The following article was published in the November 2025 issue of the International Review of Contemporary Law, the journal of the IADL, focusing on climate and social justice.
Common Land and the Environment
João Carlos Gralheiro
Abstract
The present article provides a detailed legal framework of the Portuguese Common Land regime, the centuries-old organization model of ‘Baldios‘. This specific type of communal property – neither Private or Public – has faced different economic, political and legal challenges over the centuries, having earned special recognition following the Portuguese 1974 Revolution, and recently with the Law 75/2017, of august 17th. Nowadays, the specific link of Baldios with environmental issues and capitalist appetites make these communal property regime of special importance and inspiration to Comparative Law.
- Legal framework
The highest point of [the Portuguese] legal system is the Constitution of the Portuguese Republic, under which not only laws must be legislated but also interpreted and applied.
Thus, in relation to baldios [common land], the existence of community property is expressly recognized in our Grundnorm, in Article 82, no. 4, point b): “The cooperative and social sector specifically includes the community means of production, owned and managed by local communities.” The protection of the maintenance of this type of production property is enshrined in Article 288, point f), which stipulates: “constitutional revision laws must respect the coexistence of the public sector, private sector, and cooperative and social sector ownership of means of production.”
Regarding the environment, its defense, promotion, and conservation, we have Article 9, point d), which imposes, as a fundamental task of the State, the obligation to ‘promote the well-being and quality of life of the people (…), as well as the realization of environmental rights (…)’; e): “(…) defend nature and the environment, preserve natural resources, and ensure proper land use planning”; as well as Article 66, no. 1, which states that ‘everyone has the right to a human, healthy, and ecologically balanced living environment and the duty to defend it’, with the State being responsible under no. 2: ‘to prevent and control pollution and its effects and harmful forms of erosion’ (point a)); ‘to plan and promote land use planning, (…)’ (point b)); ‘to create and develop natural reserves and parks, as well as classify and protect landscapes and sites to ensure nature conservation (…)’ (point c)); ‘to promote the rational use of natural resources, safeguarding their renewal capacity and ecological stability, respecting the principle of intergenerational solidarity’ (point d)); ‘to promote, (…) the environmental quality of settlements and urban life, (…)’ (point e)); ‘to promote the integration of environmental objectives into various sectoral policies’ (point f)); ‘to promote environmental education and respect for environmental values’ (point g)); ‘to ensure that fiscal policy aligns development with environmental protection and quality of life’ (point h)). Additionally, Article 64, no. 2, point b) states that ‘the right to health protection is realized by creating environmental conditions that guarantee, specifically, the protection of childhood, youth, and old age (…).’
Under the “umbrella” of this legal-constitutional framework, the ordinary legislator has published an intricate and complex normative framework, of which the following stand out:
- Regarding the baldios, Law 75/2017, of August 17 (Law on Baldios: LB);
- Concerning the environment, Law 19/2014, of April 14, with the current wording (Environmental Policy Framework Law: LBPA).
Common land, in accordance with the provisions of the LB, refers to areas of the national territory that, because they are ‘owned and managed by local communities’ (Article 2, point a)), constitute, ‘as a rule, the common land of the co-owners, namely for purposes of grazing livestock, collecting firewood and brushwood, crops, hunting, electricity production, and all their current and future economic potential, under the law and local customs and practices’ (Article 3, no. 1). Furthermore, depending on a decision by the assembly of compartes [“co-managers”], they may also ‘constitute a logradouro [“common space”] for cultural and social purposes of interest to the population of the area of residence’ (no. 2). Article 6, no. 1 stipulates that ‘local communities can acquire real property by any legally recognized means, which can be integrated into the subset of community assets’; no. 3 states that ‘common land is outside legal trade and cannot, in whole or in part, be appropriated by third parties in any form or title, including adverse possession [usucapio],’ and it is ‘not subject to seizure or lien, nor can it be mortgaged or encumbered, except for the constitution of servitudes under general legal terms (…)’ (no. 2). ‘Acts or legal transactions of appropriation or seizure by third parties, involving common land, as well as its subsequent transfer,’ are considered ‘null under general legal terms, except in cases expressly provided for in this law” (no. 4), and those that are not ‘are, under the law, voidable at any time’ (no. 5). According to Article 7, the holders of common land are its compartes [co-managers] (no. 1), with the co-managers’ universe being ‘integrated by citizens’ (‘natural persons’: Article 2, point b)) ‘residing in the area where the corresponding properties are located, respecting the uses and customs recognized by the local community, and the assembly of compartes [co-managers] may also grant this status to non-resident citizens’ (no 2), provided they are ‘owners, under any title, of agricultural and forestry areas and engage in agricultural, forestry, or pastoral activities, or have social and ancestral ties to the local community, and adhere to the local customs and practices’ (no. 5). The compartes [co-managers], ‘for the exercise of acts of representation, disposition, management, and supervision related to the corresponding properties,’ ‘organize themselves in an assembly of compartes [co-managers], as well as in a board of directors and a supervisory committee, elected by the assembly and with the powers provided for in this law” (Article 17, no. 1).
Referring to the LBPA [Environmental Policy Framework Law], it is worth noting the provisions of Article 5, no. 1: ‘Everyone has the right to a healthy environment and quality of life, as established constitutionally and internationally,’ with Article 2, no. 1 stating the ‘objectives of environmental policy’: ‘Environmental policy aims to realize environmental rights through the promotion of sustainable development, supported by proper environmental management, particularly of ecosystems and natural resources, contributing to the development of a low-carbon society and a ‘green economy,’ rational and efficient in the use of natural resources, ensuring the well-being and progressive improvement of citizens’ quality of life.’
Articles 3 and 4 add the ‘material principles of the environment’ and the principles of public environmental policies,’ respectively. Article 3: ‘Public action on environmental matters is subject to, among others, the following principles: a) Sustainable development, which requires meeting the needs of the present without compromising those of future generations; b) Intra- and intergenerational responsibility; c) Prevention and precaution; d) Polluter-pays principle; e) User-pays principle; f) Responsibility; g) Restoration.’ Article 4: ‘Public environmental policies are also subject to, among others, the following principles: a) Cross-cutting and integration; b) International cooperation; c) Knowledge and science; d) Environmental education; e) Information and participation.’
Additionally, Articles 10 and 11 address the ‘natural environmental components’ and the ‘components related to human behaviors,’ respectively. Article 10: ‘Environmental policy addresses natural environmental components such as air, water, sea, biodiversity, soil, and subsoil, landscapes, and recognizes and values the importance of natural resources and the goods and services of ecosystems.’ Article 11: ‘Environmental policy also addresses components related to human behavior, including climate change, waste, noise, and chemical products.’
Due to their relevance to the topic under analysis, the following decrees are also noteworthy: Decrees of 24/12/1901, 24/12/1903, and 11/07/1905, which established the Forest Regime, and Law 1971, of 15/07/1938, which subjected baldios to that Regime. Moreover, in its current wording, the following regulations are also relevant: DL 175/88, of 17/05 (Regulating fast-growing forest species planting); Law-Decree 327/90, of 22/10 (Regulating the occupation of land affected by forest fires); Law 33/96, of 17/08 (Framework Law on Forest Policy); Law-Decree 127/2005, of 05/08 (Establishing the regime for creating Forest Intervention Zones and the principles governing their establishment, functioning, and dissolution); Law-Decree 124/2006, of 28/06 (Establishing measures and actions to be developed within the National Forest Fire Defense System); Law 58/2007, of 04/09 (Approving the National Territorial Planning Policy Program); Law Decree 166/2008, of 22/08 (Legal Regime of the National Ecological Reserve); Law Decree 16/2009, of 14/01 (Legal Regime of Forest Management, Planning, and Intervention Plans); Law Decree 73/2009, of 31/03 (Legal Regime of the National Agricultural Reserve); Law Decree 96/2013, of 19/07 (Legal Regime for afforestation and reforestation actions with forest species on mainland Portugal); Law 31/2014, of 30/05 (Framework Law on Public Land, Territorial Planning, and Urbanism); Law-Decree 80/2015, of 14/05 (Legal Regime of Territorial Management Instruments); and Law Decree 82/2021, of 13/10 (Defining the Integrated Management System for Rural Fires on the Mainland).
- The Baldios
Having made this overview of the normative framework, let us now address the relationship between Baldios and the Environment.
Talking about Baldios requires us to begin by historically framing this type of property.1
Thus, we might not be far from the truth if we assert that the origin of community property is to be found in the mists of time, as a moment of property assertion in the lives of settled peoples. It is from it that private property was concretized: in land that belonged to everyone, as everyone could use it, some built houses for themselves and their families.
With the creation and complexity of family and social relations and the appearance of organizational structures that would give rise to the emergence and evolution of cities and the State, up to the present day, the issue of land ownership became the subject of various typologies, from the original community property to the subsequent private and, later, public ownership.
In this historical evolution, private and public property gradually occupied the space of communal property, from which the communities that used and enjoyed it were dispossessed.
Thus, with the construction of settlements, from small villages to large cities, the land began to be occupied with buildings, streets, and other public spaces, lands designated for agricultural, forestry, or silvopastoral exploitation, and other private or public purposes. The territorial space that was not occupied, because it was located outside the limits of such territorial occupation, typically (but not exclusively) in mountain areas, remained available for local communities to continue using and enjoying it communally.
In the emancipatory struggles of the people, these spaces for communal use and enjoyment became indispensable, as they allowed the emergence and strengthening of family economies that helped the people (the ‘common folk,’ in the words of Fernão Lopes) in their liberation from the feudal yoke, since it was there that they would gather stones to build the walls of their homes and livestock pens; wood to construct those homes and pens; brushwood to create the ‘bedding’ for livestock and later use as fertilizer (manure) during planting; it was there that they grazed their cattle, collected firewood to heat their homes and prepare food, and used roots to make charcoal for various purposes, both domestic and industrial.
In this communal use, there was, as it were, an ‘invisible hand’ that regulated the needs of the local communities versus the potentialities that nature offered, allowing for the existence of an environmental/ecological balance: what the local communities took from communal property was compatible with its natural regeneration capacity, especially given the low land occupancy rates and the vast extent of this type of property (for example, in Portugal, in 1911, there were around 6,000,000 inhabitants – see the 5th General Census of Population – and 3.822.000 hectares of baldio.2
The ‘appetite’ of the state powers for communal property has always been great. As Aristotle put it: ‘What is common to all is what is most neglected,’3 or as Alexandro Herculano stated: ‘The existence of municipal baldios and common pastures is one of the greatest obstacles to the progress of agriculture”;4 Garrett Hardin: ‘Freedom in a baldio leads to ruin for all.’5 Therefore, the struggle of the people to preserve communal property has always been a constant.6
With the Industrial Revolution and the need for wood to fuel machines and/or trains – a product that was abundant in areas designated for communal use and enjoyment – this ‘appetite’ became ‘voracious.’
Moreover, at the dawn of the 20th century, the systemic crisis of capitalism led to the First World War, with all the consequences that followed for the people, particularly with regard to fuel rationing.
The demand for firewood, arising from these circumstances, caused the forests in the mountain areas (where the land was in the possession of local communities) to be ‘devoured,’ to the point where these mountains became partially bare of trees (‘bald’), a situation that generated various environmental problems: without trees, the soils lost the structures that held them together, which would cause landslides during heavy rains, and these lands would be carried into the beds of watercourses, silting them and causing floods.
It is within this complex situational framework that the dictatorial Estado Novo [New State] regime imposed the Forest Regime, arguing that it was necessary to end this state of affairs, which, if allowed to persist, would cause even climatic changes.
Thus, after the publication of the Economic Reconstruction Law (Law 1914, of 24/05/1935), based on which the Forest Settlement Law (Law 1971, of 15/06/1938) was approved, which in turn established the application of the Forest Settlement Plan (from 1939 to 1968),7 the Forest Services ‘entered’ the mountains, particularly those in the north and center of Portugal, swarming them with intensive and continuous planting of resinous trees (pine), and initially prohibiting, and later supervising, the access of the commoners to their baldios.
‘It is generally known how important baldios are to the people of some regions. It is observed that the existence of vast common land areas coincides with the predominance of small agricultural holdings. It is noted that of the 44 municipalities where the common land area exceeds 10% of the total area, in 10, the average area of rustic properties (excluding common land) is less than 0,2 hectares; in 14, it is between 0,2 and 0,3 hectares; in 11, it is between 0,3 and 0,4 hectares; in 5, it is between 0,4 and 0,5 hectares, and only in 4 municipalities does it exceed half a hectare (numbers from 1949). It is clear how indispensable baldios are for maintaining small farmers.’8
Since it was from these lands that the mountain dwellers derived their main subsistence income for their families, being dispossessed/expropriated from them, they were deprived of this source of income and had to sell their flocks at a loss, losing their natural fertilizers, and therefore abandoning their agricultural holdings. To face the hunger that began to spread through their homes, they were forced to emigrate.
‘Emigrating is the most significant decision in the life of a small farmer. It means breaking with everything that is dear to them: the land they cultivated, the region where they were born, and their family. Such a decision is only made ‘after having fought fiercely for economic independence’9 and when the situation becomes unsustainable.’ ‘Although there are multiple causes that contribute to emigration, one fundamental cause stands out in Portuguese emigration: it is the defeat of small-scale agriculture, its ruin, its decomposition, and the proletarianization of the small farmer.’10
The mountains became full of pines, it is true, but no less true is that they became empty of people and their livestock, as the brushwood stopped being cut and ceased to serve as food for the animals, allowing it to grow unchecked.
As a consequence of this forced human and animal depopulation, the territorial occupation mosaic underwent profound and structural changes. What had once been a mosaic composed of vast areas of small private properties — both agricultural and silvicultural land — associated with more or less extensive areas of baldios, also used for silvopastoral purposes, was replaced by continuous expanses of pine and brushland, abandoned and without any form of use or management.
III. ‘The man with the red beard’
Fire, as a natural or even human phenomenon (used as a method for pasture renewal), has always existed (and will continue to exist). In the time of that first territorial mosaic, it is possible that fires were even more frequent than they are today, but, with few exceptions (as the fire that occurred in Sernada do Vouga in the 1960s), the scale of rural fires (in terms of burnt area, days of fire, and their consequences) was smaller than today’s.
In fact, whether of natural or human origin (negligent or even deliberate: either as a protest by the locals against the Forest Regime in earlier times, or as the work of terrorist hands, particularly against the democratic regime born in April 1974), after about 30 to 40 years of growth of the pine trees planted under the Forest Services’ orders, and the brush that had grown on these lands, the “man with the red beard” (an interesting image of fire that was given to me by a witness in a case where I was the lawyer), did what he knows how to do in an increasingly hot and dry climate: he destroyed hectares and hectares of land, taking everything in his path—pine forests, sowing lands, houses, warehouses, agricultural machinery, industrial pavilions, animal lives, and, worst of all, human lives.
Hectares of pine forests were destroyed, and in their place, we began to see our mountains filled with eucalyptus trees,11 naturally in areas where it is financially profitable. Eucalyptus trees, alien species: after the implementation of the forest plan was completed, the expansion of eucalyptus began, marking a strategic shift in forestry policy, now less focused on protection and production in public communal areas, and more committed to increasing wood resources for the industrial sector.12 When it’s not eucalyptus, due to the abandonment of land management, the territory is taken over by brush and/or invasive plants.
And ‘the man with the red beard’ has been growing stronger year after year, thus becoming more destructive.
Regarding this, I cannot fail to mention the reflections of Jaime Gralheiro and Paulo Varela Gomes.13 The former, in his speech during the centennial celebration of the Forest Regime in December 2001 in Coimbra, said: There is no doubt that the submission of much of the baldios to the Forest Regime brought enormous advantages to the country. However, it also brought great losses, such as the expulsion of livestock from the mountains and the consequent desertification of the mountainous interior. Furthermore, due to the irrational manner in which afforestation was carried out, it created all the conditions for the country to begin burning every summer. For this lack of foresight, I hold the Forest Services responsible, because one didn’t need great technical capacity to realize that if this afforestation continued in this manner, sooner or later, such fires would be inevitable.
The latter, in his column published in the Público newspaper on August 11, 2005, wrote: In Portugal, two types of territory burn: first, the timber forest, the large forested areas of pine and eucalyptus. The forest burns because temperatures keep rising and because, as everyone knows, it is dirty and poorly managed. It wasn’t always like this: this type of forest began to grow in the last 50 years, with the progressive destruction of traditional agriculture, that is, with the expropriation of small farmers, who were first forced to turn to the forest due to the ruin of agriculture, and then lost everything in the fires and disappeared from the social map of the country.
The horizontal spread of rural fires depends on the fuel available on the ground: fine material – grasses and other brush. Not long ago, in Portuguese television, landscape architect Henrique Pereira dos Santos stated that instead of fighting fires by drowning them (the technique of attacking fires through water discharge, particularly from aerial means), fires should be starved. What he meant by this was that forest cleaning holds the key to safeguarding its future. To achieve this goal, he argued that instead of fining those who don’t clean their land, financial support policies should be promoted for those who do.
In an aging and impoverished society, the stimulus must be positive, not negative.
In the recent fires in Portugal, in terms of trees, the fire burned everything in its path. In the Pine Forest of Leiria (2017), it was pines; in the Natural Park of Serra da Estrela (2022), it was resinous trees (pine) and deciduous trees; in the Natural Park of Montesinho and Vila Pouca de Aguiar, it was oak; in Sever do Vouga and Albergaria-a-Velha (2024), it was eucalyptus and blueberries; in S. Pedro do Sul, Castro Daire, and Viseu (2024), it was pines and eucalyptus.
Because we were talking about Natural Parks, I must mention what happened in the Natural Park of Serra da Estrela in 2022, where a local community, during the winter/spring period, and at the request of shepherds, tried to clean their baldios to renew the pastures for grazing. They were prevented from doing so by the park management, which fined them €12.000, arguing that this action went against the ‘dynamics of vegetation.’ We saw what happened: when summer came, the vegetation followed its natural dynamics, serving as fuel and spreading the fire that broke out there, destroying more than 22.000 hectares, and only being stopped in the area that had been cleaned by that community.
Those who are on the ground, who know it, are the local communities, and they are, therefore, the ones who will best know how to possess and manage their baldios. This communal possession and management were returned to them by Law-Decrees 39/76 and 40/76 of January 19 [1976] and have been maintained through all subsequent Laws on Baldios (Law 68/1993, of September 4; amended by Law 72/2014, of September 2; and Law 75/2017, of August 17). Therefore, the interference of national parks in the possession and management of baldios by the rightful owners constitutes a clear and direct violation of the Law on Baldios.
- Recent appetites
Recently, what has been observed is the occupation of part of the national baldio territory with reservoirs, wind farms, and photovoltaic parks. More recently, there has been pressure on local communities for the installation of mining operations (e.g., lithium mining).
Regarding this first type of occupation, it is usually preceded by the expropriation of the common land that will be submerged or used for dam activities. The remaining part may then be subject to special protective rules regarding the dams and reservoirs, which impose administrative servitudes, typically limiting the full and unrestricted exercise of the local communities’ right to the possession and management of their baldio.
As for the other types of occupation, they occur through the ‘exploitative cession’ figure regulated in Article 36 of Law 75/2017, of August 17.
As for the wind farms, aside from the visual impact they cause, the public is well aware of the issues they present in terms of the discomfort caused by the noise from the blades’ movement and the wind hitting them. The Lisbon Court of Appeals has already ruled on this issue, condemning a company operating one of these parks to stop the operation of one of the towers and to pay compensation to neighbors, as it was determined that the noise violated the personality rights of those affected.14
In regard to photovoltaic parks, the concerns relate to the impact on the landscape caused by the occupation of land with solar panels, along with the fact that productive land (agricultural and/or forestry) is transformed into unproductive land in this segment of primary activity. This could have repercussions not only in terms of the increasing loss of our food autonomy in such an uncertain time, but also in terms of carbon capture and sequestration: without agricultural activity in those territories, they won’t produce the food we need; and without agricultural or forestry activity in those areas, there won’t be vegetation or trees to capture the carbon polluting the atmosphere and return oxygen to us through photosynthesis.
As for mining operations, the issues revolve around the visual impacts they may cause if they are open-pit mines, and the maintenance and quality of aquifers that may exist underground in areas where these operations might be installed. These aquifers are vital not only for human and animal water consumption, but also for the irrigation of agricultural operations.
For each of these situations, they could represent violations of the Law on Baldios, especially when their implementation results in the obstruction of ‘[t]raditional uses by the landholders’ (Article 10, no. 1, point b)).
Since carbon capture and sequestration was mentioned, I must also highlight a new ‘niche’ of profitability now opening to local communities, through the exploitation of their baldios via silviculture: the planting or sowing of trees with high carbon-capturing capabilities.
To avoid repeating past mistakes and aiming for the construction of a resilient forest, particularly one resistant to fires in the context of climate change, it will be necessary to consider, in the land-use mosaics to be implemented, factors such as location, configuration, size, access, and clearances. It will need to be defined which areas will be seeded or planted with trees, and what species will be used, as well as those areas where no vegetation will exist.
This reflection concludes with a brief ‘provocative’ reference to another topic where Baldios and the Environment are elements of the equation: the sale, for a fee, of limited areas of baldio that border urban areas and are necessary for the expansion of their urban perimeter (Article 40 of the Law on Baldios), within the framework of the Community Land Trust15: the right to ownership of the baldio remains with the Local Community, while the surface rights (whether perpetual or temporary) of plots of this land can be transferred to private individuals (economically disadvantaged persons) so they can build their homes on it. These constructions would be associated with concepts such as ecologically sustainable housing and controlled costs/low costs. This new concept merits careful study and reflection by the local communities.
Note on translation: IRCL was responsible for translating and editing this article; some words in italics (e.g. baldios, compartes, logradouro), after being translated, were kept in Portuguese due to their specificity.
1 See João Carlos Gralheiro, Dos Baldios até à Lei 75/2017, de 17 de agosto, 2023, 3rd edition (Edições Esgotadas), p. 23-35.
2 Adriano J. Carvalho, O Regime Florestal em Serpins, Exposição Crítica, 1911 (Imprensa da Universidade de Coimbra).
3 Política, 1261b, 33-36, apud Fernando Araújo, A Tragédia dos Baldios e dos Anti-Baldios, 2008 (Almedina), p. 11.
4 Opúsculos, Breves Reflexões sobre alguns pontos de Economia Agrária, VII (Tavares, Cardoso & Irmãos, Editores).
5 A Tragáedia dos Comuns (Baldios), Science (13/12/1968), 162 (3859), p. 1243-1248.
6 See Aquilino Ribeiro, Quando os lobos uivam, 1958 (Bertrand Editora) p. 38: ‘the serra [mountain] has belonged to the serranos [mountaineers] since the world is a world, inherited from fathers to sons, whoever comes to take it away from us, with us will have to deal with’ (IRCL translation) .
7 António Bento Gonçalves, IV Simpósio Luso-Brasileiro de Cartografia Histórica (Oporto, November 9 to 12, 2011).
8 Álvaro Cunhal, A Questão Agrária em Portugal (Civilização Brasileira), p. 337-338.
9 Vladimir Ilyich Ulianov (Lenin), A questão agrária e os críticos de Marx, ch. VII.
10 Álvaro Cunhal, A Questão Agrária…, op. cit., p. 277 and 281.
11 The phenomenon of the ‘eucalyptisation’ of the country, before reaching the pine forests and scrubland targeted by rural fires, began, for example, in the Alentejo, with the conversion of bread lands (cereal crops) into eucalyptus plantations, as this became more profitable than the previous crop, which was progressively abandoned.
12 See Francisco Castro Rego e Yryna Skulska, in Florestas e Legislação: Que Futuro, 2019 (Instituto Jurídico, Faculdade de Direito da Universidade de Coimbra), p. 79.
13 See João Carlos Gralheiro, Regime Florestal vs Terrenos Baldios, Que Futuro?, 2022 (Edições Esgotadas), p. 61-62.
14 See judgement of 11/09/2012, delivered by magistrate Afonso Henrique, in Case no. 2209/08.0TBTVD.L1-1.
15 In English in the original text (N.T.).
João Carlos Gralheiro
Portuguese lawyer, working mainly with Private Law (on Property, Contracts, Family, Inherintance and Commercial Law). João Carlos Gralheiro has published about different legal topics, having become a specialist on the Portuguese regime of Common Land (‘Baldios’) and worked closely with BALADI (the Portuguese National Federation of Baldios). Among other titles, he is the author of Dos Baldios, até à Lei 75/2017, de 17 de agosto (2018).
All articles published in the International Review of Contemporary Law reflect only the position of their author and not the position of the journal, nor of the International Association of Democratic Lawyers.