Keywords

What Is Land Formalization and How Does It Connect with Tenure Security?

Within the toolbox of strategies for strengthening land tenure security, the most utilized tool has been land formalization. In its simplest form, land formalization refers to a set of processes through which the state legally recognizes the rights a landholder has to property that they have held or used “without such recognition, creating new capacities and opportunities (and perhaps risks) for the right holder” (Bruce, 2012, p. 39). Formalization is often further simplified and referred to as titling or documenting property rights in a land registry or cadaster. But in practice land formalization is a more involved process through which the state formally allocates rights to landholders, whether this be recognition of previous de facto regimes (see Chap. 3), or through an allocation or redistribution of land to populations without title or documentation.

In this chapter, we discuss how land formalization has developed into the primary mechanism for strengthening land tenure security, initially through an exploration of post-colonial and post-independence large-scale land titling efforts. We draw on examples from Africa and Latin America to highlight some promises and pitfalls experienced in these titling campaigns. We then explore some common assumptions tied to land formalization, its relationship with tenure security, and the evolution of land formalization to its current position on global sustainability agendas. Finally, we discuss the newest generation of efforts to develop more geographically targeted approaches to land formalization, often focusing on the lands of Indigenous Peoples and local communities, to increase tenure security, improve livelihoods, and safeguard ecosystems. While the formal recognition of land rights is a necessary process tethered to promoting human rights, poverty alleviation, and sustainable development worldwide, the process of formalization is complex, political, and contested. It is in the design and implementation of land formalization that we also see a critical need for assessing existing strategies to ensure the process and outcomes are inclusive, just, and sustainable. In essence, we see formalization as remaining an important component of the land tenure security toolbox, but the way it is constructed and the techniques for using it require constant reassessment and innovation.

What Do We Mean by Land Formalization?

Property rights do not have to be formalized to exist and be legitimate (see Chap. 3). It is useful to think about property rights as fundamentally concerning “relations between people with regard to a thing” (Meinzen-Dick & Mwangi, 2009, p. 36). With this holistic vision of property rights, Meinzen-Dick and Mwangi (2009) go on to characterize them as overlapping bundles that operate between people in their interactions with a given resource, or between people and the land. This means that on any piece of land, there could be different rights connected to specific resources (e.g., trees, soil, wildlife, and minerals) that are held by different individuals or groups of rightsholders. Meinzen-Dick and Mwangi (2009) call this a “web of interests”, which can exist and be dynamically connected to any piece of land. They refer to the process of land or tenure formalization as one of identifying interests, adjudicating them, and registering them. The institutions and governance structures that play the role of assuring and upholding rights are not necessarily always the state (Meinzen-Dick & Mwangi, 2009).

There is a tendency to further simplify and equate land formalization with land titling, when in effect land titling constitutes a typical component or step in the overall process of formalizing land tenure. Bruce (2012, p. 39) outlines land formalization as a three-phase process, carried out by the state:

  1. 1.

    Create a law for property rights to exist, and set a framework for the rights to be upheld;

  2. 2.

    Realize the rights through “titling”;

  3. 3.

    Create an official public record of the rights through documentation/registration.

Within this framework, land titling sits squarely in the middle of a process that involves legislative, institutional, and bureaucratic actions at multiple stages. All too often, the process of land formalization stalls. This might occur at the stage of titling land where the time, money, and labor costs can be high, and conflict resolution can become more fraught than anticipated. Emerging technologies have helped streamline the process of mapping, demarcating property boundaries, and registering titles. But even these advances can be encumbered by issues related to capacity gaps, equipment maintenance, lack of reliable maps, challenges tied to land claims and disputes, or even simply access to remote rural areas.

As we will discuss in more detail, earlier large-scale land formalization efforts in the 1960s–1980s in the Global South emphasized western-based notions of individual or household titling of lands into the hands of individuals or single rightsholders, disrupting complex and overlapping layers of rights that originally existed. With the publication in 2000 of Hernando de Soto’s Mystery of Capital, the primacy of individual freehold ownership gained further traction and a boost within the development community (Bruce, 2012). This effectively benefited some landholders, while isolating or exacerbating tenure insecurity for others. Only relatively recently have land formalization processes focused on recognition of community-held lands and resources, or customary forms of tenure. A recent study on the process of formalization of community lands indicated that even though more than half of global land is held by communities, only 10% of that land is legally recognized by governments (RRI, 2018). Even less of that land has proceeded through all three steps to reach the point of registration and documentation in the public record (RRI, 2018; Notess et al., 2020).

What Do We Know About How Formalization of Tenure Relates to Tenure Security?

Within the context of the Sustainable Development Goals (SDGs), there has been substantial effort to recognize that formalization and tenure security are associated, and progress toward both is credited toward achieving the very first of the SDGs: “to end poverty in all its forms, everywhere” (United Nations, 2015). Land formalization is a process that involves regulatory recognition of tenure form. Tenure security is a conditional state and relates more to how and whether there is confidence rights (whether de facto or de jure) will be upheld by society (see definitions explained in Chap. 1). That said, there is a pervasive conviction and generalization that land formalization is equal to land titling and that a land title alone is sufficient to bring tenure security to the landholder. This is quite common among those who implement land formalization programs, who connect tenure security for landholders to the acquisition of de jure or statutory land title (Masuda et al., 2020). This perception stands in contrast to the community of land tenure scholars who suggest this simplified equation (formalization = land titling = tenure security) is a potentially risky and false assumption, and suggest more value be placed in assessing landholders’ perceptions of tenure security (Masuda et al., 2020). As already noted, the tendency to equate land formalization with titling only glosses over important policy and process steps that are fundamental to the legitimacy of the land titles: the laws that define the bundle of rights tied to land, the register or cadaster that records the title and allows for updates in situations of transferal, and the capacity of the government and governance structure to be reliable and accountable to adjudicate these rights.

In many situations, land formalization has resulted in the disruption of tenure security for landholders. Formalization through state-led land reform, in some cases, has resulted in the erasure of communal and customary tenure in favor of private landownership (Meinzen-Dick & Mwangi, 2009; Bruce, 2012; Peluso et al., 2013). This triggers a disruption in the social fabric of community relations tied to land and shifts the context of ownership to something unfamiliar and typically unsupported in pre-existing community structures. As Bromley (2009) describes: “Titles are symbols of ownership…ownership is both a social fact and a social idea” (pp. 20–21). Some suggest the relationship between formalization and tenure security depends on who holds power and what their motivations are in driving the process of formalization. As Putzel et al. (2015) suggest, in more contemporary cases, we still see instances where the process is “top-down”, driven by the state as influenced by global institutions and typically financed by multilateral or bilateral aid organizations. Often the motivation for formalization is to achieve a range of policy goals (e.g., land and resource development, poverty alleviation, growth of the tax base, and meeting the SDGs). Such cases might be less connected with local interests or realities, and therefore hold a less predictable or clear connection with increased tenure security.

In cases where land formalization has represented the overlay of new tenure rules and institutions, rather than the formal recognition of existing tenure norms and local institutions, the shift can either directly trigger conflict or result in greater tenure insecurity, most often resulting in negative impacts for the most marginalized and vulnerable populations (Platteau, 1996). Meinzen-Dick and Mwangi (2009) described this approach of simplifying land formalization and assigning the concept of ownership to a single rightsholder as slicing into the “web of overlapping interests” (p. 38). This simplification could render others without traditional rights, such as women who might traverse a piece of land to access water or harvest non-timber forest products during certain times of the year (Meinzen-Dick & Mwangi, 2009) (see additional gender-specific aspects of tenure security in Chap. 5 of this volume). Alternatively, present-day initiatives seeking formalization can originate from mobilization at a grassroots level, from communities or collective groups who “understand a need to develop or operationalize governance mechanisms in their own interests, for example, to protect a common pool or private resource or to prevent conflict” (Putzel et al., 2015, p. 455). In these situations, we might expect a clearer, more direct, and positive connection between land formalization and tenure security. And yet, even if the process is locally driven or initiated (“bottom-up”), it still requires negotiations with formal institutions and governance structures for the translation of de facto or customary tenure systems into that which is de jure and formally recognized (as explained in Chap. 3). Communities or other local landholders might already have strong tenure security prior to the formalization process. If this process is inclusive, equitable, and just, then we might expect communities to feel an increase (or no net change) in their sense of tenure security. If, on the other hand, the process fails to reflect one that is transparent and truly collaborative, even when it was driven from the bottom-up, the effect on tenure security could ultimately be to weaken it.

Historical Approaches to Formalization in Latin America

Large-scale land reform took off during the post-World War II (post-WWII) era in Latin America and in the post-independence era across much of sub-Saharan Africa.Footnote 1 Most of these operations were national-scale campaigns, often state-led (national government) and financed by multilateral development banks, labeled as agrarian or land reform, and intended to be redistributive in nature. In a critique on large-scale land reform, Bromley (2009) highlighted how these strategies were promoted by the Global North and imposed on the Global South under the claim that it would promote economic development and increase agricultural production. The land reform strategies set goals that mirrored the property rights regimes of global economic and colonial powers like the United States and Europe, adopting a logic that private property rights through land titling would open up a stream of economic benefits, thus securing tenure and lifting the landowner out of poverty (Bromley, 2009).

In the case of Latin America, governments began to engage in large-scale land reform starting in the early 1960s, often characterizing land reform as a way to break up large estates (latifundia), the remaining relics of colonial power, and get land into the hands of the landless peasantry. Often the unstated objectives were to settle regions seen as the “frontier” (e.g., the Amazon basin of South America) or stabilize regions that where international boundaries were under dispute, help to lower population and land pressures in already urbanizing or upland areas (e.g., the Andes), and to assert greater control over the poor populations (De Janvry & Sadoulet, 1989). This land reform process and promotion of frontier settlement ignored or actively erased the pre-existing territorial claims and presence of Indigenous communities in the targeted settlement regions. Reforms and land laws from this earlier generation of land formalization efforts in Latin America (1960s–1980s) tended to hold a singular focus on titling land into the hands of individual landowners, absent recognition of communal or customary forms of tenure.

State-Led Land Reform and Its Unrealized Promise in Latin America: Example of Ecuador

In 1964, Ecuador implemented a first agrarian reform with the passage of a law (updated in 1973) which labeled large regions of the country as “unsettled” (tierras baldías), signaling a formal erasure of the ancestral territories and active presence of multiple Indigenous groups (Bremner & Lu, 2006). The law explicitly incentivized smallholder farmers from the coastal and highland regions of the country to migrate to the Amazon and stake claim over individual plots of land. The agrarian law promised newly arriving colonists to these lands formal governmental title over a forty-hectare plot if they “improved” it (i.e., cleared the forest to cultivate), formed pre-cooperative organizations with other local farmers, and could show continued productive use of the land (Holland et al., 2014, 2017). This echoed the westward expansion and state-promoted land acquisition tied to the Homestead Act in the United States during the mid-late 1800s (De Janvry & Sadoulet, 2001).

Ultimately, title was formalized for barely one-half of those settlers who were lured by the promise of land and followed the legal guidance. For decades, thousands of families migrated there as colonists and lived there without formalized title. Indigenous Peoples across the Ecuadorian Amazon remained without any statutory recognition of their lands by the state until after the passage of the new Constitution in 2008 and Ecuador’s signing of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP, 2009). In fact, the new Constitution made Ecuador the first country to officially grant legal recognition and rights to nature, something we will discuss toward the end of this chapter.

Although details are different, similar types of land reform efforts were carried out across most Latin American nations during multiple decades of attempted large-scale land reform. These efforts were costly and were often deemed inconclusive and incomplete (De Janvry & Sadoulet, 2001). Land reform was inconclusive because, while it may have resulted in the awarding of statutory land title, it lacked any follow-up from the state in terms of access to services (education, health, financial) and infrastructure in often remote regions, leaving those who had migrated for land and title without any access to supports that are also critical to alleviating poverty. Land reforms were incomplete because so many failed to even formalize title for thousands of landholders, leaving them without the capital to access credit or other forms of assistance on their own (De Janvry & Sadoulet, 2001).

State-led and large-scale land reforms in Latin America were largely successful in realizing the passage of national land or agrarian reform laws—the first step in the land formalization process outlined by Bruce (2012). These laws, however, remained influenced by principles for economic development promoted by the Global North through multilateral aid organizations, where private property rights were held as highest value. With few exceptions (e.g., Mexico’s land reform process from 1917 to 1992 that allowed for formalization of communal tenure as ejidos) (Perramond, 2008), these early-stage land laws from the 1960s to the 1980s left communal and customary forms of tenure solidly within a realm of informality, with no space for statutory recognition. In fact, a 1975 World Bank land reform policy brief firmly recommended that these tenure systems be abandoned by governments in favor of individual “freehold” title and privatization of common-pool resources (Deininger & Binswanger, 1999). Later decades would see this perspective solidly refuted through the dedicated work of scholars like Dr. Elinor Ostrom (e.g., Schlager & Ostrom, 1992), indicating not only the disruptions to tenure security that can occur when land privatization cuts through complex tenure systems or a “web of interests” (Meinzen-Dick & Mwangi, 2009), but also the disruption and fragmentation this can trigger for ecosystems (Boyd et al., 2018).

Evolving Generations of Land Reform and Formalization in Africa

In a similar way to Latin America, the nations of sub-Saharan Africa embarked on a wave of large-scale, state-led land reforms starting in 1960, as each nation was achieving independence from colonial powers. Since the beginning of these land reform processes, governments seemed to hold two conflicting goals: (1) to formally recognize the rights of traditional landholders across rural regions to strengthen tenure security, and (2) to formalize their tenure systems to attract foreign investment and boost agricultural production (Chimhowu, 2019; Diop, 2020). Even in a state of newly formed independence, many young African nations, especially those emerging from former French or British rule, tended to follow an approach to land reform, formalization, and administration that aligned with the example of their colonizers, with top-down strategies for implementation of large-scale land reform, and often classifying large swaths of the rural landscape as “open land”. This first generation of large-scale land reform in Africa experienced similar setbacks and pitfalls to those in Latin America: expensive programs that were bureaucratically burdensome, centralized, and top-down, and ultimately reforms that were left incomplete. The approach by the newly formed governments was often to ignore customary tenure systems or actively make them illegitimate according to state law. The result of these early formalization programs was that they typically exacerbated tenure insecurity, conflict, and inequality among local communities (Diop, 2020).

Land Reform and Formalization in the Era of Decentralization

The second wave of land reform began during the 1990s, with a goal of bringing adjudication powers closer to local people by delegating power from the central governments to local government authorities and elected officials. Here, the assumption was that decentralized agents could more efficiently and accurately meet the needs of local communities (Diop, 2020). This drive for decentralization of land formalization was both in response to the failures of the first generations of large-scale state-led land reforms, but also aligned with parallel efforts to decentralize natural resource and forest management in regions across the Global South, initially led in different parts of South and Southeast Asia (Agrawal & Ostrom, 2001; Balooni & Inoue, 2007).

Perhaps the biggest achievements from these second generation of land reform and formalization programs were that new land laws passed during the 1990s and early 2000s (e.g., South Africa, Uganda, Kenya, and Mozambique) recognized customary tenure rights and allowed for the issuance of customary title (Wily, 2018). This wave of legislative reform and recognition of customary rights swept through 39 out of 54 countries in sub-Saharan Africa, as documented for 1990–2017 (Chimhowu, 2019). During this same time period, multilateral and bilateral aid organizations began to promote both decentralization and the formal recognition of community lands. Even the World Bank, one of the most prominent champions of large-scale land reforms and private land formalization, supported prioritizing communal tenure systems given evidence from early studies on tenure security that communal tenure can represent increased tenure security and lower transaction costs than freehold or individual title (Deininger & Binswanger, 1999). Lawry et al. (2017) would later go on to suggest that formalizing customary tenure may not increase tenure security in the region. He and other researchers term this the “Africa effect”, where local landholders already perceived their security of tenure in customary systems to be high prior to formalization, resulting in little-to-no measurable effect of tenure formalization on tenure security.

Despite the passage of progressive land legislation across multiple countries, one principal concern of the decentralized and “bottom-up” approach to formalization was that the formal recognition of existing customary structures would result in exacerbating intra-community challenges and inequitable power structures (e.g., further advantaging elite members of the community), effectively locking in these disparities, thus risking further marginalization of specific population groups (e.g., women, religious minorities, and recent migrants). In this way, the shift to more locally driven formalization often solidified and entrenched such power disparities. Impact evaluation studies confirmed this across multiple contexts (see, e.g., Ribot, 2009; Ghebru & Lambrecht, 2017), revealing that these programs benefited local educated and elite populations and widened the gender equity gap (Diop, 2020).

Ultimately, the second generation of land reform still suffered setbacks, although there are bright spots (e.g., Chap. 12). Also, despite the progressive legislation and the decision of many governments to recognize (formalize) customary tenure, very few made any steps to implement these legal frameworks, and across the continent of Africa there remains a large area (an estimated 78% of arable land) that is without formal title and still primarily under customary tenure systems (Alden Wily, 2018).

A New Wave of Land Formalization in Sub-Saharan Africa and Latin America

Over the past fifteen years, we have seen new variations of land formalization efforts take hold in various countries across Latin America and sub-Saharan Africa. Nations passed new legislation formally recognizing the rights of those holding customary tenure, as already noted for the majority of nations in the African continent, and for Indigenous Peoples and Afro-descendant communities in Latin America (see Chap. 4), marking a significant increase in the amount of land under customary and communal tenure gaining statutory recognition (RRI, 2018; Chimhowu, 2019).

There is still top-down and bottom-up initiation of land formalization, and the current era signals a mixing of the two. Several countries in sub-Saharan Africa implemented large-scale land regularization programs (e.g., Rwanda and Ethiopia), with the objectives of improving land registration, increasing agricultural production, and ultimately strengthening tenure security (Bizoza & Opio-Omoding, 2021). Titling programs in this recent wave of land formalization have been more targeted geographically, often involving pilot project phases for ongoing impact evaluation, assessment, and adaptation.

Land titling, mapping, and registration efforts have surged once again, after a relative decline in investment during the 1990s and early 2000s. In the post-2000 era, new international funds and institutions have formed to help finance land formalization and strengthen land tenure security. In addition to the original set of organizations financing and promoting land formalization (e.g., World Bank and regional development banks, the European Union, and the Food & Agricultural Organization [FAO] of the United Nations), we have seen a diversification in the donor landscape with the creation of dedicated funds from bilateral donors like Germany (GIZ), France (AfD), and Sweden (SIDA), as well as the Millennium Challenge Corporation (MCC) in the United States. Since 2005 alone, there have been 98 projects financed by these entities, specifically involving land titling and registration across 29 countries, and totaling around 770 million USD (D-Portal, 2021).

Technological innovation and advancement have enabled the creation of sophisticated digital platforms for land delineation and registration, which have promised to speed up the process, increase transparency and integrity of these systems, allowing for updates of land records. The newer generations of land titling and registration, now more contemporarily referred to as land regularization, have also involved emerging technologies—though these have faced challenges in terms of technology access, expense, and upkeep of registration systems. At times, these precision technologies, particularly in mapping and delineating property boundaries, have brought with them new instances of boundary disputes and conflict. They have also on occasion caused some hesitation and resistance from communities who worried about having their precise land boundaries suddenly “visible” to the state. In the case of mapping and registering of Indigenous territories in Latin America, for example, the map typically only reflects the territorial boundary, or “tenurial shell” (Barry & Meinzen-Dick, 2008; Smith et al., 2017), and does not include more layered ways in which communities might hold tenure rights over other resources, allow for individual rights within communal territories, or access rights to other lands. At the same time, the strategy of formalizing recognition of the overall territory allows for a more efficient process and engagement between the community and the state, and leaves flexibility for the layers of tenure within the community boundary to adjust and update over time. Importantly, despite these technological advances, such tools cannot substitute the deliberate and important work of inclusive and collaborative titling and mapping with individuals and communities, which ends up taking more time.

Converging Drivers of Formalization and New Approaches

The trends during the first two decades of the millennium indicate that land formalization has maintained a central role in the pursuit of global goals tied to poverty alleviation and sustainable development. While a strong emphasis on formal recognition of full property rights for individuals persists, the past decade or more has additionally focused on formal recognition of lands held by customary and communal tenure systems. When examining the motivations and drivers behind this uptick in formalization for communities, we see initiatives that originate from both top-down and bottom-up mobilizations to formalize. These reflect social and environmental goals tied to sustainable development objectives as well as social, environmental, and climate justice concerns.

Formalization for Community Empowerment or Dispossession?

The newer surge in formalization in many cases reflects newer and increasing pressures on land and resources for productive or extractive uses. As reviewed in the chapter on land grabbing and large-scale land investments (Chap. 7), we have seen examples of what Maganga et al. (2016) refer to as “dispossession through formalization” in countries like Tanzania and Mozambique. In such cases, progressive land laws have set the stage for formal recognition of customary tenure, and outside investor interest has influenced the state in prioritizing certain lands for formalization. This has set the stage for investors to negotiate lease access directly and immediately with communities upon reaching formal title and registration status. The weakness of the state in adjudicating tenure, combined with its duality of interest in developing its economy, results in the government playing a minor role, ensuring the bare minimum of assistance and support to communities in the process. Communities find themselves in a position where they are learning about the context of their rights within the statutory framework of their newly formalized title, yet doing so from a position of less familiarity with legal systems, lower levels of education, and limited capacity to negotiate effectively. The result is that communities are often left disadvantaged and less secure, even under the veneer of above-the-board legality (Nhantumbo & Salomão, 2010).

The examples emerging from Tanzania and Mozambique point to the increased understanding that the timing of formalization can be as important as the direction from which the process is initiated (top-down vs. bottom-up) (Putzel et al., 2015). In these examples, the timing of the decision to engage in a formalization process is due to pressure and interests from outside entities, thereby setting the stage for communities to be unequal partners in the formalization process from the outset, risking increased tenure insecurity. Even when the promise of outside investment is tied to promised benefits of poverty reduction (e.g., through generating jobs and some level of benefit-sharing from the resource production or extraction), the implementation of the formalization process can often leave communities in a weakened position to negotiate these benefits, or to have confidence that negotiated rights of access, withdrawal, and compensation will be upheld (Nhantumbo & Salomão, 2010).

Formalization for Conservation and Climate Mitigation

On the other side, state interests in prioritizing formalization for development and extractive interests is a top-down approach to formalization that can seek to increase protection of ecosystems, ecological restoration, and climate change mitigation through nature-based approaches to carbon storage and sequestration. Most of these formalization efforts focus on tropical forests and forest tenure. Certain state entities (e.g., the Ministry of Environment) can join with international conservation organizations to promote targeted formalization and recognition of rights for the implementation of programs. For example, payment for ecosystem services (PES), such as Reducing Emissions from Deforestation and forest Degradation plus (REDD+), are generally predicated on clear and uncontested title before participation (Holland et al., 2017; Robinson et al., 2018). Chapter 10 explored in depth the relationship between PES, REDD+, and tenure security, as well as the critiques of these top-down approaches to formalization so that landholders may participate in such conservation incentive and benefit programs.

Regardless, in addition to formalizing land for eligibility to participate in such programs we also see an emphasis on prioritizing titling programs to reduce deforestation, even in the absence of any added conservation incentive or policy. The research evidence on whether titling alone leads to slowing forest loss is mixed and still building, with limited empirical evidence yet on long-term, sustained impacts (Holland et al., 2017; Robinson et al., 2018; Tseng et al., 2020). Two recent studies are among those that point to positive outcomes for forests when formalizing community lands in the Brazilian Amazon (Baragwanath & Bayi, 2020), and the West African nation of Benin (Wren-Lewis et al., 2020) (although BenYishay et al. (2017) find contrasting evidence). These types of rigorous evaluations on the impact of titling are lending further credence to aligning the interests of the state in land formalization that can further national commitments to achieving global goals for biodiversity conservation and climate mitigation.

Seeking Formal Recognition as a Form of Resistance to Land and Resource Development

Recent trends in formalization have also reflected processes that are initiated from the bottom-up, often reflecting landholders’ collective concerns about impending pressures for access or expropriation of their lands. In late 2020, the Naso Tjër Di people of northern Panama succeeded in having a portion of their ancestral territory legally recognized by the government as a comarca, a form of semi-autonomous region, which the Panamanian government first began recognizing in 1938 with the recognition of the Guna Yala comarca. The Naso comarca represents only the sixth comarca, with approximately 30 Indigenous communities still seeking this level of recognition for their traditional territories (IWGIA, 2021). This recent declaration represented the culmination of a more than twenty-year struggle for formal recognition of Naso territorial rights. For years, the Naso have actively protested hydroelectric and other resource development on their lands, surrounding the Teribe River (with hydroelectric dam finalized in 2014). At the same time, their quest for recognition as a comarca was often sidelined because of the overlap between their lands and two protected areas (La Amistad Biosphere Reserve and Palo Seco Protected Forest, both UNESCO World Heritage sites) that were formally recognized in the mid-2000s, committing the state to uphold strict conservation objectives on those lands. However, evolving perspectives and appreciation for the alignment of Indigenous land management and conservation goals have resulted in the Ministry of Environment issuing a statement endorsing the formal recognition of the comarca, seeing it as complementary to the conservation goals tied to the two protected areas. This was echoed in the President of Panama’s recent visit to the comarca, noting that the forests on those lands would now be “doubly-protected” (Cannon, 2021).

Even for Indigenous communities that might have achieved legal recognition automatically through legislation (eliminating the need to seek a full process of formalization), many communities are pressing for full land registration so that they can “double-lock” their rights (Alden Wily, 2017; Notess et al., 2020). These processes cost more in terms of time and investment for communities, but communities often perceive an added value in being able to delineate boundaries and make their lands clearly legible to the state and outside interests in a formal land registry. The directionality of these efforts (bottom-up) potentially points to a higher likelihood of formalization representing increased tenure security for these communities. But much of the effect on tenure security will still depend on the timing of the formalization process (including how long it takes overall), and the response by the state in upholding those rights.

Formalization as Legal Recognition of the Rights of Nature

Earlier in this chapter, we noted that Ecuador became the first country to formally recognize the Rights of Nature (Pachamama) in its 2008 Constitution. Since that point, Indigenous communities, municipalities, and townships across eight countries have taken steps to gain legal recognition of the Rights of Nature, either tied to “all Nature” (as in the case of Ecuador), unique ecosystems (municipalities in the United States), or specific landscape features and rivers (New Zealand) (Kauffman & Martin, 2018). While these represent efforts to achieve statutory recognition of the Rights of Nature, the attribution of rights to Nature has long been a component of customary law and tradition for Indigenous communities (Cano Pecharroman, 2018). In the case of Ecuador, Nature is recognized within the Constitution as having the rights to exist, sustain ecosystem integrity, and be restored when degraded (Kauffman & Martin, 2018). Importantly, the constitutional recognition in Ecuador grants any person the right to demand that the state uphold the rights attributed to Nature (Cano Pecharroman, 2018). We are still in the initial phase of understanding how efforts to formally recognize the Rights of Nature will interact with community-driven and bottom-up initiatives to formalize rights to land and resources, but early cases point to instances where communities have been able to assume the role of Nature’s “custodian” in a legal sense, advocate for the protection of rivers running through their lands, and leverage alliances with environmental organizations for increased protection of ecosystems important to them (Cano Pecharroman, 2018).

Aligning Top-Down and Bottom-Up for Strengthening Tenure Security

The drive for land and resource formalization has gained significant ground in these recent years, responding to different pressures on landholders and to policy goals and mandates for states. In this chapter, we have reviewed the history (post-WWII) of land formalization in Latin America and sub-Saharan Africa, and how the processes of land formalization have diversified and evolved over time. Importantly, we have examined the “sticky”, but ultimately misinformed, messaging practitioners and policymakers tend to adopt that equate land formalization with titling only, and with improved tenure security. Finally, we have reviewed recent trends in formalization efforts applying a dual lens of directionality and timing to shed light on how these might ultimately align to help strengthen tenure security for landholders in the Global South. With directionality, joining together top-down and bottom-up approaches will add even greater complexity to processes that can already be slow, intensive, and expensive. But this is a necessary step, and the timing of it matters for respecting the full rights of communities. Ultimately, we see success in achieving the Sustainable Development Goals as depending on this integration and alignment of formalization processes, as it requires a process of negotiated understanding between communities of people and their system of formal governance, which will only reach sustainable outcomes if that process is equitable and just.