As you can imagine, there are no easy answers to this question, and people will disagree. Here are a few thoughts.
(1) I do think that very often when titling of customary land is initiated by the government and not by the community, the goal is often to get land into the market or to make land easier to acquire (through compulsory acquisition) by the government and by purchasers and lessees. Communities themselves will object to titling of their land if they believe they need to be protected from the government not by the government. If titling is a pre-cursor to customary land entering the market, then I do think there is a real possibility of it being a threat to women’s and men’s rights to their customary land. The threat will be greatest for the most vulnerable—those who are poor, are outsiders, are minorities, or those who do not have an equal voice in decision-making. Often women stand to lose the most because they are not generally the decision-makers in the community, and their interests may be ignored when land is formalized or there is a decision to formalize it or not.
For both women’s land rights and community land rights, titling may not be a sufficient solution to a lack of secure tenure. Both the debate on women’s land rights and the one on community land rights highlight that the mere issue of land titling does not cover the implicit diversity of land rights. In fact, “instead of increasing legal certainty, individual titling could become a source of conflict and legal insecurity if it conflicts with customary rules regarding tenure, for instance as regards the communal ownership of land” (De Schutter 2011: 269). 1
(2) Titling of customary land, which is driven by the community for the benefit of the community may be very different. Part of the answer to whether it is good or bad for individual men and women in the community will be dependent on the definition of who is a member of the community. For example, women who marry into a community and use community land for the benefit of their families may still not be considered a member of the community and have no decision-making power. They may lose their rights to the land they use, even if the community, rather than the government, initiates the titling process. As well, if temporary users of the land (herders or wood gatherers, for example) are not considered community members, they too may lose their rights to use the land.
(3) Tenure security can be safeguarded under various approaches that make clear the rights of land users and owners: formal titles; clear, long-term rental contracts; reliable lease agreements; or formal recognition of customary and legitimate informal rights, with accessible and effective dispute mechanisms.2 Formal recognition of customary land is different from titling of customary land. Customary tenure regimes that are formally recognized by governments in law, hold a set of rights within a regulatory framework. For example, formally recognized rights to customary land may give the users of that land the right to sell products from the land but not the land itself. Generally the group that has formal recognition of customary land is given the right to manage the land within a set of guidelines. Customary land may be formally recognized without providing individual titles or even documenting individual land rights holders or community members.
Formal recognition of customary land without titling that land can provide protection for the community as a whole. The issue then becomes what governance structure is in place to govern the management of the land and who is included and who is excluded from land governance. Again, those who are not represented risk losing rights to land, but some of those risks can be handled within the legal regulations developed under the formal recognition.
Some 18% of the world’s land is formally recognized as either owned by or designated for indigenous peoples and communities. 3 However, studies estimate that while a significant portion of the world’s land is held under collective tenure, large areas of that land are not formally or legally recognized. While it has been estimated that up to 60% of sub-Saharan Africa’s land is subject to customary tenure, according to a study of 19 countries in the region, only 13% of the land is designated for indigenous peoples and local communities and only 3% of the land is legally owned under community-based tenure regimes. 4
There are a number of reasons why protecting collective tenure is important for sustainable development and why it is gaining traction in development practice. The understanding of local realities of land and resource use and management often embodied in collective tenure systems can result in efficient use of resources. Research provides evidence that where they are able to manage the land, indigenous peoples and local communities are good stewards of the land and natural resources.
Similarly, formal recognition of collective tenure over land can help communities attain food security and increase their income. When rights are formalized and therefore perceived by the community as more secure, the community is encouraged to invest in the long-term sustainability of the land, thus increasing its productivity. 5
Finally, as natural resources are being increasingly “commoditized,” 6 it becomes more important for communities to clarify existing property rights, especially where ownership rights are not easily identified. The growing demand for food and natural resources worldwide has led to increased commercial pressures on land, often resulting in negative impacts for all affected communities. 7 Expropriation by the state for commercial reasons and large-scale land acquisition can dispossess entire communities. The protection of collective rights has the potential to give communities a legal basis to defend their rights in the face of outside pressures. 8 Similarly, formally recognizing customary land rights provides a degree of legal protection for those who risk losing their rights in the transition to privatized rights.
(4) One last issue to consider in titling customary land. Arable land under customary tenure is most often allocated by customary authorities to be used and managed individually or by households. Some arable land may be used communally, though this is not common. Because customary arable land is usually allocated to households, many of the gender issues that arise in this context are similar to those that apply to privately-held arable land, titling land in the name of the head of household, for example. This similarity is not always recognized in law, thus creating a legal gap—family laws, which provide for joint ownership may exclude land held under customary tenure.
1 De Schutter O. (2011) ‘How not to think of land-grabbing: three critiques of large-scale investments in farmland’, Journal of Peasant Studies 38, 249. 2 FAO, “Governing Land for Women and Men: A Technical Guide to Support the Achievement of Responsible Gender-Equitable Governance Land Tenure,” 1 GOVERNANCE OF TENURE TECHNICAL GUIDE (FAO 2013).
3 Landmark: Global Platform of Indigenous and Community Lands.
4 RRI. 2015. Who Owns the World’s Land? A Global Baseline of Formally Recognized Indigenous and Community Land Rights. Washington, D.C.: RRI.
5 IFAD, 2006. Community-based natural resource management How knowledge is managed, disseminated and used. In Brazil, for example, a group which gained legal title to communal land invested in sustainably harvesting acai palm, which had almost disappeared from the region. See RRI 2015. IRF 2015: Securing Indigenous and Community Rights in the Future We Want.
6 Cotula, L. 2015. Investment treaties, land rights and a shrinking planet.
7 Knapman, C., and P. Sutz. 2016. Reconsidering approaches to women’s land rights in sub-Saharan Africa. IIED.
8 Brinkhurst, M. 2015. Using the Law for Resource Justice. IIED.