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Land disputes: taking legal action

To settle land disputes by legal action, you must first establish your right to sue. You also need to identify the relevant parties to sue and in what courts your case can be heard. This section provides guidelines for bringing a land dispute before the courts and how best to win your case.

1

Who can take legal action in land disputes?

a) General

Generally, anyone may take legal action to enforce rights. This includes:

  • Individuals
  • communities and community groups. Sometimes the problems of a group of individuals lacking official title to land can be overcome by forming community organisations or trusts to advance the claim for the benefit of all
  • organisations such as NGOs or conservation groups
  • local and national government: it may be easier to persuade and assist local officials to take legal action rather than to do so yourself. For example, in deforestation cases, the deforestation is often in breach of national forestry legislation.

 

b) Particular groups

Some groups of people may have particular difficulties asserting their rights:

  • women usually have fewer legally-recognised rights to land than men and land disputes often involve discrimination against women, infringement of their rights and other gender issues. This is because in many developing countries, it is women who work on the land and gather food and water from it. Yet, they may be denied rights of ownership or tenure under customs and customary law. (see Realising women’s’ right to land and other resources (pdf) United Nations, 2013
  • indigenous peoples, for example, India’s Adivasi, the ethnic and tribal groups considered the aboriginal population of India.
  • mobile communities, travellers or nomads
  • Forest peoples: see for example Securing Forests, Securing Rights: Report of the International Workshop on Deforestation and the Rights of Forest Peoples (2014). Summary by Forest Peoples’ Programme, full report also available for download in pdf.

 

c) Establishing your right to sue: the problem of “standing”

Even if you are affected by a dispute over land, in many cases you can only bring a legal action if you have a sufficiently close connection with the land or the damage or wrong concerned (“standing”in legal terminology). For more details on “standing” and related matters, see: “
– “Who can sue?” Public Interest Litigation: your questions answered [Ref to be added to relevant page when uploaded]

2

Who can you take legal action against?

To enforce your rights or make a complaint regarding land rights, you can take legal action against any of the following:

 

a) Governments including national and local government departments, bodies and ministries

b) Corporations as well as associated or parent corporations *

c) Local agents and representatives

d) Actors behind the direct perpetrators of a wrong, such as:

  • Lenders
  • International financial institutions
  • Private and public financial institutions, development banks
  • Investors and shareholders ( look for those signed up to codes of conduct such as the Extractive Industries Transparency Initiative)
    Insurers

e) Those who have taken or bought produce from the land.  So if, for example, land is seized illegally to grow palm oil, which is then sold to a foreign company, it may be possible to claim against that company in its home country. The local law may provide that the lawful owners or former occupants of the land remain entitled to produce grown on it. The foreign company who buys or takes the produce ought to be aware of the circumstances in which the land was seized

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Where can you take legal action?

a) Customary forums and elders

b) The Courts, national or local:
The best starting place to bring an action is in the national or local court where the land in question is located. However this may not be possible or practical due to poor access to justice, lack of impartiality, or intimidation.

c) Foreign Courts:
A potentially useful option is to go to court in the home state of the person or corporation (or its parent corporation you are suing, where access to justice may
face fewer practical obstacles such as corruption or intimidation.

d) Regional Courts:
In some cases it may be possible to bring cases in special regional courts such as the East African Court of Human Rights.

e) International Bodies

It may be possible to bring complaints to persons designated for this purpose such as the FAO Ombudsman or to the United Nations Special Rapporteurs, such as the UN Special Rapporteur on the Right to Food.

f) Extraterritoriality issues generally.

Look for remedies or pressure points in state(s) where a corporation is domiciled or does business.

The national contact point in a company’s home state under the OECD Guidelines for Multinational Enterprises

For other complaints mechanisms, ombudsmen, etc.,
See also soft law: [link* to relevant section on ‘sources of law’ page]

4

What legal remedies can you seek?

a) Local administrative procedures

Solving a land-related problem may not require any court action. It may be enough to take steps through a local or national land office or land commission or cadastre to formalise your land rights. You need to consider what steps you can take to register your land or your rights over the land. This may give you more protection or may be a necessary step before you can take further, more effective action.

 

b) Register or declare protected or common status of land

 

c) A court order

If you go to court and you are successful, the court may be able to do all or any of the following:

  • Declare that you are owner or are entitled to occupy, use, or enjoy land
  • Quash or annul a law, permit, or decree legitimising a land “grab”
  • Stop someone else occupying land, controlling it, or infringing your rights
  • Prevent a forced eviction
  • Enable you to return to land you have been evicted from
  • Provide you with (rights to) alternative land or re-housing. Even if you cannot get your own land back, you may obtain the right to other land
  • Pay you compensation

 

d) Agreement or settlement

The best solution to your dispute may lie in a settlement resolving differences with your opponent before the matter ever gets to court.

Use of land is a complex subject so in any proposed settlement, you need to draw up clear agreements in writing on all important points.

Even if these arguments are not accepted, you should try to ensure your right to participate in future decision-making about the land in question and its occupation or use, including about such issues as:

  • What and where is the land concerned. Is there a proper map, plan or description of the land?
  • How is the land to be used, for what, and by whom?
  • How long have people had the right to use it? For many years or for a shorter period?
  • Do any of the rights agreed need to be registered; if so, who should do this?
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Dealing with corruptions

Cases involving land problems may also involve corruption (bribery or other improper use of influence) or suspicions of corruption.

If this is the case, there may be separate remedies for this corruption and the existence of the corruption may invalidate contracts or concessions under which foreign investors are granted land rights.

See also the following video: “Cambodia – indigenous land rights”

Legal results of proving corruption could include:

  • contracts under which land has been transferred may be challenged or cancelled
  • governmental grants, concessions, permits or decrees may be challenged or cancelled

Action may be easier in an investor state court than in the host state court:* for example, under the following laws:

  • United States: Racketeer Influenced and Corrupt Organizations Act (“RICO”). See Wikipedia RICO article [- external link*]
  • United States: Foreign Corrupt Practices Act of 1977 [see: Guide to FCPA- link – external]
  • United Kingdom: Bribery Act 2010 [See Wikipedia Bribery Act  – *External link]

Examples of cases brought under these laws:

  • US versus Kellogg Brown & Root, 2009: Kellogg Brown & Root pleaded guilty in USA to corruption in Nigeria relating to construction contracts and agreed to pay a fine of $402 million for breach of the US Foreign Corrupt Practices Act. [See: SEC Charges KBR and Halliburton for FCPA Violations – external link]
  • Siemens indicted under FCPA, see SEC news: 2011: Siemens executives indicted under US Foreign Corrupt Practices Act

Prosecutions could possibly be brought in foreign courts (for example, under the US Foreign Corrupt Practices Act or the United Kingdom Bribery Act 2010) in relation to land transactions for corruption, money laundering, tax evasion, or conspiracy to commit a criminal act abroad.

For a detailed treatment of this theme, see: Extraterritorial Jurisdiction: lessons for the business and human rights sphere from six regulatory areas (pdf) Jennifer Zerk, 2010, 222 p.[link?]

Prosecutions may result in a conviction and criminal sanctions but criminal investigations may also be effective in finding out facts and information which is not available publicly.

6

When disputed land is acquired "legally"

Sometimes, land is acquired in a way that is, or is said to be, lawful under local law (legal term: “doctrine of eminent domain”). You may be able to challenge the acquisition by:

  • checking permits and licences for validity: checking if conditions for a grant set out in legislation or regulations have been complied with. For example, is the land in question protected? Have obligatory economic impact assessments on new projects been carried out? Has any required consultation with local people been conducted? (See: Amparo action against an oil project license): right of indigenous peoples to participate through consultations in decisions that may affect them. Constitutional Court of Colombia).
  • looking for “soft law” agreements or covenants entered into by a person who has taken the land
  • checking out the possibilities of local judicial review by local government departments or ministries
  • going to international or regional courts, or foreign courts
7

Gathering evidence in land disputes

You need accurate evidence about locations and boundaries of the land involved in your litigation.

Gather evidence such as mapping, photos, Googlemaps, drawings and plans. It is important that the maps describe not only the physical features of the land, but also document the land use.

In case of lack of proof of title or rights:

  • gather history of occupation of the land. Get statements, pictures, interviews recorded on telephones
  • go back as far into the history of the land as is possible
  • record not only who occupied the land but who used it, for what purpose, whether this was ever opposed, how the persons concerned came to occupy it and all relevant details.
8

Publicity and media strategy in land disputes

a) Evictions and threats

If you are unlawfully evicted from land or are threatened, it is important that you notify as many relevant people as possible with as much detail and evidence (film, photographs, and recordings ) as is available.

Inform a wide range of people about your cause: local authorities or police, representatives of the person or company responsible or of its parent company, directors, shareholders or insurers, the press, campaigning groups of NGOs and others.

  • This approach serves a number of purposes:
    Publicity in itself may stop the action against you and/or attract support from a wider constituency
  • Parent companies cannot subsequently deny knowledge of actions by their subsidiaries *
  • The supporters you have involved may help stop the unlawful action*
  • See further discussion of publicity in: “Thinking strategically” in Public Interest Litigation: your questions answered. *

For an illustration of pre-emptive tactics against land seizure, read about Greenpeace’s “Airplot” campaign. (They bought a plot of land slap in the middle of the proposed site of Heathrow’s third runway – to prevent its construction).

 

b) Protest and resistance: know your rights

What to do if in danger of arrest or assault:

If safe to do so, ask or ascertain the names of police or security personnel involved in actions, and the basis for your arrest or detention.
If it is safe, try and obtain film and/or sound recordings of any arrest or of any actions by security forces which appear to be irregular or unlawful (such as damaging property or making threats).
Take films, recordings and photographs of any protest action.
Use platforms such as Ushahidi.com to upload your information

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