Journal articles on the topic 'Land tenure – Law and legislation – Australia'
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1
Katusiime, Juliet, and Brigitta Schütt. "Towards Legislation Responsive to Integrated Watershed Management Approaches and Land Tenure." Sustainability 15, no. 3 (January 25, 2023): 2221. http://dx.doi.org/10.3390/su15032221.
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Land tenure affects integrated watershed management approaches in various ways, such as influencing land use and investment in sustainability practices and decisions. However, some land tenure and integrated watershed management relations need more examination, including how the prevailing relevant legislation responds and the needed course of action. In this paper, we provide relevant evidence to support a shift to responsive actions and legislation through (a) examining land tenure scenarios affecting integrated watershed management, including the public–private land tenure co-existence from a watershed perspective; (b) the responsiveness of the prevailing relevant legislation to integrated watershed management and the land tenure scenarios and (c) identifying legislative remedies recommendable for responsiveness. We use qualitative methods to review secondary data sources, including four legislations, and complement them with field survey data. Field experiences are from three sub-catchments in the Lake Victoria basin, each representing a different land tenure system, as case studies. Land tenure links with integrated watershed management in various ways, such as influencing land use decisions. However, underscoring the relationship from the private and public land tenure perspective also indicates a complex and tense spatial relationship. As such, it likely limits adopting sustainable land use and management practices in watersheds as a case. Regardless, the perceptions from the study area indicate the land tenure systems and forms enabling sustainable choices and decisions, despite limitations such as tenure insecurity. The disconnect between integrated watershed management aspirations of ensuring sustainability, the land tenure abilities and the subsequent human practices is mainly institutional, with the relevant legislation indicating a low to moderate level of responsiveness to integrated watershed management approaches and land tenure, thus, abating effectiveness. Therefore, we suggest a shift towards responsive programming and legislation and the adoption of model legislation to support responsiveness replication. We also recommend further studies to assess the legal gaps and feasibility thereof.
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Ng'ong'ola, Clement. "Land Problems in Some Peri-Urban Villages in Botswana and Problems of Conception, Description and Transformation of “Tribal” Land Tenure." Journal of African Law 36, no. 2 (1992): 140–67. http://dx.doi.org/10.1017/s0021855300009864.
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In Botswana, as in several other African countries with a similar historical experience, a dual or plural land tenure system was carried over from the colonial era. The bulk of the land falls within the category of “tribal land”. It is predominantly held and occupied by indigenous peoples under customary notions of land tenure. The State also holds as “State land” a fairly significant proportion which fell under the category of “Crown lands” during the colonial era. A tiny proportion now falls within the category of “freehold land”. This is predominantly held and occupied in conformity with common law notions and conceptions imported into the country with colonial rule. To some extent both State land and freehold land are held under or governed by “received law”, in contradistinction to tribal land which is largely held under customary law.In 1968, barely two years after independence, the Botswana parliament enacted legislation which attempted to reform customary land tenure by replacing existing customary or tribal institutions of land control and administration with statutory land boards. These started operating in 1970, and it soon became apparent from early assessments that even this limited and cautious programme of reform would not escape some of the problems associated with land transformation exercises elsewhere in Africa.
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Gebremichael, Brightman. "Public Purpose as a Justification for Expropriation of Rural Land Rights in Ethiopia." Journal of African Law 60, no. 2 (February 15, 2016): 190–212. http://dx.doi.org/10.1017/s0021855315000285.
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AbstractExpropriation of private land rights involves two contradictory interests: there is a public need for land; and landholders expect security of tenure and protection of their private property rights. A satisfactory expropriation policy must strike a balance between these interests. Legislation must therefore only authorize the government to expropriate land rights for a clear and limited public purpose under the supervision of an independent body. The author argues that Ethiopia's rural land laws have defined the public purpose for the expropriation of rural land rights in different ways depending on the nature of the landholders. For peasants and pastoralists the public purpose requirement is defined vaguely and broadly, whereas for investors the concept is limited to projects implemented by government. The author argues that the protection of private property rights and security of tenure are further undermined by a legislative failure to authorize affected people to appeal to an independent body on the basis that the public purpose requirement has not been satisfied.
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Mackenzie, Fiona. "Conflicting Claims to Custom: Land and Law in Central Province, Kenya, 1912–52." Journal of African Law 40, no. 1 (1996): 62–77. http://dx.doi.org/10.1017/s0021855300007130.
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In antithesis to legislation on land tenure introduced through the Land Registration Act, 1959, premised on the notion in English common law that the right to allocate land was equivalent to exclusive ownership, “ownership” under customary tenure in Kenya was “essentially heterogeneous and divisible”. People differentiated by age, gender and wealth had bundles of rights defined, in Okoth-Ogendo's words, by “the status differentia which a particular category of membership in a production unit carries”. The complexity and elasticity of customary land law, Okoth-Ogendo demonstrates, derived from its separation of access rights from allocative rights, and the subjection of the latter “to the economic tasks required of the former”. This distinction and the ensuing visibility in legal discourse of both use rights and rights of allocation was critical, as Okoth-Ogendo indicates, in ensuring “the proprietary position” of women, the primary agriculturalists, in societies such as that of the Kikuyu, which are frequently classified as patrilineal.
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Pienaar, Gerrit. "The Methodology Used to Interpret Customary Land Tenure." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 15, no. 3 (May 29, 2017): 152. http://dx.doi.org/10.17159/1727-3781/2012/v15i3a2506.
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Customary land tenure is normally not based on codified or statutory sources, but stems from customary traditions and norms. When westernised courts have to interpret and adjudicate these customary traditions and norms, the normal rules of statutory interpretation cannot be followed. The court has to rely on evidence of the traditional values of land use to determine the rules connected to land tenure. Previously courts in many mixed jurisdictions relied on common or civil law legal principles to determine the nature of customary land tenure and lay down the principles to adjudicate customary land disputes among traditional communities, or between traditional and westernised communities in the same jurisdiction. Many examples of such westernised approach can be found in case law of Canada and South Africa. The interpretation of the nature of customary land tenure according to common law or civil law principles has been increasingly rejected by higher courts in South Africa and Canada, e.g. in Alexkor Ltd v The Richtersveld Community 2004 5 SA 469 (CC) and Delgamuukw v British Columbia 1997 3 SCR 1010. This paper explores the methodology the courts should follow to determine what the distinctive nature of customary land tenure is. As customary land tenure is not codified or based on legislation, the court has to rely, in addition to the evidence of indigenous peoples, on the expert evidence of anthropologists and sociologists in determining the nature of aboriginal title (in Canada) and indigenous land tenure (in South Africa). The court must approach the rules of evidence and interpret the evidence with a consciousness of the special nature of aboriginal claims and the evidentiary difficulties in proving a right which originates in times where there were no written records of the practices, customs and traditions engaged in. The court must not undervalue the evidence presented simply because that evidence does not conform precisely with the evidentiary standards that would be applied in, for example, a private law tort case.
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Unruh, Jon. "Land Policy Reform, Customary Rule of Law and the Peace Process in Sierra Leone." African Journal of Legal Studies 2, no. 2 (2008): 94–117. http://dx.doi.org/10.1163/221097312x13397499736507.
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AbstractArmed conflict is particularly destructive to socio-legal relations regarding land and property. Reconstruction priorities increasingly include the reform of property legislation as part of efforts to address the causes and reasons for continuation of conflicts. However, a pervasive problem is that postwar laws are extremely difficult to connect with informal on-the-ground developments regarding perceptions of spatially-based rights as populations pursue livelihoods, grievances and aspirations. Left unattended, the problem constitutes a potential flashpoint for a return to conflict. This article examines this connection for postwar Sierra Leone, in order to highlight issues and questions of potential utility. The stakes are high for successfully connecting postwar land tenure laws with informal socio-legal realities. For Sierra Leone, a primary issue is the presence of a large population without access to land, tenure insecurity discouraging investment, large-scale food insecurity and rural unemployment while significant swathes of arable and previously cultivated land stands idle.
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Tramel, Salena. "The Tenure Guidelines in Policy and Practice: Democratizing Land Control in Guatemala." Land 8, no. 11 (November 6, 2019): 168. http://dx.doi.org/10.3390/land8110168.
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This paper explores the challenges for democratizing land and natural resource control in Guatemala through use of the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries, and Forests (Tenure Guidelines). This international human rights instrument comes at a critical moment, in which the current global land rush has shaped contemporary agrarian transformation with serious implications for the right to food and control of natural resources. The Tenure Guidelines provide us with a unique opportunity to put land and natural resource tenure squarely under the prescriptions of international human rights law, rather than allowing tenure to be subsumed by a narrow understanding of property rights based on civil and merchant law. In Guatemala, we are witnessing a political opening, where the government has incorporated the language of the Tenure Guidelines into its regulatory framework unlike any other country in Latin America. At the same time, the world watches on while a slow-motion coup engulfs the Central American country, reflecting a global trend of gutting democracies and coopting the language and legislation meant to protect them. Thus, the implementation of the Tenure Guidelines is strongly contested by state and corporate actors seeking to use the instrument in order to gain political legitimacy for the expansion of agribusiness like oil palm and sugarcane, and other forms of extractive industry. This paper’s findings indicate that when applied together with a rights-based approach, the Tenure Guidelines are a powerful social and political tool. Such is especially true of the most marginalized populations who require protection and respect for their existing tenure rights, promotion of reforms for better access to and control over land and resources, and restoration of tenure rights resulting from displacement or dispossession.
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Fortin, Elizabeth. "Struggles with activism: NGO engagements with land tenure reform in post-apartheid South Africa." Journal of Modern African Studies 48, no. 3 (August 18, 2010): 383–411. http://dx.doi.org/10.1017/s0022278x10000340.
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ABSTRACTIn 2004, a long-awaited piece of post-apartheid legislation, the Communal Land Rights Act – to reform the land tenure of those living in the former ‘homelands’ of South Africa – was passed into law unanimously by parliament. This unanimity, however, conceals the extent to which the process towards this moment was deeply contested. Exploring the efforts by land sector NGOs to secure legitimacy in their engagements with this process reveals the extent to which wider power relations and contestations have determined their positioning. Those within the non-governmental land sector who opposed the legislation pitted themselves against African National Congress politicians and high-profile traditional leaders. However, the adoption of a Mamdani-inspired discourse to contest such politics and oppose the proposed legislation contributed to reinscribing narrow readings of knowledge considered to be legitimate. Their engagements were also shaped by changes in the NGO sector. Reduced funding for land sector NGOs and an increasingly ambivalent relationship between them and government contributed to contestations between NGOs and among people working within them. Their strategic engagements in such wider and internal politics influenced both the frames within which such policy change could be debated and the ways in which individuals working for NGOs consequently positioned themselves in relation to their constituents.
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Achiba, Gargule A., and Monica N. Lengoiboni. "Devolution and the politics of communal tenure reform in Kenya." African Affairs 119, no. 476 (May 25, 2020): 338–69. http://dx.doi.org/10.1093/afraf/adaa010.
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Abstract Increased legal access and the devolution of natural resource administration are generally seen as sources of power for local communities and their institutions. However, beyond this widely held expectation, the politics of land reform suggest that legal recognition of rights and devolution is not the only issue with implications for communal tenure reforms. Misconceptions about communal tenure, which are rooted in history, and their appropriation by local elites in the processes of communal tenure reform are characteristic of both colonial and post-colonial governments in Kenya. Although typically articulated and promulgated to enhance political representation and to devolve control over resources to the local level, unresolved issues in the reform process have worked to undermine the legitimacy of communal land rights in contemporary Kenyan society. A case study of the post-2010 community land legislation process demonstrates the continuing relevance of historically conditioned political and ideological representations of communal tenure built during the colonial period and reproduced in policy in independent Kenya. This paper offers reflections on the centrality of sustained communal tenure misconceptions, fetishization of formal governance institutions, and the institutional and power configurations that primarily benefit powerful stakeholders as sources of the current breakdown in the implementation of community land law.
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Carvajal-Arenas, Lorena. "The Blue Economy in Small-Scale Fisheries – An Ocean-Land Interface Perspective: The Case of Chile as Support for a Generalizable Analysis for Latin America." Journal of World Investment & Trade 23, no. 1 (February 15, 2022): 39–67. http://dx.doi.org/10.1163/22119000-12340238.
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Abstract With regard to the blue economy, there is a scarcity of discussion on the land-ocean interface. The article’s aim is to fill that gap, focusing on land tenure rights of coastal territory and its governance. For that purpose, the Food and Agriculture Organization (FAO) Code of Conduct for Responsible Fisheries is key to bringing the concept of the blue economy into the lives of small-scale fisheries stakeholders. The article attempts to analyse whether Chilean legislation complies with the FAO framework, particularly in the area of tenure rights over fishing inlets as well as whether this framework is accepted by those engaged in small-scale fishing. The hypothesis is that, in areas not covered by statutory law, which is mandatory, fishermen have already been intrinsically applying the FAO framework, which is voluntary. Thus, it is important to acknowledge their practices when developing legislation and legal reforms that attempt to introduce such a framework.
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Pienaar, JM. "ASPECTS OF LAND ADMINISTRATION IN THE CONTEXT OF GOOD GOVERNANCE." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 12, no. 2 (June 26, 2017): 14. http://dx.doi.org/10.17159/1727-3781/2009/v12i2a2726.
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This paper explores aspects of land administration where public funding and interests necessitate the application of good governance practices. The South African land reform programme is divided in three sub-programmes, namely land restitution, land redistribution and tenure reform. Land reform is a vast subject, based on policy, legislation and case law. Therefore it is impossible to deal with good governance principles over the wide spectrum of land reform. Special attention is however given to the land restitution programme in terms of the Restitution of Land Rights Act 22 of 1994 and tenure reform in the rural areas by means of the Communal Land Rights Act 11 of 2004. The purpose is not to formulate a blueprint for good governance or to indicate which good governance principles will solve all or most of the land tenure problems. It is rather an effort to indicate that policies and procedures to improve good governance in some aspects of land reform are urgently needed and should be explored further.Restitution of Land Rights Act and the Communal Land Rights Act, is extensive and far-reaching. However, many legislative measures are either impractical due to financial constraints and lack of capacity of the Department of Land Affairs, or are not based on sufficient participation by local communities. Land administration should furthermore be planned and executed in the context of global good governance practices. This includes equal protection; clear land policy principles; land tenure principles according to the needs of individuals and population groups; flexible land registration principles to accommodate both individual and communal land tenure; and appropriate institutional arrangements. It is clear that established good governance principles may solve many of the problems encountered in land administration in South Africa. It is a topic that needs to be explored further.
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Jones, Chris. "Plus Ça Change, Plus Ça Reste le Même? The New Zanzibar Land Law Project." Journal of African Law 40, no. 1 (1996): 19–42. http://dx.doi.org/10.1017/s0021855300007105.
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The picture of pre-Protectorate and Protectorate land tenure that emerges from the reported judicial resolutions of land disputes in Zanzibar and the legislation introduced is that of overlapping interests in one and same parcel of land (such as planting banana trees on someone else's land), a charitable toleration of land occupation by persons who had little but their labour to subsist by (such as not having to pay rents on the Sultan's lands or waqf properties, or at least very little), mobility by way of settlement on unoccupied lands through negotiation or silent acquiescence without formalistic titles as a prerequisite, and a determination to protect land security for families or for the poor against Government taxes, private debt attachments or fragmentary inheritance rules (such as through waqf, perpetual trust). Alongside these elements were the commercial uses and dispositions of land, including outright sales and conditional sales for debts, and the assignment to trees of an economic value distinct from that of the land. Against this complex background the British Protectorate Government extended and consolidated its public land holdings, specifying how the land was to be used for what may be called the “aggregate economic welfare produced by … unequal distribution of resources”, regularizing the charging of rents, and gradually breaking down the security of waqf immovables. After the First World War, despite political stability, social instability relating to land tenure broke out and plagued the Protectorate to its end. There were major dispossessions from land resulting from the government's policy of protecting the landlord's right to charge rents and of allowing creditors to sell land for the purpose of recovering accumulated debts that could no longer be paid during economic depressions. The loss of access to land led to the loss of identification with the land.
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Tlale, Mpho Tsepiso. "Conflicting Levels of Engagement under the Interim Protection of Informal Land Rights Act and the Minerals and Petroleum Development Act: A Closer Look at the Xolobeni Community Dispute." Potchefstroom Electronic Law Journal 23 (June 18, 2020): 1–32. http://dx.doi.org/10.17159/1727-3781/2020/v23i0a6856.
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The South African customary land tenure system is currently administered in terms of the Interim Protection of Informal Land Rights Act 31 of 1996 (IPILRA). As the name suggests, this is a temporary measure to protect vulnerable customary land rights while awaiting permanent communal land tenure legislation. In terms of section 2(1) of the IPILRA, no person may be deprived of any informal right to land without his or her consent. This provision is subject to subsection (4) of the IPILRA, the Expropriation Act 63 of 1975 or any other law that provides for the expropriation of land rights. Accordingly, section 2(4) states that no one may be deprived of his or her informal rights in land unless it is through the Expropriation Act, any valid land expropriation legislation or through custom that is endorsed by a majority of the community members.
Nevertheless, the Department of Mineral Resources (DMR) and the mineral right applicants habitually contravene this consent provision by not including the beneficiaries of the IPILRA in the mineral right application process. The DMR awards licences without the communities' consent because the Mineral and Petroleum Resources Development Act 28 of 2002 (MPRDA) authorises it to act as the custodian of mineral resources on behalf of all South Africans. When an application for mineral rights is received, it is the DMR's duty as a custodian to ensure that all the requirements of the MPRDA have been complied with. These levels of engagement, consent under the IPILRA and consultation in terms of the MPRDA, form the basis of the analysis of the decision of Baleni v Minister of Mineral Resources. Although the court decided that the acceptable level of engagement is consent in terms of the IPILRA, this article argues that consultation and consent are not mutually exclusive, and hence require reading the two pieces of legislation together.
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Palerm-Viqueira, Jacinta. "A comparative history, from the 16th to 20th centuries, of irrigation water management in Spain, Mexico, Chile, Mendoza (Argentina) and Peru." Water Policy 12, no. 6 (March 24, 2010): 779–97. http://dx.doi.org/10.2166/wp.2010.110.
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This paper explores the long-term development of irrigation system management, and looks at the influence of legislation, irrigation system size, scalar stress and polarized land tenure in the existence and success of self-management. The case studies are drawn from regions of the former Spanish Empire. Hispanic America, between the 16th and early 19th centuries, as part of the Spanish Empire, had a common legal framework; however, in the 19th and early 20th centuries (after the break up of the Spanish Empire), new and diverse country-based legislation developed and, in some cases, this new legislation favoured self-management.
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Haokip, Lalsanglen. "Competing Landed Interests: Customary Claims, Land Titles and Formal Law in Manipur, Circa 1890–1990." History and Sociology of South Asia 14, no. 1-2 (January 2020): 22–38. http://dx.doi.org/10.1177/22308075211059572.
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This article provides a long-term perspective on the history of land tenure for over a century in the colonial and post-colonial eras of Manipur, India. Modernisation theory assumes too rigid division between traditional and modern attributes of land laws. The article, however, endorses the view that ‘the Anglo-Indian legal system was distinctly Janus-faced and rested on two contradictory principles’ of public law and personal law (D. A. Washbrook, Modern Asian Studies 15, no. 3 [1981]: 653). The flagship land legislation of Manipur (MLR & LR Act 1960) has been framed within the hill–valley framework. But the hill–valley binary of this public law provided too rigid mechanism to understand the history of legal formalisation. In theory, statutory (public) laws in land apply to only the valley areas of Manipur and customary (personal) law applies to the hill areas. But in practice, there exist different degrees of legal formality.
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Monteiro Penteado, Ana Elisa. "The law of the land: intangible ad tangible rights in Aboriginal Australia." Revista de Direito Econômico e Socioambiental 3, no. 1 (January 1, 2012): 227. http://dx.doi.org/10.7213/rev.dir.econ.socioambienta.03.001.ao08.
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This article deals with the Convention on Biological Diversity, article 8 (j) in connection tothe national and local legislation to be enacted prior to article 8 (j) enforcement. It showsthat for legal protection of Indigenous Peoples’s intangible rights, land rights are to be resolvedby government and organisms devoted to land right claimed by Aboriginal Peoples.The experience of Australia through its recent colonization, decolonization and reviewof social values presented by Rudd Administration secured Indigenous Peoples rights. In conclusion, this article proposes a multi-action from historical, political, legal and jurisprudentialsources for article 8 (j) to be operative.
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Herdiyanti, Chita. "KEPEMILIKAN TANAH ABSENTEE OLEHPEGAWAI NEGERI SIPIL BERDASARKAN PERATURAN PEMERINTAH NOMOR 4 TAHUN 1977." Jurnal Magister Hukum ARGUMENTUM 6, no. 1 (May 3, 2019): 951–75. http://dx.doi.org/10.24123/argu.v6i1.1848.
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Agricultural land that is owned by a cord (Absentee) is legally prohibited. Because the ownership of the Absentee-owned Agricultural Land distances the ideals and spirit of land reform as the basic rule of every National Agrarian law. Absentee land tenure is prohibited because it can restore a very detrimental Landlord system especially to local farmers residing in Absentee land. True agricultural land should be utilized and done in an effort to meet the productivity that will raise the economy nationally. However, Government Regulation No. 4 of 1977 concerning Agricultural Land Ownership by Clothes (Absentee) for Retired Civil Servants states that "a Servant within 2 (two) years preceding retirement allowed to buy agricultural land in guntai (absentee) covering an area of up to 2/5 of a part the maximum limit of land tenure for the relevant Level II Regions. ". Is the ban on the ownership of farmland in a strand (Absentee) applies to all the people of Indonesia ?. The prohibition of land ownership does not apply to Civil Servants State From the provisions of the law above can be concluded that Civil Servants (PNS) can have Absentee land because it is considered Civil Servants have been credited as a driver of the state system. However, with the conditions set forth in the legislation. Civil Servants or Retired Civil Servants who have farmland by hand (Absentee) can make a profit-sharing system as an effort to manage the absentee land to be more productive again by sticking to the prevailing laws and regulations.
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Conrad, David A. "‘Before It Is Too Late’: Land Reform in South Vietnam, 1956–1968." Journal of American-East Asian Relations 21, no. 1 (March 12, 2014): 34–57. http://dx.doi.org/10.1163/18765610-02101002.
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Attempts by the U.S. government to enact land redistribution in the Republic of Vietnam began in the mid-1950s. At that time. land reform was a linchpin of U.S. foreign policy in Asia. Wolf Ladejinsky, author of the legislation that had virtually eliminated tenancy in occupied Japan, encountered political controversy in Washington and administrative challenges in Saigon in his attempt to bring about greater equality of land ownership in South Vietnam. This initial attempt to modify land tenure arrangements failed when redistribution stalled, far from complete, during 1961. Although new land reform legislation did not appear until 1970, the 1960s were by no means years of inaction on land reform. Years of behind-the-scenes efforts by American policymakers in Washington and Saigon culminated in the Land-to-the-Tiller Law, an ambitious but doomed attempt to complete the work that Ladejinsky had begun over a decade earlier. Documents from the Lyndon B. Johnson Presidential Library, many newly declassified, suggest that bureaucratic intrigue and political infighting within the Johnson administration and Congress both hindered and facilitated the emergence of a new land reform program in war-ravaged South Vietnam.
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Smallwood, C. B., L. E. Beckley, and S. A. Moore. "Effects of adjacent land tenure on visitor use of Ningaloo Marine Park, Western Australia." Australasian Journal of Environmental Management 20, no. 2 (June 2013): 130–46. http://dx.doi.org/10.1080/14486563.2013.787910.
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Reid, Kenneth G. C. "Vassals No More: Feudalism and Post-feudalism in Scotland." European Review of Private Law 11, Issue 3 (June 1, 2003): 282–300. http://dx.doi.org/10.54648/erpl2003022.
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Abstract: At the very time when the feudal system of land tenure was being abolished in France, and elsewhere in Europe, it was enjoying an unexpected revival in Scotland as a means of controlling urban development. Land which was sold under the feudal system could be subjected to permanent conditions, known as “real burdens”, which regulated its future use; and in this way planning control was achieved by a mechanism of private law. Real burdens could (and can) also be used in a non-feudal context, in which case they resemble praedial servitudes. But, unlike servitudes, real burdens can impose affirmative obligations, such as an obligation to construct and maintain a building. Today Scotland is one of the last jurisdictions in the world to have an operational feudal system. That will shortly change. Legislation passed in 2000 abolishes the feudal system with effect from 28 November 2004. At the same time the law of real burdens is reformed and codified. The continued existence, and importance, of real burdens was the greatest obstacle to feudal abolition. For if feudal lords (“superiors”) were to disappear, who was to enforce the burdens? The legislation tackles the difficulty with various improvisations, in some cases reallocating enforcement rights to neighbours (including former superiors), and in others allowing the burdens to lapse altogether. Affirmative burdens will be a permanent legacy of the feudal era, but in other respects its continuing influence on land law is likely to be slight.
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Absori, Absori, Mohammad Indra Bangsawan, Arief Budiono, and Dewi Kusuma Diarti. "Prophetic Law-based Land Bank Policy Reformulation in Indonesia." WSEAS TRANSACTIONS ON SYSTEMS 21 (December 31, 2022): 304–11. http://dx.doi.org/10.37394/23202.2022.21.33.
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In regulating the land bank policy, Indonesia refers to Law Number 11 of 2020 concerning Job Creation and Presidential Regulation Number 64 of 2021 concerning Land Bank Agency. These two laws regulate all general technical requirements required by investors. This study aims to: 1) Describe the land bank legal policy after the legalization of Law Number 11 of 2020 concerning Job Creation; 2). Formulate a land bank policy based on prophetic values which integrate the positive law and religious values. This is normative legal research which used secondary data and library materials as the main data sources. It used the philosophical juridical approach: the juridical approach was in the form of legislation (statute approach) and the philosophical approach was in the form of the prophetic ethical paradigm through ash-Asyatibi’s Maqasid al-Syari’ah (the purpose behind Islamic laws). The data analysis was divided into two. The first was the descriptive-qualitative analysis by describing land bank policies after the enactment of Law Number 11 of 2020 concerning Job Creation. While in the second problem formulation, because the main objective was to find the concept of land bank policy based on prophetic ethics, the authors conducted critical and predictive analyses. Land bank policies have various advantages and disadvantages. With these weaknesses and strengths, a new land bank policy was formulated, which was predicted to be able to guarantee equitable land distribution and wise management of land tenure.
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Rösch, Ricarda. "A New Era of Customary Property Rights? – Liberia’s Land and Forest Legislation in Light of the Indigenous Right to Self-Determination." Verfassung in Recht und Übersee 52, no. 4 (2019): 439–62. http://dx.doi.org/10.5771/0506-7286-2019-4-439.
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After the end of Liberia’s civil war in 2003, the country embarked upon the reform of its forest and land legislation. This culminated in the adoption of the 2009 Community Rights Law with Respect to Forest Lands and the 2018 Land Rights Act, which NGOs and donors have described as being amongst the most progressive laws in sub-Saharan Africa with regard to the recognition of customary land tenure. Given these actors commitment to human rights, this article takes the indigenous right to self-determination as a starting point for analysing customary property rights and their implementation in Liberia. This includes the examination of the Liberian concept of the 1) recognition and nature of customary land rights, 2) customary ownership of natural resources, 3) jurisdiction over customary land, 4) the prohibition of forcible removal, and 5) the right to free, prior and informed consent.
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Rubakula, Gelas, Zhanqi Wang, and Chao Wei. "Land Conflict Management through the Implementation of the National Land Policy in Tanzania: Evidence from Kigoma Region." Sustainability 11, no. 22 (November 11, 2019): 6315. http://dx.doi.org/10.3390/su11226315.
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The land policy in Tanzania, which has been implemented since 1995, aims to resolve land-use problems. This study explored the implementation of land policy in rural Tanzania. A cross-sectional multiple data collection technique was performed during the period July–November, 2017 to examine whether the policy has addressed land issues, including land conflicts. The findings indicate a significant association between immigrants and land conflicts, thus implying an insecure land tenure. The results also show that the realization of land policy was hampered by insufficient budgetary allocation and too few land staff to spearhead the land policy and legislation requirements. In view of these findings, this article suggests that the government must mobilize the resources required for registering communal land and simultaneously reinforce the use of social institutions, cultural norms, and adjoining landowners in securing land rights. This decision will encourage the majority of rural landowners (peasants and herdsmen) to invest in their land for higher and sustainable production.
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Fuad, Muhammad Busyrol. "Quo Vadis Pembaharuan Hukum Pertanahan Nasional: Urgensi Pembentukan Peradilan Khusus Pertanahan dalam Penyelesaian Konflik Agraria yang Berkeadilan." e-Journal Lentera Hukum 4, no. 3 (December 14, 2017): 191. http://dx.doi.org/10.19184/ejlh.v4i3.5550.
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The rise of national agraria conflicts that occurred seem to have been in the point is quite worrisome. Because he has a slice of various forms of human rights dimensionless violations. Various discourses in the effort to resolve the conflict continue. The discourse on the creation of a special court of land seems to have begun to gain a lot of attention. The reason, he is present in the situation of national agraria conflict that never ends, besides the passage of this discourse is full of momentum, which coincides with the draft Land Law Bill which is now entered the political space of legislation in parliament. A special court of land will certainly be a topic of discussion is quite fierce considering the issue will reach the settlement areas of national agraria cases that include land tenure by the plantation company (onderneming), PT. Perkebunan Nasional (PTPN), to the control of land by the military. This paper would like to discuss that the establishment of a special land court in the draft national land law is a necessity in solving a just national agrarian conflict.
Keyword: Agraria Conflict, Violations of Human Rights, Special Court of Land
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POPOV, Andriy, Serhii MOVCHAN, Serhii KOLOMIIETS, and Ivan LEZHENKIN. "FORMATION OF AGRICULTURAL LAND LAYOUT AS AN ALTERNATIVE OF LAND CONSOLIDATION." Ekonomichna ta Sotsialna Geografiya, no. 84 (2020): 42–54. http://dx.doi.org/10.17721/2413-7154/2020.84.42-54.
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The lack of a national strategy (program) for land consolidation, which would be integrated into the country’s land policy, led to the adoption in 2018 of the Law of Ukraine № 2498-VIII “On Amendments to Certain Legislative Acts of Ukraine in Respect of the Issue of Collective Ownership of Land, Improvement of Agricultural Land Use Rules, Prevention of Raidership and Stimulation of Irrigation in Ukraine”. This law is designed to solve the existing problems of land use concerning the rational use of land parcels. However, the principles declared by the relevant law have not gained practical application to this day. The purpose of the article is to analyse the procedure for the formation of the agricultural land layout to ensure the rational use of land through the exchange of rights of use as an alternative to land consolidation. A detailed analysis of the Law № 2498-VIII allowed to develop an algorithm for the formation of the agricultural land layout with the purpose to exchange of land parcels and their rights of use. This has allowed approaching the solution of the set problem in a more structured and comprehensive way. It has been established that the permitted exchange of land parcels and rights of use within the agricultural land layout is not a land consolidation either in the classical or in any other sense. An analysis of the legal provisions of Law № 2498-VIII has revealed their inconsistency with the “Voluntary Guidelines on Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security” and best international practice on land consolidation. The existing obstacles to the implementation of the legislation on improving the rules of land use in the agricultural land layout have been found out. Three key causes of their occurrence (technical, legal and organizational) have been identified.
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Downie, Leslie. "Urban Pro-Poor Registrations: Complex-Simple the Overstrand Project." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 14, no. 3 (June 9, 2017): 118. http://dx.doi.org/10.17159/1727-3781/2011/v14i3a2578.
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Low-cost housing which has been disposed of by private owners is extremely difficult for conveyancers to register. The law as it stands is often incapable of giving effect to the business transactions of the poor, thereby creating insecurity of tenure nationwide. The Land Titles Adjustment Act 111 of 1993 is currently the only legislation capable of dealing with this impasse. The Overstrand Municipality has provided the staff and infrastructure to run a pilot project under the Act, for which it is awaiting confirmation from the Department of Rural Development and Land Reform. This article discusses the legal issues arising and the potential of such an initiative to provide consumer protection for the low-literate and other vulnerable holders of rights.
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Pratama, Adhitya Dimas. "KEDUDUKAN KEPEMILIKAN HAK ATAS TANAH DALAM PERKAWINAN CAMPURAN TANPA ADANYA PERJANJIAN PISAH HARTA." Jurnal Panorama Hukum 3, no. 2 (December 9, 2018): 247–63. http://dx.doi.org/10.21067/jph.v3i2.2828.
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Intermarriage is a phenomenon that is rife with the development of increasingly rapid technology weapons. Implementation of mixed marriages must not be separated from the constraints and risks will dihadi offender Mixed Marriage itself. One of the problems that arise are related to the occurrence of the Joint Treasure especially over land rights as legal consequences arising from the holding of intermarriage intermarriage especially if implemented without prenuptial agreement. The author of this thesis wants to study and analyze more about the law as a result of intermarriage without severance agreement treasure to land ownership and settlement of land ownership issues arising from mixed marriage without separation agreement treasure. The method used is a normative legal research, namely legal research done by researching library materials or secondary law while in locating and collecting data is done by two approaches, namely legislation and conceptual approaches.
The results showed that the legal consequences of intermarriage in the absence of agreement separating property to the ownership rights to the land after the enactment of Law No. 1 of 1974 About the marriage, property acquired during the marriage is community property as engaging joint property so that if it is not made an prenuptial agreement the property rights to land shall be released within a period of one (1) year or the land falls to the state. The resolution attempts to do to the problems of land ownership arising from mixed marriages without the agreement split the treasure is in the form of drafting of a treaty mate after marriage or reduction of land rights from property rights into rights of use in accordance with the provisions of that kind of tenure, which may possess by someone follow the status of their land rights subjects in accordance with the provisions of the legislation
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Tsiouvalas, Apostolos. "Mare Nullius or Mare Suum? Using Ethnography to Debate Rights to Marine Resources in Coastal Sámi Communities of Troms." Yearbook of Polar Law Online 11, no. 1 (April 3, 2020): 245–72. http://dx.doi.org/10.1163/22116427_011010013.
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While legal progress on Indigenous land claims has recently been fostered around the globe, sea claims still lag behind. Since the beginning of colonization, the doctrine of mare nullius declared seas vacant of Indigenous tenure or authority and led to the establishment of sovereign State jurisdiction over offshore areas, and more recently to the characterization of the living resources in these waters as accessible for each State’s citizens. In Norway, colonialism was not characterized by transoceanic settlement. The concept of establishing sovereignty in offshore areas attached to the land, however, had the same basis as the European colonies in America or Oceania. In this context, the acknowledgement of the marine living resources in the waters attached to the land as common goods for all Norwegian citizens adversely affected the Coastal Sámi Indigenous peoples, who exclusively and since time immemorial managed the wild marine living resources based on customary systems of marine tenure. Additionally, due to increased regulations over the past few decades, it has become difficult for the Coastal Sámi to continue their traditional way of living. Still, legislation and recommendations on Indigenous participation in marine resource management exist and derive from both Norwegian and international law. However, despite the established legal framework, Coastal Sami participation in marine resource management is often questioned. It has been argued that the most appropriate way to ensure Indigenous inclusion in marine resource management is to look at the reverse side of the coin, exploring Indigenous tenure, legal traditions and knowledge, and accommodate them within State law. This project aims, through ethnographic fieldwork and literature analysis, to discuss the current status of Coastal Sámi fisheries in the communities of Troms County, and illustrate local conceptions of marine resource management among the project participants.
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Gray, Peter R. A. "Do the Walls Have Ears? Indigenous Title and Courts in Australia." International Journal of Legal Information 28, no. 2 (2000): 185–212. http://dx.doi.org/10.1017/s0731126500009070.
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Australia has always been a place of legal pluralism. Before the British colonists brought with them the common law and the statute law of England, there were indigenous systems of law. Indeed, there were very many of them. They did not cease to exist just because English law was imported. Sadly, for over 200 years, their existence was not officially recognised by the Anglo-Australian legal system. In 1992, in Mabo v State of Queensland [No.2], the High Court of Australia did more than “invent” native title. It made this nation officially a legally pluralist one. The common law now recognises, and gives effect to, indigenous law with respect to land tenure and, possibly, with respect to other aspects of life and death as well. Native title is what indigenous law says it is, no more and no less, except to the extent that non-indigenous law operates to “extinguish” or “impair” native title. The first inquiry in any application for a determination of native title must be as to the continuing existence of an indigenous legal system and the manner in which that legal system deals with entitlements in relation to the relevant land. If such a system survives and gives entitlement to people, it must then be asked whether non-Aboriginal law has “extinguished” or “impaired” those entitlements. In truth, this inquiry is as to whether the non-indigenous legal system has withdrawn its recognition of those entitlements, because of its creation of interests, or recognition of activities, incompatible with the continuing existence of indigenous entitlements. The entitlements continue to exist in indigenous law, despite any “extinguishment” or “impairment.”
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Sahlan, Sahlan, Rusli Ayyub, Armin K. Armin K, and Abraham Bekka. "The Implementation of Using of Land Rights for Industry." Jurnal Akta 9, no. 1 (March 29, 2022): 49. http://dx.doi.org/10.30659/akta.v9i1.20541.
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This research aims to know the control over land, either by individuals, collectively or by the state, is only exercised and may only be exercised, if the aim is for the greatest prosperity and justice of the people or for the welfare of the nation and state as much as possible. The research methods was a normative juridical approach and descriptive analytical and highlighted especially in terms of technical legislation. Data collection was carried out with an emphasis on the study of documentation in the library. Field visits were more aimed at checking the application of positive law and to find problems in its implications. The result of the research indicate that there are problems related to the incomplete conceptual preparation in the planning, policy and regulatory stages, caused by the weakness of the quality of planners and legal officials. These weaknesses have caused problems of misunderstanding and inaccuracy in applying the concept, so that the regulatory policies that are drawn up and their implementation deviate a lot from what is expected and have even led to disharmony in society. The product achieved is such that it is not so good, that it will require a difficult effort and take a long time to harmonize it again. Such conditions and problems occur and are found both in the issue of 'state tenure in the National Defense Law, and in the issue of 'land tenure in industrial areas'. The novelty show that in the field of industrial development, the choice of approach is carried out by prioritizing the interests of small companies, medium-sized enterprises and cooperatives in the field of agro-business and agro-industry, without neglecting the presence and role of big entrepreneurs. And in the land acquisition program for the development of an area, a partnership approach should be developed, in such a way that the interests of the people and the good protection of people's rights to land can be paid more attention.
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Hooke, Frank M. "THE NATIVE TITLES ACT 1993—THE PETROLEUM INDUSTRY AND THE FUTURE." APPEA Journal 34, no. 2 (1994): 174. http://dx.doi.org/10.1071/aj93099.
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The judgement of the High Court of Australia in 1992 in Mabo v. Queensland has had a major impact on land law in Australia.The Native Titles Act, 1993, is the first of what will be many steps in a long, complex legislative program to integrate 'native title', into Australia's land law.Those drafting the Native Title Act seemed to have concentrated on dealing with 'native title' issues in isolation and to have ignored or put to one side the need for it to mesh with other aspects of land law. This has created uncertainty for many users of land and will require review.Although the contrary was intended, the Act creates, in practical terms, significant uncertainty for renewal of existing oil and gas exploration and production titles. It also has implications for applicants for new titles and in due course for farmouts and assignments.Eventually additional legislation will be required to clarify the relationship of native title with the other areas of land law.
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Price, Stephanie. "Implementing Solomon Islands’ Protected Areas Act: opportunities and challenges for World Heritage conservation." Asia Pacific Journal of Environmental Law 21, no. 2 (November 2018): 147–70. http://dx.doi.org/10.4337/apjel.2018.02.04.
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The inscription of East Rennell in Solomon Islands on the World Heritage List was a landmark in the implementation of the World Heritage Convention. However, the site is now on the List of World Heritage in Danger, threatened by resource development, invasive species, climate change and the over-harvesting of certain animals. This article examines the scope for the Protected Areas Act of 2010 to be used to safeguard the site, and the challenges that may be encountered if the Act is implemented there. It explains how the Act provides direct protection against some (but not all) of the threats to East Rennell. Furthermore, the approach to conservation facilitated by the Act is appropriate for Solomon Islands, where most land is under customary tenure, many people rely on natural resources to support their subsistence lifestyles and the government's capacity to enforce legislation is limited. The article argues that the relationship between the legislation and custom must be considered in the design of the landowner consent process, the preparation of the site's management plan, and the selection of its management committee. Additionally, the protected area should aim to improve the livelihoods of the East Rennellese, as well as safeguarding the site's heritage values.
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Moriarty, Andrew. "The liberation, distribution, abundance and management of wild deer in Australia." Wildlife Research 31, no. 3 (2004): 291. http://dx.doi.org/10.1071/wr02100.
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Deer species (fallow, red, sambar, chital, rusa and hog deer) have formed wild populations in Australian habitats ranging from arid woodland to rainforest and are a growing management issue. Data were obtained via an Australia-wide land-manager survey that collected information on the liberation, distribution, abundance and management of wild deer in Australia. It is estimated that there are 218 wild deer herds in Australia with 7% of these herds originating from acclimatisation society releases, 35% from deer farm escapes/releases and 58% from translocations (deliberate releases). On average, herds released by acclimatisation societies are estimated to be 107 years old, herds that have escaped from (or been released from) deer farms are 9 years old, and transplanted herds are 6 years old. It is estimated that Australia currently has 200 000 wild deer, with 85% of these deer originally released by acclimatisation societies, 6% through escapes/releases from deer farms and 9% by translocation. Poor knowledge of the impacts of wild deer by land managers and the absence of consistent legislation governing the management of farmed and wild deer are factors that have exacerbated deliberate releases of deer and the escape of deer from farms. Management strategies for wild deer in Australia need to be developed by land managers to address the escape and release of deer from farms, the illegal translocation of deer into the wild and the management of existing wild deer herds.
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Manin, Iaroslav. "Legal regime of subsoil use in Australia." Административное и муниципальное право, no. 2 (February 2021): 54–68. http://dx.doi.org/10.7256/2454-0595.2021.2.34270.
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The subject of this research is the Australian federal and regional normative legal acts that regulate subsoil use. The object is public relations in the sphere of land turnover, subsurface and natural resource management in the Commonwealth of Australia. The author describes the system and structure of normative legal regulation, as well as subsoil use in Australia. The work contains a list of sources of the Australian natural resources law; analysis of their content is carried out. Special attention is given to the legal regime of exploitation of subsoil resources of the continental shelf of the Commonwealth of Australia, licensing of subsoil use, the role of British monarchy in exercising the right of ownership of land by its subjects, and the authority for subsoil management. The scientific novelty of this article consists in the disclosure of legal regime of subsoil use in the Commonwealth of Australia in the context of amendments to Australian natural resources legislation, constitutional and administrative reforms. This work reflects the economic interest of the Russian Federation and domestic organizations of the fuel and energy complex in the Oceania Region, which defines its relevance. The presented materials can be used within the framework of comparative jurisprudence, lawmaking, for educational and other purposes. The author concludes on the preservation of public legal regime of subsoil use in Australia, namely with regards to turnover of licenses and shares therein.
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Woods, Una. "Adverse possession and boundary disputes: lessons for Ireland from abroad." International Journal of Law in the Built Environment 8, no. 1 (April 11, 2016): 56–79. http://dx.doi.org/10.1108/ijlbe-05-2015-0010.
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Purpose This paper aims to examine the remedies currently available in Ireland to resolve boundary disputes to assess the importance of the role played by adverse possession in this context. It also examines the potential impact of certain reforms in this area of law. Design/methodology/approach The research methodology is primarily doctrinal, although a comparative approach is adopted for the purposes of assessing whether certain lessons can be learned from recent reforms to the English law on adverse possession and the Australian approach to resolving boundary disputes, which relies heavily on mistaken improver and building encroachment legislation. Findings This paper demonstrates how the current law leaves certain mistaken improvers or encroachers on neighbouring land without a remedy, as they cannot rely on the doctrine of proprietary estoppel or adverse possession. If Ireland decides to replicate the English good faith requirement in relation to adverse possession of boundary land, the remedial vacuum facing these mistaken improvers or encroaching builders will become more pronounced. It is submitted that any such reform should be supplemented by the introduction of legislation akin to that operating in Australia which would facilitate the consideration of a broad range of factors and provide for flexible remedies to resolve such difficulties. It is also submitted that the legislation imposing such a good faith requirement should be carefully drafted to avoid the potential interpretative difficulties associated with the English reforms. Originality/value Boundary disputes are an unfortunate fact of life. The prevalence of boundary disputes and high costs associated with boundary litigation makes this review and critique of the current law and potential reforms highly relevant.
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Blajer, Paweł. "‘DEEDS RECORDATION’ ‘TITLE REGISTRATION’. ROZWIąZANIA MODELOWE W ZAKRESIE REJESTRóW NIERUCHOMOŚCI W SYSTEMIE ‘COMMON LAW’." Zeszyty Prawnicze 13, no. 4 (December 11, 2016): 53. http://dx.doi.org/10.21697/zp.2013.13.4.03.
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DEEDS REGISTRATION AND TITLE REGISTRATION: MODEL SOLUTIONS CONCERNING LAND REGISTRIES IN THE COMMON LAW SYSTEMSummary The aim of this article is to present the two main land registration models in the common law countries, i.e. deeds recordation and title registration, taking into account the broader historical perspective indicating their origins, evolution and developments, as well as the current state of legal regulations in the field of registration of interest in land. The system of deeds recordation is characterized on the basis of regulations adopted in the vast majority of the US states, whereas the title registration model is presented against the background of the Torrens system, the origins of which date back to 19th-century Australian legislation. From Australia this particular land registration system spread to other continents. A comparison is carried out of the two systems, taking into account their advantages and disadvantages, and the reasons for the global success of the title registration model are indicated. On the grounds of the regulations adopted in Scotland and the Republic of South Africa the author makes also an attempt to characterize the mixed systems, which are generally based on the deeds recordation model but emploi some solutions typical for the title registration system. Concluding the article, the author tries to indicate the particular characteristics of title registration model which could be a source of inspiration for the potential optimization of the Polish land registry system.
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Youngh Jung. "Artificial Intelligence and Courts’ Dispute Resolution - A Recent ‘AI’ Legislation in Common Law States -(USA, UK, Canada, Australia, Newzeal land)." Journal of hongik law review 21, no. 1 (February 2020): 209–47. http://dx.doi.org/10.16960/jhlr.21.1.202002.209.
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Morgan, Jill. "DIGGING DEEP: PROPERTY RIGHTS IN SUBTERRANEAN SPACE AND THE CHALLENGE OF CARBON CAPTURE AND STORAGE." International and Comparative Law Quarterly 62, no. 4 (October 2013): 813–37. http://dx.doi.org/10.1017/s0020589313000353.
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AbstractA burgeoning international interest in Carbon Capture and Storage (CCS) as a means of mitigating the effects of climate change has raised a number of novel legal issues, one of which concerns ownership of the underground sites in which captured carbon dioxide can be stored. This paper considers the extent of a surface landowner's rights above and below land and explores the treatment of underground space within the context of CCS in relation to differing jurisdictions. Particular attention is paid to legal principles applied in the United Kingdom and the United States, and consideration is also given to relevant legislation in Australia and Canada.
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Finch, N. A., and G. S. Baxter. "Oh deer, what can the matter be? Landholder attitudes to deer management in Queensland." Wildlife Research 34, no. 3 (2007): 211. http://dx.doi.org/10.1071/wr06002.
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Deer are not native to Australia but have been present in the country for more than 150 years. For most of that time they have not been regarded as either an agricultural or environmental pest, but in the last few years there have been calls for their numbers to be reduced. Four species of deer can be found in well established populations in Queensland, mostly occurring on private land. Hence the effectiveness of any management of deer as pests will be heavily influenced by the actions of the land owners. This paper reports on a survey of the attitudes of landholders towards deer on their properties. A total of 2621 surveys was mailed to landowners and managers in regions known to support wild deer in Queensland. Of the 28.3% of surveys returned, over 75% of respondents conducted some form of primary production on their land and 65% of these had deer on their properties at least some of the time. Responses to questions were mostly uniform throughout the state, with over 50% of respondents wanting the deer population to stay at current levels or increase. Only 5% of respondents supported poisoning as a management strategy, with 17% supporting trapping. Recreational hunting and game-meat harvesting were favoured management options, with 42% and 51% support respectively. Only 25% of respondents thought wild deer caused environmental damage and 30% thought wild deer caused agricultural damage, with most associating wild deer as a less significant pest than those species already declared under state legislation. Of those surveyed, 56% agreed with the statement ‘It is important to maintain wild deer populations for future generations to enjoy’. The spread of deer in Australia is of increasing concern to ecologists, and there have been calls for action to reduce their numbers on private and public land. The results of this survey imply that a significant proportion of Queensland landholders would resist legislation aimed at managing deer as a pest in areas with long-established wild deer populations.
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Maass, Sue-Mari. "Rent Control: A Comparative Analysis." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 15, no. 4 (May 29, 2017): 40. http://dx.doi.org/10.17159/1727-3781/2012/v15i4a2510.
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Recent case law shows that vulnerable, previously disadvantaged private sector tenants are currently facing eviction orders – and consequential homelessness – on the basis that their leases have expired. In terms of the case law it is evident that once their leases have expired, these households do not have access to alternative accommodation. In terms of the Constitution, this group of marginalised tenants have a constitutional right of access to adequate housing and a right to occupy land with legally secure tenure. The purpose of this article is to critically analyse a number of legislative interventions, and specifically rent control, that were imposed in various jurisdictions in order to provide strengthened tenure protection for tenants. The rationale for this analysis is to determine whether the current South African landlord-tenant regime is able to provide adequate tenure protection for vulnerable tenants and therefore in the process of transforming in line with the Constitution. The legal construction of rent control was adopted in pre-1994 South Africa, England and New York City to provide substantive tenure protection for tenants during housing shortages. These statutory interventions in the different private rental markets were justified on the basis that there was a general need to protect tenants against exploitation by landlords. However, the justification for the persistent imposition of rent control in New York City is different since it protects a minority group of financially weak tenants against homelessness. The English landlord-tenant regime highlights the importance of a well-structured social sector that can provide secure, long-term housing options for low-income households who are struggling to access the private rental sector. Additionally, the English rental housing framework shows that if the social sector is functioning as a "safety net" for low-income households, the private sector would be able to uphold deregulation. In light of these comparisons and the fact that the South African social sector is not functioning optimally yet, the question is whether the South African private sector is able to provide the required level of tenure protection for struggling tenants. Recent case law shows that tenants are at liberty to lodge unfair practice complaints with the Rental Housing Tribunals on the basis that the landlords' ground for termination of the lease constitutes an unfair practice. The Court defined an unfair practice as a practice that unreasonably prejudices the tenants' rights or interests. This judicial development signifies some transformation in the private sector since it allows the Tribunals to scrutinise landlords' reasons for termination of tenancies in light of tenants' personal and socio-economic circumstances. The Tribunals are therefore empowered to weigh the interests of both parties and decide whether to confirm termination of the lease or set aside such termination. In light of this recent development, the Tribunals can provide strengthened tenure protection for destitute tenants on a case by case basis, which incorporates a flexible context-sensitive approach to the provision of secure housing rights in the landlord-tenant framework. This methodology is similar to the German approach. Even though this judicial development is welcomed, it raises some concerns with regard to landlords' property rights and specifically landlords' constitutional property rights since Tribunals are now at liberty to set aside contractually agreed grounds for termination of leases without any statutory guidance. The legislation fails to provide any information regarding legitimate grounds for termination, which might have to be rectified in future. The grounds listed in the rent control legislation should serve as a starting point to determine which grounds for termination of a lease should generally be upheld. However, German landlord-tenant law shows that a statutory ground for termination of a lease should not be imposed in an absolutist fashion but rather place a heavier burden on the tenant to prove why the lease should not come to an end.
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Tjoanda, Merry. "The expansion and existence of the indigenous rights of sea in indigenous villages (review of the customary right of coastal and marine areas of Halong state)." Journal of Cultural Heritage Management and Sustainable Development 10, no. 3 (February 23, 2020): 209–16. http://dx.doi.org/10.1108/jchmsd-05-2018-0034.
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PurposeTo know the control of Halong State against coastal and marine areas in the area that has been divided into Latta village and Lateri urban villages.Design/methodology/approachThis type of writing of research is in the field of law, so the research method used is juridical normative, by using the approach of legislation and conceptual approach, intending to answer the temporary problem issues encountered.FindingsArticle 18B paragraph (2) of the 1945 Constitution of the State of the Republic of Indonesia is the constitutional basis of the state's recognition of the unity of indigenous and tribal peoples based on their traditional rights. One of the rights of customary law community is the control over its territory, which is called indigenous rights for both land and coastal and sea. In its development, there are some areas of indigenous village released for villages' formation or villages in coastal and marine areas. However, the expansion of indigenous villages did not affect the loss of customary village tenure to the Indigenous rights of coastal and marine areas in the area of a village or urban village which was expanded from a custom village.Originality/valueRelated to this Halong State in Ambon City is one of the indigenous villages which occupies the area within the bay of Ambon Island which has the right of customary law community area in the land area, and has a sea fishing territory. In its development, part of Halong State has been divided into a village and urban village, namely Lata Village and Lateri Urban Village. Latta village and Lateri village are also located in the coastal area of Ambon Bay. The problem that arises from the division is whether the coastal areas and the sea in Latta and Lateri villages remain part of the Halong state territory or not.
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Kareemulla, K., Pandian Krishnan, S. Ravichandran, B. Ganesh Kumar, Sweety Sharma, and Ramachandra Bhatta. "Spatiotemporal Analysis of Size and Equity in Ownership Dynamics of Agricultural Landholdings in India Vis-à-Vis the World." Sustainability 13, no. 18 (September 13, 2021): 10225. http://dx.doi.org/10.3390/su131810225.
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The increasing threat to sustainable agriculture is a major concern of planners worldwide. Human population growth together with increasing food requirements and competition for land use is leading to land scarcity for agricultural purposes. Farm size influences the extent of the adoption of mechanization and modern methods of farm management practices, which in turn results in increased productivity, production efficiency and agricultural income. We studied changes in macroeconomic factors such as dependency on agriculture, growth of the sector, the pattern of landholdings and tenure rights across major agriculturally important countries, as well as the priority of agriculture for the national economy (i.e., the share of agriculture in the national income) and its relationship to changes in farm size. The data on the percentage of area under farming, population growth, size of the agricultural workforce and other social dimensions from 24 countries of different geographical sizes were analysed. We used parameters such as the extent of changes in cropland, family-owned land, the agricultural workforce and their productivity, number of holdings and their distribution, women-headed holdings and finally total and per capita agricultural income, and measured the changes over time and space. The published data from national and international sources were used to establish the relationship between farm size and farm efficiency measured through the selected parameters. The results clearly establish that the size of farm holdings had an inverse relationship with the population dependent on agriculture, share of agriculture in national income and tenure rights. Australia had the largest average agricultural landholding (3243 ha), while India and Bangladesh had the lowest (1.3 and 0.3 ha, respectively). The inequality in the distribution of farmland ownership was greater in developed countries than in developing countries. Female farmland ownership was less than 20% in most developing countries and the relationship between the number of farm households and farm outcomes was found to have weakened over time. India, a developing as well as an agriculturally important country, was subjected to detailed analysis to understand the spatiotemporal dynamics of the size, distribution and ownership patterns of agricultural landholding.
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Houtzager, Peter P. "State and Unions in the Transformation of the Brazilian Countryside, 1964-1979." Latin American Research Review 33, no. 2 (1998): 103–42. http://dx.doi.org/10.1017/s0023879100038255.
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In the early 1960s, the dramatic mobilization of rural wage laborers and small farmers placed the agrarian question at the top of the Brazilian political agenda. The question facing governing elites was how to modernize an archaic agrarian sector that was widely perceived as posing a major bottleneck for development and a breeding ground for agrarian radicalism. Until that time, wage laborers and small farmers in various forms of land tenure had effectively been excluded from existing labor legislation, social security, and coverage by national law in general. Instead, various traditional and clientelist forms of social control regulated rural social relations. The new rural movements were led by relatively moderate urban groups or individuals seeking to create a rural political base. Their appearance soon after the Cuban Revolution however, and in the larger context of the cold war, triggered fears of possible revolution. National debate quickly centered not on whether but on how the Brazilian state should intervene in the countryside. Attempts by the populist government of President João Goulart to address the agrarian question were cut short by the military coup of 1964. In its wake, the fledgling rural movements were brutally repressed in a wave of state-sponsored repression and private landowner violence.
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Lee, David. "Labor, the External Affairs Power and the Rights of Aborigines." Labour History 120, no. 1 (May 1, 2021): 49–68. http://dx.doi.org/10.3828/jlh.2021.4.
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The Australian Constitution gave the Commonwealth not a “treaty power” but a vague power over “external affairs,” the precise meaning of which was elusive for most of the twentieth century. From the 1930s, Labor judges and politicians such as H. V. Evatt saw its potential to extend Commonwealth power by legislating international agreements throughout Australia. The non-Labor parties rejected the idea of using the “external affairs” power to legislate in areas formerly the responsibility of the states but the federal Labor Party continued in the Evatt tradition. After significant uncertainties, the Whitlam government used the external affairs power to pass the Racial Discrimination Act 1975, the first significant human rights legislation in the country, which in turn had a profound effect on the law of the land in the country by making the second Mabo Case possible.
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Richards, Michael. "Protected areas, people and incentives in the search for sustainable forest conservation in Honduras." Environmental Conservation 23, no. 3 (September 1996): 207–17. http://dx.doi.org/10.1017/s0376892900038820.
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SummaryAttitudes and incentives of people living around protected areas are widely considered to constrain successful management of these areas. Two contrasting protected areas in Honduras, a Biosphere Reserve of high biodiversity rainforest, and a cloud forest providing essential environmental services to the capital city, are analyzed in terms of their management problems and the strategies used for their protection. The response at the national level to the issues raised in these case studies is then assessed, focusing on the impact of government policies, legal changes affecting land tenure and use, and the role of state institutions in protected area management. The case studies indicate that while the non-government organizations (NGOs) have tried to promote a more participatory approach to conservation (with mixed success), the Honduras Government has tried to follow a more regulatory approach but without the resources and political will to implement it effectively. Opportunities have been missed to provide positive incentives for protection, for example in the area of eco-tourism and community-based natural forest management in situations where this would appear to be a viable option. The participatory approach has also been complicated by policies and land legislation which have sent out negative or ambiguous signals to local communities. Above all the case studies show how critical local attitudes are to the achievement of conservation objectives, and demonstrate the need for positive economic incentives that link development with conservation in buffer zones and surrounding areas.
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Kulynych, Pavlo. "Legitimate land interests and prospects of their implementation in the conditions of digitalization of land relations." Yearly journal of scientific articles “Pravova derzhava”, no. 33 (September 2022): 346–59. http://dx.doi.org/10.33663/1563-3349-2022-33-346-359.
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The article investigates the theoretical issues of implementation of legitimate land interests in the conditions of digitalization of land relations in Ukraine. The idea of introducing a category of interest in jurisprudence belongs to the prominent German lawyer Rudolf von Yering. Exploring the laws of law as a regulator of social relations in the late nineteenth century, he drew attention to the marked infl uence of public interests on its development. Rudolf von Yeering found that as society’s interests change, so does its rights. Modern legal doctrine is based on that implementation of the law is carried out both through the subjective rights of the parties to the relationship, and through their legitimate interests. Therefore, it has become quite natural to try to use theoretical developments on the legal nature of legitimate interests as an element of the legal status of participants in public relations to meet their needs. The Constitutional Court of Ukraine has ruled that the notion of «interest protected by law» should be understood as the desire to use specifi c tangible and / or intangible goods, as conditioned by the general content of objective and not directly mediated in subjective law simple legitimate permission, which is independent of subject to judicial protection and other means of legal protection in order to meet individual and collective needs that do not contradict the Constitution and laws of Ukraine, public interests, justice, fairness, reasonableness and reasonableness and other common law principles. So legitimate land interests as a legal phenomenon arise in the fi eld of land, environmental and some other relations governed by law. Only after the extension of legal norms to a certain range of land or other related social relations, a person as a participant in such relations may have legitimate land interests. In author’s opinion, an important legal source of a person’s legitimate interests in the fi eld of land relations is the acquisition of property rights and other land rights, as well as environmental rights (favorable environment, etc.), which cause a conscious, socially active person legitimate land interest. (For example, interest in keeping neighboring areas in good agricultural, aesthetic condition, etc.). After all, land use, including agricultural, is increasingly beyond the interests of the subject of ownership or the right to use the land and interferes in those areas of public relations that aff ect the interests of other individuals and society in the face of the state and territorial communities. Therefore, an important stage in the development of legitimate land interests has been the land reform that has started in Ukraine since the early 1990s. One of its key consequences was the formation of a system of land rights, which is based on the basic property right - property rights. Unfortunately, the land legislation of Ukraine has not yet formed a clear legal mechanism for the implementation and protection of legitimate land interests. Its absence was especially acute at the fi nal stage of land reform - the opening of the agricultural land market when competition between land rights and legitimate land interests of various subjects of land rights intensifi ed. In such conditions, administratively capable and economically strong subjects of land legal relations, especially large agricultural producers, try to ensure the formation of a legal environment in which their land interests would be dominant. At the same time, ignoring the legitimate interests of some participants in land relations – peasants – cannot be the basis for appropriate legislation, because the formation of a balanced legal system as a whole and eff ective land law cannot be done by ignoring the legitimate interests of any group of people. In our opinion, such legislative measures should be assessed as legal recourse, not legal progress. One of the most common legitimate land interests in the land law of Ukraine is a legitimate expectation of a certain land law result (actions, decisions, etc.). A legitimate expectation arises when, as a result of statements or promises made on behalf of a public authority, or as a result of established practice, a person has a reasonable expectation that the public authority will act in this way and not otherwise. In some cases, the legislative activity of the Parliament of Ukraine may be the object of legitimate expectations of landowners and users. Deepening the legal regulation of land relations in the context of their digitalization leads to the expansion of the sphere of origin and realization of legitimate land interests. One of the ways to deepen the legal regulation of land law is to increase the legally sensitive features of land as an object of land relations. This increase in these features takes place, when with the help of modern digital technologies new land qualities are identifi ed and recorded as legally signifi cant facts in electronic databases that are processed (summarized, combined, allocated, etc.) using modern digital services (software) including artifi cial intelligence. Thus, expanding the list and ensuring unlimited access to legally relevant information on the state and dynamics of land creates conditions for the emergence of new land interests, aimed not only at exercising individual land tenure, but also at maintaining land resources in good condition. In particular, the expansion of the sphere of legitimate land interests is conditioned by going beyond the neighborhood, when the object of such interests of the person are only adjacent (neighboring) land plots, and their acquisition of «digital» extraterritoriality. It should be noted that the expansion of the sphere of realization and protection of legitimate land interests may have certain negative consequences, such as confl ict of interest or «war» of interests. Therefore, to prevent such extremes, it seems appropriate to establish legal safeguards against the abuse of legitimate land interests. One of them may be the establishment of collective protection of such interests by a group of persons or their association in a public organization. Finally, it is concluded that the digitalization of land relations creates new challenges and opens new opportunities in ensuring the realization of the potential of land law through the mechanism of protection of legitimate land interests. Therefore, society must increase its legal «readiness» for the challenges and opportunities of the era of digitalization of land relations.
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KIRKBY, CHRISTOPHER A., RENZO GIUDICE, BRETT DAY, KERRY TURNER, BRITALDO SILVEIRA SOARES-FILHO, HERMANN OLIVEIRA-RODRIGUES, and DOUGLAS W. YU. "Closing the ecotourism-conservation loop in the Peruvian Amazon." Environmental Conservation 38, no. 1 (March 2011): 6–17. http://dx.doi.org/10.1017/s0376892911000099.
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SUMMARYAnnual revenue flow to developing countries for ecotourism could be as large as US$ 29 billion, providing an enormous financial incentive against habitat loss and exploitation. However, surprisingly little quantitative evidence exists on the profitability of the rainforest ecotourism sector, which determines the incentive and capacity of the sector to engage in conservation. A Peruvian rainforest ecotourism cluster generated US$ 11.6 million in 2005. The after-tax profit margin was at least 14% and has increased with tourist volume. High profitability, coupled with new legislation, has allowed operators to put 54 358 ha of rainforest near the new Interoceánica Sur highway under private management and to engage in conservation actions. A previously published microeconomic contract model of protected-areas management identifies two key features of rainforest tourism that link ecotourism to conservation: (1) tourists demand an immersive experience, which incentivizes the acquisition of large amounts of forest cover, and (2) institutional reforms have increased the expected effectiveness of conservation actions. In Peru, these conditions appear to be met, so that profits from ecotourism can combine with new land tenure rights to create a governance structure within which the industry can act as an independently financed partner to the conservation community.
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He, Siyuan, Lingfan Yang, and Qingwen Min. "Community Participation in Nature Conservation: The Chinese Experience and Its Implication to National Park Management." Sustainability 12, no. 11 (June 11, 2020): 4760. http://dx.doi.org/10.3390/su12114760.
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Rural communities are taking active roles in conservation. However, the basic modes and content of community participatory approach are seldom summarised or reflected on in China, leaving the use of terms confused and their links to practice disconnected. By reviewing the literature, we traced back to the protected area-community relations from the perspective of features of rural communities, namely knowledge accumulation, social bond, collective actions, and risk-aversion, and reflected on changing roles of community conservation through recognition of these features. Combining case studies and our own research experience, we focused on the de facto practices behind the somewhat casual use of several terms and re-classified community participation in conservation to three modes of community participatory management, community co-management, and community dominant management, along a continuum in which, from low to high level, conservation is more a means rather than an end for the community to be empowered for their own resource management. We argued that the success of community participation must ensure stable and flexible land tenure so that the right to benefit can be guaranteed, and the collective action in managing resources can be achieved by empowerment. In practice, further institutional changes of improvement in the legislation and optimisation in benefit sharing and compensation are needed to promote community participation in a broader social participation context.
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Kelly, Andrew H., Jasper Brown, and Aaron Strickland. "Local government and coastal damage: confusion, potential and dreams." Journal of Property, Planning and Environmental Law 12, no. 1 (July 1, 2019): 1–18. http://dx.doi.org/10.1108/jppel-10-2018-0032.
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Purpose This paper aims to not only disentangle the recently altered law and policy on coastal management in New South Wales (NSW), Australia, but also raise opportunities for fresh ideas to develop when dealing with both existing and future coastal damage. The focus is on the role of local government which is not only closer to concerned citizens but also faces costal damage on its own doorstep. Design/methodology/approach The paper explores the topic from the beginnings of relevant statutory law to the current situation, supported by a case study. It is transdisciplinary in nature, encompassing land use and coastal legislation. Findings The narrative encourages further attention to the key issues at the local level. This is underpinned by the need for planners to move beyond zoning and other restrictive mechanisms to more strategic approaches. All levels of government must recognise that regulatory planning on its own is insufficient. This leads to the need for champions to consider opportunities beyond the ordinary. Originality/value While this paper will add to a growing literature on coastal damage and action at the local level, its emphasis on the benefits and limitations of the changing statutory system will assist not only policy makers but professional officers at the local forefront.
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Abdullah, Rozlinda, Mohd Fadzri Azham Zainudin, Cinderaylia Raymond, Dannero Onell Anjum, Elhanan James, and Noraziah Abu Bakar. "Legal Issues Relating to the Relationship Between the Landlord and Tenant in Malaysia." Malaysian Journal of Social Sciences and Humanities (MJSSH) 8, no. 1 (January 31, 2023): e001946. http://dx.doi.org/10.47405/mjssh.v8i1.1946.
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It is crucial to safeguard the interests of tenants and landlords in their tenancy agreements to achieve the concept of justice and equality. Malaysia has not yet had a specific law to govern the relationship between tenants and landlords whereby the rights and obligations of both parties are stipulated inside their tenancy agreement. Suppose there is a breach in the contracts. In that case, the jurisdiction to settle such disputes will be referred to the relevant laws in Malaysia, such as the National Land Code (Revised 2020) (Act 828), Contracts Act 1950, Specific Relief Act 1950, and Distress Act 1951. Even so, such legislation remains vague in resolving specific issues about the entrance of parties into a tenancy agreement which will be further discussed in this study. Further discussed are the rights and obligations of both parties based on their contractual agreement and, subsequently, the proposed solutions. A comparative study is made with Australia and New Zealand on the legal issues relating to the relationship between the landlord and tenant. The findings from this study portray a need to adopt a single statute to govern the relationship between tenants and landlords in Malaysia, namely the Residential Tenancies Act.