Monday, October 15, 2012

[biofuelwatch] The Global Land Grab: The New Enclosures



http://www.wealthofthecommons.org/essay/global-land-grab-new-enclosures

By
Liz Alden Wily

from


The Wealth of the Commons

A world beyond market & state


Consider this. It is 1607. The English have been taking lands in Ireland
for several centuries. First written down in the 7th century, Irish
customary law is sophisticated and still administered by trained
traditional magistrates (Brehons). Now rulings in the English courts on
Gavelkind (1605) and Tanistry (1607) finally deny that customary law
delivers property rights. Family holdings are made tenancies of by now
well established Anglo-Irish elites, and the commons, crucial to grazing
and hunting, are made more absolutely the property of the elites and new
waves of English and Scottish settlers. Irish communities may use the
commons at the will of these new owners.

Now 1823 in America. Chief Justice Marshall rules that while Indian
natives were rightfully in possession ("Aboriginal title") of 43,000
square miles of disputed land – in a case he engineers to be brought
before the Supreme Court (and in which he has a private interest) – they
illegally sold this tract to developers. He argues that by virtue of
conquest, the British Crown became the owner of North America ("the
right of discovery"). Therefore only the Crown or its administrations
may lawfully sell or grant lands. Possession is no more than lawful
occupation and use, and doesn't count. Forty-year-old opinions of the
Privy Council in London aid Marshall's argument. These opinions
established in 1772 and 1774 that English law supersedes local law, and
that for the purposes of property, land is "uninhabited" (unowned) when
empty of civilized people (McAuslan 2006).

1845 in England. The villagers of Otmoor, Oxfordshire in England, as
described by Linebaugh in this volume, have lost the fight to keep their
commons, as have hundreds of other communities across the realm. In
fact, feudal land law in England (and the rest of Europe) has dictated
for some centuries (since 1285) that only those granted land by the
king, i.e. the lords, own the land. Local populations hold no more than
use rights. These legal realities have come harshly into focus only with
industrialization and with private capital hungry for lands and the
financial killings which may be made from selling the commons to
railways and factories. Parliament, made up of wealthy landlords, is on
their side, passing law after law since 1773 to legalize the
dispossession of commoners. The Inclosure Act 1845 [sic] administers the
coup de grace, speeding up the process. Of course private gains under
these "parliamentary enclosures" are "in the public interest."

1895 in Africa. A decade earlier the Plenipotentiaries of European
Powers (as they refer to themselves) agreed to establish respective
"spheres of economic influence" throughout the continent and make key
entry points like the Niger and Congo Rivers free trade zones. As the
newest industrial power and especially anxious to extend trade, Germany
hosts the meeting in Berlin in 1884-85. Europe is in economic crisis
(the Great Depression 1873-1896). Factory owners desperately need new
markets for unsold textiles and other manufactures. Fabulously wealthy
entrepreneurs, with "vast accumulations of capital burning holes in
their owners' pockets" (Hobsbawn 1987) also seek new enterprises to
invest in. The new working classes, having lost their livelihoods and
now dependent upon (failing) factory jobs are also in need of new
locales to migrate to. The matter is so important that the Powers create
an early international trade law, the General Act of the Berlin
Conference on West Africa, 1885. In practice, opening markets and
enterprise in Africa does not work out so well and free trade goes out
the window. By 1895 the economic scramble for Africa has segued into a
political scramble with the creation of colonies and protectorates to
protect new markets and tap the increasingly apparent wealth of
resources and cheap labor in the African hinterlands.

The problem from the 1890s is, How to acquire such massive lands
cheaply? For some time traders, profiteers and missionaries have been
buying lands from coastal chiefs to create trading posts, ports,
missionary enclaves, and more recently, for anti-slavery monitoring
posts. Companies backed by European governments have been doing the
same. The British Royal Niger Company alone has several hundred land
contracts made with West African chiefs guaranteeing access to land for
mainly commercial oil palm production, supporting inter alia the
burgeoning soap industry in Europe. Chiefs are now selling exploration
rights to gold mining companies. Such purchases suggest that European
governments are amply aware that Africa is far from unowned. There is
also the 1844 Bond to consider. This is a bilateral investment treaty
signed between "sovereigns of equal power" along the Gold Coast and the
British Crown. Nor are such kings and chiefs naive, with a long history
of slave and commodity trading behind them and well-established trade
missions and embassies in European capitals.

Luckily the old feudal land laws of Europe along with the Marshall
Ruling of 1823 mentioned above come to the rescue. These offer a clutch
of routes to legalize dispossession at scale. Legality is of concern to
colonizers and their parliaments, not least to appease humanist groups
at home who count the abolition of slavery as a first success. But the
"right of discovery" assures the colonizers undisputed ownership of the
soil. This may not work so well along coastal areas but can be amply
applied to hinterland areas. Natives themselves unwittingly open the
way; many of them claim that only God can own the soil or that their
communities, continuing from the past into the present and future, are
the owners. While firm in their respective schemes of possession they
admit the land itself cannot be sold, at least not without the consent
of communities. To Europeans, this conceded lack of fungibility and
tendency to communalism "proves" that Africans do not own their lands in
the manner European property laws acknowledge. Where bills of sale have
queered the pitch, natives may be guaranteed secure occupancy and use –
for as long as they actively occupy and farm the land. It would not, in
any event, be wise to make it difficult for natives to feed themselves.

Conditionality of occupation and use leaves the attractive prospect that
Europeans may claim ownership of several billon hectares of unsettled
and unfarmed lands – in short, the communal property within their
customary domains. Have not Smith, Locke, Mills and others established
long ago that private property only comes into existence by the hand of
man's labor? The concept of "wastes" from feudal tenures is neatly
applied to the continent by all colonizing powers. Counterpoint
constructs of "effectively occupied lands" in the form of settlements
and permanent farms, and "unowned and vacant lands" quickly evolve. In
the absence of acknowledged owners, the commons fall directly to
colonial administrations as their private property. And if there is
still any doubt, it is obvious to the white men that the lucrative
forests, wetlands and grasslands of Africa cannot amount to property as
they are in communal possession; in Europe, private property means
individual property. Moreover property obtains legal protection only
when an individual person or company has a deed to prove it. Africans do
not. In oddly mixed ways, these various proofs of terra nullius are applied.

Legal dispossession of Africans is more or less total. In practice, the
ability of colonizers to settle and "develop" more than a million or so
hectares in each new polity is constrained (South Africa aside). Natives
continue to occupy and use lands which they no longer legally own.

Through the 20th century major colonial incursions are made into these
lands. Although cities and towns multiply, they prove more notable for
the conflicts they generate than the actual hectares they absorb.
Settler schemes, commercial plantations run by parastatals and private
enterprise, take a much greater toll, along with evictions caused by the
issuance of concessions to foreign enterprises for oil, mining and
timber exploitation. Laws are also passed declaring certain resources
generically the property of the state; minerals (surface mined for
centuries or not), waters, beachfronts, marshlands, mountains, forests
and woodlands, fall like ninepins to the state, irrespective of local
possession.

The 1960s in Africa. Liberation from Europe begins mid-century.
Curiously, colonial notions of tenure are sustained in most
post-independence land laws. Or perhaps not so curiously, for keeping
rural majorities as tenants at will is as useful to new African
governments as it had been to colonial masters. Class formation and land
commoditization have grown apace since the 1940s. The new African middle
class share not only political power and business interests, but the
same deep commitments to market-led development so strongly advocated by
the new donors (the former colonizers) and international agencies.
Positions expressed in the landmark studies of late colonialism in
Anglophone (1955) and Francophone officialdom (1959) become embedded
national policies in Africa, reinforced by the land policies of the
World Bank (1975). These read little differently from those of Malthus
and Lloyd, as recorded by Linebaugh: land privatization is prerequisite
to productivity.

Indigenous tenure regimes in general and communal landholding in
particular are to be done away with as obstructions to
individual-centric economic growth, to allow the polarization needed to
produce a landless class for urban industrialization and fewer and
larger native land owners assisted to produce food and commodities at
scale. As is now so well known, Garrett Hardin, confusing collective
group-owned property with open access regimes, adds his penny's worth to
destructively good effect (1968).

All over Africa (and Asia) privatization schemes are launched, aiming to
individualize, title and register houses and farms (Alden Wily 2011).
Where these work, such as in Kenya, commons are subdivided among
wealthier farmers. Or they are handed over to governments as forest and
wildlife reserves or state-run commercial agriculture developments.
Ultimately the reach of privatization schemes is limited, so that by
1990 only around 10 percent of the rural lands of Africa are subject to
statutory entitlement, and most of this in the white settler areas of
southern Africa. But this is not problematic for African administrations
who continue to dispose of untitled, customarily-owned lands at will,
often to themselves or other private interests.

1990 in Africa. Despite privatization pressures the customary sector
remains dominant. As the century nears end half a billion Africans are
still regulating their land relations according to community-based
norms, shaped by customs but adjusted regularly to meet changing
realities. Despite significant failures in the 1970s and 1980s
governments hold tenaciously to mechanized large-scale farming as the
route to growth. Smallholder agriculture remains starved of investment
even though customary smallholders represent the overwhelming majority.
Families eke out a living on less and less farmland per capita. Levels
of concentration and farm landlessness within the African peasant sector
look increasingly like those of South Asia in the 1960s. But where the
commons remain these routinely make the difference between pauperization
and survival. As in Linebaugh's village of Otmoor over a century past,
the unfarmed commons continue to provide a host of services and
products, from "pasture to pannage, to fish and fowl" and the waters
needed to irrigate farms. Woodlands and forests are especially valuable,
doubling the livelihood of the poor in many areas (IUCN 2010). And of
course, the rural poor are the majority, some 75 percent of the rural
population.

Democratization in the 1990s provokes tenure reforms, often following
years of bitter social conflict. A handful of governments, most notably
Uganda, Mozambique and Tanzania, acknowledge that Africans cannot remain
forever squatters of their own land (Alden Wily 2011). They pass new
land laws which for the first time endow customary rights with the legal
force of real property, and irrespective of whether or not these
interests are formally titled and registered, or owned by individuals,
families or communities. The last opens the way for communities to
secure thousands of hectares of commonage as acknowledged collective
property. However, as well as being flawed in diverse ways, these cases
are the exceptions. Most governments continue to avoid real change to
their land laws. World Bank structural adjustment programs aid and abet
this, coercing governments to accelerate privatization and sell off
untitled lands (including the commons) to foreign investors.

Now consider this. It is 2011. Hundreds of rural communities in Africa –
as well as parts of Asia and Latin America – are physically confronted
with eviction or displacement or simply truncation of their livelihoods
and lands they customarily presume to be their own. These lands are
willfully reallocated by their governments to mainly foreign investors
to the tune of an estimated 220 million hectares since mainly 2007, and
still rising.1 Two thirds of the lands being sold or mainly leased are
in poverty-stricken and investment-hungry Africa. Large-scale deals for
hundreds of thousands of hectares dominate, although deals for smaller
areas acquired by domestic investors run apace (World Bank 2010).

This is the global land rush, triggered by crises in oil and food
markets of the last decade, and compounded by the financial crisis.2 The
latter adds backing and raises the speculative stakes enormously. The
crisis provides lucrative new investment opportunities to sovereign
wealth funds, hedge funds and global agribusiness, the new entrepreneurs
with "accumulated capital burning holes in their owners' pockets."
Global shifts in economic power are evident; while western actors
continue to dominate as land acquirers, the BRICs (Brazil, Russia,
India, China) and food-insecure Middle Eastern oil states are active
competitors. A regional bias is beginning to show; China and Malaysia
dominate land acquisition in Asia while South Africa shows signs of
future dominance in Africa. Two South African farmer enclaves already
exist in Nigeria, and Congo Brazzaville has granted 88,000 hectares with
promises of up to ten million hectares to follow. Negotiations are
ongoing in at least 20 other African states (Hall 2011).

What foreign governments and other investors primarily seek are lands to
feed the lucrative biofuel market by producing sugar cane, jatropha and
especially oil palm at scale.3 They also want to produce food crops and
livestock for home economies, bypassing unreliable and expensive
international food markets. Additionally, investors seek to launch
lucrative horticultural, floricultural and carbon credit schemes. For
all this cheap deals are needed: cheap land (US$0.50 per hectare in many
cases), duty-free import of their equipment, duty-free export of their
products, tax-free status for their staff and production, and
low-interest loans, often acquired from local banks on the basis of the
new land titles they receive.

This rush for land, the new landgrab, does not stand alone. Local banks,
communications, infrastructural projects, tourism ventures and local
industry are also being bought up with a vengeance. These take advantage
of the new market liberalization that poor agrarian governments now
finally provide after decades of nagging by international financial
institutions. For host governments, foreign investment is the new aid
and path to economic growth, firmly facilitated by international
agencies (Daniel 2011). Local land speculation flourishes in its
service. The promise of jobs is more or less the only immediate benefit
to national populations, and experience thus far suggests these are not
materializing.

Nor is the phenomenon a one-way street. Extending and entrenching
competitive "spheres of economic influence" is also on the agenda.
Foreign capture of population-rich new markets for home manufactures is
actively sought alongside land deals. This is best illustrated in the
largely foreign capital buy-in and buy-up of Special Economic Zones
(SEZ), most advanced in India but emerging elsewhere, such as in the
Chinese "Shenzhen" planned in eight African states (Brautigam 2011).
Should these develop they will provide tariff-free entry for Chinese
goods at scale and locales for Chinese producers and laborers seeking to
escape the saturation of home markets. Bilateral investment treaties, of
which nearly five thousand have been signed between North and South
states over the last decade, provide the governing framework for these
developments.

In short, economic crises and shifts in the balance of political power
once again produce seismic shifts in who owns and controls land,
resources and production. But where are the poor and the commons in all
this?
The commons and commoners

The answer is quite simple. Much of the lands being sold or leased to
entrepreneurs are commons. This is not surprising because lands defined
as commons in the modern agrarian world generally exclude permanent
farms and settlements. Governments and investors prefer to avoid settled
lands as their dispossession is most likely to provoke resistance. They
also want to avoid having to pay compensation for huts and standing
crops, or for relocation. Only the unfarmed commons – the
forest/woodlands, rangelands and wetlands, can supply the thousands of
hectares large-scale investors want. But most of all, the commons are
deemed "vacant and available." For the laws of most host lessor states
still treat all customarily-owned lands and unfarmed lands in particular
as unowned, unoccupied and idle. As such they remain the property of the
state. This makes their onward sale or lease to private investors
perfectly legal. Indeed, without such legality in domestic land law, and
investor-friendly international trade law to take their side in
international courts if needed, no international or local investor would
proceed.

Of course the commons are neither unutilized or idle, nor unowned. On
the contrary, under local tenure norms virtually no land is, or ever has
been, unowned, and this remains the case despite the century-long
subordination of such customary rights as no more than permissive
possession (occupancy and use of unowned lands or lands owned by the state).

In practice, customary ownership is nested in spatial domains, the
territory of one community extending to the boundaries of the next.
While the exact location of intercommunity boundaries are routinely
challenged and contested, there is little doubt in the locality as to
which community owns and controls which area. Within each of these
domains property rights are complex and various. The most usual
distinction drawn today is between rights over permanent house and farm
plots, and rights over the residual commons. Rights over the former are
increasingly absolute in the hands of families, and increasingly
alienable. Rights over commons are collective, held in undivided shares,
and while they exist in perpetuity are generally inalienable. This is
not least because the owner, the community, is a continuing,
intergenerational entity. This does not mean that in the right
circumstances, parts or even all of a community's commons cannot be
leased. Whether the community wishes to do so or not, is, communities
believe, a matter for commoners to decide. Clearly, most domestic
statutory legislation does not agree, let alone consider these critical
estates in land to be community assets in the first instance.

The results of this continuing denial that property ownership exists
except as recognized by "imported" European laws are clear for all to
see in the current land rush. Not just commons but occupied farms and
houses are routinely being lost as investors move in. In Democratic
Republic of the Congo, for example, villagers with homesteads scattered
in the forest have lost their entire domains to commercial crop farmers
and now squat in a neighboring National Park from whence they will in
due course also be evicted (Mpoyi 2010). In Ethiopia, communities are
already being relocated from 10,000 hectares allocated to a
Saudi-Ethiopian company with many more relocations anticipated as its
lease is extended to 500,000 hectares (Oakland Institute 2011).
Elsewhere communities are merely dramatically squeezed, retaining houses
and farms but losing their woodlands and rangelands. Investors are
clearing forests, damming rivers and diverting irrigation from
smallholders, causing wetlands crucial to fishing, seasonal fodder
production and grazing to dry up and enclosing thousands of hectares of
grazing lands for mechanized farming for export. All this happens in
Ethiopia, where local food security is already an issue and the specter
of famine looms. The Ethiopian government is meanwhile expanding areas
designated for investors to grow oil and food crops for export by
900,000 hectares in another region.

Sometimes villagers tentatively welcome investors in the belief that
jobs, services, education and opportunities will compensate for the loss
of traditional lands and livelihoods. The reality can be very different.
Villagers in central Sierra Leone, Rwanda, and Kenya are among those not
told that canal construction for industrial sugar cane production would
dry up their wetlands, critical for seasonal rice production, fishing,
reed collection, hunting and grazing.4 Deng (2011) records the case of a
community in South Sudan agreeing to hand over 179,000 hectares to a
Norwegian company for an annual fee of $15,000 and construction of a few
boreholes; the company aims to make millions on both production and
carbon credit deals.

In such cases, traditional leaders and local elites are often
facilitators of deals, making money on the side at the expense of their
communities. Reports abound of chiefs or local elites in Ghana, Zambia,
Nigeria and Mozambique persuading communities of the benefits of
releasing their commons to investors, and even reinterpreting their
trusteeship as entailing their due right to sell and benefit from those
sales. Central government officials, politicians and entrepreneurs are
routinely on hand to back them up. Such accounts are repeated throughout
Africa, and in some Asian states such as Indonesia and Malaysian Borneo,
where 20 million hectares have been scheduled for conversion into oil
palm plantations (Colchester 2011). Everywhere the story is more or less
the same: communal rights are being grossly interfered with, farming
systems upturned, livelihoods decimated, and water use and environments
changed in ways which are dubiously sustainable.

Clearly possession is no more sufficient today than it was for the
English villagers of the 17th and 18th centuries of enclosure. Only
legal recognition of commons as the communal property of communities is
sufficient to afford real protection. A handful of states in Africa (and
somewhat more in Latin America) have taken this crucial step, setting
aside fungibility and formal registration as prerequisites to admission
as real property. The land rush instead not only activates the effects
of failing to make such changes a thousandfold. It also raises concern
that fragile reformist trends will not be sustained. Governments appear
to find leasing out their citizens' land too lucrative to themselves and
aligned elites, and too advantageous to market-led routes of growth, to
let justice or the benefits of the commons stand in their way.
References

Alden Wily, L. 2011. "The Law is to Blame: Taking a Hard Look at the
Vulnerable Status of Customary Land Rights." In Africa Development and
Change. (2)3:733-757.
Brautigam, D. 2011. African Shenzhen: China's Special Economic Zones.
Journal of Modern African Studies. (49)1: 27–54.
Colchester, M. 2011. Palm Oil and Indigenous Peoples in South East Asia.
Forest Peoples Programme and International Land Coalition, Rome.
http://landportal.info/resource/global/new-studies-and-policy-briefs-rel...
Daniel, S. 2011. The Role of the International Finance Corporation in
Promoting Agricultural Investment and Large-Scale Land Acquisitions
http://www.future-agricultures.org/index.php?option+com_docman&Itemid=971.
Deng, D. 2011. "Land Belongs to the Community: Demystifying the 'Global
Land Grab' in Southern Sudan."
http://www.future-agricultures.org/index.php?option=com_docman&task=cat_....
Hall, R. 2011. "The Next Great Trek? South African Commercial Farmers
Move North."
http://www.futureagricultures.org/index.php?option=com_docman&task=cat_v...
Hobsbawn, E. 1987. The Age of Empire 1875-1914. London. Abacus.
Internations Union for Conservation of Nature. 2010. "The Impacts of
Barriers to Pro-poor Forest Management: Livelihoods and Landscapes
Strategy." Markets and Incentives Discussion Paper. Gland, IUCN.
McAuslan, P. 2006. "Property and Empire." Paper presented to Sixth
Biennial Conference, The Centre for Property Law, School of Law,
University of Reading, UK. March 21-23, 2006.
Mpoyi, A. 2010. "Social and Environmental Dimensions of Large Scale Land
Acquisitions in the Republic of Congo." Presentation to the World Bank
Annual Land Policy & Administration Conference. April 26-27, 2010.
Oakland Institute. 2011. "Understanding Land Investment Deals in Africa.
Country Report: Ethiopia." http://media.oaklandinstitute.org/publications.
The World Bank. 2010. "Rising Global Interest in Farmland." Washington, D.C.

1. A coalition of agencies and universities published the data on
recorded and verified deals in a report, "Land Rights and the Rush for
Land," in October 2011 at
http://www.landcoaltion.org/cpl/CPL-synthesis-report.
2. For case studies see http://www.landcoalition.org/cplstudies and
http://www.future-agricultures.org/index.php?option=com_docman&Itemid=971 and
http://media.oakland institute.org/publications.
3. For example, in July 2011 the German Lufthansa became the first
airline to use biofuels on regular commercial flights.
4. See footnote 2 for case studies.



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Diggers350 - an e-mail discussion/information-share list for campaigners and members of THE LAND IS OURS landrights network based in the UK http://www.tlio.org.uk

The list was originally concerned with the 350th anniversary of The Diggers (& still is concerned with their history). The Diggers appeared at the end of the English Civil war with a noble mission to make the earth 'a common treasury for all'. In the spring of 1999 there were celebrations to remember the Diggers vision and their contribution.

TASH FROM THE HILL
http://www.youtube.com/watch?v=FWk9rRJsk5I

THE LAND MAGAZINE
Simon Fairlie still produces The Land magazine every 6 months or so.
Subsription is £18 (£15 unwaged) or £4 for a single edition
Contributions are welcome http://www.thelandmagazine.org.uk/

THE SCYTHE SHOP (advertisement)
There is a revival of scything in the UK. Scything summer growth by hand is usually quicker than using a strimmer, and there is no noise, vibration or pollution. Mowing an acre of grass with a scythe is probably less hassle than maintaining and using a motor scythe. Once you have learnt how to sharpen and use an Austrian scythe properly, mowing a meadow by hand becomes a joy, rather than a struggle. http://www.thescytheshop.co.uk/

Die Pride and Envie; Flesh, take the poor's advice.
Covetousnesse be gon: Come, Truth and Love arise.
Patience take the Crown; throw Anger out of dores:
Cast out Hypocrisie and Lust, which follows whores:
Then England sit in rest; Thy sorrows will have end;
Thy Sons will live in peace, and each will be a friend.
http://www.bilderberg.org/land/gift.htm

Woe to those who join house to house and field to field, until there is no more room, and you are made to dwell alone in the midst of the land. Yahweh of heaven's armies has sworn in my hearing: "Surely many houses shall be desolate, large and beautiful houses, without inhabitant." Isaiah 5:8-9

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Biofuels are a wide range of fuels which are in some way derived from biomass.

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