Community Forest Tenure Rights in the Tropical Forest Nations of the Global South
Join us as we explore forest tenure in the tropical forested countries of the Global South (1), with a focus on community forest tenure rights. It is of interest to those wishing to deepen their understanding of the management of and use rights to the forest and trees funded by our generous TreeSisters network. It also aims to give an overview of the different land categories and associated rights and responsibilities in the projects we fund.
We examine the following:
The forest tenure systems in the tropical Global South.
The importance of customary forest tenure systems.
The transfer of forest tenure rights from the State to communities
Women’s access to and use of forest resources.
Where forest tenure is a combination of statutory or customarily defined forest rights and arrangements to manage and use forest resources. Statutory forest tenure systems are designated and enforced by state or country level legislation, while customary forest tenure is generated and enforced by a community -- designated by traditions or customs. Forest resources entail timber, non-wood forest products and other forest resources.
Customary forest tenure systems are common among local communities in tropical forest countries of the Global South. Indeed, customary forest tenure systems often prevail over statutory tenure systems at the local level, and such systems must be accounted for by outside entities.
Both statutory and customarily defined forest tenure systems co-exist side by side with potential contradictions and differences, which may create confusion.
By and large, rural forest-dependent communities and indigenous people lack access to forest rights. In some cases, there is a legal recognition of customary forest tenure. However, this remains informal for the most part.
Over the last 40 years, governments have made efforts to transfer forest tenure rights to rural forest-dependent communities and indigenous peoples.
Within the context of resource scarcity and deforestation, and forest land grabbing, there is a mounting necessity to legally recognise forest tenure rights of rural communities and indigenous people. However, formal recognition is not always good for them as they may lose some rights and their way of life.
The local social and cultural norms and traditions may affect the rights of women to land, as well as their access and user rights to forest resources.
Consequently, both statutory and customary land tenure are carefully considered when TreeSisters evaluates projects for inclusion in our portfolio. Beyond ensuring project success, we ensure that the rights of communities to forests and trees, and of the women in particular, are in line with our values and desired socioeconomic impacts.
The forest tenure systems in the tropical Global South
Forest tenure is a bundle of rights and responsibilities which determines who can access, use, manage and make decisions over forest resources, among people, as individuals or groups, and for how long (2). It also includes conditions for the transfer of forest rights and responsibilities through sale, leasing, and inheritance.
Forest tenure covers the following:
Forest access: the right to enter an area; or to walk in the forest.
Forest use: the right to use the forest in a certain way under certain conditions. It includes: foraging for fruits and seeds; removing leaves and branches; chopping down trees, stripping bark, collecting honey, the marketing of forest products; selling timber. Conditions, for example, may be that forest-dependent people and communities have limited rights to harvest authorised non-wood forest products from designated species of trees.
Forest management: the rights to decisions, practices and planning that ensure long-term sustainable forest use. Sustainable forest management may include the passive restoration of natural forests, the cultivation of trees, and the protection of the forest within restricted access or protective zones.
In the tropical countries of the Global South, forest tenure is often the combination of statutorily defined systems and customarily defined systems of rights, responsibilities, and rules, as well as authorities and institutions, where:
Statutory forest tenure systems are formally recognised rights and responsibilities defined by the Government's statutory law or legislation. The landscape is generally categorised into State forests (3), private forests (4), as well as communal lands (5), and public or private open-access forests. It is generally a system of property titles with clear boundaries demarcated by land cartography. The titles are sometimes physically delimited by markers on the ground.
Customary forest tenure systems are community-specific customary rules generated and enforced by a community. They reflect the social and cultural norms of the community. Customary forest tenure systems have preceded statutory tenure systems (which often were inherited during colonialism) and have persisted throughout history. Generations of rural and indigenous people of the tropical forests have had access to and used the forests, trees, and non-wood forest products through customary forest tenure. Customary forest tenure systems are under the authority of traditional chiefs or under the control of large families or communal councils. They are often not written and have passed through oral traditions for hundreds or thousands of years. They are static but evolve alongside socio-political changes and emerging cultural and traditional norms.
Customary and statutory forest tenure systems may coexist harmoniously side-by-side. However, it is more likely that the two systems may be overlapping. Hence a parcel or territory may be held by different tenures, and thus contradictory rules and competing authorities between tenures may create confusion (6). The communities may even be uncertain about which system prevails. The confusion created by the two co-existing systems can lead to ‘forum shopping’ when people choose the one system that best supports their interests (7). The confusion may weaken the validity and power of both tenure systems -- calling for the recognition of the customary tenure systems by the Government (8).
The importance of Customary Forest Tenure Systems
Customary forest tenure systems are very important in reforestation projects. Overlooking their existence or subordinating their importance to statutory tenure systems --for example, by establishing state land in the place of common resources that were until then available by free or open access, may result in social tensions, conflicts and claims for land security, indirectly jeopardising reforestation projects. Failure to consider customary forest tenure may lead to tree mortality in reforestation (9).
A number of Governments have crafted policies that are inclusive of customary and traditional rights to forests and trees in the tropical Global South. Hence customary forest tenure and its institutions may be formally recognised, be clearly defined by law, and be enforceable through a formal law court.
There is not always a need for formal tenure recognition. Often, customary forest tenure systems remain informal, yet they seem to prevail locally in many tropical forested countries of the Global South and be locally respected. For many indigenous peoples and local communities who have lived in and around forests for generations, it is clear that these forests belong to them under locally defined systems of customary tenure (10).
We must highlight that formalising tenure rights are not necessarily good for forest-dependent communities and indigenous people. They may have more rights under customary tenure, whereas an imposed blueprint model from above would limit their rights (11). Many legal systems are not complex enough to encompass all that is included under customary tenure rights.
Additionally, recognising customary forest tenure rights does not guarantee sustainable forest conservation and protection. It may weaken the social protective nature of communities through increasing monetisation and privatisation of community land (12). Sustainable forest management is, in fact, up to the forest landowner.
The transfer of forest tenure rights from the State to the community
With 65% of tropical forests in the Global South being public, hence owned and administered by state or local governments (13), it is impossible for Governments to act alone with limited resources. Forests must be managed with the participation of local communities.
Here we present the models of forest rights transfer from States to communities, found in the projects we fund as of June 2020. Local community involvement may range from the lower end of the spectrum with passive community participation to more active control by communities and ultimately to full transfer of tenure rights under private ownership to land and forests (14).
Community-Based Forest Management
In the 70s-80s, a variety of forms of forest tenure that are collective and participatory, gathered under the generic terms' Community-Based Forest Management’ or ‘Community Forestry’ or ‘forest co-management, emerged in the Asia Pacific region. These forms are now widespread all over the tropical forested regions of the world.
Community-Based Forest Management is the process by which communities living close to forests are involved in or associated with forest management (15). It began by involving them in reforestation and forest protection and evolved towards transferring forest management and user rights from the State to communities.
Community-Based Forest Management was a response to the failure of the forest industry development model to sustain forests and to meet community needs to resolve the increasing deforestation and forest degradation rates (16). It was also a necessary response to the growing voices of local communities for increased recognition of traditional tenure rights and historic land occupations and, in some cases, the recognition of their capacity to manage resources sustainably (17).
In Cameroon's TreeSisters-funded Mount Bamboutos Initiative, some reforestation occurs in legally recognized Community Forests (CFs). The associated community groups have collective, legally recognised access, use and management rights to forest resources under a renewable 25-year lease. The land belongs to the State Government. The communities can harvest non-forest wood products (fruits, seeds, fodder, etc.). They may eventually harvest and sell timber according to a simple management plan after authorisation from the forest authority.
In Nepal, TreeSisters-funded the Terai Forest restoration project; reforestation is conducted through Forest Users Groups who hold full tenure rights to their forests and manage them actively. The groups are given the right to determine their own rules for development, conservation and utilisation in the interests of the community. Free grazing in the forest is prohibited to protect tree saplings; however, controlled and localised grazing is being tested to boost natural regeneration. As long as the groups work according to the management plan mutually accepted by the forest authority, the forest use and management rights cannot be taken back from them (18). But if the groups don't comply with the management plan, the forest authority will hand it over to another group of local people.
Devolution of forest tenure rights through agreements
Community tenure rights to forests and trees might be recognised through formalised, long-term legal contracts or conventions between community associations and the state forest service.
In Madagascar, social and local norms are called “dinas” and some dinas are recognised by conventions between community associations and the state forest service. In the TreeSisters-funded Mangrove Restoration Project in Madagascar, the mangrove estuarine system at Kalamboro is regulated by recognised dinas. Those who break the rules regarding mangroves under the dinas in Kalamboro can be sued both in a state court of justice and at the village council level in the case of illegal or overuse of the mangroves (19).
Public recognition of customary or indigenous rights to an area
Today about one-quarter of tropical forests are owned and administered by local communities and indigenous people or are designated by Governments for use by communities or indigenous people under semi-permanent and conditional bases (20).
Providing formal land ownership to local communities and indigenous peoples is believed to be one of the most cost-effective ways to protect forests. In the Amazon, deforestation rates on securely held indigenous lands are reduced by 50% compared to deforestation rates on similar land without security (21). And if the Mawphlang Sacred Forest is today still well-preserved, it is due to the Khasi people's centuries of traditional local institutions, practices and rules (22). Their cultural and religious character preserved the sacred forest against the conversion of lands for other purposes.
While national laws in many countries recognise customary forest and land tenure rights, local or indigenous communities' legal protection is rather weak in the face of land grabbing and land expropriation by mining, agribusiness, logging and other destructive activities.
Many forest-dependent rural communities and indigenous people with not yet formal titles seek to secure their customary forest and land tenure rights with legal recognition of their historically occupied lands. And even if they have obtained the demarcation title and registered their title, indigenous peoples might have to fight to have their tenure rights respected and enforced through monitoring and patrolling, litigation, demonstrations and protests against illegal activities (23).
While recognising and protecting customary land rights often empowers rural local communities and indigenous peoples, the benefits may not be equally distributed. Hence recognising customary tenure rights may further legitimise an unfair system, perhaps even detrimental to women. This is the case in patrilineal communities with customary marriage systems where women can't own land.
Women's Tenure and Participation
For a women-led organisation such as TreeSisters, working in the tropical reforested Global South can be challenging because the cultural and social norms may contradict our desired goal to increase women's empowerment.
Women's forest access and use rights depend on their access and user rights to land. Additionally, when women have land rights, their economic and social status improves, leading to other benefits, such as increased agricultural yields, food security, family health, increased livelihood, and better educational outcomes for children (24). Without secure land and forest rights, women are disadvantaged. With no guarantee they will harvest the fruits of their work through secure tenure rights, some women may lack the motives to participate in reforestation projects or to invest in forest regeneration and sustainable forest management.
Hence, women's lack of forest and land tenure rights is a major issue with regards to the primary socio-economic goals of our Tree Strategy: (1) "Improving community livelihoods and forest interdependence". (2) "Fostering women's participation, empowerment and incomes”.
In the tropical Global South, only 10 to 20 per cent of the women own land (25). The tropical Global South's local inheritance systems and matrimonial regimes allow women fewer inheritance rights than men. Women's land rights are often restricted to their obligations in food production and gathering fuelwood to cook. Women are not even allowed to own land in certain traditions.
Women's lack of forest tenure is not always a problem of land ownership. The problem is that women's rights are being violated (26), and the socio-cultural norms may be the source of the problem. In Malawi and Zambia, tree growing and the right to harvest the fruits of the forests and the trees are the men's affair, regardless of the matrimonial regime and inheritance rights (27). While the land may be held by the whole family, hence both wife and husband share equal access and user rights to the lands, the local cultural norms and traditions exclude the wife from reaping reforestation benefits (28).
Consequently, we select projects that will either protect or augment women's existing rights to forest access, use and management, as well as help increase their participation in the forest sector and in decision-making over forest resources. Through the partnership agreement and project monitoring, we also ensure that the projects we fund don't provoke adverse or unexpected weakening of women's access and user rights to land and forests.
No matter how much we'd like to create more access and use for, as well as increase the participation of women in decision-making regarding the fate of tropical forests in the countries we work in, we can't force it. When efforts to provide statutory rights for women clash with local customs, there likely will not be compliance (29).
We may be involved in projects involving communities where women have low forest and land tenure rights -- thus, with communities where the socio-cultural systems restrict women's access, use, and management of forest resources or limit women's land ownership. If we discard these projects, we may impede some of the most disadvantaged women on Earth from participating in reforestation efforts.
With gender-biased communities, our responsibility is to gently ensure progressive women’s empowerment and increased rights over time, with projects which target women in particular through training, awareness raising, and economic empowerment. Women's income generated through reforestation projects is always partly reinvested in their children's education and thus increases girls' education level in the community.
Both statutory and customary land tenure is carefully considered when TreeSisters evaluates projects for inclusion in our portfolio. Clarity over land tenure decreases the risk of social tensions and conflicts and decreases the risks of mismanagement of funded trees. We pay particular attention to social norms and traditions and question the place of women in the project area and the rights of women with respect to forests and trees. It is a complex evaluation and requires a deep understanding and respect for each area's traditional land use practices to be reforested.
1. The term ‘tropical countries of the Global South’ is used here to describe the geographic scope of TreeSisters’ Tree Funding. It entails all the poor countries around the world in or near the tropics. The ‘Global South’ refers to “a transnational political subject that results from a shared experience of subjugation under contemporary global capitalism” as explained by the blob post “What/Where is the Global South? | Global South Studies, University of Virginia.” Accessed July 17, 2020. Available here.
2. Adapted from the website of the Food and Agriculture Organization of the United Nations: “Forest Tenure.” Accessed July 10, 2020. Available here.
3. State forests, also called public forests, are owned by the central government, or by the state or provincial governments in federal systems, or else by the municipal/local governments.
4. Private forests refer to forest land owned by individuals, households and sometimes communities.
5. In developed countries, communal lands are territories in the possession of a community.
6. LandLinks. “The Future of Customary Tenure.” Accessed July 19, 2020. Available here.
7. Larson, Anne M. Tenure Rights and Access to Forests A Training Manual for Research. Part I. A guide to key issues. Bogor, Indonesia: Center for International Forestry Research, 2012.Available here. p.35 citing Von Benda Beckmann (1981).
8. Knight, R. S. Statutory Recognition of Customary Land Rights in Africa: An Investigation into Best Practices for Lawmaking and Implementation. Food and Agriculture Organization of The United Nations Legislative Study, no. 105. Rome: Food and Agriculture Organization of the United Nations, 2010. Available here. p.6
9. LandLinks. “Land Tenure and REDD+.” Accessed July 19, 2020. Available here.
10. Gilmour, D. A. Forty Years of Community-Based Forestry: A Review of Its Extent and Effectiveness, 2016. Available here. p. 21
11. Larson, A. M. Tenure Rights and Access to Forests A Training Manual for Research. Part I. A guide to key issues. Bogor, Indonesia: Center for International Forestry Research, 2012. Available here. p.10
12. Søreide, K. N. “Tribal Representation & Local Land Governance in India: A Case Study from the Khasi Hills of Meghalaya.” Chr. Michelsen Institute, Centre on Law & Social Transformation, 2017. Available here. p.6.