George L. Benwell

UN, FAO, Visiting Fellow

on leave from University of Otago, New Zealand

This paper reviews the changes occurring in cadastral and land tenure systems across the globe. The changes are having an effect on the cultural capital within the emerging countries of Europe, Africa and the Pacific. At the same time is it possible for there be social and economic development and the preservation of culture? It is argued that culture and its association with land and land systems are changing as they always has over the millennia. The framework for the future may lie in appropriate legal measures. If this is to happen, technologists much take note of the social and cultural needs of people not just the economic advancements of nations.

Ce papier examine les changements dans le monde concernant les systèmes cadastraux et de tenure foncière. Ces changements ont un impact sur le patrimoine naturel et façonné par l'Homme des pays émergeants d'Europe, d'Afrique et du Pacifique. Dans le même temps, est-il possible de promouvoir le développement économique et social et de préserver le patrimoine? Le papier soutient que le patrimoine, en association avec le sol et les systèmes fonciers, se modifie, comme cela a été le cas durant des millénaires. Le futur cadre conceptuel et d'action pourrait être fondé sur des mesures légales adaptées. Pour que cela se produise, les "technologistes" devront prendre en compte les aspirations sociales et culturelles des populations, et non simplement le développement économique des nations.

Dieser Artikel untersucht die Veränderungen die weltweit in Kadaster - und Landhaltungssystemen vorgehen. Diese Veränderungen wirken sich auf die Kultur der aufstrebenden Länder Europas, Asiens und des Pazifik aus. Ist es möglich soziale, wirtschaftliche Entwicklung und Kultur gleichzeitig zu erhalten ? Hiermit wird die Ansicht vertreten daß Kultur und die Verquickung von Kultur und Land beziehungsweise Landsystemen sich wandeln, wie sie das über die letzten Jahrtausende ständig taten. Geeignete rechtliche Massnahmen könnten einen Beitrag dazu bilden die Rahmenbedingungen der Zukunft zu legen. Sollte das der Fall sein müssen Technologen jedoch auch die sozialen und kulturellen Bedürfnisse der Bevölkerung und nicht nur die wirtschaftlichen Fortschritte der Nationen berücksichtigen.

This paper reviews the understanding of indigenous land tenure systems. The world is witness to a resurgence in land tenure and agrarian reforms. These reforms are nurtured within a belief that such changes benefit the recipient nations and peoples. The reforms are kindled by, and no doubt highly correlated with, the emergence of the new nations of Europe and the desire for survival and sustainablility of the independent and developing nations within Africa. So why examine tenure?

It comes to mind that most, if not all, human pursuits for survival and progress are rooted in land. The humans have for eons, ever since time immemorial, paid homage to land and enshrined in it a deeply meaningful and enduring culture. The pressure to develop contemporary systems in emerging nations is fueled by economic pressure and the desire by the landless for access to land. It has also been argued that it is the pressure of the urban and peri-urban poor (Payne, 1997:7). While this may be true, it seems to be the result of landless rural peoples gravitating to the urban fringes for survival. This no doubt then creates an urbanised pressure but it is possibly incorrect to describe this pressure as directly causal. It is tempting to develop this debate further but it is largely peripheral to the issue at hand (but remains and important issue for serious consideration).

Contemporary land tenure systems that are emerging in the newer nations are being done so at some expense to culture. This is being highlighted by the parallel increase in the voices of indigenous peoples and their claims concerning misappropriation of lands during the colonial periods of the 18^th and 19^th centuries. So the confluence of aspirations - modernisation of land tenure systems and the preservation of cultural land systems is (potentially) producing some turbulent waters. The paper examines this situation and presents a hypothesis that opens future paths ways. The basis for this position is a tenet that indigenous peoples held culture and land as one. As land tenure systems evolved (for example in Nepal, see Khanal, 1995:6), as they surely did over the millennia, human kind has stripped culture away from land tenure and encapsulated it separately - in other forms, typically, legislation. So, the cultural aspects of land are minimal in modern land tenure systems, but countries have constitutions and other mechanisms as acceptable and explicit substitutes. This must be understood as land tenure systems are developed.

The issues are not unlike resource management and sustainablility. In the case of resources there is a threshold above which endless consumption will bring about destruction. Short of that, the consumption system may irretrievably migrate from one steady state to another. The new state may be better or the same, hopefully not worse. This phenomenon is well know in engineering, physics and economics. Baland and Platteau (1996:15) state with respect to ecomonics and none renewable resources; "In general, one can surmise that, if there exists a threshold level beyond which complete disaster is a possibility, it is never optimal to go beyond it". At what level, percentage or factual content is it possible to expunge culture from land tenure systems? The rate of this change is also critical. Humans have a remarkable resiliance but there must be a rate of change, much like ‘G forces’, that is totally destructive. These are vexing questions and ones that really have no immediate or simple answers. Nonetheless, they should be addressed with as much thought as we can muster.

In dealing with land tenure and culture it is important to clearly define such terms - albeit in a rapidly changing area of research. Many authors have put forward definitions (FIG, 1996 and United Nations, 1996). In general a land tenure system is a method by which land is utilised or owned and particulars of the ownership, use or produce are known and recorded in some way (Payne, 1997:3). The United Nations has, according to Payne, defined customary land tenure systems as;

Ezigbalike et al (1996) present a view of a traditional land tenure system, within the context of Fiji, as one that is informal and embodies the accepted and unspoken long-term customary practices of the peoples of the land as regulated by society. The regulation is usually entrusted to the hands of chiefs or chieftain councils. In more recent times these systems and processes may be more formal and embody written rules and legislation (ibid.). They considered this to be an improvement over the definition offered previously by Noronha and Lethem (1983:9). Land is not ‘owned’, it is a community treasure, a resource that defines people - not the reverse. A loose modern equivalent may be a road reserve or common open space. Those are assets of the public, not thought of as being owned by a person; they are for the public good and in a fashion their use helps define the community that benefits from them. Their use is more widely understood than their ownership.

In sociological terms, the difference may simply be that at least for these examples (road or common) people accept, (unwittingly) cherish and respect that jurisdiction and use are not all within their own control. Furthermore, a traditional land system will also involve cultural aspects of life as much as today’s systems involve computers, syntactical rules and legislation. The tragety of the commons is not all that frequent it would seem and as Roemer stated; "Everyones’s welfare can be improved by exercising a restraint that no one has any interest to exercise in the state of nature" (Roemer, 1988:2, cited in Baland and Platteau, 1996:30). This discussion is not to make them (modern vs customary systems) the same but rather to succinctly state their divergence.

Traditional tenure systems should be understood to be social and political processes rather than regulations rules and statutes. Cross and Friedman (1997:17) agree and stress that for the most part tenure systems are determined by the values of society, by the power people of the time and by the unspoken assumptions about how people ought to behave. This obviated any other explicit statements (rules or laws) to govern land and culture.

Societies interwove many complex fabrics of life into land tenure. In fact it may be wrong to separate out tenure as a single identifiable entity. For the most part that may be only a modern construct. Land and culture are like language and culture, or even love and emotion. Notwithstanding this cautionary note, traditional societies related a number of cultural ideologies with land;

• custom
• inheritance
• religion
• eternity, birth and death
• permanency of place
• the right to be a tribal member
• provision of security of existence and, inter alia
• sustainability of line and lineage

Crocombe (1987:14) saw (with reference to the nations of the Pacific) that at birth people acquired certain rights associated with land. One could inherit rights, earn rights and or, be bestowed rights that where recognised by the culture of the day by consequential rights in land. He also notes that such rights waxed and waned as a normal part of social and demographic processes. He concluded (p15):

Where such systems have been allowed to evolve in a natural way change has occurred. The systems are possibly never mature and certainly not static. They continually evolve in response to the changing morals and cultural imperatives of the societies they serve. Ezigbalike et al (1996) consider that as societies become more literate they will (naturally) tend to systems that are less word of mouth but based more on written text. As an aside it does not automatically follow that people will also document all or any actions on land (eg consolidation or conveyance), they tend to initially refrain; centralisation of roles or a state recorder seem to follow much later. The evolution to documentation, would seem to mirror many changes in any society. As word controlled an extended family in early Roman times it became impossible to rule by voice over millions dispersed to the far corners of the old world. Scriptures replaced the voice, though it may not be universally applicable.

Tenure systems do evolve and it is not inconceivable that they may do so at contrasting rates and exhibit diverse paths in different countries. Tenure is complex (Zimbabwean Government, 1994). Imposed tenure systems, or in other words attempts to generalise, could hinder the development process of a community. A Zimbabwean report (ibid.) noted that the effectiveness of any land tenure system for development purposes is measured by its ability to create high and sustainable levels of production as well as enhanced social cohesion or at least to fairly and democratically facilitate such progression. In sub-Saharan Africa it is stated that even if land tenure systems do evolve and have flexibility there remains the potential for conflict. Platteau (1992:144) notes that even if systems adapt to changing circumstances, from communal to individual tenure, there is also a change from specific issues to general issues. Thus the possibilty for great regional variations could exist and this may well be very counterproductive to any general improvement.

If the development of reformed tenure systems is rapid and faster than natural evolution would have it, then there is considerable potential for anguish and conflict. Such may well be the case when it is argued that development must occur - driven by economic and political imperatives. Such are the scenarios in the many European, African and some isolated nations of the Pacific and Pacific rim. Schmid (1992) notes that the former socialist countries are rushing into legalising free trade, selling state assets, allowing private land and reducing subsidies. There is, it seems, scant debate on the speed of change. It is reasonable to assume that the change is faster than natural evolution - this could hardly be denied in Europe. In African countries the speed of change is similar. Not only is there rapid change but the change is usually dramatic in regard to land tenure systems. This change may not be culturally much different in Europe but it is most certainly politically and economically different. In Asia, Africa and Pacific islands the change is more culturally significant. Of course there is an argument that political and economic changes are also changes of a cultural nature.

The changes that are most apparent are those which are typified by adopting an exotic land tenure paradigm. One that has more to do with economic security and agrarian reform than it has to do with security of culture. This has been noted previously, (Latu et al, 1996a; Latu et al, 1996b; Ezigbalike and Benwell, 1994). The new land tenure systems may be considered to be effective in terms of the economy and rural production, though there is no concrete evidence of an association (Payne, 1997:26). Time may prove otherwise, though in the short term successes have been demonstrated. Would it be very difficult to attribute the recent collapse of the Thai Baht to the World Bank cadastral improvements of the late 1980s? The effectiveness in terms of culture is less clear in both time frames. It is true however that the new systems, as they are generally exotic, are mostly exclusive of any indigenous culture. This brings about the present land information systems with less integrated culture and more legislative controls on tenure processes. Possibly a temporal re-occurrence - one previously witnessed by Australian Aboriginals, New Zealand Maori and many Pacific Islanders over the last two hundred years.

A solution to these dilemmas may well lie in the integrated construction of tenure, legal and cultural systems that are respectful of the depth of the content and culture of land tenure systems. For an African community it may be significant to have chiefs involved in land administration, and it may also be important that rights of inheritance are not defaulted to the oldest male (Cross and Friedman, 1997:25) or defaulted on per se. These considerations can be catered for and given credence if appropriate parallel legislation is developed. This is complex! It therefore demands considerable thought.

The concept that there was no ownership of land once universally prevailed - that has faded, though many peoples see it as the foundation of their being (for example New Zealand Maori). Unfortunately, the concept is generally assigned to history and so it appears are the cultural components of a tenure system. As countries mature (age may be a better word) so they progressively transfer away from the tenure system those less definitional and mechanical properties - not to put it too simply, the cultural components. Modern societies now prefer to have considerable legislation and an increasing number indeed have constitutions. This pares down the land tenure system and its surrounding processes to simply definitional and administrative sections. There seems little doubt that these then facilitate the security of tenure, clarity and purity of title that financial and everyday communities strive to attain. At last, it could be argued that all processes in land tenure are then explicit. All too true if a community;

• spirit adopts the change (which it may not in practice, regardless of theory), and
• comprehends the subtle changes to the definitions of its land related cultural.

To diverge slightly to address a question that becomes immediately pressing. Should land tenure systems be developed together with what may be called cultural systems? Or, do we develop land tenure separately? Well yes, it seems that has been the natural evolution. Now if the multipurpose cadastre concept of Dale and McLaughlin (1988) is recalled this would seem to be its antithesis. Dale and McLaughlin argued that all matters relating to land should be attached or collated in a land information system - the multipurpose cadastre. Such a system then could be used for registering actions on ownership, as well as, insurance, land use, regional planning to mention but a few.

If the Dale and McLaughlin argument is extended it would be equally logical to include the cultural components in the multipurpose system. But natural evolution has shown the reverse. Such systems and culture have diverged. What do Dale and McLaughlin have to say? In their writings they are silent on the subject, but they would possibly say the two should be integrated. It may be possible to achieve the middle ground. That is, have separate legislation but incorporate both (culture and land tenure) at the data structure level in a land information system. This author believes this is neither desirable or conceptually possible. Regardless, the time has passed and it would be a radical and brave nation that dissolved parts of its statutory constitution in the late 19^th century! The constitution of the Philippines (1986) has 5% of its clauses and articles concerned with property rights and land tenure (Payne, 1997:1) (and see Table 1 below for additional information). It could happen though - Australia and New Zealand may yet write or rewrite their constitutions or invoke legislation to protect some cultural aspects of land, culture and indigenous beliefs. We shall have to wait and see!

Table 1 is included to demonstrate the difficulty in an attempt to determine the level of land protection afforded by constitutions. Payne (Payne, 1997:1) drew attention to the Philippines and noted that 5% of the clauses of its constitution dealt with land. This was held as exemplar and in some respects it is (in the areas of traditoional land and the environment). Though when comparing selected nations with Tonga figures vary widely. The Philippines only has half the clauses compared to Tonga and Australia has none! Extreme caution should be taken when interpreting these figure. In the case of Australia, most if not all legislation is enacted outside the constitution, and rather than federal law it is usually enacted at the State level. The lack of clauses in the constitution is misleading. A general conclusion may be tentatively drawn that some nations are paying more attention to the importance of protecting land base societal rights, the Philippines, Tonga and Malaysia are good examples.

So if change is to continue, and there is a high degree of certainty in that, then it is held that it is no longer sufficient to note the cultural costs. Something must be done. As time passes the situation worsens. It can be drawn from this paper that a development of an appropriate legal protection for culture in association with land reform has some potential. This will become increasingly so as the cultural aspect as stripped away from modern land tenure systems. Equally, it may be an ill-advised strategy to hinder progress because of a culture is being lost. Far be it for me to espouse that view too strongly, but those more closely effected may. I would ask that they look for protective development as an alternative. They may remain skeptical!

This paper has demonstrated that it is necessary to have new laws to safeguard culture as much as it is necessary to have laws to safeguard security of tenure. Once they were the same. But societies have matured or advanced at least, which has led to an explicit expression of land tenure. The once cultural aspects of such a system are at risk of being discarded and forgotten. So it is considered that appropriate legal development should parallel tenure reform. The legal reform is there to protect what has gone before as much as what has just arrived. This may be nothing new to most readers, but it explains clearly why we should do what some are doing and what that the law should involved. The lesson to understand and to be remembered, for hopefully it has been learnt is, as Payne (1997:27) put it;

It is believed that too little attention has been paid to the social and cultural aspects of tenure reform. The balance lies in fully understanding complex technical issues AND the social constructs of such systems. It is further held that it is mere folly to implement a new tenure system or impose a cadastral system without due understanding of the social and cultural implications. The logical extension is that reform requires a multi-disciplinary team of tenure, social, cultural, legal and economic experts. No one group is necessary and sufficient for the task. To part on a thoughtful note, the problem remains that the science paradigm has taught us to decompose problems. Once too often?

I would like to express my sincere gratitude to my friends at the Food and Agricultural Organisation of the United Nations. A special thanks to Dr Jim Riddell and Simon Keith and the colleagues in the land tenure section of the Sustainable Development Department. They gave me the time and space to develop and think this process through. It was significantly aided by the conducive surroundings of Roma. I thank them for facilitating my leave from the University of Otago, Dunedin, New Zealand.

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