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.
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