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The Right to Land and its Use

 

Contents:

 

Overview

What type of problem do you have?

Ownership of land

Occupation of land / tenure

Use of land

Access to land

Enjoyment of land

Who can sue / enforce their rights?

What legal arguments would you have to make?

Formal rights / ownership / leases

Tenure based rights

Occupation rights

Usage / enjoyment rights

Customary rights

Access / passage

Ancestoral / settlement rights

What kind of remedies should you claim in a land case?

Sources of applicable law?

Practical Tips / issues specific to land

Risks to consider

Other considerations specific to land

Further resources

 

 

 

 

 

Overview

 

This page may help with problems and disputes over land, including:

 

(a) Disputes over who owns land, land seizures or “grabs”, forced evictions

(b) Occupation of land/Tenure,rights to live or stay on land

(c) Use of land – Your use of land - Farming/growing food, Grazing/pasture, Wood or fuel, Water/food, Gathering, Minerals/right to what is below ground, Air space, Business, Parks, protected areas, forests

(d) use of land -Use of land by otheresDeforestation/logging, Ranching, Mining/extractive, Biofuels,Palm oil/soya

(e) Access to land – for any of the above (in (c)) or, Spiritual,Graves of family/ancestors, exercise of cultural rights

(f) For activities which might spoil your use of land such as pollution see the separate environment section)

 

Who may benefit from legal action

 

You may be an individual, a local community, a member of a specific group (women, ethnic groups, indigenous people) or an organisation concerned with land

 

What kind of remedies are available

 

Litigation may result in:

An order from a court of tribunal, Declaring that you are owner or  entitled to occupy or use or enjoy land,  stopping someone else occupying land or controlling it or infringing your rights, providing you with alternative land, paying you compensation (see below 'what remedies should you claim')

 

You may be able to obtain redress against:

 

Local or national governments of departments or officials

Corporations including their parent companies

Stakeholders in corporations

Other members of your community or family that you are in dispute with

 

Challenges you may face in obtaining a remedy

 

You may be able toobtain redress in a variety of court or tribunals or before other bodies, in the place where the problem is occurring or where the person/corporation/group causing the problem is based

 


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What type of problem do you have?

 

  • Ownership of land

    • Disputes over who owns land

    • Land “grabs” [link Tirana declaration]

 

  • Occupation of land/Tenure

    • Threats to rights to live or stay on land

    • Forced evictions

 

  • Use of land

 

Protecting your use of land

 

Farming/growing food

Grazing/pasture

Wood or fuel

Water

Food [ link to www.srfood.org ]

Gathering

Minerals/right to what is below ground

Air space

Business

Park, protected areas, forests [ http://pubs.iied.org/G03674.html ]

 

Preventing adverse use of land by others

 

Deforestation/logging

Ranching

Mining/extractive

Biofuels

Palm oil/soya

Building/settlements for others

 

 

Access to land – for any of the above or

           

Spiritual and/or cultural

         Graves of family/ancestors

 

Enjoyment of land (for pollution and environmental degradation see Environment section)

 

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Who can sue / enforce their rights? (REMOVE THIS??)

 

 

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What legal arguments would you have to make?

 

Formal rights / ownership / leases

 

A. Formal land rights can exist in a variety of different forms. The possibilities are:

 

1) Public/State Property: this applies in cases where the state or another public body formally or legally owns of a piece of territory. Examples include national parks, public spaces, national development projects and state-owned farmland. In some countries[TB1] , the state may formally own all (or a large portion of) the land within its borders. However, tenants in these countries may still have substantial land rights, despite a lack of formal ownership.

 

2) Private ownership: land is formally owned by an individual or a legal entity (such as a corporation).

 

3) Common property: land is owned by a group of people or a community.

 

4) Open access: no individual or body holds specific rights, although there may be customary/formal rules in place to regulate use.

 

5) Vacuum situation: no formal or informal law applies to the land in question.

 

B. In addition to formalised land rights, ownership may be derived from customary land rights, regulated by traditional and cultural structures. Depending on the legal structure in place, formal land rights and customary land rights might be mutually reinforcing or contradictory. (Maybe link here to the “How do I get customary rights recognised legally page”?)

 

C. Finally, usufruct land rights establish the right to inhabit and derive profit from a piece of land, despite not legally owning it. They may apply if a tenure-agreement has been signed with the legal owner, or under the framework of customary and community arrangements.

 

 

Tenure based rights

 

Occupation rights

 

Usage / enjoyment rights

 

Customary rights

 

Access / passage

 

Ancestoral / settlement rights

 

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What kind of remedies should you claim in a land case?

 

  • Local administrative procedures

    • Formalising your land rights – link to USAID Angola study

    • Registration/declaration of (protected/common) status of land

 

  • A court order

    • Declaring that you are owner or  entitled to occupy or use or enjoy land

    • Quashing/annulling law or permit or decree legitimising land “grab”

    • Stopping someone else occupying land or controlling it or infringing your rights

    • Preventing a forced eviction [link to Node 197]

    • Providing you with (rights to) alternative land/rehousing

    • Paying you compensation

 

  • Agreement or settlement

    • Participation on decision on land and its occupation or use

    • How land is to be used

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Sources of applicable law

 

Local/National

Local national law on land ownership and occupation

Trespass

Customary law

Women’s Property Rights Under Customary Law (South Africa)

[link/ref to] Olivier de Schutter (UN Special Rapporteur on Right to Food) report to 65th General Assembly of UN) and sources cited

Planning/environmental laws - EIAs

Law on conduct of foreign investors

BITs

Challenging Tax exemptions and incentives

Challenging any lack of proper procedure/consultation/notice [link to HR principle of Free Prior and Informed Consent http://www.etoconsortium.org/nc/en/library/documents/?tx_drblob_pi1%5BdownloadUid%5D=77 ]

Criminal law

Constitutional rights – look right to life, environment, shelter and protection against deprivation of property

Biodiversity/Habitat/Protected Species law

 

Regional/International

International Provisions:

 

  • Ruggie Guidelines

  • Maastricht Principles on ETOs   http://www.etoconsortium.org/en/thematic-focal-groups/extractive-industries-landgrab-transnational-corporations/]

  • International Labour Organisation

  • Human Rights

    • UNDRIP

    • Inter American Convention on Human Rights

    • San Salvador Protocol

    • UNDHR

    • International Covenant on Economic, Social and Cultural Rights

    • International Covenant on Civil and Political Rights

    • International Declaration on the Rights of Indigenous People

  • International Convention on the elimination of all forms of racial discrimination

  • Indigenous Rights

  • Women’s Rights

 

 

Regional Provisions

 

  • The African Charter on Human and People’s rights [based on/link to Node 188]

    • The Protocol on the Rights of Women in Africa [link to Node 176]

    • Link to Enderois case study [Node 189]

    • Link to Haki Network [Node 191]

 

  • European Convention on human rights [based on/link to Node 193]

    • Link to Dogan case [Node 194]

 

  • American Convention on Human Rights [based on/link to Node 190]

 

  • Link to Saramaka Case Study [Node 192]

 

Soft law

 

  • FAO guidelines may impact land rights

  • Africa Land Policy Initiative [  link to http://www.uneca.org/lpi ]

  • Sign up by corporate to various codes

  • Statements of fact/intent/policy/CSR in corporate reports/filings/websites

  • FLEGT VPAs  signed by (eg Cameroon and Liberia)

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Practical Tips / issues specific to land

 

 

 

 

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Risks to consider

 

 

 

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Other considerations specific to land

 

 

 

 

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Further resources

 

 

 

 

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Link here to access the PIL Checklist which covers:

 

What is PIL?

How could PIL help me?

What is my goal (remedies)?

When can I take action?

Who can take action?

Who can I take action against?

Where can I take action?

How can I gather information / evidence?

How can I finance my action?

How do I deal with community security issues?

How do I enforce a court order?

Alternatives to PIL?

Where can I get further information?

 

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