Implementing National Land Policy and Good Governance of Property Rights: A Roadmap for USAID-Bolivia to Assistance DRAFT Report Submitted by Jolyne Sanjak 2/4/03 A. Why invest? The lack of adequate development of land policy and good governance of property rights is a key constraint to our efforts to promote a more competitive Bolivia with expanding economic opportunity, to facilitate municipal development, to achieve the goals of alternative development, and to promote good stewardship of the environment. There are even potential health implications of the government‟s new land policy. Over the past several years, donor investment in support of regularizing rural land tenure in Bolivia has been increasing, albeit in an unstructured package that, while making progress, has also raised concerns. There are also initiatives already started or in design to improve the property registry and to regularize urban land tenure. The current administration of GOB has acknowledged „the land issue‟ (land tenure and land access) as a priority. Its Plan Tierras outlines two strategic efforts: a national rural tenure regularization program and a land distribution and human settlement program. The success or failure of Plan Tierras, in both its components, is critical to the direction political support for MAS takes, to whether violence and conflict in the rural areas increases or diminishes, and has significant implications for USAID‟s ability to progress on mission goals and programs. Aspects of the agrarian reform law and the property registry modernization fall outside Plan Tierras but are important to its implementation and the issues it impacts. Assisting the GOB to address these issues will unlock constraints on key USAID supported projects as well as help decrease the strength of „shadow‟ governance on the ground. Both the GOB and other donors welcome USAID assistance. B. Assessing the Situation: Four assessments prepared for the Mission as it engages in its strategy development, elaborate on the nature of these constraints, identifying the source of the problems and the way in which they impact on the mission‟s various goals. In summary: The Conflict Vulnerability Assessment (CVA) suggests that „the land issue‟ - conflicts arising from tenure insecurity and from demands for broader access to land – is the issue with the potential to serve as an aggregator to other sources of tensions and an escalation of violence and disorder. The Land Tenure Assessment offers a detailed portrayal of the actors, institutions and scenarios that comprise „the land issue‟ and illustrates the importance of land policy and good governance of property rights as an institutional infrastructure to economic opportunity, development of municipalities, and alternative development. The Environment Assessment suggests that efforts to protect Bolivia‟s forest resources are threatened both by the processes for clarifying land tenure, in method and lack of application, and by the approach to expanding land access (the concerns raised also apply to resource management more broadly -- protected areas, water, and subsurface resources). („Land tenure policy‟ also was noted as an „overarching issue‟ within „an unfinished policy agenda‟ in the 2000 report Retrospective Study of USAID Support to the Development of the Environment Sector in Bolivia). The Analysis of the Trade and Business Environment in Bolivia very strongly suggests that the lack of good governance of property rights – both urban and rural – are a key constraint to foreign and national investment (especially in forest product and ecotourism clusters) and to development of financial markets. (This assessment was conducted in May 2002, although the relevant section seems to have been forgotten). Given the depth and breadth of coverage in these reports, this „roadmap‟ is intended to synthesize across their assessments, bringing additional perspectives from my own reading of the situation, in order to provide recommendations for potential investments by USAID/Bolivia. C. About Plan Tierras Plan Tierras has „twin‟ components. The first seeks to fulfill the government‟s commitment to finish the process of saneamiento (legal regularization/clarification process), satisfying demands for improved land tenure security and also ensuring that extra- legally/irregularly appropriated lands revert to the state. The second component seeks to answer growing demands for land access by land-poor and landless households. Under the plan proposed in January, the government would give out lands, primarily those acquired via the saneamiento process, mainly to groups of farm families who will be assisted in forming new human settlements. In the very near term, 550 families would be relocated from the depressed zones in La Paz, Potosi, Tarija, Chuquisaca and Oruro to more promising areas (30,000 ha) in Northern La Paz, Beni and Tarija. Eventually, some 500,000 or more hectares of land would be assigned in Santa Cruz and elsewhere. The program will involve several ministries and municipalities in a complex, state-managed process. While there is a definate need to address the issue of broadening access to land, the plan will have many difficulties succeeding in its objective of providing land to landless and land poor and creating viable economic and social lives for them. Here are the main concerns that I would observe based on „lessons learned‟ in Bolivia and elsewhere with the adjudication of land to asentamientos humanos: (these must be understood as cursory, since, I did not spend a lot of time with INRA to be able to ask enough questions – I base this on the conference supported by IDB wherein I and others presented lessons from other countries and INRA unveiled the plan de asentamientos) The plan proposes directed migration whereby the government picks a location to move people to (based at first on where they have already recuperated lands in the saneamiento process), mainly from the highlands to the lowlands, and then pays there transportation, food for a year, set-up costs, etc as well as engaging other public entitities in establishing needed infrastructure and services. This could be costly and is supply-driven. The current budget reqeusts $650,000 for a first phase giving 550 families with 30,000 ha of land. Then, a national fund for asentamientos humanos would begin with $5 million to be used to reguralize and distribute another 500,000 ha of land (these numbers might not be exact – the draft was a bit hard to follow and not completely fleshed out). While there is obviously an need for some state management, some argue that the state should be making known where lands are available, the conditions of that area (in terms of agronomy, weather, health, access to other services – actual and planned) and facilitating establishment of migrants on an on-demand basis, upon arrival. Models like this can be structured where the land is paid for or not. A menu of ways to improve land access should be established and facilitated including working on improving rental as an option, creative private- public partnerships. There are some very interesting examples even if few and far between . De Janvry tells anecdotes about cases in Brazil and the Dominican Republic that might be viable in bolivia e.g., where the government agreed to put in infrastructure and regularize the title of a large estate in exchange for the owner ceding some portion of the land to landless. In the end, the newly landed became partners in an agro-export joint venture. The drawback to trying to change the model would be, of course, it would take time to design an appropriate model, get buy-in and implement, and acting on Plan Tierras might not be able to wait. Both the WB and IDB have been in dicussions about this with INRA about this. It would be worth keeping apprised of how they plan to work with INRA on land access issues. If the Plan for Land Distribution and Human Settlements moves forward, there a range of health issues that emerge as concerns and for which proactive measures (mainly informational but also preventative health), will be very important. These include tuberculosis, chagas, mosquito born illness, and maternal and infant health concerns. The ministry of health is listed in the plan as a being involved. Our health programs might offer a venue for strengthening the GOB response to health issues facing migrants and communities of reception, depending on how the Plan evolves. This should be watched (e.g., if the mission forms an informal working group on land, a member from the health team could participate and liaise with relevant GOB counterparts). While the plan proposes to bring together various national and local, private and public actors, it is not clear how and at what point such coordination will happen. It is not clear also whether some entitites other that INRA would implement and possibly even fund some parts of the effort, e.g, municipalities. The plan proposes to create yet another unit within the bureaucracy – National Unit for Human Settlements which would seem unecessary. D. Actions Recommended Approach: take steps now to defuse tension while demonstrating improved methods and invest in the medium-term capacity for good governance of property rights under the new strategy. 1. Contribute to a more consistent, effective and sustainable process of saneamiento ‘Demonstration’ Projects o As soon as is feasible, the AD program should support the proposed Chapare project. This will serve the immediate goal of fostering licit economic activity and will also demonstrate a more efficient process of saneamiento, contributing to INRAs capacity to operate throughout Bolivia. Specific comments and questions were provided to the AD team and are reflected in the Memo sent from the Mission to the AD project, calling for a complete project design proposal. A few people suggested that the Yungas area might also be a good place to try something like this and I believe that makes sense should the Chapare pilot go well. [I continue to advise, as per their need, the AD team as they take steps to procure assistance for the Chapare titling effort] o Identify sites to engage in pilot efforts to link municipal development programs with saneamiento efforts (e.g., Mancomunidad Chiquitania and/or the Chapare). This will serve as a way to improve on „land administration‟ service delivery and will benefit the municipal level revenue collection and allocation process. The DG team should be informed by the AD team consultants about the approach and prospective roles for municipal government. Specific TA might be procured to help work across various clients and partners in order to determine scope of potential pilot efforts. o Incorporate saneamiento efforts within environment team projects, particularly in the next phase of BOLFOR (or its successor). Both BOLFOR and CABI projects have engaged in saneamiento already. Under the current BOLFOR project, INRA has requested (further to work already done with USAID funds recently) assistance of between $1 – 2 million for work in the Santa Cruz area, and BOLFOR views this as very important to its broader effort. The environment component within the AD project will also likely recommend work similar to that done under CABI. Again, both of these existing projects have demonstrated improved approaches and the ability to unlock constraints that arise during project implementation. Where our projects do not have this facility, the mission should try to leverage other donors to engage. o The mission should make an effort to showcase and extract lessons learned from these efforts with INRA, other donors, and Bolivian civil society. o Evaluate the feasibility of possible incentive schemes for sustaining the formality of newly saneado titles (e.g., access to a special credit fund or scheme1; extend new rural „microfinance‟ products) These actions will address immediate pressure points and contribute methodologically to INRA’s capacity for land regularization Targeted Technical Assistance and/or Policy Dialogue o To improve the operational capacity of INRA Reform to reglamento de Ley INRA to allow further simplification/efficiency in saneamiento process (this is a sensitive subject but much needed;i Improved capacity for project design and negotiating; Resource adequacy (human, financial and physical; direct capacity versus out-sourcing). o To improve inter-institutional linkages (particularly, data sharing of derechos reales between municipalities and INRA) o To strengthen the capacity of municipalities in implementation of land policy and in managing a land/property rights information system, building from pilot efforts listed above. o To work toward an operational framework for land administration that establishes mid-term and long-term goals and parameters, and provides a logical framework to guide strategic-coherent use of various donor and government of Bolivia resources (if this could be done in FY03, it would be a very good thing). These actions will lead to sustainable results from saneamiento 2. Encourage Good Governance o Foster more coherent regulation of land management (as strongly recommended in the CVA) The proposed DG activity to support an overall „straightening out of all the Bolivian laws – saneamiento legislativo) should be supported (ASAP). Priority should be given to providing follow- 1 The Ferti-credit Model (mentioned to me by Oswaldo – N.A.S. and I might not have the name of the program quite right) seems to have with little money facilitated credit in-kind and a savings incentive scheme. It could be useful to mimic as a way to facilitate more immediate impact from titling. I only had very little time to speak with him, so this point might not be particularly useful but I think would be worth asking him a bit more. up technical assistance to resolve issues that arise relating to land tenure, land-use, and resource management. o ensure that institutional competencies are clear o reduce legislative overlaps, inconsistencies, and gaps that lead to confusion, conflict, and poor stewardship of land resources. o contemplate the introduction of a land-use planning law. Support „knowledge management‟ (e.g., collection and dissemination of information, studies, workshops, etc.) to inform debate on key emerging issues: o subsurface resource rights o the TCOii in relation to other governance units (municipalities, ASL, national institutions) o managed migration and creation of human settlements (including health information campaigns) o Apply DDCP tools to stakeholder participation and dialogue in application of ley INRA, Plan Tierras, and use of resulting property rights information systems at the local level. o Evaluate means for applying anticorruption tools to property registry and Plan Tierras implementation. o Review the property registry structure (including issues of: institutional independence from the Supreme Court and revenues) o Using a „checklist‟ approach, include property rights issues in the EG team assistance to competitiveness clusters. Create feedback loops to policy dialogue and TA efforts. These actions address the broader recommendations in the land tenure, conflict vulnerability and environmental assessments. 3. Help reconcile new-era competitiveness and long-standing social equity issues in land access and economic opportunity In general, USAID’s efforts focus on clarifying and formalizing property rights; however, the pressure for expanded land access and the GOB responses (past, present, and proposed) a) are of consequence for some USAID/Bolivia objectives including environment, competitiveness, and health; b) are inter-linked with the saneamiento process; and c) are a growing source of conflict inter-related with the political dynamics. It is also an arena in which the mission has less scope for action and for which the political space for needed innovative dialogue is presently limited, at least at the surface. This presents a conundrum, one which I view this as very important – how to create a space in Bolivia for an economic view of land, a better appreciation of land markets, and steps to make land markets more competitive; and to remove some restrictions on land market transactions such as use of land as collateral. There might be a way to slowly create such a space via regional policy dialogue and/or via getting other donors to step up action on this. o Foster acceptance of policies that view land as an economic asset (land markets, collateral, valuation). o Develop and pilot incentives for consolidation of fragmented holdings (link with MAPA and Food Security initiatives). o Encourage critical thinking in relation to the Plan Tierras land distribution component, and help manage the problem of unfulfilled expectations by gaining understanding of a menu of options for land access (access to opportunity). E. Links to Strategic Objectives The assessments listed above give ample explanation of how the issues raised in this roadmap are related to the mission‟s strategic objective, especially the report submitted by Rafael Diaz. Here is a synopsis: Alternative Development Land titling in the coca-growing region will contribute to: easing conflicts associated with agrarian land ownership and calming social unrest in the Tropics of Cochabamba; reducing poverty by expanding individual landholders‟ access to the full benefits of their land assets and removing an impediment to investments; helping to alleviate a situation which is causing serious governance problems due to strong socio- political pressure; thereby improving the chances of success of the Alternative Development Program. (from the RFP for the titling activity in Cochabamba). Additionally, the land access question is also indirectly relevant in the sense that one „attraction‟ of the Chapare seems to be that non-state actors hold land and are willing to assign rights to migrants, under their conditions. So, to the extent that the government can make an impact on answering the demand for land and making land markets work for broader population, there will be less value to the non-state actors offer. Forestry: Secure and clear title gives owners a vested interest in good stewardship of their resources and in the long-term investments in conservation and eco-friendly foresty operations. Secure tenure also helps protect traditional forest dwelling/using communities and formal forest-management units (e.g., ASL) from encroachment by illicit logging, clearing for farming and cattle enterprise, thereby, also protecting the forest from unregulated, accelerated deforestation . Trade Capacity: The cumbersome process for verifying title and registering transactions and the lack of title security (resulting from unresolved conflicts and lack of progress on saneamiento) mean high transactions costs for those doing business that depends on property ownership records, limits the supply of land for sale or lease in the formal market for business location, and also creates a disincentive for longer term investments e.g,. in irrigation and other productivity enhancing durable capital. Conflict: Conflicts over land happens when boundaries are unclear, where there are over- lapping claims to the same piece of land and over the inequitable distribution of land. Sometimes all three come together, for example, as INRA regularizes title latent conflicts over boundaries might emerge, relocated people might be superimposed on perceived rights e.g, of heirs of large-scale land owners who have had to return some land to the state due to past irregularities, as receiving communities resent or reject new comers, or as spontaneous occupations increase in anticipation of land distribution, but without regulation of uses and locations. The gambit of specific conflicts often gets embroiled in other triggers of conflict and could become an aggregating factor that would spread wide-spread civil conflict. Municipal strengthening: With modernized, secure and clear property records and related institutions come parcel-based GIS that enable greater coverage and more efficiency in property taxation. Various levels of government can share the GIS, across institutions and information products made available to non-government users. This enables improvement to a wide range of planning functions – urban development, disaster reconstruction, public services and enterprise location. It is therefore important that municipal actors be involved in reform processes and in the management/use of information systems. Also, decentralized processes for titling and registration are more cost-effective, in general, although this depends a lot on where the country is starting from. Finally, approaches to expanding land access that are community-driven or managed or at least involve the local actors are showing to be more effective, in some circumstances. Food Security and Rural Economic Opportunity: Fragmentation of land holdings in the Altiplano, due to past agrarian reform and lack of application of regrouping provisions under the current law, impede application of technologies to increase income and productivity (both the economic opportunities and the food security team raise this as a constraint to their efforts). F. Implementation Options Under the current strategy, the demonstration project on saneamiento in the Chapare could be procured via either the RAISE or BASIS IQCs (I will provide comments on which is better once the project design proposal is complete, and timeframe and budget size are determined). In the new strategy, approaches to think about are: a. Embedding the various activities outlined above within a broader range of SOs and implementing them as components of projects. An informal working group could hold meetings every month or two to ensure cross- fertilization and consistency across various team efforts. (This might be accomplished through a structure similar to the „country team‟ approach to the environment working group.) b. Creating a special objective on Land Policy, which could be managed by the Program Office, since it would cross all the teams. Operationally, the SpO could be managed by a contractor (procured via an IQC task order) who works with GOB, other donors, advises and works with each of the mission teams to help shape relevant implementation activities, coordinates across teams, and contracts TA as needed. c. Undertake choice a) or b) above, but implement by relying on a PSC (or other) USG hire who liaises with govt and donors and brings TA via a rapid response task- order under an IQC, ensures coordination across mission teams, and helps shape activities within their projects. Now and then, convene a donoriii mesa/consultative group on land policy and rural economy o Management level – all use diplomacy to push GOB to keep „land issue‟ as a priority and to move forward with actions (put more senior political will behind INRA, move on planned urban tenure regularization projects) and to raise key concerns (e.g., forests and asentamientos, Kadastre‟s cadastral work, TCO implementation) o Technical level – coordination, coordination, and coordination – best practices, innovations, coherent country vision and operational framework. Now and then, tap into RSD regional activities o Here is a list of regional activities that have been proposed by various actors to RSD/BBEG for funding under the Summit of the Americas Property Initiative, with potential to locate in Bolivia or to involve key Bolivian partners (RSD has made no determination about supporting many of these yet and will not fund all – so, please indicate if you have an interest or objection to any of these): A working meeting on the technical specifications for boundary demarcation. Kevin Barthel has been commissioned to implement this activity (with mission and INRA concurrence) via a task order that RSD/BBEG maintains with Chemonics under the RAISE IQC. The meeting will be held in Cochabamba July 10 – 12 and will have participants from 5 other countries. A Sucre registro- catastro study tour will be included in the event package. LAC-wide workshop on non-judicial resolution of land conflicts – funded already, joint with FAO, to be held in Quito Ecuador on July 24 –26, 2003. Mission is welcomed to suggest staff participants or key partners to be considered, if the project they work on can support there travel and stay. A request by the WB for support for a consultant to prepare a model registry-catastro law to be used in discussions in various countries including Bolivia, consultant suggested is Bolivian – no decision yet. An Andean regional Policy Dialogue on implementing the Summit of the Americas initiatives in relation to property rights and rural life (this was called for by the AA/LAC a year or so ago, a proposal for joint support of WB and USAID was submitted by a Chilean NGO with land embedded in discourse on rural youth and indigenous community development – tentative decision by WB, USAID/RSD, GTZ and CEPAL to co-sponsor o In my role as Bureau land policy Advisor, I can assist by providing technical consultation, liaising with WB and IDB task managers and advising front office and SPO. PLAN TIERRAS: AN ISSUES MAP: SANEAMIENTO DISTRIBUCION Geography (generally relevant but priority in): Altiplano- Chapare Santa Cruz Santa Cruz (asentamientos to be created in Beni, Tarija and N. La Paz under Plan Tierras first phase and then in other areas) Issues Issues How to get buy-in (demonstration and -dialogue) Why do it? Long-standing social issues, existence of state held lands From piecemeal, out-of-control implementation to a Asentamientos vs dotacion? Why insist on creating coherent strategy human settlements Institutional capacity (INRA, derechos reales, And, forest concerns? Where will they settle and what municipalities) Each needs to be strengthened as service will the do there? Will program induce spontaneous providers and they all need to be functionally inter-linked clearing to „induce‟ dotaction? Administrative process – need to simplify and And conflict localize/decentralize *intraregional /intragroup: local poor- migrant poor; migrant-local commercial farms, ranches and forest ASLs *gestos to address or not? *tierras fiscales vs inheritance rights? Constraints in legal framework on efficiency and impact And, access to opportunity: where will they settle and what will they do? Might alternatives be fostered to decrease demand? Can alliances between poor and non-poor be carved? Sustainability And, land markets? Why not put fiscal land in *gaps e.g. inheritance and informality subasta? How will land values be affected and with *data system upkeep-update what impact? Can rentals, joint ventures, and/or * incentives sales be facilitated as options for land access? These *costs and resources are sort of formally ‘taboo’ even if used de facto and land market imperfections do pose problems for the poor that might need to be addressed. Lack of/limitations in overall land use management context Expectations and buy-in to approach: With Plan (local and national)iv Tierras announced, an expectation is created – can it be met? On the other hand, is the plan credible or will violent demands continuing to increase? Time pressure and capacity for implementation v Time pressure, capacity and precedent USAID strategy links USAID strategy links Alternative Development (incentives and licit governance) Forestry (incentives and protections) Health -salubridad, servicesvi Trade Capacity (enabling environment – transactions Environment costs, security) Conflict Conflict (violence, shadow governance) Less directly, AD via political coalition building with Municipal strengthening (revenues and planning) MAS TCO: conflict, governance, environment and AD i It seems that because of the participatory and contentious process of introducing the Ley INRA and creating and revising the reglamentos (a process that involves not only things needed to operationalize the law but also various interests), the general subject of revising the reglamentos is not up for discussion. Revising it without consultation would also lead to basically ex ante rejection of changes. Still, the changes needed to make the process of saneamiento more expedient should be broached and would likely not be contentious if a space could be created to discuss them. ii TCO or “lands belonging to original communities” (Tierras de Comunidades Originarios) is a construct under the Ley INRA that allows for indigenous groups to access and formalize rights to „community‟ lands. In concept and in some notable cases (e.g., the Izoceno), TCO is a very constructive tenure form with an efficient formalization process. However, as is touched upon in the land tenure assessment and in the CVA, in practice, there are some problems with the use of this construct. In particular, there seems to be no clear policy on how a TCO relates to municipalities in the same area, where the limits on its self governance are (e.g., in regard to subsurface and water rights), whether or not beneficiaries are clearly and transparently defined (e.g., some TCO are formed by migrants which, to the novice, seems inconsistent with the notion of „original communities‟). Additionally, some people raise questions about whether the „social function‟ rules about size of land holdings are applicable and applied – there might be increasing tension between these groups and landless persons as a result. This gambit of apparent confusions/concerns merits more open and informed discussion and is a potential source of conflict. iii See the Land Tenure Assessment for a pretty complete list; also mentioned were: a) an IDB housing project with an urban tenure regularization component in El Alto, b) the IDB‟s development plans for a proposed national land administration (in pre-design phase now for $35 million loan, this is why they have supported tallers, and consultants to INRA. There are 5 consultants in country presently working with INRA, and links should be made between them and our consultants. They suggest that targeted TA by USAID can help pave the way for a faster loan process e.g., reglamento Ley INRA); c) the WB is also looking at a new loan/second phase that might be oriented to land access and rural development and/or to further develop a framework for land administration; and d) Kadastre might be aiming for a national concession for cadastral component of saneamiento process. iv See the CVA and the last slide of the powerpoint used to present it. There is significant overlap in which insitutions have what responsibilities and how the various laws inter-related to one another. As a result, enforcement capacity is not strong. Also, confusions arise as definitions are interpreted variously by different actors e.g., asentamientos en areas forestales o de vocacion forestal viewed as positive and legal by some and detrimental and not legal by others. v Apparently the GOB is very far behind in terms of expectations/promises made. Also, there is a strong view that donors are implementing Ley INRA with their own views on how it is interpreted and without adequate GOB control. This is casting doubt on GOB capacity. In the coca-growing regions, tenure security and land access are „goverened‟ by the local farmers unions and political groups casting doubts on capacity to govern.
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