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What Rights: a Comparative Analysis of Developing Countries' National Legislation on Community and Indigenous Peoples' Forest

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What Rights: a Comparative Analysis of Developing Countries' National Legislation on Community and Indigenous Peoples' Forest WHAT RIGHTS? A Comparative Analysis of Developing Countries’ National Legislation on Community and Indigenous Peoples’ Forest Tenure Rights Rights and Resources Initiative May 2012 THE RIGHTS AND RESOURCES InitiatiVE RRI is a global coalition of international, regional, and community organizations advancing forest tenure, policy and market reforms. RRI leverages the strategic collaboration and investment of its Partners and Collaborators around the world by working together on research, advocacy and convening strategic actors to catalyze change on the ground. RRI is coordinated by the Rights and Resources Group, a non-profit organization based in Washington, D.C. For more information, please visit www.rightsandresources.org. PARTNERS SUPPORTERS The views presented here are those of the authors and are not necessarily shared by the agencies that have generously supported this work, or all of the Partners of the Coalition. Cite as: RRI. 2012. What Rights? A Comparative Analysis of Developing Countries’ National Legislation on Community and Indigenous Peoples’ Forest Tenure Rights. Washington DC: Rights and Resources Initiative. WHAT RIGHTS? A Comparative Analysis of Developing Countries’ National Legislation on Community and Indigenous Peoples’ Forest Tenure Rights Rights and Resources Initiative May 2012 02 Acknowledgements This report is the product of a comprehensive analysis conducted by Fernanda Almeida in consultation with national experts and RRI Partners and Collaborators, for a project led by Jeffrey Hatcher. The drafting team comprised Fernanda Almeida, Jeffrey Hatcher, Andy White, Alexandre Corriveau-Bourque, and Zachary Hoffman. Several individuals made significant contributions to the research, analysis, and reporting, especially Luke Bailey, Claire Biason, Jonathan Karver, Melissa Rice, Omaira Bolaños, Augusta Molnar, Rose Davis, Naomi Basik, Marina France, Jenna Di Paolo and Madiha Qureshi. Marcus Colchester and the staff of Forest Peoples Programme, and James Bampton and the staff of RECOFTC made significant contributions that improved the text. The authors thank reviewers Lorenzo Cotula, Jon Lindsay, Jon Unruh and Owen Lynch for their helpful guidance and comments. Juha Siikamäki and Bill Magrath provided thoughtful comments on the preliminary analysis presented at the World Bank Land and Poverty Conference in April 2012. The authors also thank the experts who contributed time, energy, and knowledge in reviewing the national legal analyses and conceptual framework that form the backbone of this report: Alfred Brownell, Amanda Bradley, Andiko, Annabelle Nilsson, Anne Larson, Ashish Kothari, Augustin Mpoyi, Aurelio Chavez, Azrina Abdullah, Barney Chan, Ben Kiernan, Bob Fisher, Cari Coe, Carl Moumbogou, Carlos Antonio Martin Soria Dall’Orso, Carlos Chex, Charles K. Meshack, Chief Edwin Ogar, Chris Moye Utz Che, Christian C. Lentz, Christian Chomba, Christine Wulandari, Clarissa Augustinus, Colin Filer, Daniel E. Whyner, David Barton Bray, David James, Davison Gumbo, Deidra Winston, Dinesh Paudel, Driss Ezzine-de-Blas, Duncan MacQueen, Elizabeth Andrew-Essien, Elizabeth Ndhlovu, Ermeto Tuesta Cerrón, Essono Ondo, Fadzilah Majid Cooke, Fergus MacKay, Francis E. Bisong, François Tiayon, Frederico Menino, Gam Shimray, Gama Galudra, Georges Thierry Handja, Gerben Janse, Godwin Kowero, Gun Lidestav, Guy Patrice Dkamela, Harri Hänninen, I.P.A. Manning, Iman Santoso, Jacob Mwitwa, James Bampton, Jan-Erik Nylund, Janette Bulkan, Javier Gómez, Jennifer Bromley, Jennifer Rubis, Joan Carling, John Palmer, Jonathan W. Yiah, José Benatti, José Eduardo Cuaical, Julius Chupezi Tiegunhong, K.C. Nahakul, Kenn Mondiai, Keshav Raj Kanel, Kittisak Rattanakrajangsri, Lea Jylha, Leonardo Tamburini, Li Ping, Liz Alden Wily, Lucila Pautrat Oyarzún, Madhu Sarin, Malcolm Childress, Manuel Ruiz Perez, Marcelo Arguelles de Souza, Margarita Flórez, Margarita Benavides, Marina Campos, Mary Allen Ballo, Matthew Steil, Mónica Hidalgo Cornejo, Naya Sharma Paudel, Odenda Lumumba, Patrick Anderson, Patti Moore, Paul De Wit, Paul Opanga, Peter May, Peter Mbile, Peter Veit, Phil René Oyono, Phil Shearman, Pimolwan Singhawong, Ramon Laborde, Reidar Persson, Rina Kristanti , Robert Fisher, Rose Fumpa-Makano, Samuel Nnah Ndobe, Sanjay Upadhyay, Sarah Milne, Sek Sophorn, Shambhu Prasad Dangal, Sharachchandra Lele, Sharon Ousman-Arjoon, Silas Kpanan’Ayoung Siakor, Silvel Elias, Simon Norfolk, Somying Soontornwong, Sven Wunder, Tan Nguyen Quang, Tapani Oksanen, Théophile Gata Dikulukila, Timo Karjalainen, Tom Blomley, Tom Griffiths, Tunde Morakinyo, Udomsak Sinthipong, Vanda Radzik, Walter Arteaga, Wilfred Nyangena, William Sunderlin, Wong Meng Chuo, Xu Jianchu, Xu Jintao, Yati A. Bun, and Yogeswaran Subramaniam. The authors thank Alastair Sarre for his invaluable editorial assistance. Rights and Resources Initiative Washington, D.C. Copyright © 2012 Rights and Resources Initiative Reproduction permitted with attribution ISBN 978-0-9833674-4-4 Design and layout by Lomangino Studio (www.lomangino.com). Printed on Forest Stewardship Council certified paper. www.rightsandresources.org 03 PREfacE Interest in who owns and manages the world’s forests has grown steadily over the past decade. In part, this is due to major international initiatives like REDD+ or FLEGT that have raised awareness of the widespread problems of tenure insecurity. More importantly, however, this is due to the increased voice of local communities and Indigenous Peoples claiming their rights to lands and resources, and to greater political openness and support among citizens, governments and the private sector for recognizing these rights. This growing demand for reform has led to new national legislation and international commitments, including the relatively recent adoption of UNDRIP and the Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests. But despite this growing interest, there has been very little detailed analysis of the growing body of land and forest legislation, and what tenure rights they recognize. And there has not yet been an analytical framework or tool to compare legislation, monitor implementation, or assess whether national land and forest law is consistent with the emerging set of international commitments. This new report is a first attempt to provide that framework and to analyze the legislation of a majority of the world’s most forested developing countries. It shows that since 1992 there has been a dramatic increase in legislation that recognizes rights, as well as progress on the ground and a substantial increase in the amount of land owned or controlled by communities and Indigenous Peoples. Yet, the report also reveals the sad fact that these gains are limited to a relatively small set of countries and the majority of the world’s forests remain claimed by governments with almost no recognition of the legal rights of the millions of people who have inhabited and managed the forests for generations. This disconnect is becoming more apparent and more urgent to rectify—especially as forest lands are increasingly targeted for investment. Africa is particularly far behind, where approximately 97% of the forests remain claimed as state property. We know, of course, that statistics and laws do not always tell the whole story. Indeed, a major finding in this report is that the laws on the books that recognize local tenure rights are, by and large, very limited and weakly implemented. 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. Andy White Coordinator Rights and Resources Initiative Rights and Resources Initiative 04 Abbreviations and Acronyms ASL Location-based Social Association (Agrupaciones Sociales del Lugar) (Bolivia) DRC Democratic Republic of the Congo DUAT Right of use and benefit of land(Direito de uso e aproveitamento da terra) (Mozambique) FLEGT Forest law enforcement, governance and trade FPIC Free, Prior and Informed Consent ICMbio Chico Mendes Institute for the Conservation of Biodiversity (Instituto Chico Mendes de Conservação da Biodiversidade) (Brazil) INCRA National Institute for Colonization and Agrarian Reform (Instituto Nacional de Colonização e reforma Agrária) (Brazil) ITTO International Tropical Timber Organization JFMA Joint Forest Management Agreement (Tanzania); Joint Forest Management Area (Zambia) LCFC Local Community Forest Concession (Cambodia) Mha Millions of hectares NTFP Non-timber forest product PNG Papua New Guinea RECOFTC RECOFTC–The Center for People and Forests REDD Reducing greenhouse gas emissions from deforestation and forest degradation RRI Rights and Resources Initiative UNDRIP United Nations Declaration on the Rights of Indigenous Peoples VPA Voluntary partnership agreement For full descriptions of the tenure regimes found in each country in this report, see the Country Profile Annexes on the Rights and Resources Initiative’s tenure data webpage. www.rightsandresources.org/tenuredata www.rightsandresources.org TABLE OF CONTENTS Preface .............................................................................................................................03
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