Addressing Fuzzy Boundaries in Community Delimitations For
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Addressing Fuzzy Boundaries in Community Delimitations for Systematic Cadastre in Mozambique João Carrilho Marisa Balas National Directorate of Land EXI Lda [email protected] [email protected] Mario Ruy Marques Zileque Macate Verde Azul Lda Verde Azul Lda marioruy.marques @gmail.com [email protected] Christiaan Lemmen Dutch Kadaster [email protected] Paper prepared for presentation at the “2019 WORLD BANK CONFERENCE ON LAND AND POVERTY” The World Bank - Washington DC, March 25-29, 2019 Copyright 2019 by author(s). All rights reserved. Readers may make verbatim copies of this document for non-commercial purposes by any means, provided that this copyright notice appears on all such copies. Abstract This article is part of a series of studies that have been conducted regarding the process of systematic registration of land rights in Mozambique, both for communities and individual occupants. The methodology adopted to support the systematic registration, combines the delimitation of community lands and the registration of individual parcels. According to the proposed methodology, the outline of community boundaries must be established before individual rights are captured, and that must be the result of a consultative and participatory process. It is known that various conflicts between neighboring communities and individual users result from boundary disputes. Furthermore, when considering the concepts of “continuum of rights” and “bundle of rights” (UN-HABITAT, 2008), provision should be made for overlapping and sharing of rights in the same parcel (Agustinus & Lemmen, 2011). If not taken care of, systematic land rights recordation can lead to an increase of conflict situations. Therefore, one of the main challenges requiring solutions through the methodology is that of boundaries: administrative, inter-communities and inter-parcels. These potentially conflicting situations occur more frequently in border areas, where there is no correspondence between the administrative division and community circumscription. While some discrepancies arise from the technical cartographic process or in relation to both reliability and precision of representation, with different sources, there are real uncertainties and overlaps, generally not covered by field staff and their data collection instruments. Field staff, also generally, does not allow for the possibility of the same area being adjudicated to two communities or individuals simultaneously. The solution proposed by the authors is to explicitly incorporate the knowledge of these discrepancies, particularly those rooted in history since the commencing of the colonial regime and, with that, the consultative process, into the programs of systematic registration of community and individual lands, by introducing a category of areas of potential overlap and or uncertainty as to rights and users. KEY WORDS: Community Delimitations, Administrative Limits, Land Cadastre 2 I. Introduction This article draws from the experiences of different studies (Balas et al, 2018, 2017, 2016; Monteiro, 2015; and Cabral & Norfolk, 2016) that have been conducted regarding the process of systematic registration of land rights in Mozambique, known as the Terra Segura program, both for communities and individual occupants. The laws in Mozambique determine that land rights can be acquired by occupation, both for communities and individuals, either by customary norms or in good faith, regardless of formal registration. The Constitution, in article 111, obliges the State to recognize such rights (Moz. Const., 2004, p. 111), except in legal reserve or if the land has been adjudicated to another person or entity. While there is no legal requirement of formal registration attached to such recognition, the government promoted it in order to improve and increase knowledge on the situation on the ground and also with the aim of increasing security of tenure and inclusion of communities and individuals in investments. In this way sustainability of the environment and land use and improvement of the overall land governance in rural areas is promoted. The emergence of land related large scale projects also prompted this initiative. As more than 99% of the country’s agricultural holdings are not registered (INE, GoM, 2011), a large scale, massive systematic registration was deemed necessary. Five million individual holdings are to be recorded and 4 thousand communities to be delimited. The World Bank and other government partners are supporting the government in this endeavor. A. The context While some pilots started to be implemented around the year 2000, the activities were decelerated allowing for its review and, in this way, to regulate some challenges. After 2007, two main initiatives took place. First, a group of donors agreed to support a project to assist communities in the delimitation of their lands. Conceived as a tool to respond to demand coming from the communities themselves, it later changed to a supply-led approach. The second, a Land Services Project under the Millennium Challenge Corporation funded project, implemented both community and individual land rights regularizations. It was later agreed that individual regularization should preferably take place sequentially where community delimitation was completed. The moto was “delimitation first” (Monteiro, 2015). 3 B. The problem Two problems related to this stance are attracting the attention of the land administration institutions. The first one relates to the number of field records that fail to be validated to enter the national land cadastre in its Land Information Management System (LIMS) which in Portuguese translates into SIGIT - Sistema de Gestão de Informação sobre Terras. The methodology and the software requires a correct location within an administrative unit to be validated. There is the perception that unvalidated records lie mainly close to the limits of such units. Recognizing that this could well be due to reliability and measurement errors in the reference maps as indicated by Mendito et al (2007) in Figure 1, some rules of conditionality for data collection were relaxed in due time. For instance, validation of the location of the parcel within an administrative unit lower than district-level is no longer required. The question is: should the program stick to the “delimitation first” rule or should it also be relaxed, and under which conditions? Secondly, with the acceleration of the registration, in a matter of a few years there will be some 4 million registered parcels, with their land use titles issued. Annually, judging by the recent experience, one can easily expect some 500.000 new individual/household land use titles and some 200 community delimitations. There is doubt on which level should administrative tasks be delegated, so as to allow it to be as close as possible to the land rights holders, to keep the cadastre true and updated. There are four possibilities – the district, the administrative post, the locality, or the community, the latter being the closest, but not currently a level of state administration. Should the program suggest that communities be elevated to locality status to allow for a smooth delegation of administrative powers of cadastre management? These issues are compounded by the fact that there are strong opinions from two main points of views among officials and practitioners: the first says that if it is well done, linking community delimitation to individual rights recognition does not only have the potential to reduce the occurrence of conflicts, but rather creates a favorable environment to improve the overall land governance, starting from the mapping and the land use planning and its implementation. And, indeed, it has the value-adding of contributing to the overall governance of the rural transformation, which implies changes in land occupancy resulting from transactions related to consolidations, resettlements and land use changes within the community. In support to this point of view is the fact that this approach helped in strengthening the position of communities and individuals in negotiations with large scale land related investments in plantations, mining and other resettlement inducing infrastructure investments. 4 The other point of view defends that there is no need to link individual use rights recognition to community delimitation, that in fact it can even delay the process of community delimitation and increase substantially the chances on conflict. And, since the lack of registration or documentation does not preclude the acquired rights, it may only be needed if a conflict or threat occurs. Furthermore, when considering the concepts of “continuum of rights” and “bundle of rights” (UN- HABITAT, 2008), provision should be made for overlapping and sharing of rights in the same parcel (Agustinus & Lemmen, 2011). As it is known that various types of conflicts between neighboring communities and individual users may emerge from boundary disputes, there is the risk that the systematic land registration with hard-set limits of communities may increase local inter- and intra- community conflicts, and those between the communities or individual/household good-faith occupants and external agents, including investors. It might, indeed, reduce security of tenure. Therefore there is a need to work carefully – and slowly – to avoid conflicts with potentially disastrous consequences for social and economic stability (Reyes-Ramos M. E., 2005; Takeuchi & Marara, 2009).