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TerraNullius: What Rights? Comparing developing countries’ national legislation on community forest tenure rights
by Fernanda Almeida
Fernanda Almeida is the lead author of RRI’s “What Rights?” report and works as an international legal consultant on comparative legal, regulatory and policy research and analysis.
Indigenous Peoples and forest communities have long-established customary land rights to a large proportion of the world’s forests. The recognition of these rights by governments and international law and jurisprudence, has proven to be one of the few success stories in the wake of the Rio Earth Summit in 1992. Where these rights are recognized, Indigenous Peoples and other communities are not only able to enjoy their most fundamental human rights, but also to develop themselves sustainably.
For example, in the case of Amazonian traditional populations in the Extractive Reserve of Marajoí (Brazil), the açaí palm had virtually disappeared due to previous over-harvesting caused, at least in part, by unclear tenure. Once land tenure issues were resolved, traditional populations invested their resources in managing the açai area as a way to bring back wildlife, fish, and the açai palm itself. As a result, biodiversity was restored and the population had secured its means of subsistence.
In spite of the importance of such rights to the promotion of a sustainable development agenda, very little was known about the extent to which governments around the world had recognized them and how. The What Rights report by the Rights and Resources Initiative begins to fill this gap. It analyzes national laws that relate to the forest tenure rights of indigenous peoples and communities in 27 developing countries, home to 2.2 billion rural people, that collectively contain about 75 percent of the forested land in all developing countries.
The report used the “bundle of rights” typology to guide analysis and identify particular regional and global patterns in the recognition and allocation of rights. This typology, in which the bundle of rights comprise access, withdrawal, management, exclusion, and alienation, was popularized in common-property scholarship by Schlager and Ostrom. The What Rights? report take the bundle two steps further to incorporate new temporal and resilience-related dimensions of rights. These rights are evaluated in terms of whether the law guarantees communities due process and compensation if the state revokes or extinguishes those rights. The right to due process and compensation is referred to in this study as extinguishability and all the rights combined are referred to as the extended bundle.
The data needed for this study was collected through a literature review and an analysis of approximately 170 laws and other legal documents. Subsequently, about 90 contributors with national expertise verified the preliminary results, helping to ensure that the dataset was as complete as possible at the time of publication, and that analyses were based on the most up-to-date laws and regulations.
Some context and caveats should be noted when reviewing these data. They apply to statutory tenure systems and are derived from legally binding national-level legislation only. They do not provide an analysis of the wider set of instruments that provide or recognize forest communities’ and individuals’ rights. The report also does not endorse the argument that all rights emanate from the state and the notion that recognizing the entire bundle of rights is always the optimal outcome for all community tenure regimes.
The report found that in the last 20 years, indigenous peoples and communities have quietly gained unprecedented legal rights to forest land and resources owned under customary law. However, there are major gaps in application – due to a lack of political will and bureaucratic obstacles – as well as a predominance of circumscribed and contingent rights regimes.
The study identifies a total of 59 regimes in the selected countries that recognize or allocate forest tenure rights to indigenous peoples and communities. Of these, 25 are in Latin America, 17 are in Asia, and 17 are in Africa. These regimes involve many different institutional arrangements for recognition, such as land titles, management conventions, concessions, and written permission to inhabit and/or participate in the management of environmental conservation areas.
Eighty-six percent (51 out of 59) of the tenure regimes in this study have been established since the 1992 Earth Summit in Rio de Janeiro. Fourteen of the regimes were designed explicitly to recognize rights held by indigenous peoples, while the rest targeted other forest communities such as Afro-descendent communities inLatin America, as well as settlers and peasant communities. Although indigenous peoples’ and other forest communities’ rights are now more recognized than ever before, the study finds that the vast majority of the identified tenure regimes restrict community rights by not recognizing one or more of the rights within the extended bundle of rights.
A bare majority of the regimes in this study—54 percent (or 32 out of 59)—guarantee the combined rights of access, commercial exploitation and forest resource management, contingent on compliance with management plans or licensing requirements. Thirty-six percent (21 of 59) do not recognize the right of indigenous peoples and communities to exclude others from their forest lands. In 58 percent (34 of 59) of the surveyed regimes, rights are granted to communities for an unlimited period, and in 68 percent (40 of 59) the law provides due process and compensation if the state extinguishes rights. Sixty-six percent (39 of 59) forbid the alienation (through lease, use as collateral, or sale) of community lands or the rights to them.
Although many rights are now recognized in law at the national level, numerous challenges must be surmounted if these rights are to be realized in practice. Data on the area of forest under each regime show the limits of implementation, which often result from bureaucratic obstacles and weak or waning political will.
Latin America has the highest percentage of regimes that guarantee the rights of access, commercial exploitation, and forest resource management. It is also the region in which more rights are constitutionally guaranteed for an unlimited period and where the greatest number of the regimes cannot be extinguished unless governments follow the due process of law and provide adequate compensation. Asia has a mixed record, and Africa lags behind.
Since 2000, many African countries have approved laws recognizing the rights of communities to forest resources. However, six of the 17 surveyed regimes established by national laws in the region cannot be implemented due to a lack of supplementing regulations needed to clearly define the rights of communities and the processes by which those rights can be recognized in practice.
Implications and Recommendations
The findings in this report have major implications for governments, communities, indigenous peoples, and international actors. Many of the rights analyzed in this study are limited in scope, duration, and completeness, which can hamstring inititatives aimed at development, climate justice and legality. Even when rights are recognized by law, indigenous peoples and local communities, as well as their governments, require support to exercise them. Moreover, the type of rights recognized by international law frequently remain missing from national law. Efforts to assess lack of compliance and means of redress can be undertaken using the findings of this analysis.
Considering the mounting threats to forests, people, development and the climate that weak land rights pose, the global development agenda must include redoubled efforts to secure the tenure rights of indigenous peoples and forest communities. Doing so will require a clear understanding of both the rights on paper and how they are implemented. It will also require innovative approaches to mobilize political support, financing and technical assistance. As Andy White highlights in the preface to the report:
Forests cover about 30 percent of the planet’s surface and store some 80 percent of all terrestrial carbon, as well as provide the food, water, and wildlife essential for the survival of billions. The fact that the ownership of the majority of this globally strategic resource remains contested is in no one’s best interest. It puts the future of all humanity at risk. We hope that this report helps raise the level of action to address this climate, development and humanitarian crisis.
I would like to conclude by inviting TerraNullius readers to review the full report and provide us with comments on the methods, data, potentially overlooked regimes or laws.
Geraque , Eduardo, 2012. “Case Study of Brazil’s forest tenure reform, 1992-2012.” Background Paper. Rights and Resource Initiative.
 The developing world is defined as countries classified as low-income, lower-middle-income and upper-middle-income countries by the World Bank. The total forest area of the 27 countries presented here is 1.66 billion hectares, while the total forest area for developing countries is 2.25 billion hectares (Russia is excluded from these calculations because its coverage of forest area has statistically distorting effects). FAO. 2011. Global forest resources assessment 2010. FAO Forestry Paper 163.Rome: FAO.
For typology, see: Schlager, Edella, and Elinor Ostrom. 1992. “Property-rights regimes and natural resources: A conceptual analysis”. Land Economics. 68 (3): 249–62 and Barry, Deborah and Ruth Meinzen-Dick, 2008. “The Invisible Map: Community tenure rights.” Food Policy. 1-27.
Posted By Madiha Qureshi at 4:18pm on June 11, 2012
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