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Land Ownership

Conflicts can arise over the “legal” ownership of land, and there are many cases in Asia, Africa, Latin America and elsewhere. For example, in Africa, nearly 80% of land is held under customary law, and rules and practices can make it more difficult for women to inherit, access and exercise control over land.  On average, men control a higher proportion of land than women.  The African Union Land Policy Initiative calls for 30% of land to be in women’s names by 2025.

1

Formal Titles

Some land has formal title documents. Land titling is a large and complex topic, see Resource section for further information.

Case study on land titling from India

A short film is now available depicting the work carried out to help the Adivasi, who live in the forest areas of Jharkhand, Odisha, Chhattisgarh and the Vidharbha region of Maharashtra.

Although the Adivasi have lived in these locations for generations they do not in fact hold any legal rights to their land. Being a region that is mineral rich, the land gets diverted to private companies for use in power plants, mining and infrastructure projects.

The Adivasi are losing access to natural resources that help them to live (e.g. food, fuel, building materials, herbs and medicinal plants), which is in turn having a negative effect on their social, cultural and religious identity as well as their social structure.

Tip: This YouTube film https://www.youtube.com/watch?v=qXPADH4wVxA shows the work of various NGOs to help the Adivasi to secure land rights and improve the livelihoods of their people through gaining access to their forests under the Scheduled Tribe & Other Traditional Forest Dwellers Forest Rights Act of 2006.

2

Legal Ownership

It is important in land conflicts to understand what the “legal” ownership is. But often the legal ownership is contested, or the legal ownership does not take into account the actual use of the land by communities.  Sometimes legal ownership is asserted and legal title given to other people in violation of the basic rights of people living on and using the land.

People should be able to give free prior informed consent to any adverse use of the land they occupy.

3

Women and Land Inheritance

Inheritance of legal ownership often discriminates against women. It is subject to different national laws.  But constitutional law is increasingly being used to oppose discrimination in customary law inheritance rights.  For example, the South African Constitutional Court found that the customary principle of the oldest son inheriting to the exclusion of other sons and daughters was unconstitutional, in Bhe v Khayelitsha Magistrate; Shibi v Sithole; South African Human Rights Commission v President of the Republic of South Africa. https://en.wikipedia.org/wiki/Bhe_v_Magistrate,_Khayelitsha

 

Example: Botswana’s High Court and Court of Appeal held in Mmusi & Others v Ramantele (2012) that any unfair discrimination on the grounds of sex was unconstitutional. https://ohrh.law.ox.ac.uk/wordpress/wp-content/uploads/2015/07/OxHRH-Working-Paper-Series-Number-6-Masengu1.pdf

4

The Tirana Declaration

The Tirana Declaration is not an official legal document, but does provide a strong practical and ethical statement about land grabs that you might be able to use in your arguments. It defines a land grab as an acquisition or concession of land that is

  1. in violation of human rights, particularly the equal rights of women;
  2. not based on free, prior and informed consent of the affected land-users;
  3. not based on a thorough assessment, or are in disregard of social, economic and environmental impacts, including the way they are gendered;
  4. not based on transparent contracts that specify clear and binding commitments about activities, employment and benefits sharing, and;
  5. not based on effective democratic planning, independent oversight and meaningful participation.

 

 

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