There are many important rights to land which to not involve formal or documented ownership or title.
There are a range of land rights that protect different uses of land. These include rights to:
Land use concerns not only the surface of land, but also rights to what is under the ground (i.e. natural resources) and to the air space above, as well as rights incidental to water on the land such as a river running through it.
It is not only landowners who have rights to occupy or use land. Tenure in the form a lease or other grant may be given by the owner to others, either in writing or orally.
Tenure covers a mix of different rights to manage, occupy, access or exploit the land or resources on a piece of land.
One of the most important rights over land is the right to occupy it, whether or not the occupier has any formal lease or ownership.
The right to exclude others from occupation is also important.
Rights short of occupation may be important. These might include rights of pasture, gathering wood, hunting, or obtaining water.
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).
This is not so much a type of right but a way how rights can be created. In other words, some land rights can be created by custom or customary law of a country or community.
Customary law is important. In some developing countries, the land law that affects most people is under customary law and not state law.
Women and junior family members may also have “derived customary rights”, such as Sharecropping or Tenancy.
The use of land solely for the right to pass across it and to access other land may also be important.
Of particular interest to indigenous peoples is the right to visit or access land at specific times for religious and cultural purposes.
Example: South Fork Band and others v. United States
A legal challenge by Native American Western Shoshone Tribe against the US Government for allowing the construction of a gold mine in an area of great cultural and spiritual significance.
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).
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”.
Key Resource: A Guide to Legal Reform and Best Practices in Africa
The report provides an in-depth analysis on the issue of securing community land and resource rights in Africa.
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.
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.
Regional frameworks provide more detail, such as the African Union Land Policy Initiative.