Property Rights Issues In Common Property Regimes For Forestry

Author:John Bruce
Profession:Legal Vice Presidency, the World Bank
Pages:257-306

    John W. Bruce is senior counsel with the Environmental and Socially Sustainable Development and International Law Practice Group, Legal Vice Presidency, the World Bank. Previously he was director of the Land Tenure Center and adjunct assistant professor, Department of Forest Ecology and Management, University of Wisconsin-Madison; country representative/project specialist in customary law, Sudan Field Office, the Ford Foundation; and legal institutions advisor, Ministry of Land Reform and Administration, Ethiopia while serving with the U.S. Agency for International Development. He taught at the faculty of law, University of Khartoum, Sudan and has consulted for numerous international organizations and national governments. He has published over 30 articles and monographs (alone or with others) and has co-edited Searching for Security of Land Tenure in Africa (with Migot-Adholla, Kendall/Hunt 1994), and Whose Trees? (with Louise Fortmann, Westview Press 1988). John Bruce holds an S.J.D. degree from the School of Law, University of Wisconsin-Madison, a J.D. degree from Columbia University, and a B.A. degree from Lafayette College, Pennsylvania.The author thanks the Land Tenure Center of the University of Wisconsin-Madison and the Community Forestry Programme of the United Nations Food and Agriculture Organization (FAO) as well as the World Bank's Environmental and Socially Sustainable Development and International Law Practice Group for their support with the research of this article. The author gratefully acknowledges permission granted by the Food and Agriculture Organization of the United Nations (FAO) for permission to reproduce from John Bruce, Legal Bases for the Management of Forest Resources as Common Property in FAO Community Forestry Note No. 14 (©FAO 1999).

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1. Introduction: Forestry and Community

Recognizing the need of local communities to utilize forests to generate an income, there has been a shift in government policies and development aid from mere conservation to sustainable use and management.1 As the general forestry policy shifted, so too the World Bank has increasingly focused on poverty eradication and environmental stewardship, and natural resource management has taken its place alongside agriculture as a major concern in rural development. The growing focus on poverty eradication has directed attention towards natural resources management policies and project designs that meet the needs of those in poverty, as well as demands of the larger national and global communities. Nowhere is this shift in emphasis clearer than in the World Bank's work on forestry.2 An earlier generation of World Bank-funded projects focused on commercial production, often for export and with foreign exchange needs very much in mind. Later, conservation concerns predominated. While concerns for the benefit of larger groups or legitimate national interests are still very much in play, the World Bank is now anxious to ensure that forestry projects also make significant contributions to local needs and livelihoods.

Today, designers and managers of development and conservation projects are seeking to establish or support community resource management as part of their projects. Disillusioned with the performance of the state as a resource manager, they now commonly resort to greater control of resource use by local communities. Donors and governments are increasingly opting for smaller, more participatory projects. They often find communities using land as commons, and there is a particular interest in exploring more thoroughly the role which community-managed Page 258 commons can play in community forestry.3 Numerous countries have substantial experience in community forestry and associated property arrangements, and these initiatives have been reviewed.4 The World Bank has supported projects of this nature and judged them successful.5

2. Community Forest Projects and Programs

Community forest projects and programs can vary from one country to the next and achieve differing degrees of success in strengthening community access to and use of forests. Two examples are described below.

2.1. Two Examples

The Laos Forest Management and Conservation Program (FOMACOP) is supported by the World Bank, the Government of Finland, the Global Environmental Facility Trust Fund, and the Laotian Ministry of Agriculture and Forestry and Department of Forestry.6 It has launched a pilot program for participatory management of production forests in Savannekhet and Khammaoune Provinces, encompassing 60 villages, 19,000 people, and 100,000 hectares of natural forest.

Historically, the law respected traditional rights of local communities. But protections were lost during the communist period, and today Laotian law does not recognize the extensive customary rights of local communities in forests. The new Forestry Law does however allow the state to devolve state-owned forests to local communities for management according to state-approved management plans, and to compensate them for their management activities.7 Though there is some re- Page 259 spect for customary forest rights in practice, there have been instances of officials granting cutting permits to outsiders against the wishes of local communities.

FOMACOP's Forest Management Sub-Program has used the opening provided by the 1996 law to work with the villagers in several ways. It helped them organize themselves into 33 Village Forestry Associations (VFA) with approved articles of association, involving 5,000 members from 41 villages, and supported VFA interaction with the Department of Forestry in the preparation of acceptable forest management plans. It also assisted the VFAs in concluding 50-year management contracts with the Department of Forestry, which include management plans. The villages and ministry staff have undertaken boundary demarcation and prepared land use maps and 10-year land use plans. They have completed pre-harvest inventories, prepared ten-year forestry-management plans and operational plans, tree marking, supervision of log felling and grading, and post-harvest assessments. The management plans are based on low-intensity harvesting, and on felling cycles of 5 to 10 years, with only one or two trees cut per hectare.

Sixty-nine percent of timber revenues for 1998-1999 went to the government in the form of royalties and other taxes; 19 percent went to logging contractors for the felling of trees and transporting of logs, and the remaining 12 percent went to the villages. The villages spent half of their revenues on sustainable forest management, including wages to villagers for labor and VFA administration costs. The remaining half was left available for development, welfare support, investments, and reserves, and averaged approximately U.S.$ 1,700 per village. The pilot experience has been promising, and evaluations have given it good grades for efficiency and sustainable resource use. However, the division of income from timber sales remains heavily skewed in favor of government, reflecting government's ownership of the forest and lack of recognition of customary rights. Most critically, the program is based on delegation of state authority by contract rather than secure vesting of rights of management in the associations. This has not prevented the creation of an attractive incentive structure for local participation. It remains to be seen whether the contracts will be consistently honored, and cutting by outsiders not allowed, especially when the project ends. Beyond the ten-year time frame of the current management plans, the sustainability of the program is subject to decisions made by the officials of the day.

2.2. Property Rights Strategies in Community Forest Projects and Programs

Property rights strategies are critical for these projects. Forests are among the land-based natural resources that development literature often denominates as Page 260 "common property resources" or "common pool resources" because, in the developing world, the use of forests is frequently shared by one or more groups for hunting, gathering, firewood and timber extraction, and sacred purposes. Forests may be managed by community institutions. Owing to their physical extent and how frequently various groups make use of them, common-pool resources can be quite difficult to control and manage. Some are managed in a sustainable manner by effective community institutions and conventions, while others fall into the category of "open access," the free-for-all that Hardin has in mind when he argues that individual users of a common will in the absence of control inevitably over- utilize and degrade the resource.8

Governments are often confronted with choices as to whether to use common property...

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