21 October 2017

USAID Commoditisation of Land Rights - Lessons for all Developing Countries with Land Problems

Customary House, East Timor
Customary house, East Timor. (c)wwright2008
ETLJB USAID, the IMF, The World Bank, The Asian Development Bank, AusAID and many other so-called donor institutions and nations have implemented land registration projects in many developing countries under the guise of securing land rights for the poor.

But this is an obfuscation for the primary motivation behind the commoditisation, privatisation and the creation of land markets.

The true purpose behind these projects, the funders and those donor governments is to facilitate foreign investment and state control extending far into customary or traditional communal land tenures where those pre-existed capitalist ideologies about land, land rights, land policy such as environmental management, use and management.

The facilitation of foreign investment is the greatest threat to communal land tenure systems and those communities who have existed within their own land tenure system since time immemorial. Ultimately, it leads to cultural destruction as traditional peoples are evicted and even killed on their own lands, environments are catastrophically destroyed, rivers poisoned, forests felled, weather patters disrupted and species extinction accelerated all in the name of foreign investment.

In urban settings, land registration projects that seek to convert customary land rights into formal registered rights always expose informal occupations over large areas of urban and peri-urban centres in the developing world.

As the State intrudes, funded by the donors, the people in occupation are under challenge to prove their ownership, which, being based upon customary transfers and devolutions of individualised customary land rights (which always remained subject to communal controls), was often impossible. In slums on state land, this problem is particularly challenging. Boundary determinations and right entitlement are determined by the executive organs of the state not the judicial ones. Disputes are common and frequently violent.

Land registration projects open the way for the state to declare the occupants' ownership as unevidenced and unworthy of recognition under the land registration laws enacted to facilitate formal registrations. Then, the occupant has to pay for the grant of right in the case of unlawfully occupied state lands, or bribe the state officials. This provokes disharmony in the community and stirs up social problems.

Bribery and corruption in mass land registration projects has been observed as chronic and intractable by the writer in several land registration projects in which he was involved in Indonesia, East Timor and Bangladesh.

In the Indonesian case, there was no proper base line studies done of customary land tenure systems before mass land registration, there was no adequate provision made for the protection and autonomy of customary land tenure systems (hak ulayat). Only mapping of hak ulayat areas was permitted. No juridical recognition of those systems as sui generis. No determination of the communal group or governance structures compiled.

As customary land rights are brought within the ambit of state control, they become distorted by the formal rights system which do not correspond with the parameters of the formal rights. For example, individualised communal land rights were unable to be sold or alienated to parties who are not members of the communal group. They could sometimes be inherited. They could sometimes revert to communal control if not utilised. Transmissions and granting of rights are not scrutinised or controlled by the state but by the authority structures of the communal group. Environmental controls have always been a central part of these systems of land tenure since they were so intimately connected to the social systems that sought to survive on their lands.

Such systems are not conducive to foreign investment because there is a perceived insecurity of title. Registration is supposed to confer security of title but the title secured is different to the one from which is was converted; the customary right or rights. It it a process that is deleterious to both the individual and communal land rights systems.

A good example of how western perceptions of land ownership are imposed on developing countries whose land is required for foreign investment is the USAIDs' Land Links program that

"is working to support private sector partners to de-risk investments and secure legitimate land rights in order to improve livelihoods and other outcomes for communities affected by investments."

Here is the obfuscation: "Secure, clear land rights are critical for sustainable land-based investments. But in the developing world, where an estimated 70 percent of land is unregistered, it can be challenging to understand who has legitimate land and resource rights, and land grabs and land rights abuses are often associated with commercial investments."

USAID Land Links is about to conduct a webinar on this subject "featuring USAID partners, The Hershey Company and ECOM Agroindustrial Corporation".  It will be held on Thursday, November 2, 2017 at 2:00 – 3:00 pm EDT. According to the webinar program, Olga Gormalova (ECOM) and Jeff King (Hershey’s) will be speaking, with Sarah Lowery (USAID) moderating. It will "explore how these companies think about and address land tenure risks in their supply chains."

The webinar will "delve into why and how these two companies are working with USAID to mitigate land tenure risks for their suppliers and increase cocoa yields in Ghana."

The ultimate goal is to increase cocoa production; a purely economic goal; not the protection of extant property systems or communities well-being.

It pays no regard to the impacts of western ideas of land as a commodity, privatisation of destruction of communal land tenure systems on local communities who are often disempowered, poor and subject to state intimidation on behalf of international capital facilitated by the international financial institutions.

USAID has been interfering with the customary land tenure systems in East Timor for nearly two decades. The programs were funded to the tune of tens of millions of dollars, numerous foreign experts provided defective advice to previous governments (the worst of which was Law No 1 of 2003 on Immovable Property (Lei Bens Imovais). Defective land rights claims systems were established with no sound juridical basis or proper research and investigation of land rights and land right systems in East Timor.

The draft laws produced by the absurd interventions by USAID were all rejected; vetoed by the then President Jose Ramos-Horta because it did not take proper account of the interests of the people.

Early draft land laws made no proper provision for customary land right tenures which were declared subject to an overall state control.

The USAID programs failed catastrophically to establish and entrench an Land Court or a proper judicial determination of land rights claims and conflicts. It drew up no edifying policy papers for the government. It did not take account of the applicable basic land law (inherited from Indonesia, the Basic Agrarian Law of 1960) or the applicable regulations on the conversion of Portuguese colonial land rights and pre-existing customary land rights in East Timor during the 24-year occupation from 1975-1999 when the Indonesian National Land Agency (Badan Pertanahan Nasional) took control of land affairs in East Timor.

Developing nations would do well to be circumspect in their considerations of proposals form the financiers and donors who propose land registration project in their jurisdictions. Economists, whose theories have long been discredited and which should not drive land policies in developing economies, should not be paid too much regard.

Warren L. Wright BA LLB

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