The latest piece of World Bank policy advice concerning land, issued in 2003, emphasizes the need for ‘tenure security, not necessarily formal title’. According to the World Bank, ‘sometimes communities are perfectly capable of handling the situation, by continuing to enforce and adapt the traditional rules governing property rights’.
In other words, the task of enforcing private-property rights need not be left to the centralized coercive power of the state (e.g. the registration of title deeds with government agencies, or their recognition in statute or common law). It can be performed, in decentralized fashion, by ‘traditional’ sources of authority and with local instruments of sanction:
It is now widely realized that the almost exclusive focus on formal title in the 1975 paper [by the World Bank on land reform] was inappropriate… In customary systems, legal recognition of existing rights and institutions, subject to minimum conditions, is generally more effective than premature attempts at establishing formalized structures.
Moreover, the appropriate ‘subject of right’ isn’t necessarily the individual. In some circumstances, says the World Bank, it may be wise to assign ownership of tracts of land to a clan, lineage, local community or ethnoregional group, incorporated as a legal person. There are ‘many contexts where group rights will be more feasible and cost-effective than individual assignment of property rights’:
Group rights will be more appropriate in situations characterized by economies of scale in resource management or if externalities exist that can be managed at the level of the group but not the individual. Group ownership is also often adopted in situations where risk is high and markets for insurance are imperfect or where the resource in question is abundant and the payoff from any land-related investment that individuals could undertake on their own is low.
Private-property rights are now justified by their role in protecting the rights of indigenous groups and women:
[For] indigenous groups, herders, and marginal agriculturalists, definition of property rights at the level of the group, together with a process for adjusting the property rights system to changed circumstances where needed, can help to significantly reduce the danger of encroachment by outsiders while ensuring sufficient security to individuals…
[Ensuring] secure land tenure will be of particular relevance for groups that were traditionally discriminated against. In addition to being warranted based on basic considerations of equity, attention to women’s land rights will have far-reaching economic consequences where women are the main cultivators, where out-migration is high, where control of productive activities is differentiated by gender, or where high levels of adult mortality and unclear inheritance regulations could undermine women’s livelihood in case of their husbands’ death…
Greater control of assets by women often translates into higher levels of spending on children’s education, health, and food. Similarly, even though the significance of land for indigenous peoples and herders goes beyond economics, even its economic impact has often been underestimated. Transferring property rights to indigenous communities, especially if combined with technical assistance, can allow them to manage these better or to derive greater benefits from the resources associated with their land.
This is fairly representative of the current outlook of national governments undertaking land reform in ‘less-developed’ countries, and that of ‘development’ circles (NGOs like Landesa, government agencies like USAID and DFID, and international bodies like the World Bank and the UN’s Food and Agriculture Organization), which bestow policy advice and donor funds on the former.
Since the 1980s, these parties have come increasingly to favour arrangements in which private-property rights to tracts of land are assigned (nominally) to groups or collective entities, and enforced by ‘customary’ sources of juridical-political authority.
This is evident in the substance and lexicon of recent laws and in planning documents on tenure reform. (It’s also apparent in the scholarly ascendancy of ‘common property’ advocates of natural resource management. a prominence only increasing since Elinor Ostrom was awarded the Swedish Riksbank’s ‘Nobel’ prize).
Development agencies like USAID and AUSAID run permanent and ad-hoc property-rights and tenure-reform programs. These programs encourage, promote and fund the extension of what they term ‘secure and well-defined’ private property rights to agrarian land and waters. But these organizations adjust, based on country-specific circumstances, what USAID terms ‘new programmatic approaches to foster property rights around the world… [adopting] new strategies and sequencing in reforms to promote property rights in diverse economic, political, and cultural settings.’ In other words, while the goal is the same in each case, the means of pursuing it will vary depending on local factors.
Respect for ‘customary rights’, ‘legal pluralism’, and the ’empowerment’ of ‘local communities’ has thus found favour, as a means by which to establish exclusive and indefeasible rights to land and other resources.
Policies are given names like ‘community-driven development’ and gestion de terroirs. Following examples of endowing ‘tribal’ property in the Philippines, Cambodia and Botswana, recent land reforms in countries like Mozambique, Benin, Niger and Rwanda have included provisions recognizing the ownership claims of ethnoregional groups. Administrative powers are wielded either by ‘traditional leaders’ – village chiefs, lineage heads – or by directors of incorporated entities or trusts. Timor-Leste, which in February passed several new laws on land tenure, was advised by USAID and Australian academics to follow those recent examples.
‘Customary’ group property has generally been invoked in arid and infertile parts of the world, in humid tropical conditions, and in remote or economically marginal regions like the Sahel, sub-Saharan Africa and the South West Pacific. These areas are occupied by small farmers, ‘garden’ cultivators, livestock herders and foragers. As the World Bank observes, population densities are usually low enough, in such settings, that land is a relatively plentiful resource, and ‘the payoff from any land-related investment that individuals could undertake on their own is low.’ In such circumstances agrarian land and other resources is usually not subject, initially, to exclusive private ownership. Hunting, pastoral or cultivated land may be organized as an open-access resource, common property or small individual plots (in many cases, post-colonial governments brought most of the land into public hands). Whatever the precise arrangement, in such societies usufruct or access rights are generally not exclusive (i.e. outsiders or non-owners are not prevented from using the resource or subtracting units, e.g. water).
In these societies, the enclosure of agrarian land has proceeded via the assignment, to an ethnoregional group or other collective entity, of property rights to these assets and resources. For this purpose the pragmatic acknowledgement of ethnically-based group property isn’t new: a recent post described how British colonial administrators recognized the communal property rights in land of ethnic Fijian clans as long ago as the 1880s.
The economic historian Robert C. Allen has described how it worked, around the same time, in colonial British West Africa:
Communal ownership usually became a custom, so people could acquire farm land only by being members of a tribe – and at the discretion of the chief, to whom they were subservient… The new-style chiefs became the foremen of empire, levying taxes, compelling labour, and using their powers to amass personal fortunes. Colonialism created a system of rent-seeking petty despots to rule the countryside.
Thus the evolution of World Bank thinking in the three decades from 1975: ‘customary land tenure’, having formerly been marked for eradication, is now considered a suitable tool by which (or under which aegis) to impose private ownership rights in places where they currently are absent: among ‘indigenous groups, herders, and marginal agriculturalists’.
This shift in official ideology is a manoeuvre repeated by the envoys of imperialism, again and again over the past 500 years, whenever they have encountered and sought, on behalf of capitalism, to engulf and destroy a foraging, herding or horticultural society.
In the first place it is loudly announced that these societies have none of the features necessary for ‘development’, and must be remade immediately; before it is declared that hold on! we may have something useful here, after all. In no case has the second step signalled the dawning of enlightenment, a progressive recognition of some hitherto ignored truth about colonized societies. The change in official ideology, like that today of the World Bank or USAID, was in every case a calculated and instrumental espousal of whatever theory, given the circumstances, was likely to advance strategic objectives: a turn to ‘new strategies and sequencing in reforms to promote property rights in diverse economic, political, and cultural settings.’
Colonists and their successors evaluated these societies using categories familiar to their own. In the first stage, this was to find ‘savage’ and ‘barbarian’ peoples lacking: they didn’t know how to farm, dress properly, or treat their women, etc., in ways that ‘civilized’ peoples did. When such a society was conquered or settled by forces (states, organizations, etc.) bringing with them the novel institutions of capitalism, its defeated members were constrained (by the coercive power of the victors) to adopt new cultures, property rights and other forms of economic governance, child-rearing practices, schooling and constitutions. Australia and Hawaii can stand as examples of these practices, and of the devastation they unleashed.
Eventually, in the second stage, local societies (or rather the wasted wreckages of them that remained) were discovered to possess, after all, some familiar and characteristic attributes: ‘customs’ and ‘traditions’ that resembled, however imperfectly, the laws and institutions of an advanced society. In Australia, anthropologists, historians, novelists, politicians, missionaries, lawyers and civil servants gradually detected in Aboriginal societies all the common paraphernalia that Talcott Parsons suggested were evolutionary universals: monarchs, territorial possession, social stratification, incipient markets. Ethnographers claimed to recognize the existence of tribal ‘kings’ and ‘chiefs’. Others, as recently detailed by Ian Keen at ANU, detected the presence of ’estates’ of land to which ‘tribes’ held property rights.
Which of the two attitudes predominated at a given time depended on which was most propitious for the needs of imperialism.
(This functional relationship worked either through the deliberate tailoring of ideas to suit ruling needs, or through a kind of selection process: ideas that contributed to the successful flourishing of imperialism were fostered, rewarded and differentially transmitted throughout society by funding, the granting of advisory and consultative roles, recognition as an ‘authority’, inculcation through media and schools, etc., whilst those deemed unhelpful were thwarted, penalized and ignored.)
Thus, when the Australian state leadership made a bipartisan decision to grant limited property rights and administrative authority to Indigenous trustees, it also called forth and promoted theories favourable to the policy’s implementation. In its ruthless pragmatism it preceded the World Bank by several decades.
W.E.H. Stanner was the anthropologist appointed by Prime Minister Harold Holt to the Council of Aboriginal Affairs. His name is inevitably invoked (inviting cheers or boos) in public discussions about the origin of Indigenous land-rights policy. Stanner defended the horde model of Radcliffe-Brown, in which a clan or totemic descent group was considered to possess its own territorial ‘estate’ and foraging ‘range’, and ‘acts of trespass’ on the proprietary lands of another group could be punished by death. (Of this theory Marc Gumbert noted: ‘there was an homology between the economic and political background of colonialism, and its ideology which crystallized in the Radcliffe-Brown horde’.)
In a 1978 book, Kulinma: Listening to Aboriginal Australians, the high-level civil servant H.C. Coombs could assert that the opposition of Aboriginal people to environmental despoliation by mining companies was based on a prohibition, within ‘traditional cultures’, of ’infringement of property rights’.
The historian Henry Reynolds, quoting the diaries of G.A. Robinson, could reveal the existence of ‘exclusive possession of territory’, as well as ‘patriotism’ and martial spirit, in Aboriginal and Torres Strait Islander societies.
To untrained but hopeful and well-meaning ears, the recognition of Indigenous ‘customary rights and interests’ by the Australian state leadership over the past four decades, as with the recent policy advice from the World Bank on land reform, may seem vaguely ‘progressive.’ Each promises to assist ‘groups that were traditionally discriminated against.’
Group-based ownership rights hold obvious appeal to such terribly oppressed groups as the San, some of whose members now seek recognition as the First People of the Kalahari. (A royalty-sharing agreement was famously struck following an intellectual-property dispute with a pharmaceuticals firm over an anti-obesity product derived from a desert cactus.)
The pursuit of ethnically-based property rights finds ready adherents amongst the desperate mass of asset-free people, as well as amongst elite figures, who hope thereby to gain social status, decision-making authority and income streams.
But the appearance of progress is illusory. The recognition of ‘customary rights’ and the candidly racist contempt of the past are obverse sides of the same Janus-faced beast. Imperialism is driven by necessity to extend private ownership and capitalist property relations into every available domain, and compelled to overrun and devour whatever gets in its way. The adoption of ‘new programmatic approaches to foster property rights’ is the behaviour of an insatiable predator, remorselessly circling its quarry in search of the latter’s most vulnerable point.
From whichever direction the attack proceeds, the consequences are the same. For a forager or herding society, whose members are dependent for survival on access to unowned things, the enforcement of private claims on resources, however it occurs, has a genocidal logic. On these societies imperialism imposes a new principle, to which it brooks no objection and admits no query: personal entitlements with regard to worldly things (e.g. natural resources) – including the power to use such material resources or facilities to satisfy basic needs, undertake sustenance-drawing activities or secure personal livelihood – are conferred only by virtue of holding property rights in the resource, or from the consent or authority granted by owners. Unless an individual holds personal property rights, is a joint owner through membership of a group or entity that holds communal property rights, or receives permission from such an owner, he has no claim at all over the owned resources: they are unavailable to him.
Since, everywhere, the distribution of productive assets is drastically unequal, only a tiny number of owners benefit from the enforcement of property rights. ‘Customary rights’ and related concepts usefully invoke national distinctions and ethnoregional parochialism to persuade the remaining people – to whom private ownership will mean at best a sharp decrement in welfare – that their salvation too rests in the latter’s embrace.