W. A. GORDON
Department of Forestry, University of Oxford
SOME of the current problems of tropical land tenure are more obviously the concern of agriculturists than of foresters, because a great of the land that is used for forestry is kept out of ordinary circulation by government ownership, with the result that it is insulated to some extent against developments that take place on agricultural land. Foresters, however, may find that they are mistaken if they think they can disregard these developments. Even where government ownership of forest remains the fashion, changing conceptions of land are likely to affect the terms of government tenure and its security.
It is the writer's belief1 that most countries are moving toward land tenure systems based on individual freehold ownership and that, although government intervention may in some cases delay the evolution, it is doubtful if it can continue to do it indefinitely because the idea of individual ownership seems to be universally attractive to the people who use the land, once they have grasped the idea of it. It is suggested that we may soon see the same kind of changes in tropical landscapes as took place during the enclosure movements of European countries, leading for instance to Africa within the next 100 years being divided up into freehold properties by fences and boundary marks and other visible evidence of ownership.
1Adapted from a paper submitted to the Fifth World Forestry Congress. W. A. Gordon is the author of The law of forestry (H.M.S.O., London, 1955).
In northwest Europe freehold ownership of land is a recent institution. Within times covered by historical records, land was a free natural resource and the only limitation on its free use was the necessity for people to live together in communities, so that cultivable land near a settlement could be in greater demand than better land further away. That limitation demanded some form of land administration, comparable to some of the unwritten codes found in tropical countries today, to give everybody a fair share of the best and worst land and of the least and most accessible, and to prevent overuse of the more accessible.
The conception of freehold titles in the hands of the actual users of the land developed from communal and feudal tenure under the influence of a variety of causes, but a very important influence which led to the sudden enclosure movements of the countries of northern Europe was the discovery that land could be farmed continuously without the need for the customary biennial or triennial fallow.
During these developments the fate of forest land was decided largely by historical accidents. In some European countries the State succeeded, at one stage or another, in pulling land out of general circulation, so that it escaped the legal evolution that affected the rest of the land, and a few governments managed by accident or design to establish full titles to considerable areas of land that now go to make up the national forest estates.
In the United Kingdom, government-controlled. land only occurred on a very small wale, because of forest reservations made in Norman times, but over a part of these early reserves the Crown did continue to assert its rights with sufficient regularity to preserve them against freehold encroachment, so that the Forestry Commission in 1923 was able to take over about 100,000 acres (40,500 hectares) of Crown land, heavily burdened in many cases with rights of common, but nevertheless with an indisputable title of ownership.
There were probably opportunities during the early history of England when the Crown might have built this area up to the present state target of three million acres (1,2 million hectares), but from 1750 onward that possibility disappeared very rapidly, as most of the land that ought to have been earmarked for state forestry began to slip into individual ownership. The period of the enclosure movement was the last chance that the Government had of building up its national forests cheaply.
Individualization in land tenure, provided that it is foreseen and is preceded by intelligent land-use planning, can usually be accepted as logical evolution. The danger to be feared is an evolution that takes a country by surprise.
Land that is unsuitable for development under individual ownership should not be allowed to become involved and steps should be taken at an early stage to withdraw it from circulation. That is more or less what has been done, for instance, in Canada, where conditions for doing so were relatively easy because most of the land north of a certain latitude could be identified as unsuitable at present for private ownership. Where this sort of land can be identified, it should be removed from circulation as soon as possible, and it so happens that in most of the tropical territories of the British Commonwealth, forest ordinances provide the only machinery for doing this.
Fragmentation and subdivision of land in shares are among the more dangerous developments that follow unplanned extension of freehold titles. In the early days, before this was understood, the United Kingdom was fortunate in having the protection of the rule of primogeniture, which helped to prevent fragmentation on inheritance. By abolishing primogeniture about a century too early, Napoleon initiated the process of fragmentation which has become a major problem of land use in most of the European countries that formed the Napoleonic Empire, while under other systems of law, notably the Ottoman Code, which contains no safeguard, land sometimes became so fragmented that it ceased to be possible to use it economically. In the newer countries of the tropics, unless land tenure law receives skilful guidance in its development, fragmentation will inevitably occur, as customary tenure that has grown up with tribal ownership is replaced by individual freehold. This might eventually be expected to have its impact on forestry, because the only land that would escape fragmentation and remain available in unfragmented blocks would be areas such as forest reserves which had been withdrawn earlier from circulation.
It might be argued that the enclosure movement would not have occurred so soon in Europe or on such a large scale, if the means had not been found of farming land without periods of unproductive fallow, either through dispensing with fallow altogether or using the fallow period to produce something useful. When land is not cultivated continuously and has to be left at intervals to natural fallow, other people may use it for purposes such as grazing, and that by itself can be enough to obscure the conception of ownership by individuals.
In the tropics this consideration is likely to have an even greater influence, because fallow plays a bigger part in tropical farming than it ever did in Europe. In the wet tropics most land still has to spend more time under fallow than under the plow, and this necessity provides an ecological barrier against the rapid individualization of tenure on land used for annual crop cultivation. On land that is used for subsistence farming of annual crops under a natural fallow rotation, individualization may be a slow process depending on the discovery of means of dispensing with fallow, on the development of techniques which involve treatment and management of fallow and on the prospects of using fallow periods to produce a useful crop. The acceptance of a tended forest crop as a stage in tropical crop rotations is a possibility that should not be neglected.
Where perennial crops are grown, individualization of tenures might be relatively rapid. Perennial crops need security of tenure and their mere presence on the ground provides visible and continuous evidence of title. Although perennial crop cultivation may prove to be a serious rival to forestry on certain kinds of land, it should not be forgotten that a forest plantation is itself a perennial crop and a particularly suitable one for extensive staking of land ownership claims.
State forestry in some parts of the tropics is having its impact on land tenure development in ways that have not helped to make forestry popular with the administration. By staking their claim to 10 or 20 percent of the land of a country, foresters bring forward problems that might not otherwise have arisen in this generation. By bringing shifting cultivation to a halt and enforcing more intensive methods of agriculture, forest reservation is helping in its own way to hasten the trend toward freehold ownership.
The withdrawal from circulation and protection against haphazard occupation of large intact blocks of land is probably a sensible procedure to follow in tropical countries. So long as there is uncertainty about the correct use of tropical land, it is as well to localize mistakes, and, until it is known whether land tenure law will develop on satisfactory lines, it is desirable that a proportion of the available land should be held back in reserve. If, for instance, inheritance rules are obviously going to lead to fragmentation, it will be useful to have some land in reserve that will be protected against the process.
Responsibility for the reservation of land has been left almost everywhere in the hands of forest services and, although it might be argued that a forest service is the wrong authority to be left with such a task in the early stages before the ecology and economics of tropical land use are properly understood, it does so happen that forest ordinances usually provide the only legal machinery through which such a thing can be done at all. At the same time, it is suggested that foresters are deluding themselves if they imagine that a high proportion of the land that they are reserving for forestry is going to remain dedicated to forestry for very long.
It is suggested that perennial crops are likely to prove a far more serious danger to the security of the forest estates of tropical countries than subsistence farming of annual crops. In spite of all the lessons of the past, it seems likely that there will be an undesirable amount of land fragmentation in the tropics when freehold ownership starts to develop, and that unplanned development of individual ownership will result everywhere in situations where large intact blocks of land cannot be found anywhere except in forest reserves. When capital becomes available for large plantation projects of perennial cash crops and when large blocks of land are required for the purpose in a hurry, the status of some forest reserves is likely to become precarious.
In some tropical countries, such as Ghana and Western Nigeria, where most of the forest reserves consist of potential agricultural land, it is suggested that the only hope for their survival lies in the early establishment of highly capitalized wood products industries which require large and sustained yields of forest produce. This type of industry has been unaccountably slow in establishing itself in the tropics and it is suggested that in some cases governments themselves are to blame for failure to devise tenures likely to attract commercial investment.
Forestry is an industry which can become highly nationalized almost without its being noticed. Ownership of forest land is apt to fall automatically into government hands. A Government, as owner of a national forest estate, has several alternatives open to it:
(a) government investment, sometimes leading to overnationalization;
(b) "dog in the manger" approach, commonly ex pressed in a policy of annual forest leases;
(c) delegation to private interests of some or all of the responsibilities of ownership;
(d) outright alienation.
If the experiences of Cyprus and Trinidad are any guide, management and development carried out directly by a Government may be the best method of insuring a high standard of silviculture; but it is doubtful if this is always enough to compensate for the disadvantages. Private enterprise is apt to be stifled so that the Government is obliged to intervene more and more in manufacture and even in trading. It would seem that nationalization, once it starts, may have no end to it.
The result of government management in Trinidad has been a patchwork sawmilling industry. In Cyprus it discouraged investment in manufacture to such an extent that, when wage increases began to price hand-sawn timber out of the market, there was not enough machinery in the country to take over.
The Forestry Commission in the United Kingdom still shows a tendency to follow the same path, although its ill-effects are unlikely to become noticeable while a high proportion of the productive woodland in the country is privately owned. As government holding of productive woodland rises above 50 percent, it is to be hoped that present practices of retailing standing timber on short-term agreements will be replaced by tenure policies more related to the needs of industry.
It is admitted that unimproved tropical forest may be a special case. As a commercial venture, sustained yield management of the ordinary run of unimproved tropical forest is likely to be little better than marginal, so that government management and investment may well be a necessary step in the first rotation. But, after advantage has been taken of the first rotation for improvement and enrichment, the case for denationalization may be strengthened, as it has been for instance in Kenya as a result of the success of the government plantation program.
As a matter of history, the "dog in the manger" approach seems to have been favored for a time in parts of eastern Canada. The term is used here to describe a state of affairs where the Government, while itself evading responsibility for management and investment, at the same time refuses adequate facilities to private enterprise. It is my belief that the annual forest lease was first invented in Ontario during the nineteenth century and was carried from there into the Caribbean by West Indian surveyors who received their technical training at Toronto.
The annually renewable lease seems to have most of the disadvantages of the other alternatives and few of their advantages. It effectively ensures the minimum degree of investment at all stages of logging manufacture and marketing and is an open invitation to the concessionaire to cream his holding of the best timber and then abandon it in favor of another area before his competitors have time to get ahead of him. This criticism is applicable generally to most forms of short forest leases and licenses.
The delegation of the responsibilities of ownership to industries of proved reliability is a course that has much to commend it, but its success depends upon correct timing. Kenya and the Bahama Islands provide useful examples of the relinquishment of too much control at too early a stage. In the first quarter of this century the Kenya Government granted concessions over extensive areas of the natural forests under long-term agreements, some of which have not yet expired. The purpose of the policy was the encouragement of investment in the timber trade, but individuals were given what, in the circumstances of that period, turned out to be far too free a hand and the Government retained too little control. It would be unfortunate, however, if this experience were to frighten the Kenya Government away from further experiments in long-term tenures.
In the Bahama Islands at the beginning of this century, most of the pine forests were leased to a single company on a hundred years' agreement which has left the Government with very little control and has limited the obligation of the lessee for royalty payments to something less than a halfpenny per cubic foot.
It is suggested that, until the time arrives when commerce can be trusted with complete powers of management of a national resource, the following matters should be provided for in a forest concession:
(a) Major decisions on yield control should remain the responsibility of the State.(b) Adequate provisions should be made for silviculture and regeneration, although when this responsibility is delegated it can hardly avoid carrying with it a vested interest in the yields of subsequent rotations.
(c) Royalties should be revisable in accordance with the changing value of money.
(d) Adequate investment should be ensured by the annexation to each concession of a manufacturing plant of appropriate capacity on the terms that the one cannot be disposed of separately from the other.
After many years of experiments, British Columbia has devised a new system of leasehold tenure which embodies all these principles and comes as near as any lease could to complete alienation. In the proceedings of two public enquiries, which took place during the development of this form of tenure, there is material which must be relevant to the tenure problems of many tropical countries.
It is not suggested that long leasehold tenure is the absolute limit to which governments should be prepared to go in divesting themselves of the control of national forest resources, nor is it suggested that the nineteenth century alienation policy of the United States of America was necessarily wrong in principle: the fault of that policy was, merely one of timing. The United States alienations were made to individuals and companies that had relatively small investments at stake: many of them regarded their investments as expendable and were prepared to budget on large profits over short periods. In a different category are the huge industries now appearing in some parts of the world with share prices prominently quoted on stock exchanges and held by shareholders in expectation of sustained and growing dividends, and with factories planned for continuous improvement and periodical replacement of obsolete parts. It might be considered that some wood products industries in Europe and North America have now reached a stage where they could be trusted with unconditional control of a national resource.
It might be argued, of course, that there is hardly any industry operating at present in the tropics which has yet reached a stage of maturity to be trusted with tenure of the British Columbian type. On the other hand, the only hope for the survival in some tropical countries of an adequate forest estate against the pressure of individual freehold claims would appear to depend on some sort of alliance between forest services and manufacturers. Security of tenure granted by governments, even to the extent of outright alienation, in suitable cases, might be justified wherever it can encourage rapid investment.
In conclusion, brief consideration should be given to a much narrower subject, the problem of third party rights over land, which forms the borderline between land tenure law and the law of contract. Third party rights, exercised over land by persons not claiming ownership, have been a feature of most land tenure systems, particularly in the extensive phases of land use. In some cases the burden of such rights has grown to such proportions as to prevent economic land use. In this respect forest land has suffered particularly.
If, in the course of the development of land tenure law, provision for the exercise of third party rights cannot be avoided, the English system provides quite a sensible model and does as little damage as anything that has ever been evolved. The law of third party rights grew up along with permanent settled agriculture and, in the course of its development, became subject to rules which are simple as well as sensible. The benefit of a right cannot be owned by individuals; it must be attached to a piece of landed property, the right of using the benefit is limited to the individual who is occupying that property at any time, and the exercise of the right is rationed to the needs of the property to which the benefit is attached.
When an area was declared to be a Crown forest in the early days of English history, rights of grazing became attached to properties at the edge of it that were occupied at the time of the declaration. The occupants were allowed to graze in the forests with such animals as it was necessary for them to have, and the number that each person was allowed to graze was limited to the number that his holding would support in winter when pasture was scarce. Fuel rights arose in the same way and were limited to the domestic needs of the houses to which they became attached. Fuel cannot be sold and it cannot be used for nondomestic purposes and it cannot be claimed by the owner of a new house. The effect of all this is that the burden falling on land as a result of third party rights can never be substantially increased by mere growth of population.
In the course of forest reserve settlement enquiries in the tropics, conscientious attempts have sometimes been made to apply these rules: for instance, the phrase, "fuel for domestic use, but not for sale" is quite a usual one in reserve settlement judgments and in the texts of forest ordinances. More often the rules have been lost sight of, so that rights have been granted to individuals or to vague and fluctuating bodies of people like the inhabitants of a village, without any ruling as to whether they are heritable or how far they may be used commercially. Within a generation a dozen households may start to use a domestic fuel right intended only for one in the first place and a dozen shepherds may become engaged on commercial stock raising under cover of a right granted originally to a single person for his domestic animals.
During extensive phases of land use the problem is a difficult one and no satisfactory solution has yet been put forward. The arbitrator is handicapped by the lack of any permanent landed property to which he can tie forest rights and this is likely to continue until agriculture becomes settled and land begins to be regarded as a permanent form of individual wealth.
