in rural livelihoods. They are also neither easily nor productively subdivided into private parcels, which has been a key factor in their retention as collective assets around the world.

But to whom do these lands belong – governments or communities? Governments have historically claimed them, enacting laws to establish that although such areas are under substantial customary occupation and use, this community possession does not amount to property.

The rise of socially collective entitlement challenges this hegemony. Less expectedly, potential uptake by the urban poor could reinforce this form of property in land. City slum dwellers will number the same as rural dwellers by 2050 – at 2.5bn – but most living on lands too tiny and fluid to title individually, so interest is growing in adopting collective tenure to stabilise occupancy and frame slum upgrading.

Where is property law moving in all this? We know that individual entitlement has been the holy grail since industrialisation and capitalism began to dominate modes of growth and that such entitlement will continue to be the anchor for housing stock; it remains central to most immoveable property law. But this is not the whole story: instead, we find that the 21st century opened with reforms that took new routes to land security into account. Collective property that is owned by families, groups and communities has emerged as a legal option. In the process, what has been conventionally defined as property in land is loosening its singular focus on the discretely individual and commoditised parcel.

Living in cities, it is easy to forget just how much of the world's area  – up to 6bn ha – largely remains the collective domain of communities, with or without the support of national laws. We also forget how resilient such tenures have proven. They operate in all regions today despite economic transformation and programmes designed to extinguish them. This resilience is due to a lack of trust in the state and its systems, preference for community jurisdiction and the unsuitability of privatisation for many resources on which communities depend.

Many communities already enjoy legally supported possession of their land. They include, for example, 1m rural communities in China, 32,000 in Mexico, all rural communities in Papua New Guinea, Vanuatu and Fiji, and the 30–40% of lands in Australia, Canada, Colombia, Nicaragua and Bolivia officially titled to indigenous communities. We also know that thousands of other communities have no legal support for their tenure.

A review of land legislation in 100 countries finds that 73 of 100 state laws in 2018 provide for community-based landholding as a lawful form of property. Moreover, this is expanding – including in Europe, where countries such as Spain and Portugal have revived collective tenure for forests and pastures to aid conservation. Recognition of indigenous peoples' land rights gradually spread through Latin America during the 20th century, with a surge in the 1980s. Nevertheless, most legal recognition of collective property has taken place since 1990. Nearly 50% of first-time provision has been since 2000, and 25% in the past decade. At least nine relevant laws are presently before parliaments or in draft form, in African and Asian nations from Ghana to Indonesia.

Proportionately more countries in Oceania, Latin America and Africa have enacted supportive laws, at 100, 84 and 78% of sampled laws respectively. A sustained history of communal tenure underlies 59 of the 73 laws – 81%. This includes European cases where customary arrangements have transformed into sophisticated legal entities, for example in Germany, Austria, Switzerland and Sweden. Other countries acknowledge community property on the basis of state-created land collectives, cooperatives and unions, such as in Kyrgyzstan, Mongolia, Armenia, Algeria, Cuba and China. Fifty of the 73 laws – 68% – indicate that community and private or corporate property are equally protected in the eyes of the law.

Not all laws providing for collective property include the same resources. Some provide this only for shared off-farm pastures and forests. Others enable communities to become the formal, registered owners of the entire area of their traditional domains, including root title to family farms. Conditions also vary for different categories of community owners. For example, communities who define themselves as indigenous peoples enjoy stronger rights to foreshores and waters than are available to other communities and they are more protected by international soft law that requires their free, informed and prior consent ahead of acquisition of their lands.

Weaknesses in laws are also quite similar across regions. Many relate to the unreasonable timeframes by which community land titling must have occurred, the complexity of the process and the absence of legally binding requirements for the state to fund formalisation. It is mainly only in Africa that laws acknowledge community property prior to case-by-case registration. This means that roughly 40, 60, 70 and 80% of customary lands in Uganda, Kenya, Tanzania and Ghana respectively are acknowledged as owned without parcel identification.

Still, owners of these lands like communities everywhere are keen to double-lock their rights through case-by-case survey and registration. All laws provide procedures for this. There is less consistency over which land types may be included under community title. Limitations in one-third of laws reviewed result in communities losing forest and riparian lands at adjudication, or being forced to surrender management of these to state actors.

The way national laws handle the saleability of community lands also differs. 43% of laws forbid alienation of any community property, although some newer laws permit certain lands to be leased with community approval. One-quarter of laws permit family or individual usufructs over homesteads to be sold, the community retaining ultimate title and new owners remaining subject to community rules of use. Only one-third of laws stipulate that a community may freely sell all or part of its property.

The right of owners to determine access to, and use of, their properties and associated rules is fairly uniformly embedded. Statutory requirements for communities to adopt inclusive processes in decision-making have become more common and are at their most developed in newest laws such as in Liberia, Mali, Timor-Leste, Malawi, Kenya and Vanuatu.

Such conditions help to alleviate pressure on communities to extinguish collective title altogether, caught between a wish to sustain communal tenure over shared resources while enhancing exclusive rights to the house and farm. Indeed, collective and rangelands. Changing land uses can provoke shifting norms. In Ireland, for example, ancient lowland commons show signs of heading for subdivision among families as their use for peat-cutting gives way to farming. This is not the case with their upland commons, which remain critical for communal grazing.

Research also showed that the law is never enough for sustained recognition of community property. The enthusiasm of governments regularly wavers after enactment as they contemplate the loss of lands to themselves that community titling will mean: this is because virtually all untitled community lands have long been designated as unowned public lands, which administrations have been fairly free to dispose of. Shifting gear into acknowledged ownership takes adjustment.

This helps explain why laws are taking much longer to be enacted than in the 1990s, and why more loopholes are being retained to sustain state interests. Even on enactment, application of the law is often delayed through failure to issue regulations or establish registers. Curtailment of rights can also proceed by the back door with the declaration of new national protected areas including key community lands and the creation of subcategories of essential public property. The demands of international tourism, large-scale oil palm plantation developments, mining and dam projects have all notoriously taken their toll on securing community land rights in the past five years. Political will can be shaky, and this matters most where judiciaries lack independence or are inaccessible to the poor majority to defend their new legal rights.

Nevertheless, the widespread embrace of community property by the law suggests the end is in sight for its wholesale denial and that the law will mature to face new challenges. Already the biggest constraint is no longer whether property may be owned by parties other than individuals and corporations but a more fundamental tug of war between communities and their governments as to which of their lands may be registered as their property.

Recognition is sufficiently advanced to raise new concerns, such as how far communities are gaining rights but not escaping the implications of discrete parcelling on which recognition rests. Will this diminish the nuanced layering of rights in and across communities that oil the success of adaptable community tenure? Will the demands of formalisation liberate communities, or will they trap them in the constraining bureaucracy of often unreliable state administrations? By 2050 we should know more

Liz Alden Wily is a political economist and a fellow at Leiden Law School, the Netherlands  lizaldenwily@gmail.com

Related competencies include: Cadastre and land administration, Compulsory purchase and compensation, Legal/regulatory compliance