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The Right to Use Land: Occupation and Tenure

There are many important rights to land which to not involve formal or documented ownership or title

1

Use or Tenure Rights

Use rights (which can also sometimes be called tenure rights, or right of occupation) are important even if you do not hold the legal title to land. Land use can involve many different users.  The right to collect water or wood, is often a customary “resource right”.  Your legal system may distinguish rights over the land and rights over other resources, such as forests, minerals, petroleum, water).

Women and junior family members may also have “derived customary rights”, such as Sharecropping, Tenancy. Gifts and grants and Seasonal rights. Individuals may also hold other forms of rights over land, for example Loans, pledges and mortgages.  See for example the African Union Land Policy background report

2

Particular Groups of People or Communities

In forests, the ownership of the land and the trees will often be state ownership, but the village community may own the forest products (as in Cameroon).

Communities who have lost the right to use land for these purposes may be entitled to compensation under national law.

Particular care is required for pastoralist communities, so for example in Mali pastoral use is recognised as crating a use right and the rights under the Francophone West Africa system of “mise en valeur”.

See Securing community land and resource rights in Africa: A guide to legal reform and best practices, 2013 (Fern and others)

As the Forest People’s Programme/FERN  puts it “In customary land use, it is common for some lands to lie fallow at times, or be used only seasonally or as common land for hunting, gathering and sacred areas. In the case of forest lands for example, the food, medicine, cultural resources and other environmental services that they provide are often only sustainable if significant areas are left intact. They may appear unused, and some areas may not be accessed at all. Areas exempt from hunting act as ‘nurseries’, replenishing sustainable animal populations that are then hunted elsewhere. Some portions of community land may also be kept in reserve for allocation to future generations. This does not mean that such lands are unused by the community; they are part of a customary practice of sustainable land management and use. Yet there is a risk that outsiders might view land without visible marks of being actively managed as ‘unused’ and therefore available for exploitation. “ (source: FERN 2013)

3

Voluntary Guidelines

The United Nations FAO and the Committee on World Food Security have published the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the context of national food security, which contain useful guidance on legal frameworks of tenure, on safeguards, and on the transfer of tenure rights and duties, including expropriation and compensation. Its section 5 on administration of tenure deals with the records of tenure rights, valuation, taxation, regulated spatial planning, resolution of disputes over tenure rights, and transboundary matters.

http://www.fao.org/docrep/016/i2801e/i2801e.pdf

Regional frameworks provide more detail, such as the African Union Land Policy Initiative https://www.uneca.org/alpc

 

 

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