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2.3.5 Autochthonous and "Modern" Systems of Land Tenure – Overlapping,
Parallels and Conflicts
The term
"autochthonous land tenure" has become accepted as a neutral term. It emphasizes
the one born in the location (autochthonous), local origin of the legal norm and is thus
the contrast to imported legal concepts ("modern" or "allochthonous"
land tenure). Quite often the terms "indigenous land tenure" and "customary
rights" are used identically. (Correspondingly, in German and French the terms "autochthones
Bodenrecht" and "droit foncier indigène", respectively, are
utilized.)
With some reservation few typical special features of autochthonous
land tenure can be named that are valid for Africa, and parts of Asia and Latin America:
traditional peasants' rights having a basic collective tendency, spiritual rights,
inequality of subjects of the laws and unwritten laws. In contrast, in Europe combinations
of private and common property (the German
"Allmende") are definitely signs of still vivid autochthonous land tenure
rules. |
Regarding the
term "autochthonous land tenure" |
Fortunately,
autochthonous land tenure is increasingly being spoken of instead of
"traditional" land tenure. The rights are not traditional, pre-colonial rights,
but rather institutional arrangements that can be differentiated from colonial and
national law, but continue to be vital and effective and have proven to be adaptable
within limits. The discussion on economic, social, and environmentally related
effectiveness or limitations of autochthonous land tenure continues to be controversial.
While many government administrations are very skeptical about respecting and actively
supporting autochthonous land tenure, the international donors and NGOs have become its defenders (cf. 4.4.4). |
Current
relevance |
Land can be
used simultaneously by several groups of people in different ways. The right to cultivate
land, to harvest fruits growing on its trees, to trespass through it with animals, to bury
dead on it or to gather or hunt on it can vary widely. This alone is not a characteristic
of autochthonous land tenure, but should also be a leading principle of legislation made
by a national state. Any attempt, at privatization that
does not consider this complexity is susceptible to marginalize weak social groups as
their current rights are given to the new owners. |
Overlapping
rights of different users |
Decentralized
autochthonous land tenure and a national uniform land tenure exist in Africa, Latin
America and Asia, juxtaposed to one another even if their rules contradict one another.
Indigenous structures are rarely integrated in national law. Some warn that in such an
attempt, the specific characteristics of autochthonous land tenure would be lost and it
would be robbed of its identity.
These parallels between differently designed land rights can be
explained by the (unwanted) incomplete introduction of the ownership forms preferred by
the colonial and national governments. It is often the cause of bloody conflicts. In
general, free land (in the eyes of the colonial powers) was declared state property which the European settlers could purchase, while the
remaining land continued to fall under autochthonous land tenure. Registration of common
property was only partly done. |
Parallelism of
land tenure systems |
The colonial
governments in Africa and Asia preferred the western concept of individual property over
the traditional communal law. The long-term goal was its introduction. It was intended to
support the sale of marketable products, thus opening up new sources of income.
Independence in many countries in Africa brought additional changes in the national land
tenure, for example, collective farms were established on state lands under the guise of
socialism. The new elite continued with colonial policies insofar as they attempted to
create a uniform national land tenure which was intended to replace indigenous rules or at
least reform them. |
Continuity of
central government policies in Africa and Asia |
In Latin
America autochthonous systems of land tenure were superimposed much earlier with colonial
structures. The rights were displaced and suppressed in part, but also revitalized and
integrated as an important element in the state land tenure. Such was the case with the
"ejido" system after the agrarian reform in
1917 in Mexico. The system is based on Aztec forms of common property and land use rights. In the 1960’s and 1970’s the agrarian reforms
which took place in Colombia were modified and also codified when land was distributed. In
Peru, the collective property from pre-colonial
times was even restored.
However, in most of the Latin American countries a further relaxation
and annulment of autochthonous land tenure have been seen since the 1990’s. The
increasing international interest in securing the rights of the indigenous people has,
however, produced very different approaches with varying success for the transfer of their
land collectively or individually.
Without doubt, this will continue to be one of the greatest challenges
for each country's land policy, for development cooperation
and for NGOs. They will have to take care that autochthonous land tenure principles are
considered and maintained. However, the search for innovative solutions to this are just
at the beginning. |
Modification
and codification of autochthonous land tenure in Latin America |
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