Forest Tenure recounted

Across the globe, rights devolution processes have transferred rights to local people and communities. These reforms have been initiated by Indigenous Peoples’ demands for the recognition of their rights, governance decentralization processes and conservation interests. In addition, commercial community forestry activities and payment for environmental schemes (PES) require clear and secure tenure; commercial activities to ensure finance and collateral, and PES schemes to identify the responsible service providers.

Rights and Resources Initiative (RRI) estimates that as of 2013, Indigenous Peoples and local communities legally owned or controlled about 15.5 percent of the world’s forests, while governments claimed to control 73 percent of global forests [1]. Looking at low and middle income countries, the share of forest land under legal community control or ownership is twice the global average, at 30 percent. While the majority of tenure reforms have taken place in the low and middle income countries, governments still claim control of at least 61 percent of the developing world’s forests [2]. The progress of rights devolution has differed significantly across regions in terms of scope and pace of reforms. In Latin America, the progress has been most noteworthy, devolving both long-term community or group concessions and titling of Indigenous Peoples’ domains [3].  Brazil, in particular, has demonstrated significant progress, followed by Bolivia, Honduras, Colombia and Peru. The successful devolution of rights in Latin America has been linked to the strong presence of indigenous people’s movements as well as to the shorter duration of suppressive colonial power [4].

In Asia, countries have implemented diverse approaches to rights devolution, including recognizing more limited degrees of community control, such as co-management arrangements [5]. Majority of the forest area under legal community ownership or control is located in China and India, but also smaller countries such as Nepal and the Philippines, have had considerable success in devolving rights to communities [6]. Rights devolution in Africa, on the other hand, has remained stagnant, and governments still claim over 90 % of the forests. African countries that have implemented tenure reforms (e.g. Tanzania) have focused on long-term co-management agreements. Research on tenure reforms has found that reform processes are marked by policy reversals and corruption as well as slow titling processes in contested areas. The elites and more powerful actors have been able to influence and slow down reforms while capturing benefits for themselves.  The processes are also characterized by competing, contradicting interests among government actors and local communities, but also by conflicts with customary users and newly created formal rights holders. Conflicting laws and regulations that result in overlapping government jurisdiction and disputes, as well as outdated and inaccurate spatial maps, exacerbate the situation [7].

Forest tenure reforms also entails complex shifts in rights, responsibilities and relationships between different actors. The process of rights formalization is crucial, as it can either facilitate or discourage local community management. Compared to formalized tenure law and regulations that emanate from states, customary law often offers more flexibility, is better able to accommodate a broad spectrum of resource users, and is more dynamic and adaptive over time. At worst, the new legal system can undermine these customary practices and the local livelihoods that they enable, thus creating incentives for illegal and unsustainable practices [8]. In fact, excessive and cumbersome legal regulation is one of the biggest challenges for smallholders and community forestry for achieving formal recognition as well as rights to commercial exploitation of forest products [9].

Although some states do recognize customary laws and local norms during reform processes, in practice, customary tenure systems can be rigid, biased in favor of elites, discriminatory against women, and/or lacking in accountability mechanisms. If a society’s values and norms are underpinned by the avoidance of social discord [10] or patriarchy, individuals may be unwilling or unable to challenge decisions made by those in positions of authority, even when livelihoods suffer because of the resulting loss of access to land, or due to decreased incomes.

Increasingly, forests are considered an essential part of the wider agenda on sustainable development, and their role is highlighted by international initiatives, such as REDD+, the New York Declaration on Forests and EU’s Forest Law Enforcement, Governance and Trade (FLEGT) Action Plan. Sustainable Development Goal 15 highlights the need for sustainable forest management, as it calls to “protect, restore and promote sustainable use of terrestrial ecosystems, sustainably manage forests, combat desertification, and halt and reverse land degradation and halt biodiversity loss.” Furthermore, The Voluntary Guidelines on the Responsible Governance of Tenure, which set out principles, technical recommendations and practices for improving the governance of tenure of land, fisheries and forests, are gaining momentum at the country level. These guidelines have enabled increased political commitment, improved policies and legal frameworks and supported evidence-based decision making.

These initiatives contribute to the goal of reduced deforestation through different means such as strengthening incentives for forest protection, improving forest governance and supporting the restoration of degraded lands. For the success of these initiatives, clarifying forest tenure, enhancing the equity in property rights and inclusive participation in decision-making are crucial. These initiatives are likely to have different priorities regarding forest tenure, such as formalizing existing rights with legal title or excluding illegal loggers from supply chains.

For compensatory schemes such as REDD+, secure legal rights are crucial, especially if legal rights are a prerequisite for participation. In addition, the forests that REDD+ aims to protect can be claimed by external claimants such as the neighboring villagers, seasonal migrants and industrial enterprises of various kinds (e.g. soy in Brazil and oil palm in Indonesia) and enforceable rights form a legal basis for the exclusion of external claimants [20]. 

Other initiatives, such as FLEGT, highlight the need to tackle illegal logging in order to reduce deforestation. Due to the fundamental discrepancies between statutory and customary law, “illegal logger” can mean different things in state and customary law. If illegal logging is defined as “the harvesting of timber in contravention of the laws and regulations of the country” [21], informal customary tree harvesting and customary will also be sanctioned. For example, in the Democratic Republic of Congo and Cameroon, informal logging sector forms an important part of the timber markets. Informal logging is based on customary rules and commercial sales of logs are socially approved, but sanctioned by formal state law. Attempts to formalize the informal small scale logging have met resistance, both from corrupt government officials benefiting from informal trade as well as loggers for whom remaining within the informal sector is an easier and more feasible option compared to legalization. The problem is further exacerbated by poor law enforcement and lack of sanctions for noncompliance with the statutory law [22].

Forest and land tenure refers to the social relations and to the institutions governing access to and use of forest and land resources. These relations and institutions shape and form the rights and rules over the resource use, including who owns the resource, and who can use, manage and make decisions about the resource.

The term “property rights” is often used interchangeably with forest and land tenure. Property rights refer to the rights that individuals, groups and the state hold with respect to particular land, resources and other assets, and in relation to each other [30]. Property rights should not be regarded only in terms of ownership, but rather understood as overlapping “bundles” of rights, consisting of rights of access, rights to use products from the resource, rights to make management decisions, rights to exclude other users, and rights to sell or lease the land or the right itself [31].