There are a number of reasons for the position that communities’ land rights should be formally registered through the delimitation process as permitted in the Regulations. These are as follows:
- Since the Land Law places such a strong emphasis on community consultation in the approval of land concessions, the process of delimitation would ensure that there was clarity on who needed to be consulted (which community) and who the legitimate representatives were;
- In light of the policy objective of establishing partnerships between communities and investors, the delimitation process would establish the framework within which a partnership could be negotiated and, at the same time, award legal standing to the community, enabling it to enter into such a partnership arrangement; and,
- Registration of the rights would increase the level of security of tenure and strengthen the local community management role in the care and control over natural resources, as envisaged by the general policy of the GoM.
The delimitation of land as an objective in itself is emphasised by many NGOs that are working on the land issue. In addition to this, the position adopted by the Land Campaign and contained within a document produced by this body on the 25th November 1999 contains a particular view of "land occupied by local communities":
- With a few exceptions, all land in Mozambique falls under the customary occupation of at least one community
- There are common boundaries between community lands
- There is no ‘free’ land between the community areas
The nature of the right acquired by community and good faith occupants (through their occupation of land) and the right that can be applied for by private investors is the same in both instances: that is, a Direito de Uso e Aproveitamento de Terra (DUAT). As such, it is only possible for one legal entity (a community, a company, a private individual) to possess the legal right to a single piece of land at any one time.
To a certain extent this legal truth, combined with a parcel-based cadastral system, may have created the perception held by some that the delimitation of community lands must be done to ‘close in’ a community and, by so doing, identify the land which is then ‘free’ for private investment. That is, the delimitation of community land is viewed as being mutually exclusive to the granting of investor concessions. This is perhaps the single most important issue for which a strategic approach needs to be developed. It is an issue that has been discussed at a national level during and after the revision of the Land Law and the Regulations. If a consensus on a strategic approach to this issue can be reached in the province, there will be less potential for land conflicts and the task of designing appropriate institutional and financial support for the administration of land rights will be much easier.
The Technical Secretariat of the Land Commission, in developing the Technical Annex to the Regulations, put forward two models to illustrate the choice that exists when considering the concept of delimitation. In the ‘Closed Border’ model the community enjoys strong protection of land use rights within a closed border that does not permit access for private investors to utilise land. A DUAT awarded by the state can only be requested outside these delimited areas. In the ‘Open Border’ model, external investors are permitted access to use rights within the community-delimited area. The DUAT is still requested from the state but the conditions under which it is granted are developed in agreement with the community.
The establishment of a conscious approach that accommodates the co-existence of community-delimited land and private land concessions within these areas would be a major step forward for the implementation of the new Land policy. That is, the adoption of the Open Border model. This would be in accordance with the national policy objectives and has been the option favoured by the Technical Secretariat of the Land Commission. However, resistance to this approach exists both within the DINAGECA and at other levels of state administration. The private sector has not yet been provided with sufficient incentives to want to adopt it as a favoured option. Nevertheless, it is suggested that this approach would go some way towards achieving the following:
- preventing community land delimitation leading to the alienation of rural communities from areas of high productivity;
- permitting the fuller participation of communities in social and economic development of rural areas;
- establishing a firm basis for good relations between investors and communities and leading to a reduction in conflicts; and,
- accommodating the continued generation of the tax revenue to the government from these private concessions.
In practical terms this approach would need to be integrated into the ongoing activities of the SPGC. For example, the nature of this partnership should form part of the discussions between the parties involved in a community consultation process. At present, this process involves the recording of vague commitments on the part of investors (e.g. to upgrade access roads in the area and establish trading outlets) in the record of the community consultation. There have been reports from Nicoadala (a district close to the provincial capital of Zambйzia) that investors have subsequently reneged on agreements that have been made and in such circumstances the community have little chance of legal recourse; firstly, because the recording of the agreements is vague and secondly, because unless the community has actually delimited their land they have no legal personality and therefore no ‘standing to sue’.
There has been general support for the idea that communities, at these consultations, should be offered an explicit choice as to whether they wish to delimit the land under their occupation before, or at the same time as a DUAT is granted to an investor in the area. Even if they decide that this is not necessary or desirable at the time, the subsequent demarcation of the DUAT will, in effect, be a partial delimitation of the community area, since it will identify some of the boundaries of this area. Demarcation under the Open Border model would therefore require the identification of the community in whose land the application falls.
The demarcation process has the legal effect of a ceding by the community of the DUAT (that they have obtained through occupation) over the demarcated area. What then is the right that they are left with? The regulations regarding the renewal of a DUAT would not seem to give the community an opportunity to be involved in the renewal process. There is no obligation for the consultation process to be repeated, for example. If a concession is awarded for the maximum permitted period of fifty years, it may therefore be 100 years before the community gets an opportunity to review the terms under which they originally agreed to the ceding of their DUAT. In a context of hasty consultations this really does throw up the prospect of a long-term loss in land use rights. One possible solution would be for the government to adopt guidelines that state that, as a matter of practise, concessions should be awarded for a 10 year period, with exceptions made in special cases where there are significant initial investments.
The approach would therefore require some refinement of the procedures presently used by the SPGC to administer and register rights but it would also require the commitment from all role players, including government, private sector and civil society organisations, to contribute to this process. Whilst some NGOs have characterised the approach of many land use applicants as being an attempt to ‘grab’ land rights, the approach adopted towards the delimitation of community land rights also presently lacks a vision that accommodates the concurrent use of land by community groups and investors. Certainly, the delimitation processes that ORAM is assisting with in Zambйzia are occurring in isolation of DUAT applications in the same area and ORAM have only been involved in one community consultation processes to date, even in areas where they appear to be working with communities. Whilst it is the responsibility of the SPGC offices to ensure that relevant up-to-date information is freely available, it is also incumbent upon NGOs to assist the community to find out about the existence of awarded or pending DUAT applications. This issue was discussed in a workshop between SPGC and ORAM in July 2001 and it was agreed that there was a need to improve the availability of information on land concessions in areas being delimited and to discuss these concessions during the delimitation process.
In general terms there also needs to be recognition of the fact that the key areas where delimitation ought to be taking place are those where there are significant DUAT applications from investors and that delimitation and award of private concessions should be undertaken as complementary processes. More specifically, there would need to be recognition of the following key elements:
- That a concession (DUAT) is a land right held by a private individual or company which is legally awarded by the state, to which taxes for it’s use remain due to the state.
- That the concession is a temporary ‘ceding’ of an underlying DUAT previously acquired by the community through occupation, that has been delimited and is held and registered in the name of a local community.
- That for the period of the ceding of the right by the community the land in question is dismembered from the community delimited land under terms and conditions which are established in agreement between the parties, including the state, and recorded as part of the registration of the investor’s concession rights. Such terms and conditions would have to comply with the Land Law and Regulations and may contain specific provisions for duration and renewal of the concession, such as a more limited time period than the 50 year maximum permitted by law.
- That in the event of the state unilaterally revoking the concession right in accordance with the Land Law (e.g. for non-compliance with taxation requirements, non-compliance with the land development plan, etc) the land in question would be re-annexed to the relevant community delimited land or made available by the community to another investor.
It is important to note that the community, through the delimitation process, acquire legal personality and agreements made between them and investors would be enforceable.
Most community land delimitations currently underway appear to be defined on the basis of historical traditional boundaries, rather than by the formal government administrative definitions. There are about 380 traditional areas (regulados) in Zambйzia, recognised and mapped in the colonial period, and these have tended, with some small variations, to be the units of land rights holdings that a community seeks to register. No delimitations appear to have yet been initiated by non-traditional groupings, despite the flexible legal definition of ‘local community’ that would permit this to happen.
There remains considerable lack of clarity as to the legal status of delimited communities and the basis on which they are able to enter into partnerships with third parties. The Land Law provides for the selection of community representatives to engage with outside facilitators in the delimitation process. In Zambйzia there was a widely held assumption that these elected groups of community representatives would become Land/Natural Resource Management Committees. But, as the ZADP has discovered, there are many dangers with this approach and the role of these representatives after the delimitation process is not clear.
The procedures of the Land Law allow for the issue (the long term role) to be discussed with communities during the PRA process. Possible roles depend on the community and what already exists. The most likely role could be in continued land registration within the community (families and the development of village cadastre); land use planning, natural resource management, negotiations with prospective investors. The role could vary depending on the community.
Text Box 4: General characteristics of different land conflicts occurring in Zambйzia [Source: Norfolk & Soberano, ZADP, 2000)
- the occupation of areas of ‘old’ concessions, which were previously operated by state-owned companies and have recently come under the control of new private sector investors. Although there is uncertainty regarding the legal position of occupiers that may have occupied land in the intervening period between collapse of the state enterprises and the privatisation process, they themselves view their occupations as legitimate, particularly since it was often sanctioned by representatives of the state.
- the re-establishment of colonial-era private concessions by individuals or company investors, or the establishment of new concession areas. Both are done through application to the government in terms of the land law. This may lead in some instances to a conflict with neighbouring communities, where there is a clash between the subsequent uncontrolled grazing of newly introduced livestock and local crop production. In other instances, old concession areas may have also bee occupied since their abandonment, either spontaneously or with government approval. In either case, the lack of a common and systematic approach to application of the land law or its flouting altogether, has led to local conflict.
- In many situations the roots of some contemporary competing claims to land use rights have a long history and involve local community occupations of (and dislocation from) land in the early and middle parts of the previous century. These situations have sometimes led to the insistence of a community right to occupy in the face of a contrary legal position, where a community has "invaded" land that was legitimately awarded to an applicant in terms of the previous 1987 land law regime. In other instances, there is a deep-seated resentment regarding the continued occupation of land by some large companies that have been awarded previous state company concession lands.
- In a few areas, the application of the land law is "held hostage" to a local political and administrative elite, who are often more keen to encourage unfettered private sector investment in an area than they are to ensure protection of local community rights. In other instances there can be powerful political figures who are involved themselves in attempts to register land.
- Forest-based conflicts are occurring, although most local communities do not feel empowered to intervene in uncontrolled logging activities. These may be encouraged by the lack of effective monitoring and by unscrupulous behaviour on the part of local administrative structures.
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