ILUP07: Emerging issues in ILUP. Part 4

Tenure
Land tenure is a fundamental concern for landowners, land users, and rights holders, making it a critical component of land use planning. It is rooted in social norms and legal frameworks, whether statutory or customary, that regulate access to land, including rights to use, control, transfer, and the associated responsibilities (FAO, 2002a).

Challenges related to land tenure often arise from changes in land use, which may result in the loss of ownership, usage rights, and other privileges. Ensuring tenure security is a key strategy for addressing these concerns. Secure land tenure is essential for maintaining and investing in land assets, influencing sustainable land use, social stability, and livelihoods.

Tenure security means that access to and use of land and property are governed by a known set of rules and that these rights are legally enforceable (UN-Habitat, 2004). It also protects rights holders from arbitrary loss of tenure, including forced evictions that violate national and international legal obligations (FAO, 2012).

The Voluntary Guidelines on the Responsible Governance of Tenure (VGGT) were established to promote tenure security and equitable access to land, fisheries, and forests (FAO, 2012). These guidelines provide internationally accepted principles and standards that governments, civil society, and the private sector can use to assess and improve land governance.
One key VGGT principle is that tenure rights, whether based on statutory or customary law, should be legally recognized and safeguarded. Once recognized, these rights can be secured through four key strategies in land use planning (FAO, 2020):

• Access to information: Disseminating information through diverse media and communication technologies (ICTs) in appropriate languages and formats, ensuring outreach to vulnerable groups, and holding meetings in affected communities.
• Meaningful participation: Ensuring representation, capacity-building for technical and advocacy skills, addressing power imbalances, and mapping legitimate tenure rights where necessary.
• Accountability: Holding public agencies and non-state actors responsible for decisions and actions based on the rule of law, particularly where overlapping legal and institutional mandates undermine accountability. Participatory planning at the lowest governance levels, including regular monitoring and evaluation, can enhance accountability.
• Access to justice: Providing free or affordable legal assistance, strengthening dispute resolution mechanisms, and ensuring fair compensation in cases of expropriation under regulated spatial planning.

Gender and land rights
In many countries, women still lack independent land rights due to inadequate legal provisions or poor enforcement of existing laws (FAO, 2002b). Even when statutory law grants women land rights, cultural and institutional barriers often prevent their realization.
Two main challenges in achieving gender equity in land tenure are:
• Understanding the complexity of property rights regimes in the context of evolving gender roles in society.
• Establishing effective institutional structures to ensure equitable land access in line with national land policy goals (FAO, 2002b).

To address these challenges, FAO developed the Gender and Land Rights Database (GLRD), which provides country-specific legal and policy analyses, gender-disaggregated land tenure statistics, and tools for assessing legal frameworks for gender-equitable land tenure.

Studies indicate several effective interventions for improving women’s land tenure security (Scalise & Giovarelli, 2020):

• Joint documentation of marital property rights (titles, certificates), complemented by information sessions.
• Documenting and demarcating land for female-headed households.
• Raising awareness to reduce gender disparities in land rights knowledge.
• Reforming inheritance laws to ensure equitable land succession for women.
• Leveraging women’s associations to advocate for land rights.
• Establishing legal quotas for women’s participation in land governance, combined with training and institutional support.
• Encouraging collective action by mobilizing women to advocate for land and resource rights.

Achieving durable land rights for women requires a holistic approach that ensures:
• Women have both legal rights and societal acceptance of land rights.
• Women can enforce their land rights when challenged.
• Women’s interests receive equal consideration with men’s in land governance.
• Women possess knowledge of land stewardship and management.
• Women can generate economic value from land through use, leasing, sales, collateralization, or compensation.

Indigenous peoples and land rights
Large-scale land acquisitions are expanding rapidly across the Global South, often targeting lands under customary governance that lack formal legal recognition. In many cases, governments are unable or unwilling to enforce protections, leading to conflicts over land use that impact indigenous and local communities. Poorly regulated land deals, especially in sub-Saharan Africa and Southeast Asia, pose serious threats to food security, local livelihoods, and sustainable resource management, increasing risks of land conflicts and human rights violations. Vulnerable groups—including indigenous peoples, lower-caste individuals, and ethnic minorities—are particularly at risk (FAO, 2014a).

Free, Prior, and Informed Consent (FPIC) has emerged as an essential international human rights standard, recognizing indigenous peoples’ rights to participate in land use decisions affecting them. FPIC ensures that indigenous communities, through their chosen representatives and governance structures, can approve or reject projects impacting their traditional lands, territories, and resources. Each component of FPIC holds specific significance (Box 4).

Box 4. The meaning of FPIC (FAO, 2014a)

Free implies no coercion, intimidation or manipulation.

Prior implies consent is sought far enough in advance of any authorization or commencement of activities, and the time requirements of indigenous consultation and consensus processes are respected.

Informed implies that all information relating to the activity is provided to indigenous peoples and that the information is objective, accurate and presented in a manner or form that is understandable to indigenous peoples. Relevant information includes:
1. the nature, size, pace, duration, reversibility and scope of any proposed project;
2. the reason(s) or purpose of the project;
3. the location of areas that will be affected;
4. a preliminary assessment of the possible economic, social, cultural and environmental impacts, including potential risks and benefits;
5. personnel likely to be involved in the implementation of the project;
6. procedures that the project may entail.

Consent implies that indigenous peoples have agreed to the activity that is the subject of the consultation.
Indigenous peoples also have the prerogative to withhold consent or to offer it with conditions. Consultation and participation are key elements of a consent-seeking process. Consultation must be undertaken in good faith, which, among other things, requires that indigenous views are accommodated in the process or objective justifications are provided as to why such accommodation is not possible. The parties must establish a dialogue allowing them to identify appropriate and workable solutions in an atmosphere of mutual respect and full and equitable participation, with ample time to reach decisions. Indigenous peoples and local communities must be able to participate through their own freely chosen representatives and customary or other institutions. The participation of women, youth and children is preferable where appropriate.

A FPIC process will vary according to the specific local context in which a land use change project is to be developed. It may also be the case that the Indigenous Peoples affected already have their own FPIC guidelines. Whatever the case, in any given FPIC process a project manager must consider the following steps within different phases of the project cycle (FAO et al., 2016):

In the project identification phase:
• Identify the Indigenous Peoples’ concerns and their representatives
• Document geographic and demographic information through participatory mapping
In the project formulation phase:
• Design a participatory communication plan and carry out iterative discussions through which project information will be disclosed in a transparent way
• Reach consent, document Indigenous Peoples’ needs that are to be included into the project, and agree on a feedback and complaints mechanism
In the project implementation phase:
• Conduct participatory monitoring and evaluation of the agreement
In the project closure phase:
• Document lessons learned and disclose information about project achievements.