Mapping and registration
Local mapping and registration initiatives represent another mode of formalisation. These can include mapping rights holders and resource uses, registering land transactions, and maintaining land registers to track land tenure changes (Meinzen-Dick 2009).
This approach allows non-state or local institutions to act as the primary authority allocating resource rights. Advocates often conceive of mapping as a tool to counter the problem of land grabbing (i.e., as a way of giving informal, socially embedded, or customary property systems a firmer legal and bureaucratic status) (e.g., Dwyer 2015, 907). In Indonesia, AMAN (Alliance of Indigenous Communities Indonesia or Aliansa Masyarakat Adat Indonesia) promotes this approach to recognising indigenous peoples' rights (see below).‘Informalists' have argued for a combination of customary (or ‘less formal') and state systems (a type of ‘third way') as an alternative to titling individual rights. They envisage landholders potentially leveraging the state's coercive power—for example, through the judiciary—to enforce rights holders' land tenure regimes against counter-claimants, by using land registries and community land maps. In this way, advocates seek to harmonise the group's land tenure regime with the state's administered regime for outsider investors, providing some legal certainty for those marginalised under the existing state arrangements.
All of these formalisation projects highlight the tensions between the logic of customary systems of vernacular land tenure and the marketbased system's economic imperatives. They could all lead to what we term ‘adverse formalisation,' a term we extend from the concept of ‘adverse possession.' ‘Adverse possession' refers to the legal rule that, after a certain (statutory) period, an unauthorised occupier of a land parcel acquires the land title through their continuous possession, to the exclusion of the original owner.
Adverse formalisation occurs where rights formalisation (through a license or concession) extinguishes preexisting rights, leading to the smallholder exclusion or their inclusion in land-based production systems on adverse terms. ‘Adverse formalisation' is typically a process whereby land claimed by the state without previous demarcation (land typically possessed by local landholders) is formalised during the process of license- or concession-making. This type of state land formalisation is “pursued selectively and strategically” to the exclusion of other possible formalisations that might protect community property rights (Dwyer 2015, 915).However, mapping and certification processes can also lead to adverse formalisation. For instance, mapping processes can also formalise rights in ways that exclude those previously using the land or those with some claim over it. The concern is that these groups, whose presence is deemed illegitimate according to criteria of social justice or ethnic belonging, may be excluded (Hall, Hirsch, and Li, 22). Similarly, normal certification processes can be exclusionary. For instance, certification in swidden areas may involve transforming insecure and contestable tenurial arrangements under community control into state-managed private property arrangements. This process can provide local elites with an opportunity to claim individual ownership of customary land or allow for land to be sold off to corporate investors (Li 2014).
‘Adverse formalisation' may begin with a change in the de jure property rights established by a license and then extend from this act of legal expropriation to actual dispossession, changing occupation and land use on the ground (cf. Filer et al. 2017). The formalisation of rights (such as through a license or concession) extinguishes pre-existing rights, leading to the exclusion of smallholders from their livelihoods or their inclusion into the new land-based production systems on adverse terms. New forms of land-based production may involve inferior forms of labour relations, turning peasants into poorly paid plantation labourers or tenant farmers, with little control over their inputs or product. Contrary to the visions of ‘trickle down' development, large-scale land acquisition for enterprises that need local land, but not labour—such as mines and plantations or mechanised agriculture—can increase rather than alleviate poverty (Li 2011).