Embed Size (px)
Citation preview
World Bank Conference on Land and PovertyWashington, DC, March 25, 2015
Secure Land Tenure: Think You’ve Got It? Maybe Not!The Pitfalls of the Implementation of Land Administration
Systems in Developing Countries.
Synther Chitolie: Attorney at Law, Legal ConsultantLand Tenure & Property Rights Consultant
Outline of Paper
Introduces the Land Tenure Institute (LTI), its objectives and purpose.
Portrays the leading advocates of land rights and the rule of law – the Magna Carta, Adam Smith and Hernando De Soto.
Identifies the problems of land tenure in Developing Countries.
Highlights the problems emanating from the implementation of modern land registries and cadastres.
Presents practical solutions for dealing with the problems arising from the implementation of modern land registries and cadastres.
Concludes with positive solutions to help resolve the problems of land tenure and property rights in developing countries.
The Land Tenure Institute (LTI)
Created for the purpose of dealing with the problems of poorly protected and implemented land rights arising prior to and post the implementation of modernized land administration systems in developing countries.
Principal objectives are to advance the adjudication and titling of all lands for registration in the modern land registry; for land law reform and due diligence of past land projects.
Aims to work with Governments and donor and lending institutions intending to implement a modern land registry and cadastre in developing countries, and also with governments and countries that have already implemented the system.
Recognizes that land rights are established via the rule of law and seeks to develop and implement a judicious process to secure land rights.
Advocates of Land Rights via the Rule of Law
Magna Carta
Adam Smith
Hernando de Soto
The Magna Carta Signed by King John in England
June 15th, 1215
A Panel on the Bronze Doors of the US Supreme Court
The Source of “The Rule of Law” and
“We the People”
Ignited the concept of the rule of law and other laws concerning the rights of citizens.
June 15th, 2015 marks the 800th anniversary.
Developing countries are still saddled with the problems of land tenure and land rights.
Adam Smith “On the Wealth of Nations”
“It is only under the shelter of the civil magistrate that the owner of that valuable property, which is acquired by the labor of many years, or perhaps of many successive generations, can sleep a single night in security.”
Adam Smith articulated that it is only where land rights are protected by the rule of law that citizens can enjoy peace and prosperity.
Hernando de SotoOn the “Rule of Law”
“A property right initiates the rule of law … makes people interested in the rule of law. The first thing that they understand … is that everybody on this earth lives on a plot of land.”
Hernando De Soto asserted that only property rights established by the rule of law can break the chains of poverty in developing countries.
Raises the inevitable question on whether Governments are being forced to recognize and protect the land rights of their citizens.
Problems of Land Tenurein Developing Countries
Peru – The IDB Report shows that Peru has more than one million farmers, 1,000 native communities, and 800 campesino communities without property titles; in the Sierra region 600,000 farmers have no property title and 230,000 farmers lack property titles in the Selva region.
Mexico – The Decree Public by the Mexican Senate reported that over USD$148 million had been spent on registry and cadastral projects which have produced mixed results such as: inefficient manual registration systems; inadequate technology where public records still continue to support registration within books, and the registry system is not integrated with the cadastre.
Africa – Herman Chinery-Hesse, dubbed the Bill Gates of Africa, articulated that 60-70% of people in Africa are farmers who have no title to the land they are farming on, and that is the source of chronic poverty.
Other Examples
BelizeProtests for land titles
http://edition.channel5belize.com/wp-content/uploads/2012/04/
HaitiUncertainty on who owns what!
http://www.newyorker.com/business/currency/owns-haiti
Other Examples(continued)
Papua New GuineaLocals protest land grabs
http://www.greenpeace.org/international/en/multimedia/slideshows/Fight-for-PNGs-stolen-forests/Locals-Protest-Land-Grabs-in-PNG/
LiberiaResidents viewing the land they say was
seized for foreign investors
http://www.irinnews.org/report/94882/liberia-land-grab-or-development-opportunity
Other Examples(continued)
ColombiaLand rights causing conflict after
reported killing of unarmed peasants in Catatumbo
http://www.theguardian.com/global-development/poverty-matters/2013/jul/18/colombian-farmers-disputes-land
JakartaSpeaking out against water, land grabbing
http://www.demotix.com/news/1521836/speaking-out-against-water-land-grabbing-jakarta#media-1521808
Problems emanating from the implementation of modern land registries
and cadastres
Legal Aspects of property Ownership are often Overlooked
Land administration systems are generally implemented with the view of establishing a modern land registry and cadastre system.
Little or no thought is spared on the legal ownership - rights, title and interest of the parcels to be created for the modern land registry.
The Rule of the “PIN”
If you have no PIN, then you own no land.
While the adherence to the use of a Property Identification Number (PIN) is an invaluable tool in the management of registry and cadastre systems, its use can undermine the operation of a deed registration system.
The proof of ownership to land becomes subject to a given parcel number and not by, for example, a deed of title.
Legal rights or interests to land which may otherwise arise by contract, estoppel, prescription or overriding interest, are not embraced by the system of land registration as land title is often not being adjudicated and titled for registration.
Increasing Land Grabs
The potential for governmental agencies, statutory bodies and the societal elite to mutate parcels at will.
These mutated parcels are often registered to statutory bodies or societal elite that sell those lands for profit.
Land records are not archived at multiple domestic sites or hosted outside the Country making the land registry subject to potential land records alteration or the registration of property at will or favor.
The modernization of land registries operates to the greater advantage of the Government rather than the peoples of the country.
This is primarily because of the failure to establish land rights for each square foot of land in the country to be registered at the land registry. It is a fact that many cadastres are incomplete and provide opportunities for corruption and land grabs.
Where land appears to be without an owner in the modern registry and cadastre, there is an “open invitation” for government agencies, statutory bodies and societal elite to engage in land grabs as those lands are free for the taking.
Even if citizens may be in occupation of those lands, and lawfully entitled thereto, the failure to implement a system of land adjudication and titling deprives those citizens of their rights to land.
Reality: The Governmentet al Want it All!
Failure to adjudicate land rights -No shortage of Corruption by National Governments
Newspaper report in Belize discloses the Minister of Lands giving lands to his family because they are not “normal” Belizeans, despite having a sophisticated and modernized registry and cadastre.
Jamaica newspaper reported a land title nightmare where purchasers were unable to get proof of ownership forty (40) years later, despite having a sophisticated and modernized registry and cadastre.
Dominican Republic newspaper reported that the heads of the National Cadastral Surveys and of the Land Court Central Department were fired after years of complaints and indictments over alleged title fraud in the Dominican Republic’s Real Estate Jurisdiction.
Curacao newspaper reported that one of the oldest money laundering methods on the island is land grabbing.
Friends of the Earth International reported that in Uganda, communities are being forced off their lands by an alliance of corporations, international organizations and government powers set on using the land for palm oil production.
Failure to undertake due diligenceon past land records modernization projects
What would post-implementation due diligence show in 14 projects executed by IDB in the following countries?
Bahamas
Ecuador
Belize
Guatemala
Bolivia
Haiti
Brazil
Jamaica
Colombia
Panama
Top 10 Practical Solutions 1) Establishment of non-profit NGOs to secure land tenure via applying the Rule of Law and vigorously recording and implementing land rights (ensure that land administration system “subject matter experts” do not act as lawyers).
2) Land law reform that implements the adjudication, titling and registration of all rights to land.
3) Adjudicate the legal rights, title and interests to each square foot of land and ensure there are no gaps in the territorial coverage. Again, it is a fact that many cadastres are incomplete and provide opportunities for corruption and land grabs.
4) Lending and donor institutions to enforce mandatory land adjudication and titling to registry and cadastre modernization projects.
5) Legal consulting before the funding/implementation of land projects to obtain practical and enforceable recommendations to help protect and secure land rights.
6) Scan all land records of adjudication, titling and registration and keep either in escrow or on a data server for the protection of rights in the case of land grabs.
7) Provide agricultural incentives or aid packages to the Government in return for providing full ownership to land to the persons deprived.
8) Ensure The Rule of law is understood by donor agencies and donor countries to be the pre-requisite, the foundation, walls, and roof around land rights for all people and developing countries.
9) Perform due diligence on the post-implementation of land projects.
10) Convince all stakeholders, including despotic rulers, non-democratic leaders and wayward presidents, that the objective of any land administration system should be the creation of clear and transparent land title and registration.
Top 10 Practical Solutions(continued)
In Conclusion…………Modernization of Registries and Cadastres should not be undertaken without land adjudication and titling of all lands.
Need for land law reform in developing countries.
Protection of land rights must be the cornerstone of all modern land administration systems.
Lending and donor institutions must intervene to secure land rights in developing countries.
Lending and donor institutions must enforce mandatory land adjudication and titling to registry and cadastre modernization projects.
For citizens of developing countries - A plot of land is all they need, will lending institutions and donor agencies make it happen?
