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Land Policy: A Framework for Analysis and Action

Published online by Cambridge University Press:  28 July 2009

Patrick McAuslan
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Extract

I chose the topic of land and land policy as my contribution to this collection of essays in honour of Tony Allott because it seemed to me that there are certain parallels between the role of land in society and the role of Tony Allott in the development of the study of African Law and indeed of the study of the law of pre-literate societies by lawyers in the United Kingdom. Land is central to the workings of any society, but especially is this so in respect of pre-literate societies and societies subjected to the impact of colonialism. So too has Tony's work been central to the growth of our understanding of the workings of customary law in African society and the manifold problems created by the impact of received law i.e. for the most part Western Europe law brought by the colonial powers, on customary law and society. Those of us who began our careers of law teaching and legal scholarship in Africa owe a great debt to Tony for his pioneering work in the field and for his tireless efforts to promote African legal scholarship. In going beyond Africa as I do in this essay, I am once again following in Tony's path for he long ago realised that law in Africa is a part only of the great family of law in the developing world and one can no more isolate African legal scholarship from that world than one can isolate land from the society of which it is a part. It is to this that I now turn.

Type
Research Article
Information
Journal of African Law , Volume 31 , Issue 1-2: Essays in Honour of A. N. Allott , Spring 1987 , pp. 185 - 206
Copyright
Copyright © School of Oriental and African Studies 1987

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References

1 A revised text of a lecture given at the Faculty of Law, University of Lagos, as part of the Faculty's 25th anniversary celebrations, 04 1987Google Scholar.

2 Ghai, Y. P. “Land Regimes and Paradigms of Development: Reflections on Melanesian Constitutions” 1985, 13 International Journal of the Sociology of Law, 393Google Scholar.

3 Peterson, N. (ed.): Aboriginal Land Rights: A Handbook AustralianInstitute of Aboriginal StudiesGoogle Scholar; Maddock, K.: Your Land is Our Land, Ringwood, Victoria, 1981Google Scholar.

4 Lysyk, K.: “The Indian Title Question in Canada: An Appraisal in the light of Colder” 1973, 51 CBR 450Google Scholar; Pugh, R. D. J.: “Are Northern Lands Reserved for Indians”, 1982 60 CBR 36Google Scholar; Morse, B. (ed.): Aboriginal People and the Law. Indian Metis and Inuit Rights in Canada, Ottawa, OUP, 1985Google Scholar.

5 Coulter, R. T. and Tullberg, S. M.: “Indian Land Rights” 1985 3 Antioch LJ 153Google Scholar; Leshy, J. D.: “Indigenous People, Land Claims and Control of Mineral Development: Australian and US legal systems compared,” 1985 8 UNSWLJ 271Google Scholar.

6 Falloux, F.: Land Management, Titling, Tenancy in Sustainability Issues in Agriculture, World Bank, 1987 p. 190Google Scholar.

7 Blaikie, P.: Political Economy of Soil Erosion, London, 1985Google Scholar.

8 Ghai, Y. P., op. cit., pp. 395–7 and references there citedGoogle Scholar.

9 London, 1979.

10 p. 8.

11 Urban Policies in Japan, OECD 1986, Chap. 4 and references there citedGoogle Scholar.

12 E.g., Haiti, The Phillipines under Marcos, Nicaragua under Somoza, Zaire under Mobuto.

13 Midland Bank Trust Co. Ltd. v. Green, [1981] 1 All E.R. 153Google Scholar

14 Midland Bank Trust Co. Ltd. v. Hett, Stubbs and Kemp (a firm) [1978] 3 All E.R. 571Google Scholar.

15 [1977] 3 All E.R. 129–323Google Scholar.

16 Rosberg, Carl G. and Nottingham, John, The Myth of Mau Mau, London, 1966Google Scholar.

17 Our Common Future, Oxford, 1987Google Scholar. See too Reddift, M.: Development and the Environmental Crisis, London, 1984, especially Chap. 4Google Scholar.

18 In Africa, the issue is of particular moment in Nigeria with its attempts at land reform via the Land Use Act, and in Lesotho where a land reform brought about by the Land Act 1979 which vested all land in the State created considerable tensions within the ruling elite. For Nigeria, see James, R. W.: Nigerian Land Use Act: Polity and Principles, Ile-Ife, 1987Google Scholar, and Ega, L. A.: “Land Policy and Land Administration in Nigeria: Some Conceptual and Practical Issues Affecting Implementation:” 1987 8 UL&PGoogle Scholar. For the South Pacific, see Y. P. Ghai, op. cit. and references there cited.

19 That is the official figure. There may be more arising out of unofficial land transactions.

20 I have discussed this in more detail in respect of urban land in Urban Land and Shelter for the Poor, London, 1985Google Scholar.

21 I developed some ideas on this in “Integrated Urban Development: The Way Forward”, 1986, Third World Affairs 265Google Scholar.

22 McAuslan, P.; Urban iMivfora Developing World, Mansell, forthcoming, Chap. 6Google Scholar.

23 Lawal, H.: Land and Administration in Urban Development with special reference to Capital Development Authorities in Nigeria and Tanzania. Unpubld Ph.D. thesis, University of Warwick, 1984Google Scholar.

24 Yahya, S. S.: Compulsory Purchase Practice: Guidelines on Public Land Acquisition Methods in Africa, Otaniemi, 1987Google Scholar. Kitay, M. G.: Land Acquisition in Developing Countries, Boston, Mass, 1985Google Scholar.

25 This was one of the main rationales for the proposed introduction of a detailed town and country planning law into the Turks and Caicos Islands where absentee N. American land speculators were buying up the choicer sites on the Islands, leaving too little for planned land developments which were in the national interest.

26 In the case of Knightsbridge Estate Trust Ltd. v. Byrne in the Court of Appeal in 1938, [1938] 4 All E.R. 618Google Scholar, Green MR in discussing the cases on equity's power to intervene in mortgages, started with Talbot v. Braddil (1683) 1 Vern. 394Google Scholar.

27 James, R. W. op. cit., Omotola, J. A.: Essays on the Land Use Act, Lagos, 1984Google Scholar.

28 Bhargava, G.: Socio-Economic and Legal Implications of Urban Land (Ceiling and Regulation) Act 1976, New Delhi 1983Google Scholar.

29 Salter, D. R., “The Land Control Act 1967: Some: Legal and Practical Shortcomings,” 1982 2(1) Ardhi 2. Land control legalisation had first been introduced into Kenya in 1944Google Scholar; its purpose then was to control land dealings in the ‘White Highlands’.

30 Land (Law of Property and Conveyancing) Ordinance 1923Google Scholar.

31 Land Transfer Ordinance 1906Google Scholar.

32 Native Land Trust Act, first enacted as an Ordinance in 1940.Google Scholar

33 Native Lands Act 1862.Google Scholar

34 E.g. Northern Nigeria via the Land and the Native Rights Ordinance 1912, the forerunner of the Land Tenure Law 1962, which in turn provided the model for the Land Use Act; Tanganyika via the Land Tenure Ordinance 1923 which provided the model for the nationalisation of land rights after Independence by the Government of Tanzania.

35 Omotola, J. A.: “The Land Use Act and Customary System of Tenure,” in Omotola, J. A. (ed.): The Land Use Act: Report of a National Workshop, Lagos. 1982 pp. 35–41Google Scholar.

36 Ricquier, W. J. M.: Land Law, Singapore 1985Google Scholar.

37 Many of the problems of the Inner Cities can be traced back to their unplanned growth in the early and mid 19th century. Ashworth, W.: The Genesis of Modem British Town Planning London, 1954Google Scholar; Home, R. K.: Inner City Regeneration, London 1982, Chap. 1Google Scholar.