Lessons From the Past: Securing Land Rights in the Wake of Typhoon Haiyan

In America, land ownership is usually well-documented and formalized. We own deeds to our land, and have clear legal ways to sell it, rent it or otherwise transfer it. But that's not the case in many countries, including in the Philippines.
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More than 5,000 people have perished since Typhoon Haiyan ravaged the Philippines last month. But the death toll belies a potentially more insidious problem, which is starting to come to light as five million displaced residents start returning to what were once their homes and villages.

Local news media is starting to report that developers are grabbing land that was abandoned by fleeing residents in the wake of the storm. The Philippine Daily Inquirer has reported that on the island of Sicogon, a developer has blocked 6,000 families from returning to their homes by claiming that it owns the underlying rights to the land on which the families had lived. Judging from recent natural disasters, and from the Philippines' own land rights track record, these reports may be the first signs of the onset of an age-old problem, fundamental to many conflict, disaster and poverty-stricken areas: access to land.

In America, land ownership is usually well-documented and formalized. We own deeds to our land, and have clear legal ways to sell it, rent it or otherwise transfer it. But that's not the case in many countries, including in the Philippines. In these countries, especially in rural areas, land ownership is often informal. Land isn't registered, but rather handed down from generation to generation, and even where property laws are on the books, they can be eschewed in favor of traditional norms. The system works well... until it doesn't.

The "doesn't" can happen any number of ways: a government kicks indigenous farmers off the land they've used for generations but never legally owned, to make room for larger, more profitable agricultural enterprises (Colombia, Brazil); in the midst of a famine, rival groups fight over natural resources on unregistered land, devolving an entire region into armed conflict (Darfur); following a tsunami, foreign corporations claim temporarily abandoned and unregistered land for luxury hotel developments (Thailand).

Land Rights and Natural Disasters

Natural disasters like Typhoon Haiyan are often especially problematic because they destroy land, kill title-holders, erase boundaries and displace survivors in areas where land represents not only shelter, but also livelihood. The confusion over land tenure following a natural disaster is one of the most significant factors in turning a short-term humanitarian problem into a long-term economic plague on the affected area.

A report by the International Institute for Sustainable Development (IISD) following the 2004 Indian Ocean Tsunami ranked land ownership a "4.5" on a scale from 1 to 5, in its importance to the resilience of communities following natural disaster.

Alec Crawford, an associate at IISD and one of the authors of the report, identified a litany of land tenure issues that arise in post-disaster settings:

"You have situations where the lands themselves have been made unusable due to the disaster. In the case of the Philippines, the storm surges probably increased the salinity of the land and stripped top soil. A natural disaster changes the value of land. It kills title holders and destroys documentation. You don't know where your plot of land begins and ends. There will be a lot of confusion as to who owns what, where public land is, where private land is. This opens up opportunity for land grabs. In cases where corruption is running rampant, people can take advantage of the situation."

Judging from recent history, Typhoon Haiyan may pose a very real threat to the property rights of millions of victims who have scrambled to escape its path. Land distribution in the Philippines is highly skewed, and despite land reforms, the majority of the rural population does not own the land it lives on. The Philippines also has a spotty land rights record. It has the dubious honor of being the world's third-largest seller of farmland to foreigners. The well-documented land battle between Casiguran groups and APECO has been raging since 2007. And land advocates in the Philippines have been gunned down.

"Unequal access to land and natural resources is a central issue that cuts across both the rural and urban sectors in the Philippines," said Tim Fella, a Land Tenure and Conflict Advisor with USAID. "Households squatting or lacking documented land rights are in a particularly vulnerable position and could face challenges reclaiming property."

This reality begs some difficult questions, especially given that land grabs are already beginning to occur: how will entire villages reclaim the land they may have never held legal title to? Land that is no longer recognizable. Or arable. Will these farmers forsake the salt-choked coastal land and move inland, and if so, whose land will they be forced onto? How will that population react? How long until Western hospitality corporations swoop in to convert the abandoned coastal land into hotels, as they did in Thailand, after the tsunami?

Learning from the Past

Recent natural disasters have illuminated not only the effects of weak land tenure systems on the fundamental rights of survivors, but also their deterrent effects on subsequent aid efforts.

The 2004 Indian Ocean Tsunami, which claimed the lives of more than 200,000 people, displaced millions and obliterated entire swaths of Indonesia, Thailand, Sri Lanka and India, brought to light a host of humanitarian issues tied to land. A report published by the Human Rights Center at Berkeley Law School found that within a year of the tsunami, inhabitants of more than thirty coastal villages in Thailand were engaged in land and tenure disputes with the government and private companies. There were widespread allegations that in the wake of the tsunami, local government officials conspired with hotel developers to take over coastal lands. Following the storm, some Indonesian villagers stayed on ravaged land for fear that abandoning physical possession would mean relinquishing the land to the state. Others fled, and unable to return to land they didn't own outright, languished in refugee camps for years afterwards.

During the 2010 earthquake in Haiti, which killed more than 200,000 people and devastated the already impoverished island, weak land laws actually stymied redevelopment. Plans to rebuild were hampered by the country's chaotic land registration system. As documented by Reuters, "a practically non-existent land registry, fraudulent land titles, unclear processes for land transfer, and a tangle of bureaucracy" quashed major international relief efforts and investments. Donors and international agencies were unable to find the legal owners of the land they were rebuilding, and couldn't find a legal way to buy and sell property. With its hands tied, the international community retreated in frustration, leaving in its wake half-constructed roads and ruined houses marked for demolition but never razed.

Next Steps in the Philippines

It's impossible to turn back the clock and ensure that land in the Philippines had been properly registered prior to the storm. The reality is that even where land was registered, many, if not the majority, of property records in stricken areas have been destroyed. The Philippine government, international organizations, donors and local actors will have to work with the information they have to rebuild, and to avoid conflict to the greatest extent possible.

In its post-tsunami report, which was published in 2006, the IISD had recommended that governments take primary responsibility for restoring land boundaries on one hand, and educating the local population about its legal rights and obligations on the other. The IISD suggested that development organizations also be heavily involved, for example setting up land dispute resolution mechanisms. Humanitarian organizations would play a secondary role by alerting governments to problem areas and working to extend short-term relief into more long-term assistance.

IISD's Crawford suggested that in the Philippines, local government bodies may be best suited to untangle property disputes, since they will have the most intimate knowledge of their jurisdiction and constituency.

"The most important thing is to make the process as inclusive and transparent as possible," Crawford said. "Get a village together and reach agreement on where the boundaries are. Work with the communities themselves to establish a consensus on who owns what, and where there are disputes, and try to either resolve those disputes through local alternative dispute resolution mechanisms, or bring in a third party neutral mediator.

Crawford suggested that assisting with mediation is a role that the international community can play. He also suggested that in the short-term, the government may wish to rely on customary or indigenous property arrangements, as opposed to statutory rights. At a local level, these customary arrangements may have more legitimacy and may be better suited to resolve minor land conflicts.

Going forward, Crawford suggested an even more elementary solution: back up property records on computers or put them on a cloud, instead of on paper.

There's also the matter of avoiding similar problems in case of future calamities.

The International Federation of the Red Cross and Red Crescent Societies urges governments to adopt IDRL Guidelines, which are meant to help them become better prepared for post-disaster legal problems, including land rights issues. The Philippine government had incorporated some of these guidelines prior to the storm, but not all of them.

The consensus in the international community is that having a robust property rights system in place is integral to preparing a country to handle disasters like Typhoon Haiyan.

"Unclear or contested land rights following a disaster can significantly delay the resettlement of displaced populations," said USAID's Fella. "For this reason, documenting property rights and protecting land records can serve as proactive disaster risk reduction measures."

The aftermath of Haiyan offers an opportunity to strengthen Philippines' land rights system, and to make the country's property laws sturdier and more resilient.

"Recovery after the typhoon could be a real opportunity, similar to [the Banda Aceh recovery in Indonesia after the 2004 tsunami] to go back and look at how land registry takes place, and improve upon it," said Christopher Barlow, director of strategic relations and communications for Thomson Reuters, which works to improve land registration and mapping systems around the world. "Using rebuilding as an opportunity to improve land registration would pay real dividends to the people affected by the storm."

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