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Review of Legal Frameworks for Communitybased Natural Resource Management in Selected Asian Countries (Draft)

September 2007

Chip Fey - Editor


World Agroforestry Centre Bogor, Indonesia

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft)

Acknowledgements
In addition to the sources cited, this report draws on three main bodies of information, compiled during the Rights and Resources Initiatives Listening, Learning and Sharing programme. It includes information from a series of country studies carried out by Keith Barry, Tan Quang Nguyen, Adrian Wells, Robert Oberndorf, Naya Sharma Paudel, Myrna Safitri, Tim Forsyth, and Augusto Gatmaytan. It also brought together the wealth of information provided from the two regional workshops organised by RRI members ICRAF, RECOFTC with the assistance of the Forest Peoples Programme. The first workshop was hosted by RECOFTC in Bangkok, Thailand, in May 2007 and examined the situations in Nepal, Laos, Vietnam, Cambodia and Thailand and the second hosted by the Samdhana Institute in Cagayan de Oro, the Philippines, in July 2007 reviewed the situations in the Philippines and Indonesia. We would like to thank the following who attended these workshops for their extremely insightful inputs. The names and contacts of these individuals can be found in the appendices. Addition thanks to Tony Quizon for reviewing the manuscript. This work was funded by the Ford Foundation through a grant to the International Union for the Conservation of Nature. Additional contributions in kind to cover staff time were provided by RECOFTC, ICRAF and the Forest Peoples Programme. The authors would like to thank the staff of the Rights and Resources Group, in Washington DC, notably Andy White, Arvind Khare and William Sunderlin, for helping to steer the process. We would also like to thank the International Alliance of Indigenous and Tribal Peoples of the Tropical Forests and the Asia Indigenous Peoples Pact for helping us identify suitable participants. Organising these meetings and ensuring everything worked smoothly involved the efforts of very many people but we would like to single out for special thanks Wallaya Pinprayoon and Beth Villamor, for their hard work, cheerfulness and efficiency.

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft)

Table of Contents
Acknowledgements ......................................................................................... 2 The Rights and Resources Initiative...................................................................... 5 Listening and Learning and Sharing: Background ...................................................... 6 CAMBODIA ................................................................................................... 8 Legal Framework on Ownership and Control over Forest Areas and Land ................................... 8 Status of Land/Forest Ownership and Tenure.................................................................... 10 Main Issues in Natural Resource and Local Rights: The Government Perspective ......................... 11 Issues on Natural Resource and Land Rights: The Civil Society Perspective ................................ 12 Efforts at Tenure Reform ............................................................................................ 12 Cases on Tenure Reform ............................................................................................. 13 Poverty and Forests ................................................................................................... 15 Prominent Threats to Local Rights and Livelihoods ............................................................. 16 Main Governmental and Civil Society Actors in Forestry ....................................................... 17 Efforts at Decentralization .......................................................................................... 18 Some Key Opportunities to Advance Tenure and Poverty Issues.............................................. 19 Indonesia.................................................................................................... 20 The Legal framework on ownership and control over forest areas and land ............................... 20 Cases in tenure reform ............................................................................................... 24 Poverty and forests ................................................................................................... 25 Prominent threats to local rights and livelihoods ............................................................... 26 Laos.......................................................................................................... 27 The legal framework on ownership and control over forest areas and land................................ 27 The Legal Situation and Forest-Land Management in Laos .................................................. 28 Status of land/forest ownership and tenure ..................................................................... 29 Main issues in natural resource and local rights: government perspective ................................. 31 Issues on natural resource and land rights: civil society perspective........................................ 32 Efforts at tenure reform ............................................................................................. 34 Poverty and forests ................................................................................................... 37 Key Government Initiatives or Programs to Reduce Poverty in Forest Areas ............................... 39 Prominent threats to local rights and livelihoods ............................................................... 40 Documentation of Lao Social Movements ......................................................................... 43 Some key opportunities for advancing tenure and poverty issues............................................ 47 Malaysia ..................................................................................................... 50 The legal framework on ownership and control over forest areas and land................................ 50 Status of land/forest ownership and tenure ..................................................................... 51
Inconsistencies between the national legal framework and local government legal frameworks (i.e. in a federal system)...................................................................................................... 55 Main issues in natural resource and local rights: government perspective ................................. 56 Issues on natural resource and land rights: civil society perspective........................................ 57 Efforts at tenure reform ............................................................................................. 58 Poverty and forests ................................................................................................... 58 Prominent Threats .................................................................................................... 58 3

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) Main Governmental and civil society actors in the rights and resources arena ............................ 59

Nepal ........................................................................................................ 60 The legal framework on ownership and control over forest areas and land................................ 60 Status of land/forest ownership and tenure ..................................................................... 62 Main issues in natural resource and local rights: government perspective ................................. 62 Issues on natural resource and land rights: civil society perspective........................................ 62 Efforts at tenure reform ............................................................................................. 63 Poverty and forests ................................................................................................... 64 The Philippines............................................................................................. 68 Legal framework governing rights to land and resources ...................................................... 68 Land and forest ownership and tenure ............................................................................ 70 Resource and local rights problems according to the state ................................................... 70 Resource and local rights problems according to civil society ................................................ 71 Overview of tenure reform efforts ................................................................................. 72 Case-studies: Impact of tenure reforms.......................................................................... 73 Forests and poverty ................................................................................................... 74 Prominent threats to local rights and livelihoods ............................................................... 75 Main actors in social movements and forestry initiatives ...................................................... 76 Key institutional players in social movements ................................................................... 77 Linkages between social movements and the broader political context .................................... 78 Technical capacity gaps within social movements .............................................................. 78 Policy context.......................................................................................................... 79 Key opportunities ..................................................................................................... 80 Thailand..................................................................................................... 82 The Legal framework on ownership and control over forest areas and land ............................... 82 Status of land/forest ownership and tenure ..................................................................... 85 Main issues in natural resource and local rights: government perspective ................................. 86 Issues on natural resource and land rights: civil society perspective........................................ 87 Efforts at tenure reform ............................................................................................. 88 Poverty and forests ................................................................................................... 91 Vietnam ..................................................................................................... 94 The legal framework on ownership and control over forest areas and land................................ 94 Status of land/forest ownership and tenure ..................................................................... 95 Main issues on forest resources and local rights: government perspective ................................. 96 Issues on natural resource and land rights: civil society perspective........................................ 97 Efforts at tenure reform ............................................................................................. 98 Specific cases in tenure reform..................................................................................... 99 Forests and poverty ................................................................................................. 100 Prominent threats to local rights and livelihoods ............................................................. 101 Main governmental and civil society actors in the forestry rights and resources........................ 102 Opportunities and strategic areas for development intervention .......................................... 103 Initial recommendations for collaborative action ............................................................. 104 References................................................................................................ 106
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Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft)

The Rights and Resources Initiative


The Rights and Resources Initiative (RRI) is an informal coalition of organizations dedicated to advancing the jointly agreed goals and activities of the Initiative. It consists of various organizations that have been discussing the major transitions in forest sector and priority steps to guide these transitions to achieve pro-poor forestry outcomes. Founding Partners include IUCN, CIFOR, Forest Trends, and RECOFTC. Individuals from DFID, IDRC and the Ford Foundation have provided intellectual and financial support for the Initiative. ACICAFOC and FPCD joined the Initiative during the interim period between October 05 and February 06. During the February meeting, ICRAF and Intercooperation were admitted as Partners. In June 06, Forest Peoples Programme (FPP) was admitted, and Civic Response in April 07. The Rights and Resources Initiative (RRI) engages governments, social movements and community organizations to consider and adopt institutional reforms. The RRI advances a strategic understanding of the global threats, opportunities, and promising models of tenure and business, and catalyzes effective and efficient intervention on forest tenure and governance globally. The RRI members supports communities, national and local research, advocacy and outreach organizations, governments, donors and international institutions to achieve two targets within the framework of the MDGs: 1. To substantially increase the forest area under local ownership and administration, with secure rights to conserve, use and trade products and services; and 2. To dramatically reduce poverty in the forested areas of the world. The RRI monitors, assesses and reports on global progress on these goals, and is a global node of information on forest tenure, poverty and policy issues. The design and approach of RRI is based on previous collaboration among Partner organizations that has had proven impacts in key countries, including China and Indonesia, and among strategic constituencies that include community leaders, leaders of public forest agencies, and intergovernmental institutions such as the World Bank, the ITTC and the FAO. The RRI is a strategic coalition, going beyond the traditional set of international development actors to directly involve a wide spectrum of organizations, each of which occupies a critical niche and provides a critical perspective in the larger chain of actors necessary to advance change. Partners span the range from research to advocacy; from local community to international; and from human rights to conservation. And Partners span the globe. Representatives for Asia, Africa and Latin America ensure regional expertise and political connections, and several based in Europe and the United States engage with donors and other international organizations to transform their roles in policy dialogue. The coalition operates within a program structure that is at once nimble but clearly focused on specific targets, coordinated by a staff dedicated to and evaluated on their effectiveness and progress on the targets, and held directly accountable to the coalition Partners. The value proposition of the Initiative is that with a limited incremental investment in collective coherence, strategic planning and coordination, these existing organizations can dramatically increase their impacts in favor of the worlds poor.

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft)

Listening and Learning and Sharing: Background


The Listening, Learning and Sharing (LLS) exercise was designed and carried out to further ground the RRI partners in the regions and at the national and local levels of key countries. The primary objectives were four: 1. Create or strengthen linkages between RRI partners and key players at the regional, national and local levels who are active in promoting land and forest tenure and related policy reforms; 2. Capture new information and develop analysis on threats and opportunities, ideas and strategies that will form the basis for future RRI activities in Asia; 3. Facilitate the international expression of local voices or communities who are marginalized or disenfranchised by decision making processes that concern land use, forest area classifications and forest management priorities. 4. Develop a RRI long-term Asia strategy based on a solid and mutual understanding of the roles and responsibilities of Initiative members The Southeast Asia office of the World Agroforestry Centre (ICRAF) worked with current RRI partners and selected individuals in the Asia region in the development of a regional overview of the main legal and regulatory questions concerning of ownership or access to and management of land-based natural resources. The main issues that are common through the regional are six: 1. Land use classifications that emerge from national planning processes rarely coincide with landscape realities. Large areas are classified as forest lands and land use options for local people are restricted even through there is little or no tree cover or the need to create environmental services that are particular to forest ecosystems. Conflict between local people and government planning and forestry agencies is therefore common (as well between local and national governments). This points to a need, in most countries looked at, for a process of land use rationalization, one that prioritizes achieving a rational of combination of actual forest areas and agriculture. 2. Land consolidation by forest industries and/or agribusiness is increasing rapidly, threatening the livelihoods and futures of millions of small farmers and their communities. Palm oil plantations and large tree farms for pulp used in paper production are the most prominent examples. New attention being given to the production of bio-fuels and/or carbon offset schemes will likely lead to increased large holder land grabbing in the counties studied. 3. Efforts to increase areas of Protected Forests in each country have led to confusion and conflict over land and forest tenure. It is not uncommon that little attention was given to actual forest cover, biodiversity assessments, and forest hydrology in the decision making processes that created many of these protected areas. For actual natural forests in need of protection, the participation of local, particularly indigenous communities in the conservation planning and management of these areas is most often missing or even worse, local communities have been, at times, been evicted from these areas. 4. Governance over natural resources both in terms of the legal protection of local rights to ownership or use has been weak. This, in most countries, can be traced to a lack of government accountability and transparency as well dysfunctional judicial systems. 6

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) 5. The recognition of the rights of indigenous peoples rights is either missing or incomplete in all countries surveyed. Even when the legal framework supports recognition, delineation procedures and experience is weak. 6. Concerning community-state relations, government regulations often make it difficult or impossible to transport and market timber and other forest products. The following eight country studies were carried out as background material for RRI members and others interested in getting a relatively quick picture of the situation in each country. The format was designed to be consistent in order to facilitate information flow and uniformity.

In 2005, founding members of the Rights and Resources Initiative (RRI) coalition agreed to undertake a scoping program to assess and understand the realities, challenges and opportunities in tropical forest countries around the world. The program, called the RRI Listening, Learning and Sharing Launch (LLSL), was designed as a series of consultations and conversations that could serve as an ear to the ground to understand the concerns and goals of community organizations, civil society organizations, and governments. The goal was to bring these voices and experiences to help shape the global and regional priorities for RRI. LLSL was organized around the three key regions in which RRI is engaged Africa, Asia and Latin America. In a series of scoping studies and participatory consultations, RRI Partners identified key trends, issues and opportunities in policy, tenure and livelihoods in forest areas. The dialogues, workshops, background papers and synthesis reports prepared as part of the LLSL inform RRI strategy and planning in each region and created new and stronger links between RRI Partners and local civil society organizations. A selection of the synthesis reports and background papers are publicly available on the RRI website at www.rightsandresources.org. This report was completed as a part of the Listening, Learning and Sharing Launch program. The ideas and information presented here are those of the authors and are not necessarily shared by Rights and Resources Initiative or the Partners in the RRI coalition.

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft)

CAMBODIA
Legal Framework on Ownership and Control over Forest Areas and Land
The primary pieces of legislation and regulation that govern issues of access, use and tenure rights to state land, specifically state-owned forest lands in Cambodia, are as follows:

Land Law (2001)


The Land Law outlines concepts of land classification (state public, state private and private) and ownership in Cambodia. It includes important provisions on communal property ownership rights of minority indigenous groups within the country. The Land Law does not specifically spell out any mechanisms for land use planning and management, but it does call for the enactment of a sub-decree on state land management that was recently passed in 2005. With regards to the ownership rights of minority indigenous groups, provisions within the Law are somewhat vague, and the subsidiary regulations for implementing these provisions and for providing clarity have not been put into place. It appears that there is not much political will on the part of the Government to push this regulatory agenda.

Forestry Law (2002)


The Forestry Law outlines the general rules and regulations related to the administration and management of the Permanent Forest Estate within Cambodia. The law gives primary jurisdiction over the Permanent Forest Reserve to the Forestry Administration (FA). The FA is also given jurisdictional authority over other areas within the Permanent Forest Estate, such as forestry crimes in Ministry of Environment (MOE) Protected Areas and the regulation of timber plantations on private land (private forest). The Forestry Law outlines the basic structures, functions and responsibilities of the FA. The Forestry Law is one of the most important existing pieces of legislation related to forest land tenure issues. This Law contains important provisions on traditional use and access rights to forest resources, though these do not include management rights. Worth noting are the provisions that allow for the creation and management of community forests, whereby communities are granted an area of the Permanent Forest Reserve to manage and derive benefits from. Unfortunately provisions within the Forestry Law allow community forestry activities to occur only in areas classified as Production Forest, thereby excluding areas of Protection Forest or MOE-controlled Protected Areas from this management scheme. The Forest Law clearly states that the State Public Forest Lands are owned by the State. Provisions regarding the land rights of indigenous groups are not clear. Unfortunately it is not entirely clear what constitutes the Permanent Forest Estate in Cambodia, as it has not been delineated, demarcated and registered (the same is true for all State Land in Cambodia). Forest is defined in the Law as: A unit of natural or artificial forest ecosystem, in the form of wet, inundated or dry land, covered by mixed vegetation, either natural or planted, including wildlife and other natural resources located therein, which the main utilizations are the production of Timber Products and Non-Timber Forest Products, and other forest services. Lands to which this law does not apply include all land designated by the State as permanent agricultural land, including: farms, idle land to be designated for other agriculture production than timber production, industrial areas, and land for urbanization and construction. 8

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft)

Royal Decree on Protected Areas (1993)


This Royal Decree creates the system of MOE Protected Areas, but does very little in regards to the management of these areas. The Royal Decree has been criticized for its judicial legitimacy, though that has been handled through the passage of the Forestry Law; essentially the Forestry Law is the mechanism by which the National Assembly has ratified the Royal Decree and given MOE clear jurisdiction over the management of these areas. It should be noted that the MOE is in the final stages of drafting a Community in Protected Areas Prakasi which will be used to define the access, use and management rights of those communities whose livelihoods are dependent on forest lands within MOE Protected Areas.

Sub-Decree on the Organization and Functioning of the Cadastral Commission (2002)


This sub-decree outlines the basic duties of the Cadastral Commission in terms of land registration as well as land dispute resolution. This commission will be very important in terms of settling disputes where individuals are claiming ownership of what could potentially be state property, such as areas of the Permanent Forest Reserve that have been encroached upon. This sub-decree creates a multi-layered set of Cadastral Commissions at the district, provincial and national levels for handling land disputes. The Prakas on guidelines and procedures of the Commission provides more detailed procedural steps for dispute resolution. Unfortunately these bodies have not functioned well, and are not established in all areas of the country.

Sub-Decree on Social Land Concessions (2002)


The purpose of this Sub-Decree is to define the criteria, procedures and mechanisms for the granting of social land concessions for residential use and/or family farming. This sub-decree sets up a mechanism whereby the government may grant state private land to eligible heads of poor families that, depending on the circumstances, are in need of the land for residential or family farming purposes. The social land concessions initially carry only a grant of use and occupancy, though this may convert to a right of ownership with title if recipients follow the defined criteria within the program for five years.

Community Forestry Sub-Decree (2003)


This sub-decree, specifically authorized by the Forestry Law, outlines the general rules and procedures for community forestry within Cambodia. Detailed procedures and requirements necessary for implementation will be laid out in the guideline Prakas that are in final drafting stages at the moment. (It is expected that the guideline Prakas will be enacted by the Ministry of Agriculture, Forestry and Fisheries sometime in 2006.)

Sub-Decree on Demarcation and Registration of the Permanent Forest Estate (2005)


This sub-decree outlines the procedures to be followed by the Forestry Administration for the delineation, demarcation, classification and mapping of Cambodias forest areas, including privately owned forests. The Sub-Decree calls for the creation of a national multi-ministerial committee for the implementation of the sub-decree, including handling disputes over the delineation or classification of areas that are part of the Permanent Forest Reserve, which is considered as State Public Property under the management authority of the Forestry Administration. 9

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft)

Sub-Decree on State Land Management (2005)


This Sub-decree, which is called for in the Land Law, sets up the mechanisms for delineating, demarcating and registering all State land, including State Forest Land, in the country, and sets up mechanisms for handling disputes during this process. There are concerns that this Sub-decree overlaps and conflicts with the provisions in the Sub-decree on Demarcation and Registration of the Permanent Forest Estate mentioned above.

Sub-Decree on Economic Land Concessions (2005)


This sub-decree, which is called for in the Land Law, sets up the mechanisms for the granting of agricultural land concessions on State Land in Cambodia. As stated in the sub-decree: to determine the criteria, procedures, mechanisms and institutional arrangements for initiating and granting new economic land concessions; for monitoring the performance of all economic land concession contracts; and for reviewing economic land concessions entered into prior to the effective date of this sub-decree for compliance with the Land Law of 2001. Agricultural land concessions in Cambodia can include tree plantations. It is unclear if this sub-decree would apply to Production Forest Areas within the Permanent Forest Reserve (State Public Land) as defined in the Forestry Law, since the Land Law states that these economic land concessions can only be granted on areas classified as State Private Land. There are also provisions related to the resettlement of people who would be displaced by an economic land concession, though the wording is vague.

Status of Land/Forest Ownership and Tenure


It is difficult to get accurate information regarding who owns what in Cambodia since land records were destroyed during the period of the Khmer Rouge. State Land (both State Private and State Public) has not been delineated, demarcated and registered, while efforts at delineating, demarcating and registering private parcels of land officially began only under provisions of the new Land Law after 2001. In addition, lands that would ostensibly be communally owned by indigenous minority groups under provisions in the Land Law have not been registered or formally recognized by the central government due to a lack of political will and a noted absence of subsidiary regulations that are necessary to implement relevant provisions in the Land Law. Tenure security for all communities on State Forest lands/MOE Protected Areas is tenuous at best. Existing Community Forestry sites are not yet formally recognized, due to the absence of an enabling Community Forestry Guideline Prakas that is needed to implement the Community Forestry Sub-Decree, and the Prakas on Protected Areas Communities that will cover MOE Protected Areas is still in draft form. There seems to be no vehicle by which communities within Permanent Forest Reserve Protection Forest Areas can secure any tenure rights (other than perhaps indigenous minority communities that fall under the previously mentioned relevant provisions of the Land Law). Those entities with concession agreements seem to be in a better position in terms of power and economics. It seems likely that remaining Forestry Concessions will be cancelled, but there are no guarantees in this regard. The new Economic Land Concession Sub-Decree may bring some clarity to the situation regarding land concessions in Cambodia, but at the moment it appears that land concessions are being granted with little regard to existing legal requirements. The information on Cambodia in the Forest Trends document, Who Owns the Worlds Forests, is very limited and woefully out of date, since it is based on a report from 1998. There are not 33 forestry concessions in Cambodia; most of the concessions have been cancelled or abandoned, all have been existing within an ongoing logging ban for several years (though logging still continues, as evidenced by 10

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) the availability of wood for the domestic market). Also, the cited document does not take into account more recently granted land concessions, many of which exist in areas that could or should be considered as part of the Permanent Forest Reserve. In some ways data from the FAO Forest Resources Assessment is more useful since it states that data needs to be reassessed. It is still out of date, as evidenced by its consistent reference to the Department of Forestry and Wildlife, which was replaced by the new Forestry Administration structure in 2003; and referencing old community forestry guidelines that were supported by the Asian Development Bank (ADB), but which were never formally adopted by the Government as policy, without mentioning the Community Forestry Sub-Decree, which was enacted in 2003. The most recent ITTO Report for Cambodia and the 2004 Independent Forest Sector Review (IFSR) reports are much more up to date and accurate. The ITTO report makes a very valid point when it states that data on Cambodian forests are often inconsistent and unreliable. Anyone considering engaging in this sector should take the time to read the IFSR reports (not just the main report). Within Cambodia, there are significant problems currently with illegal land grabbing by those with power and money (clearing forested areas and claiming it as private), illegal logging, and small-scale encroachment on forest lands by the large number of landless individuals in Cambodia. This makes the issue of knowing who owns what that much more difficult since the situation is quite fluid.

Main Issues in Natural Resource and Local Rights: The Government Perspective
From the perspective of the Royal Government of Cambodia (RGC), the main issue related to natural resource and local rights problems in the forestry/land arena would have to do with illegal clearing of the forest and land grabbing, which the RGC does recognize as partially due to the actions of power elites. However, the government is quick to point out that poor individuals are also to blame for encroachment on State Forest land, and the Prime Minister has issued several directives at ending the chaotic destruction of the countrys forest lands, but with little real impact. If anything, it would appear that the RGC is more concerned with local community interference with concessions that are granted, than with protecting the rights of local communities that find areas of land they consider to belong to them have been included in a concession agreement. This is the case not only with the land itself, but with the natural resources on the land, such as resin trees that are customarily used by many forest-dependent communities for income generation. In some ways there is also conflict within the government itself. While the Forestry Administration within the Ministry of Agriculture, Forestry and Fisheries is quite interested in maintaining as much area as possible under the classification of Permanent Forest Reserve, other ministries, such as the Ministry of Land Management, would be more interested in having some of these areas be either classified as nonState Public but State Private so they could be used for Economic Land Concessions, Social Land Concessions, or sold. The RGC seems to have little interest in addressing the issue of minority indigenous land rights as spelled out in the Land Law, including the granting of large areas of land under communal titles. Many minority indigenous communities are coming under increasing pressures to sell land individually or in splinter groups; some have experienced outright eviction from lands that they have traditionally used.

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Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft)

Issues on Natural Resource and Land Rights: The Civil Society Perspective
Civil society, depending on the organization, is generally concerned about securing access and use rights for local communities, in conjunction with the right of local communities to manage their local resources. It is recognized that many poor rural families are dependent on the natural resources in their area for subsistence needs, in addition to concerns about protecting environmental services and biological diversity. Community based natural resource management and livelihoods development are important themes in the Cambodian context. There is an interest in securing the land ownership rights of minority indigenous groups, and there has been pressure on the government to enact the necessary subsidiary regulations for implementing the relevant provisions in the Land Law that secure these rights. Other areas of interest include increased transparency from the government in decision-making matters, better enforcement of existing laws and regulations, and protection of human rights. "Civil society is growing rapidly, but it is far from effective in amplifying the voice of citizens and in particular the poor. Most local NGOs are relatively young, inexperienced, and constrained by the familiar problems of collective action. There is little tradition of consulting NGOs prior to enacting an important law or developing new policy, unless there is donor pressure for such consultations. Local NGOs rely on international ones to raise issues with government through their influence with bilateral donors. Heavy dependence on foreign funding tends to shift NGO accountability from the poor in Cambodia to foreign fund providers. The NGOs also need to practice what they preach by being responsible and ensuring that their management and finances are subject to the same degree of transparency and accountability that they demand of government."ii

Efforts at Tenure Reform


The complicated land tenure situation in Cambodia can be traced through the land policies of successive regimes. During the Khmer Rouge period (1975-1979), land tenure and cadastral records were destroyed and private property was abolished, and all land became vested in the State. Following the Vietnamese invasion and the defeat of the Khmer Rouge (1979-1989), all land officially belonged to the State and collectives that occupied and used land for agricultural purposes were established. By 1989, collectivization of agriculture had failed. The government began reforming the economy and reintroduced private property rights for residential plots and the right to occupy and use cultivation land. Collectivized agricultural land was redistributed to private households in sizes ranging from 0.1 to 5 hectares. The 1992 Land Law continued to recognize use rights for agricultural plots up to five hectares, recognizing state public land and state private land as distinct domains. However, the 1992 Land Law did not provide a solid platform for full tenure for effective land management, nor did it result in systematic documentation and registration of landholdings. Around four million applications for land certificates were made, but few certificates were actually issued. This left, until now, a high portion of the population vulnerable to eviction by powerful interests that exploit weak governance to secure possession of valuable tracts of forest and agriculture lands. After years of preparation and unusually inclusive public debate, a new land law was passed in August 2001. This law establishes for the first time the right of private ownership for both residential and agricultural holdings. On paper, this law is a relatively comprehensive instrument to protect and regulate private and public interests in land. It clarifies rights issues, recognizes communal land rights for indigenous people and allows for systematic land registration and records maintenance. Provisions are also made for a land distribution mechanism (social concessions) and the law puts a ceiling of 10,000 hectares on industrial agricultural concessions. Yet, implementing even basic provisions in the land law 12

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) will take many years and will challenge elite interests that have benefited from the lack of transparency surrounding landholding. In addition, true progress in implementing the law is dependent on courts operating according to the rule of law, which might be an even greater challenge. Key issues that will have to be addressed include the reduction of giant agricultural concessions granted to insiders and rarely exploited, the fate of large areas of land remaining under military control, encroachment of new farms into virgin forests, issuance of indefeasible right-proving documents for agriculture and residential land, determination of the boundaries of state land, and the protection of indigenous tenure in highlands. The government is currently preparing a framework for land policy as part of the Land Management and Administration Project (2002-2007) supported by the World Bank, whose purpose is to complete land registration in Cambodia and strengthen land management capacity. A second phase beginning in 2007 is also planned. It should be recognized that just because the 2001 Land Law and its subsidiary regulations provide for secure, equal and enforceable land rights to all, this does not mean that the legislation is fully implemented. The proportion of landholders with legal titles to their land is still small. There is also a lack of maps, land registers and a functioning land administration. The unclear ownership situation has a damaging impact above all on the economic opportunities of the poor. Reports from both law courts and research on land rights bear witness to the continued expulsion of poor peasants by the military, holders of public power and some actors in the emerging private sector. The overall legal framework governing land, forestry, fisheries and water is incomplete, and compounded with weak enforcement of existing laws and regulations, limits the security of access of rural households. Other than tenure issues associated with the Land Law, the Forestry Law of 2002 includes provisions for Community Forestry, whereby a community may be granted the right to manage and benefit from an area of Permanent Forest Reserve classified as Production Forest through a Community Forestry Agreement. These agreements are for a period of 15 years, renewable based on compliance with the terms of the agreement. While the Community Forestry Sub-Decree was enacted in late 2003, it has still not been implemented due to the fact that the draft Community Forestry Guidelines Prakas has yet to be enacted within the Ministry of Agriculture, Forestry and Fisheries. Likewise, there is currently a draft Protected Areas Community Prakas within the Ministry of Environment that will be applicable to the countrys Protected Areas system. (Both of these prakas are expected to be enacted in 2006.)

Cases on Tenure Reform


Private Land Titling Initiatives
Analyses based on the Cambodian Social-Economic Survey (CSES) 2004, find that secure land tenure, in the form of certificates or application receipts (properly registered in accordance with the Land Law), significantly raises crop yields, the value of land, and household consumption. Secure land tenure, i.e., a formal land title in the form of a certificate, increases rental value by 57 percent; sale value by 38 percent; crop yields by 63 percent; and household consumption by 24 percent. The main reason is that a well-defined property right improves private appropriability of returns. Owners with secure land titles are more willing to invest in higher-risk and potentially higher-payoff activities, such as planting perennial trees and diversifying into vegetable and cash crops. Unfortunately only a small portion of privately claimed land has been properly titled to date through the Land Management and Administration Project; as 80 percent of the rural households that owned land were without land titles in 2004. In addition, indigenous minority communities seeking community titles under provisions in the Land Law have not benefited, due to the lack of subsidiary regulations in place. 13

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) As such, a vast majority of Cambodias rural landholders have what may be considered as tenuous tenure security, especially with the increasing instances of land grabbing in the country.

Economic Land Concessions


Over the past decade, the Government has constituted a system of economic concessions by providing 70-year leases covering 889,399 hectares of land to 49 private companies. This was ostensibly motivated by a perceived need to commercialize agriculture; yet in practice, only a few (about 10 concessions) are operational. Reviews point out that such concessions are often awarded without adequate investigation in the field, resulting in overlaps with traditional rights, leading to conflict and intimidation against which responsible institutions (the cadastral commission and courts) are often helpless. A number of concessions appear to be speculative, and/or a mechanism to circumvent more stringent rules pertaining to forest concessions. It is reported that less than one-third of concessionaires have paid their required deposit to the Government, make rent payments or pay taxes, suggesting that thus far the scope for using concessions to collect additional revenue has been quite limited. Suspicion over the motives for awarding these concessions is fueled by the fact that 14 concessions exceeded the 10,000-hectare limit above which a special review is required yet no review has yet been implemented.

Social Land Concessions


The Government is now in the process of canceling a number of non-operational economic concessions. It is proposed that these lands be transferred to landless (and land-poor) households under a system of social land concessions (established by sub-decree in 2003). Although the motivations for this policy are primarily, as the name suggests, social or distributional, there is a strong economic rationale too. As in other countries, it appears that rural households in Cambodia are small but efficient agricultural producers. According to analyses from the CSES 2004, small farms are more efficient than large farms, whether measured by crop income, crop yields, profits or output value per hectare. Reallocating idle economic concession land to smallholders through social concessions has a clear rationale in terms of improved productive efficiency. Increased land utilization compared to the existing economic concessions will boost aggregate economic activity. However, the implications of the findings on small farm productivity go beyond simply making the case for speedy implementation of the social concession policy. More broadly, the inverse relationship between farm size and productivity suggests that there should be a general presumption in favor of secure smallholdings, rather than very large commercial holdings, as the foundation of the Cambodian agrarian structure. Although there may be a case for large commercial farms under certain agroecological and market access conditions, this will need to be established on a case-by-case basis. To date, the implementation of this policy has been extremely slow and difficult, partially due to a difficulty in finding land that is not contested in some way. An example of the potential growth benefits of the equitable distribution of land is that of Malai District in Cambodias northwest, in which deforested land was allocated to households following the integration of this former Khmer Rouge stronghold into the Royal Government in the late 1990s. This land allocation initiated a boom in non-rice cultivation; the magnitude was so significant that Cambodias remarkable growth during recent years in maize, cassava and soybeans could be attributed to the Northwest region.

Community Forestry
Recently, Community Forestry has received considerable attention as a potential alternative (or complement) to forest concession management. Community forestry is envisioned as an effort to support 14

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) and empower communities to continue their traditional use of forest resources, encourage sustainable practices, and support initiatives for socio-economic development and poverty reduction. Community forestry is also intended to harness local knowledge and skills regarding forest management and to ensure communities have a stronger voice in forestry sector decision-making. Signs of increasing support for community forestry include greater on-the-ground efforts to organize and develop community forests, enactment of the Community Forestry Sub-Decree, establishment of a national-level Community Forestry Office (CFO) within the Forest Administration and steps towards formulating of a National Community Forestry Program. In 2005, the CFO identified more than 200 community forest pilot projects in Cambodia. In many cases, at the village level there are groups of people calling themselves community forestry groups that are in very preliminary stages of organizing community forestry. Many of these groups have support from Oxfam GB, NGO Forum and other NGOs. The size of these forest areas is largely unknown at present since many projects are in initial planning stages and/or seeking to establish community forests within concession areas. Unfortunately these existing pilot sites remain just that, pilot sites. They do not have formal recognition from the government. It is hoped that these sites will enter into formal Community Forestry Agreements with the government after the Community Forestry Guidelines Prakas is enacted by the Ministry of Agriculture, Forestry and Fisheries.

Poverty and Forests


Forests occupy 63 percent of the countrys area (data from 2002/03). Forest clearing has accelerated in recent years, affecting particularly heavily populated areas. Forest cover in Cambodia was once estimated to be 70 percent in the 1960s and 1970s. Official statistics suggest that the sector contributed only 2.1 percent of GDP; although this figure is likely to under-report extensive illegal logging, underestimate the real value of non-timber forest products (NTFPs), and ignore the reduction in value of remaining forest assets. In the Plateau region, where most forest resources remain, 53 percent of rural households remain below the poverty line. (Poverty rates may have actually increased in this region.) Forests provide an important source of rural livelihood in Cambodia, particularly for local communities. Access to forestry resources is more important for the poor than the non-poor. A significant component of forestry production is for household consumption among the poor; the largest share is firewood. Besides firewood, non-timber products such as root crops, fruits and vegetables, palm juice and fibrous material contribute to household cash income and nutrition intake. It is commonly perceived that incomes from forestry activities are declining a fact documented by many empirical studies and recent land-use mapping exercises, and reinforced by a recent study of perceptions of commune heads (Danida, 2005). Perceived loss of forests was more severe in the Mountain/Plateau regions where households depend on forest resources for a higher proportion of their income. The Independent Forest Sector Review (2004) identified the fastest rates of forest degradation occurring in areas surrounding (expanding) villages, and alongside new road corridors. Conversion of forests to agricultural use is occurring with little regard to the optimum use of land or soil quality. Of the 1.3 million hectares of forest land cleared between 1997 and 2002, 37 percent was of low soil quality, compared to 19 percent of agricultural land existing in 1997 (Dmmer, 2004).

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Prominent Threats to Local Rights and Livelihoods


Growing Landlessness
The proportion of rural households lacking land for cultivation has risen from 13 percent in 1997 to 16 percent in 1999 and 20 percent in 2004. An additional and growing number of households are nearlandless, owning only very small plots. As with inequality, a trend to rising landlessness is inevitable, given Cambodias transition from a socialist to a market economy since 1989.

Loss of Forest Resources by Forest Dependent Communities


Forest dependent communities and individuals face a very real threat of losing the very resource they depend upon. This can take many forms from illegal cutting of resin trees, illegal conversion of forest to agricultural uses by power elites or encroachment from landless outsiders (see landlessness above), legal cutting of forest resources through remaining forestry concessions (if current ban is lifted), legal cutting of forest resources due to implementation of an annual coupe system, or conversion of forest areas to either economic or social concessions, etc. The loss of forest resources affects rural ethnic Khmer as well as minority indigenous groups.

Increasing Land Conflicts


Alternative sources all suggest that the frequency and severity of land conflicts in Cambodia is rising, even if they paint a slightly different picture on the detail of trends. Oxfam GB has supported the maintenance of a database of reported land conflicts, which enables the analysis of trends up to April 2005. In 2004, land disputes rose by a reported 50 percent, which may be seen to reflect the fact that the Land Law had not been strictly implemented. Land conflicts, either within a community, between communities, or between a community and outsiders can have a negative impact on livelihoods depending on the circumstances involved, but especially if it due to illegal land grabbing. It is reported that there has been an increase in land grabbing in Cambodia, partially due to an increase in land speculation fueled by a marked increase in land prices.

Health Shocks
Results from surveys in two villages south of Phnom Penh suggest that while crop failures and illnesses are both devastating experiences that entail similar magnitudes of economic damage (averaging a few hundred thousand Riels), households find it harder to cope with illness. The negative consequences from health shocks are more damaging to both immediate and long-run livelihoods because they require an immediate lump-sum of money for urgent treatment. Because most households do not have sufficient savings (and rural credit markets do not operate well), households are often forced to resort to distress sales of productive assets (including land) and/or enter long-term debt, reducing their future income streams and increasing their non-consumption expenditures, respectively. This broadly confirms the findings of earlier Oxfam studies which found that half of all distress sales, or around 40 percent of cases of once-landowning families losing land, involved health crises. (Yagura 2005; Biddulph 2004; Ballard and So 2004)

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Main Governmental and Civil Society Actors in Forestry


Government
Ministry of Interior Responsible for local government units (province, district and commune). Commune Councils are democratically elected, and carry out an annual commune development planning process. Natural resources management fits within their mandate, though they are explicitly excluded from decision-making related to forest lands in the country. There are initiatives to change this and to create a form of partnership forestry where the Commune Councils would have a more direct role in forest resource management. The Department of Local Administration (DOLA) is responsible for issues related to Commune Council administration. Ministry of Environment Responsible for managing the countrys Protected Areas system (not to be confused with Protection Forest areas, which are part of the Permanent Forest Reserve and managed by the Forestry Administration). Also responsible for reviewing Environmental Impact Assessments. Will be implementing the draft Protected Areas Community Guidelines Prakas once it is enacted. Ministry of Land Management, Urban Planning and Construction Responsible for registering and mapping all State Public, State Private and Private Land. Primary ministry responsible for implementing the State Land Management Sub-Decree and Social Land Concessions. Handles the cadastral system in the country. The Land Management and Administration Project (LMAP) is located within this ministry. Ministry of Agriculture, Forestry and Fisheries Responsible for the broad agriculture sector in Cambodia, and is also involved in decision-making related to forest management, agricultural concessions, fisheries management, etc. The Forestry Administration is within this ministry. Forestry Administration Responsible for managing the countrys State Public Forest lands (Permanent Forest Reserve, consisting of Production Forest, Protection Forest and Conversion Forest for other purposes).

International NGOs and donors


Key Donors Danida (Natural Resources and Environment Program, Danida head Mogens Christensen is also co-chair of the Technical Working Group for Forestry and Environment), DIFID (Rural Livelihoods), GTZ (Rural Livelihoods, Decentralisation, Land Management), JICA (the only major donor still directly involved with the Forestry Administration, large training program and some involvement in issues related to Community Forestry), ADB (multiple initiatives), WB (multiple initiatives, including Land Management and Administration Project, but currently freezing funds on projects due to concerns regarding corruption). NGOs and Related Organizations Cambodian Development Resource Institute (policy think-tank that has a natural resources component and has published a number of good reports), Community Based Natural Resources Management Learning Institute (a relatively new research and project implementation organization in Cambodia that was established with the help of WWF, potential as a key partner), NGO Forum (working on a number of issues throughout the country; Katrin Seidel is working with them on indigenous land rights issues), Community Forestry International (working with local 17

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) NGOs to assist with community forestry implementation, communities in Protected Areas, and assisting indigenous minority groups protect their land claims), WWF Cambodia (conservation, livelihoods development, community based natural resource management initiatives, sustainable forest management and certification; geographically focused in East and North of Cambodia), FFI (conservation, livelihoods development; primarily focused in Southwest Cambodia), Conservation International (conservation, livelihoods development, Forest Law enforcement; primarily focused in Southwest Cambodia), Wildlife Conservation Society (conservation, livelihoods development; primarily focused in Eastern Cambodia), American Friends Service Committee (community forestry), Concern Worldwide (heavily involved in community forestry in recent years, but changing focus to livelihoods development), Lutheran World Federation (livelihoods development through community forestry), Oxfam GB (supports forestry related local NGOs throughout the country, with a specific focus on community forestry and CBNRM), Southeast Asia Development Program (works with local NGOs and community forestry groups, especially in terms of linking with local government; also supports community forestry networks).

Efforts at Decentralization
Below the central national level of the Royal Government of Cambodia (Prime Minister and Council of Ministers) there are provinces, districts and communes. At the provincial and district level, governors and chiefs are appointed by the Prime Minister. At the local level, commune councils were democratically elected for the first time in 2002, replacing the communist model of appointed commune party chiefs in use since the 1970s. The governments decentralization strategy is based on a bottom-up, integrated, participatory and decentralized rural development model. It includes an expansion in the number of Village Development Committees (VDCs) an elected body whose function is to represent the village in the management of rural development projects. The decentralization programme includes a commitment to decentralizing expenditure responsibilities to communes. The Law on Commune Administration (2001) and the commune elections were important steps in decentralizing rural management. However, the absence of legal clarity regarding the status and scope of authority of provinces, municipalities and districts enables a top-down mentality of planning and instructions to persist. This limits the ability of local communities to direct their own development. Weaknesses in human resources for financial monitoring, accounting, contracting, regulatory roles, reporting, project appraisal and technical expertise also raise questions about the ability to implement decentralization measures in the short to medium term. The SEILA programme, initiated in 1996 with assistance of UNDP and SIDA to formulate and test decentralization of planning, now extended at the national level, has demonstrated the problems that arise when planning is not sufficiently linked with financing. The current SEILA programme is supporting both decentralized and de-concentrated agencies with financial support and capacity building at the national and local level (provincial, district and commune). The SEILA Task Force and Partnership for Local Governance are not only implementing the core program, but also other donor-funded programs using the SEILA structure, including those of IFAD, WB, WFP, DFID and Danida. SEILA does have an environment program that is focused on incorporating natural resource management issues into the annual commune development planning process. The Government sees decentralization of powers and authority to the commune level of government as crucial for the strengthening of local voices in government and improving public service delivery. While the holding of commune elections was an important first step, further effort is needed to expand opportunities for citizens to influence and participate in governance. Currently, the commune councils control very limited resources resulting in low levels of implementation of services and investment. They still lack the authority, administrative capacity, and financial resources to accelerate development at their level, and have limited means for dispute resolution. The government policy on de-concentration, as mentioned above, has not been clearly articulated and there is a need for stronger harmonization 18

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) between decentralization and de-concentration policies. The government is in the process of putting in place an organic law for provincial and district levels of government, which will assist in clarifying the policies related to decentralization and de-concentration in the country. It is important to note that while one of the expressed roles of the Commune Councils is natural resources management, they are explicitly forbidden to have any decision making authority with regards to the forestry sector. There is interest in the donor community, however, to have the Commune Councils be more involved in this sector, with calls for implementation of a partnership forestry model as espoused in the final report of the Independent Forest Sector Review (2004). In addition, the Forestry Administration does recognize the importance of including the Commune Councils during the process of establishing community forestry in the country.

Some Key Opportunities to Advance Tenure and Poverty Issues


There is a real need to strengthen existing networks so that they function sustainably. Community Forestry International has published a report on existing NRM networks in Cambodia, which would be useful as background information. There are existing gaps in current regulations and guidelines that hinder the implementation of important provisions within the legal framework related to tenure and access rights to natural resources. A quick gap assessment could lead to direct initiatives to rectify this problem. There is a real need for additional education on existing rules and regulations, not only for communities (where much effort is already being made), but for government employees who are responsible for implementing the relevant rules and regulations. There is need for direct assistance related to understanding the broader market place and opportunities for livelihoods development based on broader market desires and demands. This could be based on looking beyond the commune, district, province ultimately tying into regional markets beyond Cambodias boundaries (concentric circles of opportunity). A large part of the problem is being able to respond to market signals due to a lack of available information, or an inability to understand the information that is available.

Glossary of Selected Terms Used


FA MOE Oxfam GB prakas RGC Forestry Administration Ministry of Environment Oxfam Great Britain a subsidiary regulation, or a set of rules and guidelines to implement an existing law or decree Royal Government of Cambodia

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Indonesia
The Legal framework on ownership and control over forest areas and land
Article 33 of the Indonesian Basic Constitution provides the legal doctrine for establishing state control rights over land and natural resources. According to Law 41/1999 (Forestry Law), the states control over the forest gives the (central) government the authority to assign certain areas forested or not as forest zones, or to change the status of such forest zones into non-forests. In addition, the state also regulates and determines legal relations between man and forests, and the legal actions related to forestry activities.
The Law defines a forest as a unit of ecosystem in the form of lands comprising biological resources dominated by trees, living in their natural environment which cannot be separated from each other. By legal definition, there is no difference between a natural and planted forest. Furthermore, the Law introduces the notion of forest zones ( kawasan hutan) as areas that are designated by government and declared as permanent forest. These may or may not be covered by trees. The Indonesian government mentions that such zones cover 120.35 million hectares, or 62% of the entire country. In reality, however, only 86 million hectares is actually covered by some form of forest, planted or natural. The designation of forest zones was conducted, initially, by following logging concession areas. Then, in the early 1980s, a process named TGHK (Consensual-basis of Forest Land Use) allowed forest boundaries to be designated through desk studies and consensus among government agencies. The accuracy of TGHK has always been questioned, and the TGHK process has been rejected by local communities because it was seen as responsible for the unilateral acquisition of community lands. The TGHK also became problematic with the introduction of the Provincial Spatial Planning (RTRWP). There were many overlapping areas between forest and non-forest zones as mentioned in both the TGHK and RTRWP. Hence, consultations were again conducted between the Ministry of Forestry (MoF) and provincial governments to build consensus. This resulted in the Paduserasi or the harmonization of TGHK and RTRWP. The 120.35 million hectares designated as forest zones are the product of such consensus. Land rights is the key element that determines the status of forest tenure. The Forestry Law says that state forests are forests located on land without private rights; whilst forests located on land bearing private rights are called private forests (hutan hak). In this regard, property rights between land and forest is embedded vertically. Once someone holds the land rights, s/he is able to lay claim over the forest. Thus, the issue of who owns the land and who owns the tree is no longer significant. Nevertheless, the operational regulations of the Forestry Law seem to have a distinctive notion on the property rights system. Regulations, particularly those concerning forestry licenses, emphasize that the ones who hold rights to forest resources cannot claim rights over the land. This means that there are different property rights on land and forest resources. Indonesian land law recognizes this as the horizontal principle of property rights. This is a common practice in the customary land tenure system as well. If the law is consistent with the horizontal principle, the issue of property rights on planted forest is important. There are several misleading concepts about forest zones, state forests, and the jurisdiction of the Ministry of Forestry (MoF).

First, MoF officials assume that all land within the forest zone is state forest. This is the legacy of the old Indonesian Forestry Law (Law 5/1967), stating that state forests are forest zones and forests located there can hold no-ownership rights. The new Forestry Law the state forest must have forests on it as defined by the law. Therefore, state claims on non-forested land is legally inconsistent.
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Second , the existing Indonesian forest zones are legally problematic. The law states that, in order to provide legal certainty to the status of forest zones, the government undertakes forest gazettment (pengukuhan hutan) a process that consists of a series of stages, including forest designation (penunjukan kawasan hutan), boundary demarcation, mapping, and stipulation of the final legal status of forest zones. As of 2005, only 12 million hectares or 10% of forests have been legally declared as forest zones. The remaining 108 million hectares are still at the status of designation, which is merely the initial stage of declaring certain areas as forest zones. After the designation stage, which is a one-sided decision of the government, there must be a delineation process for verifying whether the land is free from other individual or community claims. Only after the land is free from such claims can it be declared as state forest zone. Obviously, when the status of 108 million hectares is in the designation process, there is no guarantee that the land is free from private claims. Therefore, putting state claims on those 108 million hectares is inconsistent with the Forestry Law. Third , state forests are not the same as MoF jurisdiction. It should be noted that the legal notion of public land or tanah negara is significantly different with government land. Public land refers to land without registered private rights. People can obtain rights on the public land, provided they ask the government to grant the rights. To support its tasks and function, the government can control the land, but it should have the rights, namely the right to manage (hak pengelolaan) or right to use ( hak pakai). If the MoF argues that the state forest is its exclusive jurisdiction, and it refuses to grant any land rights on the forest, it seems that such forests are located on government land not on public land. Yet, there is a question about the legal status of such government land. Indonesian land law clearly states that the government should have the hak pengelolaan or hak pakai and should register the land with the National Land Agency (BPN). The MoF has done neither. Therefore, its claims may be seen to have no legal basis.

Communal rights
People exercise several rights in forest zones. Some are communal; others are individual or collective. The communal rights are: 1. Adat Forest (Hutan Adat): State forest located in traditional areas of adat (indigenous) communities is adat forest. Law 41/1999 has very general stipulations on adat forests. The draft Government Regulation on adat forest mentions that the government will recognize an adat forest as long as the communities exist. Local governments would recognize their existence through local regulations (Peraturan Daerah). If the communities are assumed (by the government) to no longer exist, their management rights on adat forest would be returned to the government. 2. Forests with specific purposes (Kawasan dengan tujuan khusus): For purposes of public interest such as research and development, education and training, as well as religion and culture, government may declare certain parts of state forests as areas with specific purposes (kawasan dengan tujuan khusus). This also provides a legal option for adat communities to access state forests. 3. Village forest ( Hutan Desa): Law 41/1999 states that a state forest managed by a village community and used for villagers welfare is called a village forest (hutan desa). However, the Law offers no further explanation and operational regulations on this. 4. Community forestry ( Hutan Kemasyarakatan): State forest management directed towards community empowerment is called a community forest. There have been sets of operational policies on community forests. The valid one is the Minister of Forestry Decree 31/Kpts-II/2001. People, indigenous or not, may have access to a state forest through community forest licenses.

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Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) As individual citizens or groups (cooperatives), people have rights to state forests through licenses for commercial utilization of forest areas, timber and non-timber forest products (NTFPs) as well as licenses for collecting timber and NTFPs. These licenses are valid from one to one hundred years depending on the type of license and resources. Under this licensing system, private companies have the same opportunities as communities to access the forest. The Basic Act on Agrarian Reform and Natural Resource Management enacted by the national assembly, Indonesias highest lawmaking body (TAP MPR IX/MPR/2001) provides the principles and direction for government action on agrarian reform and national forestry legal and policy development yet legal options for the communities continue to be primarily directed towards sharing management responsibility over state forests. On the contrary, there are some initiatives at the local government level that provide stronger rights for communities, notably adat communities. Some initiatives worth noting are district regulations in Wonosobo (Central Java), West Lampung, Lebak (Banten) and the decree of Bupati in Bungo (Jambi). These local regulations are supportive of communal land and forest tenure even though the MoF has always rejected the idea of communal land titles on forests. Using the land law framework this would be possible by, for example, implementing the Regulation of Agrarian Minister 5/1999. Yet, there is a great deal of work needed to develop legal innovations regarding procedures for communal land titling registration.

Status of land/forest ownership and tenure


In 2005, the MoF stated that, based on the harmonization of TGHK and RTRWP, forest zones in Indonesia cover 120.35 million hectares. These are commonly assumed as state-controlled forests. On the other hand, there is no exact data related to actual community control of state forests. The Forest Trends publication in 2002, using the FAO data on forest community development programs, estimated that community administered areas in public forest covered 0.6 million hectares. Meanwhile, the FAO in its recent publication of Global Forest Assessment has concluded that the state controls one hundred percent of the 98 million hectares of actual forest cover in Indonesia. Currently lead the MOF has designated only 202,570 hectares for community forest (hutan kemasyarakatan) programs. Of this number, communities have been granted licenses (thus having more certain legal tenure) over 73,309 hectares. No official data relates to the number or coverage of adat forests, including those that have been recognized by the government. Sporadically, there have been some government initiatives for recognizing those forests. In Krui, Lampung, for example, 29,000 hectares of adat forests have been allocated as forest with specific purposes (kawasan dengan tujuan istimewa/khusus); in Lore Lindu national park, the Katu people obtained recognition for 1,178 hectares of their forest. Similarly, the government has recognized 690 hectares of adat forest of the Guguk community in Jambi. These three cases indicate that the government has recognized less than 50,000 hectares of adat forest. Added with community forests, the whole government-recognized, communityadministered areas cover between 115,000 to 250,000 hectares. Meanwhile, logging concessions enjoy 27.8 million ha and the forest estate companies have 5.4 million ha in concessions. On private land, the government does not have data about private/peoples forest. Similarly, FAO also has no data regarding private forests. However, this cannot neglect the fact that private forests exist outside the forest zones. In the course of 2000-2004, the MoF stated that project undertakings on peoples forests covered an area of 7,730 ha. However, these refer solely to government funded-projects. Hence, they cannot describe the actual extent of private forests. Meanwhile, government data on forest cover (2004) indicated that there are approximately eight million hectares of forest located in non-forest zones, These can be categorized as private forests that could be owned by communities as well as by companies.

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Main issues in natural resource and local rights: government perspective


In its strategic planning for 2005-2009, the MoF has identified several problems that Indonesian forestry is still dealing with. First, illegal logging and illegal timber trading (including timber smuggling) have been taking place at a spectacularly high rate in the last eight years. Citing a study on the pulp and paper industries, Bappenas mentioned that, in 1997, around 37 million cubic meters of timber supplies to those industries came from illegal logging. A year later, the volume doubled to 56.6 million cubic meters. In the last two years, illegal logging contributed between 30 to 50 million cubic meters of national timber consumption. The State has lost about IDR 30.42 trillion yearly due to illegal logging and timber smuggling. Second, forest fires occur throughout the country, particularly in Sumatera and Kalimantan. In 2002, MoF reported that fires took place on 35,497 hectares of forests. Most of the fire destruction (44.37%) was found in national parks, followed by production forests (43.37%). Third, unstable forest zones due to spatial planning processes are not well coordinated; not all forest zones have management units, nor community-friendly forest utilization approaches. Fourth, even without official data, the MoF realizes that the large number of poor people living in and surrounding the forest presents a big challenge. Fifth, the high demand for forest land from other government agencies leads to increasing tension over the forest zones. Sixth, investment policies are not conducive for forestry development.

Issues on natural resource and land rights: civil society perspective


Indonesian Civil Society Organizations (CSO) as well as forest dwelling communities (notably those who were involved in public consultations on the natural resource management draft law) agree that degraded natural resources now pose the greatest challenge. The lack access to clean water and air pollution are just a few examples. Mining is seen as responsible for many local environmental problems. Furthermore, environmental disasters like floods, droughts and landslides are becoming widespread. Forestry crimes like illegal logging and timber smuggling are another problem. Besides reflecting weak law enforcement, these crimes demonstrate the interplay between political and economic interests among elites at national and local levels, at the cost of forest sustainability and social cohesion of local communities. Local communities also are often willing victims in illegal logging cases. Funded by the elite, they get involved in illegal logging activities and face the risks of being apprehended and sentenced. In addition, conflicts among people become inevitable due to competition in destructive logging activities. Poverty emerges because of unfair access to resources and unequal control over land between communities and government/private companies. The conditions of the poor get worse when disasters take place. Resource conflicts become long-lasting problems. Land conflicts have come up throughout the country. During 2005, for example, KPA (an NGO promoting Agrarian Reform) recorded 53 land conflicts, mostly occurring in plantation and conservation areas (including national parks) and mining concessions. Competing access to natural resources leads to communal conflicts involving indigenous communities and migrants. Ethnic hostilities in Central and West Kalimantan are some examples. In the CSO view, these conflicts have demonstrated the failure of government projects on national integration by neglecting and undermining the indigenous communities. In addition, local elites have used local communities in their political rivalries.

Efforts at tenure reform


Although there is no strong legal argument for MoF to exercise exclusive control over forest zones, MoF domination over the zones continues. Over the past 20 years, the MoF has made no significant effort to introduce land tenure reform. Until now, it commits to strengthen its control over the forests through programs of stabilizing forest zones (pemantapan kawasan hutan). Arguing that 30 percent of the countrys land should be kept forested, and given its strategic role as the government institution responsible for preserving the forests, the MoF has a clear position regarding land tenure, i.e., no negotiation for changing the status of state forests. But while it appears that this ministry 23

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) has taken a very strong political position, this is not always true. There are many examples demonstrating how state forests have been converted into palm oil plantations and transmigration areas. In 2001, the MoF reported that 654,000 ha of forest were converted into transmigration areas. Meanwhile, forests are utilized for non-forestry purposes as well; mining is a common example. From 2000 to 2004, some 144,000 ha of forest have been used for other purposes. All of these illustrate that the MoF has to eventually share, even lose, its jurisdiction over the forest zones. Interestingly, most of the allocation of forests has been carried out with private companies rather than with the communities. There is little evidence to show that forest conversion goes to the communities for developing community-based forest management. One exception is what occurred in Lampung Province in 2001. Under strong pressure from communities and local government, the MoF agreed to convert 145,000 hectares of forest zones into non-forest zones; and the National Land Agency (BPN) then granted individual ownership rights to the communities. If tenure reform is defined as allocating land for people, then to some extent there have been sporadic local efforts to grant or recognize management rights on forestland. As earlier mentioned, some local governments have recognized adat forests, and also granted community forest licenses to nonindigenous communities. Nevertheless, these efforts may appear as trial-and-error policies. The MoF does not conduct systematic efforts to support such local initiatives. The MoF even committed a created blunder on the issue of community forests, by making a political request to local governments to discontinue the granting community of forest licenses for as long as the MoF has not allocated such community forest areas.

Cases in tenure reform


The Krui and Wehea Cases in West Lampung
Located in West Lampung, the Krui is an adat community consisting of 16 traditional socio-political units (marga) who have been practicing people-based agro-forestry systems dominated by damar (shorea javanica) . Repong damar is the name of those agro-forests. In the colonial times, part of the adat territories were allocated as conservation areas. The MoF classified those areas as state forest in 1984, then granted logging concessions on such forests. The communities protested. CSOs consisting of NGOs, researchers and academics supported the communities, since the repong damar had shown success as an example of community-based forest management. The CSOs lobbied the Minister of Forestry for recognition of the repong damar and for the granting of security of tenure to the Krui people. In 1998, the Minister of Forestry issued Ministerial Decree 47/Kpts-II/1998 designating 29,000 hectares of Krui adat forest as areas with specific purposes (Kawasan dengan Tujuan Istimewa, or KdTI). Meanwhile, a similar initiative for designating a KdTI has come up in East Kalimantan. The Wehea people reside in the sub-districts of Muara Wahau, Teleng and Kembeng in the District of East Kutai. Similar to other adat communities, their adat territories were allocated by government as logging concessions. After the concessionaires left the territories, the Wehea indicated their intention to manage the forest as their adat protection forest. Facilitated by local NGOs, they asked the Bupati to recognize their rights over the forest. In 2004, the Bupati declared 38,000 hectares of the ex-logging concession as protection forest managed by the Wehea (Hutan Lindung Wehea) . The Bupati has proposed to the Minister of Forestry to issue a decree of Kawasan dengan Tujan Khusus for the Wehea. (Until now, the local people and local government are still awaiting the Ministers decision.)

The Guguk Case


In 2003, the adat communities of Guguk Village (Marga Pembarap) living in the sub-district of Sungaimanau, Merangin District, Jambi obtained recognition to 690 hectares of their adat forest from the Bupati of Merangin. They had been struggling for almost five years. Starting in 1999, a logging company 24

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) operated in the surrounding adat territories. Then, the company expanded their logging activities into the adat forest without permission and giving compensation to the communities. In protest, the communities asked the company to end the logging, return the territories to the communities and pay for compensation. The community had successful negotiations with the company. Afterwards, they proposed the Bupati to recognize the forest as their adat forest. The communities argued that defending their adat forest was important since they had witnessed how some adat communities surrounding their village had exploited their forests. The Bupati instructed the BPN to delineate the territory before issuing a decree recognizing the adat forest.

The Katu People in Lore Lindu National Park, Central Sulawesi


The Katu people are one of the adat communities residing in 60 traditional villages in and around the Lore Lindu National Park in Central Sulawesi. As in other conservation areas, Lore Lindu authorities had restricted peoples access to the forest since they were seen as potential destroyers of the forest. For this reason, the Katu along with other adat communities were due to be relocated from the forest in 1980. However the Katu rejected this offer. In 1993, the government re-launched its relocation plan. An ADBfunded project (Central Sulawesi Integrated Area Development and Conservation Project) had come up with the conclusion that the Katu had contributed to destruction in the national park. The Katu again rejected offers for relocation. Facilitated by a local NGO Yayasan Tanah Merdeka they conducted participatory mapping of their adat land and tenure. They used the map for negotiating with the Head of the National Park Administration. After a series of negotiations, the National Park recognized 1,178 hectares of the park as Katu Adat Forest.

The Sumber Agung and Simpang Sari Villages in Lampung


Javanese and Sundanese migrant communities in Sumber Agung and Simpang Sari villages, Lampung have obtain community forestry licenses in the Provincial Park and Protection Forests. The Sumber Agung villagers acquired the license from the Minister of Forestry in 1999 for managing around 500 hectares of the Wan Abdul Rahman Provincial Park. Meanwhile, the Simpang Sari villagers, particularly those who joined the Marga Laksana Forest User Group obtained the same license from the Bupati in 2002.

Poverty and forests


There is no official data on populations living in and nearby forests, as well as on the extent of poverty in forest areas. However, there have been attempts to arrive at some estimates. Wollenberg, et.al (2004), citing Brown (2004) for example, has arrived at the conclusion that there are 48.8 million people living in the forest zones, and 10.2 million of them are poor. The MoF, even without adequate data on poverty incidence in forest areas, has come to recognize that poverty is one the big challenges facing Indonesian forestry. It has committed to enhance the incomes of forest dwelling communities by 30 percent in the next five years. Community economic empowerment, i.e. by undertaking support programs of small and medium forestry enterprises, is the government option for reducing poverty. In addition, the MoF has instituted several livelihood programs and policies. However, these are never clearly stated as poverty reduction programs. The government CBFM policies are an example of those livelihood programs. They consist of taungya (tumpang sari) mostly conducted in Java and Nusa Tenggara, PMDH or forestry community development of logging concessions including state forestry corporations (Perhutani), and government community forestry (hutan kemasyarakatan). The main objective of these programs is to set up joint forest management and charity programs. None of these relate to providing security of tenure over forestland, when in fact, tenurial security significantly contributes to long-term improvement in the livelihoods of people.

25

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) Meanwhile, CSOs have also initiated some livelihood programs. Yayasan Pantjur Kasih in West Kalimantan has been developing a credit union for providing people with soft loans. This NGO has assisted community-based credit unions in other parts of the country such as in East and South Kalimantan and Siberut (West Kalimantan). SHK Kaltim, an NGO based in East Kalimantan, has a rattan program for rattan farmer and handcrafter groups. The program is an attempt to set up a business network of rattan farmers. Yayasan Alam Lestari in East Sumba, Nusa Tenggara, has been assisting people to build up a food processing business unit. In the forest-river ecosystem called Ekosistem Air Hitam in Central Kalimantan, an NGO consortium and community organizations work together to develop credit unions and to produce NTFPs like honey and rattan. In Yogyakarta, outside the forest zones, people living in five villages in Bantul, Kulon Progo and Gunung Kidul Sub-districts assisted by some local NGOs have been attempting to combine conservation, food security, and local business by developing food processing businesses.

Prominent threats to local rights and livelihoods


As perceived by local communities (based on a series of workshops on adat and poverty as well as public consultations on the NRM Bill), the threats to local rights and livelihoods are: 1. There is lack of recognition and protection of the rights of adat/local communities over land and natural resources; reformasi and decentralization have not significantly changed the relations between state and people over land and natural resources. State domination and control over land and resources continue. It is only in a few regions where civil society movements are relatively strong that some reform has occurred. As a result, most people have not enjoyed their secure rights over land and natural resources. 2. Illegal logging creates multiple effects like destruction of watershed areas, internal conflicts among communities because of competing access to timber, and victimization of local communities. 3. Changes in the political system, e.g., the direct election of governor and Bupati, has caused social conflicts at local levels; in addition, forest resources have been used for political transactions such as when local forestry licenses are granted to the allies of the governor/Bupati. 4. The acquisition of adat/peoples lands continues, particularly in cases of plantation and mining concessions. 5. There is degradation in the quality of natural resources such as air and water pollution. 6. Environmental disasters, including flood and forest fires, have become more frequent. 7. There has been an increase in the transfer of lands to outsiders. In the absence of a social security system, people engage in land transactions with outsiders in times of need, thus changing the structure of land tenure in the village. 8. There is a continuing lack of access to basic needs (education, health). Interestingly, decentralization has not provided better services for local people. 9. People who want to be involved in the trading of forest products face perennial problems of low prices for local commodities and weak bargaining position vis-a-vis middlemen. Conclusions

Glossary of Key Terms Used


Bappenas CSOs MOF NTFP RTWP TGHK Indonesian National Development Planning Agency Civil Society Organizations Ministry of Forestry Non-timber Forest Products Provincial Spatial Planning (process) Consensual-basis of Forest Land Use (process) 26

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft)

Laos
The legal framework on ownership and control over forest areas and land
The phrase legal framework is a potentially obfuscating analytical basis for understanding contemporary forest-land management issues in Laos. It risks presuming not only a clearly specified and internally consistent portfolio of forest-land laws,iii but also a judicial-institutional system which holds any meaningful capacity for oversight or enforcement. Building a basic and consistent legal framework is one of the objectives of development assistance in Laos; it does not yet comprise the context in which such assistance is occurring. Using instead concepts such as legal situation,iv a term which emphasizes the ad hoc, often inconsistent, and unevenly applied nature of legal reforms may be a more useful starting point. An important element to the complexity of the legal situation in Laos is the considerable disconnect between central administrative policy formulation, and its actual implementation in rural areas, in the context of a nation state in which military, provincial and even district level authorities maintain considerable independent power.v With these caveats in mind, it is possible to outline the progress made in recent years towards a establishing a regulatory framework governing forest-land rights and ownership in Laos.

The Lao Constitution and Forest-Land Management


The political structure in Laos can be described as an authoritarian, one party communist state, which in effect is ruled by a Political Bureau, elected from the Central Committee, of the Lao Peoples Revolutionary Party (LPRP) (Stuart-Fox, 2006). Ideally, National Constitutions serve as foundational principles for establishing a national legal framework. At this time, Laos does not have a constitutional court, to represent the forum whereby the consistency between the constitution and legislation may be tested and debated (Stuart-Fox, 2006). StuartFox (ibid.: 70) notes:

Even in the Ministry of Justice and among the few professional lawyers, knowledge of the new laws and their application is sketchy Whether or not a law is constitutional or an interpretation valid is decided by the Standing Committee of the National Assembly [NA], comprising the president and vice-president, plus the presidents of the six NA commissions. In other words, it is decided by the Party.
In Laos, key issues in forest policy relate less to discrepancies between national and provincial/ local regulatory frameworks per se, as under the 1991 Constitution it is only the National Assembly which is enabled to pass laws. Rather, significant incongruence lies between (i) the effective relationship between the Constitution, the legal regime and the LPRP, (ii) the formulation of a clear and consistent legal regulatory regime which is understood and upheld, and (iii) the political ability to implement such a legal regime in what is still, in administrative terms, a highly de-centered (and, particularly in forestry, corrupted) vi administration. In forestry and logging, powerful actors beyond the effective reach of regulatory frameworks maintain key interests, including the Lao military and politically influential persons. Under the 1991 Lao Constitution (Art. 17), all forest land, including communal village forest land, is the ultimate property of the national community, which is represented by the state. The state may act in allocating forest land for rational usage, to individuals, communities and organizations. Individuals and organizations acquire use rights to trees, natural forest and forestland only when permission is received from the relevant authorized agency (Forest Law Art. 5). The Constitution guarantees the right of using, transferring and legally inheriting land (Art. 17), and the right of Lao citizens to complain, to petition and propose requirements with respect to the activities of government organizations (Art. 41).

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Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) The Lao constitutional framework recognizes all ethnic groups as citizens of the Lao state. This is inclusive of upland, ethnic minority groups who may have crossed national borders into their present locations in more recent times.vii Article 8 of the Lao Constitution states All ethnic groups have the rights to protect, preserve, and promote the fine customs and cultures of their own tribes and of the nation, including, it could be argued, in tradition of forest-land management (e.g, VFI, 2004). The significant problems with respect to ethnicity, resource tenure and livelihoods in Laos will be discussed in detail below.

The Legal Situation and Forest-Land Management in Laos


1996 Forest Law (Law 125):
Under the Forest Law (Art. 5), all natural forests and forest lands are the property of the national community, as represented by the state. At the national scale, the Forest Law classifies forest land into legal categories: including protection forest, national level conservation forest (National Biodiversity Conservation Areas, NBCAs), and state production forest. In terms of Production Forest (a category not inclusive of planted forests), the World Bank et al. (2001: i) stated: Two and one- half million hectares are designated as production forests, but these are not mapped, criteria for their designation are not published, and logging is not confined there . In 2002, a Prime Ministers Decree (No. 59) was issued on Sustainable Management of Production Forest, followed in 2003 by a Ministry of Agriculture and Forestry issued Regulation (No.0204/MAF). These documents set basic principles and field implementation standards for establishing Production Forest Areas. PM/59/2002 also acknowledges the participation of villages in all aspects of production forest management (FS 2020: 6). Rare for Southeast Asia, the Lao Forest Law legally recognizes a set of customary use rights of villages based on their traditions within the village boundary (Forest Law Art. 30). Customary rights in village areas include: (1) 5 [cubic meters] of wood per year for housing, fences and school construction, (2) collection, use and sale of non-protected NTFPs (3) aquatic and wildlife hunting of non-protected species (4) use of degraded forest for agriculture, planting, grazing, etc (VFI, 2004: 8). A Prime Ministers Decree (PM/03/1996) addresses village boundary demarcation, internal zoning of land use, and forest land allocation through LFA-LUPLA. Under Land and Forest Allocation, village boundaries and village forest and agricultural areas are delineated, and forests are classified into five basic categories: protection, conservation, production, regeneration and degraded forests. Village production forest can be used for NTFP collection and for household timber use; timber cutting is officially not permitted in protection or conservation forest. Upland agricultural rice practices (swidden) may be undertaken in designated areas only. Up to three hectares per family may be awarded with Temporary Land Use Certifications (T-LUCs) for swidden farming. In theory, T-LUCs are convertible into Land Use Certificates if the land is being used in an (as yet undefined) sustainable manner. Inclusive of where village boundaries have been fully mapped in accordance with LUPLA, villagers are awarded only use rights, and ultimate ownership rights over village forest-land and the resources on those lands, including timber, is maintained by the state. Areas of swidden fallow land inside village boundaries may thus be ceded for national development programs such as industrial tree planting in accordance with existing legislation. Full land titles are being issued in urban and peri-urban zones, in association with the second phase of a World Bank-funded Land Titling Project (LTP II). Titling has not yet been extended significantly into rural areas. With State recognition, trees or forests planted or regenerated by individuals or organizations using their own labour or capital become the property of the individual or organization concerned who then assumes 28

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) rights of possession, use, transfer and inheritance in accordance with the written laws and regulations (The Forestry Law Art. 5).

1997 Land Law


Particularly relevant sections of the Land Law include: Art. 3: All land in Lao PDR is the common property of all Laos population, the Government commonly and unity manages for nationwide, the Government allow to individual, family and organization for use, leasing or concession for effectiveness use of land; and Art. 5: The Government protects the legal rights and benefits of person who receive long-term rights for effectively use of the land together with the right for protection, for using, for benefiting, for transferring and inheriting. Under various sections of the Land Law, each household in a village is eligible to be allocated the following areas of degraded land: fish and paddy rice (1 ha), fruit trees (3 ha), tree planting (3 ha), upland crops (3 ha) and livestock grazing (15 ha) [= 25 hectares of degraded land per household] (VFI, 2004). Villagers maintain the following rights under the Temporary LUC system: use rights, protection rights, inheritance rights, collateral, and they are subject for compensation (VFI, 2004: 7).

1993 Protected Areas Decree


A 1993 Prime Ministers Decree (No. 164) established 18 locations of pa sanguan hang sat or, National Biodiversity Conservation Forests (NBCAs). In 1996 a further two locations were added to the protected areas system in Laos, bringing the total up to 20. NBCAs have been protected for the following uses: biodiversity conservation; maintenance of ecological stability; protection of scenic beauty for leisure and research; protection of large, natural areas that have cultural significance; and watershed protection. Legally this should exclude logging activities, although it would seem that continued and heavy logging pressure inside NBCAs is occurring (e.g. in recent years in the Nakai Nam Theun NBCA).

Status of land/forest ownership and tenure


In Laos, rural land and forest resources are owned by the national community, represented by the state and the LPRP. Land may be allocated for long-term use to individuals and to private companies. The World Bank supported Land Titling Project in Laos awards full title deeds to private holder recipients; to date, work has focused on urban areas and has not significantly proceeded into rural zones or areas where T-LUCs have been issued through the Land and Forest Allocation. Land Titling and LFA have been organized by distinct institutions: LTP under the Department of Lands under the Ministry of Finance, and LFA under the Ministry of Agriculture and Forestry. It is remains to be seen how land titling to individuals and/or communities in rural areas will be implemented once the LTP reaches rural zones where LFAs have previously been completed. There is as yet no formal rural land market in rural areas of Laos. In many cases a lack of clear, officiallytitled tenure rights is not restricting land sales between farmers, or for long-term smallholder investment decisions, e.g. for tree planting. Especially with para-rubber, and to some extent teak, tree planting on informally titled land is occurring in rural Laos, albeit starting from a low base. All signals in Laos point to a steady broadening and deepening of commercial land markets into rural areas. Rights to harvesting of forest resources are highly contested and an intractable problem in Laos. In relation to industrial logging, World Bank et al. (2001: 40) writes:

29

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) One of the most striking features of the production forestry sector in Lao PDR is the difficulty of discerning what constitutes legal, illegal, unplanned and illicit logging. The issue is not only in terms of actual logging activities being legal or illegal. It is the poor definition and overlapping of jurisdictions, responsibilities and capacities between different government bodies and authorities, the massive lack of compliance with legal dispositions and decisions of authority, and the absence of any enforcement capacity. In terms of the delineation of key forest land categories in Laos, progress has been uneven. For National Production Forest (NPF), there are 106 identified areas, covering over 3.2 million hectares (FS 2020: 16). However the FS 2020 (p. 16) proceeds to state: Without a clear legal basis for boundary location and management planning, these [production] forests, with the exclusion of a few in Savannakhet and Khammouane [i.e. World Bank SUFORD project sites], are not under systematic management and there is little specific information available. There are 75 designated areas of National Protection Forest viii in Laos, covering approximately 517,000 hectares (FS 2020, 11). It is unclear if these areas have been clearly demarcated and mapped, or to what extent natural forest harvesting continues in these zones. For National Conservation Forest (NBCAs), the 20 identified areas cover 3.316 million hectares, or 13.9 per cent of the total national territory. Unlike with National Production Forests, the location and delineation of NBCAs are relatively clear, and maps are publicly available. International NGO groups such as the IUCN and Wildlife Conservation Society have been especially active in these zones. There are also more than 1,000 Lao villages (out of a total of approximately 11,000) located inside or within five kms of an NBCA (Bugna, 2002). Such villages are amongst the poorest in the country, and are usually reliant upon NBCA forests for their material and socio-cultural livelihoods. It would seem unclear inside NBCAs how LFA demarcated village land use zones, conflict with or are in congruence with the national level land use categories.ix From published accounts, Land and Forest Allocation exercises have been completed in the provinces of Vientiane Municipality, Bokeo, Xayaboury, and Xaysomboun. It remains incomplete in other Lao provinces; although there is little comprehensive data or publicly available LFA progress maps to show this. NRDS (VII: 12) records that LFA activities had been completed in 4,813 northern province villages as of June 2003. In the Southern provinces LFA had been completed in 2,376 villages as of March 2003 (ADB, 2003). If it is taken that there are approximately 11,000 villages in Laos, as of mid 2003 approximately 65% of Lao villages had undergone some form of LFA. Progress in conducting new LFAs has slowed considerably in recent years, likely due to budget restrictions and a broad realization that the programme requires substantial modification, as has been clearly highlighted in recent fora in Vientiane by state organizations such as the National Agriculture and Forestry Research Institute (NAFRI). Under the traditional LFA-LUPLA process, households allocated upland agricultural (swidden) plots on degraded lands receive a 3 year Temporary Land Use Certificate (T-LUC).x In theory, T-LUCs are convertible into Land Use Certificates if the land is being used in an (as yet undefined) sustainable manner; although to date there are no recorded instances of such a conversion. The T-LUC may also be revoked if the land has not been cultivated for longer than a 3-year period, but it does not appear as though this has ever occurred. Village forest and NTFP management plans are to be consolidated under five-year renewable agreements signed between the District Agriculture and Forestry Offices and the village committees, but again it is unclear if this has ever been implemented. There are a number of international donors which are proceeding with modified, more participatory approaches to Land and Forest Allocation, including the NAFRI-Lao Swedish Forestry Upland Agricultural and Forestry Research Project (LSUAFRP); the ADB Shifting Cultivation Stabilization Project in Huaphan; and the GTZ Rural Development in Mountainous Areas (RDMA) project in northwestern Laos. Other international NGOs have been conducting their own, more participatory LFAs in project villages e.g. JVC in Khammouane. In some of these projects the land allocation component has been eliminated entirely, 30

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) and the focus has shifted exclusively towards enhanced participatory land use planning (PLUP). In the GTZ project areas, the land allocation component is being replaced by a pilot project in land registration, in association with the WB/AusAID/GTZ Land Titling Project (Florian Rock, pers. comm.). The Who Owns the Worlds Forests (White and Martin, 2002) does not deal with forestry statistics in Laos with any specificity. At this time, all forests and forest land in Laos are owned by the national government; there is no significant momentum towards official decentralization of full forest land ownership to rural communities in Laos. While the Forest Sector Strategy makes correct overtures towards donors in terms of extending participatory forest management outside of pilot project areas, the GoL has clearly been engaged in both active and passive resistance against doing so. The 2005 FAO Forest Resource Assessment includes more detail on forest cover and national land use zoning. Areas for production forest (3.488 million ha.) are in broad agreement with figures published in the Forest Sector Strategy document (3.2 million ha). Lao Protection Forest in the FAO document, listed as 12.654 million ha. bear little resemblance to a figure of 0.5 million hectares provided in the Forest Sector Strategy. Listed areas for conservation forest in the FAO document (12.6 million ha.) are not congruent with widely accepted figures of 3.3 million hectares for the NBCAs in Laos. The figures in the FAO assessment for changes in extent of primary forest cover in Laos (unchanging from 1990 to 2005, at 1.490 million ha.) are not realistic, given that all signs point to very high logging pressure through this period. The inherent difficulty of dealing with primarily a quantitative focus in documents such as the FAO Forest Resource Assessment is that it does not capture the true extent of complexity of resource control on the ground in places such as rural Laos. There is some indication the issues over land and resource tenure in Laos may now be approaching the more chaotic conditions of neighbouring Cambodia.

Main issues in natural resource and local rights: government perspective


With the realization that the Government of Laos (GoL) is not a unified actor, the following could be summarized regarding the general direction of Lao state policy in the rights and resources area. For the GoL, swidden farming is a problematic issue both from a poverty alleviation perspective and from a sustainable forest management perspective. GoL policy is for swidden farming is to be completely eradicated by 2010 (which follows upon a previous directive in 1994 that swidden was to be eliminated by 2000). It is unclear, however, if it is all forms of shifting cultivation which are to be eliminated (or, at other times stabilized), or just pioneer forms of swidden involving the cutting of larger trees. The National Growth and Poverty Eradication Strategy (NGPES) is the guiding document for Laos rural development program. Concepts such as swidden farming and poverty, forest management and conservation are discussed, at times with some sophistication. In the NGPES, swidden farming is noted as a low-yielding agricultural practice, predominantly practiced by poor villagers living in highland areas (p. 116). While it is noted that the forest sector strategy and the LFA program were, at the time of writing, under review, the NGPES states that Upland farmers urgently need help in making the transition to intensive farming methods, whereby three hectares of land per household can yield good livelihoods on a sustainable basis (p. 130). The NGPES thus maintains that swidden farming needs to be stopped, and that the areas devoted to upland rice farming are to be restricted to three hectares per family. That upland farmers need urgent help in the transition out of swidden could be taken as an indication that the NGPES recognizes the need to devise effective extension support mechanisms to assist upland farmers towards modernized farming, rather than using coercion or force in suppressing swidden. The Forest Sector Strategy 2020 is a second primary policy document relating to rights and resources to forest lands. The most basic factor behind forest decline is identified as widespread poverty and rapid population increase amongst the rural population, who are, as a result, obliged to practice forms of cropping resulting in deterioration or destruction of forest (p. 13).xi The secondary contributors to forest 31

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) decline listed in the FS 2020 lists are: (i) external factors (rising wood and NTFP demand from neighbouring countries), (ii) unsustainable harvesting, and (iii) conversion of forestland for agriculture. At the provincial and especially the district level there is often a much more pragmatic approach taken to swidden. For example, in the authors research village in Khammouane, there is a tacit acknowledgement between forestry officials and rural villagers that the state will not ask of, and the villagers not speak of, swidden farming. There is little direct attempt to eradicate swidden in these areas, although village shifting cultivation land and degraded forest land is being allocated for tree plantation development to multinational private sector actors. Promoting plantations is thus an important GoL strategy for transitioning villagers out of swidden agriculture. The Lao State Planning Commission in association with the ADB was responsible for the release of the Participatory Poverty Assessment in 2000/2001. A highly significant conclusion in the document was that the restricting effects of LFA and shifting cultivation stabilization/eradication was one of the primary sources of poverty and hardships for rural villages surveyed in the study. While agencies within the Lao state can, and do, release critical reports on the swidden issue (see also NAFRI publications), the broad direction of the Lao government remains firm: that all efforts should be made to hasten the transition of upland villagers out of swidden and into more economically productive forms of agriculture that do not affect forest decline. For the GoL, this is particularly crucial in terms of meeting the objectives for poverty alleviation and escaping least developed country, or LDC status, by 2020. Agricultural modernization and rural development is the very legitimate goal envisioned, but for the GoL this future cannot include farmers doing slash-and-burn agriculture. Resettlement of isolated upland villages is also a continuing GoL policy. Officially, resettlement of villages into Focal Site locations is justified as an effort in more efficient development service provision to isolated rural communities. Reasons of state security in relation to recalcitrant minority groups, and eradication of shifting cultivation may also enter into justifications used within the GoL. The GoL also places tree plantation development as a high priority for promoting rural industrialization and export growth. From a broad GoL perspective, a problem is how to coordinate the transition of villagers out of shifting cultivation, so that village degraded land may be allocated for smallholder and large-scale plantations. At the same time, the various levels of the GoL are facing numerous problems with regulating forest land concessions to external entrepreneurs, particularly in the para-rubber sector. The views of the national provincial, local and village level state organizations on this problem would of course differentiate according to their divergent interests on this matter. More general problems in rights and resources, as viewed by the central government in Vientiane, involve the smooth extension of state policy in the provinces and districts. Legal and state institutional capacity strengthening is another a key problem area identified in documents intended for donor audiences. Corruption the use of public office for private gain is given periodic attention in forestry and other sectors, although there has never been an upper level official tried and prosecuted for corruption in Laos.xii From the perspective of the national government, problems with corruption in the forest sector include officials who approve logging activities over and above their provincial quotas, companies who log in unauthorized areas, or who circumvent the forest regulatory and tax frameworks in forest product processing or exporting. This undermines the GoLs efforts at forest industry rationalization, forest conservation and building an effective tax base, although it should be observed that the monthly salaries of provincial and district forestry staff are usually dependent upon such illegal timber revenues.

Issues on natural resource and land rights: civil society perspective


A few words on civil society may be useful to contextualize the term in contemporary Laos. The usual conception of civil society is that it is comprised of an assemblage of interest-based organizations which 32

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) are free to support or not support state policies, and are able to publicize their viewpoints and lobby the public and the state in support of their viewpoints. For Stuart-Fox (2004: 20), So defined, Laos is virtually devoid of civil society. According to the Lao constitution, citizens have the right to form associations, providing these do not contravene the law. Just what constitutes such contravention is nowhere spelled out. Nor does any legal basis exist for the establishment of such associations. Legal associations and organizations consist solely of those established or authorized by the Party and the State. If however one takes a viewpoint whereby civil society is more dialectically connected both to the state and to capitalism, then there could be a conception of an emergent Lao civil society, although it operates under significant constraints regarding freedom of speech and organisation. An emergent Lao civil society would include the recent moves to establish Non-Profit Associations (NPAs), which will be discussed below. For the purposes of this section I will focus on what could be called global or donorlinked civil society in Laos, as these are the primary (though not exclusive) set of actors which are currently in a position to voice substantive criticism of state policy.xiii This section in turn outlines civil society critiques around: (i) swidden and LFA, (ii) logging and corruption; (iii) resettlement; and (iv) plantations. Civil society critiques around swidden agriculture are divergent, but center around the purported relationship of swidden to: (i) forest degradation and deforestation, (ii) poverty, and (iii) culture. In many cases these views are also shared by people within GoL institutions. Swidden agriculture in Laos is viewed by many as an appropriate and adapted farming system for mountainous areas. Lao swidden systems are seen as diverse, and when practiced under the appropriate conditions as a sustainable land management system which has less significant effects on forest loss and decline than is usually considered, especially in relation to forest-land conversion and logging. Swidden farming in Laos is correlated with poverty in civil society discourse, but it is viewed as the starting point for poverty alleviation efforts, not its opposite. In some cases, the historical and cultural-religious basis for upland swidden farming is highlighted, although many concede that many upland Lao farmers themselves are interested in alternatives to swidden as now practiced (which is generally difficult work for low returns). Civil society actors argue that the guiding approach to swidden systems should focus on effective extension and providing a greater range of livelihood options for farmers, not state coercion. The Land and Forest Allocation policy was seen by many actors as representative of such a state-coercive approach to upland farmers, resulting in participatory LUPLA acting as a de facto displacement mechanism (Baird and Shoemaker, 2005). Civil society views on state sanctioned logging in Laos are that it is a corrupt enterprise in which the Lao forest bureaucracy and key individuals connected to the LPRP realize most of the proceeds. Logging is viewed as based on unregulated and unsustainable harvesting rates which will eventually result in a collapse of the sector and lead to severe ecological degradation, with implications for forest-dependent communities and the GoLs poverty reduction efforts. There have been attempts to promote local participation and benefits-sharing in Lao forestry (SUFORD, WWF). The limited successes of these initiatives have thus far not been extended out of pilot project areas. Many in civil society view the impasse with respect to logging in Laos as closely correlated to the present political situation in the country, and doubt that the system can be reformed until significant external pressure is placed on the GoL. Such pressure could involve the withdrawal of major donor support to the forest sector, or pressure from the purchasers of Lao timber exports in Vietnam and Thailand (which could enhance incentives for a shift to FSC certified forestry). Other approaches include working in various capacities with state institutions, such as MAF, FIPD, NAFRI, NAFES, NUoL, and STEA. Some civil society actors see better possibilities for promoting change by avoiding Vientiane altogether, and focusing on applied provincial/district/village level livelihoods and advocacy work. Resettlement has come under recent criticism in Laos by civil society actors. Resettlement policies are viewed as undertaken within an inappropriate policy context which is attempting to eradicate shifting cultivation. Resettlement is also critiqued as focused on ethnic minority groups (particularly the Hmong) 33

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) who are seen as troublesome by the GoL, and who are living outside the reach of normalizing state functions. As in neighbouring countries, there are underlying currents of cultural assimilation to the program. Resettlement into lowland zones often results in counter-productive conflicts in access to natural resources between resettled and host populations, particularly when they belong to different ethnic groups. This is because the GoL consistently overestimates the availability of lowland paddy land and consistently underestimates the social complexity and costs of resettlement. Other civil society actors see more complexity in the resettlement question, but again argue for promoting local choice versus the use of coercive power by the state. Plantations and community tenure rights are an emerging issue for civil society groups in the rights and resources area. Plantation development overlaps with LFA and swidden eradication policy, as it is degraded forest land (or for communities, recovering shifting cultivation fields) which in particular are to be leased for plantation development. Concern with plantations relate back to local food security and swidden/NTFP sustainability, local tenure rights, corporate transparency, and effective opportunities for local participation in land use zoning and adequate compensation for village areas allocated for concession based development. The legal framework in Laos however is not seen as particularly supportive of arguments for local participation and compensation for resources. Other opportunities for advocacy are seen in targeted work in association with the primary external promoters of plantations in Laos, i.e. the ADB and plantation companies such as Oji Paper.

Efforts at tenure reform


As with phrases such as legal framework, tenure reform risks presuming a functional legal-bureaucratic mechanism whereby such reforms are formulated and then implemented in a broadly intended and coherent fashion. When such state institutions are yet in the process of being established, as in Laos, tenure reform policies may become subsumed within broader political-economic transformations ongoing in the countryside. Broadly however, in terms of tenure reform Laos has followed the wider shift in Southeast Asia, from land to the tiller socialist redistribution (or, in communist Laos, collectivization) of the 1960s and 70s, towards land reform aimed at clarifying property rights (Vandergeest, 2003). Clear property rights are said to form the foundation for investments in agricultural productivity and the promotion of poverty reduction through the creation of efficient land and credit markets. I will discuss in turn five key policies or land reform programs in Laos which have, in a rather uneven and messy fashion, become mixed into the cauldron of rural transformation: 1. 2. 3. 4. 5. agricultural collectivization in the post-revolutionary period (1975-early 1980s) upland resettlement and focal site development (1975-present) land and forest allocation (mid 1990s-present) agro-ecosystems analysis and land suitability zoning (late 1990s-present) land titling (late 1990s-present)

Agricultural collectivization
It is important to note the historical trajectory of land relations in Laos as compared to much of Southeast Asia. As Evans (1990) notes, all scholarly studies of the Lao peasantry prior to 1975 show very little differentiation in terms of land holdings. Land in Laos was historically evenly distributed by household, and therefore tended not to function as a criterion of wealth. The post-independence mid to late 20th century Lao elite was also not a landholding class, which did not disrupt equity of land holdings in the countryside. Refugee flows from the American bombing campaign did act to create new pressure on access land in lowland areas, particularly in the Vientiane plain. But the point is that in Laos, landlessness was not generally a result of rural capitalism, indeed Evans refutes the notion that 34

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) capitalism ever existed in Laos before 1975 (p. 40) (which should have been pause for thought for the LPRP). In Laos therefore, there was no mass-based peasant discontent over land around which the revolutionary party could rally. Land reform after 1975 was modelled in the agricultural collectivization efforts from bloc countries like the Soviet Union and Vietnam. Its aims were collective mastery and leaps forward in rural industrialization modelled on imported communist theory. Early experiments were not successful, and in some cases resulted in catastrophic rice failures. The roots of collectivization were never deep, many collectives existed in name only, and the LPRP was in little position to enforce collectivization upon a country with no infrastructure or communications. Everyday peasant resistance (Scott, xxxx) was likely enough to limit its effective reach, but by the early 1980s the LPRP was taking a more pragmatic line and backing away from collective reforms. Collectivization was focused on lowland wet rice communities; upland communities were targeted with other mechanisms of state control. By the late 1980s collectivization reform had been all but abandoned.

Upland resettlement: village consolidation and focal site development


The LPRP began considering policy options for the uplands almost directly from the point of taking power in the 1975 revolution. The resettlement of insurgent minority groups, and shifting cultivation were immediate concerns. Focal sites and village consolidation in essence involves the aggregation of smaller village units or families into larger settlements, and is primarily justified as the more efficient provision of services by the state (or, from a more critical perspective, its aims are the facilitation of governmental control over villages). Baird and Shoemaker (2005) outline a more complex set of GoL interests in internal upland resettlement: (i) eradication of swidden agriculture (ii) eradication of opium farming (iii) internal security and (iv) cultural further problematize (i) the practical problems for a highly indebted government in extending basic infrastructure, health and education to thousands of scattered villages and (ii) the wider trajectory of autonomous villager interest in migration.xiv There is little systematic information on the actual extent of implementation of village consolidation or focal site programs, but the aims are ambitious. Baird and Shoemaker (2005) write: In 1998, the GoL announced plans to create 87 national level Focal Sites by 2002, bringing together 1,200 villages and 450,000 people (12% of the rural population in Laos at the time), half of which were expected to be displaced upland communities (GoL 1998; Evrard and Goudineau 2004). A critical synthesis of the problematic outcomes associated with these policies can be found in Baird and Shoemaker (2005). The reports surveyed speak of increased hardships; impoverishment of swidden families; severe impacts of poorly implemented resettlement on peoples health and mortality; and involuntary resettlement as the cause of much hardship and poverty (p. 16-19). It is important to note that there are no actual GoL policy statements on resettlement, consolidation and focal site development; the program appears to be continuing as an implicit state policy (UNDP, 2004: 34).

Land and Forest Allocation/LUPLA


There have been a series of critiques of the LFA program as conducted in Laos. It may be worth recalling however that the LUPLA process was developed in close association with donor agencies, and on paper, represents an exemplary, participatory approach to tenure reform which recognizes customary/traditional tenure systems and establishes collective tenure rights to forest and agricultural land. The program as stated is consistent with poverty alleviation through applied rural extension, as well as the promotion of participatory, community-based forest and land management (Vandergeest, 2003). The LFA is centered on: (i) The allocation of degraded land to households with a temporary land use certificate for crop cultivation, tree plantation and livestock grazing. Titles would be issued after a period of satisfactory performance. (ii) Following the allocation, forest types would be classified (e.g. protected, community use, rehabilitated, conservation and production) and agreements would be signed with each village. (UNDP, 2004). 35

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) In implementation however, there have been problems, which are largely related to how LFA was turned into a tool for eradicating swidden: The Land and Forest Allocation decree has in practice been used as a top-down tool for reducing swidden agriculture by declaring large tracts of land off-limits to swidden cultivators....Recent research confirms that Land and Forest Allocation has had a counterproductive impact on both forest protection and agricultural modernization and that it has caused harm to the poorest rural families in the country (Ducourtieux et al. 2005) Baird and Shoemaker (2005: 13). The implementation of LFAs has slowed considerably in recent years. It could also be noted that in many areas where districts took a more pragmatic approach to swidden, there was no allocation of individual parcels of degraded land to households. The actual enforcement of the land use categories and restrictions on swidden has also been uneven. In many cases district authorities recognize that farmers need to do swidden for their annual rice needs. There are other cases of very substantial fines levied when villagers have done swidden outside of allocated areas, especially as it appears in northern Laos. It should also be noted that the LFA has not been successful in eliminating swidden practices in Laos national level data from the Forest Inventory and Planning Division on swidden farming between 19922002 suggests that the area devoted to swidden in Laos has remained constant (FIPD, 2001; cited in Jones, 2005), although the average rotation period has been substantially restricted in many areas (PPA, 2001). Largely as a result of problems encountered in implementation of LFA, various donor programs have developed modified approaches to LFA, which focus upon the participatory land use planning aspects and, in some cases, drop land allocation of swidden plots altogether. In 2001 the Lao Swedish Forestry Program developed a modified 10-stage framework which placed more emphasis on participatory village land use planning (LSFP, Land Use Planning and Land Allocation Procedures and Methods). While such programs have yet to replace LFA in official policy, donor projects with northern Laos are moving ahead with implementation.

Agro-ecosystems analysis and land suitability zoning (late 1990s-present)


While not a land reform policy per se , agro-ecosystems analysis (AEA) and land suitability zoning is being applied as a land use planning tool, for protected areas management, and in the future, possibly to commercial plantation development such as rubber (see Jones, 2005 Village Land Use Planning and Land Allocation: An Alternative Approach; Sawathvong, 2005: Land Use Planning in Protected Areas). The objectives of AEA include: 1. to identify, delineate and characterize different agro-ecological zones within a given land area 2. to obtain an improved understanding of agricultural systems in these zones and their key characteristics 3. to identify key issues relating to the performance of the entire system and its agro-ecological zones 4. to identify agricultural research and extension priorities 5. to help plan programmes, projects and development activities (Source: LSUAFRP, 2004).

Land Titling (late 1990s-present)


Land titling is discussed in the above sections: Agricultural collectivization and Upland resettlement: village consolidation and focal site development .

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Cases in tenure reform


From agricultural collectivization to internal resettlement to Land and Forest Allocation, the record for tenure reforms resulting in improved outcomes for rural and upland farmers in Laos is not positive. There is a substantial and growing literature on the problems encountered with land tenure and resettlement reforms in Lao PDR. Rather than rehash these problems, the reader is referred to the following references for useful summaries: Baird, Ian G. and Bruce Shoemaker (2005). Aiding or Abetting? Internal Resettlement and International Aid Agencies in the Lao PDR. Toronto: Probe International. Chamberlain, Jim (2001). Participatory Poverty Assessment, Lao PDR. Vientiane: ADB, SPC, National Statistics Centre. Ducourtieux, O., J-R Laffort and S. Sacklokham (2005). Land Policy and Farming Practices in Laos. Development and Change. 36(3): 499-526. Evrard, Olivier and Yves Goudineau (2004). Planned Resettlement, Unexpected Migration and Cultural Trauma in Laos. Development and Change . 35(5): 937-962. Vandergeest, Peter (2003). Land to Some Tillers: Development-Induced Displacement In Laos. International Social Science Journal. 55(1): 47-56. World Bank/SIDA/Ministry of Foreign Affairs/Government of Finland (2001). Lao PDR Production Forestry Policy: Status and Issues for Dialogue. Volume 1 Main Report June 11, 2001. Perhaps more interesting than summaries of the problems, the report below presents a more positive example, whereby a participatory LFA conducted by the NGO Japan Volunteer Centre (JVC) was useful for local villagers in Khammouane to successfully lobby district officials to respect village forest land categories. The villagers in Nakai Neua stated that DAFO was cutting down trees inside their village conservation forest areas. Through JVCs Land and Forest Allocation, the village conservation forest (pa sanguan) is located in the non-reservoir areas of the forest that are located on a mountain range to the south of the village. This area is the community forest area provided to the village under the Nam Theun II resettlement package, and if DAFO is clearing this area it surely constitutes a violation of the Social Development Plan of the Nam Theun II project. According to the villagers, DAFO cut down 90 trees from the area. The headman said that the villagers went up to DAFO and said that they werent allowed to cut down this area, as the village had implemented an LFA, and the village now had regulations governing the cutting down of trees. They then showed the LFA regulations to the DAFO staff. By doing this, the villagers claimed that they managed to stop DAFO from cutting down any more trees. They said that they were lucky to have their LFA, the implication being that other villages were having their trees cut down [outside of the JVC project area], and were not so lucky. (JVC field note from a visit to project village Ban Nakai Neua, 27th 28th March 2006. Received as personal communication from JVC, May 5, 2006 .)

Poverty and forests


In the Lao context, key documents and policy statements on forest-poverty relationships include UNDP (2001), the Forest Sector 2020 Strategy, the NGPES, and the ADB Participatory Poverty Assessment (2001). For insightful and detailed maps on the incidence of poverty and food insecurity/vulnerability, reliance on NTFPs for forest resources, and forest cover by district in Laos, see World Food Program (2004). The 2001 PPA represents a primary basis for understanding the forest-poverty link in Laos, involving research in 47 districts and 84 rural villages, including 50 different ethnic minorities. The PPA clearly identifies the primary local-defined indicators and understanding of poverty in surveyed villages: (i) 37

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) degree of rice self-sufficiency (a representation of food security) and (ii) the number livestock (a representation of village assets of saving and investment). UNDP (2001:33) identifies a set of causal complexes behind these poverty indicators: (a) declining productivity in swidden-based upland farming systems [policy links: land and forest allocation, resettlement, swidden eradication, land squeezes due to commercial land concessions] (b) declining productivity of non-timber forest resources [policy links: effects of extractive logging, land squeezes due to commercial land concessions, land and forest allocation and resettlement] (c) failure of alternate income sources to transform the rural economy [policy links: promotion of participatory forest management, promotion of an effective tree planting program, rural governance, ongoing land and resource squeezes,] Crucially, ethnicity is identified in the PPA as a more definitive variable (p. 102) correlated to the incidence of poverty in Laos, outweighing even regional (locational) criteria. Poverty in Laos is closely associated with remaining natural forest cover. An important contribution from Sunderlin et al. (2005) is what is termed the converging geography of poverty and natural forests (p. 1384). They suggest four ways of conceptualizing how spaces of poverty and spaces of forest cover may tend to overlap or converge: (i) remoteness: which means both that income generating development interventions have not and that the natural forests remain unexploited for commercial purposes (ii) tradition: particularly as involving forest-based ethnic minorities, for whom forests are an ancestral home, and poverty represents a historical condition rather than an adverse outcome of modernity (iii) forest migration: whereby poor people migrate to frontier or natural forest areas in an attempt to escape existing poverty elsewhere (iv) refuge: existing natural forests used as a place of refuge from war and conflict. The first two of Sunderlin et als examples seem more relevant for Laos. The presence of both poor communities and forest cover are highly correlated to the eastern border zones of the Annamite Chain, which stretches down the Lao-Vietnamese border. These areas are remote, with poor infrastructure and road access. These locations are also the traditional homes for many upland ethnic minority groups. In Laos, this area was associated with an intensive American aerial bombardment campaign. The fact that infrastructure was always poorly developed in this area was not assisted by the fact that any existing infrastructure was repeatedly destroyed. Laos does not have a large issue with autonomous migration into forested areas. Most current migration involves young people leaving forested or upland hinterland areas for better cash earning opportunities along the Mekong Plain or in Thailand. Refugees from the war years similarly moved away from eastern upland forested zones and towards the Mekong Plain to escape the bombardment. Resettlement programs have been focused on moving farmers to lowland areas from the mountains. Given the increasingly well-established literature on the topic, one must seriously question the continued conflation of swidden agriculture with rural poverty in Laos. The PPA (2001: 103) clearly states: Although it is true that the majority of the poor in Laos are swidden cultivators, this should not be construed to imply that swiddening causes poverty. It was in fact characteristic of poor villages that their swidden systems had been traumatized in a variety of ways resulting from at least two (and sometimes more) of four of the interlinked types that were identified during the assessment: relocation, land allocation, pests, and natural disasters. The poor however are not only located in remote forested areas. Some of the poorest provinces in Laos are in the north, where, due to a range of factors (but which arguably start from restrictive, self-fulfilling state policies) swidden is becoming an increasingly marginal and unsustainable land use practice. This is a complex problem which will surely require a multi-faceted and sophisticated set of approaches. 38

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) There is a wealth of quantitative data on forests and poverty in Laos, which cannot be neatly summarized in this space. However, key conclusions are: 1. NTFPs are a crucial source of livelihood income for rural villagers in Laos. The majority of Lao people depend upon Non-Timber Forest Products (NTFPs) for their existence. Rural households are reliant upon NTFPs for subsistence (food and shelter) and trade. They provide 50% of cash incomes in rural villages, where 80% of the Lao population lives. Typically, the poorest families are the most dependent on NTFPs, the sale of which enables these families to purchase rice for their own consumption. Foppes (IUCN, 2000) comments that NTFPs provide a low-cost survival system securing food, housing and medicinal needs. Their importance cannot be over stated. (World Food Program. 2004: 1). Linking NTFP resources to poverty alleviation faces some challenges however, in that there are issues with economic profitability, productivity and sustainability of NTFP harvesting regimes. Others however, have questioned whether commercializing, rationalizing, and taxing the NTFP sector will not undermine the safety net function that NTFPs serve for the poorest of villagers. 2. Logging as currently practiced in Laos is not sustainable and is not an effective contributor to rural poverty reduction. Rather, it serves to undermine the environment and the natural resource base upon which effective poverty alleviation measures could be founded. 3. Forest-based eco-tourism holds some potential in Laos, but the financial contribution of ecotourism activities to poverty reduction has been deemed not significant at the national level (e.g. Whiteman et al., 2006). Local benefits do occur in clustered areas with developed eco-tourism sites. 4. Plantations are a newly developing sector in Laos. There are opportunities for plantation programs to contribute to poverty reduction. However, when plantations involve the clearing of areas allocated as degraded forestsbut which are often cattle grazing, NTFP gathering zones and swidden fieldswithout market-based compensation for land, the poverty alleviation potential for plantations is undermined.

Key Government Initiatives or Programs to Reduce Poverty in Forest Areas


The overarching framework for poverty reduction in Laos is the NGPES, a document based on the national Poverty Reduction Strategy Paper. The NGPES (p. 53) states that A top priority for the Government of the Lao PDR is to modernise the agriculture and forestry sector in a manner that fully meets sustainable practices and that achieves food security and better livelihoods for all Lao people. The goal of poverty eradication and graduation from LDC status by 2020 depends on a more productive agriculture and forestry sector. The goals for how the agriculture and forest sector might contribute to poverty alleviation in Laos are summarized below (from NGPES, p. 55-56): 1. Participatory Planning, so as to ensure sensitivity to local needs and circumstances, and to support preparation of district plans for lowland areas and the preparation of integrated watershed plans for upland areas; village and district level action is the main catalyst for growth of the agricultural sector. 2. Lowland Transformation, whereby the strengths of lowland farmers (market access, more modern farming techniques) help expand exports of commodities (the Commodity Production Programme). 39

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) 3. Sustainable Development of Sloping Lands and Environmental Management, including protection of National Bio-Conservation Areas (NBCAs), regulation of harvesting of NTFPs, and a multisector and community-based approach to land allocation and management. 4. Stabilization of Shifting Cultivation: the Government aims to stabilise shifting cultivation by 2005, through the promotion of on-farm and off-farm activities, facilitated by district extension workers knowledgeable in alternative rural livelihoods. 5. Expansion of Irrigation: projects are being managed more effectively and new projects are expanding the area under irrigation. 6. Human Resource Development: emphasis is being given to upgrading MAF staff, especially at the district level, to improve participatory planning, extension techniques and understanding of the market system and role of the private sector. 7. An Enabling Environment for Business Development: this is central to promoting economic growth with equity, as stated in Part III of the NGPES. The NGPES (p. 64) also outlines the following priority action areas for poverty reduction and sustainable forest management: Enhance village-based natural resource management for poverty alleviation. Revise the system for harvest determination, from focus on capacity of the wood industry to focus on sustainable supply. Restructure the wood industry in Lao PDR to bring processing capacity into closer accord with a sustainable raw material supply. Control unsustainable harvest and export of NTFPs by unregulated traders and promote sustainable participatory management and processing of NTFPs. Promote tree planting; formulate mechanisms (through collaboration among MAF/DOF, NAFRI, and STEA) for certifying sustainably managed tree plantations. Prevent encroachment, illegal activities and bio-diversity degradation by effective law enforcement, capacity building, and the participation of villagers in conservation activities. Formulate a national land use policy and introduce land use planning at both the macro and field levels.

The Forest Sector Strategy 2020 states an overarching goal of poverty reduction, with a total of 146 actions under 16 identified priority program areas to achieve this goal. It is a very ambitious program. Currently, the forest sector in many parts of Laos is in a state of utter disarray, and commercial logging and plantation development activities may be outside of the control of the relevant line Ministries.

Prominent threats to local rights and livelihoods


In the authors opinion, the most prominent, policy-related threats to local livelihoods and sustainable forestland management in contemporary Laos include:

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Land and resource degradation and policy induced resource squeezes due to Land and Forest Allocation, Focal Site Development, and Internal Resettlement
As discussed above and as reviewed in e.g. Baird and Shoemaker (2005) and others, these three GoL programs represent an aggressive, centrally-defined approach to the complexity of development and environment issues in upland Laos. Cross cutting issues of ethnic minority-majority relations, cultural integration and village normalization, swidden agriculture, and the indirect role of many international donors only add to this complexity. The issues are not black and white; many rural farmers in Laos do seek an exit from swidden farming, and they are interested in better access to roads and markets. But a lowland or market-based orientation cannot be assumed. Rural and upland communities in Laos have the right to choose how they will engage with the development process; and when their range of livelihood options are artificially restricted due to aggressive state programs it does not represent choice. The all too often coercive, target-driven application of these three policy-programs has often undermined both local livelihoods and forest environments, without offering livelihood alternatives.

Large-scale land leases and concessions


Land concessions in Laos are being negotiated both at the top (with upper levels of the central government) or at the bottom (e.g. rubber concessions negotiated locally between entrepreneurs and district/provincial officials). These projects threaten rights and livelihoods via another form of resource squeeze, whereby villagers lose access to forest lands without consultation, participation, or adequate compensation. While farmers have the right to be compensated for temporary land use certifications awarded under the LFA, the restrictions of 3 hectares per household of upland (swidden) plots typically means that the customary rights of villagers to land and resources under their management are not fully recognized under the law. As LFAs have not been fully implemented in the Lao countryside, so even this (problematic) form of resource tenure for villagers is often unavailable. Under the very best of conditions, multinational plantation and pulp firms have been allocated concessions in Laos whereby they provide partial compensation to villagers (in one example, $1/ha/year) and provide some development services (in one example, electricity service) and provide partial employment opportunities (though these are often captured by outsiders). In the worst examples, land is being allocated to external investors from places such as Malaysia, in areas of high natural forest which serves as a cover for extractive, cut and run logging and burning. Chinese rubber investors have developed plantations inside NBCAs in the north, and in the south, Vietnamese rubber companies are clearing high forest and community agricultural fields. The central government may have little information on land concessions awarded through provincial or district actors. When the central government is informed, the agreement may have been signed with individuals in the Party hierarchy, which means it is outside the control of the relevant line ministries. Written contracts, records of land rental payments to the relevant agencies, and any legal capacity for enforcement of contract terms, are often completely missing.

Logging backed by powerful actors at the national and provincial level


Despite the attempts by the World Bank to reform the situation with timber harvesting and to implement village participation in forestry, all signs in Laos point to continued problems. These include harvesting over and above allocated quotas, continued capacity expansions in wood processing, continued exports of logs across national borders (there is a Lao log export ban); and the continued role of powerful actors in maintaining this system. The barriers encountered by the World Bank SUFORD project and a recent WWF PSFM project again brings into question the underlying commitment of the GoL towards SFM. In some cases, the identification and classification of production forest through donor programs has been distorted from being a management tool for SFM to being a pre-harvest inventory for logging industry actors. While the GoL holds the sovereign right to permit the harvesting of natural forests above sustainable rates, this does not efficiently promote Laos national development strategy goals under the NGPES and does not contribute to rural poverty reduction. 41

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft)

Military resource claims


There is indication that the Lao military continues to control extractive resource industries in border areas. While there is little information, there is no evidence to suggest that the special relationship between Lao and Vietnamese military units in timber harvesting has ended.

Large-scale infrastructure and development projects initiated by major external actors (including the development banks and multinational companies)
When international donors become involved in large-scale projects or policy-related issues in Laos, notably in hydropower, mining and plantations, there is the potential for the costs of such projects to be borne by displaced rural communities, while the benefits accrue to national elites and urban citizens. Whether or not there is adequate and successful compensation offered, these projects represent a threat which changes existing local forest tenure rights and livelihoods. As Laos lacks an independent civil society or a free press, there are often few avenues for external monitoring of this situation.

Constraints in rural governance and institutional-technical capacity at all levels


These constraints include a chronic shortage of technical or CBNRM skills in forestry and extension services, inadequate land use planning procedures, inadequate legislation, poor governance, and little or no enforcement of legislation. Constraints in integrating social and community-based issues into forestland policy and practice are particularly acute.

The status quo


On the current trajectory, forests and forest-land management will not make an effective contribution to rural poverty alleviation in Laos. Rural poverty alleviation in Laos will continue to be driven largely from rural-urban migration, and from the remittances of family labourers working in Vientiane or Thailand. The rural resource base will continue in a slow and steady decline, and accessibility of forest-lands to local farmers will be constricted. Main governmental and civil society actors in forestry The following could be included as primary governmental actors in the rights and resources arena in Laos: - Ministry of Agriculture and Forestry (MAF) - National Agriculture and Forestry Research Institute (NAFRI) - Provincial and District Agriculture and Forestry Offices (PAFO, DAFO) - Provincial Forest Enterprises and Sawmills - Roundtable Steering Committee for the NGPES - Committee for Planning and Investment (CPI) - Prime Ministers Office - Department of State Assets (DSA) - Ministry of Finance - Department of Lands, DONLUPAD - National Environmental Committee - Science, Technology and Environment Agency (STEA) - The Lao Peoples Revolutionary Party (LPRP) - The National Assembly (NA) Main donor agencies involved include: - World Bank SUFORD project, in effect a tied project to the Nam Theun II hydropower project 42

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) ADB Plantations Sector Project and Shifting Cultivation Stabilization Project JICA Forestry Project in Vang Vieng (FORCAP) Lao-Swedish Upland Agriculture and Forestry Research Project (LSUAFRP) GTZ Rural Development in Mountainous Areas project (RDMA) Helvetas/SDC/NAFES/MAF Laos Extension for Agriculture Project (LEAP) SNV, especially around NTFPs WWF Sekong Participatory Sustainable Forest Management project (completed) IUCN WCS Japan Volunteer Centre (JVC), GAPE Foundation, Village Focus International, Concern Worldwide, church-based organizations

Documentation of Lao Social Movements


There are four primary mass organizations which are permitted to exist in Laos by the LPRP: the Lao Front for National Construction; the Federation of Lao Trade Unions; the Lao Womens Union; and the Lao Peoples Revolutionary Youth. These organizations, as Stuart-Fox outlines, are maintained under close supervision, and their leaderships are comprised of members of the Central Committee of the LPRP. The mass organizations are thus political organizations and do not constitute elements of civil society (1994: 20). The Lao authorities (which mean the LPRP) have made it abundantly clear that their conception of civil society, when they use the term, covers only those organizations whose interests conform to those of the Party and the state In the view of the Party, relations between the state (government), communal associations (civil society) and private economic enterprise should harmoniously work to one end as defined by the Party. Interests that conflict with those of the Party or which lead to social confrontation should be suppressedIn view of the above, one must conclude that even the rudiments of civil society barely exist in Laos. No legal basis exists for free associations of citizens and all media are tightly controlled. Despite the constitution, therefore, the very prerequisites of civil society free speech, free association, free press simply do not exist in the LPDR. Nor are they likely to in the foreseeable future. Stuart-Fox (2004: 20, 21) There is some relaxation occurring however, and there are some signs of a nascent, more politically independent civil society taking form. The Lao Non-Profit Associations (NPAs) are one example of this. Currently there are 21 NPAs registered in Vientiane, with another 28 at earlier stages. Approximately six to eight have an interest in the natural resources management/rural development arena. The Lao NPAs are organized through the ASEAN Federation of Science and Engineering Association (AFSEO), and other ASEAN states including Vietnam have proceeded as well. While the political opening for the NPAs could be taken as a positive signal for an emergent Lao civil society, their significance likely should not be overemphasized. Approximately 50 per cent of the 21 registered associations are headed by Lao officials working in the Lao Union of Science and Engineering Association (LUSEA), which in the bureaucratic hierarchy is situated under the National Science Council of the Prime Ministers Office. All of the NPAs are urban (Vientiane) -based with the exception of one in Savannakhet, and the majority claim to address urban issues. The political space for the NPAs in terms of free speech, free association and the freedom to challenge Party positions is uncertain. At the provincial level LUSEA as an organization appears to be virtually unknown, which is in some cases creating problems for the NPAs to register with sub-national levels of government. Funding has been arriving for some NPAs however, including from the World Bank, Concern Worldwide and Canada Fund Laos. Some NPAs such as the Gender and Development Group appear well organized. International NGOs such as International Rivers Network (IRN) and Probe International have been active against the Theun-Hinboun Power Company (THPC) and the Nam Theun II project, as well as various other dam projects proceeding in the countryside. The campaigns such as those undertaken by IRN and 43

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) Probe International could not be considered as constituting or reflecting a Lao social movement and they are primarily aimed at influencing the major multilateral donor actors, as opposed to working with any constituency of rural peasant associations or a middle class urban-based environmental lobby. As there is no Lao civil society which is independent of the Party, there is little further to describe in terms of any relationship between Lao civil society and village forestry initiatives.

Key institutional players and potential partners


The broader political picture of the country can be characterized as full and generally uncontested control by the Politburo of the LPRP. The Eighth Lao Party Congress was held through April 2006. Political control was passed to the younger generation of leaders in the Party, as the last elder Pathet Lao statesmen represented by Khamtay Siphandone entered into retirement. There was no relinquishment or significant democratic loosening of Party control. From the above assessment, it should be clear that there is little that could be described in the way of a Lao civil society, or a Lao social movement in the area of forest rights and resources. Those interested could choose to cooperate with international civil society in the rights and resources area in Laos. These options may include collaboration with the advocacy work of International Rivers Network, Probe International, Focus on the Global South, or Towards Ecological Recovery and Regional Alliance (TERRA, the producers of Watershed from Bangkok). Japan Volunteer Centre and Concern Worldwide (Vientiane), and Global Association for People and Environment (Pakse), are international civil society actors that maintain rural development programs in Laos. If there is a widening of the definition of social movements and civil society to include research-based state institutions, there are two primary options in Lao forestry. The first is the National University of Laos Faculty of Forestry (NUoL), and the second is the National Agriculture and Forestry Research Institute (NAFRI). Another option may be the National Economic Research Institute (NERI) although the author is less familiar with them. As outlined below, these are the recommended collaborative partners for RRI in Laos. Technical capacity gaps The technical capacity gaps at NAFRI and NUoL are substantial. The NUoL Faculty of Forestry has been the host institution for two separate, three year-phases (six years in total) of an IDRC funded program in the area of promoting research capacity in community-based natural resource management issues (see Vandergeest et al., 2003). The author was involved as an external advisor in the second phase project, which was completed in May 2006. Extensive training in the entire research process was developed, from developing research questions and design, reviewing literature, conducting fieldwork, and report writing skills. The project aimed to build the capacity of NUoL faculty to contribute policy relevant inputs into contemporary CBNRM issues in Laos. While some research capacity gains were made through these projects, the research projects of the sponsored group produced few, if any, policy-relevant results based on empirical field evidence. Faculty at NUoL are not involved in the policy process in Laos, and the GoL does not seek advice from NUoL for designing state policy. The NUoLs technical capacity gaps include: reading and understanding of written documents; formal academic writing skills (in Lao), and grammar and spelling (in English); understanding of foundational concepts in natural resource management and rural development policy issues; and basic approaches to research design and methodology. Many faculty at NUoL do not read on a regular basis, and a strong commitment to learning by faculty members cannot be assumed. This situation is representative of a systemic crisis in the Lao education system that has deep historical, political-economic, cultural and institutional roots, but which arguably starts with the low ($40/month) salaries allocated to an overstretched teaching staff at NUoL. Meanwhile, Lao staff at NAFRI would appear to be in a broadly similar situation to NUoL. 44

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) More optimistically, there are groups of talented Lao people based in universities. People in this group have recently returned from, or are undertaking, training in overseas university institutions, and some were involved in the IDRC CBNRM project. To date there have been few opportunities for this group to engage seriously in forest and resource sector policy issues in collaboration with strong international institutions. A difficulty is that many of these talented individuals are already overstretched in terms of their workloads (as talented individuals are in high demand in Laos), and/or are currently undertaking, or planning to undertake, further training in overseas institutions. There is likely a similar group of individuals at NAFRI. It should be noted that the NUoL administration is fully aware of the capacity gaps among their staff. While NUoL is determined to improve the training and foundational knowledge skills of their faculty members, they are unwilling to do this at the cost of relinquishing their autonomy and independence to large and relatively powerful international organisations. A genuine collaborative relationship should be established and maintained over time. Given the extreme cultural disadvantages they face, seeking to include the fuller representation of Lao ethnic minority groups in any RRI sponsored research group should be of a high priority. Cultural bias against upland minority groups is a serious problem in the hiring, training and promotional practices of state institutions (see Baird and Shoemaker, 2005). This is an issue many donor organizations either fail to recognize, or do not find ways to address effectively. Given that the incidence of forests, poverty and insecure tenure rights show a significant spatial correlation with upland minority villages in Laos, a strong argument could be made that people from ethnic minority groups should be significantly involved in the formulation of appropriate interventions. Here, RRI could set a strong example in designing international collaborative research efforts in Laos that are also sensitive to these sub-national, majority-minority issues.

Efforts at decentralization
A useful classification of decentralization reforms is available in Ribot (2004:9). Decentralization reforms involve: Any act by which a central government formally cedes powers to actors and institutions at lower levels in a political-administrative and territorial hierarchy (ibid.: 9). Among the typologies of decentralization reforms outlined by Ribot are: democratic decentralization (or political decentralization/ devolution); deconcentration/administrative decentralization; fiscal decentralization; co-management; coadministration; and privatization. The decentralization reforms in Laos under the Land and Forest Allocation program have been characterized by Dupar and Badenoch (2002) as a form of deconcentration or administrative decentralization, in which provincial and district officials are given more responsibility in carrying out centrally-defined state policy. Indeed, the decentralization reforms in land management and tenure in Laos could just as easily be characterized as a program to extend and consolidate state control in the countryside (as Dupar and Badenoch forward). The Forest Sector Strategy document approaches decentralization as bottom up planning and capacity building at the local level. Decentralization is not discussed in further detail in this document. The term decentralization is mentioned once in the National Growth and Poverty Eradication Strategy (NGPES), in relation to education reforms. In the World Bank (2001) Lao Production Forestry Policy report, decentralization in forestry is highlighted as among the planning principles being introduced. This is based on PM Order (01/PM/2000). The Order situates Provinces as the focal points for strategic planning, the districts as planning and budgeting units, and villages as implementation units.

45

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) World Bank (2001: xx) proceeds to state: Application of Order 01/PM/2000 to forestry is still unclear. Apparently district authorities would have to prepare forest management plans and handle forest management budgets. Most likely, the lack of technical skills would make that a practical impossibility. Order 01/PM/2000, if strictly interpreted, would also seem to give district governments authority over timber sales, and over the funds thus generated from all local forests. This would completely pre-empt the expansion of the successful village forest management experiences to new areas and jeopardize, if not destroy, existing VFM [village forestry management] arrangements. Decentralization in the form of participatory sustainable forest management has been the focus of World Bank efforts under their FOMACOP and SUFORD projects. Although it has yielded some results, including an FSC certificate of their village forestry operations, the lessons and approaches have not been adopted by the GoL in areas outside of the project zone. Recent attempts by WWF to extend a PSFM approach to Sekong province have met with outright resistance by the GoL; the project was recently terminated after its first year of implementation. There have been smaller efforts in decentralization as PSFM, for example by Village Focus International and JVC Laos, but again the principles and lessons from these projects have not been extended outside of donor project areas. In any discussion of decentralization, it is important to put current shifts within a historical-political context. Briefly, since 1975 there have been different forms of decentralization and re-centralization in Laos. These begin with the complete collapse of the national economy in the late 1970s, whereby provinces and districts were de facto handed more or less full autonomy. The effects of the New Economic Mechanism (NEM) of 1986 were to further deepen this political decentralization (Stuart Fox, 2004): Provincial governments were given greater control over provincial revenues and budgets, and were permitted to conclude trade agreements with foreign states with which they shared a common border... By mid-1989 the central government had virtually lost control over what was going on in the provinces. No effective monitoring systems were in place to ensure that national priorities and targets were met. Nor was there any effective oversight of provincial revenue and expenditure by the Ministry of Finance. As a response to this, the 1991 Constitution represented an attempt by the LPRP to retake control of the provinces. The results, as Stuart Fox outlines, were to seriously to set back local government and democratic participation at the local level. Sub-districts (tassaeng) were abolished entirely as a level of local administration, thus opening up a gap between villages and the district. The process of political recentralization in the 1990s, eventually led to the LPRP gaining full control of all political appointments, at the provincial governorship and even down to the level of district officials. For Stuart-Fox, the current shifts back towards a decentralized framework plays to the interests of regionally powerful figures in the Party, by providing them with resources to provide patronage to Party members, in part, it may not be too cynical to suggest, to compensate them for those lost through the privatization and structural reform of SOEs [state-owned enterprises]. Decentralization as envisaged by the LPRP will not transfer any political power outside the Party. It is important here to recall the relationship between forests and politics in provincial Laos. Some of the major SOEs that were restructured in the 1990s were the State Logging Enterprises, and logging remains a key source of revenue generation for many political actors in the provinces. It would appear debatable whether true decentralization and resource sharing in community-based forest management would ever be allowed to occur in Laos, so long as there are highly valuable forests and so long as the LPRP maintains political control. At the same time, it is also clear that in at least some areas, in a situation reminiscent of the late 1980s the GoL again may have lost control over what is happening in the countryside. This seems particularly 46

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) the case with land concession issues involving powerful foreign plantation/logging firms from China, Vietnam, Thailand and elsewhere. There is an argument for working towards a system whereby central government institutions are at least informed of what is happening in the countryside with respect to plantation development and logging, and whereby the institutions of government effectively store and share information with each other. Arguably, a state cannot decentralize until it possesses an actual administrative capability to consider doing so. This situation makes the identification of channels for influencing decentralization policy difficult to identify, indeed some problem areas require reforms aimed at promoting centralization. Under the current situation in Laos, the strongest relationships in forests and poverty alleviation rarely involve instances of effective policy reform, leading to successful poverty reduction. Rather, field reports identify failed and/or inappropriate state policies, which lead to resource degradation, the exacerbation of existing poverty or the creation of new poverty.xv Forest-land policies which are associated with negative local outcomes include: (i) Land and Forest Allocation, (ii) swidden eradication and (iii) internal resettlement. Insofar as unsustainable logging and unregulated forest conversion to agro-industrial plantations development represent a coordinated policy of the GoL (in many cases a problematic assumption, for the reasons noted in above sections), these are also examples of policy failure linked to forest land degradation and new poverty.

Some key opportunities for advancing tenure and poverty issues


A case could be made that the focus for RRI could start with developing a set of options for the reform of existing state policy programs (a concept which here includes the absence of state policy) which are currently undermining the livelihoods of many forest-dependent communities. A first potential method of doing this would be to build the capacity of an effective group of Lao forest policy researchers. A number of potential research themes are developed below.

First, research could be organized around the various dimensions of swidden agriculture, livelihoods and resource tenure, and forest sustainability in Laos. The effort would be to build analysis of the swidden issue in Laos, and to attempt a better aligning of donors positions on this issue (in effect, that the current GoL policy of eradicating a major upland agro-cultural production system is unworkable). Second , research could be designed to focus on the more positive aspects to rural resource policy reform in Laos. This approach would identify the potential for community-based resource management systems, participatory sustainable forestry and equitable land concession management strategies to effectively contribute to the GoLs National Growth and Poverty Eradication Strategy and Forest Sector 2020 Strategy. A plausible entry point for RRI may be through the existing donor support mechanisms to the NGPES and FS2020 programs. There is a Roundtable Steering Committee for the NGPES, although the author has little information on this group. SIDA and JICA will also be providing support for the implementation of the Forest Sector Strategy. Third , research could be aimed at quantifying or drawing attention to the loss of state revenues due to forest land degradation, unregulated logging and land concessions. This could involve forging linkages with institutional stakeholders both within and outside of the Ministry of Agriculture and Forestry. The latter could include: the National Economic Research Institute (NERI), the Ministry of Finance, Members of the National Assembly, the Department of State Assets, or the Prime Ministers Office.
Unless a GoL institution can be identified that is (i) coordinated and effective and (ii) has a present and firm commitment, and a political capability to reforming the present problems in forest land and natural resources management sector, the opportunities for research to contribute to any policy reforms will be difficult. Observers in the forestry sector appear unable to identify any existing Lao institution which meets such criteria. 47

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) External pressure could play a role in encouraging GoL along such reforms. The possible levers for exerting political pressure on the GoL may include: 1. the threat of reduction or withdrawal of major donor funding 2. less directly, applying external pressure on the major donors to the forest sector (i.e. the World Bank, Asian Development Bank, JICA and SIDA) who would then seek to enforce more conditionalities on forest loan and grant programs. It should be noted that this approach seems not to have been particularly successful in the case of the World Bank SUFORD project, which was something of a conditionality to World Bank support to the Nam Theun II project financing scheme. 3. directly identifying foreign companies which are profiting from the current system. This could involve wood importers and processors, from Vietnam in particular, or multinational plantation firms investing in Laos. However the use of external political pressure is somewhat inconsistent with establishing and building longer-term relationships with Lao research institutions. External pressure may have a better chance of succeeding when it is simultaneously linked to new opportunities for state revenue generation. This could include for example, identifying the actors which are profiting from the current system in Laos, while at the same time undertaking research on the potential for sustainable, participatory forest and land management to offer equal or even improved financial opportunities. This route could lead towards research arguing the case for new regulatory instruments on conservation and community tenure security, including forest certification and payments for ecosystem services. The promise of institutional and legal reforms articulated in the NGPES provides, for the first time in Laos, an opening for a legalistic approach to addressing resource and tenure disputes. This could entail a couple of approaches. First, field research could contribute to the formulation of legal challenges to GoL laws and decrees, arguing either for further clarification (especially with respect to the lower order regulations) or possibly arguing that the laws are unconstitutional. Another approach would be to promote the basis for local legal challenges to the violation of existing laws and regulations. This requires efforts around local community education concerning their rights and responsibilities under the law, and building the capacity of legal institutions at the local level. For various reasons this is very difficult in Laos. Stuart-Fox (2006) also argues that the LPRP and the court system in Laos are indistinguishable. Given the RRI has been quite effective in engaging with Chinese state forestry institutions, and that the GoL would likely see China as a communist model for its development strategy, there could be options for Asian regional learning efforts. The only existing threat (however minor) to the stability of the LPRP is rural discontent. Although there are grumblings about state corruption, the donor-fed economy of Vientiane is growing well enough to maintain the disinterest of most urban Lao in politics. However, there are major and disturbing income gaps emerging between those state officials who can afford expensive luxury vehicles in Vientiane Capital, and the thousands of rural and upland families who continue to struggle to provide basic food security for their children. The livelihood and income differential, and the discontent, is usually strongest with ethnic minorities, as it has been throughout Lao history. There may be a role for research which argues that the LPRP regime could avoid the current instability plaguing rural China (see Time Magazine article: Chinas Rural Rage) if more effective and equitable forestry and land management institutions are established, which local people see as legitimate and as working in their interests. A next option would be to adopt the approach of many existing donor agencies. This is to focus on modest and measurable steps, targeting relatively uncontroversial areas such as on NTFPs, promoting smallholders and forest markets, and technical extension and policy-research training, using these to 48

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) argue the case for CBNRM. The emphasis would be on building capacity of Lao institutions, on small projects, in training education and research, which may result in incremental policy changes. This is longterm work. It may prove effective in creating real changes in Lao institutions, and result in positive changes for specific rural communities. The downside is that it is easy for policy makers to ignore the results. Some development NGOs in Laos argue that efforts to promote affective policy reform should start from local, grounded projects based in communities. The lessons from these could then be integrated into broader programs by district and provincial governments. In the general absence of competent and professional state institutions however, it remains unclear how scaling up to the national level might actually occur from such local examples, especially in the forest sector. Efforts focused on national level policy reform face the same problem from the other perspective. Highly participatory and well conceived resource management policies drafted at the national level can become hopelessly muddled once it comes time for implementation in provinces and districtsthe LFA being the prime example of this.

Glossary of Selected Terms Used


GoL LFA LPRP LTP MAF NA NERI NFRI NBCAs NGPES NPAs NTFPs NUoL PSFM SOEs T-LUCs Government of Laos Land and Forest Allocation Lao Peoples Revolutionary Party Land Titling Project Ministry of Agriculture and Forestry National Assembly National Economic Research Institute National Agriculture and Forestry Research Institute National Biodiversity Conservation Forests National Growth and Poverty Eradication Strategy Lao Non-Profit Associations Non-timber forest products National University of Laos Faculty of Forestry Participatory Sustainable Forestry Management State-owned enterprises Temporary Land Use Certifications

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Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft)

Malaysia
The legal framework on ownership and control over forest areas and land
Constitutional framework that regulates land and other natural resource ownership
Under Article 74 (2) of the Federal Constitution, land and natural resources are a State matter. Each State is empowered to enact laws and policy on forestry independently. All forest land is owned by the State, with the exception of a few hundred thousand hectares of privately owned plantations of agricultural tree crops. All forest produce originating from permanent reserved forest or State land is considered the property of the State Authority. All exploitation of forest produce must be licensed and administered by the State Authority. Licensees in permanent reserved forests are in turn, required, to develop and implement forest management, harvesting and reforestation plans. The executive authority of the Federal Government only extends to the provision of advice and technical assistance to the States, training, research, and the maintenance of experimental and demonstration stations. Federal authority for forest management rests with the Federal Forestry Department, headed by the Director-General of Forestry, under the purview of the Ministry of Natural Resources and Environment. A National Forestry Council (NFC) was established in 1971 under the authority of the National Land Council (NLC) to facilitate co-ordination between the Federal and State Governments in the formulation and implementation of policies and programmes.xvi This included the National Forestry Policy, 1978. The NFC also agrees the annual allowable cut (AAC) for each State in Malaysia on a five-yearly basis, in line with States five-year development plans. The AAC is based on the extent of production forests within Permanent Reserved Forests as well as standing timber stock.xvii Although each State is empowered to acts its own laws and policy, all apply the National Forest Policy. This covers the constitution of sufficient areas of Permanent Reserved Forest; principles for sustainable forest management; forest harvesting, regeneration and rehabilitation; the establishment of downstream processing industries taking into account the availability of raw material from Permanent Forest Estate; the management of non-wood forest products (rattan and bamboo); as well as research, training and extension. The Policy was revised in 1992 to reflect United Nations Conference on Environment and Development (UNCED) commitments on the conservation of biological diversity, the sustainable use of forest genetic resources, as well as the role of local communities in forest development. The Policy envisages community participation in agro-forestry around the fringes of the forests, as well as the development of community forestry for recreation and tourism.xviii However it does not offer further guidance. In line with the National Forestry Policy 1978, and with the objective of promoting uniformity of laws of the States of Malaysia for the administration, management and conservation of forests, a National Forestry Act was passed by the Federal Parliament in October 1984. This built on the existing body of State enactments and ordinances dating back to the early 1900s.xix The National Forestry Policy calls for the judicious implementation of the National Forestry Act 1984, in support of the sustainable management and conservation of forest resources.

50

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) Federal law may not come into force in any State unless adopted by the State Legislature. The National Forestry Act has now been adopted by all States in the Peninsula. However, pursuant to their terms of accession to the Malaysian Federation, Sabah and Sarawak continue to regulate their forestry sectors under their own enactments and ordinances. These include the Sabah Forest Enactment 1968 (amended 1992) and Forest Rules (1969); as well as the Sarawak Forest Ordinance 1954 (amended 1999). There are consequently three separate forest-sector jurisdictions in Malaysia the Peninsula, Sabah and Sarawak. The National Forestry Act and its equivalent Enactments and Ordinances in Sabah and Sarawak give States the power to constitute permanent reserved forests/PFE in line with National Forest Policy; and to classify these for a range of purposes. Purposes include timber production under sustained yield, water catchment and soil protection, as well as the constitution of wildlife sanctuaries, virgin jungle reserves and amenity forests. As such, the National Forestry Act, the Sabah Forest Enactment and the Sarawak Forest Ordinance provide for the designation of a Permanent Forest Estate, in line with the National Forestry Policy. Forests outside of permanent reserved forests either constitute State land (effectively a land bank for future gazettement as permanent reserved forests or for alienation and conversion), or national parks (which, in Peninsula, come under Federal control).

Status of land/forest ownership and tenure


The Peninsula
The National Land Code (which only applies to the Peninsula) does not yet recognise collective ownership, foreclosing aboriginals from securing title. Rather, s.6 & 7 of the Aboriginal Peoples Act 1954 provide for the recognition of aboriginal areas and the gazettement of aboriginal reserves. Whereas permanent reserved forest cannot be established in aboriginal reserves, the Act does not seem to preclude this in respect of ungazetted aboriginal areas. However an unrecorded case in the Ipoh High Court, Koperasi Kijang Mas & 3 Ors v. the State Government of Perak, suggests that aboriginals nevertheless have first rights in such areas. The court held that the approval of the State Government for the lands to be aboriginal reserves had, without the necessity of gazetting, created the reserves and thereafter only Orang Asli have exclusive rights to the forest products in the reserves. The Peninsular States have tended to regard aboriginal reserves in much the same way as any other land use; i.e. at the pleasure of the State. However, the Court of Appeal in the case of Kerajaan Negeri Selangor v Sagong Tasi (2005) has affirmed that aboriginal groups have a proprietary interest at common law in areas where proof of continuous occupation (including settlements, agriculture and planted trees) can be established. As such, the States bear a fiduciary duty to gazette all areas in which such interests can be established. Failure to gazette such lands is not a defense in respect of compensation not having been paid by the State where that land has been taken for another purpose. This could extend to failure to verify proprietary interests in gazetting Permanent Reserve Forest. The 1984 National Forest Act makes no provision for public notice. My reading of the National Land Code is that is does not seem to regulate for this either. So its probably provided for in State ordinances implementing the Forest Act. Regarding proof of continuous occupation - as currently interpreted by the Court in Sagong Tasi, it effectively forecloses native groups from establishing a proprietary interest in the wider forest 51

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) domain over which they may roam for hunting and gathering. In the Peninsula, this is a matter of Common Law and its a moot point the judge in Sagong Tasi touched on forest lands even though it wasnt at issue. Interestingly, the Court of Appeal in Adong bin Kuwau also affirmed a duty to compensate (but not necessarily a duty to gazette) in respect of usufruct rights within the forest domain. One implication might be that adequate procedures for compensation should now be established with respect to logging in areas of Permanent Reserved Forest which aboriginal groups currently use for hunting and gathering.

Sarawak
Native tenure The Sarawak Land Code provides for: (i) Native Communal Reserves under S.6(1) governed by customary law. These remain state land, and have hardly been implemented; (ii) Native Customary Rights (NCR) under S.5. To qualify as NCR, it must have been in existence before 1 January 1958 and no new claims can be established without a permit in writing from the Superintendent of Land S.5(1). S.5(2) sets out the tests for establishing an NCR including felling of virgin jungle. NCR may be extinguished upon notice in return for compensation, provided such a claim has been submitted with a 60-day notice period under S.5(3)(c). The Land Code Amendment 2000 allows the registration of NCR and Native Reserve Land in accordance with S.213 of the Code.

Native rights in forest areas The Sarawak Forest Ordinance 1954 and Wildlife Protection Ordinances prevent natives from creating customary rights in forest reserves and State lands (i.e. by felling virgin jungle) without authorisation of the District Officer. However, NCR may be entered into the boundary register maintained by the District Forest Office (DFO), and Companies must compensate any violation or disturbance of traditional rights or agricultural areas belonging to local communities (e.g. planted fruit trees) where such rights have been established (presumed outside the forest estate).

Gazettement processes The Forest Ordinance states that those with rights before 1 January 1954 (s.6) must register them within 60 days of public notification (in the Government Gazette and by the District Officer) or be deemed to have waived them without right of payment or compensation under S.4(1)(c) and S.7(1). This leaves a very small window of opportunity for aboriginal or native groups to register claims, especially for those in more remote areas with limited access to information. The Forest Department does claim to do more that is required in the Forest Ordinance by distributing information to long houses. An enquiry is conducted by the Regional Forest Officer within 60 days of receipt of claims, whereupon the Forest Director will assess compensation in order to extinguish NCR claims, or realign boundaries so as to exclude them, or refer appeals to the Section Court. This presumes that gazettement takes place prior to licensing. In practice it does not as the PFE has still not been completed delineated in Sarawak 52

Conflicts over the scope of native claims

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) The basis on which NCR claims may be admitted under gazettement processes is contested in terms of what (a) constitutes continuous occupation sufficient to establish NCR; and (b) what evidence must be submitted in support of such a claim. These questions are now the subject over a slew of litigation, exacerbated by issuances of Provisional Leases for plantation development where the State has not fully determined, compensated and excluded NCR prior to issuing such leases. In respect of what constitutes continuous occupation, a recent amendment to the Land Code removed S5(2)(f) on creation of NCR by any other lawful means. Some argue that this effectively restricts the test of continuous occupation from applying to the wider forest domain. However, the Sarawak Attorney General has subsequently argued that: any other lawful means does not in any case apply to fishing or the collection of jungle produce, but only to NCR acquired by gift or inheritance as specified in codified customary law in the Appendix to the Tusun Tunggu (Third Division) Order; pursuant to S. 5(1) of the Land Code, a valid claim in NCR must subsist, not simply in unwritten rules of native custom, but rather in customary law codified by the Native Affairs Council or Majlis Adat Istiadat under the Native Customs (Declaration) Ordinance 1996; and, and, even if S5(2) of the Land Code only applies to NCR created after 1 January 1958,xx NCR created before that time was itself restricted by colonial executive orders, which provided (amongst others) that: (i) a claim in land is contingent on continuous occupation or cultivation on or within 3 years; and (ii) no native may hold up land without title in excess of requirements.xxi

These arguments are pertinent to the case of Nor Nyawai v. Borneo Pulp Plantation Sdn Bhd (2001) in which the Judge at first instance upheld a claim by the natives of Rumah Nor over land subject to a Provisional License. The learned Judge established that NCR may be created in respect of cleared areas (temuda) as well as in respect of areas used for hunting and fishing (pulau galau) within the wider area used by a longhouse (pemakai menoa). This decision was subsequently appealed on grounds that (among others): the natives in this case could not establish claims in respect of pulau galau or pemakai menoa as neither are specified in codified customary law; and that, pre-1958 orders also made no mention of either category, with the implication that such practices were not part of the customary law of Sarawak during and after the colonial period. The people of Ruman Nor in the end lost on the facts of the case, but the ruling of Court of Appeal in Borneo Pulp Plantation Sdn Bhd v Nor Nyawai (2005) also affirmed that: NCR does not owe its existence to statute but to common law; That legislation is only relevant to determine how much of those native customary rights have been extinguished; and Establishing NCR is a matter of proof based on the evidence adduced and the application of the relevant statutory provisions.

This arguably upholds the view of the Judge at first instance that the fact that pulau galau or pemakai menoa are not incorporated into a body of written law does not mean that it is no longer to be recognised or regarded as proof of continuous occupation for purposes of NCR.xxii Advocates acting for native groups also point to the submissions of the Sarawak Attorney-General to the Court of Appeal. These appear to suggest that NCR may be established over areas used for hunting and fishing (pulau galau) if there is also clearing of land (temuda) within the wider area used by a longhouse (pemakai menoa). This issue has now been submitted by the people of Rumah Nor for determination by the Federal Court. The appeal includes questions to the 53

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) public advantage to affirm (amongst others) whether, for the purposes of establishing pre-1958 NCR in areas used for hunting and fishing, it is necessary also to have proof of temuda and pemakai menoa. Clement Skinner J. in Madelli Salleh v Superintendent of Land & Surveys & Anor [Civil Appeal No. Q-01-94-00] in fact affirms that actual physical presence need not be equated with occupation for purposes of establishing NCR. However, the case of Nor Nyawai also demonstrates the difficulty of obtaining corroborative evidence of pre-1958 claims. This includes interpretation of aerial photography to determine whether the area constituted primary or secondary jungle at the time. The Appeal to the Federal Court therefore asks whether it is correct in law in cases involving claims to native title by indigenous people without a tradition of written records to seek corroborative evidence of the claim other than by oral testimony? The Court of Appeal found that such evidence was necessary where oral testimonies were otherwise self-serving. Resolution of these outstanding legal issues is essential in clarifying the legal basis on which to establish NCR for purposes of gazetting Permanent Forest Estate. It is also important in light of the Land Code Amendment 2000 which allows for the registration of NCR and Native Reserve Land in accordance with S.213 of the Code. This specifically targets land mobilization for plantation development in partnership with native groups (Konsep Baru). The presumption here is that NCR applies only to areas outside of Permanent Reserved Forest.

Sabah
Native tenure In Sabah, native tenure is governed under Part IV of the Land Ordinance. This provides for a more diverse set of arrangements that either the Peninsula or Sarawak. Customary land is defined as land in lawful possession by natives either by continuous occupation or cultivation for three or more consecutive years or by title (S.65). The Sabah Land Ordinance establishes a register of native titles (S.67). The Head of State may issue proclamations for land settlement under S.81, whereupon all natives with claims are required to submit these in verbal or written form within the time period specified (S.82). S. 85 provides for compulsory registration. Claims not subject to a documentary title may be resumed by Government by compensation in line with the Land Acquisition Ordinance (S.83). The Ordinance also provides for registration of communal title in the name of the Collector of Land Revenue on trust (S76). The Head of State may also proclaim a native reserve, but no title can be issue in respect of such land (s.78) Under S.70 a native can apply for a native title to untitled state land (for agriculture plots up to 20 hectares). Transactions in native land are expressed forbidden, but a native title may be sub-leased to nonnatives for a term not exceed 99 years (s.5)

Native rights in forest lands Sabah Forest Enactment 1968 makes no provision for customary ownership of permanent reserved forest. However, S.14 does allow for certain rights or privileges (presumably usufruct) to be admitted in the constitution of forest reserves are a subject to cancellation if they are not exercised for three years. The Head of State may also "rescind, modify or add". Unlike concession licenses in either the Peninsula or Sarawak, Sabahs 100-year SFM License Agreements place certain duties on license holders with respect to such [usufruct] rights and 54

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) priveleges as may have been admitted during the gazettement process. This includes rights to collect forest products for subsistence, the designation of community forestry areas, as well as support to government in the delivery of health and education facilities. This reflects the policy intent of 100-year SFM License Agreements as a basis for progress towards (Forest Stewardship Council) FSC certification. The 125 clauses of the License Agreements build on the 10 FSC Principles, including FSC principles 2, 3 and 4 on tenure, native rights and community development. Under the Sabah Forest Rules, the holder of a right or privilege may be required to obtain a free permit in order to remove products from a reserve (Rule 10). On State land (outside the PRF) a native may also take forest produce for the specified purposes of his own use or that of his village, and may also clear secondary growth for cultivation on land which is not under license or closed to shifting cultivation (Rule 9).

Gazettement processes The Sabah Enactment provides 3 months for date of first publication in the Gazette for submission of objections or applications for the admission of certain rights and privileges. Such rights and privileges are otherwise considered extinguished under S.12(6). However, the Forests (Constitution of Forest Reserves and Amendment) Enactment 1984, also constituted a whole series of forest reserves, without appearing to have gone through these steps.

Inconsistencies between the national legal framework and local government legal frameworks (i.e. in a federal system)
The Constitutional make-up of Malaysia means that while there are differences, these cannot necessarily be deemed irregularities. The key differences with forest sector regulation in Sabah, Sarawak and the Peninsula relate to: o o o o the organisational structure of forestry agencies, and the degree of oversight this permits; the duration of concession licenses, and the relative role of State Forestry Departments in forest management and control the accommodation of native rights and community involvement in the management of permanent reserved forest (see above) differences in timber administration, and the traceability this permits along the production chain.

Legal definition of Forests, distinctions between actual tree cover being natural or planted, distinction between land with tree cover and land without tree cover that is still classified as forest area, public domain
Forest categories consist of Permanent Reserved Forest/ Permanent Forest Estate (see table 1) National Parks and Wildlife Sanctuaries (see table 2) Amenity Research and Education Virgin Jungle Reserves: Since its inception in the 1950s, a total of 90 VJRs covering 25,129 hectares were established throughout Peninsular Malaysia while in Sabah, a total of 50 VJRs had also been established covering an area of 91,914 hectares. 55

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) Since 1957, Malaysia has initiated the establishment of commercial forest plantations and at the end of 2003, a total of 254,717 hectares had been planted. In this context, Malaysia has set a target to establish 1.77 million hectares of planted forests, especially in Sabah and Sarawak. Furthermore, the planting of rattan and forest fruit trees with the involvement of local communities were estimated to be 36,751 hectares and 11,237 hectares respectively. Table 1 - Permanent Reserved Forests in Malaysia, 2003 Protection Forest Production Forest Total Land Area Under PRFs Percentage of Total Land Area

Region
(million ha) Peninsular Malaysia Sabah Sarawak Malaysia

1.52 0.59 1.10 3.21

3.18 3.00 5.00 11.18

4.70 3.59 6.10 14.39

35.7 48.7 49.6 43.8

Table 2 - National Parks and Wildlife Sanctuaries in Malaysia, 2003 Region (million ha) Peninsular Malaysia Sabah Sarawak Malaysia 0.58 0.25 0.80 1.63 National Park Wildlife and Sanctuary 0.31 0.16 0.30 0.77 Bird Total

0.89 0.41 1.10 2.40

Main issues in natural resource and local rights: government perspective


The Federal Government, the Malaysian Timber Certification Council (MTCC) and the industry-led Malaysian Timber Council work closely in formulating Malaysias international policy position on forestry. This is strongly of the opinion that Malaysia is well ahead of the game in terms of SFM. However, it also regards the issue of aboriginal and NCR as an entirely State matter. The position of the individual States is set out in Section I above. However, conflicts in the MTCC certified Selaan Linau FMU in Sarawak, a UK CPET finding that MTCC is inadequate for purposes of SFM and increasing scrutiny as Malaysia negotiates a Voluntary Partnership Agreement with the EU may, however, be pushing the Federal Government, MTCC and MTC to engage more actively with the States on the issue of aboriginal and native claims. All permanent reserved forest, national parks and wildlife sanctuaries (see table 1 above) are considered State land, though aboriginal and native interests may be admitted in the gazettement processes and are subject to compensation.

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Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) Areas outside of permanent reserved forest may be gazetted as aboriginal reserves (in the Peninsula) or native customary reserves (in Sarawak and Sabah). Though subject to compensation, reserves remain state land and cannot be titled. The areas involved are small. In the Peninsula, a mere 75 square miles has so far been gazetted under the Aboriginal Peoples Act; further areas are pending gazettement while others are still under consideration. In addition, areas subject to NCR may be given recognition and titled under the State land ordinances of Sabah and Sarawak; however the scope of such claims in respect of the wider forest domain remains contested (see Section I above). In Sarawak, where NCR land is being titled under joint venture schemes for plantation development (Konsep Baru), some 292,247 ha of NCR land have so far been verified by the Department for Land and Surveys. The FAO statistics quote 20,160,000ha of forest under public ownership and 1,431,000ha under private ownership. Comparing these to Table 1 above, the figure for public ownership likely includes forests on state land outside of permanent reserved forests, national parks and wildlife sanctuaries (16,790,000ha). The figure for private ownership likely refers to plantation companies. This report could not find an accurate figure for forest area subject to aboriginal/ native customary gazettement and/or title. Notes Refer to data as presented in the 2002 Forest Trends publication Who Owns the Worlds Forests, comment on the accuracy of that data based on your experience and the classification system used. (http://www.forest-trends.org/documents/publications/tenurereport_whoowns.pdf) Refer to and comment on the quality and helpfulness of the data presented in the Forest Resources Assessment (http://www.fao.org/forestry/foris/webview/forestry2/index.jsp?siteId=101&sitetreeId=1191 &langId=1&geoId=0)

Issues on natural resource and land rights: civil society perspective


The above already outlines the current legal claims in respect of aboriginal and native rights in forest areas. The key areas of contestation relate to: Proof of continuous occupation; aboriginal and native groups have sought a more expansive interpretation of this, permitting claims over the wider forest domain. Admissible evidence in establishing proof of continuous occupation.

The concerns of aboriginal/ native claims were clearly voiced during the formulation of Malaysian C&I for SFM, facilitated by MTCC. Representative of 3 indigenous peoples organisations on the National Steering Committee expressed frustration at MTCCs reluctance to engage in a State matter and decided not to continue to participate in protest that their views and opinions had not been taken into consideration. These included proposed amendments to State land codes. While Criteria 2 and 3 of the MC&I(2002) now require assessment of disputes, documentation of dispute settlement as well as communication with local communities, it has been argued that the indicators and means of assessing compliance are not sufficiently specific or performance based. NGOs do, however, see the subsequent establishment of a nine-member pro tem National Working Group on FSC in February 2006 as an entry point in addressing these concerns. This is tasked with developing the organisational structure and operational rules (constitution) of an FSC-style working group. The working group that is eventually established may either choose to update MC&I(2002) or start over afresh. 57

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) Migration into forest areas, and related conflict with indigenous groups, is not a significant problem; through aboriginal groups in the Peninsula have been displaced under land conversion and settlement schemes by the Federal Land Development Agency (FELDA). These have largely targeted landless Malay communities. Provide a brief description the natural resource and local right problems from the general perspective of civil society (often those that arise from contradictions or inconstancies in the frameworks and practices as presented in questions 1 and 2). Give particular attention to problems migrants into forest areas face as opposed or related to indigenous or long-term occupants of those areas

Efforts at tenure reform


In the Peninsula, the courts have upheld both a statutory duty on states to gazette aboriginal lands in the Peninsula, and the first right of aboriginals in respect of aboriginal areas where these overlap with gazetted forest reserves. These rulings have yet to be translated into administrative practice, including reforms to public notice procedures, and related standards and mechanisms for compensation. In Sarawak, efforts to title NCR are driven by an interest in consolidating land parcels for plantation development under the Konsep Baru policy. The State Attorney General has reiterated the possibility of also gazetting native customary forests as provided for in the Forests Ordinance. However, the States restrictive interpretation of continuous occupation means that neither entry point it is unlikely to settle claims to areas used for hunting and gathering. Groups such as the Penan remain almost entirely outside the States view of what may be established as legal claims, fuelling conflict in the Selaan Linau FMU and other concession areas.

Poverty and forests


There is no real estimate of poverty levels in and near forest areas in Malaysia. However, COAC estimates that 80% of Peninsular aboriginal communities live in chronic poverty with poor access to basic services. Arriving at a country-wide assessment would require a break-down of available panel data, depending on whether census households are coded and geo-referenced. While forest policy in the Peninsula and Sarawak provides only for limited agro-forestry activities, Sabah has a more advanced social forestry policy in place. Uniquely, this includes provisions for CF within permanent reserved forest under its 100-year SFM License Agreements with concessions - with the policy intent of progressing concessions to FSC certification. This includes requirements: for licensees to demarcate areas for Community Forestry (Clause 5); to respect NCR as may be admitted during gazettement, including rights to enter licensed areas to collect certain wood species and NTFP (Clause 23); to assist the implementation of community/labour welfare schemes within or adjacent to the Licensed area (Clause 24); zonation of license areas into Conservation, Production, Community or Recreation Areas (Clause 49).

It is yet too early to assess the relative success of CF schemes under the 100 SFMLA agreements.

Prominent Threats
58

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) 1. With an increasingly degraded natural timber stock, there is growing interest in further expanding plantation timber as well as oil palm for biofuel production. In all three regions of Malaysia, the current trend is to convert all remaining forest areas on State land outside of Permanent Reserved Forests, National Parks and Wildlife reserves. In Sarawak, which has yet to completely gazette its PFE, this involves a significantly greater area than either the Peninsula or Sabah. Prospects for sustainable management of the PFE in Sarawak are in turn undermined by the lack of an up-to-date forest inventory and an annual harvest rate set at 9million m3. In the Peninsula and Sabah, there is growing political awareness of the need to reign in and reduce dependency on logging, including a much greater focus on ecosystem restoration under 100 SFM License Agreements in Sabah. But here again, this only makes economic sense by also permitting partial conversion of permanent reserved forest to plantation timber. Pressure from license holders to also permit partial conversion to oil palm is high though the Sabah Forest Department has so far resisted this.

2. Increasing competition for remaining land and resources only heightens the urgency of resolving outstanding legal conflicts over the scope of native and aboriginal claims, and of overhauling related gazettement processes if conflict is not to be exacerbated. Two problems in particular stand out: The slew of litigation around issuances of Provincial Leases to plantation companies by the Sarawak government without first settling outstanding NCR claims illustrates this problem. Communities have been surprised to find their land leased, without no prior consultation. This places the onus on developers to identify existing claims, when they arguably lack the qualifications to do so. Pressure to consolidate NCR land for conversion under the Konsep Baru policy in Sarawak at a time when the courts have yet to finally determine on the scope of NCR claims in respect of the wider forest domain. The risk is that registration of NCR land is taking place on the basis of a restrictive interpretation of the law, thereby working to foreclose future claims.

Main Governmental and civil society actors in the rights and resources arena
Key NGO networks
Engaged in promoting aboriginal/native rights through legal advocacy, policy research and community organization: In Sarawak, the two main community organizations are: BRIMAS (The Broneo Resources Institute Malaysia) Harrison Ngao & Raymond Abin. SADIA (Sarawak Dayak Iban Association) Sidi Munan. Both groups have worked closely with communities seeking to bring claims in the courts. A Sarawak Native Customary Land Right Network, (TAHABAS Tanah Hak Adat Bangsa Asal Sarawak) has also been established as an umbrella group, but is reportedly not active. In Sabah, the leading organization on native customary rights is PACOS, a community-based trust based in Kota Kinabalu (Claudia Lasimbang). 59

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) The Centre for Orang Asli Concerns (COAC) focuses on aboriginal rights in the Peninsula (Colin Nicolas), and works in collaboration with other Orang Asli organizations in support of grassroots initiatives. Indigenous rights groups from across Malaysia subscribe to Jaringan Orang Asal NGO Tentang Hutan (JOANGOHutan), for interfacing with MTCC and (most recently) with the EU and government counterparts on the VPA.

Key Government and industry actors


At the Federal Level, responsibility for forest policy is split between the Ministry for Natural Resources and Environment (MNRE) and the Ministry for Plantation Industries and Commodities (MPIC). The Federal Forestry Department falls under MNRE, but has a structural relationship only in relation to State forestry departments in the Peninsula (see Section I above). The Federal Forestry Department takes a lead in standard-setting and technical support, including through SFM audits of the Peninsular States. MPIC takes on lead on wood processing and exports, and regulates the sector through the Malaysian Timber Industry Board (MTIB). This Sarawak, this function is performed by the Sarawak Timber Industry Development Corporation (STIDC) under the Sarawak Ministry of Planning and Resource Management. The Malaysian Timber Certification Council (MTCC) is a nominally independent certification body operating to its own trust fund, but sits under the authority of MNRE. MTCC certification applies to entire States in the Peninsula (each State constitutes a single FMU). As such, it enjoys quasi mandatory status in respect of licensees and contractors. MTCC has also certified 1 FMU (Selaan Linau in Sarawak). MTCC does not yet accredit certifiers (thereby stepping back from issuing certificates) though it has been proposed to enhance the schemes independence. The Malaysian Timber Council (MTC) is an industry association geared to promoting the sectors profile on international markets. It has no jurisdiction in Sarawak, where its role is performed by the Sarawak Timber Association (STA). At the State level, the State forestry departments in the Peninsula report to their respective Chief Ministers but (with the exception of Sabah and Sarawak) remain under the line management of the Federal Forestry Department. State forestry departments are responsible for land allocation, gazettement, licensing, monitoring and control. In Sarawak, routine administration, monitoring and control has been devolved out of the Sarawak Forests Department into a state-owned private company, the Sarawak Forestry Corporation (SFC) in a bid to enhance operational efficiency. The Forests Department remains responsible for regulation and licensing, and (like the STIDC) sits under the authority of the Sarawak Minister for Planning and Resource Management - who is also the Chief Minister of the State. Other key actors include the Department for Aboriginal Affairs in the Peninsular (responsible for identifying aboriginal areas), and the lands and survey departments of the respective States, responsible for gazetting and titling in aboriginal/ native customary lands.

Nepal
The legal framework on ownership and control over forest areas and
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Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft)

land
The constitution of Nepal expresses sovereign rights of state over all the natural resources of the country that people's access to resources is not guaranteed. Although the Directive Principles of the constitution have emphasized the need to prevent the concentration of resources within a limited section of the society and prevent economic exploitation of any class or individual, the constitution however, is silent on the rights of indigenous communities over the natural resources located in their ancestral areas, and their territorial rights on their ancient lands. Despite provisions of 'land reform' and 'decentralization' in the directive principles of the constitution, it does not automatically mean the mandatory action for the government. Nepal is now in a political and constitutional transition. An election for the constitutional assembly is planned which will draft and passes new constitution for the country. The new constitution is expected to address explicitly the people's access to resources, particularly those of indigenous ones. Management and use rights of lands and forest resources are guided by various policies, acts and rules such as: Master Plan for the Forest Sector 1988, Environment policy and action plan 1993, National Conservation Strategy 1988, Nepal Biodiversity Action Plan 2002, National Park and Wildlife Conservation Act 1973, Forest Act 1993, Land Act...., Local Self Governance Act 1999, Forest rules 1995, Buffer Zone rules 1996, Land tax Act 1978, Land acquisition Act 1977, Pasture lands nationalization Act 1974, Soil and Watershed Conservation Act 1982, Master Plan for the Forest Sector (MPSC) 1988 is the first comprehensive policy document that classified forest lands into different tenure arrangement. Master Plan for the Forest Sector (MPFS, 1988) is the first document to promote livelihood agenda within forestry- to meet the basic needs (e.g. fuelwood, timber, fodder ...) and sought people's participation in forest resource development, management and conservation. It recognized CF as the major program with over 47% of the total investment in forest sector. Besides, some international conventions such as Convention Concerning the Protection of the Worlds Cultural and Natural Heritage 1972, World Heritage Convention, State Party 1978, Ramsar Convention 1987, Convention on Biological Diversity (CBD, 1992) have also direct impact in people's access to rights over forest land and resources. Within the process of modernizing land tenure, the Nepalese state nationalized all the forests and pasture lands and privatized some communally managed land (Kipat). Nationalization processes alienated people from their forest resources and pasture lands. These processes affected the mobile shepherds in the high hills, alienated many forest dwellers and destroyed collective farming among the Limbus, (Kipat system of tenure were under collective ownership). There has however, been no comprehensive study on the impact of these modernizing tenure arrangement in land and forest resources. Several inconsistencies in legal framework exist in land tenure and access to resources arising due to overlapping claims between for example Forest Rules 1995, Buffer zone Rules 1996 and Local Self Governance Act 1999. Many of the central government agencies roles are overlapped by the Local Self Governance Act ultimately creating confusion and ambiguities. In Nepal forests are officially defined as any unclaimed land which is not in private land. As legally there are no communal lands, any land which is not under private ownership are forests and can include: uncultivated lands, land with some sort of vegetation, rocks, river belts and even the Himalayas. This flat definition has over empowered the Forest Department that not only citizens but also all the state agencies has to request land with the FD for any developmental activities.

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Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft)

Status of land/forest ownership and tenure


Three types of land tenure are in practice- Raiker (private), Guthi (religious) and state managed (public) lands. The Master Plan for the Forestry Sector has arranged two major tenure arrangements for Nepal's forests government forests and private forests. The government owned forests is under four management regimes: Government managed (5.83 million hectares) community (1.18 million hectares) or leasehold (12347 hectares), religious (543 hectares). Over 70% forests are managed by the government, over 25% are managed by the communities as community forests and rests are either religious or private and leasehold forests. Due to the area and significance to rural livelihoods, community forestry demands a further discussion here. Over 25% of total forests are handed over to 14000 CFUGs which is about 35% population of Nepal (Kanel, 2004:5). Their daily labour contribution alone comes around Rs 165 million and they earn more than $10 million annually from the sale of forest products. CF user groups have access, withdrawal, exclusion and management rights over these forests. The development of community forestry can be linked with some key events in the country: First community forestry workshop in 1987, passing of Master Plan for the Forest Sectors in 1988, change in political regime in 1990, second community forestry workshop in 1993, third workshop in 1998 and fourth workshop in 2004. The 4th workshop has identified livelihoods, governance and sustainability as the second generation issues in Nepal's community forestry.

Main issues in natural resource and local rights: government perspective


From the government perspective, diminishing land people ratio and shrinking land sizes, landlessness, encroachment of forested lands, unclear land entitlement and division of parental lands amongst the sons resulting in land fragmentation are some of the key problems areas in natural resources and local rights. Although government recognizes the diminishing access to land and forests resources and the decreasing productivity of the lands, it sees largely from either feudalistic or technocratic view. Poor rural people are usually blamed for ruining the land and forests that more control is needed to check the abuse of these resources. In some cases where state perspective is more progressive, they attempt with supportive technologies and incentive mechanisms. However, the government does not adequately appreciate the issues of unequal distribution of resources resulting to poor access to productive resources by rural poor, women and indigenous people.

Issues on natural resource and land rights: civil society perspective


Land - the predominant source of income, social status and security - is distributed unequally. Only 5% rich landowners hold 37% of the land, while 29% of rural people have no land. Similarly, three quarters of the peasants have less than a hectare of land and the bottom 17% of landholding households have less than 0.2 hectares of land for cultivation. Land holding size continues to decrease due to the increasing human population, limited cultivable land and unequal distribution. There is too much state control over the resources mainly over the forest lands and resources. State authorities frequently undermine the autonomy of community forest user groups which is reflected in various guidelines, orders, behaviors of forest officials, restriction on the sale of NTFP and timber and in deciding their own management plans. Access to community forests is also equally restricted by the local institutional arrangements, which are usually captured by the local elites. The ordinary people, particularly the disadvantaged have usually restricted access to the forest resources. 62

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) Access to land and forest are not fully appreciated as human rights and these two campaigns are largely separated. There are no specific provisions to the indigenous communities' access to their ancestral lands and forest and water resources. The constitution and legal provisions tend to ensure upper hands of the state and do not recognize indigenous people's inextricable link with their resource base and their knowledge on the management of these resources. Due to the lack of proper registration mechanism, indigenous people's intellectual property rights are left unprotected that they might lose the potential benefits from their own resources base and knowledge.

Efforts at tenure reform


Introduction of community forestry has been regarded as the major tenure reform initiative in the history of past 20 years in Nepal. This program has transferred management authority of about a quarter of Nepal's total forest to the local communities. Community forestry has also been practiced in the periphery of the protected areas with the aim of meeting demand for forest products of the local people. Similarly, in some cases patches of forest have been handed over the small groups of poor households as 'leasehold forests' aiming to reduce their poverty. The main objective of the introduction of community forestry program was to halt the much overstated Himalayan environmental degradation that was induced by the nationalization of forests in 1957. An implicit objective however, was to fulfill the forest resource need of the local people. Community forestry program has contributed to halt the fast deforestation and environmental degradation in the Nepalese hills on the one hand and has contributed to the sustainable livelihoods of millions of farmers on the other. Moreover, it has contributed to improve rural infrastructure, social services (health, education) and has supported many poverty reduction programs. Few years back the government has ended long existing duel ownership of landowner and tenant over the land cultivated by the tenants. It was aimed at removing the overlapped claims over the land, increased the security and therefore the productivity of the land. This abolition of duel ownership has increased the sense of security for both landowners and the tenants. Consequently, land transaction has increased and tenants have been able to commercialize their farms by taking loans from banks and have been able to invest more to make them productive. Recently, the government has abolished the bonded labor system. Under this system landowners used to exploit free labor from their poor borrowers from generation to generation who could not pay for the loan even after serving for several generations. The main objective was to free bonded laborers from inhumane and brutal exploitation by their landlords help them spend a normal life. After the abolition of this system, bonded labors have become free from their landlords though their economic problems continue to persist. Community forestry There are enough evidences that the forest condition (one of the objectives) has been improved. There is however, scant, anecdotal evidences to show its livelihoods impacts. The available studies have not gathered enough evidence to make this claim. Instead, some studies have shown a reduced access of poor and marginalized groups and therefore may have negatively affected the livelihoods of such groups. Leasehold forestry (LHF) Leasehold forestry is introduced to increase identified poor people's access to forest resources in order to raise their income through forest based enterprises. Small groups of 5- 15 households are organized in a group and given them with small patch of forest to manage for 40 years. The initiatives though has got high profile in government priority, is highly contested on its livelihoods outcomes.

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Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) Buffer zone program: As a part of shift towards participatory conservation, the government in 1996 introduced buffer zone management program in the periphery of the protected areas. Certain areas outside the protected areas have been designated as buffer zones where some restrictions on resources use have been imposed. In return a portion of the income of the respective protected areas has been allocated for the socio-economic development of the area. The initiative is aimed to reduce pressure for resources on the park and to provide an added layer of protection to the protected

Poverty and forests


Nepal is one of the poorest countries in the world, where over 38% of the people are below the poverty line with per capita income of $1 per day. Nepal Ranks 140th out of 177 countries in human resources development with a HDIxxiii 0.504. Agriculture is the largest economic activity contributing 40% of the GDP and employing 80% of the countrys labour force. Rural livelihoods are based on natural resources such as land, forest and water where crop production, animal husbandry and forest management is inherently interconnected within the integrated farming. Households with small land holdings depend on access to public land and forest resources such as collection of fruits, vegetables, fishing and hunting to supplement food and incomes. As there are limited alternative livelihood opportunities, people engage in farming marginalised land, encroaching on public land and over-extracting forest resources. Meanwhile with the rise of Western environmentalism, the Nepalese state has stepped into environmental conservation. Establishment and management of PAs has became the dominant strategy of nature conservation so that more than 18.3% of the countrys total area is now included in the PA system (DNPWC, 2003:50). Strict restrictions have been imposed on resource use by the local people, denying their traditional practices and customary rights. The increasing conversion of land and forests into exclusively protected areas in the context of shrinking landholding of rural peasants has reduced poor people's access to land and forest resources. In Nepal, poverty alleviation program as a long-term perspective plan was initiated first since the seventh five-year plan (1985-90), focusing both holistic and sectoral plans. Since then, poverty alleviation has become a major objective in each of the subsequent five-year-plans. The latest 10th plan (2002-2007) has taken four major strategies: a) broad-based economic growth b) rural infrastructure and social priorities c) program for targeted groups d) good governance. The government's increasing recognition of the crucial contribution of forest resource in reducing poverty which is reflected in the tenth plan has been executed through various policy initiatives and donor supported programs. Some of the major initiatives are: Community Forestry, Leasehold Forestry, LFP, BISEP-ST, NACRLMP, NSCFP, ChFDP, NARMSAP, SAGUN, SAMARPAN. Linking environmental conservation with local livelihoods are the major strategies of these forest based programs.

Efforts at decentralization
Decentralization through local governments has become the common agenda of all political parties. Some are even advocating federal system of governance. The process will hopefully empower local governments as the main authority of public land and forests which may undermine the management by local groups. This may also fuel up to the continuing conflicts between local governments and the community forest user groups over the management of forests. Nepal's farms and forests are largely disintegrated, scattered and unorganized. Although the country is rich in biodiversity mainly in terms of diverse vegetables, fruits and medicinal plants, the huge markets in Indian and China would benefit from the biological resources of Nepal and not the small rural farmers. 64

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) Inability to develop its own independent market for these products may limit livelihoods opportunities for the local people. The decentralization process in Nepal though has a long history since early 1980s, it did not materialize until 1999 when a strong Local/Self Governance Act was passed. The new law empowers the local governments (DDCs, VDCs, and Municipalities) over the management of local development affairs, and management of public lands and forests. The new decentralized arrangement however, excludes the forest sector. By excluding forest sector from the overall decentralisation process, the government has clearly shown its apparent ill intention to continue to control the resource base. This is why the newly formed District Forest Sector Coordination Committee (DFCCs) are formed not under the DDC but instead are being formed under the Forest Act. Despite, the apparent emphasis on decentralization, centralized management control continue to exist in the forest sector. However, in case of forests decentralization policy usually excludes forests- because it is the potential revenue generating sector. Despite the emphasis on decentralization of forest sector through the formation of DFCCs, these decentralization bodies have authorized under the forest Act and not under the local self governance Act. Multilateral and bilateral donor agencies are high handed in the forest sector policy process. Few projects in the sector draft the policy and get is passed usually through back doors without much deliberation of the stakeholders. In fact even the politicians are little aware of the policy process of the sector. The current policy process is equally undermining both the popular politics and sound science. Research on forest has very little influence on what actually goes on behind the dark rooms. It has been increasingly realized that the current research approach that targets on policy makers, primarily the forest bureaucrats, needs rethinking. The apparent poor link between the research and the resulting policy statements tells us that in a developing country like Nepal, politics usually undermines the science in the policy process. Therefore, policy research must equally inform civil society in general and advocacy groups in particular so as to equip them with better science thereby increasing their influence on the process. RRI collaborative initiatives with NGOs and other civil society organizations will help redefine the research agenda, the research approach, its language and the audience.

Main governmental and civil society actors in forestry


Government State actors: Ministry of Forest and Soil Conservation, Ministry of Land Reform and Management are major ministries concerned with the management of lands and forests. Department of Forest Department of National Park and Wildlife Conservation are the key agencies to look after management of forests resources. The District Forest Officers (DFOs), the protected area wardens Land Revenue Officer are the key players at local level and protected area level who implement government policies on forest management and conservation., land reform office, two and the and the

Donors: Donors are very powerful actors active both in policy arena and in implementing government policies in natural resource management. The major multilateral and bilateral aid agencies include among others World Bank, Asian Development Bank and UN agencies (UNDP, FAO), USAID, SNV, DANIDA, DFID, SDC and EU. International NGOs (I/NGOs): Many INGOs have been active in the promotion of participatory natural resources management. In Nepal INGOs are closely working either with local NGOs or directly implementing natural resource base programs on their own. Many of them, particularly Action Aid and OXFAM have been promoting rights based approach to resource management while others have been supporting communities for both environmental conservation and sustainable livelihoods. 65

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) Local Governments: Local governments (DDC, VDC, and municipalities) have become very influential actors, particularly after passing of the Local Self Governance Act in 1999. They can restrict or enhance local people's access to local environmental resources. Also as there are often overlapped claims over natural resources, the extent of implementation of government policies depends upon the cooperation of the local governments. NGOs: After the political change in 1990, civil society organizations including media, professional groups, research institutes and NGOs involved in resource management and in advocacy have flourished. NGOs which are involved in research and action are strongly attached to local communities and their livelihoods issues. ForestAction, WATCH, HIMAWANTI, CDO, Pro-Public are the major NGOs working for the people's access to natural resources such as land and forests. Similarly, human rights organizations mainly INSEC, INHURED, CWIN, Maiti Nepal, WOREC, NGO Federation of Nepal, Dalit NGOs, are prominent in advancing the human rights agenda in Nepal. The human rights campaign in Nepal is however, narrowly limited to civil and political rights and has not adequately addressed the issues of access to natural resource base. Forest users and their federation: Community forest user groups and their federation - Federation for Community Forestry Users, Nepal (FECOFUN) - is one of the key actors in shaping local people's access to forest resources. They play important role in shaping forest policies of the country, influence the constitutions and operational management plans of CFUGs which shape users access to forest resources. Moreover, they played very active role in the democratic movement and have raised their social and political profile in contemporary national polity. Most of the abovementioned actors in one or other ways have been part of the social movement, particularly the community forestry campaign in Nepal. When the campaign began in the late early eighties, donor agencies mainly the World Bank, USAID, Ford Foundation, .... proactively pushed the agenda and supported the government to promote community forestry. This was followed by the huge expansion of actors in the field including formation and functioning of FECOFUN, field program support from bilateral agencies, NGOs involvement in grassroots initiatives, empowering and mobilizing users, policy advocacy for pro-people policies in community forestry. The community forestry movement has been one of the largest social movements in Nepal and the FECOFUN is the largest civil society organization. Far from a movement limited to the forest sector, the community forestry movement in Nepal has been identified as a grassroots movement for democratizing the Nepalese society. The issue of state management vs. community management of natural resources into public debate which has been expanded beyond the forest sector into the management of social services such as health and education. In fact, the community forestry movement in Nepal has informed many of the decentralization process in Nepal. Civil Society NGOs, mainly ForestAction, CDO, Himawanti and Watch are heavily involved in Nepal's community forestry movement in general. ForestAction in particular is involved in exploring and avenues for improving equity and livelihoods in community forestry through participatory action research. It strives in advancing evidence based advocacy and linking grassroots learning to influence policy process at the national level. CDO is engaged in grassroots campaign in advocating issues of local livelihoods under conservation program. HIMAWANTI is a membership based organization in promoting women's control and ownership over natural resources and so is WATCH. FECOFUN - the users' federation, is another active player in social movement in the field of community forestry. Being the largest civil society organisation, it has well established both at the grassroots and also at the political and bureaucratic leadership of the country. 66

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) Organization of landless people, bonded laborer, sister organizations of political parties, particularly their farmers' association and women's associations are highly politically motivated for social change and have fairly a good link with the rural mass. These are strongly potential organizations for RRI for promoting collaborative initiatives in improving tenure reform in favour of poor and disadvantaged communities. RRI's collaborative initiatives with these organizations can capitalize their political energy by enabling their capabilities to facilitate this process and linking local efforts into national and regional level. Being in its greatest political transition, Nepal is a fertile ground for linking resources access issues with larger political restructuring of the country's political, economic and social governance. As mandated by the recent democratic movement, land reform is the single most crucial issues to be resolved particularly in the rural areas. Similarly rights over natural resources, particularly those of indigenous communities, shifting community forestry away from its subsistence to enterprising mode to enhance contribution of forest to local livelihoods, local people's rights over protected areas are some of the prominent issues in the current public debate in Nepal. RRI's collaboration with the above actors involved in social movement will potentially contribute to resolve these pertinent issues which have a vital link with the livelihoods of Nepal's rural poor. Social Movements Panchayat system (before 1990): civil actions almost nil, no influence of civil society movements. Multiparty parliamentary system (1990-2002): Social movements were largely co-opted by the political parties, too much trust on the political system, much progressive law in forest management, not much radical decision on land redistribution, social movement could not come out of the political parties hold. Kings take over (2002-2006): back to Panachayat period, all social movement were subsumed under the major political issues of returning the democracy, no independent movements in forest sector. Maoist movement (1998-2006): Able to establish the discourses of redistribution of land and guaranteed access to productive resources including forest emerged as a major agenda within the Maoist political movement. The issue of land tenure has gradually been regarded as the key issue of conflict. Post democratic movement 2006: Land tenure and access to forest resources have been recognized as the major issue requiring serious treatment in democratic Nepal. The social movement agenda has largely converged on these issues. There are high expectation that issues of access and tenure will be largely addressed under the new constitution and the government. Diverse types of parallel discussions are going on across the country aiming at redefining state-citizen relationship with regard to land and forest resources. Hopefully by the time the constitutional assembly election will be held sometimes next year, these issues will get organized and will be duly addressed in the new constitution. Forest users' movement for improving forest tenure and increasing access to forests became significant component of peoples movement 2006. Community forestry movement has now identified itself with the movement for livelihoods, equity, social inclusion, and grassroots democracy. Consequently, forest users' movement for community forestry has become essential part of democratic movement and therefore received high political status. Apart from reforming forest tenure, this movement has several spillover impacts in empowering people, increasing peoples participation in state affairs and democratizing society at large.

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The Philippines
Legal framework governing rights to land and resources
A legal distinction crucial to the discussion of rights to resources is that between private and public lands. Private lands consist largely of lands that have been titled in the name of natural or juridical persons. All the rest are considered public lands. The Philippine Constitution states that all public lands belong to the state. In the exercise of its rights as owner, the state classifies public lands into, among others, national parks or reserves, mineral lands, forest lands and public agricultural lands. National parks or reserves and mineral lands are usually designated as such by law or Presidential proclamation. Forest lands, under the Constitution, are to be demarcated through legislation. No such statute, however, has been enacted. By default, the definition of forest lands is provided by Pres. Decree no. 705 (1975), which states that all lands 18 % in slope or higher are forestlands. It is immaterial what the actual vegetative cover of an area is; the steep, extensive Ifugao rice-terraces are technically forestlands. Forestlands are under the control of the Department of Environment and Natural Resources (DENR). Certain portions of forestlands, no longer needed for forestry purposes, have been released by the government as alienable or disposable lands. Such lands form the bulk of the last classification noted, public agricultural lands. Public agricultural lands are susceptible to titling by individuals; i.e., conversion into private lands. In fact, it is legally possible to perfect a title based on open, continuous, exclusive and notorious possession of public agricultural land for 25 years. In theory therefore the extent of public agricultural lands decreases as titling progresses. Lands, however, are distinct from the natural resources therein. A landowners rights generally consist only of surface rights; ordinary residential or agricultural uses of a portion of the earths surface. Any natural resources within the landowners property other than the land itself are not covered by her/his title. A landowner thus has no right to gold deposits underneath his/her titled property. Natural resources, including waters, wildlife, timber and non-timber forest resources, belong again to the state. In particular, it is the DENR that manages the countrys natural resources for the state. The DENR directly manages some resources, such as the national parks already noted. However, DENRs mandate allows it to allocate rights to resources to natural or juridical persons, evidenced by a contract or agreement to that effect. In theory, the grantee acquires the right to exploit a given resource, in exchange for which it will be obliged to manage the area covered by the agreement for the DENR. In all such cases, the area covered remains part of the public lands, under DENR jurisdiction. Examples of such contracts are the old logging concessions, and the Industrial Forest Management Agreements (IFMA) for tree-plantation operations in forestlands. To note, this system of delegated management failed; some corporations may have profited, but there is no denying the environmental destruction or deterioration in the areas they were supposed to manage. The DENR can also allocate rights to use portions of forestlands to organizations, communities or families, again in exchange for the obligation to manage the area responsibly. Examples of such arrangements are the various permutations of the social forestry or stewardship program, the Community Based Forest Management (CBFM) program, andarguablythe Certificates of Ancestral Domain Claims (CADC) awarded under DENR Admin. Order no. 2 (1993). How well these contracts serve communities and the environment is still debated.

68

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) Unless an individual, group or community has some tenure instrument, it is strictly speaking, a forest occupant (i.e., a squatter) with very restricted rights to the area, and subject to prosecution and/or relocation at the discretion of the DENR. In this system, it is possible for multiple claims to overlap in space: One person may have the rights to use a parcel of forestland, while another has the rights to exploit the minerals underneath, and still another, access rights to the rattan in the area. Thus far, we have outlined the general pattern of land and resource ownership in the Philippines. In 1997, however, the Indigenous Peoples Rights Act (IPRA) introduced the idea of ancestral land and ancestral domain ownership, which necessitated a still-ongoing revision of the legal system. Until the IPRA, the problem for most indigenous and other communities was that, being for the most part in the uplands, their territories were in classified public lands, hence property of the state. Thus, as activist slogans from the 1980s said, they were squatters in their own lands. This set the stage for conflicts between communities and corporations or individuals who had been awarded cattle ranches, logging concessions, and IFMA- and mining-contracts by the government. There were also cases where communities were threatened or displaced by national parks or wildlife reserves, prompting the observation that animals get better treatment from the DENR than indigenous people. With the IPRA however, a community can secure collective/communal but private title over areas they have occupied and utilized since time immemorial, irrespective of its previous legal classification, or of its actual forest cover or use. It thus represents a challenge to the legal distinction between public and private lands.xxiv In sum, ancestral lands and domains can now be carved out of what had been public lands, property of the state. Predictably, the government is reacting to this threat on what it perceives to be its own domain, and the economic policies and programs premised on its control of natural resources. Thus it has given tepid support to the implementation of the IPRA, while at the same time undermining the rights of indigenous peoples provided in the IPRA. For instance, it is weakening the free and prior informed consent provisions of the IPRA, and reducing the autonomy of the National Commission on Indigenous Peoples (NCIP), the agency tasked with the implementation of the IPRA. In fact, this process of weakening the IPRA may well have begun in the very same case where the Philippine Supreme Court ruled that the IPRA wascontrary to the assertion of agents of the mining industryconstitutional. While the Court clearly recognized indigenous peoples rights to their ancestral lands, it did not extend this recognition to the natural resources within those lands. Thus, although the IPRA may have transcended the public-private land distinction, it is not being allowed to transcend the land-natural resources distinction. One community that secured a title through the IPRA was unable to use it to keep out a multinational mining corporation. Ancestral domain rights were in effect reduced to surface rights in that case; natural resourcesif the Philippine government can have its waystill belonged to the state. It is as yet unclear what impact IPRA has had. Doubtless, there are both success- and horror-stories out there; how many of each is unknown. What is clear is that the struggle of indigenous peoplesfor autonomy and self-determination, not deeds or titlesgoes on.

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Land and forest ownership and tenure


On Who Owns the Worlds Forests
The reports distinction between public and private ownership of forests, as well as the various sub-types thereof, are well taken. Applying them to the Philippine situation requires some caution, however, because it is unclear what the report means by forests or forestlands, which it somewhat confusingly conflates with public lands. As noted, the Philippine legal system makes distinctions between titled/private lands and public lands; and between classified/public agricultural- and public forest-lands; while there is no legal category of private forest lands. Does the report refer to all public lands? Or to all areas under forest cover? Or to public lands legally classified as forestlands, irrespective of the actual forest cover? Or to areas which are classified forestlands and under forest cover? The matter is exacerbated by the fact that for many Philippine indigenous peoples, their territories are private lands, where forest-cover, if any, is incidental or irrelevant. Are their territories to be excluded from the analysis because private? Or are they included because forested? What of those territories no longer forested? Again, the report provides no guidance. Interestingly, the latest DENR statistics (2005) states that of the countrys improbably neat 30 million ha. land area, classified or public forestlands cover 14,207,582 has., or 47.36 % of the area. As noted, implementation of the IPRA should have shifted the million or so hectares covered by CALTs and CADTs out of the public forestland category to that of private/titled lands. However, DENR land-classification statistics from 1978 to 2005 reflects no such change, suggesting that the DENR does not recognize the private legal status of CALT and CADT areas. True, between 2000 and 2005,xxv the DENR reports that 62,556 has. did shift categories from public forests. This is better explained however by the incremental process of releasing portions of public forestlands as alienable and disposable, rather than IPRA implementation, since a single CADT issued in 2003 already covers 77,143 has. The report subsequently states that the Philippines has 6.6 million has. as total forest lands,xxvi of which 1.5 million has. (22.7 % of the total forested area) are under logging concessions. This figure differs significantly from DENR figures, which state that the remaining 18 logging concessions nationwide hold a combined total of 825,342 has., or 12.5 % of the total forested area. On the other hand, the report ignores the 178 IFMA contracts and Industrial Tree Plantation Lease Agreements (ITPLA), which like logging concessions, limit access to forest resources to corporations holding government-issued contracts. These cover 713,749 has., or 10.8 % of the total forested area. Combining logging concessions and corporate tree plantations means that 1,539,091 has. (23.3 % of the total forested area) are under corporate, as opposed to community control.xxvii The reports apparent lack of precision mars its reliability; if the data for the Philippines is overstated, what of the data for other countries?

Resource and local rights problems according to the state


For the state, achieving development is a core problem. It views natural resources as assets to be spent to achieve it, which means intensifying utilization by increasing investments into resource-exploitation (e.g., mining, tree- plantations). A related problem is the cultivation of an investor-friendly environment for foreign capital, by among other things, streamlining or weakening relevant legal procedures. This effort, however, conflicts with existing policies and procedures for consultative processes, democratization of resource-access and recognition of indigenous rights. Such conflicts (e.g., community ancestral domain rights vs. corporate mineral interests) mean it also has to deal with reconciling or harmonizing these policies and procedures. 70

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) Another problem for the state is to extract maximum land or resource rents from licensed resource users, again as a means of exploiting resources. DENR, in particular, is concerned with awarding or bidding out rights to use particular resources, in exchange for taxes or other exactions. Ascertaining the appropriate rates and collection of rents and charges is thus a major enforcement issue. Connected to the problem of extracting rents is resource-poaching. Unlicensed resource uses are unregulated, and more importantly, untaxed. It has historically responded by policing resource-areas against poachers or squatters. It has problems doing so however because of personnel, budget, training and equipment limitations, among other problems. The government is also concerned about the technical capabilities of groups and communities which have social forestry or CBFM contracts, or CADC/CADTs. It enforces regulations designed to ensure that these groups apply scientific or rational management practices. Resource poaching and improper community resource management lead to another problem: Depletion of local natural resources. As noted, the state has to reconcile its government-centered economic policies with communityoriented policies, which erode its control of resources. The reassertion of the state and its authority therefore has become a necessary task for the government.

Resource and local rights problems according to civil society


For non-state actors, the biggest problem is poverty. IP and non-IP groups complain of limited means of earning cash, and are thus forced to undertake unregistered logging, rattan or other operations, sometimes at unsustainable rates. They also complain of low prices for many forest products. DENR attempts to police their livelihood activities are seen as unjust, since corporations or local personalities similarly engaged are not prosecuted. Non-IPs resent charges of squatting, given their rights to mobility, free residence and earn a living. Many IP and non-IP groups complain that local resources are, for various reasons, nearing exhaustion. Non-IP groups have few legal options to protect their tenure. Non-IP groups legalizing their tenure or forest-based livelihoods complain of heavy bureaucratic requirements. IP and non-IP groups with registered livelihoods complain of heavy taxes, forcing some to circumvent state regulation and taxation. There are many cases of overlapping claims by IP and non-IP groups, each invoking their tenure-rights; e.g., CBFM vs. CADT, or CADC/CADT vs. mining contract. There are also conflicts in the implementation of the National Integrated Protected Areas System (NIPAS), which may overlap areas claimed or utilized by IP and non-IP communities. IP groups also complain of bureaucratic difficulties and expense in processing CALT/CADT applications. Under DAO 2 and IPRA, IP groups with CADCs or CADTs must still respect the rights of corporations, etc. that secured rights to the area ahead of them. Social Forestry/CBFM contracts and CADC/CADTs have sometimes proved useless in the defense of local resources, especially vis--vis the state or a statebacked company. Observers have noted the bureaucratization of livelihood under DAO 2 and IFMA; the states presence and intervention is being institutionalized in daily community life, eroding community autonomy. Corruption in government erodes legal resources available to IP or non-IP groups, and their already low incomes.

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Overview of tenure reform efforts


Tenure reform efforts were initiated by people in government, partly in response to pressure from international funding agencies, and NGOs. These began with the social forestry programs of the 1970s, under which organizations or communities could acquire use-rights to forestlands. With no other recourse then, NGOs and POs worked to adapt DENRs social forestry program to the needs of indigenous communities. While some indigenous communities availed of this program, it clearly did not recognize indigenous ownership. However, institutionalization of the program led to a dialogue between upland communities and DENR, compelling the latter to keep introducing variations to the concept until the 1990s. In the 1980s, the DENR introduced a Community Based Forest Management (CBFM) program. CBFM Agreements provided organizations or communities rights of access, use and disposition to specific forest resources, such as rattan or softwood trees. Like social forestry, this program did not address the issue of indigenous ownership. It however led to a broadened dialogue with even more upland communities the opportunity to exploit forest resources made it more popular than social forestryleading to the maintenance of the program and an occasional amendment. In response to constant demands for government action on indigenous peoples issues, the DENR issued Administrative Order no. 2 (DAO 2 hereafter) in 1993. This regulation is the first to directly address the question of indigenous rights. It provided a mechanism for delineating and certifying the location and extent of an indigenous groups territorial claim, evidenced by a Certificate of Ancestral Land or Domain Claim (CALC or CADC).xxviii The operative term is claim: While delineation is based on time immemorial possession and/or use, it only documents a groups claim over the area; it does not recognize ownership thereof. Still, the DENR was hit by a tsunami of applications from indigenous communities, and those which secured CADCs enjoyed certain rights to the resources within their areas. DAO 2s failure to address indigenous ownership meant continuing activism and advocacy by indigenous groups and support-NGOs. Finally, in response to NGO-led lobbying, the government promulgated the IPRA in 1997. This law provided for the issuance of Certificates of Ancestral Land or Domain Title (CALT or CADT), actual deeds of ownership over lands and resources, based again on time immemorial possession and/or use. It also allowed the conversion of CALCs and CADCs into CALTs and CADTs. This is the first government statute or regulation to explicitly recognize indigenous ownership of ancestral territories, in the Philippines and in Southeast Asia. It is difficult to speak of an actual social movement with defined objectives when discussing the general forestry tenure reform efforts today. The process is more organic, with scattered, simultaneous experiments by different communities and NGOs, in dialogue with various levels of the DENR, generally within the frame of the social forestry or CBFM programs. On the other hand, the movement for indigenous peoples rights was relatively more organized. While some groups initially articulated their aspirations through dialogue with DENR over social forestry and CBFM, most later outgrew or bypassed the DENR framework, and demanded state recognition of indigenous ownership. The politically heterogeneous character of the movement meant, however, that they could unite only on one point: The need for state recognition of ancestral domain rights. Beyond that, the indigenous groups and NGOs involved had different visions and priorities. Indeed, after the IPRAs enactment, the loose coalition which lobbied for the law disintegrated. While there is a clear swing towards community-oriented management paradigms from the 1970s to the 1990s, there are indications of a swing back to state-controlled, centralized management paradigms beginning in the late 1990s. We have noted the constriction of indigenous rights under the IPRA, and of the NCIPs authority. The DENR has tried to cancel all CBFM contracts, and is in the process of weakening the environmental impact assessment system. The Department of Interior and Local 72

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) Government has diluted legislative requirements for consultations and social acceptability for projects which can affect the local environment. At the same time, the state is asserting control over natural resources, particularly minerals. Its implementation of the Mining Act of 1995 has resulted in mining applications covering, by one estimate, up to 40 % of the national territory.

Case-studies: Impact of tenure reforms


Social Forestry
In 1989, Sadik Habanan Buhid (SHB), a coalition of Buhid Mangyan communities in southern Mindoro Island, were granted a Community Forest Stewardship Lease Agreement (CFSLA) under the DENRs social forestry program. It covered more than 19,000 has. of hilly to mountainous lands. This was one of a string of successes by independent groups in the 1980s to use the states social forestry programwhich was not specifically designed for indigenous communitiesto secure legal protection for their land claims, at a time when the law generally ignored indigenous rights. Also, the size of the area covered by the CFSLA established a precedent for collective rights to a large territory. Finally, the victory was particularly meaningful to the Buhid, who are culturally pre-disposed towards avoiding conflict. The SHB has subsequently secured a CADC over a much larger area (94,022 has.), which includes the area covered by the CFSLA. At present, they have a pending application to convert their CADC into a CADT. While in much of the area, the Buhid have consolidated their control over their territory, there are problem areas. For one, there are cases of individual Buhid selling their holdings or portions thereof to non-Buhid, gradually eroding the integrity of the territory. More seriously, the SHB has come into conflict with the governments agrarian reform program. The Department of Agrarian Reform (DAR) is insisting on implementing its program, issuing titles to non-Buhid settlers, within the area covered by the SHBs CADC and CADT-claim. The conflict remains undecided to date.

Ancestral Domains Delineation under DAO 2


The Tagbanuas of Coron Island, in the Palawan Island group, were also able to secure a stewardship contract from the DENR. However, this was largely restricted to the caves from which they harvested birds nests. They applied for a CADC, which they received in 1998. Their CADC covers 22,400 has., including not only the entire island which comprised their ancestral land, but also the ancestral waters in which they fished. They are possibly the first groupindigenous or otherwiseto have successfully secured state-issued tenure-documents over portions of the sea, specifically the Sulu and Coron Seas. They have recently received a CADTa deed of titlecovering the same area. A recent report noted, however, that the Coron Island Tagbanwas have begun to stop undertaking their traditional livelihoods, and begun to rely exclusively on the entrance fees paid by tourists visiting their scenic island. Otherwise, the community seems to be doing well.

Ancestral Domains Title


The Subanon of Mt. Canatuan, in Siocon, Zamboanga del Norte province, also have a stewardship contract. Threatened by the encroachment of Benguet Corp. (BC), a domestic mining firm, they applied 73

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) for a CADC in 1994. They received their CADC, covering some 6,523 has. in October 1997, some four months after the BC secured mining rights to the area. The BC subsequently sold its mining rights to Toronto Ventures, Inc. (TVI), a Canadian multinational mining firm. This prompted the Subanon to apply for a CADT in 2000. This was awarded to them in 2003. The award of the CADT was not historically meaningful in itself, except perhaps for the Subanon. However, the contest between an indigenous community and a multinational company was quite possibly the first true test of the value of the CADT. Unfortunately, the CADT proved itself useless in the defense of the Subanons territory. The state virtually ignored it, and sided with TVI, which argued that since its mineral rights, traced back to BC, antedated the issuance of the CADC, it did not need the Subanons consent to its operations. At the same time, some Subanonbelieving perhaps that their best interests lay in welcoming a company that will save them from povertycollaborated with TVI, allowing it to simulate community support for its operations. At present, the Subanon continue to struggle for effective government recognition of their ownership of their ancestral land and resources, as against TVI.

Learnings
Clearly, these cases illustrate the cumulative effect of the gradual gains made over decades of activism, advocacy and even armed struggle. Each gain made possible future ones, such that we have communities with series of tenure instruments covering their respective territories. They also show indigenous peoples agency, in trying to use the laws of the state against the state itself. This is not to say that all indigenous groups have similarly been open to using state laws. However, it seems safe to say that the majority of indigenous groups are interested in securing state-backed instruments of tenure, even if not all their applications have been granted. However, it is just as clear that possession of tenure instruments, by themselves, is insufficient to guarantee indigenous groups or communities control of their lands and resources. It seems that these tenure instruments work for as long they do not come up against the state itself, and its economic policies; e.g., encouraging foreign investments into the mining sector. Tenure rights, in other words, do not necessarily translate into the political and social autonomy indigenous groups and communities ultimately seek in their several applications for tenure instruments. This underscores the need for improved community organizing, that is not limited to merely securing tenure instruments; that factors in livelihood concerns and cultural attitudes thereto; and which is explicitly geared towards negotiating autonomy from the state.

Forests and poverty


In the Philippines, poverty has never been viewed in correlation with forestry statistics. presented here is therefore of a preliminary nature. The data

According to government statistics, the 10 poorest provinces in the country are, in order of highest poverty incidence: Zamboanga del Norte, Maguindanao, Masbate, Surigao del Norte, Misamis Occidental, Mountain Province, Biliran and Lanao del Norte. All 10 are predominantly rural provinces. Mountain Province and Masbate are in Luzon. Only 1, Biliran, is from the Visayas. The 7 remaining are all in Mindanao. 3 of these, Agusan del Sur and the two Surigao provinces, are located in a single administrative region, Caraga, in northeast Mindanao. While most Mindanao provinces have some link to logging, the Caraga region and Zamboanga del Norte have strong historical links to the industry.

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Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) Of these 10 poorest provinces, 5 have classified forest lands covering half or almost half their respective territories. These are Zamboanga del Norte (60 %), Agusan del Sur (75 %), Surigao del Sur (70 %), Mt. Province (76 %) and Lanao del Norte (49 %). Four of these have classified forestlands higher than the national average of 53 %. Of the 10 provinces, five have classified forest lands which are dominated by corporate interests; i.e., timber concessions and corporate tree plantations under the DENRs Industrial Forest Program. 16 % of Zamboanga del Nortes and of Maguindanaos forestlands are controlled by tree-plantation operations; 27 %, 61 % and 53 %, respectively, of the forestlands of Agusan del Sur, Surigao del Sur and Lanao del Nortes forestlands are controlled by logging and tree-plantation corporations. By comparison, community-based tenure contracts cover only 0.62 % of Zamboanga del Nortes classified forestlands, 6.14 % of Surigao del Nortes, 8.89 % of Agusan del Surs, 8.83 % of Surigao del Surs, 0.00875 of Misamis Occidentals and 0.18 % of Mt. Provinces.xxix There is no data on the other provinces.xxx This somewhat naively assumes that the contract holders are genuine community organizations, and not fronts for politicians or middle- to upper-level financiers. The other provinces have no such contracts at all. Again, the data here is preliminary, given the usual problems with the government statistics used here. In any case, the data still seems to justify further study of the statistical link between poverty and access to land or resources in each of the countrys 74 provinces.

Prominent threats to local rights and livelihoods


The state itself is a threat to local rights and livelihoods, as it continues to assert its control of public lands and natural resources vis--vis indigenous and non-indigenous groups and communities. This puts it in actual competition with local communities over local resources. The states economic policy of maximizing exploitation of resources and extracting resource rents therefrom means there will a continuing series of conflicts between communities and companies, particularly domestic and multinational mining companies. Unfortunately, in the resolution of such conflicts, the state cannot be relied upon as a disinterested and impartial arbiter, as its economic policies give it a stake in a specific outcome. This translates to a constriction of the legal recourses open to communities. Moreover, the human rights situation of the Philippines will continue to deteriorate as the state directly or indirectly sanctions the killing of community advocates and activists. This directly affects communities ability to assert their rights vis--vis the state or state-backed companies. At the same time, the environment is deteriorating, both in quantitative and qualitative terms. Landslides and floods are becoming more serious, and rights to water will become increasingly contentious. The remaining forests are gradually being replaced by plantation-trees, such as falcatta and even oil-palms. Overall, this means increased competition and conflict over the remaining resources between communities and the state or state-backed companies, and/or between groups or communities, or factions within them.

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Main actors in social movements and forestry initiatives


State
The principal state actor is the Office of the President, which determines the government policies and priorities. Much of the work of translating these directions into programs falls, as regards forest resources, on the DENR. Of course, while there are many reactionary elements within DENR, there are also progressive elements, especially in the national office.

Civil Society
During the Martial Law years (1972-1986), there was a broad anti-dictatorship movement. The indigenous peoples sector was part of this; the environmentalists were not. After Marcos was deposed, NGOs boomed in the Philippines. With global interestand fundingin the environment, green groups emerged in the late 1980s, with groups like Haribon Foundation, Tanggol Kalikasan, Earth Station, Legal Rights and Natural Resources Center (LRC), and later, Philippine Environmental Action Network. Their focus was on the log-ban issue. In the regions, there were independent initiatives, such as Environmental Legal Assistance Center (ELAC) in Palawan, and Kinaiyahan Foundation in Davao City. Meanwhile, a group of NGOs and POs had been trying to secure tenure for indigenous communities. These included Atty. Donna Gasgonia and PANLIPI, Philippine Association for Inter-cultural Development (PAFID), Delbert Rice and the Kalahan Educational Foundation (KEF) in Nueva Vizcaya, and Sadik Habanan Buhid (SHB) in Mindoro. Their solution was to modify DENRs social forestry program, which was not specifically designed for indigenous groups. A few large social forestry contracts were awarded to indigenous groups in the late 1980s and early 1990s, along with many smaller ones to other upland groups. As noted, this solution was imperfect. The Manila-based NGO environment network weakened in the mid-1990s, after DENR adopted the total log ban policy they demanded. It could not reunite on the issue of DENR-backed industrial tree plantations, or any other issues. The groups then worked on different issues, with limited cooperation with each other. In the regions, some groups closed down as funds moved away from post-dictatorship Philippines to post-socialist Indo-China; and from the environment to gender, in the mid- to late-1990s. On the other hand, some groups like ELAC prospered, expanding into the Visayan region. Environmental groups sprouted in the southern Tagalog region. Today, there is no social movement in forestry to speak of. Rather, you have groups working independently of each other, only occasionally banding together in short-term alliances of limited size and scope. Groups at the local level, such those with social forestry or CBFM contracts, negotiate with DENR on their own, so community initiatives are not directly translated into advocacy. On another environmental front, the mining issue caused groups to unite initially against the Mining Act of 1995 itself; and later, on specific cases involving multinational companies (Marcopper in Marinduque province, Western Mining Corp. in South Cotabato, TVI in Zamboanga del Norte). There were attempts to raise these local issues to national (drafting an alternative mining act) and international levels of discourse (reframing the mining issue as a human rights issue before a UN agency). There was no united front on mining. Civil society groups were divided into politically exclusive factions, like the leftist Defend Patrimony and the politically indeterminate Alyansa Tigil-Mina. Also, there was no unified analysis of the issue. The Catholic Church, for example, was split as some factions rejected all forms of mining; others supported domestic corporations, for nationalist industrialization; still others saw 76

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) small-scale mining as an alternative to corporate mining. By the mid-2000s, anti-mining networks lost momentum, as actors were drawn into other arenas; e.g., attempting to oust an illegitimate President, and the recent legislative elections. Today, there are small, autonomous networks of NGOs and POs working on the mining issue. The indigenous peoples movement, however, grew in the 1990s, with the left-leaning, Marcos-era CCAMP (later renamed Kalipunan ng mga Katutubong Mamamayan ng Pilipinas or KAMP) being joined by other networks like KASAPI, IPEX and Panagtagbo. These maintained a general demand for state recognition of indigenous peoples rights, particularly to ancestral territories. One approach early on was through legislation of an ancestral domains bill by LRC, PANLIPI, Prof. Owen Lynch, Atty. Roan Libarios and Rep. Gregorio Andolana of Kidapawan. Later, Atty. Gasgonia-Zapa of PANLIPI worked in the DENR, in the process helping engineer DAO 2 in 1993. DAO 2 led to bitter debates among NGOs and POs working in the indigenous sector. KAMP and a few other groups rejected DAO 2 on ideological grounds. Most groups, however, accepted DAO 2; DENR was swamped by CALC and CADC applications. Meanwhile, the idea of legislation had gathered support, particularly with Sen. Juan Flavier. NGOs, led by PANLIPI, PAFID and Upland NGOs Assistance Center (UNAC) lobbied for a law, until in 1997, the IPRA was enacted. Most POs and NGOs hailed the laws enactment, and NCIP was flooded with CALT and CADT applications. Unfortunately, implementation was delayed until December 2000, because of politicking in the appointment of NCIP Commissioners, and later, a constitutional challenge by agents of the mining industry. Beginning in 2001, NGOs like PAFID, Anthrowatch and the Assissi Foundation collaborated with the NCIP on various issues. The left remained wary of government enactments such as the IPRA. By 2005, the IPRA was clearly having limited impact, resulting in a more critical stance among NGOs and some POs today. Beginning at around 2001, the government has been trying to shift resource management back to more centralized, state-centered paradigms. To that end, it is diluting tenure reform gains made in the last three decades. By this time, the legacy of the anti-dictatorship struggle had largely been dissipated. In the mid-1990s, the left was divided and then further subdivided along ideological/political lines, resulting in smaller, mutually exclusive initiatives and programs. Many indigenous POs, believing that with IPRA all their problems were over, focused on their ancestral claims. Some NGOs contented themselves with being service providers in a legal framework increasingly dominated by the state. There is not so much a movement today as a set of disparate, limited and largely uncoordinated initiatives, mainly along the lines of implementing the IPRA.

Key institutional players in social movements


Again, there is no social movement in forestry issues in the Philippines. If there is one, it is not visible (and therefore ineffective?). Following is a list of institutions engaged in forestry issues: Legal Rights and Natural Resources Center An advocacy and research institution which maintains forest and forest tenure as a major area of work. It also assists a community struggling against a treeplantation company. It is one of the few institutions that can straddle the political divisions within civil society. However, it has no programmatic advocacy work on forestry issues as such. Non-Timber Forest Products Working Group A livelihoods institution which has quietly captured the lead in advocacy on forestry issues, particularly as regards non-timber forest products. On its own, it 77

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) organized a campaign against oil-palm plantations in Mindanao; critiqued DENR policies and procedures vis--vis the rattan industry, and the forest charges on non-timber forest products; is pushing for a policy allowing indigenous communities to use their CADCs and CADTs as their resource utilization permit, instead of having to apply for one from the DENR; and is studying the IPRA in relation to livelihoods based on non-timber resources. Environmental Science for Social Change A research institution based in a Jesuit-run university. It hosts a technical working group periodically convened to discuss forestry and other environmental issues. It also assists a number of communities with resource management. It has a focus on resource information systems, and has no clear advocacy campaign on forest issues. Other institutions tackle forestry issues tangentially, as they address problems of national sovereignty, community organizing, livelihood, etc., or assist indigenous communities in pursuing CADT applications. There are also individuals within the government, like Joey Austria in DENR, and in NGO circles, like Delbert Rice, who are interested in forestry issues as they affect local communities.

Linkages between social movements and the broader political context


Resource rights reforms in forestry were a result of separate but occasionally overlapping movements: the environmental and indigenous peoples rights, which both dissolved into disparate groups and limited alliances with little overall direction or coordination. Though the impetus for tenure reforms generally came from local or community cases, NGOs led in the actual advocacy work. For instance, SHB had problems with land security, but it was PANLIPI and PAFID which modified DENRs social forestry contracts as a solution. This pattern holds for reforms under IPRA; POs were involved, but at a certain point, the work shifted to the NGOs. Thus, rather than an expanding number of communities increasingly vocal in their demands, reforms came through access to NGOs, who had access to key information, forums and state personnel. In fact, relatively few community representatives, rather than actual communities, were involved in reform advocacy. True, more communities were involved in IPRA- compared to social forestry-advocacy. Still, most indigenous communities were in the sidelines, if not actually unaware of these developments. On the other hand, no communities were involved in the development of DAO 2. Reform came through the efforts of key individuals within DENR, who were aware of the tenure needs of communities and responded to the general demand for appropriate state response to their needs. In this setting, NGO and PO advocates needed networking and campaigns, community-coordination or organizing, research and documentation, and planning and funding skills. Arguably, some problems with the IPRA come from how communities demands were translated for them into campaign demands and policy or legislative statements by NGOs, in dialogue with government personnel. Thus, livelihooda critical community problemis ignored by the IPRA, because NGOs assumed indigenous communities were self-sufficient. Perhaps it is time communities speak for themselves, with only facilitative, transitional support from NGOs.

Technical capacity gaps within social movements


Any serious response to the situation must begin with adequate information. This requires access to data that, pieced together, can reliably describe the current situation as regards rights and resources, particularly as regards forests. 78

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) This means, (a) collating existing technical data (GIS, satellite imagery and interpretations, etc.); (b) enhancing actors capability to gather technical data, to fill in any gaps, or to counter-check other sources; (c) collating ethnographic data on forest utilization and related issues; and (d) conducting specific case-studies combining technical and ethnographic approaches. At the same time, this also means providing actors a broader perspective on the issues concerned, by familiarizing them with global or international trends and discourses, and strategies and tactics from other national or regional contexts. Finally, enhancement of existing community-organizing, negotiation and facilitation, planning, funding, and research and documentation skills are in order.

Policy context
Context
The current policy context in the Philippines is conservative, tending towards the reassertion of state control and authority, rather than towards decentralization. The President, assisted principally by the DENR, is orchestrating the resurgence of government control over the natural resourcesespecially metallic mineralsthey wish to expend to purchase development. a. The IPRA is being harmonized with the rest of the legal system; i.e., made weaker by qualifying its provisions, making them subject to other policy or legal priorities or conditions. b. The free, prior and informed consent provisions of the IPRA are being streamlined; i.e., made easy for foreign investors. c. The environmental impact assessment system is similarly being streamlined by the Environmental Management Board. d. The Department of Interior and Local Government has taken the position that acceptance of a project which may affect the local environment by a single local government unit is sufficient compliance with Local Government Code requirements for consultations and social acceptability; thus, if a provincial council accepts a project, it will overrule even total opposition by the municipal and barangay council. e. NCIP has become only one office under the Department of Land Reform (formerly the Department of Agrarian Reform). f. CADTs processed and issued by the NCIP are now effectively subject to review by the Land Registration Authority. g. The DENR is beginning to institutionalize its presence and intervention in community life and resource management in CADC and CADT areas; in the process, it is eroding local autonomy, constraining or overriding indigenous knowledge and management systems, and imposing bureaucratic requirements and regulations designed to enforce scientific resource management practices. h. The DENR has attempted to limit NGO and PO access to information regarding multinational companies and their operations. i. The DENR has attempted to cancel all CBFM contracts in the country. j. There have been no significant and progressive policy changes affecting rights to resources in the forestry sector in the last ten years; indeed, there seems to be an attempt to reverse the La Via Ruling.xxxi

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Response
The only logical response is resistance. To that end, a series of consultations with key players is recommended as a necessary first step. This will provide an opportunity to collate the available information, identify any gaps, and proceed to fill these, as a step towards understanding the actual situation of rights and resources in the forestry sector. The actors must then develop their arguments for increasing and enhancing community ownership, management and use of forest lands. Some key points that must be considered are: (1) factoring in the importance of livelihood and cash-earning to indigenous and other upland communities; (2) a rigorous assessment of community capabilities for sustainable resource management; (3) a rigorous assessment of equity in resource-access and benefit-sharing within indigenous and other upland communities; (4) a rigorous assessment of the impact of government regulations on the quality of community standard of living, and of resource management; and (5) the identification and quantification of benefits derived from community management of resources. The point is to translate existing, but endangered, tenure gains into concrete gains for the community as well as the state. Specific reforms and demands based on these arguments must be formulated. Decisions will have to be made in terms of how these arguments can be used to counter the state-centric turn of resource management in the Philippines. In the process of partnership with communities, there must be a conscious effort to transfer technology to them, with a view to allowing the latter to speak for themselves, rather than through NGOs.

Key opportunities
The current reflective mood of most indigenous peoples network and NGOs working with them, brought about in part by the realization that 10 years after the promulgation of the IPRA, the situation of indigenous peoples has remained relatively unchanged, can be taken advantage of. This is a good time to conduct consultations and discussions regarding the current situation, and to begin the process of planning an adequate response. The existence of a number of CADC and CADT areas, some with, others without management plans, also provides an opportunity to examine the issues outlined in the previous section in concrete settings. Partnerships can be negotiated and developed, allowing actors to illustrate how the consolidation and development of tenure gains can translate to benefits both for the community, as well as the state. Given the states policy and regulatory emphasis on facilitating multinational investment into the mining sector, it might be useful to consider working in partnership with a community (whether indigenous or not, and whether or not it has a CADC/CADT) that practices small-scale mining, to illustrate how smallscale miners can, if given the opportunity, adopt appropriate technologies and techniques; contribute to the economy; and all with comparatively less adverse ecological and social impact. In that connection, the actors should not feel limited to indigenous communities. Consider, as well, the possibility of study/advocacy partnerships with non-indigenous or mixed indigenous-non-indigenous communities. It is also possible to begin exploring the possibility of convening what passes for the environmental social movement today, and discuss the feasibility of forming a united front for forest reforms, or at least, for coordinated actions and programs, aimed at cumulatively building a consensus on the viability and desirability of community resource management, and against the resurgence of state control. 80

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) This last option seems less feasible in the indigenous peoples movement, given the political and other divides among POs and NGOs which make the identification of common grounds for united action difficult.

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Thailand
The Legal framework on ownership and control over forest areas and land
The legal framework for forest rights in Thailand contains both some specific and important laws, as well as large areas of uncertainty and contradiction. Formal forest law in Thailand is usually considered to have started in the late 19th century. Before then, forest ownership and harvesting were controlled through various localized agreements at the regional or village level, which allowed villagers to access forests for forest products, and local rulers (feudal chiefs) to allow concessions to logging firms. Concern at forest loss, and the desire of the central government to control revenues, led to various laws. The City Land Supervision Law of 1874 defined the contract between feudal chiefs and foreign concessionaries. Royal Proclamations in 1884 and two in 1887 defined, respectively, conditions for selling, transporting, and possessing raw and processed teak logs (Anat et al, 1988: 158). In 1896, the central Thai government established the Royal Forest Department (RFD). Following this, the government then passed the Forest Protection Act (1897); the Teak Trees Protection Act (1897); and a further Act in 1899, which made it illegal to extract teak without paying royalties. In time, these laws were amended by the Forest Care Act of 1913 (amended again in 1936); and the Protection and Reservation of Forests Act of 1938 (amended in 1953 and 1954). This latter Act was later repealed and replaced by the National Forest Reserve Act of 1964. The RFD was initially established under the Ministry of Interior and was transferred to the Ministry of Agriculture in 1935, where it remains today (though responsibilities for national parks were transferred to the Ministry of Natural Resources and Environment in 2003). The most important Acts for current legislation, however, date are the following. The 1941 Forest Act (revised in 1948, 1951 and 1960) declared 40 percent of the land area of Thailand as forest, though the primary objective of the act was to manage forest exploitation rather than conservation. The 1964 Forest Reserve Act, however, emphasized conservation by gazetting so-called permanent forests as forest reserve land by royal decree. In addition, the Wild Animals Reservation and Protection Act of 1960, and the National Park Act of 1961 explicitly identified rules for conservation. And in 1985, the National Forest Policy reinforced the aim of maintaining at least 40 percent national forest cover by setting aside 25 percent of Thailands landmass as economic forest and 15 percent as conservation forest (Anat et al, 1988: 161). Conservation forest is a broad administrative category that refers to a wide range of areas where land use restrictions are applied. Given the relatively high level of remaining forest cover, this policy has a particularly heavy impact in the north of Thailand, with about 50 percent of the total northern region classified as conservation forest. In some highly forested provinces the disproportionate impact is even greater. In Nan province, for example, conservation forest covers 80 percent of the provincial area (Ewers 2003). Since the National Park Act of 1961 over 110 national parks have been declared in Thailand with over 20 located in the nine far northern provinces where they take up over 15 percent of the total land area (RFD 2004c). There are also some very substantial areas of the north classified as wildlife conservation areas. In addition, for various years during the late 1960s and 1970s, the Thai government issued edicts to close certain forest areas that were considered security threats (particularly near the borders of Communist neighbors such as Laos and Burma). Also, following the suppression of pro-democracy movements in Bangkok in 1973 and 1976, various intellectuals and activists relocated to forest areas as a means of protest and searching for alternative lifestyles. The purpose of closing forests (or converting 82

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) them to so-called pink zones) was to control entry to and movement within forestland, and hence were not part of later measures to control land uses within forestland. But this phase of forest management is an important background to the centralized control of forests in Thailand. In 1989, a national logging ban was passed, following disastrous floods and landslides in the south of the country, and widespread campaigning by NGOs. This law was formally adopted in 1992, and made unsanctioned loggingor indeed the removal of individual treesillegal for purposes of commercial logging, land clearance, or selective removal of trunks from forest areas by villagers for personal use. The effect of this change, formally adopted in 1992, was to reduce the area of economic forest to 15 percent and increase the conservation forest to 25 percent. The obvious outcomes of these successive restrictions on conservation forest were to restrict forest loss from loggingwhich had been proceeding at an alarming rate throughout the 1960sbut also to diminish the traditional rights of villages to use forestland, and to make historic rules and practices subject to overarching rules from the RFD. Furthermore, these changes applied at a national level, and consequently there are no inconsistencieslegally speakingbetween national and local / regional frameworks. However, there many locations where local villages have access to land that is classified as forest (including in conservation forests, national parks, or forestland without these categories) where there is uncertainty about how far villagers are allowed to practice certain activities such as cultivation, or harvesting of tree products. These matters are still a matter of debate, and were intended to be clarified by the passing of a Community Forest Bill (see SectiV below), which was aimed to be introduced after the national logging ban as a way to relax the draconian aspects of the ban to and replace it with a more flexible system of access for villagers and some limited commercial activities. In addition, the 1997 Constitution for Thailand specified the right for citizens to participate in decisions affecting natural resources usage, which has further complicated the application of national laws at the local level. However, progress towards defining the community forestry bill has been slower than originally intended because of various factors. Thailand unexpectedly experienced a military coup in 1991, which diminished debate about community forestry until effectively 1996. After this period, rapidly changing, and unstable governments in the late 1990s made further legislation difficult Debate about forests also became characterized by deep divisions between those who wanted to empower local autonomy at the village level, and those who wanted to empower centralized control through the RFD. In addition, the 1997 Constitution for Thailand specified the right for citizens to participate in decisions affecting natural resources usage, which has further complicated the application of national laws at the local level. An initial stage of the new community forestry bill was passed by the Thai government in 2005, but is still under debate. A new military coup occurred again in September 2006. The community forestry debate is summarized below in Section V. The logging ban also occurred with new rules for forest plantations, or the manner in which existing vegetation (including degraded and non-degraded forest) might be converted to plantation. Reforestation could now only be undertaken through the government, or its selected agencies. Agencies included the Forest Industry Organization, established in 1956 by the government to harvest teak forests, and Thai Plywood Co., established in 1951, which undertook various plantations in teak and eucalyptus (and others), but which was sold to the private sector in 1985. In the years immediately following the logging ban, various test cases highlighted politicians who had abused powers to plant eucalyptus plantations without permission, or on land that could still be classified as forest (for example, the Suan Kitti scandal in 1990 in Chachoengsao province, or the Tha Chana plantation in Surat Thani in 1996). In other locations, pine or teak monocultures are often planted in protected land, including in national parks, and information from the RFD suggests that these plantations serve ecological functions, and should be protected, in the same way as natural-growth forest. For example, in the Doi Tung protected region of Chiang Rai province in the far north of Thailand, roadside notices in English and Thai urge conservation and respect for the (alleged) rain-making and landscape-improving nature of forests in areas recently planted with pine monoculture, and on land that used to be claimed for agricultural purposes by local villages. 83

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) The classification of forests is also linked to the so-called Watershed Classification Scheme, which was developed during the 1980son the basis of physical and biological criteriato provide a framework for the management and protection of forested upland areas. Five watershed classes were introduced throughout Thailand, ranging from Class 1 headwater areas that are identified as the highest priority for protection, to Class 5 areas on gently sloping or flat land where intensive agriculture is considered appropriate (see Table 1 below). It is important to note that other researchers who have used different data sources (including data at much finer resolution) have criticized these formal categories and who have attempted to include locally relevant socio-economic variables (for example Pandee and Maathuis 1990). Under the government classification, protected Class 1 areas cover approximately 18 percent of the entire country (RFD 2004e) and perhaps as much as 30 percent of the total area of the upper-northern provinces (derived from Yanuar 2004). In fact in some districts the impact is even greater. In Mae Chaem districtthe largest district in Chiang Mai provincethe Class 1 protection category applies to about 60 percent of the total land area (Andrew Walker, pers community, from the Department of Land Development). The Royal Forest Departments Watershed Management Division states that Class 1 areas must be strictly kept permanently as head water sources and immediate reforestation programs must be undertaken on the abundant shifting [cultivation] area. (RFD 2004e). There are 189 watershed management units in Thailand to assist in the regulation of these environmentally sensitive upland zones, mainly in northern Thailand, which also conduct reforestation (most usually involving teak and pine monoculture) (RFD 2005). It is estimated that up until 1996 over 1,500 square kilometers of forest had been restored in northern watersheds, primarily through reforestation. This represented over 70 percent of the national effort in forest rehabilitation undertaken by the Watershed Management Division (Prasong and Gilmour 1999). Table 1 - The Official Watershed Classification Scheme

Classification Class 1
Class 1A: Permanent forest cover. Class 1B: Permanent forest with some cleared areas. Class 2

Land character Very high elevation and very steep slopes. Very high elevation and very steep slopes. Very high elevation and very steep slopes.
High elevation and steep to very steep slopes.

Class 3

Uplands with steep slopes.

Class 4 Class 5

Gentle slope areas. Gentle slopes, flat areas.

Proposed land use Protected or conservation forest and headwater source. Protection. Absolutely no changes to the land permitted. Should be reforested or maintained in permanent agroforestry. Use of land for agricultural activities is to be strenuously avoided. Commercial forestry and mining operations may be permitted. Fruit trees, commercial timber, and perennials. Grazing in some areas. These agricultural activities should be carried out in a stringently responsible manner according to the principles of soil and water conservation. Upland farming, with forest and fruit trees on steeper slopes. Lowland farming. This land shows high agricultural potential.

Source: Royal Forest Department (2004a) and Bandith et al. (1993)


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Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) However, it is important to note that conservation forest, national park and Class 1 watershed are administrative categories that do not necessarily equate with forest cover. While there is, of course, a broad correspondence between areas with substantial forest cover and areas with high proportions of conservation forest, there is certainly not a perfect match between actual land cover and administrative classification. This is evident even from the most general data where the area of conservation forest in northern Thailand exceeds the area of actual forest cover by almost 800,000 hectares (Yanuar 2004). The officially declared forest reserve (which includes economic as well as conservation forest) in the northern region exceeds the area of actual forest cover by 1.4 million hectares (RFD 2004b).

Status of land/forest ownership and tenure


As discussed above, the administrative goal of achieving 25 percent conservation forest has generated a massive mismatch between official land classification and actual land use, creating great uncertainty about such land without forest wherein effect agricultural activities are rendered illegal. The impact is particularly intense in the far northern provinces where, in 1990, one third of villages were found to be located inside forest reserves (Sopin et al. 1990: 11). The Land Development Departments land use plan for upland areas in Chiang Mai province indicates that of 1,400 villages surveyed almost 1,300 were located in some form of forest reserve (Bandith et al. 1993). Farmers living in these areas have uncertain rights over their land and many lack formal tenure documents. Many upland farmers have found their agricultural or fallow fields taken over for plantation forestry or other activities designed to protect watersheds. The Land Development Departments plan for Chiang Mai province classified almost 600 upland villages as communities which do not have the potential to become permanent villages and which should be evacuated to more suitable areas (Bandith et al. 1993). A related issue is the presence of ethnic minorities in the northern provinces, which are sometimes called hill tribes. Some minority groups such as the Karen, or Khamu have lived in the region for centuries. But in the twentieth century (and particularly during the 1960s-1980s) there was an influx of groups who were more migratory such as the Hmong, Akha and Mien, who were associated (with various degrees of accuracy) with forest loss in the northern uplands, hunting, or the conversion of dense forest to forests with more economically useful species for these settlers. Current estimates of these ethnic minorities are in the region of a total of 500,000. But matters of citizenship complicate quantifying these groups, where some observers have argued that the government has deliberately withheld citizenship to slow down access to land or other services. (This matter is discussed below in in reference to local rights problems). There is therefore some uncertainty about how many individuals live in these zones, and this is further complicated by the question of whether such people have the right to be there. The statistics in the 2002 Forest Trends publication, Who Owns the Worlds Forests, do not mention Thailand specifically as Thailand is now no longer a major producer of logs from native forests. But the FAO Forest Resources Assessment (2005) correctly refers to Thailand as one of the top 10 countries with the largest areas of productive forest plantations (with 2% of the total world area, p82). On p83 the statistics state the area of forest productive forest plantation has remained more or less consistent at 1,979 to 1,997 thousand hectares between 1990 and 2005. On p105-106, the area of protective plantations is even more important. Thailand is ranked 5th of countries with largest areas of protected plantations, with 4% of the world total. And between 1990 and 2005, the total area is shown to rise from 661 to 1,102 thousand hectares. Between 1990 and 2000, this increase was at an annual 5%, second only to Vietnam (at 8.2%). Between 2000 and 2005, this rate has slowed to 0.4% per year. In my experience, these statistics seem accurate, as the logging ban of 1989 restricted the private ownership of plantation forestsalthough I wonder if the productive plantation statistics may underestimate the continuing growth in privately-owned rubber stands by individual households in the south of Thailand. The statistics for protective plantations, however, seem consistent with the rapid growth in teak and pine plantations since the early 1990s, and eucalyptus monoculture in the early 1990s, especially in the north 85

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) and northeast of Thailand. I am not surprised that Thailand is one of the most important countries for either productive or protected plantations.

Main issues in natural resource and local rights: government perspective


National governments have changed in recent years, with a rather sporadic transition from repressive military governments (especially in the 1960s and 1970s), to the first main use of universal suffrage in 1988. Thailand had military coups in 1991 and 2006, and rapid government changes during the 1990s. Not all governments have shared the same outlook on natural resources, but some generalized working principles can be identified. National governments have usually linked questions of forests and local rights to important dilemmas about national economic development and security, as well as opportunities for profiting through allocating concessions for logging and mining in forest areas. During the early 20th century, Thailand rivaled India and Burma for production of teak logs, and for some province of the north, this was a major source of income. The rapid depletion of teak reserves, and forests in general, during the 1970s and 1980s was therefore a legitimate source of concern for securing economic incomes. This depletion was the result of rapid logging through existing companies, but also through illegal logging, and the rapid clearance of land for agriculture and settlement, often associated with the influx of shifting cultivators (so-called hill tribes) from neighboring Burma and Laos, and increased use of uplands and forests by Thai people who traditionally lived in lowland valleys with irrigated rice terraces. In addition, the habitation of forest zones by newcomers to Thailand, often from countries that had become communist following the end of the Vietnam War in 1975, has also worried governments that forest land may also become dominated by groups sympathetic to communism, or who may be difficult to control, and who were also (in some regions) involved in illicit opium production. Between the late 1960s and the early 1970s, some observers have claimed there was a Hmong War between Thai authorities and the Hmong ethnic minority in particular, who acquired a reputation for wanting to live in remote upland zones outside control of the Thai government. During this period there were outbursts of sporadic fighting, and the forced resettlement of many villages, especially in Nan, Khampaeng Phet, Tak and what is now Phayao provinces (Hearn, 1974). Many anthropologists have claimed that these conflicts exaggerated the extent to which such hill groups were indeed communist, or seeking to engage in organized insurgency. But it is also true that some zones were indeed infiltrated by observers and agents from China and/or Vietnam, such as in the armed struggles in the 1970s in northern Nan province and what is today Phayao province, and as late as the early 1980s in the lower section of northern Thailand around the Khao Khor mountains of Phetchabun province. The government response to these perceived threats partly included enforced resettlement. In Khao Khor, the government deforested land in order to remove cover for insurgents, and then resettled the land with ex-soldiers and government workers. More recently, the local rights issue has been most closely linked to how far upland minorities in northern Thailand should receive land rights and citizenship. Commonly, directors of the RFD have claimed that most deforestation in this region results from upland agriculture, and from ethnic minorities. Conservationist NGOs has sometimes supported these views. This has led to the RFD taking stances on forest and watershed science that justify the relocation of villages or restriction of agriculture in the uplands. In 1998 the Departments Director General ruled out the principle of coexistence between man and nature in tackling the problems of people living in the forest. He justified the expulsion of upland residents from conservation areas on the basis that the forest exists for hundreds of years but you are just born. You can live in the forest if you live like barbarians. But now your life is civilized and we have no more forest left, so you have to go (Plodprasop Suraswadi quoted in Chakrit 1998). Critics suggest that these ecological justifications for restricting local rights in forest or watershed areas is just a more 86

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) acceptable current framing of the older desires to control these zones for national security reasons. For example, many wildlife sanctuaries and national parks have been declared in zones that used to have insurgency. Also, in 1999, three Thai academics arguing in favor of community forestry, land rights and citizenship for ethnic minorities were accused of selling their country ( khay chaat) i.e. traitorsby the governor of Chiang Mai province. Another theme discussed by some commentators is the role of personal profiteering by some national governments. For example, the journalist James Fahn (2003) argued that the long-standing Thai politician ex-General Chavalit Yongchaiyudh (who was also prime minister 1996-1997) was notoriously involved in profiting from illegal logging. During his premiership he was also notable for arguing in favor of definitions of community forestry that included allowing concessions for logging and mining inside conservation forests.

Issues on natural resource and land rights: civil society perspective


Civil society activism in Thailand is commonly divided into two key concernsthose groups (or sections of society) who wish to conserve forests for reasons of natural heritage and biodiversityand those who wish to conserve forest for the sake of local livelihoods and rural development. In recent years, these different sides have been associated with positions on local rights and community forestry that, respectively, seek to withhold or enhance local access to conservation forests. However, this common dichotomy hides a variety of alliances and changes in these positions over the years. Moreover, environmental activism in Thailand is also closely linked to wider concerns about democratization and the persistence of military (or autocratic) governments, which have often influenced how civil society has approached questions of natural resources. Often, debates about natural resource management have been more concerned with how far they represent state failure or the lack of democratization, than a uniform approach to specific environmental risks (Forsyth, 2007). One common topic of debate has been the extent to which civil society has been either united or disunited concerning natural resources. During the 1980s, many observers have claimed civil society was united between different classes in the related campaigns against the construction of the Nam Chaon dam in the rainforests of Kanjanaburi Province (western Thailand), and the more general campaign for a logging ban. Often, this is represented as an alliance of middle-class conservationists and peasantry/ working-class activists seeking mutual objectives. These objectives were (i) a more democratic system of decision making in government, and (ii) protection of forests for villagers and conservation, rather than for private profit (e.g. Fahn 2003). Since the logging ban, however, observers have claimed that strong divisions have emerged in civil society between pro-conservation and pro-development NGOs who, respectively, have argued for versions of community forestry that either centralize control of forests under the RFD (and see villages as effectively lease holders on protected land); or decentralize control over the management of forests to the village level. These divisions emerged from the early 1990s and became particularly prominent in the late 1990s and early 2000s. Examples of conservationist NGOs included the (now discontinued) Dhamanaat Foundation (seeking to resettle Hmong farmers in Chiang Mai province), and the Assembly of the Poor (a coalition of pro-poor activists campaigning on various development issues). At certain times, consequently, the position of the pro-conservation NGOs was very similar to that of the government, as it sought to centralize control and empower the RFD. Some critics, however, have suggested that the most vocal debates in civil society are not necessarily representative of the most disempowered voices of farmer groups in or around forest areas (Forsyth and Walker, 2007). These and other critics have argued that the two sides in the debate of pro-conservation and pro-development are rather too stereotypical, and both sides also use manners of describing forests and minority groups that are questionable. This idea has been well developed in the arguments of Andrew Walker (2001) who has proposed that a Karen Consensus has emerged about the Karen ethnic 87

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) group that portrays the Karen as environmentally benign and traditional in ways that do not really match the reality of how the Karen live and work today. Walkerand othershave argued that this representation of the Karen in this fashion has emerged as a result of the political debate between proconservation and pro-development NGOs who have wanted to find a compromise position where both sides can point to a situation where people can live in forests, but where these people are also conservationists. Walker argues that this representation does not really represent the reality of most Karen in Thailand (who, like most other poor upland farmers are increasingly reliant on commercial crops), or on other minority groups, who are represented as somehow lacking the traditional wisdom of the Karen. Moreover, this vision also makes claims about the fragility of forestland and the damaging effects of agriculture that do not match the available evidence from inside or outside Thailand. Research on newspaper reporting of civil society in Thailand by Forsyth (2007) has also indicated that NGOs and newspapers since the mid-1990s are increasingly representing peasants and working-class people as sharing the views of pro-conservation NGOs about the fragility of forests. It is not clear if this new trend is the result of poor farmers and pro-poor NGOs genuinely adopting these values, or whether journalists and NGOs like to claim that they do. But it is important to note that the popular approaches of civil society to natural resources in Thailand are dominated by these themes.

Efforts at tenure reform


Some of the key changes have already been describedi.e. the 1989 logging ban, and the subsequent search for a community forestry bill to make the ban more flexible, and to overcome many of the contradictions arising from the classifications of forestland described above. Many of these contradictions were enhanced as the result of government policies during the 1990s, which sought to re-establish government control over land that was officially sanctioned as state-owned, but which, were occupied (through usufruct, or various levels of squatting) by farming communities sometimes for periods of up to decades. Part of this problem was because Thailand had experienced a military government in 1991-2 after the passing of the logging ban, which slowed down the intended social reforms at the start of the decade, and many autocratic aspects of this government continued into the mid-1990s (see examples below). As Vandergeest (1996b: 262) has argued In effect Wildlife Sanctuaries and National Parks have become areas occupied by a non-local armed force, surrounded by an alienated local population. The main tenure attempt at tenure reform since the logging ban has been the debate about community forestry, which formally began as early as 1990. This was partly supported by the provisions of the new 1997 Thai constitution, which sought to make environmental policy in Thailand more democratic. In a crucially important provision, the constitution granted the right to participate in the management, maintenance, preservation and exploitation of natural resources and the environment in a balanced fashion to persons so assembling as to be a traditional community (Government of Thailand 1997: Article 46). The campaign for community forestry has, however, been marked by ongoing dispute. The initial draft bill, prepared by the RFD in 1990, was criticized for failing to address the needs of villagers. For many observers, this initial draft implied little change to centralized bureaucratic control of forests and offered little chance for villagers to start governing forests locally. Many critics of the RFD suggested their proposed legislation was just a pragmatic means to acknowledge the presence of people in forest reserves without giving them substantial resource management rights. In 1999, the director of the RFD (Plodprasob Suraswadi) declared: We decided to allow villagers to live in forest areas, so we have to give them a chance to make a living from the forest. But to critics, this statement was hiding the truth, with one NGO representative responding: its possible that the RFD want to use the community forest law as a new tool for running commercial plantations (Pennapa 1999). Critics were concerned that the RFD believed villagers had no meaningful role in forest conservation. An alternative approach to community forestry was voiced in a draft prepared in the mid-1990s by the National Economic and Social Development Board, an advisory body composed of both government and 88

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) public figures including academics and NGOs. This bill was commonly referred to as the peoples versiongiven the widespread consultation that went into its preparationand it seeks to provide for many of the elements of decentralization, democratization, and fairness for upland farming groups (including hill tribes) that social critics felt were lacking in previous environmental legislation. Specifically, it would allow local villagers to form community forest committees that would be granted extensive management rights over local forest areas. (The main provisions of the draft bill are outlined in Table 2 below.) It has, however, been the source of much contention and impasse. In early 2002, Thailands House of Representatives passed a version of the bill that was broadly consistent with the peoples version. However, the Senate rejected key provisions and in September 2005 a joint House-Senate committee recommended that community forests not be permitted in special forest zones defined as areas with a slope of more than 30 degrees, with high levels of biological diversity, and located in a headwater area. There is little doubt the peoples version of the bill is a much-needed response to coercive state policies that have excluded local people from the management of forest resources and undermined local traditions of sustainable resource management. Yet, the community forestry debate, and peoples version, has also framed environmental policy and development in terms of (i) legitimate communities, engaged in (ii) forest conservation. Both of these assumptionsin the way they are presentedcan be criticized as being too restrictive. First, the bill states that only communities may participate in community forestry. A local community is defined in the bill as the group of people that live together as a society in the same area and pass down their culture together. A commentary on this definition suggests communities so defined must be original local communities (Anon, nd). Under the proposed bill, applications to establish community forests in forest conservation areas must also demonstrate a history of sustainable forest management and a culture of coexistence that favours forest protection. But perhaps this emphasis on community is somewhat misplaced. In northern Thailand, there are numerous local frontiers where the bill may not operate because histories of settlement are relatively short and local residents have diverse origins (Hirsch 1997). For example, Del Castillos (1990: 39) study of a fermented tea xxxii producing village near Mae Taeng indicates that resident households came from seven different districts in Chiang Mai province with eight households arriving between 1980 and 1988, a further six between 1971 and 1980 and eight between 1961 and 1970. By any definition, it is difficult to see how this group of villagersfor whom forest resources are undoubtedly crucialcould validly present themselves as an original local community eligible to apply for a community forest. Indeed, Anan (2001: 75), one of the key academic campaigners for community forestry, writes of such recently settled villages as not being old enough to make their members have a sense of belonging and to create a stable land use tradition clearly putting them outside the definitions proposed by the community forest movement. Other research has also identified significant numbers of residents in villages may pursue education and non-agricultural employment, and hence not confirm to the overly narrow focus on original and local community. A second crucially important weakness of the peoples version is that it gives insufficient attention to agricultural land. As discussed previously, large areas of agricultural land are located within forest reserve areas on which tenure rights are ill defined. Yet, despite the fundamental and oft-repeated claims that people and forests can and do co-exista basic tenet of community forestry and a catch-cry of the community forestry campaign in northern Thailandat no point does the proposed legislation state that agriculture is a legitimate activity within community forest boundaries. In fact, a key provision of the peoples version specifically forbids anyone to control land, farm, live in, build, burn, clear, lop, gather or do anything else that would cause destruction to the forest in the community forest area. In another provision, there are sanctions of five years imprisonment, or 15 years if the offence takes place in a conservation area of the community forest. As such, it appears that the proposed community forest legislation would offer no enhanced security for farmers with agricultural lands in the ambiguous zones of forest reserves. The formal status of their fields would not change and the mismatch between formal land classification and actual land use would be unresolved. Despite all the claims about community forest legislation providing a basis for sustainable and secure upland livelihood, the central elements of this 89

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) livelihoodagriculture and rights to agricultural landhave no clear place within the proposed legislative framework. Key Provisions of the People's Version of the Community Forestry Bill 1. A national level community forest policy committee will be established to set overall policy directions in relation to community forest administration and management. 2. A community forest committee will be established in each province. These provincial committees will be responsible for: receiving applications for the establishment of community forests; inspecting the proposed community forest areas; considering any objections from interested parties; approving the establishment of community forests; setting management conditions; and monitoring community forest performance. 3. Representatives of local communities (at least ten representatives who have the support of at least half the community) can propose the establishment of community forests provided they are in a position to take care of the forest. In forest conservation areas, such as national parks, applicants must demonstrate that they have been caring for the forest for at least five years prior to commencement of the act and can demonstrate a "culture of coexistence that favours forest protection." 4. Local community forest committees are given wide-ranging powers in relation to management of the community forest. The committee sets down the local regulatory framework for forest management, including the demarcation of conservation and gathering areas and rules for the conservation and use of animals and vegetation. They are able to expel noncompliers from the membership of the community forest; they can require compensation; take legal action; refer matters to the public prosecutors; and are given wide-ranging local policing powers. 5. Locally developed plans for the operation of the community forest must be submitted to the provincial committee at the time of application. These plans must set out "protection" and "use" areas within the community forest.

Cases in tenure reform


There have been various examples of state coercion leading to adverse outcomes for local people in Thailand since the 1990s. Two large themes of activity have relocated or restricted land use in northern Thailand (on the grounds of watershed protection, or the establishment of national parks and wildlife reserves), or in northeastern Thailand, where the so-called Green Isaan program of the early-mid 1990s sought to reforest / afforest agricultural land in state-owned forestland with eucalyptus and pine plantations, and occasionally relocate villages. In northern Thailand there are numerous examples of resettlement for wildlife protection. For example: Jonsson (2005) describes the long-term negotiations between Mien people in Phayao province and the RFD concerning access to a wildlife sanctuary. This example describes how the village was able to negotiate rights of access via a road, or their resistance to park rangers (illegally) taxing transport along the road. Roth (2004) describes the tensions between Karen villages in Chiang Mai when a national park was created, and new land use restrictions were imposed. In northeast Thailand, some of the cases of resettlement included Pa Kham in Buri Ram province (19891994), Thap Lan in Nakhorn Ratchasima (1994); and Dong Yai in Buri Ram (1994). These cases involved government action to resettle villagers without sufficient land titles, and to reforest these zones primarily with eucalyptus. There have also been some notable demonstrations and protests against these kinds of activities. In 1995, more than 2,000 hill farmers from six northern provinces marched in protest against the RFDs 90

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) desire to evict them from forest reserve land. A similar protest occurred in May 1999 when some 5,000 lowland and hilltribe farmers formed a Rally for Rights in front of Chiang Mai provincial hall, demanding better land tenure, less state-sponsored reforestation and better access to citizenship. In terms of positive examples, there are numerous cases (such as discussed by Jonsson, 2005) where individual villages have been able to negotiate better deals for themselves, or where they have avoided resettlement as the result of their ability to reach agreements with local authorities. For example, in Chiang Rai province in the far north in 1987, the RFD burnt one Akha village and tried to forcibly resettle some Akha and Mien villagers whom were considered to be illegal immigrants into northern Thailand. According to newspaper articles and local reports, these villagers were put into trucks and driven to the Burmese border. Yet, the Mien village involved (Pha Dua) was able to withhold further resettlement, and ask for better treatment of the alleged illegal migrants because they have been able to develop more trusting relationships with the local authorities than the neighboring Akha (Bangkok Post 1987; Forsyth, fieldwork, 1992). In Chiang Mai province, the Sam Mun Highland Development Project is well known as an example of one region that has pioneered what ICRAF has called agroforestry landscape mosaics, which refers to landscape-level mosaic planning as a mechanism for identifying appropriate trade-offs between local livelihoods and environmental services. The project was established in the late 1980s to implement programs of integrated rural development and opium replacement in remote areas of Mae Hong Son and Chiang Mai provinces. Its participatory techniques have been adopted and developed by many other upland development projects (see, for example, Thai-German Highland Development Programme 1998; Promboon 1996; Charal et al. 2002). Diversified mapping techniques have also been widely promoted by, for example, the Northern Farmers' Network to demonstrate alternative claims to land, water, and forest resources that contest the official representations on government maps. This countermapping approach is said to provide local farmers with political space and language with which to communicate and negotiate with the state authorities (Pinkaew 2001:156).

Poverty and forests


The RFD, Department of Land Development, and Department of Public Welfare provide information about poverty and forests. Additional information is provided by the NGO TERRA-PER, which publishes the magazine, Watershed , providing pro-poor analyses of natural resources management in Thailand and neighboring countries. During the 1980s, various government and donor-led initiatives in northern Thailand sought to enhance local incomes in opium-growing and forest areas (Renard, 2001). The most prominent Thai project was the Royal Project, under the patronage of King Bhumibhol, which sought to introduce high-value export crops such as cabbages, flowers, strawberries, and which continues today in various locations in northern Thailand. International donors organized other projects that aimed to contribute to poverty alleviation and opium replacement. All of these projects attracted criticism from some observers who claimed that they encouraged commercial activities in areas that should be protected, or that the agricultural techniques advanced were not sustainable for the uplands. However, it is worth noting that there was great variety in these projects. Moreover, some of the alleged environmental impacts of new crops are controversial. For example, it is often stated that using agrochemicals on crops such as cabbages will pollute lowland water supplies. Clearly chemicals can pollute water, but the available current evidence suggests that the impacts on water are much less than the quantities of chemicals carried on the harvested crops, ormost importantlythat the greatest risk is actually to the farmers who spray these chemicals. In recent years, under the Thaksin government of 2001-2006, the Thai government has adopted various interventions in rural villages to address poverty. The ninth national economic and social development plan set four main objectives of attacking poverty and inequality, increasing the potential of the poor, strengthening the poor-dependent economic sector and strengthening the participation process. The 91

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) Thaksin government set up a series of activities, including debt suspension for farmers, improved capacity in sustainable agriculture, one sub-district one product programme, village and community fund, bank of the poor and the 30 Baht Health Care Programme. Critics have suggested that these actions were primarily undertaken to win political support among Thailands rural population, but these criticisms may overlook the benefit of these schemes for villages that are not scheduled for resettlement (Suree, 2005). During the last decade, the percentage of Thailand's population living below the poverty line has declined by half to 11.4 percent in 1996. However, the proportion in rural areas has increased to 12.9 percent (Suree, 2005).

Prominent threats to local rights and livelihoods


There are five prominent threats to local rights and livelihoods include: 1. A definition of community forestry that is focused on centralized control over forest plantations, rather than the encouragement of localized forest conservation and management in conjunction with centralized regulations and training. The sections above give details about this, but in many locations it is clear that reforestation with plantations is taking place on the preferred agricultural land next to villages, which may be intended to reduce the permanency of settlement in these areas. 2. The uncritical enforcement of national parks and wildlife sanctuaries in ways that restrict livelihoods. As discussed above, this trend may be supported by various civil society actors and NGOs that see national parks as legitimate means of reducing human impacts on forests and watersheds. In turn, this trend may also be supported by policy approaches that see upland reforestation, or the restriction of upland agriculture, as necessary in order to provide environmental services such as the creation of rainfall, the prevention of erosion, or the prevention of lowland water shortages. Much research both inside and outside Thailand has highlighted that these policy beliefs are not supported by evidence, but are used by the RFD and some conservationist NGOs as a legitimization for land use controls. (It is difficult to summarize all these debates here, but some of the salient points include that reforestation is unlikely to generate rainfall; erosion (and associated lowland sedimentation) may be caused by multifarious reasons including roads and plantation forestry, and many farmers minimize its impacts; and annual water supply is more likely to be reduced by forests because of increased evapotranspiration, and topsoil porosity is more important than vegetation cover per se in controlling water retention in uplands: see Calder, 1999; Bruijnzeel, 2004). 3. Citizenship and associated political rights. In some areas, especially in the north, many upland dwellers are not yet Thai citizens, but have not had their application for citizenship approved. Understandably, the Thai government does not want to provide a green light for in-migration from neighboring Burma and Laos (or even China). But the inability to claim citizenship makes upland dwellers more vulnerable to resettlement or other restrictions on land use. It also diminishes their ability to enter other livelihood activities. 4. Agricultural trends that are dominated by rapid short-term investment in monoculture cash crops. Many parts of Thailand have experienced phases of investment and planting of certain crops such as soya, lomyai, and currently oranges, which quickly dominate landscapes, but which have been abandoned after some years because of lack of profitability. This theme may be related to the growing presence of Chinese investors and goods in Thailand that may make the ability of local producers in Thailand to enter markets and remain competitive less likely. 5. Long-term decline in soil fertility and agricultural productivity as the result of repetitive production on the same land, or the decline in agricultural land because of plantation forestry. 92

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) Such long-term changes in soil fertility will affect the poorest and least educated in villages most importantly.

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Vietnam
The legal framework on ownership and control over forest areas and land
In Vietnam, the Constitution is the basic legal document relating to the ownership of forest and land. The current Constitution, which was passed on 15 April 1992 by Session 11 of the 8th National Assembly stipulates that all land, forests [] and all other property determined by law as belonging to the State, come under ownership by the entire people (Article 17) and that the State manages all the land in accordance with the plan and the law, and guarantees that its use shall conform to the set objectives and yield effective results. The State shall entrust land to organizations and private individuals for stable and lasting use. (Article 18). There are two laws that specifically deal with rights and ownership over natural resources: First, the Land Law passed on 26 November 2003 (the earlier law was passed in 1993) specifies the transference of long-term (renewable) land use rights to various entities, including organizations, individuals, households, and communities. Province-level Peoples Committees (PPC) are given responsibility for the allocation of land use rights to organizations, while Districtlevel Peoples Committees (DPC) are in charge of allocating land use rights to individuals, households and communities. Second, the Forest Protection and Development Law or FPDL passed on 3 December 2004 (the previous FPDL was passed in 1991) deals with the ownership of (forest) trees. The 2004 FPDL identifies three main types of forest owners: (i) organizations (both state and non-state), (ii) individuals, and (iii) households. The law also recognizes the allocation of forests to communities (with titles for the forest); however, communities are not included in the list of legal forest owners under this law.

According to the 2004 FPDL, a forest is defined as an ecological system consisting of the populations of forest fauna and flora, forest microorganisms, forestland and other environmental factors, of which timber, trees and bamboo of all kinds constitute the major components, with a forest canopy cover of 10 percent or more. By use, forests in Vietnam are classified into production forest, protection forest and special-use forest. Production forests are used mainly for the production and trading of timber and non-timber forest products in combination with protection, contributing to environmental protection. Protection forests are used mainly to protect water sources and land, prevent erosion and desertification, restrict natural calamities, and regulate climate. Special-use forests are used mainly for the conservation of nature, specimens of the national forest ecosystems and forest biological gene sources; for scientific research; for protection of historical and cultural relics as well as landscapes; and in service of recreation and tourism in combination with environmental protection. State organizations are the ultimate owners of protection and special-use forests, although other entities may participate in the administration of these forests. It is only for production forests that various types of owners are present. Forests are also classified into plantation forests and natural forests. In general, the State retains the right to dispose of natural forests and plantation forests from the state budget and to transfer use rights over these forests to different owner groups. For plantation forests that are not financed by state budgets, the State recognizes the ownership rights of forest owners, which include the right to possess, use and dispose of trees, animals and property associated with planted forests during the forestassignment or period of lease. 94

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Implementing guidelines
To guide the implementation of the Land Law and FPDL, there are government decrees and (inter) ministerial circulars. At present, Decree No. 181/2004/ND-CP (dated 29 October 2004) is the main legal document that guides the implementation of the 2003 Land Law, while Decree No 23/2006/ND-CP (dated 3 March 2006) is the guiding document for the 2004 FPDL. It is expected that a new circular to guide the implementation of forest allocation will be ready by 2006. At provincial level, the Province-Level Peoples Committee (PPC) has the power to issue legal documents that govern the allocation of forests and land to different groups of owners, provided that such documents are not against the Constitution. In Son La province, for example, PPCs Decision No. 2396/QD-UB dated 17 October 2000 provides a legal framework for the allocation of forests. Similarly, the PPCs in Thua Thien Hue and Dak Lak provinces have also set up legal frameworks for forest land allocation within their territories.

On community ownership
According to the current legal framework, a title can be given to a user of land if there is no current conflict over that land. The government follows a policy that people living on agricultural or forestry production are entitled to have land for their production activities. In principle, customary rights can also be recognized, provided that they do not contradict current laws and regulations. At the moment, there is a conflict between the above two laws and the Civil Code in terms of the legal status of communities vis--vis land and forest ownership. While a community can be given forest and land (as stated in the 2003 Land Law and the 2004 FPDL), the Civil Code does not recognize a community as a legal entity. As a consequence, communities only have the right to use the forest (resources) but not the right to exchange, mortgage, lease, inherit and transfer its title to forest land.

Status of land/forest ownership and tenure


The current government perspective identifies eight major groups of forest owners: 1. 2. 3. 4. 5. 6. 7. 8. State forest enterprises (SFEs), Management boards of protection forest (MB-PFs), Management boards of special-use forest (MB-SFs), Joint venture enterprises, Individual households, Collectives, Army units, and Peoples Committees (PCs).

The main forest tenure arrangements are as follows: State (public) property: forests under state property arrangement are those managed by owner groups 1, 2, 3, 7 and 8 above. Under this arrangement, the forest is allocated to state bodies for an unspecified period of time. Where the forest falls under the category of special use or protection forest, owners are entitled to receive state budgets for management of the forest. Common property: the common property arrangement is found in forests managed by collectives (owner group 6). This forest arrangement includes collectives that are legally recognized by the state. A forest under this arrangement is allocated to a group of individuals, among whom each one shares similar rights and responsibilities. Owner groups are also entitled to have RBC for the area of forest they are allocated. 95

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) Private property: this arrangement includes forest management by individual households and joint venture enterprises (owner groups 4 and 5 above). Under this arrangement, a forest is allocated to its owner for long-term management (50 years). In most cases, forest owners under this arrangement are entitled to a legal title for the forest area they are given. Forest contracting: the most popular form of forest contracting in Vietnam is for protection and management of forests. This management arrangement is formed when an owner of forest under state property signs a contract with an organization, a household, a group of households or a village to protect the forest. Under this arrangement, the contractor retains the rights of ownership over the forest, while the contractee enjoys only those rights specified in the contract. At present, this management arrangement is done under the Five Million Hectare Reforestation Program (5MHRP), also known as the 661 Program.

Forest data
Data as of 31 December 2005 shows that the total forest area of Vietnam is 12,616,700 ha of which 10,283,174 ha is natural forest and 2,333,526 ha is plantation forest. In terms of the countrys total land area, the national forest cover is 38.2% (consisting of 31.1% natural forest and 7.1% plantation forest). Of the total forest area, around 9.14 million ha (or 72.4%) is administered under state ownership. Communities own around 0.56 million ha (4.4% of the total), while the forest area under private ownership of individuals, households and firms is around 2.92 million ha (or 23.2% of the total). In terms of natural forest, some 7.86 million ha (76.5% of the total natural forest) is publicly owned by the government; around 0.5 million ha (or 4.9%) is owned by communities; and private ownership by individuals, households, and firms covers around 1.92 million ha (or 18.7%). For plantation forests, the government publicly owns 1.27 million ha (54.6% of the total plantation forest). Some 58 thousand ha (2.5%) is owned by communities and about one million ha (42.9%) by individuals and firms. The forest area under contractual arrangement forms part of the area under state ownership. At present, around 2.26 million ha (which constitute 17.9% of the total forest area, or 24.8% of the forest under state ownership) are under protection contracts with local people.

Main issues on forest resources and local rights: government perspective


Government perspective
The following are the main natural resource and local rights problems from the general perspective of national government:

Inconsistent roles in the implementation of the forest land allocation (FLA) process: At present, there is no specified lead organization for the allocation of forest resources at the field level; the lead organization is often decided on ad hoc basis. In some provinces, the Forest Protection SubDepartment (Sub-FPD) takes the lead in FLA, while in other provinces it is the local State Forest Enterprise (SFE) which is the key agency. Low contribution of forests to the economy and the lack of information on the real value of forests: Over the last decade, the contribution of forestry was valued at around 1% of total GDP. This low figure is partly due to the incorrect valuation of the products and services that forests provide to the national economy. In addition, it appears that the actual and potential contributions that forests make to lift local people out of poverty is still not well understood and appreciated.
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Inadequate setup: The current forest management administration system, particularly at the local level, is inadequate for an effective coordination and management of the forest resources. The main problem is the existing division between the systems of the Forest Protection Department (FPD) and the Forest Department (FD), which are under the control of two different administrative levels. Slow SFE renovation process: In managing a huge natural resource, the existing state forest enterprise (SFE) system is far from capable for ensuring effective forest protection and exploitation. The recent wave of SFE reform, which started in September 1999, required that part of the forest land currently under the management of SFEs be transferred to local state administrations for allocation to other stakeholders. However, this transfer process has been slow, thus delaying the process of allocating forest resources to local people. Pressure from international communities: Vietnam is currently a signatory to some 28 different international and regional environmental agreements, such as CBD, CITES, UNCCD and UNFCCC. In addition, Vietnam is a member of several international organizations that promote sustainable forest management, e.g. AFP and APFC. Vietnam is also expected to join as member of the ITTO and WTO in the near future. Being a signatory/member, Vietnams forest policies will have to take into account the requirements from these different treaties and international agreements. Inconsistent legal framework: Although local communities are legally recognized as owners of land under the 2003 Land Law and as owners of forest under the 2004 Law on Forest Protection and Development, they are not recognized as a legal entity under the Civil Code. Subsequently, communities are not able to enjoy same set of rights as with other types of forest owners.

Issues on natural resource and land rights: civil society perspective


The following are seen as the main natural resource and local rights problems from the general perspective of civil society:

Too much state control over forest resources, and poor compensation for local people: State control is exercised not only on forests under management by state organizations, but also on forests allocated to local people. For example, people have to ask for permission for logging and for use of the forest for swidden farming. In addition, there is control over the marketing of (timber) products extracted from the forest, even where forest land has been allocated to households and communities. Furthermore, although local people receive some compensation for their forest protection efforts, these are too low to make economic sense for local households. Inadequate attention to indigenous knowledge in natural resource planning and management: Despite the fact that local communities have been living in harmony with forests for generations, there is a current lack of attention given to traditional governance structures and indigenous knowledge in resource management. Traditional practices by local communities are seen to be backward and need to be abolished. In addition, there is also lack of involvement by local people in planning processes for resource use. Migrants as additional appropriators of the resources: In addition to State organizations, the entry of migrants has also created a change in the access by indigenous people to natural resources. In most cases, the newcomers are welcome to share the resources with local inhabitants. Overlapping claims: Despite the fact that most forest resources have been claimed to be under State management, local people still try to maintain their traditional claim on the forest on which they have depended as their source of livelihood for generations.
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Unclear benefit sharing mechanism for allocated forest: Although Decision 178/QD/TTg on benefit-sharing has been in effect for more than four years, local people are still not clear about how they can legally extract forest products (particularly timber) or use allocated forest land for cultivation purposes. In addition, it is not clear if timber products extracted from allocated forests can be certified and legally circulated in the market.

Efforts at tenure reform


Land tenure reform in the Vietnams agriculture sector started in 1981 with Directive No. 100/CT-TW of the Central Communist Party. This directive introduced a contract-based system in agricultural production, which aimed to enable individual farm households to cultivate their assigned fields and to provide the contracted amount of farm produce to the State. In April 1988, Resolution No 10 NQ/TW was issued, providing a new direction for agricultural land tenure reform. The main purpose of Resolution 10 was to provide farmers with farmland as a necessary means of production for household economic development. Following this resolution, the Land Law was passed in July 1993 and Decree 64/CP was issued in September 1993, aiming to provide long-term tenure (20 years for annual crops and 50 years for perennial crops, renewable) for farmers. In the forestry sector, state forest management by state organizations and cooperatives was the only form of forest tenure until the early 1990s. Efforts to introduce private forest management in Vietnam came only after the promulgation of FPDL in August 1991, which also established the legal basis for setting up management boards for protection forests and special use forests as a new form of state forest management. Tenure reform was introduced in the 327 Program (following Decision 327/CT dated 15 September 1992) for the purpose of forest rehabilitation. Under this program, local people were involved in forest management through forest protection contracts. Between 1994 and 1999, forest tenure reform in Vietnam followed the framework set by Decree 02/CP (dated 15 January 1994). The main purpose of Decree 02 CP was to allocate forestland for long-term use. Outputs of this process included allocations in the field, maps and forestland use books. However, no land use title was given to forest owners as part of this decree. In addition to Decree 02, Decree 01/ CP dated 4 January 1995 was also a guiding document for forest tenure reform, focusing on the contracting of land for forest use. In November 1999, Decree 163/1999/ND-CP was issued, replacing Decree 02/CP. The new decree provided a new framework for allocating and leasing forestland to organizations, households and individuals for sustainable and long-term forestry uses. Though the purpose of allocation remained relatively the same as in Decree 02/CP, it became possible to issue titles for allocated forestland under Decree 163. Along with the allocation of forest land under Decree 163, there was also forest contracting during this period under the umbrella of the 5MHRP (reforestation program), which started in 1998 and will continue until 2010. By the end of the 1990s and in the early 2000s, a forest management system by household groups or the community emerged. Though community forest management was not a new form, this period marked an important change in the legal recognition of this management arrangement. As earlier stated, a new land law was passed in November 2003 and a new FPDL in December 2004, recognizing forest and land ownership by community. In October 2004, Decree 181/2004/ND-CP was issued, providing a new framework for allocating agricultural land (replacing Decree 64/CP of 1993) and forestland (replacing Decree 163 of 1999), following the ideas of the 2003 Land Law. Up to now, the most important outcome of tenure reform has been the involvement of various stakeholders, particularly local people, in resource management. During its lifetime (1993-1996), the 327 Program involved over 466,000 households to protect around 1.6 million ha of forest on contractual basis. Between 1999-2005, over 2.2 million ha of forest were contracted to local people for protection 98

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) under the 661 Program. Furthermore, 2.87 million ha of forest were allocated to households and 2.94 million ha were allocated to organizations, along with forest land-use titles. Together with these came the establishment of a legal framework for tenure reform and benefit sharing. It has been generally observed that forest tenure reform becomes successful if the allocated lands are located near residential areas (in most cases, these consist of barren and poor forests). On the other hand, problems often arise with the management of natural forests. The reasons quoted are that natural forests are often located far away from residential areas, and are difficult to protect and manage. In addition, forest boundaries are often unclear, and there are no clear (immediate) benefits for local people. Furthermore most people still consider natural forests even if these are allocated as "open access" lands that belong to everyone. Many people like to convert natural forests into plantations because they can benefit (more quickly) from plantations. As a consequence, a benefit-sharing mechanism that is clear and secure for forest holders is yet to be achieved.

Specific cases in tenure reform


Cham B village of Dak Lak province
In 2000, 38 Ede households in Cham B village received 569 ha of forestland, which was formerly under the management of the local State Forest Enterprise (SFE). Of the total allocated area, 378 ha were natural forest and the rest was mostly bare land or land with shrubs. The allocated forest area used to provide shelter and cultivation land for the villagers during wartime. It was only after 1976 that the local people moved out of the forest to their current location. Until the end of the 1990s, the forest area was claimed by the State and put under management by various organizations. With the allocation of the forest back to the village in 2000, local people were allowed to clear part of the forest for cultivation. By 2002, 29 out of 42 households in the village had opened new fields in the allocated forest with a total area of 37 ha (32% of the total upland field of the whole village). These fields in the allocated forest contributed over one third of the total crop harvest, marking a significant change compared to 1999, the year immediately preceding forest allocation. However, the quick expansion of cultivated land in the allocated forest was alarming to local forestry officials. In 2004, a forest plantation scheme was launch by the local SFE, and many of the fields in the allocated forest have now been replanted with eucalyptus.

Forest Land Allocation in Quang Binh province


Between 1998 and 2002, with support from the Integrated Food Security Project (IFSP) over 40,000 ha of forestland were allocated to local households in 16 communes of Minh Hoa and Tuyen Hoa districts of Quang Binh province. Since the end of the FLA, local people have taken action on their land. Local households, regardless of economic status, have planted forest trees on the allocated barren land and land with shrubs. Most of the seedlings were provided free of charge by a provincial program to assist local communities in the establishment of short-rotation plantations for livelihood improvement. Timber from plantations can be sold to the provincial paper factory. Six years after forest land allocation, villagers have been able to earn cash income from their plantations. Local people in Dong Hoa commune have also been able to generate cash income from non-timber forest products (such as rattan and fuelwood) in the allocated forests. By contrast, participatory land use planning was not (properly) done in Hoa Hop commune during the land allocation process. Coupled with the expansion of plantation forests on grazing land, livestock raisers in Hoa Hop commune have been suffering losses in livestock due to their limited grazing area, particularly during winter time. 99

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Thuy Yen Thuong village of Thua Thien Hue province


In 2000, with support from the PROFOR project of MARD and the Thua Thien Hue Forest Development Department, an agreement was made for an experimental management of a natural forest area by Thuy Yen Thuong village. The village was selected as a test case for community forest management. The objectives of FLA in Thuy Yen Thuong were not only to eliminate hunger and alleviate poverty but also to enable local community to enrich itself from forest. The forest for which the management agreement was made was the best part in an area classified as an essential watershed protection forest located in a remote area with difficult access. The total forest area under agreement was 405 ha, having an average timber volume of 76 cubic meters per ha. Until now, local people have been able to benefit from the forest. In mid-2005, a plan to harvest 90 cubic meters of timber from the allocated forest was approved, and villagers were able to legally take timber for their use. However, the logging permit only allowed timber to be used domestically. The restriction of timber sales was due to the fear that illegal logging might follow. As a consequence, this hindered local households from improving their cash incomes.

Truong Son Forest Cooperative of Nghe An province


In 1997, the Truong Son Cooperative was established and 757 ha of degraded forest in the buffer zone area of Vu Quang Nature Reserve were allocated to 30 member households. Each member had to pay 3.5 million VND (around 350US$ at the current price) to get a share of the forest at the time of establishment. As member of the cooperative, local households have been able to acquire benefits from the allocated forest in different ways. They were provided land to establish agro-forestry farms on which they have planted a variety of different species, including fruit trees and forest trees. For forest tree plantation, local households were able to get financial support from Vu Quang Nature Reserve. In addition, cooperative members benefited from non-timber forest products. In 1999, with the approval of the district Forest Protection Unit, around 200 tons of rattan was harvested. Furthermore, the cooperative is trying to get approval for thinning of the allocated forest.

Forests and poverty


At the moment, there is no single data set in Vietnam that contains information on both forest and poverty. Data on forests and poverty are collected by different organizations, mostly independent of each other. Since 2000, the Forest Protection Department (FPD) has been in charge of collecting data on changes in forest conditions nationwide, following specific data formats. The current data collected and updated annually through this system includes: areas under three types of forest (i.e. production, protection and special use forests), areas under plantation and natural forests, areas of forest under each major owner groups (see Section II above), and areas of forest changes due to major causes (e.g. forest fire, logging, natural regeneration). Data on changes in forest condition is publicized annually, by the end of the first quarter covering the previous year. Data for 2000, 2002, 2003, 2004 and 2005 at the national level are currently available on the FPD website at www.kiemlam.org.vn. The second source of forest data is from forest inventories published every five years by the Forest Inventory and Planning Institute (FIPI). Such inventories contain detailed data on forest conditions 100

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) including areas of different forest types, volumes of timber and bamboo, average growth rates and composition of major species. The third official source of forest data is the Statistical Yearbook, published annually by the General Statistics Office (GSO). The data covers forest area by type, value of forest production, amount of timber extracted, area of forest loss, and area of forest loss due to fire. In terms of data on poverty, the GSO is currently in charge of the Vietnam Household Living Standard Survey (VHLSS). The survey looks at household data on income (from different sources) and expenses as well as biological, education, and health care information on households. In addition, data on production resources and activities are also collected through the survey. Data on surveyed households are stratified into five income groups, namely lowest income group, below average income group, average income group, above average income group, and highest income group. Summary data from the VHLSS in 1999, 2002, and 2004 are readily available at the GSO website at www.gso.gov.vn. Data of 1992-1993 VHLSS has also been published. The VHLSS for 2006 is still being processed at the moment. Access to detailed poverty data in the GSO is possible, with a user fee. Vietnam has made significant achievements in poverty alleviation. In 1993, around 58.2% of the population lived in poverty. This poverty rate reduced to 37.4% in 1998, 28.9% in 2002, and around 18.1% in 2004. The most important reform that has contributed to this achievement is economic reform, known as Doi Moi, launched in December 1986. In 1998, two important national programs on poverty alleviation were launched: (i) the National Target Program on Hunger Eradication and Poverty Reduction (HEPR), which is also known as Program 133, and (ii) the socio-economic development program for special difficult, mountainous and far, remote communes and committee for ethnic minority affairs, known as Program 135. Since 2002, Vietnams efforts to alleviate poverty have been put under the Comprehensive Poverty Reduction and Growth Strategy (CPRGS). The strategy sets the framework for poverty reduction until 2010, providing the direction to deal with poverty in provincial and sectoral development strategies. In the forestry sector, poverty reduction has been given some attention in the 5MHRP. In the earlier 327 Program, livelihoods improvement was also taken as one of the objectives. At present, a more comprehensive sectoral approach is being elaborated in the current work to prepare the 2006-2020 Forest Sector Development Strategy. Poverty alleviation has also been a focus of donors as well as national and international NGOs working in the field of rural development. The World Bank, for example, has supported Vietnam in VHLSS technically and financially, and has published quite a few papers on poverty and poverty alleviation. International NGOs working in the field of poverty alleviation include ActionAid, Care International, CHF in Rural Development, ENDA, Helvetas, ICCO, Oxfam GB, Oxfam Hong Kong, SNV, and World Concern Development Organization. However, there is still unclear evidence on the contribution of forest policies to lift people in the forest environment out of poverty.

Prominent threats to local rights and livelihoods


Corruption or improper implementation of state policies
While there are many great ideas at the policy level, experiences in Vietnam show that problems have been observed in the realization of such policy ideas in practice. In many cases, law enforcers abuse the powers they have for their own benefit, at the expense of local people. In other cases, weak implementation and capability, the lack of proper monitoring mechanisms, coupled with the complexity of policies, contribute to the failure in translating state policies into practice.

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Upward accountability of (local) state officials


Despite the fact that (local) state officials are supposed to represent the population that elects them, many fail to act as local representatives. Instead, they are only accountable to their superiors and do not argue for the interests of the local population.

Exclusion of ethnic people due to economic development


Although Vietnam has achieved significant results in reducing poverty, most of the effects from state efforts have been on the mainstream Vietnamese. The gap between the Kinh (mainstream Vietnamese) and the ethnic minorities tends to increase over the years as the economy grows.

Provision of adequate legal and technical back-up for people after forest land allocation
While local people have been provided forest rights through forest land allocation, this is only the first step. In order for people to improve their livelihoods, it is important that adequate assistance is provided.

Payment of forest people for the foregone benefits from using the forest
Although some form of payment have been adopted under forest protection contracts, the challenge remains on how to improve or create more innovative linkages between upland environmental stewards and lowland users of water and other resources. The current lack of information on the real value of forest resources has contributed to the difficulty of establishing payment schemes.

Main governmental and civil society actors in the forestry rights and resources
Government organizations
This is the largest and most powerful actor. Major government organizations involved in rights and resources include:

Ministry of Agriculture and Rural Development (MARD): MARD is responsible for implementing state management in the fields of agriculture, forestry, salt production, irrigation and rural development nationwide. Within MARD are the: Forest Department (FD) and FPD in charge of forestry issues, Agriculture Department, and Water Resources Department. Line agencies of MARD at the provincial level are Department of Agriculture and Rural Development (DARD) and Sub-FPD. These two bodies also have branches down to the district level. Ministry of Natural Resource and Environment (MONRE): MONRE is responsible for state management of natural resources i.e. land, water, minerals and environment; hydrometeorology; geographic measurement and topography. Within MONRE, are the Land Department (LD), Water Resources Management Department, and Land Registration and Inventory Department in charge of land survey, inventory, land use planning, land lease and allocation, mapping and registration. At the provincial level is the Department of Natural Resources and Environment (DONRE), the line agency of MONRE. Peoples Committees (PCs): The PC is the state representative organization at each administration level. It is responsible for implementing the state management functions in various fields (including forest and agriculture) within its locality. PCs at provincial (i.e. PPC) and district (i.e. DPC) levels are responsible for granting land use titles to organizations (PPCs) and individuals, households, and groups (DPC).
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Non Government Organizations


At present, there are both national and international organizations active in Vietnam. National NGOs, including professional associations, are currently operating under the umbrella of the Vietnam Union of Sciences and Technology Associations. International NGOs (INGOs) active in Vietnam are connected to the Vietnam Union of Friendship Organizations (VUFO) NGO Resource Center. Major INGOs in the forestry resources arena include: Netherlands Development Organizations (SNV), Care International, Actionaid, WWF, Helvetas, and Oxfam.

Community actors
Currently, around 25 million people live in or around forest areas. However, there are no statistics on how many people are in legal ownership of forests. There are also community-based organizations, such as water user groups, savings and credit groups, agricultural extension groups, and village development committees. Many of these have originally been established through development programs. In the case of ethnic minority people, there is often a customary structure of resource governance and internal reconciliation within each community, though these are not formally recognized by State law. In some cases, forest protection groups (FPGs) have been set up in villages with legal ownership of forest resources, yet again, no statistics is available on the total number of such FPGs.

Opportunities and strategic areas for development intervention


At the national level, there are important opportunities for RRI to make important contributions on the implementation and improvement of CPRGS, 2003 Land Law and 2004 FPDL. Major opportunities are:

Promotion of meaningful devolution of forest management to ethnic villages


Although the FLA process has been going rather fast in Vietnam over the last decade, the ownership of forest resources by local people remains rather nominal as restrictive regulations still govern the actual control of forests by local people. In ethnic villages where forests used to be governed by customary practices, such regulations are undermining not only the goodwill of the State to involve people in forest management but also the potential to contribute to local livelihoods of forest resources. There is an opportunity for RRI to contribute to make FLA more meaningful for ethnic people by providing them not only rights to the forest but also the necessary power to make decisions on forest resource management.

Assistance in developing practical procedures for harvesting of forest products legally


While the State has a policy of benefit-sharing with regard to allocated forests, the problem remains on how to put this policy into practice. At the field level, RRI can assist in developing practical procedures for local people to harvest forest products from their allocated forest in an official way. Procedures developed in the field can then be documented into simple guidelines, which can help improve the feasibility of the current policy.

Promotion of markets for forest products for the poor


The absence of access to markets has been one of the major constraints for the development of a cash economy among the poor. RRI can contribute to removing the state regulatory barriers that prevent upland people from commercializing allocated forests (such as unclear procedures for selling of timber from natural forests, or the use of production forests for agricultural purposes). In addition, it can help create market links between end-buyers and smallholder producers.

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Promotion of understanding and recognition of local land tenure systems among state officials
One of the barriers hindering legal recognition of forest management by indigenous people is that most state officials think of indigenous tenure systems as backward. RRI can contribute to improve the understanding of these officials about indigenous forest tenure systems through various awarenessraising activities.

Promotion of learning and experience-sharing among ethnic villages


RRI can contribute to create a forum for mutual learning and experience sharing among different ethnic communities within Vietnam as well as in the region. At the policy level, it can make significant contributions to the on-going work to develop community forest management guidelines for the whole country.

Valuation of forest resources


There is currently a lack of correct information on the real value of forests, and the actual contribution of forests to the national economy. The availability of such knowledge will provide basis for determining payment schemes for forest-dependent people for the foregone use of forests for conservation purposes.

Initial recommendations for collaborative action


Initially, RRI Collaborative Action should focus on three priorities: 1) promote forest devolution to local people/communities, 2) assist local people to benefit from the forest resources, and 3) improve the understanding of traditional resource tenure systems among local officials. Concrete recommendations are as follows:

Promotion of forest devolution


The new National Forest Strategy (NFS) 2006-2020, which will soon be finalized and approved, gives emphasis on the involvement of local people as real owners of forest. In addition, MARD is currently developing guidelines for the implementation of community forest management, following the directions set in the 2004 FPDL. RRI should take this as a starting point for its activities in Vietnam. The focus of RRI on forest devolution should be on: (i) legal recognition of the existing customary tenure systems at work; (ii) the development of a participatory approach through which local people/ communities can truly be involved in the process of FLA; (iii) development of clear, single and applicable benefit sharing regulation and standard operation procedure (SOP) for all actors involved, and (iv) documentation of the experiences, methodology and lessons learned in community forestry for integration into a practical manual or set of guidelines.

Facilitating benefits to local people


As rights to forest are not sufficient for people to acquire true economic benefits from the forest, RRI should also give priority to facilitate the sustainable acquisition and equitable distribution of forest benefits. Specifically, RRI should focus on: (i) development of practical silvicultural procedures to help local people harvest forest resources in a sustainable way; (ii) technical assistance in cultivating/ enriching (non timber) forest products, (iii) development of a clear and simple formal mechanism for local people to get legal permission for extraction and sale of forest products, (iv) establishment/ improvement of community-based regulations and organization, emphasizing on the equitable distribution of costs and benefits related to forests among villagers; and (v) facilitating access to markets for local people, particularly the poor producers.

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Awareness raising for state officials about forest tenure by ethnic minorities
In order for (local) state officials to be committed to help local people manage and benefits from forests, it is vital that they understand and respect local knowledge in forest resource management. RRI should give priority to raise their awareness through (i) documenting existing experiences from other within and outside the country where local people have successfully managed their forests, (ii) introducing and sharing those experiences with local officials, (iii) bringing key officials on study tours to successful models of community-based forest management, (iv) involving local officials in the work at community level.

Glossary of Selected Terms Used


5MHRP CPRGS DPC FD FLA FPD FPDL GSO INGO MB-PF MB-SF PPC SFE VHLSS Five Million Hectare Reforestation Program, also known as the 661 Program Comprehensive Poverty Reduction and Growth Strategy District-level Peoples Committees Forest Department Forest Land Allocation Forest Protection Department Forest Protection and Development Law Government Statistics Office International Non-governmental Organization Management Board of Protection Forest Management Board of Special-use Forest Province-level Peoples Committee State Forest Enterprise Vietnam Household Living Standard Survey

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Asian Development Bank (2003a). ADB PPTA Tree Plantation for Livelihood Improvement Project TA No. 3794-LAO Appendices- Final Report Volume I (A-J). MIDAS Agronomics Co., Ltd, Champa Lao Consulting Co. Ltd., Scandiaconsult Natura AB, CIRAD Foret. Pp. 201. Angelsen, A. and S. Wunder (2003). Exploring the Forest-Poverty Link: Key Concepts, Issues and Research Implications. Bogor: Centre for International Forestry Research Occasional Paper No. 40. Baird, Ian G. and Bruce Shoemaker (2005). Aiding or Abetting? Internal Resettlement and International Aid Agencies in the Lao PDR. Toronto: Probe International. Bugna, S. (2002). A Profile of the Protected Area System of Lao PDR. ASEAN Biodiversity. Jan-Mar, 2002: 46-52. Chamberlain, Jim (PPA, 2001). Participatory Poverty Assessment, Lao PDR. Vientiane: ADB, SPC, National Statistics Centre. Ducourtieux, O., J-R Laffort and S. Sacklokham (2005). Land Policy and Farming Practices in Laos. Development and Change. 36(3): 499-526. Dupar, M. and N. Badenoch (2002). Environment, Livelihoods and Local Institutions: Decentralization in Mainland Southeast Asia. World Resources Institute. Evans, G. (1990). Lao Peasants Under Socialism. New Haven, Yale University Press. Evrard, Olivier and Yves Goudineau (2004). Planned Resettlement, Unexpected Migration and Cultural Trauma in Laos. Development and Change. 35(5): 937-962. Forest Sector Strategy 2020 (FS 2020). Government of Lao PDR. LSUAFRP (2004). Agro-ecosystems Analysis and Agro-ecological Zoning. National Agriculture and Forestry Research Institute Lao-Swedish Upland Agriculture and Forestry Research Program. Vientiane. July 2004 Morris, J., E. Hicks, A. Ingles and S. Ketphanh (2004). Linking Poverty Reduction with Forest Conservation: Case studies from Lao PDR. IUCN, Bangkok, Thailand. 108 pp. National Growth and Poverty Eradication Strategy (NGPES). Government of Lao PDR. Sate Planning Committee (2000). Poverty in the Lao PDR: Participatory Poverty Assessment. Vientiane. Stuart-Fox, M. (2006). The Political Culture of Corruption in the Lao PDR. Asian Studies Review. 30: 5975. Stuart-Fox, M. (2004). Politics and Reform in the Lao Peoples Democratic Republic. Political Economy of Development Working Paper No. 1. Program on Civil Society and Governance, The College of William and Mary, Williamsburg, Virginia. Sunderlin, W., A. Angelsen, B. Belcher, P. Burgers, R. Nasi, L. Santoso, and S. Wunder (2005). Livelihoods, Forests and Conservation in Developing Countries: An Overview. World Development. 33: 9 (1383-1402). 106

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) UNDP (2004). Service Delivery and Resettlement: Options for Development Planning. C. Alton and H. Rattanavong. Vientiane, United Nations Development Program, April 2004. UNDP (2001). Human Development Report Lao PDR. UNDP, New York. Vandergeest, Peter (2003). Land to Some Tillers: Development-Induced Displacement In Laos. International Social Science Journal. 55(1): 47-56. Village Focus International (2004). Guidebook on Rights and Duties on Land and Forest Resources at the Village Level. Draft December 17, 2004. Vientiane. WFP (2004). Vulnerability Analysis and Mapping Lao PDR: Analysis of ForestDwelling Populations and Vulnerability to Food Insecurity at the Village Level. World Food Programme, Vientiane. White, A. and a. Martin (2002). Who Owns the Worlds Forests? Forest Tenure and Public Forests in Transition. Washington, D.C., Forest Trends. Whiteman, A., V. Noulak and J. Broadhead (2006). The Current and Potential Contribution of ForestBased Ecotourism to Poverty Alleviation in Laos. Asian Development Bank RETA No 6115-REG Working Paper. May 2006. World Bank/SIDA/Ministry of Foreign Affairs/Government of Finland (2001). Lao PDR Production Forestry Policy: Status and Issues for Dialogue. Volume 1 Main Report June 11, 2001.

Philippines References
Christian Aid and PIPLinks. 2004. Breaking Promises, Making Profits: Mining in the Philippines. London: Christian Aid and PIPLinks. Cordillera Peoples Alliance (CPA) and Dinteg (Cordillera Indigneous Peoples Legal Center). 1998. Kritik sa IPRA: Usa ka Kritik o Pagtuki sa Indigenous Peoples Rights Act (R.A. 8371) ug sa mga Lagda ug Regulasyon sa Pagpatuman niini. Computer-generated booklet, translated into Cebuano-Visayan by SILDAP-SIDLAKAN, Butuan City, 1999. Coronel, Sheila S. Journalism. 2002.

Memory of Dances.

Quezon City:

Philippine Center for Investigative

Doyle, Cathal, Clive Wicks and Frank Nally. 2007. Mining in the Philippines: Concerns and Conflicts. A report of a fact-finding mission, July to August 2006. Eder, James B. and Thomas M. McKenna. 2004. Minorities in the Philippines: Ancestral Lands and Autonomy in Theory and Practice, in Civilizing the Margins: Southeast Asian Government Policies for the Development of Minorities, ed. Christopher R. Duncan. Ithaca and London: Cornell University Press. Gaspar, Karl M. 1990. The Mindanao Lumad Social Movement . Davao: Alternative Forum for Research in Mindanao. Gatmaytan, Augusto B. Forthcoming. Philippine Indigenous Peoples and the Quest for Autonomy: Negotiated or Compromised?, in Negotiating Autonomy: Case Studies on Philippine Indigenous Peoples Land Rights, ed. Augusto B. Gatmaytan. 107

Review of Community Frameworks for Community-based Natural Resource Management in Selected Asian Countries (Draft) Gibbs, Christopher, Edwin Payuan and Romulo del Castillo. 1990. The Growth of the Philippine Social Forestry Program, in Keepers of the Forest: Land Management Alternatives in Southeast Asia , ed. Mark Poffenberger. Quezon City: Ateneo de Manila University Press. Legal Rights and Natural Resources Center (LRNRC). 2005a. Initial Comments on National Commission on Indigenous Peoples Draft Guidelines on Free and Prior Informed Consent. Quezon City: Legal Rights and Natural Resources Center Issue Paper no. 2005-2. ________. 2005b. Streamlining Environmental Impact Assessment in the Philippines: Implications for Human Rights. Quezon City: Legal Rights and Natural Resources Center Issue Paper no. 2005-3. Leonen, Marvic M.V.F. 1998. Indigenous Peoples Rights Act of 1997 (R.A. 8371): Will this Legal Reality Bring Us to a More Progressive Level of Political Discourse?, in Philippine Natural Resources Law Journal 9: 1, pp. 7-45. Martinez, Ma. Simeona, Erika Rey and Portia Villarante. Forthcoming . Indigenous Land Rights and the Agrarian Reform Program: The Buhid Mangyan Experience, in Negotiating Autonomy: Case Studies on Philippine Indigenous Peoples Land Rights, ed. Augusto B. Gatmaytan. Philippine Association for Intercultural Development (PAFID). 2000. Mapping the Ancestral Lands and Waters of the Calamian Tagbanwa of Coron, Northern Palawan, in Mapping the Earth, Mapping Life , ed. Ponciano L. Bennagen and Antoinette G. Royo. Quezon City: Legal Rights and Natural Resources Center. Reid, Ben. 2000. Philippine Left: Political Crisis and Social Change. Manila: Journal of Contemporary Asia Publishers. Sanz, Penelope C. The Politics of Consent: The State, Multinational Capital and the Subanon of Canatuan, in Negotiating Autonomy: Case Studies on Philippine Indigenous Peoples Land Rights, ed. Augusto B. Gatmaytan. Silliman, G. Sidney and Lela Garner Noble, eds. 1998. Organizing for Democracy: NGOs, Civil Society and the Philippine State. Quezon City: Ateneo de Manila University Press. Utting, Peter, ed. 2000. Forest Policy and Politics in the Philippines: The Dynamics of Participatory Conservation. Quezon City: Ateneo de Manila University Press. Vidal, Aida T. 2004. Conflicting Laws, Overlapping Claims: The Politics of Indigenous Peoples Land Rights in Mindanao. Davao City: Alternate Forum for Research in Mindanao. Legal Materials

Constitution
Philippine Constitution, 1987.

Legislation
Presidential Decree no. 705 (Revised Forestry Code), 1974. Republic Act no. 7942 (Philippine Mining Act), 1995. Republic Act no. 8371 (Indigenous Peoples Rights Act), 1997. 108

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Supreme Court Decisions Isagani Cruz and Cesar Europa v. Secretary of Environment and Natural Resources, Secretary of Budget and Management, and the Chair and Commissioners of the National Commission on Indigenous Peoples, G.R. no. 135385, 6 December 2000. Executive Issuances and Administrative Regulations
Department of Environment and Natural Resources Administrative Order no. 2, 1993. DENR Administrative Order no. 5, 2000. DENR Memorandum Circular no. 8, 2005. Department of Interior and Local Government Memorandum Circular no. 200, 2002. Executive Order no. 263, 1995. Joint Land Registration Administration-National Commission on Indigenous Peoples Memorandum Circular no. 1, 2007. National Commission on Indigenous Peoples Administrative Order no. 1, 2006.

Internet Sources
http://forestry.denr.gov.ph/stat2005.htm (accessed 11 August 2007). http://www.census.gov.ph/data/sectordata/2000/ie00pftx.html August 2007). (accessed 11

http:www.census.gov.ph/data/pressrelease/2005/ap2004ptx.html (accessed 11 August 2007). http://www.forest-trends.org/documents/publications/tenurereport_whoowns.pdf (accessed 10 August 2007). http://www.neda.gov.ph/devpulse/pdf_files/DevPulse%20-%20MDGs.pdf (accessed 11 August 2007). http://www.nscb.gov.ph/poverty/FAQs/default.asp (accessed 11 August 2007).

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a subsidiary regulation, or a set of rules and guidelines to implement an existing law or decree. Source: Cambodia at the Crossroads, Strengthening Accountability to Reduce Poverty, World Bank & IMF, December 2004. iii In Lao national legislation, the hierarchy of issued legislation follows from the Constitution, to National Assembly Laws, Presidential Ordinances, Presidential Decrees, Prime Ministers Decrees, Government Resolutions; and Ministerial Decisions. The distinction here is important as instruments such as ministerial decisions must be in accordance with laws, but technically at least, the former are open to complaints, challenges and modifications at the level of local implementation. iv This section benefited from some initial comments by Michael Dwyer. v The 1980s was a period of de facto radical decentralization, as the country shifted from strict central planning to a transitional economy, and control over budgets, revenues, expenditures and taxation were allocated to the provinces (of which logging revenues were a crucial component). From the 1990s to present, the LPRP has been engaged in an effort of political/administrative re-centralisation. Stuart-Fox (2006: 63) states however that Lao provinces continue to be the virtual fiefdoms of powerful province governors. vi In 2005 the National Assembly passed an anti-corruption law. Debate was relatively open, but whether the law will have any more effect than previous presidential directives on combating corruption remains to be seen (Stuart-Fox, 2006: 59). vii This is a relatively progressive aspect to the Lao Constitution when compared, for example, to Thailands uneven record of recognizing citizenship rights of many, similarly mobile, upland minority peoples. viii Protection Forests are defined in the FS 2020 (p. 11) as: Forests and forest land classified for the protection of watershed areas and prevention of soil erosion. They also include areas of forestland with national security significance, areas for protecting against national disaster and areas for protection of the environment. ix For example, if a village is located inside an NBCA, and has completed a LFA process, do areas designated as village production forest or village degraded forest for shifting cultivation supersede the overall national scale zoning as a NBCA-Conservation forest? x Household T-LUCs were not issued in all districts. xi A sympathetic reading of this paragraph again suggests that by using the English word obliged, the FS 2020 is attempting to remove the blame for shifting cultivation off of rural farmers, and is arguing for the state to become a more effective agent in assisting farmers out of swidden. It is unclear for the author how these linguistic intricacies translate in the Lao version. xii Stuart-Fox (2006: 59) notes: In 2005 the National Assembly finally passed an anti-corruption law. Debate was relatively open, but whether the law will have any more effect than previous presidential directives on combating corruption remains to be seen. xiii Although even for donor-based global civil society groups based in Laos, there are effective political forces, (which may have as much to do with self-regulation and the interests of organizations and individuals as any real state pressure), which tends to subdue their criticism. xiv Though for Baird and Shoemaker (2005: 15), attempts at distinguishing between voluntary and involuntary upland migration is not useful in a context where a policy induced Malthusian squeeze on access to agricultural land is ongoing in the uplands, linked for example, to the effects of LFA: It is not enough to simply ask whether people are resettling voluntarily or not; it is critical, rather, to ask what conditions, or changes in circumstances, led to people volunteering to resettle. Another perspective might further explore the pull dimensions of contemporary upland migrations in Laos, the opportunities of living closer to markets or urban areas, especially for village young people eager to find new opportunities for cash employment. xv This is not the situation with other natural resources including fisheries, where there is more innovation occurring. For a number of reasons forestry is a difficult sector to make changes in many developing countries, and Laos is no exception. xvi Coordination at a State level is facilitated by the State Development Council/Committees and the State Executive Council/State Cabinet.
ii

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The NFC is chaired by the Deputy Prime Minister, and comprises the Chief Ministers of the thirteen States. Also represented are the heads of the forestry services of Peninsular Malaysia, Sabah and Sarawak, and the relevant Federal Ministers (Natural Resources and Environment, Finance, Trade, Agriculture and Agro-based Industry, Plantation Industries and Commodities, as well as Science, Technology and Innovations). xviii National Forestry Policy 1978, para 3.9 and 3.15. xix Related Federal laws include the Water Enactment 1935, Land Conservation Act 1960, Environmental Quality Act 1974, Protection of Wildlife Act 1972, and the National Parks Act 1980. xx As affirmed by Clement Skinner J. in Madelli Salleh v Superintendent of Land & Surveys & Anor [Civil Appeal No. Q-01-94-00]. xxi The Attorney General cites (amongst others) the 1899 Fruit Trees Order, Rajahs Order L-7 1933 (Land Settlement Order), Rajahs Order No. VIII 1920, the Appendix to the Tusun Tunggu (Third Division) Order, as well as Secretariat Circular No 12/1939. State Attorney Generals Chambers (2007) xxii Outline and written submission in response to the appellants memorandum of appeal, Mahkamah Rayuan Malaysia, (Bidang Kuasa Rayuan), Rayuan Sivil No. Q-01-42-2001 & Q-02-504-2001) http://www.rengah.c2o.org/assets/pdf/de0093a.pdf xxiii Human Development Index used by the UNDP as a composite measure of human development xxiv Parenthetically, this is not the first time the law has provided a form of collectively-held title; the old pasture-land regulations allowed for communal grazing areas, the agrarian reform program allows for communal titles, and at a certain level, the CADC, CBFM and the social forestry or stewardship contracts are forms of communal title. xxv Although the IPRA was enacted in 1995, it was only implemented in 2001. xxvi Here, the report apparently refers to areas under actual forest cover, since DENR statistics count 14 million has. as classified forestland. xxvii These figures are tentative, however, given the lack of integrity and reliability of DENR statistics; and the fact that logging concession-areas may include non-forested areas, and plantation contracts can be, and are awarded to areas outside the 6.6 million has. of forested lands. xxviii DAO 2 introduced a distinction between ancestral lands and ancestral domains. The former referred to individual or family-owned lands used mainly for residential and agricultural purposes. Ancestral Domains covered ancestral lands as well as the natural resources therein. Though it is not specified in DAO 2, the assumption and practice has been that ancestral lands are small in area and owned by individuals or families; while ancestral domains are large in area and owned communally by a community, as a group. These concepts were carried over into the IPRA, which adopted the basic framework of DAO 2. xxix The figures here are based on aggregated 2005 DENR data on Tree Farms, Agro-forestry Farms, Rattan Permits, Socialized IFMAs and Private Forest Development Agreements. xxx Biliran is a new province, and as such, its mention in DENR statistics is erratic. Also, there are no official land classification figures for the province, to allow similar computations. xxxi The La Via Ruling provides that a duly-approved CADC management plan can be used by the community as its resource utilization permit, excusing them from having to apply for one from the DENR. There may be a trend towards requiring CADC and CADT holders to apply for RUPs. xxxii Fermented tea is a popular snack in northern Thailand, typically chewed with salt.

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