LAND TENURE & DISASTERS STRENGTHENING AND CLARIFYING LAND RIGHTS IN DISASTER RISK REDUCTION AND POST-DISASTER PROGRAMMING

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LAND TENURE & DISASTERS STRENGTHENING AND CLARIFYING LAND RIGHTS IN DISASTER RISK REDUCTION AND POST-DISASTER PROGRAMMING
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  U.S. Agency for International Development www.usaid.gov   FIGURE 2. HAITI 2012: MULTIPLE DISASTER-INDUCED DISPLACEMENTS Disasters in Haiti Displaced People Remaining in camps after January 2010 earthquake 357,000 Total new displacement in 2012 86,500 - Hurricane Isaac (August 2012) 45,000 - Hurricane Sandy (October 2012) 32,000 - Floods (April - May rainy season 2012) 8,000 - Floods in North (November 2012) 1,500 Source: Yonetani 2013, p.35 FIGURE 1. NUMBER OF PEOPLE DISPLACED GLOBALLY BY DISASTERS (IN MILLIONS) *   * Rounded to nearest 100,000 **Revised figure Source: Yonetani 2013, p.11 USAID ISSUE BRIEF LAND TENURE & DISASTERS STRENGTHENING AND CLARIFYING LAND RIGHTS IN DISASTER RISK REDUCTION AND POST-DISASTER PROGRAMMING BACKGROUND Disaster-induced displacement is on the rise. The Internal Displacement Monitoring Centre (Yonetani 2013; see Figure 1) estimates that in 2012 alone, 32.4 million people were displaced as a direct result of natural disasters or because they faced an acute threat of being affected by a natural disaster. These figures do not include populations affected by slower onset disasters such as drought and sea-level rise. In addition to geophysical natural disasters such as earthquakes and tsunamis, over the last 30 years the number of climate-related disasters has increased (IPCC 2013; World Bank 2013a). Experts believe that such events are likely to become more frequent and more damaging (Kreft and Eckstein 2013; IPCC 2012). On occasion, some countries may suffer multiple natural disasters in one year. Haiti, for example, experienced several hurricanes and floods in 2012, which added more people to the already high number who had been displaced since the 2010 earthquake (see Figure 2 and also see GAO 2013 for a detailed discussion of challenges in resettling the earthquake-affected population). Given the scope and scale of this problem and the length of time it takes to rebuild after a natural disaster, it is essential to not only effectively respond to disasters, but to also secure land rights ex ante  and develop sustainable strategies to reduce the land tenure-related impacts of future disasters. While providing shelter assistance is one of the primary focuses of post-disaster programming, humanitarian response teams must also understand the formal and informal land and housing rights that existed prior to a disaster. Land tenure and property rights (LTPR) issues should be examined as early as possible because without clear rights to a given piece of land, programs based on rebuilding infrastructure or resettling displaced populations will be subject to conflict, delay, and increased costs.   U.S. Agency for International Development 2   www.usaid.gov   BOX 1. DEFINITIONS USED IN THIS ISSUE BRIEF C ONTINGENCY P LANNING : Planning focused on specific disaster events with a high risk of occurrence and high levels of vulnerability. D ISASTER R ISK R EDUCTION (DRR):  Measures that prevent or reduce the damage caused by natural hazards such as earthquakes, floods, droughts, and storms. For example:    Early warning systems no tify people to move out of harm’ s way before a tsunami hits or before a volcano erupts.    Analysis of hazards and vulnerabilities can help communities plan where and how to build.    Building codes  —  when appropriate to local weather patterns and enforced  —  lead to construction of structures that are more likely to withstand damage.    Trained first responders can rescue trapped or injured persons.    Diversified livelihoods can better protect families in the event that their primary livelihood, such as raising cattle, is decimated by drought (USAID 2014). E NUMERATION :  Collecting demographic and land rights data on populations who are typically excluded from the databases planners and land governance authorities use, such as residents of informal settlements, migrant laborers and pastoralists. Community members can conduct enumeration exercises without outside technical experts. H OSTING :  Act of a family providing accommodation to displaced families, such as allowing a displaced family to live within the home or constructing a temporary shelter in their compound. L AND T ENURE AND P ROPERTY R IGHTS (LTPR):  The systems that define and regulate how people, communities, and others gain access to natural resources, whether through formal law or informal arrangements. The rules of tenure determine who can use which resources, for how long, and under what conditions. R ESILIENCE :  The ability to mitigate, adapt to, and recover from shocks and stresses in a manner that reduces chronic vulnerability and facilitates inclusive growth (USAID 2012). The key to effective response, reconstruction efforts, and building long-term resilience for disaster-affected communities is to recognize the continuum of land tenure arrangements that exist in practice prior to a disaster, while strengthening the land rights of the groups most vulnerable to having insecure tenure arrangements, including women, youth, migrants, and the poor. Most relief approaches focus on groups with documentation of prior land ownership but ignore the land claims and housing investments of those who may have held land informally or who lack documentation. However, it is important that disaster workers recognize that in much of the world: 1) secure tenure is the exception rather than the norm, and 2) land claims and transactions are often informal and governed by alternative institutions 1 . In many parts of the world, people hold rights to land that are not documented but are widely recognized as legitimate by their neighbors, nearby communities, and some national governments. When disaster strikes, efforts to resettle and rebuild should include recognition of informal rights along with documented rights. This issue brief is intended to guide efforts to build more resilient communities both pre-disaster and during the different phases of post-disaster programming, including relief, recovery, and reconstruction. Stronger land tenure arrangements mitigate the impact of disasters on communities. This issue brief highlights specific points at which it is crucial to consider land tenure and property rights, including discussions of: 1) differences among disaster-affected populations with respect to their land tenure and property rights; 2) ways in which weak land governance systems exacerbate the effects of disaster on vulnerable populations; 3) how proactively addressing LTPR can serve as an effective disaster risk reduction measure; 4) strategies for identifying and addressing LTPR issues in post-disaster settings; and, 5) specific recommendations for USAID programming. Types of Disaster-Affected Populations A disaster-affected population is not a homogenous group. While natural disasters affect entire populations in an area, certain segments of a population are more vulnerable to the effects of disasters than others (Hyndman 2011; World Bank 2013b). Vulnerability to disasters increases when land governance systems discriminate against populations based on their class, ethnicity, sex, or caste (Reale and Handmer 2011). Particularly vulnerable groups include: lower-income people who settle in areas that lack sufficient infrastructure to mitigate the effect of disasters and who, as a result, may have difficulty accessing post-   1  Including customary, religious, and other traditional or informal organizations   U.S. Agency for International Development 3   www.usaid.gov   BOX 2. LAND RIGHTS AND TENURE: POSSIBLE APPROACHES TO POST-DISASTER PROPERTY CLAIMS Source: Jha et al. 2010 C ONSTITUENCY G ROUPS P OSSIBLE I NITIATIVES IN THE R ELIEF AND R ECOVERY P ERIOD   Property owners who have legal documentation to establish claims Restitution of property Property owners who have lost their documented land claim in the disaster Initiate community-driven mapping and enumeration exercises that produce temporary forms of identification that can be used to access assistance Legal clinics that can cater to socially disadvantaged groups Facilitating partnership with land governance authorities to formalize outcomes of community processes Technical assistance to digitize outcomes of community processes and produce cadastral maps, title deeds, etc. Property owners who do not have formal documentation to prove their land rights Renters, including those in multi-storied buildings Include renters in the enumeration of neighborhoods (those priced out of the market may need to be resettled) Occupants of informal settlements who lived under uncertain tenure arrangements pre-disaster Identify pre-existing policy regarding informal settlements Negotiate for greater security of tenure with land administration officials; at a minimum seek a moratorium on eviction Identify civil society organizations that can safeguard the rights of the most disadvantaged Initiate community mapping and enumeration exercises disaster reconstruction aid; and women and children whose weak inheritance rights may make it difficult to reclaim property after a disaster. For instance, migrants to cities, particularly lower income populations, may settle in areas that do not have the necessary infrastructure or planning to mitigate the effects of natural disasters. Further, these same populations may have difficulties accessing post-disaster housing reconstruction aid due to the reluctance of aid organizations to build permanent housing on land where the rights are unclear or contested (GAO 2013). Identifying which populations are particularly vulnerable should help USAID develop disaster risk reduction interventions that do more to build resilience (World Bank 2013b). It should also help USAID ensure that its post-disaster assistance strategies do not neglect vulnerable populations. Depending on the country and context, disaster-affected populations can be divided into at least five categories with respect to their property claims: 1) property owners who have the requisite legal documentation to establish claims; 2) property owners who lost their documentation in the disaster; 3) property owners who never had formal documentation of land rights; 4) renters; and 5) occupants (owners and renters) of informal settlements who lived under uncertain tenure arrangements pre-disaster. Often times, the claims of vulnerable populations fall into categories 3  –   5, which are inherently less secure. Depending on existing social segmentation by race, class, religion, citizenship status, etc. there may be additional groups within these categories. After a disaster, restoring housing, land, and property rights to each group requires distinct approaches because each has suffered a different kind of loss. Box 2 describes possible approaches for each group. It is important to note that in all likelihood more people will fall into the latter categories because secure tenure is an exception in much of the world. Most post-disaster efforts focus on resolving contested claims. However, only one of the five groups above is likely to have documentation to prove ownership or use rights. Adjudicating LTPR issues post-disaster can become even more difficult when land has been physically lost as a result of erosion or sea-level rise, where the land rights of certain segments of the population (e.g. women) are not socially recognized, and where land governance systems are weak. Further complicating the early post-disaster context is the potential influx of landless and insecurely tenured individuals from neighboring regions hoping to benefit from any redistributive efforts initiated in the disaster-affected regions. Potential disputes associated with such migration can be minimized through strategies such as community-based enumeration and mapping exercises (see Box 1) and accepting a range of documents as evidence for land claims (see Box 3). Formal Land Administration Systems and Vulnerability   U.S. Agency for International Development 4   www.usaid.gov   BOX 3. TENURE ARRANG EMENTS THAT ARE “SEC URE ENOUGH”   At a roundtable convened by the Norwegian Refugee Council and International Federation of Red Cross in 2013, a group representing the humanitarian assistance community discussed what would constitute “secure enough” tenure arrangements for post -disaster shelter and reconstruction programming. Their discussions emerged from recognition of the growing numbers of people living with insecure tenure and/or with little documentary proof of their property rights, as well as their experience with the limitations of requiring documented titles to receive humanitarian shelter assistance. While the formulation of a “secure enough” policy that humanitarian assistance actors could use is still in the early stages of development, the Roundtable defined some of the processes and products that produce “secure enough” tenure arrangements and that should prove helpful to USAID shelter and reconstruction teams operating in post-disaster situations:    Understanding prevailing community norms of ownership and occupancy    Engaging in community-based verification of occupancy    Accepting property evidence through documentation of: payment of rent, utilities, taxes, etc.; investment in property; assistance from state or humanitarian organizations; displacement status    Building on existing administrative recognition of rights and use Post-disaster assessments and evaluations reveal that tenure insecurity and weak formal land administration systems, including poor and/or outdated land records, increase the difficulty of restoring land, housing, and property to victims of disaster (GAO 2013; Caron 2009; Lyon 2009). Property owners who have legal documentation of their land claims are a minority in many countries in the developing world. Further, in cities of the global south, new housing stock is increasingly produced through informal land and housing markets. According to the UN- Habitat’s Global Land Tenure Network, forma l land administration systems may only cater to 30 percent of citizens in most developing countries. Similarly, experts suggest that only 10 percent of the land parcels found in developing countries are documented (Augustinus and Benschop n.d.). Even state-owned land may not be clearly documented (GAO 2013; Levine et al. 2012). This lack of documentation contributes to vulnerability. The limited reach of most formal land administration systems has disturbing implications for post-disaster programming. A recent audit of USAID-funded reconstruction efforts in Haiti found that USAID had difficulty “trying to secure proper land title for p ermanent housing” (GAO 2013: 33), which created expensive construction delays. Moreover , “although USAID officials reported that the agency had conducted due diligence and approved 15 potential housing sites in November 2010, USAID later found that the secure land titles for some of these sites could not be confirmed due to unclear or disputed ownership, and thus reduced the number of site options and further delayed site selection” (ibid: 33). A number of civil society organizations are trying to address these shortcomings by supporting methods to resolve uncertainty in land administration procedures (see Boxes 3 and 6) and putting technology into the hands of local community members to support the documentation process (Risley 2013). APPROACHES TO LTPR IN PRE- AND POST-DISASTER SETTINGS Resilient communities are those that can “cope with both anticipated and unanticipated negative shocks” that threaten stability (USAID 2012: 12). There are environmental, social, and institutional dimensions to building resilient communities, each with important implications for LTPR programming. The environmental aspect is perhaps the most straightforward: resilience derives from anticipating future risks and establishing environmentally sound land use planning practices that make use of local knowledge along with geophysical science and technology (see DRR section below). The social dimensions to building resilient communities address the different abilities of social groups to weather adverse shocks, claim rights, and access the resources they need to ensure their livelihoods, shelter, and sense of well-being. These differences may emerge because sex, socio-economic status, class, ethnicity, religion, or other identifiers often form the basis of discrimination with respect to an individual’s access to, and ability to exercise, land and property rights. Institutional aspects of LTPR programming to build resilient communities include securing tenure arrangements and linking land administration systems to disaster management agencies. For example, land administration systems that invest in technical training and support for documentation, registration,   U.S. Agency for International Development 5   www.usaid.gov   surveying, and protection of land records will have more capacity to reduce disaster-related risks and respond in the wake of disaster. Given that disasters can destroy land records, risk mitigation measures such as protecting land records and creating multiple back-up files and record storage locations build resilience into the administrative system and facilitate recovery (Mitchell 2011; FAO 2012). Building land administration systems that can contribute to both risk reduction and recovery efforts requires expanding and verifying available information based on land use and ownership, as well as strengthening horizontal and vertical links within and across government agencies. In Sri Lanka, for example, post-tsunami recovery and reconstruction was slowed by confusion over land ownership among government departments in the same district (horizontal links) and communication dif  ficulty between officials in the country’s capital, local government officials, and their intermediaries (vertical links) (Lyons 2009). This suggests that addressing land claims in a post-disaster context, especially in countries with limited or damaged formal land administration agencies, requires a primarily social rather than a technical process. The process should involve: consultations with the community, relevant customary authorities, and formal land administration agencies; an alertness to power relations within communities and between communities and government agencies; and, as needed, the creation of dispute resolution mechanisms. Secure tenure creates the conditions for financial and infrastructure investments to “build back better.” The sections that follow discuss LTPR programming approaches that can help build resilient communities at different intervention periods: 1) before a disaster strikes (i.e. disaster risk reduction); 2) disaster response and recovery; and 3) reconstruction. In each phase, it is important to be mindful of the limitations of formal land administration systems. While local traditional or customary land governance institutions may not be legally recognized, they are generally considered to be socially legitimate and have the most accurate and reliable information on land use and ownership. Because these institutions are socially legitimate, they can provide “secure enough” tenur e, which is understood as rights to land and natural resources that are not contested without reason, and that provide holders with sufficient confidence to invest in their land and reap the benefits of their investments. In other words, “secure enough” tenure  creates incentives to make shelter and livelihood investments. LTPR in Disaster Risk Reduction Efforts Disaster risk reduction (DRR) interventions build resilience into institutions and communities. Secure land tenure and property rights are the backbone of such interventions. Resilience-building efforts rest on two essential points: 1) government institutions and humanitarian actors need to be proactive in their planning for disasters (in order to mitigate their impact); and 2) being proactive means incorporating LTPR issues into planning and decision-making before disaster strikes. DRR interventions play a key role in minimizing the loss of life and livelihoods in disaster-affected regions and reducing the cost of post-disaster recovery. Strengthening the technical and managerial capacity of institutions governing land use and property rights is central to DRR efforts, as it generates the information and the agents that are vital when a disaster strikes, and minimizes the risk of destruction through coherent land use planning. On the technical front, advances in climate forecasting, spatial analysis, and modeling help identify vulnerable regions and, when integrated into planning for those regions, can enable proactive responses to, and reduce the impact of, natural disasters. Additionally, updating and digitizing land record systems can improve the effectiveness of response efforts and readily supply land-related information to support the recovery and reconstruction process, and prevent delays that can cost lives and money. On the managerial front, encouraging partnerships between the disaster management agencies and government land administration agencies, and between governments and local communities, can increase the probability of a coordinated response in the wake of a disaster. Using Forecasting and Modeling for Improved Land Use Planning & DRR:  Modeling attempts to forecast the potential impact of increased rainfall, storm intensity, or sea-level rise on human populations, and on various land uses in the region. For example, to address and prevent loss of life and assets associated with recurring floods and droughts across West Africa, the International Federation of Red Cross (IFRC)
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