The demands of the timber, paper, and pulp industries have heavily simplified and degraded forests worldwide. Global deforestation continues at an alarming rate, as forests are cleared for agriculture or harvested unsustainably.1 Pressures on forests will not disappear anytime soon, and the Food and Agriculture Organization (FAO) expects croplands in the developing world to expand over the next three decades.2 The destruction of forests has a heavy impact on the welfare of poor and vulnerable populations and contributes to climate change and to the loss of biodiversity.3 According to the World Bank, in 2004 more than 1.6 billion people depended to varying degrees on forests for their livelihoods,4 and a significant number of people living in poverty relied on forests for much of their fuel, food, and income.5
Communities living in forests often suffer the consequences of conflicts over forest resources without enjoying the financial benefits.6 Forest policies in several countries have long assigned priority to financial revenues and sustained timber yields, giving only marginal consideration to customary tenure systems and to traditional subsistence and social support networks. In this context, severe human rights abuses were committed, particularly in connection with the involuntary resettlement of forest-dwelling populations.
The impact of forest activities on human rights has on several occasions been noted by national and international judicial bodies. By way of example, the Inter-American Commission on Human Rights has found that deforestation and logging activities may impair the human rights of forest-dwelling communities, including their right to life.7 Along similar lines, the UN Human Rights Committee has established that the expropriation of lands for timber development may threaten the way of life and culture of indigenous peoples and violate the prohibition of discrimination.8
Until recently, forestry legislation in developing countries secured forests as State assets and established systems for regulating access to forests. Historically, the implementation of this model has led to the assertion of governmental control over forests at the expense of local actors. In several countries, however, governments do not effectively regulate the use of forests, and much of the global forest estate is characterized by confusion and insecurity over forest ownership and tenure rights. In this regard, many forest-dwelling communities do not have formal rights to the lands and resources on which they depend. This situation of uncertainty has long fanned popular discontent and caused forest conflicts. At stake is a vast amount of real estate, considerable timber wealth, and other assets, including biodiversity and carbon stocks.
Insecure property rights are also a primary cause of forest degradation. By its very nature, forestry needs medium- to long-term investments if returns are to be sustainable. Insecurity undermines sound forest management, as without secure rights, forest holders have few incentives – and often lack legal status – to invest in managing and protecting forest resources.9
Stronger forest tenure rights for local communities10 have recently been promoted as a way of improving local livelihoods and acknowledging legitimate claims over forestlands and resources. The involvement of locally based actors is increasingly regarded as an indispensable aid against deforestation.11 Efforts to ensure that forest policies pursue conservation and sustainability while benefiting local communities have led to schemes of community forest ownership and management.12 These efforts have produced mixed results. Whereas reportedly about a quarter of the world's forests are under community management,13 community control over forest resources is often contested. In several countries forest regulations continue to provide little scope for communities to play a meaningful role in the planning, management, and allocation of forest resources.14 Many forest reforms have been criticized for not adequately addressing the rights, customs, and institutions of forest communities.15 Despite this mixed track record, the rationale underlying schemes for community forest management and ownership remains persuasive and urgent, as described in this chapter.
Disregarding existing rights over forests and their resources may undermine the successful outcome of strategies to ensure forests conservation and sustainable management. It is, however, hard for policy makers to decide which rights to give priority to. To date, no comprehensive rights-based approach (RBA) to forestry has been undertaken. The recently adopted Non-legally Binding Instrument on All Types of Forests of the United Nations Forum on Forests (UNFF) merely encourages States to promote the involvement of local communities, forest owners, and other relevant stakeholders in decision-making processes.16 Some acknowledgement of the need to protect selected human rights may be found in the Forest Stewardship Council's Principles and Criteria for Forest Management,17 in the World Bank Operational Policy on Forests,18 and in the Guidelines for the Sustainable Management of Natural Tropical Forests of the International Tropical Timber Organization (ITTO).19 These instruments chiefly make reference to forest ownership and access rights and to the rights of indigenous peoples.
A comprehensive RBA can be a powerful instrument to combine conservation interests with the needs of forest-dependent communities. On the one hand, conservation practices can benefit local users by protecting their lands and resources. On the other hand, the protection of the rights of forest communities is required on human rights grounds, and may also help preserve biodiversity, providing a front line defence against deforestation. For example, indigenous peoples' claims may help maintain the integrity of territories and avoid ecological fragmentation – a key requirement for biodiversity conservation.20
The priorities of forest communities, however, may not necessarily align with the ones of conservation. A synergy of intents can only be achieved through a careful balancing of conflicting interests. The RBA may prove a useful tool for guidance in this delicate process. This chapter will test the stepwise RBA introduced in Chapter 2 with reference to schemes of community forest ownership and management.
As mentioned earlier in this chapter, a growing portion of the world's tropical forest estate is owned or managed by communities.21 Governments are increasingly aware that formal forest ownership systems may discriminate against the rights and claims of local communities, and measures to recognize communities' claims over forests have been adopted in several countries. This proves particularly relevant to indigenous peoples.
Recognition of the rights of local communities and indigenous peoples over forests is not only an issue of justice. There is also an increasing convergence between conservation and development agendas. As noted earlier, without secure rights local communities lack long-term incentives to invest in forest stewardship and to protect forests. Traditional management practices may have a positive impact on biodiversity conservation and ecosystem maintenance.22 Building natural assets in the hands of low-income individuals and communities is therefore increasingly regarded as a key strategy to simultaneously advance the goals of poverty reduction and environmental protection.23
Another reason for promoting community forestry is that many countries have not developed the governance structures and management capacities necessary to ensure forest protection. In this context, involving forest communities in the management of forest resources may be an effective tool to contrast deforestation and benefit the poor. The following section will outline the notions of forest ownership and tenure, to then illustrate how an RBA approach may be used to promote sustainable forest use, combat illegal logging, and solve forest conflicts.
Forest ownership rights are normally associated with land property. The key attribution of property rights is that they are unlimited in time. Because of its unique and immovable nature, however, land is frequently subject to numerous simultaneous uses, and land property may be characterized as a bundle of rights and obligations. Restrictions on land uses may be found in planning, public health, and environmental legislation. Land leases may also be subject to conditions, largely depending on the landowner's objectives.
Forests may be under public or private ownership. In most developing countries forest land is under formal State ownership.24 In practice, however, large parts of land continue to be run according to “customary rules”, especially in remote areas inhabited by indigenous peoples. “Customary rules” were developed to allocate the use of resources, such as land and water, among community members. Rights recognized under customary rules are often quite different from the ones recognized by formal law. The relationship between formal and customary rights is complicated by the fact that the latter often do not have equivalents in formal law. A further complication is that customary rights are likely to vary quite substantially from one context to another.
The key question regarding customary land rights is whether or not they should be incorporated in formal law. Attempts to ignore customary rules have often proved unsuccessful. Notwithstanding the enactment of formal legislation, customary rules frequently remain the only type of “law” applied at the local level.25 By way of example, a 2003 World Bank survey revealed that the vast majority of land in Africa still remained under customary tenure.26 Formal law, however, may be the best instrument to support the rights and interests of vulnerable stakeholders.27 Accordingly, there is an increasing awareness of the need to conciliate customary rights with formal rights regimes.
In this context, several countries have introduced legal frameworks supporting community forest ownership. These experiments have faced several challenges and produced mixed results.
As the case of Mexico shows, public policies play a crucial role in facilitating sustainable forestry through community ownership. In this context, the role of the state is to establish adequate policies and legislation that define and secure forest property rights. Policies over forest property should also ensure participation in decision making over forest resources. As the experience of Papua New Guinea demonstrates, the risk is to provide hollow property rights, deprived of any substantial content.
This question is particularly relevant to the current debate on incentives to reduce emissions from deforestation and forest degradation in developing countries (REDD).28 Influential stakeholders may be better positioned to reap the economic incentives associated with REDD.29 This could lead to inequitable situations whereby local communities that have acted as forest stewards fail to receive the financial benefits. In this connection, the Stern Review on the Economics of Climate Change mentions that defining property rights to forestland and determining the rights and responsibilities of landowners, communities, and loggers is key to effective forest management for carbon sequestration. The review also stresses the need to involve local communities in forest management and to respect informal rights and social structures.30
The term forest tenure refers to rights over the use and management of forest resources. In particular, forest tenure determines who can use what forest resources, for how long, and under what conditions.31 These rights are often separated from landownership.
Rights of access, including spatial and temporal use rights, are defined by terms imposed by the owner or negotiated between the owner and the person desiring use of the land. In several developing countries forestland is held in State ownership, and access rights are sold to large private forest industry through logging concessions. Under these agreements, logging companies obtain long-term rights to access and manage forests, harvest timber, and exclude other users. In return, the companies pay royalties and other fees to the government. As seen in the previous section, institutions charged with enforcing logging agreements are often ineffective. The causes of illegal activities include flawed policy and legal frameworks, lack of enforcement capacity, insufficient data and information about illegal operations, and corruption.32
Regulations governing forest management are often engineered for large concessionaires and make it difficult for local communities to access and use forest resources legally.33 As with unclear and insecure property rights, poorly defined tenure rights generally also have a negative impact on both local communities and forests. Unless local actors have a significant stake in the management of forest resources, the efforts of forest conservation officials often prove futile.34 Lack of community involvement reduces the incentives to comply with the law and promotes indifference to such compliance. By contrast, landholders with secure tenure are more likely to plant and maintain forests and may improve their revenue. At the local level, secure tenure is therefore a prerequisite for ensuring sustainability, as well as accountability and control over forestry operations. In addition, according to the ITTO Guidelines for the Restoration, Management and Rehabilitation of Degraded and Secondary Tropical Forests, secure land tenure and land-user access are fundamental to the restoration, management, and rehabilitation of such forests.35
In principle, communities should be better than distant governments at managing and policing their forests. Some countries have therefore devolved to local communities management rights to public forests. Forest tenure reforms are often implemented when overall State management has failed.36 Such reforms aim to reverse the results of unsuccessful management by increasing the participation of local populations or the private sector, recognizing local customary rights, and allocating management responsibilities to local actors. These arrangements, also known as “joint management” and “co-management,” do not alter landownership patterns but convey limited management rights and responsibilities. Joint forest management (JFM) and co-management arrangements are increasingly common in areas where governments recognize their limited capacity to manage public forestlands effectively. They are also spreading in degraded forest areas, where they have produced positive results.
As the case of India exemplifies, when rights are granted on a long-term basis and are clearly defined, community forest management and joint forest management schemes are conducive to sustainable forest management and regeneration. To be effective, community tenure rights need to be supported by adequate capacity and by legal frameworks that take into consideration pre-existing entitlements. However, often tenure reforms do not make provision for clear, long-term rights and responsibilities.
This section has illustrated how merely placing forests under local stewardship may not be sufficient to promote sustainable community forest management. Although situations and contexts differ from country to country, flaws that undermine forest ownership and tenure reforms share some common features:37
Fragility of rights: Often the introduction of community forest ownership and tenure schemes is not matched by clear, formal, long-term, enforceable rights and responsibilities. Many forest policies and legal frameworks fail to address issues concerning rights security. Sustainable forest uses are more likely when communities have clear rights backed by sufficient institutional strength and when there are mechanisms in place to monitor and regulate use.38
State control in disguise: Despite the official transfer of rights, States often retain predominant or overall control on forest management activities.
Limited management capabilities: Without appropriate training, the mere transfer of forestland to communities may not solve questions relating to deforestation and forest degradation. While some forest communities have centuries-old traditions to draw on, others are assemblages of recent migrants with little internal organization and expertise over forest management.39
Lack of transparency and accountability: It is inevitable that wealthier, better educated and more politically connected community members exercise greater control over resources. While this control can be more or less benign, in the worst cases corrupt leaders may sell or seize community resources for private gain.
Poor quality of resources allocated to local holders: often forests handed over to communities are severely degraded and have little or no commercial value.
Need to combine sustainable livelihoods and income generation with forest conservation: communities' interests may not be aligned with conservation objectives. In this regard, it is necessary to achieve a workable balance between users' rights and responsibilities and to ensure that poor and vulnerable individuals have access to forest benefits. An RBA may serve to streamline and rationalize property rights and tenure regimes to this effect.
This section will test the step-wise approach described in Chapter 2 with regard to community forest management. Examples and lessons learnt will be drawn primarily from a case study on community forests in Nepal. Nepal's community forest management schemes have produced positive conservation results and contributed to solving the vexed question of forest conservation in the country. Nepal has reportedly experienced serious conflicts associated with forest conservation, and army officers and forest rangers have been accused of severe human rights abuses at the expense of local populations.40 Community forest schemes represent a viable alternative to the deployment of the army to secure forest conservation. In this context, the adoption of an RBA may help solving tensions between conflicting objectives in the administration of forest resources.
When developing new or revising existing forest policies and legislation in order to solve forest conflicts, the needs, potential, and requirements for the establishment of community forestry regimes should be analysed. This has to start with a thorough situation analysis.
A situation analysis should preliminarily identify ongoing actions, stakeholders, and their roles. Forests are extensively used by several subjects for a wide range of purposes. Due to seasonal factors, different groups may have rights over the same products at different times. Not all claimants may be local residents: migratory pastoralists, hunters, rubber tappers, and prospectors may have reasonable claims to use or access a forest and the resources that lie within it. Downstream water users may also claim rights in an effort to prevent deforestation of watershed forests. In addition, national government or international actors may lay claims to forests' environmental services, recreational values, or subsoil minerals. In particular, new markets for forests' environmental services (such as landscape beauty, soil conservation, biodiversity protection, or the carbon sequestration function of trees) increase considerably the range of potential stakeholders.
With reference to forest ownership and tenure, relevant stakeholders are all those who have a title to land and/or forest resources, based on formal or customary law. They may include:
State and local authorities;
Large and small private holders;
Third parties who do not have a title to land but still have a legitimate interest to the forest resources upon it, such as conservation actors and logging companies; and
Local advocacy groups and NGOs may be important vehicles to voice the concerns of local communities.
In the case of community forests in Nepal, the key rights-holders are user groups, the government, (which retains formal land ownership), and local District Forest Offices. Federations accepting membership from user groups may also be regarded as stakeholders, together with national and international NGOs that provide funding and support to community forests. Other stakeholders include traditional forest users who are not part of community user groups.
At the root of many forest conflicts there is a fundamental question over who owns forests and who has the right to decide what happens to them. These relationships are chiefly ruled by land tenure and property regimes. In order to establish the potential for community forestry regimes, it is also crucial to carry out an assessment of the implementation of existing regulations and to understand the social, economic, cultural, and political causes of non-compliance.41 In this context, the following set of preliminary questions can identify the extent to which local communities are involved in forest ownership and management:42
Do communities have ownership or tenure rights over the forest area?
If so, are these clear, legally recognized, and protected?
How long is the period of tenure?
What are the reasons behind investing or not investing in forest and tree management?
Do communities have clear rights to gain access to products from the forest?
Is access hindered by costly and complex requirements for inventories, management plans, or permits and licenses?
Are there any conflicting rights or unresolved claims?
Are there restrictions for selling forest products, including price restrictions?
When drawing conclusions from the answers to these questions, it is important to recognize that some human rights are particularly relevant in connection with the establishment of forest community ownership and management schemes. These are:
The right to an adequate standard of living;
The right to adequate housing;
The prohibition of discrimination; and
The right to freedom of movement.
When dealing with indigenous peoples, it is important to emphasize that these groups enjoy special protection under international law, due to their historical relation to the lands and territories they use or occupy. The Forest Stewardship Council Principles and Criteria for Forest Stewardship contain specific guidelines in this regard. According to Principle 3, “the legal and customary rights of indigenous peoples to own, use and manage their lands, territories, and resources shall be recognized and respected”.43 Forest management must not threaten or diminish, either directly or indirectly, the resources or tenure rights of indigenous peoples. Sites of special cultural, ecological, economic, or religious significance to indigenous peoples must be clearly identified in cooperation with such peoples and must be recognized and protected.
At this stage of the RBA process, it is necessary to identify the specific duties or obligations of all actors. For example, loggers and commercial actors should not establish dangerous operations in areas where local or indigenous communities have access rights. The same actors should also remain alert and mitigate any negative effects that their operations might have on the health of local inhabitants, as well as on their access to clean water and land that is suitable for the production of food. This includes respecting the needs of the people with whom they share public services, such as electricity. Other disruptions that might significantly affect the well-being and subsistence of local communities include activities affecting wildlife and natural land use patterns.
Where community forest schemes are already in place, forest users need to comply with the requirements set out by the law. In Nepal, the relevant rights and duties are chiefly described by community forest plans and domestic legislation. Domestic authorities must monitor compliance with such prescriptions. The establishment of community forests in Nepal has raised some key participation and discrimination questions. Community forestry schemes are accessible only to communities adjoining forests and they exclude other traditional users who live some distance away. In addition, reportedly elite groups tend perform leading roles in community self-governing bodies, marginalising more vulnerable group members and women. As a consequence, in its present form this policy arrangement has curtailed access to basic means of sustenance for some vulnerable groups.
The impact of reforms of forest tenure and ownership regimes on the livelihoods of local communities needs to be carefully assessed. As explained earlier, the transfer of rights and responsibilities needs to be coupled with adequate security of tenure and management capacities.44 The establishment of community forests needs to strike a fair balance between rights and responsibilities. Use and access restrictions need to be realistic and comply with the fundamental rights of users and all affected individuals.
Under a rights-based approach, claims and conflicts over forest resources must be clarified and solved in accordance with domestic law and international human rights. Reforms must be based on rigorous data on property claims and ownership collected at the local and regional level. Official manifestations of rights, such as property surveys and titles, can enhance tenure security. However, formal adjudication and title registry can be a great challenge to the affirmation of customary rights. When there is a lack of fair and legitimate procedures, surveys and titles may not only fail to deliver tenure security, they may also increase the levels of conflict.45 It is therefore necessary that these processes keep local circumstances, customs, and uses in due consideration. At the community forest level, conflicts between users should be addressed through fair adjudicating procedures that guarantee impartiality. The use of these mechanisms should not preclude access to courts of law.
Reforms of forest property and tenure systems should take place transparently and should guarantee public access to information. Even when such reforms are grounded in law and policy, information still needs to be disseminated to facilitate the participation of all stakeholders.
In this context, different groups may benefit from different types of information. For example, forest rangers and staff in charge of monitoring forest access must be fully informed about existing users rights. Forest users, on the other hand, need to be informed about their rights and duties, as well as of mechanisms to protect and enforce them.
Community forestry needs to be supported through the spread of adequate information. Appropriate support must be provided to help potentially affected groups appreciate the implications of adhesion (and lack of adhesion) to community forest schemes. To this effect, leaflets, manuals, training course curricula, and handbooks need to be made available. Furthermore, it is necessary to inform all potentially affected individuals through appropriate media (e.g., radio programmes, newspapers, etc).
For instance, in Nepal's community forests, forest officers provide advice, technical assistance, and support to user groups. Officers receive training on participatory forest management, training methodology, facilitation methodology, and tools for rapid and participatory rural appraisal. Furthermore, user groups are trained to enhance their capacity to manage their forests in a sustainable manner.
Information about the rights and responsibilities associated with forest ownership and tenure must be publicly available and easily accessible. All stakeholders, in particular communities, need to be informed of their rights and empowered to actively participate in legal reforms. Giving appropriate information and professional advice, for example, to customary landowners is essential to balance negotiation inequities. Affected subjects also need to be informed of their rights to seek redress and compensation for abuses. Measures to educate government officials on community rights and on mechanisms for enhancing livelihoods should be considered.
Like other natural resources, forest resources are subject to capture and exploitation by political, economic and military elites. Lack of transparency in decision-making enables political and corporate elites to act with minimal public accountability, which tend to lead to unsustainable practices. By contrast, following an RBA in forest activities means ensuring an open, highly inclusive, multistakeholder process and the effective participation of all interested parties.
In this regard, the UNFF Non-legally Binding Instrument on All Types of Forests states that “local communities, forest owners and other relevant stakeholders contribute to achieving sustainable forest management” and requests that they “should be involved in a transparent and participatory way in forest decision-making processes that affect them, as well as in implementing sustainable forest management, in accordance with national legislation”. The instrument calls on States to “promote active and effective participation by major groups, local communities, forest owners and other relevant stakeholders in the development, implementation and assessment of forest-related national policies, measures and programmes”.46
Generally, allocating forest resources in a more participatory and accountable way contributes to improving forest management and to reducing conflicts.47 For community forestry, participation entails in particular:
A participatory approach to forest law design;
Reducing the potential for corruption;
Enabling people to scrutinize the effectiveness of subsequent implementation;
Ensuring greater equity; and
Minimizing the undue influence of privileged groups.48
Consultations are a time-consuming activity that should start early and ideally should include direct contacts with affected subjects. Consultations should take place in good faith and adhere to domestic legislation.49 It is good practice to record what percentage of stakeholders is present at each moment of consultation, subdividing by category (gender, age, etc). An evaluation of the quality of participation is also necessary to prevent situations where, for example, a local community is merely informed about the proposed project(s) and about decisions already taken by others.The main goal is to guarantee that stakeholders have a real chance to exercise negotiating power and influence decisions in their capacity as rights-holders, persons affected, and beneficiaries. An important feature may be the inclusion of procedures open to the public aimed at reducing incentives and opportunities for corruption and manipulation of forestry administration.
The involvement of all categories of stakeholders entails a true commitment to listening and understanding their needs, objectives, insights, and capacities and to finding ways to accommodate the multiple interests at stake. Limited consultation so that only acceptable voices are heard is not sufficient. Identifying those with rights to speak for communities may be, however, a challenge. In this regard, it is vital to comply with the requirements and prescriptions of domestic law and to ensure respect for the human rights of those affected.
At the community level, community representatives should ideally be a part of the community in question, democratically elected. Elections should be held regularly and should also be recorded. Internal decision-making should take place through the direct involvement of all affected stakeholders. NGOs and community activists may play a fundamental role of intermediation. It is nevertheless important to carefully establish the legitimization of these subjects, their links to the communities and other potential stakeholders, and their accountability to those they represent.
In Nepal's community forests, elite groups tend to exclude more vulnerable subjects from decision-making and benefit sharing. In this context, positive discrimination measures to ensure broader participation may be considered, together with special policies to address the needs of more-vulnerable users, including those who live some distance away.
Free, prior and informed consent procedures enable affected subjects to decide whether to give consent to projects, such as the establishment of community forests. Consent must be obtained without coercion, after the full disclosure of the intent and scope of any given activity, in language and processes understandable to the affected communities and prior to commencement of activities.
In this connection, the Forest Stewardship Council Principles and Criteria for Forest Stewardship require that local communities with legal or customary tenure or use rights maintain control over forest operations, unless they delegate control with free and informed consent to other agencies.50
Subjects affected by forest policies must have access to a grievance mechanism without discrimination or fear of repercussions. Appropriate administrative and judicial mechanisms should be in place to provide effective protection against imposed projects and policies infringing upon rights.
When dealing with local communities, actors must establish and maintain effective grievance processes whereby members of the community can lodge complaints. Any individual filing a grievance should receive notification of the findings regarding his or her complaint and of any corrective action. If the individual or organization disagrees with the decision, he or she should have recourse to some reasonable form of arbitration or dispute resolution to settle the claim.
The Forest Stewardship Council Principles and Criteria for Forest Stewardship explicitly provide that appropriate mechanisms must be used to resolve disputes over tenure rights and use claims. Such disputes are explicitly considered during forest evaluation and may disqualify an operation from being certified.51
The development of participatory land planning tools may facilitate popular support for policy choices and reduce the potential of conflicts regarding forest uses. These may prove particularly relevant to the restriction of forest uses. Popular participation in shaping plans and negotiating land rights means adjusting land planning to recognize reality on the ground – not vice versa.
Participatory forest mapping is another mechanism to build community consensus that has been used successfully in several countries.52 Under this approach, local people supply place names, land use zones, and the corresponding use and access information for the area they are seeking to map. The resulting map is then used as a first step to negotiate tenure rights with government agencies and private firms. The popularity of this method is explained by the fact that the mapping process elicits concrete information on claims, along with a common, objective basis for discussing whether a specific claim can be considered.
Finally, the adoption of pilot working models that illustrate successful forest management may be a practical tool to involve stakeholders and demonstrate that it is possible to implement change. Models also give government agencies the opportunity to experiment with different solutions. Exchange visits and apprenticeships can be very effective for sharing lessons learnt and good practices.
In the case of Nepal's community forest projects, officials carry out such visits in order to facilitate the exchange of lessons learnt. Reportedly, the transfer of forest staff from one district to another has had positive effects on the performances of community forests.53
The information gathered through Steps 1–3 must be taken into consideration when making decisions over the allocation of forest resources and user rights. When developing or revising community forestry regimes the respective policies and legislation must be endowed with clarity, transparency, and consistency. Regulations also need to be realistic and meet enforcement capacities. Particular care must be exercised in ensuring that small-scale forest entrepreneurs are in a position to comply with requirements for forest management plans. At the same time, forest owners must respect use and entry rights provided by the law and must train staff and security guards to do the same when managing their forestlands.
When dealing with forest ownership, the issue of forcible relocations is particularly sensitive.54 Internal displacement and arbitrary denial of access to defined parts of a territory may contravene the right of liberty of movement and freedom to choose a place of residence.55 Applying an RBA therefore means that no coercive measures should be taken to obtain transfer of property interests. Forced relocation should only be conducted by the government and only in accordance with domestic law and international human rights. It should be emphasized that forced relocation of non-consenting inhabitants is only allowed in limited circumstances for a public purpose, when necessary to promote national security or economic development or to protect the health of the population.56 Thus forced relocation must not be used for private-sector developments that do not have some public purpose. Once removed, those who were displaced must be provided with adequate compensation and not be rendered homeless.
The implementation of an RBA demands the development of effective monitoring and evaluation systems. The evaluation of forest projects must take into account whether stakeholders participated in the consultation process and in the development of policies that affected them, if their rights and desires were taken into account, and if eventual approval of the proposal depended on the participation of the stakeholders. Members of local communities should be enabled to participate actively in the monitoring and evaluation of projects that they helped design and implement.
Compliance with existing rights and land uses should be monitored by seeking first-hand information from affected groups, their representatives, and local NGOs working in the area, where applicable. In this regard, the ITTO Criteria and Indicators for the Sustainable Management of Tropical Forests provides a checklist to monitor respect for communities and indigenous rights.
Forest certification may also be a useful tool for post-action evaluation. The Forest Stewardship Council's Principles and Criteria for Forest Stewardship, for example, include among the criteria for certification:
Monitoring compliance with national laws,
Respect for indigenous rights,
Conservation of biodiversity, and
Establishment of and compliance with a management plan.57
In the case of Nepal, community forest user groups are required to submit an annual progress report to the District Forest Officer describing the activities planned and achieved. When an operational plan is being prepared or renewed, a forest officer prepares an inventory of the forest stock. This inventory provides the basis for planning activities in the community forest. The Community Forestry Division of the Department of Forest keeps a management information system section, which maintains records of community forests in the whole country, providing an overall picture of community forestry and information on individual districts. This evaluation system has been criticised for lacking effectiveness. Measures to improve compliance with monitoring and evaluation requirements may include entrusting surveys to third parties that could also monitor users' opinions and suggestions.
The rights-based approach can be a powerful tool to integrate forest conservation interests with the rights and needs of forest stakeholders, especially indigenous and local communities. The RBA supports the implementation of fundamental human rights. Although these entitlements are often recognized by domestic constitutions and international human rights treaties, they are rarely taken into account in sectoral decision making on forests. The RBA provides a promising instrument to clarify the human rights at stake and to facilitate their implementation in forest activities.
The elaboration of measures concerning the use and allocation of forest resources requires mediation between stakeholders with conﬂicting rights, claims, and duties. Sorting out and defending forest property and tenure rights is one key policy challenge. In this context, implementing the RBA will clarify and simplify forest property rights and tenure, and lead to increased rights security. Such security promises to improve legal compliance and reduce opportunities for discretionary decisions and subjective interpretations of the law by government officials and forest operators.
The process to solve conflicts over forest ownership and tenure requires sufficient financial, human, and technical capacities. State authorities are better placed to promote the application of an RBA in this connection. Although practitioners cannot change legal frameworks, they can provide crucial inputs for applying the RBA in the forest sector, by developing community forest management systems and adapting forest management plans to the particular conditions and capabilities of local communities.
The step-wise RBA may be a valuable tool for dealing with the maze of conflicting interests regarding forest resources. Properly implemented, the RBA brings together all stakeholders and, integrates their interests in the decision-making process. However, implementing the RBA may not provide similar outcomes in all areas. The heterogeneity of local circumstances and of forest ownership and tenure regimes may pose different challenges and require different solutions. It is therefore important that the step-wise approach is adjusted in accordance with local realities.
1 For updated data on deforestation rates, see Food and Agriculture Organization (FAO), State of the World's Forests 2007 (Rome: 2007).
2 See J. Bruinsma, ed., World Agriculture: Towards 2015/2030 – An FAO Perspective (London: Earthscan, 2003). [Link]
3 According to the Intergovernmental Panel on Climate Change (IPCC), between 1970 and 1990 direct greenhouse gases emissions from land use, land use change, and forestry saw an increase of approximately 40 per cent. IPCC, Climate Change 2007: Mitigation. Working Group III Contribution to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change. Summary for Policy-Makers (Geneva: 2007), p. 3.
4 World Bank, Sustaining Forests: A Development Strategy (Washington, DC: 2004), p. 16. [Link]
5 Ibid., p. 2.
6 K. M. Chomitz, At Loggerheads? Agricultural Expansion, Poverty Reduction and Environment in the Tropical Forests, Policy Research Report (Washington, DC: World Bank, 2007), p. 95. By way of example, data based on remote sensing suggest that poor people are responsible for less than one-fifth of deforestation in Brazilian Amazonia; see S. Wertz-Kanounnikoff, Deforestation in Amazonia: An Inquiry into the Effect of Land Tenure and Population from 2000 to 2003 (Washington, DC: World Bank, 2005).
7 Yanomami Indians v. Brazil, Decision 7615, Inter-American Commission on Human Rights (IACHR) (1985), p. 264; Maya Indigenous Community of the Toledo District v. Belize, Case 12.053, Report No. 40/04, IACHR.
8 Chief Bernard Ominayak and the Lubicon Lake Band v. Canada, Communication No. 167/1984, U.N. Doc. CCPR/C/38/D/167/1984 (1990).
9 FAO, Better Forestry, Less Poverty – A Practitioner's Guide (Rome: 2006), p. 9.
10 The term community is used here to refer to “complex entities containing individuals differentiated by status, political and economic power, religion and social prestige and intentions”. See A. Agrawal and C. Gibson, “The Role of Community in Natural Resource Conservation,” in A. Agrawal and C. Gibson, eds., Communities and the Environment: Ethnicity, Gender and the State in Community-Based Conservation (Piscataway, NJ: Rutgers University Press, 2001), p. 1.
11 FAO, Best Practices for Improving Law Compliance in the Forest Sector, Forestry Paper No. 145 (Rome: 2005), p. 38.
12 For a review, see F. Romano and D. Reeb, Understanding Forest Tenure: What Rights and for Whom? (Rome: FAO, 2006).
13 A. White and A. Martin, Who Owns the World's Forests? Forest Tenure and Public Forests in Transition (Washington, DC: Forest Trends, 2002).
14 For this view, see, e.g., Romano and Reeb, op. cit. note 12, p. 1.
15 M. Colchester, Beyond Tenure. Rights-based Approaches to Peoples and Forests. Some Lessons from the Forest Peoples Programme, presented to the International Conference on Poverty Reduction in Forests: Tenure, Markets and Policy Reforms, Bangkok, Thailand, 3–7 September 2007.
16 United Nations Forum on Forests (UNFF), Non-legally Binding Instrument on All Types of Forests. Adopted by the UN General Assembly, 17 December 2007, A/RES/62/98, Principles II (c) and V.6 (w), see infra.
17 Forest Stewardship Council (FSC), Principles and Criteria for Forest Stewardship (Washington, DC: 2002), Principles 2 and 3 – see infra.
18 See World Bank, op. cit. note 4, p. 4: “In collaboration with its client countries and partners, the Bank's primary roles will be to work with client countries to strengthen policy, institutional, and legal frameworks to ensure the rights of people and communities living in and near forest areas; to ensure that women, the poor, and other marginalized groups in society are able to take a more active role in formulating and implementing rural forest policies and programs.”
19 International Tropical Timber Organization (ITTO), Revised ITTO Criteria and Indicators for the Sustainable Management of Tropical Forests Including Reporting Format, Policy Development Series No. 15 (Yokohama, Japan: 2005), p. 13; ITTO, Guidelines for the Restoration, Management and Rehabilitation of Degraded and Secondary Tropical Forests, Policy Development Series No. 13 (Yokohama, Japan: 2002), p. 34.
20 G. Borrini-Feyerabend, A. Kothari, and G. Oviedo, Indigenous and Local Communities and Protected Areas. Towards Equity and Enhanced Conservation Guidance on Policy and Practice for Co-managed Protected Areas and Community Conserved Areas (Gland, Switzerland: International Union for Conservation of Nature (IUCN), 2004), p. 12. [Link]
21 For updated data on forest ownership statistics, see FAO, op. cit. note 1, p. 7.
22 See, e.g., L. A. Thrupp, S. B. Hecht, and J. O. Browder, Diversity and Dynamics of Shifting Cultivation: Myths, Realities and Policy Implications (Washington, DC: World Resources Institute, 1997).
23 See J. K. Boyce, “From Natural Resources to Natural Assets,” New Solutions, vol. 11, no. 3 (2001), pp. 266–78.
24 For this analysis, see S. Hodgson, Land and Water – The Rights Interface (Rome: FAO, 2004), p. 60.
25 Ibid., p. 63.
26 K. Deininger, Land Policies for Growth and Poverty Reduction, Policy Research Report (Washington, DC: World Bank, 2003), p. 2.
27 A. White, “A Framework for Assessing Tenure Security,” in L. Ellsworth and A. White, eds., Deeper Roots: Strengthening Community Tenure Security and Community Livelihoods (Washington, DC: Ford Foundation, 2004), p. 14.
28 See proceedings associated with the UNFCCC Workshop on Reducing Emissions from Deforestation in Developing Countries, Rome, 30 August – 1 September 2006, and the UNFCCC Second Workshop on Reducing Emissions from Deforestation in Developing Countries, Cairns, Australia, 7–9 March 2007.
29 For this analysis, see L. Peskett, D. Huberman, E. Bowen-Jones, G. Edwards and J. Brown, Making REDD Work for the Poor (Gland, Switzerland: IUCN, 2008). [Link]
30 “Executive Summary,” in N. Stern, The Economics of Climate Change: The Stern Review (Cambridge, UK: Cambridge University Press, 2006), p. 16. [Link]
31 Romano and Reeb, op. cit. note 12, p. 3.
32 FAO, op. cit. note 11, p. 7.
33 Ibid., p. 23.
34 FAO, op. cit. note 9, p. 41.
35 ITTO, Guidelines, op. cit. note 19, p. 34.
36 For this analysis, see Romano and Reeb, op. cit. note 12, p. 7.
37 For the following analysis, see ibid., pp. 6–10.
38 C. Pye-Smith and G. Borrini Feyerabend, The Wealth of Communities (London: Earthscan, 1994).
39 E. Wollenberg, D. Edmunds, and L. Buck, Anticipating Change: Scenarios as a Tool for Adaptive Forest Management: A Guide (Bogor, Indonesia: Center for International Forestry Research (CIFOR), 2000).
40 See S. Jana, “Voices from the Margins: Human Rights Crises Around Protected Areas in Nepal,” Policy Matters (IUCN), vol. 15 (2007), pp. 87–100; N. Sharma Paudel, S. Ghimire, and H. Raj Ojha, “Human Rights – A Guiding Principle or an Obstacle for Conservation?” Policy Matters (IUCN), vol. 15 (2007), pp. 299–310.
41 FAO. op. cit. note 11, p. xiii.
42 FAO, op. cit. note 9, pp. 9–10.
43 FSC, op. cit. note 17, Principle 3.
44 Romano and Reeb, op. cit. note 12, p. 6.
45 Ellsworth and White, op. cit. note 27, p. 19.
46 UNFF, op. cit. note 16.
47 L. Tacconi, K. Obidzinski, and F. Agung, Learning Lessons to Promote Forest Certification and Control Illegal Logging in Indonesia (Bogor, Indonesia: CIFOR, 2000), p. 10. [Link]
48 J. Lindsay, A. Mekouar, and L. Christy, Why Law Matters: Design Principles for Strengthening the Role of Forestry Legislation in Reducing Illegal Activities and Corrupt Practices (Rome: FAO, 2002), p. 9.
49 For the following guidelines, see C. Tanner et al., Making Rights a Reality: Participation in Practice and Lessons Learned in Mozambique (Rome: FAO, 2006), p. 54.
50 FSC, op. cit. note 17, Principle 2.
51 Ibid.: “Long-term tenure and use rights to the land and forest resources shall be clearly defined, documented and legally established.”
52 For a sample study on the use of this tool, see C. Eghenter, Mapping People's Forests: The Role of Mapping in Planning Community-Based Management of Conservation Areas in Indonesia (Washington, DC: Biodiversity Support Program, 2000).
53 B. K. Singh and D. P. Chapagain, “Community and Leasehold Forestry for the Poor: Nepal Case Study,” in FAO, Understanding Forest Tenure in South and Southeast Asia, Forestry Policy and Institutions Working Paper 14 (Rome: 2006), p. 75.
54 On the issue of relocation, see M. Barutciski, “International Law and Development-Induced Displacement and Resettlement,” in C. de Wet, ed., Development-Induced Displacement and Resettlement (Oxford: Berghahn, 2006), pp. 71–104.
55 International Covenant on Civil and Political Rights, Article 12. Cf. Human Rights Committee, General Comment No. 27: Freedom of Movement (Art.12), 02/11/99CCPR/C/21/Rev.1/Add.9.
56 For these principles, see International Covenant on Economic, Social and Cultural Rights, Article 11; compare also Committee on Economic, Social and Cultural Rights, General Comment 7: The Right to Adequate Housing: (Art.11) Forced Evictions: 20/05/97.
57 FSC, op. cit. note 17, Principle 2.
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