COMMUNITY FOREST TENURE RIGHTS: MEASURING THE STATUTORY DISTRIBUTION OF THE BUNDLE OF RIGHTS. Methodology Fernanda Almeida 03/24/2011

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1 COMMUNITY FOREST TENURE RIGHTS: MEASURING THE STATUTORY DISTRIBUTION OF THE BUNDLE OF RIGHTS Methodology Fernanda Almeida 03/24/2011

2 Table of Content 1. Research Objectives 2. Theoretical Background 3. Phase I Methodology 1. Preliminary Findings 1. Phase II Next Steps 1. Further Challenges 2. Case Study

3 Research objective Going Beyond Recognitions of Rights: Mapping the distribution of the bundle of rights to forest resources held by communities and codified in laws and regulations.

4 Table of Content 1. Research Objectives 2. Theoretical Background 3. Phase I Methodology 1. Preliminary Findings 1. Phase II Next Steps 1. Further Challenges 2. Case Study

5 Theoretical Background - The Bundles of Rights Tenure rights to forest resources are conceived as a bundle of rights. These rights range from access and use rights to management, exclusion, and alienation rights. Right to obtain forest resources Right to enter a forest (timber and non-timber) resource Access Withdraw Management Right to regulate internal use patterns or transform the Right to decide who can and who can not use the resources Exclusion Alienation Right to sale, lease, or use of the land as collateral, including the sale of all other rights

6 Theoretical Background Mapping the rights The unit of analysis to measure the distribution of the bundle of rights is the community. Bundle of Rights Access Withdraw Management Exclusion Alienation State Community Individual Right Holder

7 Theoretical Background Research Papers Property-Rights Regimes and Natural Resources: A Conceptual Analysis Edella Schlager; Elinor Ostrom Land Economics, Vol. 68, No. 3. (Aug., 1992), pp The invisible map: community tenure rights. Deborah Barry; Ruth Meinzen-Dick, Paper presented at the 12 th Conference of the International Association for the Study of the Commons (IASC), Cheltenham, UK. Forests for people: Community rights and forest tenure reform. Ann M. Larson, Deborah Barry, Ganga Ram Dahal y Carol J. Pierce Colfer, Earthscan (2010). Londres.

8 Table of Content 1. Research Objectives 2. Theoretical Background 3. Phase I Methodology 1. Preliminary Findings 1. Phase II Next Steps 1. Further Challenges 2. Case Study

9 Phase I 70% of the World s Tropical Forest Mexico Venezuela China Colombia Peru Cameroon India Zambia Indonesia PNG Bolivia DRC Mozambique Australia Brazil 15 countries

10 Phase I Assumptions Tenure rights to forest resources are conceived as a bundle of rights. The unit of analysis to measure the distribution of the bundle of rights is the community. The data is based on legally binding regulations only. The data is based on national level legislation only. When more than one scenario exists, the data is based on the best-case scenario.

11 Phase I Research Questions 1. What are the statutory tenure regimes regulating the rights of communities to forest resources in each country? 1. Which communities are granted rights under these regimes? 2. Do communities have the right to access forest resources under the identified regimes?

12 Phase I Research Questions 4. Do communities have the right to use (withdraw) forest resources under the identified regimes? a. Are these rights limited to subsistence needs, or can the community also use the resources for commercial purposes? 4. Do communities have the right to manage these resources under the identified regimes? a. How is this right exercised? Are communities formally represented in the administrative bodies, or are communities the only entity responsible for managing the forest resources they have access to?

13 Phase I Research Questions 6. Do identified regimes give communities the right to exclude others from accessing or using forest resources? 6. Do identified regimes give communities the right to lease, sell, or use forest resources as collateral? 7. Are rights granted to communities by the state for a limited period of time, or for an unlimited period of time? 8. Can states extinguish any of these rights without complying with due process of law or compensating the community?

14 Phase I Grading of Rights For most data points: 0 = No 1 = Yes n/a = Not available For data on withdrawal right: 0 = No 1 = Partially to no (subsistence use right) 2 = Partially to yes (commercial use conditional to management plans and/or licenses) 3 = Yes; (conditional to environmental and other legislation limits) For data on management rights: 0 = No 1 = Partially (participation on the management board) 2 = Yes (within management plans, and limits of environmental and other legislation)

15 Table of Content 1. Research Objectives 2. Theoretical Background 3. Phase I Methodology Preliminary Findings 1. Phase II Next Steps 1. Further Challenges 2. Case Study

16 Preliminary Findings 36 tenure regimes Over 60 relevant legal documents identified and consulted

17 Preliminary Findings Global 92% of the tenure regimes allow communities to harvest timber for subsistence use, but 30% of those prohibit commercial logging. In 64% of the tenure regimes, communities must comply with management plans and/or licenses. Four of the 15 countries (all in Africa) provide no due process or compensation if the state appropriates the land. The range of tenure regimes studied in Latin America offers, on average, the fullest set of rights for Indigenous Peoples and local communities. Asia ranks the second strongest for community rights, followed by Africa.

18 Preliminary Findings India Example Country Tenure Regime Legal Basis Duration of Right India Scheduled Tribes and Other Traditional Forest Dwellers Land Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act no. 2 of 2007 Unlimited Legal Basis The Act does not mention a time period. Information confirmed with 2 local experts.

19 Preliminary Findings India Example Country Right holder Legal Basis Due Process Legal Basis India Forest dwelling Scheduled Tribes or other traditional forest dwellers on all forest lands, who occupied forest land before the 13th day of December, Act Section 3 and Section 4(3) Yes Circular F. No. 11-9/ FC from the Ministry of Environment obligates the State to consult with the Gram Sabha before making use of the state right of eminent domain that allows the state to acquire private and common property for public purposes.

20 Preliminary Findings India Example Country Access Legal Basis Withdrawal (NTFP) Legal Basis Withdrawal (Timber) Legal Basis India Yes The Act, Section 3(c),(k) Partially to yes - Commercial use conditional to management plans and/or licenses Forest Act Chapter 2, Section 3 (c) Subsidiary regulations require management plans. No The Forest Act confers rights only to minor forest produces or NTFP products.

21 Preliminary Findings India Example Country Management Legal Basis Exclusion Legal Basis India Yes Act Section 3. (i) and section 5. In this case, not only a right, but also an obligation. Yes Forest Act, Section 5(d)

22 Preliminary Findings India Example Country Alienation (lease) Legal Basis Alienation (Collateral) Legal Basis Alienation (Sales) Legal basis India No Forest Act section 4(4) No Forest Act section 4(4) No Forest Act section 4(4)

23 India - Scheduled Tribes and Other Traditional Forest Dwellers Land. Bundle of Rights Access Withdraw Management Exclusion Alienation Yes Yes, NTFP No, Timber Yes Yes No State Community Individual Forest dwelling Scheduled Tribes or other traditional forest dwellers Right Holder

24 Table of Content 1. Research Objectives 2. Theoretical Background 3. Phase I Methodology 1. Preliminary Finding Phase II Next Steps 1. Further Challenges 2. Case Study

25 Phase II Next Steps Data verification with countries experts: public officials of government agencies responsible for the implementation of relevant legislation, and with legal forest tenure experts of each country to verify data findings countries: In Asia, Nepal, Cambodia, Philippines, Vietnam

26 Table of Content 1. Research Objectives 2. Theoretical Background 3. Phase I Methodology 1. Preliminary Finding 1. Phase II Further Challenges 2. Case Study

27 Further Challenges Improving cross-country comparison: Develop a unique country index to rank country data. Measuring implementation of legislations

28 Thank you!

29 Table of Content 1. Research Objectives 2. Theoretical Background 3. Phase I Methodology 1. Preliminary Finding 1. Phase II 1. Further Challenges Case Study

30 Case Study - Mozambique Legislations No. 19/97 of 1 of October: Land Law Law No. 10/99 of 7 July: Law on Forestry and Wildlife Decree No. 12/02: Regulations on the Law of Forestry and Wildlife Tenure regimes: Community DUATs Within Multiple Use Areas Zones with Historical Culture use and Value Practical Exercise: Filling out the table

31 Bolivia - Communal Lands of Origin The case of Guarayos province in Santa Cruz, Bolivia Bundle of Rights Access Withdraw Management Exclusion Alienation Forest Body Indigenous Mgt. Org. Management Area Demarcation Forest Management Plan Exclusion illegal timber merchant Households Subsistence Use of Forest Slash and burn agriculture restricted to management unit State Community Individual Right Holder