Tenure and security of tenure

Tenure is ‘the holding of something of value for a length of time’. Tenure can be by private, communal and public actors (the government at various levels). Communal tenure can be legal (based on state laws and registries) or customary (based on local legitimacy[1] and oral history[2]). Tenure comprises a bundle of rights that normally include access and use (for subsistence or income generation), management and exclusion of others. Only certain types of tenure (e.g., private property) also include the right of alienation, due process and compensation (e.g. subdividing the unit under tenure, selling the rights, claiming for compensation). In general, exercising tenure means governing, managing and regulating access and use, and it can go with or without a formal title. Many indigenous peoples and local communities are more interested in securing the exercise of their tenure than in legally owning land, fearing all sorts of problems with the latter (property taxes, gender inequality, debt traps and exposure to unwanted investors, conflicts among communities with overlapping claims for the same territory, etc.).

For many indigenous peoples and traditional communities, customary land tenure without a formal title is the main form of land regulation, including access, use and transmission of tenure itself.[3] Land tenure is deeply entrenched in social and cultural customs and implemented through collective (community, group, family) arrangements. In the last centuries, colonial powers, national governments and businesses have commonly ignored (or mis-recognized) customary tenure rights. This has led to the extensive dispossession of indigenous peoples and local communities from their territories, lands, waters and biodiversity (land and water grabbing), including for the creation of protected areas (green grabbing). At the base of this misrecognition and dispossession stands the colonial doctrine of the conquered ‘no-men’s land’ (terra nullius), which is only slowly being supplanted by more appropriate understandings.[4]

Still today, when State agencies meet customary land tenure situations, they commonly suppress customary tenure rights or distort them in ways that endanger their long-term viability (for example, transmission rules are changed, large commons are subdivided into smaller privately-owned parcels, etc.). When they do allow for the formalisation of tenure, this usually requires complex and costly transactions, poorly accessible to indigenous peoples and local communities.

In at least two cases, the recognition of community tenure rights encounters further additional challenges. The first is the one of mobile indigenous peoples, who generally need vast territories for their transhumance or nomadic mobility patterns and, in particular, secure access to the wetlands necessary for their herds. The situation of mobile indigenous peoples has been plagued by lack of recognition of collective rights—a fact sustained and compounded by a variety of myths about mobility,[5] and by a general lack of understanding regarding its crucial benefits for nature conservation and sustainable livelihoods.[6] The second case is the one of customary sea tenure of indigenous peoples and local communities. Notwithstanding the obvious ecological integration of land and sea and the connectedness embedded in customary systems of territorial governance and livelihoods, most regimes of state and international law treat coastlines as hard jurisdictional divides. As a result, indigenous and community tenure in offshore areas is subject to conditions and rules even more restrictive than those that apply in terrestrial areas.[7]

We speak of security of tenure when the tenant of land, waters or other natural resources believes that its tenure will be upheld and defended by society. When tenure is secure, neither the grabbing of land, waters and natural resources nor the eviction of peoples and communities from their territories can take place. Tenure security is fundamental for the rights to life, food and culture, including traditional knowledge and local sustainable use practices that prevent land degradation and poverty.[8] While for much of history customary tenure has probably felt relatively secure,[9] contemporary changes in political economy—from trade globalisation to the resurgence of authoritarian and populist regimes—appear to foster and spread tenure insecurity all over the planet. Indigenous peoples and local communities are thus seeking ways to apply for formal tenure rights that could integrate (or ‘double-lock’) their customary rights and strengthen their capacity to protect their land and sea.[10]

It has been estimated that 65% of the terrestrial surface— mostly forests, rangelands, grasslands, savannas and shrublands— consists of ‘commons’, i.e., lands possessed and used collectively by rural communities in accordance with their customary norms.[11] The extent of lands legally owned by communities or officially designated for community use, however, is much smaller, amounting to only 18% of global terrestrial surface.[12] Mapping and registration of land generally involve laborious and costly processes that do not always end up guaranteeing tenure security. Custodian communities are nevertheless increasingly embarking on the process, considering that benefits may outweigh the costs.[13] Formal titles and documents appear more convincing than social legitimacy, especially when communities need to negotiate with companies and state agencies.

The process of providing some official recognition of land tenure (which is not to be equated to land ownership only), is likely to strengthen the bond between human communities and their territories of life, provided that internal and external conflicts can be avoided. In turn, one can expect that the bonds of tenure will foster the sound governance, management and care of the land, contributing to conserving nature and supporting community livelihoods and wellbeing. Conversely, if communities can demonstrate that their territories show a good conservation status, this is likely to strengthen their demands for tenure rights. This is a major reason why the ICCA Consortium promotes the ‘#appropriate recognition’ of territories of life: to secure the collective tenure of their community custodians.

Key references:

Mulrennan and Scott, 2000; Chatty and Colchester, 2002; Farvar, 2003; Scott and Mulrennan, 2010; Alden Wily, 2011b; FAO, 2012; Rights and Resources Initiative, 2015; Alden Wily, 2017.

See also: WRI page on indigenous and community land rights; The Tenure Facility; Landmark; Indigenous navigator; International Land Coalition; La Via Campesina; Rangeland Initiative of ILC; The Dana declaration website; International Collective in Support of Fishworkers.

[1] E.g., visual signs placed ceremonially in determined places.

[2] E.g., elders’ promises and agreements.

[3] Alden Wily, 2011b.

[4] High Court decision in the Mabo v. Queensland (No.2), Australia, 1992.

[5] Farvar, 2003.

[6] Chatty and Colchester, 2002.  See also Dana Declaration,

[7] Mulrennan and Scott, 2000; Scott and Mulrennan, 2010.

[8] In 2012 FAO has issued the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security.

[9] The exception made of episodes of wars, conflicts and foreign invasions. 

[10] Alden Wily, 2017.

[11] Alden Wily, 2011a.

[12] Ibid. See also: Oxfam, International Land Coalition and Rights and Resources Initiative, 2016.

[13] Notess et al., 2018.