Land Rights of Specific Groups

Towards the end of this century, we are experiencing the emergence of two issues which received little attention in the past, i.e., women’s rights to land (5) and the land rights of indigenous people. In both cases the discussion is still in full swing and no conclusion has been reached.

  • Women’s Land Rights

    There are definitely marked differences between the economic situation of men and women. They are difficult to classify and evaluate because they vary among individuals, families, strata, religions and countries.

    They are partly the result of differences in the control the sexes have of land and other assets. Women seldom own land. It is usually registered in the name of the head of the family, a man. Even if the land or other assets are inherited by women, they are rarely registered under the name of the women. It is not unusual for the men to make the decisions with respect to women’s assets in their role as a custodian. In some cases they need the consent of the women in order to dispose of the goods, but conditions vary greatly. The great religions, Islam, Christianity, Buddhism and Hinduism, prefer partition in inheritance, but there is a tendency to show preference in the treatment of sons who have to care for their parents when they grow old.

    State laws regulating inheritance have interfered with traditional religious systems, often with only limited success. In addition, local customs play a role. As a result, the actual inheritance process is frequently a mixture of customs, regulations and personal behaviour. Women sometimes inherit equal shares, sometimes only half shares and sometimes nothing at all. It is not unusual for girls to “feel ashamed to take from their brothers what belongs to them,” i.e., they do not accept land in spite of the state laws. They believe that by doing so they will improve their social security because the land remains within the family, and if they marry and the marriage does not prove successful or their husband should die after only a short time, they can return to live with their brothers more easily.

    Another factor apart from inheritance is the issue of the actual control of the resources, and in this context the situation differs ever more extremely, depending on the personalities concerned. There may also be differences between ownership rights and user’s rights. The entire situation is very complex.

    The increasing number of households that are headed by women makes this problem a serious matter. Access to land under such circumstances is often crucial for survival and escaping poverty, not only for a widow herself, but for the children as well.

    Any change in existing conditions is a very delicate affair to introduce from without, and all the more so if the influence comes from members of a different culture and historical development. There is a close connection between inheritance laws, customs, family law and the arrangements dealing with land ownership. Changing one aspect means changing all the others.

    Perhaps the problem is not so much a question of land ownership in the hands of women, but rather of guaranteeing their participation in the yields derived from all of assets and their rights in case of the death of their husband. For this, there are alternative solutions. One example is the historical tradition in parts of Russia according to which the land belonged to the adult family members and was inherited within this group.
  • Land Rights of Indigenous People

    The most recent issue in man – land relations is probably the ‘native land’ question. (6) This issue is presently a subject of intensive discussion in countries such as Canada (particularly in British Columbia), the USA, Australia, New Zealand, South Africa and a number of other countries and is expected to increase in the future. It is a question of competing property rights between natives and non-natives. The aboriginal population claims that it has an aboriginal title which is held collectively. In many cases, the title was never ceded in treaties to the crown or the settlers’ governments. The aboriginal title is based on the original indigenous occupation.

    Under European law, the principle of discovery gave the discoverer sole rights. In addition, colonial authorities could claim land, either by purchasing it or conquest. It is unclear whether discovery gave the right to shut out all other European interests, or whether it was the basis of ultimate property rights.

    The disputes are pending in several courts, and its importance is reflected in the Declaration of Indigenous Rights passed by the United Nations. A final solution will have to cater to legal as well as moral aspects. Many questions will have to be solved: what will happen to individual non-native rights if the aboriginal titles are recognized; how long do natives have to reside on the land before they have the right to a native title – 200 year, 500 years, 1000 years? In parts of the world during the process of historical development territory was occupied and the former occupants suppressed or amalgamated. If the land was ceded in treaties, the conditions varied sometimes. Does that mean that native rights do not exist? Where do justified claim for recognition of aboriginal titles end and unjustified request begin?


next: 9. Changing Notions Regarding Property in Land

(5) Davision, J. (ed.) Agriculture, Women and Land. Boulder, Colorado, 1988. Agrarwal, B., A Fild of One’s Own. Gender and Land Rightsin South Asia. Cambridge South Asian Studies 58, Cambridge 1994.

(6) Raybould, Tim, “Native Property Rights: Negotiating Modern Treaties in British Columbia, Canada. In: Kolbert, Coling (ed.), The Idea of Property in History and Modern Times, London 1997.