New Technology for a New Century
Session 6 - Cadastral Systems and Sustainable Development
PRINCIPLES FOR EQUITABLE GENDER INCLUSION IN LAND ADMINISTRATION: FIG GUIDELINES ON WOMEN'S ACCESS TO LAND
Katalin KOMJATHY and Dr. Susan E. NICHOLS, Canada and Agneta ERICSSON, Sweden
Key words: land tenure, land administration, gender, urban and rural development
Land and housing are central issues in developing economies. How land tenure issues are addressed in development projects and by land administration agencies can directly impact the livelihood and security of people in urban, peri-urban, and rural settings. Failing to address the land and shelter rights of all stakeholders in a land development project or programme can cause unexpected problems and inequities, and often for the most vulnerable and disadvantaged members of society [See, for example, Harden, 1990].
Whether due to tradition, law, education, or economics, women are sometimes at risk in land development projects, even if it is intended that they share the benefits. For example, improving irrigation on women's fields may have the unintended effect of having these now valuable fields reclaimed by men in the community [Zwarteveen, 1997]. Enhancing housing in a community or peri-urban area may have similar unintended results when the units become more marketable [Varley and Blasco, 2000]. Professionals, such as surveyors, who are involved with land and housing projects therefore need to be aware of gender issues and need to ensure that the real objectives of the projects are truly met.
This paper is based on a report commissioned by the International Federation of Surveyors (FIG) to develop a set of guidelines for ensuring that land reform and land administration projects in developing countries and countries in transition are gender inclusive. The work is based on research conducted at the University of New Brunswick and on experience in a number of development projects. It is a further extension of initial work conducted by UNCHS and Sida for Habitat II [Sida et al., 1995] in Istanbul and by the United Nations Food and Agricultural Organization (FAO) [Komjathy, 1999; FAO, 1999]. This paper is also based on a FIG Workshop on Women's Access to Land in September, 1999, co-sponsored by the New Zealand Institute of Surveyors [see, for example, Eriksson, 1999; Nichols, et al., 1999].
The purpose of this paper is to provides a short summary on why gender issues matter in development projects and to propose guidelines that will assist development project managers, surveyors, and others in ensuring that land administration enhances and protects the rights of all stakeholders, including women.
1.1 Why Surveyors Should be Concerned
According to the Women's Summit [UN, 1995] findings in most societies women have very unequal access to, and control over land, housing associated resources, and basic infrastructure. It has been long acknowledged however that providing food for the family is primarily the responsibility of women [e.g, Crowley, 2001]. Yet women's direct access to land resources, credit, and shelter can be put at risk in programmes such as land titling, formalization of property rights, and even housing or road improvements.
Surveyors and other land professionals, who help to establish how land rights are allocated, adjudicated, and protected, need to be more aware that gender inclusive land policies and land institutions are critical. A first step in this direction is understanding the complexities behind a simple term such as "access to land".
2. ACCESS TO LAND AND ITS RESOURCES
Access is the right or opportunity to use, manage, or control land and its resources. It includes the ability to reach and make use of the resource. When describing access to land, we can distinguish between quantitative parameters (such as the nature of tenure, the size of the parcel and its economic value) and qualitative parameters (for example, legal security, and documented, or registered evidence of rights to land). These parameters play an important role in "measuring" access to land before, during, and after development projects or land administration programmes.
In many communities, access to resources is governed by both written and customary laws. In instances when conflicts exist between traditional norms and national laws, as is often the case when women's rights are considered, local norms generally prevail and are enforced by community members. Written national laws granting women equal access to productive resources are essential but for these rights to be legitimate and adhered to, it is necessary to secure the support of the local community. Thus "having a law" does not necessarily mean that women have equitable recourse to remedies should the law be broken.
Equitable access to land does not only mean the quantity of rights allocated. To make use of the rights and opportunities, access to land must also be enforceable or secure (for example, against seizure by force or by law). Equitable access must also be effective, i.e., by including equitable access to other resources such as irrigation, roads or finance. The support of legal, customary and family institutions are fundamental if women's access to land is to be preserved and improved.
Figure 1. Institutions that Affect Women's Access to Land and Housing Rights
3. WHY IS GENDER AN ISSUE IN LAND REFORM AND LAND ADMINISTRATION REFORM?
The body of evidence stressing that outcomes of land reform and land administration programmes and projects have different implications for men and women has grown significantly in recent years (e.g. Zwarteveen , Lastarria-Cornhiel , Agarwal , Habitat ). Traditionally, the involvement of men in such programs was viewed as sufficient and it was assumed that women and children would equally enjoy the benefits of the projects as dependents. As poverty and landlessness continues to expand and "feminization" of poverty becomes more apparent, development organizations and practitioners have had to seek a new direction to tackle these problems. Furthermore, as social, political and economical changes continue to undermine women's ability to secure adequate housing, fulfill the food requirement of the household and use land in a sustainable manner, development projects have begun observing women's priorities and concerns as separate issues.
Still, protecting and strengthening women's access to land and its benefits are not without adversities. The following example is a case in this point [for further examples see Nichols et al., 1999]:
Documenting Customary Tenure: In several African countries (e.g., Zimbabwe, Uganda, Malawi) there have been recent discussions and proposals to document or register customary rights in land as part of the development of national land policies. The arguments for these certificates of customary tenure and for registration are that the processes will:
Despite the merits or limitations of the processes, there could be significant impacts on women's access to land. The major difficulty is the fact that such documentation effectively freezes customary rules that are in place at the time. No account is made, for example, of such future rights as the right of a woman to return home and receive a parcel of family land after a divorce. Limited rights such as the right to pick fruit or gather wood on another's property may be eliminated by the documentation.
Then there is the question of whose name(s) the certificates or registers will record. For example, will the name be the de facto head of household, who may be a woman whose husband works away from home, or the de jure head of household according to customary law; there are limitations with both of these approaches, including the problem of whether the documents have priority over customary law in cases of inheritance when both names are recorded.
5. MONITORING AND EVALUATING THE SITUATION OF WOMEN
Having some measurement system for evaluating access to land is essential if the 'success' or 'failure' of a particular program, policy, or project is to be determined. There needs to be a set of indicators that can describe the situation before, during, and after something (e.g., a new law, a titling project) has occurred. Basically this is the same as a deformation survey of a dam - campaigns of measurements at discrete intervals of time to detect movement. The problem in measuring access to land is similar to the problem of determining which points on the dam are critical in detecting movement. These 'points' become indicators.
Measurement of access to land needs to involve both qualitative and quantitative parameters [See, for example, Nichols, et al., 1999]. Surveyors and other land administrators tend to think primarily of property rights to the surface of the land together with its fixed improvements. The focus becomes the quantity of rights (e.g., leasehold, freehold, easement), the size of the parcel of land, or its economic value. On the other hand, social anthropologists have tended to emphasize the uniqueness of land tenure systems within a given culture and focus on the nature or quality of the rights that may be involved. Both approaches are valid for certain purposes and both have their limitations. If, however, we are to design a way of measuring women's access to land it may be important to draw on both approaches.
One way of examining the quantity of rights is to view the 'bundle" of rights as a spectrum. At one end of the quantitative spectrum are temporary rights of use. At the other end is absolute control over what can be done with a particular resource, including who else can use the resource and for how long. Somewhere in the middle of the spectrum is the management of the resource where there is more limited decision making power (e.g., the ability to transfer rights and the opportunities to reap the direct and indirect profits from the resource). An English common law freehold estate then might be considered to be at the management level subject to the overall control of the state. A short term leasehold might be considered a temporary use right.
Examining the quality of the rights to determine indicators is more complex and only a few examples can be given here. One measure of quality is the legal security of the rights, i.e., how well do formal law (e.g., legislation) or informal law (e.g., traditional or local community rules) protect the ownership of the rights. Thus, for example, inheritance through entail or patrilineal inheritance rules may limit women's right of management or control. Physical security is another indicator that may be affected, for example, by war or by custom in many countries where land is seized by the male relatives on death of a husband. A third example of quality of rights is transferability. Use rights may often be non-transferable because they are vested in a family or particular family members. Furthermore, transferability may be affected by the quality of the evidence of the right, such as an official document or register.
In assessing the quality and quantity of rights, the scope of potential rights of access must be broad. For this reason we have chosen the term "access to land and the benefits of land". Some of these direct and indirect benefits that should be considered in measuring access include:
The next step for project managers, policy makers and others who want to know more about the quantity and quality of access to land, is what specific indicators might be used? These will be important in pre-project assessments and in later monitoring and post-project evaluation. Again only a few samples can be given here.
In many land administration projects and programs the conventional approach has been to use documents of land rights or land registry records. This has the advantage of being straightforward and reasonable objective but the limitations are many. Even in western countries title documents and registers only record a limited set of rights and the situation is made more complex in customary societies and less-developed nations where either:
A second major indicator used to measure access to land is legislation, such as laws for inheritance, divorce, or land use. This however may also be misleading since the formal legislation may not reflect what actually is accepted as practice on the ground. One example are the divorce laws in some socialist states which may recognize equal division of property. How well a woman's (or man's) rights might be protected on divorce, especially in impoverished rural regions, will also depend on the degree of access to the courts, ability to finance litigation, and the degree of support provided by the family or community. Similarly calls for equal rights in constitutions can be quite meaningless in the actual practice of local communities.
Other indicators include physical occupation or proof of the actual exercise of the rights. Again this has some difficulties in that it may not agree with the formal (legal) status and it may be difficult to observe (especially in a short time span) all of rights in play. Related to these indicators are indicators such as: de facto head of household; primary food provider; community acceptance or agreement of someone's rights; or the share of financial and labour inputs. Even more difficult to measure objectively and completely are factors such as social status and decision-making power.
7. RECOMMENDED GUIDELINES FOR SURVEYORS IN LAND ADMINISTRATION AGENCIES AND PROJECTS
The surveying community should not underestimate its role in allocating, adjudicating, protecting, and changing the way in which people hold rights to land. In the past the major impact was the size and shape of land parcels and the general pattern of the parcel fabric. Today, surveyors also have a role in land reform and promoting security of tenure in ensuring that the cadastral systems, laws, and procedures put in place during such reform do not adversely affect the rights of groups and individuals that the reforms were meant to benefit.
Learning more on how to approach the gender dimension of such programmes and projects and acquiring the tools necessary to address them are vital for securing a more equitable outcome. The following section discusses some of the measures that should be considered by practitioners working in development of human settlements both rural and urban environment. The authors are aware that it may not be possible or practical to exhaust all of these measures during a project cycle. Also, collecting gender disaggregated data as well as general information on women and minorities often prove to be a serious challenge. Recently however, there has been a significant, although far from sufficient, increase in the number of sources offering applicable data and information.
The special focus of this paper is on rural development, but most recommendations are also applicable in urban development projects.
7.1 Land administration procedures should accommodate all segments of the population
7.2 Removing barriers to access to information
7.3 Increasing awareness about the obstacles hindering women's participation
7.4 Working with the local customary community
Providing secure and effective access to land for women can benefit families, communities, and nations through, for example:
However, these benefits can only be fully realised if the strategies adopted for improving women's access to land work in practice and if decision-makers and project teams are aware of those strategies that do and do not work. They need to know about the quality and distribution of rights in land, the economic and cultural impediments that limit women's effective and secure access to land, and the benefits that can be achieved by enhancing women's access. They also need to know what options for improving equitable access to land exist and be able to evaluate the full range of implications of these options.
Surveyors have an impact on land tenure systems worldwide. This implies that the profession also has a special responsibility to society. As the land tenure issues grow increasingly complex and become more diverse, the profession has a responsibility to know more about the issues and to do more to ensure that the systems for administering property rights serve all societies well.
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Katalin Komjathy holds a Masters in Business Administration and she is currently a Masters student in Geodesy and Geomatics Engineering at the University of New Brunswick (UNB) in Canada.. In 1999 she was a consultant to FAO compiling a Bibliography on Women's Access to and Benefits from Land for the Land Tenure Service.
Dr. Susan Nichols is a survey engineer involved in land reform and is currently an Associate Professor in Land Administration at the University of New Brunswick (UNB) in Canada. She was a visiting scholar with the Land Tenure Service at the UN Food and Agriculture Organization (FAO) in Rome in 1998/99.
Agneta Ericsson is a Chief County Surveyor at The National Land Survey of Sweden. Since 1994 she has been involved in FIG Commission 7, until 1998 as Secretary of "Working Group Cadastral Systems in Developing Countries" and now as a chairperson of the task force group on women's access to land.
Dr. Sue Nichols
14 April 2001
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