Land Question

[Bradley Zweig]

Apro-market land reform programme was launched with the enactment of the Land Code in 1992. Its approval by the Verkhovna Rada (the Ukrainian parliament) enabled the partition and privatization of land within agro-based enterprises. The initial stage of the reform invovled the privatisation of formerly state-owned farms (sovgosp). A second step included transferring land to agricultural enterprises, where it was collectively owned. Land was delivered on the condition that it might be divided at the demand of the enterprise shareholders and, if necessary, allocated as private property.

However, as of January 2019, the moratorium still stands, having been prolonged ten times. The moratorium has been extended for a number of different reasons or pretexts. Before it could be repealed a state land cadastre needed to be established then digitized, a state land bank needed to be created, and legislation on land transactions and the transfer or land rights needed to be drafted, approved, and passed into law. These processes have taken longer than expected, and, as of the time of writing, no new draft law has yet been presented.

Beyond these procedural points, there are other risks related to the future of farming livelihoods and the development of healthy agrarian structures in Ukraine, particularly in the context of highly unequal power relations. As land leases have become the main way of conducting business in the countryside, lease agreements are subject to significant competitive pressures, for example through agroholdings (large-scale farming enterprises with at least ten thousand hectares of land under management) who compete with small independent farmers on the rental market. Agroholdings can afford higher rental rates which, in a growing rental market with rising prices, gives them significant advantage. As a result, farmers may lose part or all of their land, forcing them to give up farming and seek alternative employment elsewhere. Corporate competition can also be fierce, as larger firms vie to acquire a weaker company or take a part of its land.

Various actors are staking out different positions with respect to the lifting or prolongation of the moratorium, while some parties avoid expressing a particular opinion. For example, some agroholdings avoid being clear and direct in their advocacy, presumably in order to avoid frightening the tens of thousands of smallholders from whom they lease land who may worry that the agroholdings would then come out to sweepingly buy up their lands if the moratorium were lifted.

Strikingly, for 18 years, smallholders and other individual land owners have not united under the umbrella of a similar memorandum. Why? After talking with dozens of people in Ivano-Frankivsk region, Vinnytsia region, and Cherkasy region, the author has made the surprising discovery that the locals are not even aware of the moratorium on the sale of agricultural land. The community members interviewed were convinced that sales are in fact taking place, through emphyteusis or gift contracts.

While the future of the moratorium remains contested, it is likely that it will be repealed in the future. It has not fulfilled its role in preventing land concentration as initially expected and it may have even enabled further concentration as companies do not need to officially own land to gain control over it The European Court of Human Rights has also found that the moratorium violates private property rights.

As a point of departure, international best practices in land tenure such as the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (hereinafter VGGT) should be taken into consideration.

As Ukraine moves forward to consider its future land policy, the debate should not simply be restricted to the lifting or extension of the moratorium. It would be advisable for the government, in drafting the new policy, to examine the conditions which led to the concentration of control under the current regime. In particular, the land policy should take steps to address the constraints which have kept people from cultivating their own land, the pressures which them to sell long-term leases on their land, and what strategies and policies could be put in place to allow people to develop sustainable livelihoods on their land, from seed funding for young farmers, to infrastructural development to allow small-scale producers better access to markets.

The form of cancellation of the moratorium and any future land policy depends on the political will of the future government, formed as a result of the new electoral cycle in 2019. It will also depend on the degree of public involvement in the drafting of a land market bill. We have witnessed the ineffectiveness of the ban on land sales. That is why the approach to regulating land transactions in the future must be more responsible. Land is a vital resource and part of the ecosystem which seriously affects the development of society, especially in rural areas where people are still inextricably linked to the land and its multiple values.

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The Land Question, as it pertains to the history of Prince Edward Island, now in Canada, related to the question of the system of ownership of land on the island. Proprietors, the owners of the land parcels on Prince Edward Island, favoured a system of renting to tenants, but the tenants preferred a system of freehold. In 1767, the British government divided all land in Prince Edward Island into lots to be owned by proprietors, who would collect rent from the settlers, or tenants. Problems soon arose with this scheme, and the low numbers of tenants resulted in proprietors collecting little rent, which in turn led to many proprietors defaulting on their quitrents. An attempt at compulsorily acquiring the land by the Prince Edward Island government from rent defaulters in 1781 resulted in Colonial Office intervention in 1783. In 1786, Governor Walter Patterson, who had set in motion the compulsory acquisition, was removed from office.

In 1797, the Escheat Movement was born with the goal of convincing the Crown to acquire land from the proprietors and sell it back to the tenants. In 1803, members of the movement won in the General Assembly of Prince Edward Island, but their attempts to set in motion the escheat scheme were blocked by the British government. In the following years, a number of General Assemblies attempted to acquire land from the proprietors but were repeatedly blocked by the British government. Following an unsuccessful attempt at civil disobedience in 1864 to 1865, the proprietors gradually pulled out of the real estate market and sold their land piece-by-piece back to the local governments of the island for sale to the occupants of their land. In 1873, Prince Edward Island joined the Canadian Confederation on the condition that the system be scrapped, which ended the Land Question in the province.

In 1763, the Treaty of Paris resulted in the transfer of Prince Edward Island from France to the United Kingdom. In 1767, a system of land ownership was established in which the island was divided into 67 lots of about 20,000 acres (81 km2) each, with settlers living on parcels of the land rented out by the proprietors, the owners of the lots of land. Ownership of the lots of land was determined by a lottery held in London, the winners of which were mostly political, business, and military figures with connections to those in the British government. In 1769, under pressure from the proprietors, who worried that a Nova Scotia legislature would force them to give up their property rights, the British government granted autonomy to Prince Edward Island.[1]

Almost immediately after the establishment of the new system, conflict arose. The American Revolutionary War drove potential settlers away from Prince Edward Island. That caused two problems. It made it difficult for proprietors to fulfill an obligation attached to their grants, to settle one person per 200 acres (81 ha) within ten years of the system's commencement. It also meant that the proprietors were not being paid much rent, as there were not many tenants to pay it. That meant that the proprietors were unable or at least not willing to pay the required quitrent to the Crown. Conflict also arose between the tenants and the proprietors. As the lottery for Prince Edward Island land was held in London, and most of the proprietors were important figures from the United Kingdom, most of the proprietors did not actually live in British North America. That meant that many neglected their obligations to the settlers.[1]

In 1774, the government of Prince Edward Island passed the Quit Rent Act 1774 to force the proprietors to pay their dues to maintain civil infrastructure on the island. However, many proprietors continued to simply not pay their quitrent. In 1781, the government, led by Governor Walter Patterson, compulsorily acquired approximately half of the island using a process known as escheat.[2] The same year, the government held a public auction to sell off the land that had been compulsorily acquired. However, following a concerted effort by the proprietors to get the Colonial Office to reverse the action, the Crown overturned the sales conducted at the auction in 1783. The proprietors requested for Governor Patterson to be removed from his office, and the Colonial Office did so in 1786.[3]

In 1797, the Escheat Movement was born. Under the scheme proposed by the movement, land would be forfeited to the Crown should proprietors default on their quitrents, and tenants would be given the option of either purchasing part of the forfeited land or leasing it from the Crown. Members of the movement won a large majority in the General Assembly of Prince Edward Island in 1802, and in 1803, a law to implement escheat was passed by the legislature. However, the government of the United Kingdom would not abandon its principle of supporting property rights and refused to grant the bill royal assent.[3]

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