Competition over Authority and Access: International Land Deals in Madagascar

Competition over Authority and Access: InternationalLand Deals in Madagascar

Perrine Burnod, Mathilde Gingembre and Rivo AndrianirinaRatsialonana

ABSTRACT

Despite the well-publicized abandonment of Daewoo Logistics’ giganticagricultural project, large-scale land appropriations continue in Madagascar.Drawing on three case studies, this article analyses how relations betweenentities governing land access shape, and are shaped by, agribusiness-relatedland deals. State representatives and local elites generally welcome agribusi-ness investments but find themselves competing over the corresponding ben-efits and over land management more generally. In a context of legal plu-ralism, competition occurs between state officials, between state and localactors and also within the local arena. Both state and local elites may seekto reassert their authority by imposing new constraints on investors’ accessto land. Within the state, officials draw on different legal provisions to im-pose new procedures on investors but rarely enforce the 2005 land laws thatrecognize local rights and decentralize land management. Within the localarena, some local leaders seize upon investors’ land claims to extend theirterritory at the expense of other communities, awakening or exacerbatinglocal land conflicts. As a consequence, investors struggle to obtain land-userights, whether legally formalized by state institutions or socially recognizedby local entities, while the future of local land rights also remains uncertain.

INTRODUCTION

In November 2008, the Financial Times broke the story that secret negoti-ations were taking place between the Malagasy government and the SouthKorean company, Daewoo Logistics, to produce palm oil and corn for exporton 1.3 million hectares (ha) of populated areas (Blas, 2008). In December2008, just one month after the publication of the story, a political crisiserupted in the capital. Led by Andry Rajoelina, opponents of the Raval-omanana regime used the Daewoo case, among other scandals, as an il-lustration of the ways in which the President was stripping the country ofits national resources and usurping Malagasy ancestral lands (Gingembre

The authors wish to thank Ruth Hall, Wendy Wolford, Sara Keene and the anonymous refereesfor their valuable comments on an earlier version of this article.

Development and Change 44(2): 357–379. DOI: 10.1111/dech.12015C© 2013 International Institute of Social Studies.Published by Blackwell Publishing, 9600 Garsington Road, Oxford OX4 2DQ, UK and350 Main St., Malden, MA 02148, USA

358 P. Burnod, M. Gingembre and R. Andrianirina Ratsialonana

et al., 2010; Teyssier et al., 2010). The opposition successfully mobilizedthe masses and, with the help of some sections of the army, toppled theRavalomanana regime in March 2009 (Randrianja, 2012). Although Dae-woo’s project was abandoned soon after these events, other agribusinessprojects of lesser scope are ongoing (Andrianirina Ratsialonana et al., 2011)and new ones are currently being planned.

Large-scale land transfers, whether lease or purchase, often underminelocal land access and property rights (Cotula et al., 2009; Deiningeret al., 2011). In Madagascar, a new land policy was recently implementedto protect local land rights: laws of 2005 and 2006 challenged state owner-ship of a large part of the country’s land, legally recognizing individual andcollective land rights and decentralizing land management responsibilitiesto local governments (Teyssier et al., 2009).1 Despite this new legislation,large tracts of land are still offered for lease to investors, violating the rightsof local landholders.

Analysing the effects of land deals on local land rights requires an ex-amination of how investors access land and what institutions mediate landaccess. According to Ribot and Peluso (2003: 153–4), access to land or nat-ural resources relies on three processes: ‘gaining access’ as the ‘process bywhich access is established’; ‘controlling access’ as ‘the ability to mediateothers’ access’; and ‘maintaining access’ as requiring ‘the expending of re-sources or powers to keep a particular sort of resource access open’. Statesoften play a central role in all three levels of land access negotiations, inexchange for direct or potential economic advantages (Cotula et al., 2009;Deininger et al., 2011). However, the state is also in competition with localactors and institutions over land access. Indeed, in Madagascar, land accessis based on a combination of state laws and local practices and, as such, iscontrolled by various state and non-state institutions (Aubert et al., 2008;Le Roy et al., 2006; Muttenzer, 2010; Omrane, 2008; Ottino, 1998). Socialactors and politico-legal institutions (state or other) thus interact in negotia-tions over land access on two critical levels (Le Meur, 2006; Lund, 2002): (i)competition over land use and property rights; and (ii) struggles to assert thelegitimacy of their control over land access, and thus their capacity to defineand enforce the rules of the game. It follows that, in order to analyse large-scale acquisitions, one must examine not only the ‘bundle of rights’ overland but also the correlated ‘bundle of powers’ (Ribot and Peluso, 2003),i.e. the formal and informal powers exercised by different actors involvedin land management. The analysis of this bundle of powers can contributeto an understanding of the way land is controlled at different scales.

1. Law 2005-019 of 17 October 2005 classifies land as state-owned or private and delineatesdifferent land tenure types. Law 2006-031 of 24 November 2006 allows for individuals andgroups to formalize their rights to untitled land by obtaining land certificates from local landregistry offices.

International Land Deals in Madagascar 359

This article analyses how land deals shape and are shaped by the actions ofindividuals and institutions governing land access in the Malagasy context.It addresses the following question: how does competition over authority —among politico-legal institutions and within the state — ease or hinderinvestors’ access to land, influence law enforcement, and make local land-holders react in order to maintain their sovereignty and their land rights?As the article will demonstrate, most investors engage in both formal andinformal procedures in order to gain access to land. Investors negotiate withstate institutions and with traditional chiefs or community leaders, thus em-bedding them in a web of conflicting practices of land governance. Staterepresentatives and local elites generally welcome agribusiness projects dueto potential rents and other benefits associated with international invest-ments, but they end up competing with each other for these benefits and,more generally, for control over land resources.

Within the state, officials often use agribusiness projects as a means torecentralize or monopolize formal land management. Their conflicting ef-forts to assert authority lead to the multiplication of administrative obstaclesfor investors, as each official insists on the set of legal provisions that islikely to reinforce his or her own power. In this context, the 2005 land lawswhich recognize local rights and decentralize land management are rarelydefended, since they do not serve the officials’ interests.

Competition over land access and management also takes place within thelocal arena. Some local elites seize upon the investors’ land claim to consoli-date or extend their territory while others feel threatened and therefore eitherseek to impose new constraints on investors’ access to land or resort to vio-lence. Tensions within local communities over land access and managementcan thus be exacerbated by large-scale land deals and may erupt into violentland conflicts. As a consequence, investors struggle to obtain land-use rights,either legally formalized by state institutions or socially recognized by localinstitutions.

The article begins with a presentation of the legal framework that enablesstate institutions to control land access and to regulate large-scale landdeals. Next, it deciphers how investors negotiate access in a context of legalpluralism and overlapping land rights, before turning to an analysis of howstate and non-state actors mediate land access and compete for this control.The final section examines how local landholders attempt to defend theirland rights and maintain control over land access. The study concludes witha discussion of the potential for land reform as a means to protect local rights.

The article is based on data from a wider research project involvingseventeen agribusiness projects (see Burnod et al., 2012 for more details) andextended case studies of six projects, three of which will be described here. Italso draws on approximately 200 in-depth interviews with employees frompublic institutions, regional or local governments and traditional authorities,private developers, local land users and other key informants. The interviewswere conducted between March 2010 and September 2011 by the authors of


this article in the framework of the Malagasy Land Observatory activities. Torespect the anonymity of our research informants, names have been changedand localities are intentionally imprecise.

SITUATION OF LEGAL AND INSTITUTIONAL PLURALISM

In Madagascar, agricultural investment projects and formal land accessagreements are governed by competing laws, institutions and practices. Incompliance with the World Bank’s recommendations to promote invest-ment and facilitate land access (Daniel and Mittal, 2010), the Ravalomananaregime (2002–2009) created a ‘one-stop shop’ for investors in 2006 — theEconomic Development Board of Madagascar (EDBM). It also enacted aninvestment law in 2008 which gave authority to the EDBM to deliver ‘autho-rizations of land acquisition’ for foreigners (Law 2007–036 of 14 January2008). For agricultural investment in particular, the Ministry of Agricultureencouraged the regional governments to create ‘Agricultural InvestmentAreas’ (AIAs) to enhance planning and reduce red tape for investors.2 Inaddition, for all agricultural investments exceeding an area of 1,000 ha,the National Office for the Environment (ONE) — under an environmentaldecree3 — obliges investors to obtain an environmental permit to ensurethat negative impacts are minimized and mitigated, notably on issues oflivelihoods and previous land uses.

In addition to these investment laws, the Ravalomanana regime, withthe support of various international development agencies, launched a landreform that is still in effect today (Teyssier et al., 2009). Under Law 2005–19 of 2005, occupied but untitled land no longer belonged to the stateand was reclassified as ‘untitled private property’ (UPP). Occupied anduntitled land is thus no longer subject to the presumption of state propertybut to the presumption of private property. This change was accompaniedby the decentralization of land management. Under Law 2006–31 of 2006,local governments (municipalities) that equip themselves with a local landregistry office can legally recognize local/customary property rights on UPP,and can issue individual or collective land certificates. This means that twostate authorities can now manage land issues and legalize property: stateland services by delivering land titles, and local governments by issuingland certificates.4 As a consequence of this reform, the state land services

2. Although some of these zones have been identified, they have not yet been legally formalized.3. ‘Decree to Make Investments Compatible with the Environment’ (Decree MECIE, No

99–954 of December 15, 1999, modified by Decree No 2004–167).4. Land-rights holders can choose the means of formalizing their rights: title or certificate.

Both confer similar legal property rights, but certificates are a fraction of the cost of titles —US$ 10 instead of US$ 507 — and take an average of twelve months to obtain instead ofsix years. In August 2012, 445 Malagasy municipalities, or a quarter of the total number,had set up land registry offices. These delivered approximately 71,000 certificates in about


can only lease or sell to investors land that is titled in the name of the state,and untitled and unoccupied land. They can neither lease nor sell land thatincludes or encroaches upon titled private property (TPP) or upon occupiedland (UPP), whether or not formalized by a certificate. The land managedby the state land services has thus been drastically reduced.

While these new laws and bills provide a regulatory framework for large-scale land acquisitions and for the protection of local land rights, they in-crease the number of state institutions that claim control over land accessand generate competition among them: the government; the Ministry of De-velopment, Town and Country Planning (MDTCP) which is in charge ofland management and land services; the EDBM; the Ministry of Agricul-ture; the regional government; and the municipality through the local landoffice. These various laws and bills also create confusion in terms of proce-dures and authority and provide investors with multiple institutional routesto negotiate land access.

Naturally these state institutions do not operate in a vacuum but, to para-phrase Griffiths (1992), within a social field that is governed by laws, rulesand conventions of different origins. In addition to state institutions, a varietyof local/customary institutions (descendants of royal families, elders, villagechiefs, local elites) operate at the local level to legitimize, even formalize,different bundles of rights through social recognition or written documentsreferred to as petits papiers. These local institutions can also mediate landaccess (whether on state or non-state legal grounds) and influence investors’or outsiders’ land claims (Evers et al., 2011). Furthermore, state institutionsdo not necessarily enforce formal laws that protect local land rights, as wasmade clear by the Daewoo case. Indeed, initial negotiations between Daewooand the Ravalomanana government disregarded the presumption of untitledprivate property and were premised upon the illegal transfer of occupied landto the Korean company (Rochegude, 2011). The objective of the followingsections is to analyse the ‘social working of rules’ (Griffiths, 1992), or thepath from policy to practices (Colin et al., 2009) through an analysis of thethree processes of gaining, controlling and maintaining land access.

GAINING LAND ACCESS

In the last two decades, very large areas of land have been enclosed for high-profile conservation5 and mining ventures (Duffy, 2005; Sarrasin, 2003).In the agricultural sector, the focus of this research, there have been con-tinuous large-scale land transfers to foreign investors since colonial times

four years, while, over the same period, the state land services delivered an average of 1,500land titles per year (www.observatoire-foncier.mg).

5. In 2003, at a conference in Durban, the Malagasy government announced that the size ofthe protected area would be tripled from 1.7 million ha to 6 million ha.


(Desjeux, 1979). However, agricultural investments increased suddenly af-ter 2005 (Burnod et al., 2009; Gorgen et al., 2009): between 2005 and 2011,approximately seventy agribusiness projects covering more than 1,000 hawere listed as starting or ongoing (Andrianirina Ratsialonana et al., 2011;fieldwork data). An aggregate total of nearly 3,000,000 ha of land was tar-geted — the equivalent of the actual agricultural area cultivated by the2.5 million family farms in Madagascar (MAEP, 2005). Two-thirds ofthese investments did not materialize — including Daewoo’s huge, well-publicized agricultural project — largely due to the world financial crisisand the coup of March 2009, which initiated a protracted political crisisin Madagascar. Nevertheless, some fifteen companies are still active andnew ones are emerging. Although some agribusiness projects are orientedtowards food (corn, peanuts), the majority focus on biofuel production fordomestic and international markets, based on cane and above all on jatropha(Andrianirina Ratsialonana et al., 2011).

Contrary to the situation in many developing countries (Anseeuw et al.,2012; Deininger et al., 2011), agribusiness investors are not multination-als, sovereign funds or new land grabbers coming from Asia, but are mostlysmall- to medium-sized private European companies. They are almost exclu-sively foreigners, with little experience of the agricultural sector and, often,with no experience in Madagascar. Most agribusiness developers start withlimited seed money and hope to be funded by foreign investment, mostlyoriginating from Europe. Investors plan to develop large-scale plantations(from 5,000 to 100,000 ha) based on mechanization and on a wage system.Looking for unused land, most of them hope to acquire a fifty-year or aninety-nine-year lease from the state.

Formal and Informal Routes to Negotiating Land Access

The experiences of foreign investors who try to gain land access demon-strate the distance that exists between law and practices. In 2012, only twoinvestors had obtained a legal land lease from the state and yet almost allhad established plantations.

The majority of agricultural investors engaged in two parallel routes to ne-gotiate land access: one informal and the other formal. These choices did notappear to be anchored in forum shopping strategies (von Benda-Beckmann,1981), whereby actors select the institution they think will produce a resultfavourable to their position and support them in gaining approval from otherinstitutions. Rather, investors adopted the most convenient route with regardto their short-term objectives: obtaining a legal contract to convince theirfunders and/or starting plantations to attract new funding.

Very few of the companies studied initiated formal legal requests for landaccess upon arrival, unless their funders demanded it. The majority post-poned the legal procedures due to political instability in Madagascar and/or


a lack of funding. For example, in the biofuel sector in 2009, twenty-eightinvestments were planned, of which only eight had effectively initiated le-gal procedures. Nonetheless, twenty-three companies had started developingcrops on a few hundred hectares. In 2012, eleven of these were still ongoing.Although some investors had already been in Madagascar for as much asfive years, only two companies had obtained an environmental permit and alease contract with the state.6

In fact, nearly all investors prioritized local and informal negotiations toexpedite trial and show-case plantations in order to obtain the necessaryfunding to engage in large-scale projects. Hence they sought and obtainedagreements from local mayors or, in some cases, from regional governments.All of these agreements were made informally and were generally unknownto the central government and the central state land administration. Newinvestors are now trying to obtain lease contracts with private landownersor to employ Malagasy brokers to obtain land in their names (Clayton et al.,2011).

Land Deals in Madagascar: Three Case Studies

In a context characterized by a complex arrangement of overlapping landrights, neither formal nor informal routes seem to ensure the protection oflocal landholders’ rights or to grant tenure security for investors. The threecases that follow are illustrative.

Case 1: NewProd’s Formal Route to Negotiating Land Access

NewProd is a consortium of European and Malagasy investors. The consor-tium plans to buy 20,000 ha of land to develop food crops in the northernregion of Madagascar. NewProd identified a land tract, which we will la-bel the NP area, spreading over three neighbouring municipalities, each ofwhich had a local land registry office. This is a single tract of land, about 20km in length and 10 km wide, surrounded by eleven villages. The investorsobtained support from the main representative of the regional governmentinvolved in identifying AIAs, and initiated the legal procedure to accessland in 2008. At the express request of the state land services, they had toobtain various authorizations and comply with several steps in order to buythe targeted land and to verify that it was neither titled in the name of privatelandowners (TPP land) nor occupied (UPP land).

Backed by the regional government, the investors next sought the ap-proval of the mayors of the three municipalities. The mayors accepted the

6. In addition, two European companies and one Indian company had started procedures beforethe 2009 crisis to access 30,000 ha, 20,000 ha and 5,000 ha, respectively. In approximatelytwo years, they had managed to get close to finalizing a ninety-nine-year lease, but theyfinally withdrew their projects due to insufficient funding.


agribusiness project on the grounds that it would bring economic advantagesfor their area. The investors organized only one public presentation in themain affected village and invited regional state officials. They also consultedsix village leaders. According to our interviews, two leaders viewed the de-cision as coming from the state and concerning state-owned land and, assuch, as impossible to discuss in front of state officials. Aware that villagershave local/customary land rights on most of the NP area, several leadersmentioned the existence of crops and pastures (without realizing that the2005 law already protected their land rights). In response, the consortiumpledged not to use the cultivated land, to furnish fodder and alternative pas-tures and to deliver a list of material advantages, such as local access to jobs,wells and/or roads. All local leaders signed this agreement, including thethree mayors and the investors.

After securing local support for the agribusiness project, the investorshad the tract of land mapped by the land registry service. Triangulation ofsources during fieldwork revealed that these mapping procedures proved nobetter protector of legal property rights. Roughly 60 per cent of the NP areawas already titled in the name of the state; the state therefore has the rightto lease this part, on which occupants are legally considered as squatters.But 5 per cent of the NP area appeared to be already titled private property(TPP land) and another 35 per cent was categorized as UPP land, on whichlandholders’ rights are (or should be) legally secured even in the absenceof land certificates.7 It appeared that the documents used by the state landservices were not up-to-date8 or were not properly consulted. In addition,based on laws pertaining to forest management, about 70 per cent of the NParea is formally managed by seven legally-recognized users’ associations(VOIs).9 But these areas were not mapped on the documents of the landadministration. In these circumstances, neither investors nor state agentshad adequate knowledge of all the existing legal property and use rights.

The investors were then required to fund a field visit organized by thestate land service in order to check that the area was genuinely state-ownedland. This visit is supposed to bring together a commission comprisingthe government land service agent, a surveyor, representatives of the localtechnical services (agricultural, forest and environment, etc.), the mayors,the village leaders, the owners/users of the land and the neighbours. In thecase considered here, only three representatives of the local governmentsand six village leaders were present, alongside the land service agents andthe consortium staff. Neither representatives of the VOI associations nor

7. In the municipalities concerned, villagers have certified the housing plots and the crop plotsclose to the village where land pressure and tenure insecurity are higher.

8. Even though the case occurred in a region where state land services have been modernizedand archives digitized (and the corresponding software is seldom used).

9. In the beginning of the 2000s, the transfer of natural resource management from the stateto these VOIs was formalized through a contract signed by the mayor and the Ministry ofForestry.


the three agents of the local land registry office were invited to join. Thosewho were present approved the informal agreement, whereby the investorspromised not to use the cultivated land and to grant compensation, and theydid not register the existing land claims. The concluding statement was abrief and simple ‘nothing to declare’. Since no opposition was formalized,the targeted land was well on the way to being (re)defined as state-ownedland.

The investors should have had their file validated by the regional represen-tatives of the concerned ministries and ultimately validated by the MDTCP.However, one month after the commission’s field visit, the VOI associationsalerted the regional forestry administration to the situation. The representa-tive of the forestry service, who is a signatory to the VOIs’ natural resourcemanagement contract, blocked the process and required a revision of thedevelopers’ targeted area. This opposition generated tensions between theforestry services and the land services at the regional and central levels. Bothclaimed legal jurisdiction over the contested area based on forest manage-ment laws and land management laws, respectively. The forestry servicesdemanded new environmental assessment and a redrawing of the NP area. Atthe time of the research the problem had not been resolved and NewProd’sproject remained suspended. Moreover, due to the instruction recently issuedby the land administration, they are not allowed to buy land anymore.

Case 2: ITO’s Informal Route to Negotiating Land Access

ITO is a European company planning to develop 30,000 ha for jatropha-basedbiofuel production in northwest Madagascar. The land is located within onemunicipality, which does not have a land registry office. The investorsopted for local negotiations: they first approached the mayor, and were thenintroduced to the local leaders of the four villages closest to the targetedarea. These four villages were created in the 1940s by Betsileo farmers onland traditionally owned by the Sakalava, herders living in the neighbouringvillages10 (Medernach et al., 2012).

One Betsileo village leader, also the head of the fokontany (the smallestadministrative unit), accepted ITO’s project partly because of the pressure ofa large number of villagers, mostly small farmers. Villagers welcomed theproject: they hoped that the plantations would offer a natural barrier againstthe Sakalava’s cattle, which regularly damaged their crops. The villagers also

10. Betsileo and Sakalava are two socio-cultural groups of Madagascar. Bestileo historicalterritory is located in the central highlands, which is known for the complexity of its irrigationsystems and for its rice production. In the studied region, Betsileo farmers migrated to workinitially in the south, one of the largest areas of irrigated rice production. Sakalava territoryis located in the western part of the island, known for cattle breeding. Both Betsileo andSakalava farm land and breed cattle, but in different proportions (Medernach et al., 2012).Here, to reflect their distinctive historical experiences and modes of land use, we differentiatein broad outline between Betsileo farmers and Sakalava herders.


looked at the white investors as a potential ally against Sakalava leaders,whose power stems from autochthony claims (as descendants of the originalancestors), as well as wealth and the possession of firearms. Some villagerssaw ITO’s land claims as an opportunity to appropriate new lands. Theywere hoping that they could extend their crops in the lowland areas whichwould be unsuitable for jatropha but conducive to rice production. Moreover,the village leader accepted the conditions of the land deal without completeawareness of either the duration of the deal or the size of the targetedarea, as the developers themselves did not really know. The other villageleaders followed the example of the first, each thinking that his village’sland would not be affected and that villagers would benefit from anticipatedjob opportunities.

As a result of this local agreement, and without any legal authorization,the company developed its first plots (about 300 ha). However, the investorsgradually became aware of the various land rights and different Betsileo landclaims that existed. Having dealt mainly with the mayor, the company hadnot negotiated access for every plot, but had begun to farm some that werenot cultivated, but already claimed by local inhabitants. The landowners inquestion started claiming rent on their land. Acting as a broker, the mayorsought what he viewed as a compromise. He noticed that those landowners(or ‘so-called landowners’ as he called them) were not paying their land fees.He therefore suggested that, in exchange for use of the land, the investorswould pay the local landholders’ land fees, in their names. The mayor arguedthat local landowners would get the land back after the company’s departure,while the receipt certifying payment of land fees would grant them proof ofproperty rights. This deal carried no extra cost for the company, which hadalready paid land fees to the local government on the whole targeted area.The local landholders were not satisfied, but accepted the deal in the hopeof getting land rent in the future. Those informal negotiations masked theinvestors’ intentions of engaging in formal legal procedures which wouldresult in the titling of land in the name of the state and the denial of locallandholders’ rights — all to the investors’ advantage.

The Sakalava villagers and village heads, who considered themselves theancestral landowners, were not consulted by the private investors. Theywere located far from the affected tracts of land, but they used this land aspastures and thus claimed a right to the management of the area. Severalmonths after the expansion of the jatropha plantations on the pastures, anarmed gang stormed into one of the Betsileo villages, threatened the head ofthe fokontany with a gun, stole the administrative stamp, burnt his house andthose of his neighbours and killed some cows in the village. All the villagerssuspected the Sakalava village leaders of having organized the operation.Stealing the administrative stamp is arguably a means of contesting thepower of the head of the fokontany, burning his house effectively destroysall documents relating to land transactions, and killing rather than stealingthe cattle sends a threatening message to all the villagers. Some assumed


that it was a way for the Sakalava villagers to reassert their authority on theland and to strongly contest the Betsileo villagers’ decision to grant landaccess to the investors.

Case 3: N-fuel and LTB: Crossed Paths en route to Access to Land

When the European investors of N-fuel started thinking about developing a20,000 ha biofuel project in northern Madagascar in 2009, they establisheda partnership with a community of Capuchin friars. Knowing that in thisregion no local land registry office had been established. Their aim was tosecure land access by requesting a land lease from the state in the nameof the religious institution. Most of the field visits and negotiations werehandled by a retired land service official hired by the company. The head ofthe regional government, the mayor of the regional capital and the deputymayor of one of the affected municipalities were informed of the project andwelcomed it (knowing that in this region no local land registry office hadbeen established). Recruitment campaigns and the establishment of the initialplantations and infrastructure (community clinic, workers’ accommodationand warehouse) were carried out without any legal land lease.

LTB, a foreign company planning to develop 120,000 ha of oil crops,arrived in the region at roughly the same time and also began negotiationsto access land. The LTB investor approached the head of the regional gov-ernment (who advised him on where to invest), the mayors of the threemunicipalities concerned, the village leaders and a Sakalava princess —a well-respected and powerful customary authority who is responsible forauthorizing local projects.

In addition to local negotiations, both investors engaged in formal legalprocedures with the regional land services, which informed them that the tworequested areas partly overlapped. In the following months, the princess filedan opposition against N-fuel in a letter addressed to the regional governmentand to the MDTCP. She complained that, in contrast to LTB, N-fuel had notconsulted her. One local mayor, consulted by LTB but not by N-Fuel, alsocomplained on the local radio, arguing that N-fuel investors were disrespect-ful both of traditional customs and of his own authority as mayor. Indeed,he claimed that some of the targeted land belonged to his municipality andnot to the neighbouring one (consulted by N-Fuel) and that, therefore, hispopulation should have priority when it came to the jobs created by N-Fuel’sproject. In the meantime, the regional bishop sent a letter to regional stateofficials to support the N-Fuel/Capuchin-driven project. In the end, prioritywas given to N-Fuel by the central land administration on the grounds thatthey had started the formal procedure first.

The field commission organized by the land state services did not registerany claim on the targeted area and therefore registered it in the name of thestate. The area was some distance from the villages and was not cultivated,but was used as pasture. The central land administration drafted a land lease,


but demanded higher land rents than those initially announced. N-Fuel,having already spent its seed money and lost the support of its funders dueto the financial crisis and the protracted, costly land procedures, attemptedto renegotiate the land rent, but finally adjourned its project.

CONTROLLING LAND ACCESS

Central, regional and local governments as well as some local elites generallyoffer a warm welcome to investors. They assist them in gaining land accessin the hope of capturing material and symbolic resources associated withthe project. These officials and the land service agents sometimes delay theprocedure to negotiate bribes, but rarely seek to definitively stop the in-vesting company. In contrast, the diverse sets of people and intereststhat make up the local land users are rarely properly informed or con-sulted. The way the legal procedure is implemented thus encourages neitherthe identification of nor respect for local land rights, even those recog-nized by state laws. The case studies show that areas that are registeredand transferred to agribusiness investors may encroach upon: (i) occupiedland protected by the 2005 land law (UPP); (ii) areas where associations(VOIs) have legal land use rights and management competencies; and even(iii) private titled land.

New legal regulations are unlikely to guarantee the effective protection oflocal land rights (Borras and Franco, 2012; Vermeulen and Cotula, 2010).The lack of enforcement of land laws can partly be explained by technicaldifficulties resulting from the size of the targeted areas, but also by the factthat both land administration services and local land users ignore (more orless wilfully) these laws and still treat untitled land as stated-owned. Landlaws are not enforced because official holders of power have a greater interestin facilitating project developments and, sometimes, extracting unofficialrents.

Asserting Authority

A number of state and non-state actors (representatives of the regional gov-ernment, mayors, land service civil servants and village leaders) can claimauthority over land access on the same area of land. These state representa-tives and local elites, all attempting to direct resources to their territory andcapture rents, thus compete over the same resources. This implies that ‘ac-cess control’ is used not only for potential rent extraction (Lavigne Delville,1998), but also as a vehicle to reaffirm each institution’s rules and enhanceits visibility and influence (Sikor and Lund, 2009).

This competition over land control occurs within the state and, aboveall, between central government on the one hand, and regional and local


governments on the other hand. As a key figure in the regulation of interna-tional land deals, the central government reclaims its functions as ‘owner’and ‘manager’ by deciding who reaps the benefits of land deals and by facil-itating the ‘re-centralization’ of land management. In so doing, the centralstate acts as if the land was still state owned. In addition, it hinders a politicalprocess that was intended to promote the gradual decentralization of landmanagement, initiated by the 2005 land reforms. Despite its initial formalopposition to large-scale foreign land acquisitions, since 2009 the Rajoelinaregime has been a strong supporter of new economic partnerships. It canbe argued that the Daewoo case should be seen as political rhetoric aimedat destabilizing the former president, rather than an example of a genuineopposition to international land deals (Gingembre et al., 2010).

Nevertheless, the new regime, conscious of the attachment of theMalagasy population to their ancestors’ land, also implemented a new circu-laire designed to regulate the procedure for large-scale land acquisitions.11

One of the key elements of this circulaire is that investors need to obtainofficial approval from the central government before engaging in proceduresto access land.12 Circulaire 321–10 seeks to tighten control over the financialresources associated with land deals through: 1) obliging investors to leaseland instead of buying it, accompanied by an increase in official rents;13 2)forcing investors to pay state services to carry out new assessments; and 3)introducing new opportunities to ask for bribes, thanks to the multiplicationof procedures. But the main objective of this circulaire is to recentralizecontrol over land deals (Burnod et al., 2011). Our fieldwork showed thatbetween 2005 and 2010, local and regional officials were negotiating landdeals informally, without any kind of approval from the central government;this applied to more than thirty cases out of a total of fifty. Through this newcirculaire, central state officials reasserted their authority to investors and,above all, to regional and local officials. Former arrangements with local of-ficials were cancelled and all the investors who had begun legal proceduresbefore the circulaire was published were expected to restart the procedureand to gain approval from the central government.

The central government also reasserted its authority by imposing its choiceregarding land allocation. As the N-Fuel and LTB case illustrates, the centralstate may be competing with regional and local government, but it remainsthe ultimate mediator, adjudicator and power holder with regard to formalland access (Ribot and Peluso, 2003). The conflict between these two in-vestors resulted in the formation of two temporary coalitions: on one side,

11. Circulaire 321–10/MATD/SG/DGSF, Instructions concernant la procedure a suivre enmatiere de demande de terrain de grande superficie, 25 October 2011. A circulaire is aletter of instruction from the central government to the administration.

12. For projects entailing more than 250 ha, investors must obtain approval from a technicalcommission; for projects exceeding 2,500 ha, from the Council of Ministers.

13. Rents were multiplied ten-fold in the N-fuel case to 20,000 Ariary/ha (approximatelyUS$ 10/ha).


LTB was supported by a powerful customary leader (the princess) and alocal mayor while, on the other side, N-Fuel received support from the friarsand the bishop, as well as the retired civil servant allied with the regionalstate land service. Based on different arguments — including respect for theprocedure, corporatist relations, and financial advantages — the central landadministration decided in favour of N-fuel and overrode local concerns.

Large-scale land acquisitions have also fuelled tensions between regionaland local governments. Representatives of regional and local governmentsmay both consider themselves to be in control of land management andtherefore grant overlapping informal allocations to different investors: thishappened in the N-fuel/LTB case, but also in two other cases analysed inour research but not discussed in this article. Given the uncertain and/or con-tradictory status of land tenure and property rights, estimates of the amountof land available to investors (as determined by officials and experts14)may be overstated. In the N-Fuel versus LTB case, the dispute was partlycaused by the absence of a clear delineation of the municipalities’ terri-tories. Each investor obtained informal approval to access land, but fromdifferent mayors. Once this conflict of interests was publicized, the twomayors confronted each other to reassert their power over their respectivemunicipalities.

Within the central government, different services also compete forauthority and control over land. One state service may oppose an-other or may compete with a partly state-controlled institution. TheMDTCP (the ministry in charge of land management) contested therole of EDBM (the office for promoting investments) in providing as-sistance to foreign investors with the land procedure and in grantingthem authorizations to access land (a sort of temporary land title). In2009, the MDTCP delayed the first and only authorization given bythe EDBM in the tourism sector. In 2010, through Circulaire 321–10,the MDTCP supplanted the EDBM and regained the function of leadingthe council of ministries or the inter-ministerial commission in grantinginvestors official approval to prospect for land.

Similarly, the NewProd case demonstrates that competition can exist be-tween land and forestry services. The forestry services, not directly in-volved with the land procedure but alerted by local associations, opposedNewProd’s land claims and demanded a new environmental assessment anda new delineation of the NP area. In this case, the state agency was strivingto reassert its authority by defending the interests of the local forest usersand by imposing new constraints on investors’ access to land.

14. Although both methodologies and definitions are open to question, there are large discrep-ancies in the estimates of cultivable land produced by the FAO and the Malagasy Ministryof Agriculture. FAO (faostat.fao.org data from 2009) puts the figure at about 3 million ha;the Ministry of Agriculture (MAEP, 2005) at 8 million ha.


In addition to state institutions, other power holders intervened to mediateland access (such as the princess and the bishop in the N-fuel/ LTB case).When authorizations had not been requested from all interested parties, thoseactors who had been ‘forgotten’ opposed investors’ access to land in orderto reassert their authority. In the N-fuel versus LTB case, the princess seizedupon customary rules to oppose N-Fuel and, above all, to legitimize her ownrole in mediating land access. She was not opposed to foreign agribusinessinvestments as such (she supported LTB), but she wanted to be involved inthe decision-making process, not only to secure potential rents, but also toassert her identity, her socio-political weight and control over her territory.

‘Administrative Selection’

Competition over ‘access control’ hinders investors’ access to land andtends to increase legal and procedural costs. Investors attracted by low landrents had not properly assessed all the transactions costs associated withland access (multiple appointments with different local, regional and centralstate institution and services, legal costs to obtain the formal documenta-tion, funding of all state agents’ fieldwork, bribery, and even restarting theprocedure due to new legislation such as Circulaire 321–10). Adding to thefunding problems that investors may already have been facing, these costsand obstacles have contributed to the abandonment of some projects. In thisway, administrative procedures effectively exclude the less capital-endowedinvestors and favour those with stronger networks and larger financial re-sources. This informal, administrative selection process is based on criteriathat may have nothing to do with criteria of sustainable investments.

MAINTAINING LAND ACCESS

Agribusiness Projects as Development Projects

External interventions in developing countries often take the paradigmaticform of a ‘development project’ (Bierschenk et al., 2000; Le Meur andHochet, 2010; Mosse, 2005). For the mayors that we interviewed (in the casesof NewProd, ITO and N-Fuel, as well as two other cases not discussed here),agribusiness projects are indeed seen as similar to development projects.The mayors perceived outside investments as a means of compensating forthe deficiencies of the welfare state; they expected investors to contributeto the development of the area and they hoped to benefit from the creationof jobs, the improvement of roads and the construction of wells, schools orhealth centres. In some cases (such as ITO and N-fuel), investors establishedsocial infrastructure (school, wells) even before starting their plantations. Asone mayor involved in the ITO project explained:


Why are we giving our land to the ITO project? The Malagasy state doesn’t even look at ourvillage, whereas we have lots of concrete advantages thanks to ITO. It pays land fees and thatstrongly increases the budget of my local government. Several times I asked the Minister:we need schools, we need hospitals. But they haven’t done it. But on the contrary, ITO did alot. They built a school, they are paying for a teacher, and there are already 30 pupils. Theyalso support a local association. (Interview, March 2011)

Agribusiness projects also represent a crucial opportunity for munici-palities to increase their meagre annual budgets (between US$ 5,000 andUS$ 12,000 on average). In the ITO case, the payment of US$ 1 per hectareon 5,000 ha has contributed to a 150 per cent rise in the municipality’sbudget.

Acting like brokers (Bierschenk et al., 2000; Mosse, 2005), the inter-viewed mayors assumed a mediator role between the investors’ teams andthe local population. They organized consultations with the village leadersand land users. They often claimed a genuine will to enhance the well-beingof the local society as a whole, even if, in reality, they had a clear politicalagenda. In the ITO case, for instance, the mayor considered the pasturesinvolved to be less valuable than the agribusiness project: ‘I know that thisland is pasture but I’d rather have 5,000 jobs for all the people than 5,000cows for a few rich cattle breeders’ (interview, March 2011). Some mayorssought compromises between the investors and the different interest groupsthrough compensation mechanisms such as the payment of land rents and theprovision of wells and fodder in exchange for land use (the cases of ITO andNewProd). However, mayors did not necessarily improve communicationbetween the developers and the local population and rarely gave the latterdetails about the area concerned and its exact location. This restricted dis-semination of information and the promises of material advantages help toexplain why local communities initially welcome agribusiness investments(for a presentation of other factors, see Evers et al., 2011) — although thispositive attitude is often only temporary.

Violently Contesting Land Access

As exemplified by the NewProd and N-Fuel cases, legal procedures to for-malize investors’ land access can negate local land rights, despite the factthat those rights are supposedly protected by the 2005 land laws. Even ifinvestors withdraw their projects and do not evict local inhabitants, thelegal registration of the land in the name of the state turns former (legal)landowners and would-be certificate holders into squatters. In addition, legalprocedures to formalize investors’ land access change the locus of decisionmaking so that it is no longer premised on local rules but on state laws (Everset al., 2011). Local land users then have to bring their claims to state insti-tutions. In only one case (NewProd) did landholders file a complaint. Thelocal users’ associations in charge of forestry resource management (VOIs)


were able to do this effectively as a result of their collective organization,the contract legalizing their use and management rights, as well as theirclose connections with the forestry services. But the VOIs’ opposition to theinvestors turned into a confrontation between land and forestry services inwhich the VOIs eventually lost the opportunity to voice their opinions. Inall the other case studies, lack of information, money and relevant networksto engage in legal procedures, as well as a lack of confidence in the state,discouraged most landholders from filing a formal complaint. Some localland users are likely to believe that the only way to defend their rights is toresort to violence against the investors (burning plantations) or against theinstitutions/groups who have granted access to the investor.

In the ITO case, the extension of plantations generated tensions betweenthe investor and local groups and exacerbated divisions between Betsileo andSakalava communities. The Betsileo village that welcomed the company washoping that the jatropha plantations could offer a natural protection againstthe Sakalava’s cattle and could re-draw territorial boundaries (thus usurpingSakalava land); the Sakalava attack was a way to reassert their authority overthe land and to forcefully contest the Betsileo villagers’ decision to lease theland to investors.

Tensions and conflicts reveal dynamics of changes in rules and positionsin land arenas (Chauveau and Mathieu, 1998; Roberts, 1994). The ITO caseillustrates that some of the local authorities who control land access canbe ‘invisible’ in the eyes of the investors and neglected or intentionallybypassed by state institutions. Conflicts are then a mode of contesting accessto resources and of reasserting control over land access (Le Meur, 2006).To paraphrase Hirschman (1970): if stakeholders cannot make their protestsheard (voice option), they can act and burn down the plantations (exit option).In the absence of perceived alternatives, violence and the threat of violencecan indeed represent effective ways of controlling or maintaining land access(Ribot and Peluso, 2003).

Violent acts can be understood not only as manifestations of social cleav-ages and diverging interests, but also as modes of communication (Le Meur,2006). In the ITO case, the violent attack was not directly targeted at theinvestor, who could call upon the police or channels of justice to protect hisinterests. The violent attack was targeted at the Betsileo people as a way tocontest their claims to property but also as a way to urge the investor to dealwith the Sakalava.

Maintaining Land Insecurity

Investors who struggle to obtain legal land-use rights due to tensions be-tween state institutions, also struggle to obtain socially recognized land-userights from local institutions. Pre-existing tensions and conflicts are partic-ularly exacerbated by land deals. Such tensions should serve as a warning


to investors: even if they succeed in obtaining formal land leases, investorsmay encounter difficulties maintaining their access to land in the future.Property is only property if sanctioned by socially legitimate institutions(Lund, 2002). As stated by a herder quoted in Medernach et al. (2012:10),‘official documents protect neither against crop destruction by cattle, noragainst fire’. In a context of competing forms and practices of land gov-ernance, investors’ use rights sanctioned by law and state institutions areinsufficient to stabilize property relations and confer secure land rights.Investors negotiate land access with local leaders but also seek to imposetheir rights; they begin producing before they have legal and local landrights, in order to increase their authority and assert their power. As physicalfencing is costly and inefficient on such large tracts of land, they may alsohave to resort to force (armed security staff) to maintain those rights.

CONCLUSION

Efforts among private investors to gain access to land highlights how andby whom authority is acquired and exercised. Some state officials and localleaders are active in promoting and facilitating international land deals,but they often become embroiled in competition over resources associatedwith those investments and over land management. Competition takes placebetween state representatives, between state and local power holders andwithin local communities. Despite their initial support to investors’ effortsto access land, state and local elites generally strive to impose new constraintson them as a way to reassert their authority.

State representatives draw on different legal provisions to impose newadministrative procedures on investors. Fuelled by international land deals,this encourages the drafting of new regulations and a reconfiguration ofpower distribution, and contributes to the process of state formation. Butcompetition within the sphere of the state has not promoted the enforcementof the country’s 2005 laws which should protect the smallholders throughthe decentralization of land management and the legal recognition of lo-cal rights. On the contrary, competition over control of land resources hasencouraged a recentralization of land management.

Despite the 2005 land laws, most state representatives claim that untitledland is un-owned land and that the state is, by default, its legal owner. Re-producing pre-colonial and colonial practices, state representatives apply theprinciple of presumption of kingdom/state ownership (Alden-Wily, 2012;Teyssier et al., 2010). Like their predecessors (the Merina kings, the Frenchcolonial institutions and the previous Malagasy governments), state repre-sentatives formalize new enclosures for powerful actors — from foreigncorporations to environmental NGOs (Corson, 2011; Desjeux, 1979) — anddeny the legal rights of local inhabitants and communities. Claiming landas state owned provides the state — and more specifically the central state


located in the central highlands — with an opportunity to consolidate itsauthority over land management, extract rent from remote areas and assertpower over local state and non-state institutions. As current laws are poorlyenforced, additional laws or codes of conduct are unlikely to lead to betterregulation of investors’ land access.

There are more effective ways for smallholders’ rights to be protectedand safeguards to be enforced, including better dissemination of informa-tion and political and social mobilization. It is essential to enhance thelevel of information made available to all stakeholders, from the investors(sometimes lost in the profusion of advice received from brokers), to theaffected local populations who are often the last (and the least) informed. Ina context of competing/conflicting interests and struggles for power amongststate representatives, local leaders and international investors, informationis a strategic resource. One of the roles of civil society, including NGOs,experts, observers, researchers and the media, is to diffuse information onland-related investments.

The real challenge is to give local communities sufficient informationon the investment project, to include them in debates over land access andto inform them of their legal rights and the options that are open to them(Vermeulen and Cotula, 2010). Local populations are often geographicallyand politically distanced from the centres of decision making and discon-nected from social organizations and movements (networks or NGOs).Moreover, local communities themselves are comprised of diverse socio-political structures and interests that may conflict and/or compete in deci-sions over land access. As illustrated in the three Malagasy cases presentedhere, the intervention of investors in the local arena can trigger competitionover ‘access control’ and activate or exacerbate local (land) tensions. Despitethe difficulty of the endeavour, negotiations over land access should aim toinclude representatives of all the parties involved and, at the very least, mustinclude local leaders as well as state officials and international investors.Above all, negotiations require time; they need to unfold in various arenasin order to allow for the gradual and widespread diffusion of informationand the organization of debates, and to give stakeholders the opportunity toseek support from other agencies (legal advice, NGOs, expert reports, etc.)where necessary.

While it is important for land reform to be strengthened, the objective isnot to promote a mandatory and systematic formalization of individual orcollective property rights. The objective is to insist on the actual recognitionof local rights and on the decentralization of land management, as definedin the 2005 land laws, in order to protect the rights of local populations and,above all, to ensure the recognition of their power over land access. Local in-stitutions, such as the local land registry offices which have already been setup in more than 400 municipalities, can be used to give information to stake-holders on the legal tools available to them and to mediate in local dialogueswith state institutions and non-state/customary institutions and actors.


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Perrine Burnod is an economist at CIRAD, a French Research Insti-tute on Agriculture and Rural Development (CIRAD, UMR TETIS, F-34398 Montpellier, France; www.cirad.fr, e-mail [email protected])and is associated with the Malagasy Land Observatory (Observatoire duFoncier, 101 Antananarivo, Madagascar). She specializes in large-scaleland acquisitions and land reform issues, with particular emphasis onMadagascar.

Mathilde Gingembre is a PhD candidate at the Institute of DevelopmentStudies in Brighton (Institute of Development Studies, University of Sussex,Brighton, UK; e-mail [email protected]). She is working on land dealnegotiations in the context of agribusiness investments in Madagascar witha specific focus on local dynamics of power, representation(s) and landrights.

Rivo Andrianirina Ratsialonana is a land tenure specialist andDirector of the Land Observatory in Madagascar (Observatoire du


Foncier, 101 Antananarivo, Madagascar; www.observatoire-foncier.mg,e-mail [email protected]), an organization whichproduces knowledge and analysis to help design land policies inMadagascar.

Competition over Authority and Access: International Land Deals in Madagascar

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