Chip Fay - Review of Legal Frameworks for NRM

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Review of Legal Frameworks for Community-based Natural Resource Management in SelectedAsian Countries (Draft)

September 2007

Chip Fey - EditorWorld Agroforestry CentreBogor, Indonesia


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

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Acknowledgements

In addition to the sources cited, this report draws on three main bodies of information, compiled duringthe Rights and Resources Initiatives Listening, Learning and Sharing programme. It includes informationfrom a series of country studies carried out by Keith Barry, Tan Quang Nguyen, Adrian Wells, RobertOberndorf, Naya Sharma Paudel, Myrna Safitri, Tim Forsyth, and Augusto Gatmaytan. It also broughttogether the wealth of information provided from the two regional workshops organised by RRI membersICRAF, RECOFTC with the assistance of the Forest Peoples Programme. The first workshop was hosted byRECOFTC 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, thePhilippines, 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 andcontacts of these individuals can be found in the appendices. Addition thanks to Tony Quizon forreviewing the manuscript.

This work was funded by the Ford Foundation through a grant to the International Union for theConservation 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 andResources Group, in Washington DC, notably Andy White, Arvind Khare and William Sunderlin, for helpingto steer the process. We would also like to thank the International Alliance of Indigenous and TribalPeoples of the Tropical Forests and the Asia Indigenous Peoples Pact for helping us identify suitableparticipants. 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.


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Table of ContentsAcknowledgements......................................................................................... 2

The Rights and Resources Initiative............................................. ......................... 5

Listening and Learning and Sharing: Background ...................................................... 6

CAMBODIA ................................................................................................... 8Legal Framework on Ownership and Control over Forest Areas and Land ................................... 8Status of Land/Forest Ownership and Tenure....................................................................10Main Issues in Natural Resource and Local Rights: The Government Perspective .........................11Issues on Natural Resource and Land Rights: The Civil Society Perspective................................12Efforts at Tenure Reform ............................................................................................12Cases on Tenure Reform .............................................................................................13Poverty and Forests ...................................................................................................15Prominent Threats to Local Rights and Livelihoods .............................................................16Main Governmental and Civil Society Actors in Forestry .......................................................17

Efforts at Decentralization .......................................................................................... 18Some Key Opportunities to Advance Tenure and Poverty Issues..............................................19

Indonesia............................................................................ ........................ 20The Legal framework on ownership and control over forest areas and land ...............................20Cases in tenure reform ...............................................................................................24Poverty and forests ...................................................................................................25Prominent threats to local rights and livelihoods ...............................................................26

Laos.................................................................................. ........................ 27The legal framework on ownership and control over forest areas and land ................................27The Legal Situation and Forest-Land Management in Laos ..................................................28

Status of land/forest ownership and tenure .....................................................................29Main issues in natural resource and local rights: government perspective .................................31Issues on natural resource and land rights: civil society perspective........................................ 32Efforts at tenure reform .............................................................................................34Poverty and forests ...................................................................................................37Key Government Initiatives or Programs to Reduce Poverty in Forest Areas ...............................39Prominent threats to local rights and livelihoods ...............................................................40Documentation of Lao Social Movements .........................................................................43Some key opportunities for advancing tenure and poverty issues............................................47

Malaysia ............................................................................. ........................ 50

The legal framework on ownership and control over forest areas and land ................................50Status of land/forest ownership and tenure .....................................................................51Inconsistencies between the national legal framework and local government legal frameworks (i.e. ina federal system)...................................................................................................... 55Main issues in natural resource and local rights: government perspective .................................56Issues on natural resource and land rights: civil society perspective........................................ 57Efforts at tenure reform .............................................................................................58Poverty and forests ...................................................................................................58Prominent Threats ....................................................................................................58


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Main Governmental and civil society actors in the rights and resources arena ............................ 59

Nepal ................................................................................ ........................ 60The legal framework on ownership and control over forest areas and land ................................60Status of land/forest ownership and tenure .....................................................................62Main issues in natural resource and local rights: government perspective .................................62

Issues on natural resource and land rights: civil society perspective........................................ 62Efforts at tenure reform .............................................................................................63Poverty and forests ...................................................................................................64

The Philippines............................................................................................. 68Legal framework governing rights to land and resources ......................................................68Land and forest ownership and tenure ............................................................................ 70Resource and local rights problems according to the state ................................................... 70Resource and local rights problems according to civil society ................................................71Overview of tenure reform efforts .................................................................................72Case-studies: Impact of tenure reforms.......................................................................... 73

Forests and poverty ...................................................................................................74Prominent threats to local rights and livelihoods ...............................................................75Main actors in social movements and forestry initiatives ...................................................... 76Key institutional players in social movements ...................................................................77Linkages between social movements and the broader political context ....................................78Technical capacity gaps within social movements ..............................................................78Policy context..........................................................................................................79Key opportunities ..................................................................................................... 80

Thailand............................................................................. ........................ 82The Legal framework on ownership and control over forest areas and land ...............................82

Status of land/forest ownership and tenure .....................................................................85Main issues in natural resource and local rights: government perspective .................................86Issues on natural resource and land rights: civil society perspective........................................ 87Efforts at tenure reform .............................................................................................88Poverty and forests ...................................................................................................91

Vietnam............................................................................. ........................ 94The legal framework on ownership and control over forest areas and land ................................94Status of land/forest ownership and tenure .....................................................................95Main issues on forest resources and local rights: government perspective .................................96Issues on natural resource and land rights: civil society perspective........................................ 97

Efforts at tenure reform .............................................................................................98Specific cases in tenure reform.....................................................................................99Forests and poverty ................................................................................................. 100Prominent threats to local rights and livelihoods ............................................................. 101Main governmental and civil society actors in the forestry rights and resources........................ 102Opportunities and strategic areas for development intervention .......................................... 103Initial recommendations for collaborative action ............................................................. 104

References................................................................................................ 106


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The Rights and Resources Initiative

The Rights and Resources Initiative (RRI) is an informal coalition of organizations dedicated to advancingthe jointly agreed goals and activities of the Initiative. It consists of various organizations that have beendiscussing 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 forthe Initiative. ACICAFOC and FPCD joined the Initiative during the interim period between October 05and 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 communityorganizations 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 effectiveand efficient intervention on forest tenure and governance globally.

The RRI members supports communities, national and local research, advocacy and outreachorganizations, 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 securerights 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 hashad proven impacts in key countries, including China and Indonesia, and among strategic constituenciesthat include community leaders, leaders of public forest agencies, and intergovernmental institutionssuch as the World Bank, the ITTC and the FAO.

The RRI is a strategic coalition, going beyond the traditional set of international development actors todirectly involve a wide spectrum of organizations, each of which occupies a critical niche and provides acritical perspective in the larger chain of actors necessary to advance change. Partners span the rangefrom research to advocacy; from local community to international; and from human rights toconservation. And Partners span the globe. Representatives for Asia, Africa and Latin America ensureregional expertise and political connections, and several based in Europe and the United States engagewith 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 thetargets, and held directly accountable to the coalition Partners. The value proposition of the Initiative isthat 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.


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Listening and Learning and Sharing: Background

The Listening, Learning and Sharing (LLS) exercise was designed and carried out to further ground theRRI partners in the regions and at the national and local levels of key countries. The primary objectiveswere four:

1. Create or strengthen linkages between RRI partners and key players at the regional, nationaland 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 strategiesthat will form the basis for future RRI activities in Asia;

3. Facilitate the international expression of local voices or communities who are marginalized ordisenfranchised by decision making processes that concern land use, forest area classificationsand forest management priorities.

4. Develop a RRI long-term Asia strategy based on a solid and mutual understanding of the rolesand responsibilities of Initiative members

The Southeast Asia office of the World Agroforestry Centre (ICRAF) worked with current RRI partners andselected individuals in the Asia region in the development of a regional overview of the main legal andregulatory questions concerning of ownership or access to and management of land-based naturalresources.

The main issues that are common through the regional are six:

1. Land use classifications that emerge from national planning processes rarely coincide withlandscape realities. Large areas are classified as forest lands and land use options for local peopleare restricted even through there is little or no tree cover or the need to create environmentalservices that are particular to forest ecosystems. Conflict between local people and governmentplanning and forestry agencies is therefore common (as well between local and nationalgovernments). This points to a need, in most countries looked at, for a process of land userationalization, one that prioritizes achieving a rational of combination of actual forest areas andagriculture.

2. Land consolidation by forest industries and/or agribusiness is increasing rapidly, threatening thelivelihoods and futures of millions of small farmers and their communities. Palm oil plantationsand large tree farms for pulp used in paper production are the most prominent examples. Newattention being given to the production of bio-fuels and/or carbon offset schemes will likely leadto 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 conflictover 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 thatcreated many of these protected areas. For actual natural forests in need of protection, theparticipation of local, particularly indigenous communities in the conservation planning andmanagement 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 toownership or use has been weak. This, in most countries, can be traced to a lack of governmentaccountability and transparency as well dysfunctional judicial systems.


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5. The recognition of the rights of indigenous peoples rights is either missing or incomplete in allcountries surveyed. Even when the legal framework supports recognition, delineation proceduresand experience is weak.

6. Concerning community-state relations, government regulations often make it difficult orimpossible to transport and market timber and other forest products.

The following eight country studies were carried out as background material for RRI members and othersinterested in getting a relatively quick picture of the situation in each country. The format was designedto 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 assessand understand the realities, challenges and opportunities in tropical forest countries around the world. The program, called the RRIListening, 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, civi l 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 organizedaround the three key regions in which RRI is engaged Africa, Asia and Latin America. In a series of scoping studies andparticipatory consultations, RRI Partners identified key trends, issues and opportunities in policy, tenure and livelihoods in forestareas.

The dialogues, workshops, background papers and synthesis reports prepared as part of the LLSL inform RRI strategy and planningin each region and created new and stronger links between RRI Partners and local civil society organizations. A selection of thesynthesis 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 presentedhere are those of the authors and are not necessarily shared by Rights and Resources Initiative or the Partners in the RRI coalition.


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CAMBODIA

Legal Framework on Ownership and Control over Forest Areas andLand

The primary pieces of legislation and regulation that govern issues of access, use and tenure rights tostate 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) andownership 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 anymechanisms for land use planning and management, but it does call for the enactment of a sub-decreeon state land management that was recently passed in 2005.

With regards to the ownership rights of minority indigenous groups, provisions within the Law aresomewhat vague, and the subsidiary regulations for implementing these provisions and for providingclarity have not been put into place. It appears that there is not much political will on the part of theGovernment to push this regulatory agenda.

Forestry Law (2002)

The Forestry Law outlines the general rules and regulations related to the administration andmanagement of the Permanent Forest Estate within Cambodia. The law gives primary jurisdiction overthe Permanent Forest Reserve to the Forestry Administration (FA). The FA is also given jurisdictionalauthority 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 (privateforest). 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 tenureissues. 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 thecreation and management of community forests, whereby communities are granted an area of thePermanent Forest Reserve to manage and derive benefits from. Unfortunately provisions within theForestry 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 managementscheme.

The Forest Law clearly states that the State Public Forest Lands are owned by the State. Provisionsregarding 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 hasnot 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 othernatural resources located therein, which the main utilizations are the production of Timber Products andNon-Timber Forest Products, and other forest services. Lands to which this law does not apply include allland designated by the State as permanent agricultural land, including: farms, idle land to be designatedfor other agriculture production than timber production, industrial areas, and land for urbanization andconstruction.


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Royal Decree on Protected Areas (1993)

This Royal Decree creates the system of MOE Protected Areas, but does very little in regards to themanagement of these areas. The Royal Decree has been criticized for its judicial legitimacy, though thathas been handled through the passage of the Forestry Law; essentially the Forestry Law is themechanism 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 Prakas i which will be used to define the access, use and management rights of those communities whoselivelihoods 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 wellas land dispute resolution. This commission will be very important in terms of settling disputes whereindividuals are claiming ownership of what could potentially be state property, such as areas of thePermanent Forest Reserve that have been encroached upon. This sub-decree creates a multi-layered setof Cadastral Commissions at the district, provincial and national levels for handling land disputes. ThePrakas on guidelines and procedures of the Commission provides more detailed procedural steps fordispute resolution. Unfortunately these bodies have not functioned well, and are not established in allareas 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 mechanismwhereby the government may grant state private land to eligible heads of poor families that, dependingon the circumstances, are in need of the land for residential or family farming purposes. The social landconcessions 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 proceduresfor community forestry within Cambodia. Detailed procedures and requirements necessary forimplementation will be laid out in the guideline Prakas that are in final drafting stages at the moment. (Itis expected that the guideline Prakas will be enacted by the Ministry of Agriculture, Forestry and Fisheriessometime 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 managementauthority of the Forestry Administration.


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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 upmechanisms for handling disputes during this process. There are concerns that this Sub-decree overlapsand conflicts with the provisions in the Sub-decree on Demarcation and Registration of the PermanentForest 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 thecriteria, procedures, mechanisms and institutional arrangements for initiating and granting new economicland concessions; for monitoring the performance of all economic land concession contracts; and forreviewing economic land concessions entered into prior to the effective date of this sub-decree forcompliance with the Land Law of 2001.

Agricultural land concessions in Cambodia can include tree plantations. It is unclear if this sub-decreewould apply to Production Forest Areas within the Permanent Forest Reserve (State Public Land) asdefined in the Forestry Law, since the Land Law states that these economic land concessions can only begranted on areas classified as State Private Land. There are also provisions related to the resettlementof 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 weredestroyed during the period of the Khmer Rouge. State Land (both State Private and State Public) hasnot been delineated, demarcated and registered, while efforts at delineating, demarcating and registeringprivate 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 underprovisions in the Land Law have not been registered or formally recognized by the central governmentdue to a lack of political will and a noted absence of subsidiary regulations that are necessary toimplement 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 enablingCommunity 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 underthe previously mentioned relevant provisions of the Land Law).

Those entities with concession agreements seem to be in a better position in terms of power andeconomics. It seems likely that remaining Forestry Concessions will be cancelled, but there are noguarantees in this regard. The new Economic Land Concession Sub-Decree may bring some clarity to thesituation regarding land concessions in Cambodia, but at the moment it appears that land concessionsare being granted with little regard to existing legal requirements.

The information on Cambodia in the Forest Trends document, Who Owns the Worlds Forests , is verylimited and woefully out of date, since it is based on a report from 1998. There are not 33 forestryconcessions in Cambodia; most of the concessions have been cancelled or abandoned, all have beenexisting within an ongoing logging ban for several years (though logging still continues, as evidenced by


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the availability of wood for the domestic market). Also, the cited document does not take into accountmore recently granted land concessions, many of which exist in areas that could or should be consideredas part of the Permanent Forest Reserve.

In some ways data from the FAO Forest Resources Assessment is more useful since it states that dataneeds 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; andreferencing 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 theCommunity 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 statesthat data on Cambodian forests are often inconsistent and unreliable. Anyone considering engaging inthis 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 powerand money (clearing forested areas and claiming it as private), illegal logging, and small-scaleencroachment on forest lands by the large number of landless individuals in Cambodia. This makes theissue of knowing who owns what that much more difficult since the situation is quite fluid.

Main Issues in Natural Resource and Local Rights: The GovernmentPerspective

From the perspective of the Royal Government of Cambodia (RGC), the main issue related to naturalresource and local rights problems in the forestry/land arena would have to do with illegal clearing of theforest 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 encroachmenton State Forest land, and the Prime Minister has issued several directives at ending the chaoticdestruction 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 withconcessions that are granted, than with protecting the rights of local communities that find areas of landthey consider to belong to them have been included in a concession agreement. This is the case not onlywith the land itself, but with the natural resources on the land, such as resin trees that are customarilyused by many forest-dependent communities for income generation.

In some ways there is also conflict within the government itself. While the Forestry Administration withinthe Ministry of Agriculture, Forestry and Fisheries is quite interested in maintaining as much area aspossible 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 non-State Public but State Private so they could be used for Economic Land Concessions, Social LandConcessions, or sold.

The RGC seems to have little interest in addressing the issue of minority indigenous land rights as spelledout in the Land Law, including the granting of large areas of land under communal titles. Many minorityindigenous communities are coming under increasing pressures to sell land individually or in splintergroups; some have experienced outright eviction from lands that they have traditionally used.


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Issues on Natural Resource and Land Rights: The Civil SocietyPerspective

Civil society, depending on the organization, is generally concerned about securing access and use rightsfor 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 forsubsistence needs, in addition to concerns about protecting environmental services and biologicaldiversity. Community based natural resource management and livelihoods development are importantthemes in the Cambodian context.

There is an interest in securing the land ownership rights of minority indigenous groups, and there hasbeen pressure on the government to enact the necessary subsidiary regulations for implementing therelevant 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 inparticular the poor. Most local NGOs are relatively young, inexperienced, and constrained by the familiarproblems of collective action. There is little tradition of consulting NGOs prior to enacting an importantlaw or developing new policy, unless there is donor pressure for such consultations. Local NGOs rely oninternational ones to raise issues with government through their influence with bilateral donors. Heavydependence on foreign funding tends to shift NGO accountability from the poor in Cambodia to foreignfund providers. The NGOs also need to practice what they preach by being responsible and ensuring thattheir management and finances are subject to the same degree of transparency and accountability thatthey demand of government." ii

Efforts at Tenure Reform

The complicated land tenure situation in Cambodia can be traced through the land policies of successiveregimes. During the Khmer Rouge period (1975-1979), land tenure and cadastral records were destroyedand private property was abolished, and all land became vested in the State. Following the Vietnameseinvasion and the defeat of the Khmer Rouge (1979-1989), all land officially belonged to the State andcollectives that occupied and used land for agricultural purposes were established. By 1989,collectivization of agriculture had failed. The government began reforming the economy and reintroducedprivate property rights for residential plots and the right to occupy and use cultivation land. Collectivizedagricultural 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 didnot provide a solid platform for full tenure for effective land management, nor did it result in systematicdocumentation and registration of landholdings. Around four million applications for land certificates weremade, 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 August2001. This law establishes for the first time the right of private ownership for both residential andagricultural holdings. On paper, this law is a relatively comprehensive instrument to protect and regulateprivate and public interests in land. It clarifies rights issues, recognizes communal land rights forindigenous people and allows for systematic land registration and records maintenance. Provisions arealso made for a land distribution mechanism (social concessions) and the law puts a ceiling of 10,000hectares on industrial agricultural concessions. Yet, implementing even basic provisions in the land law


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will take many years and will challenge elite interests that have benefited from the lack of transparencysurrounding landholding. In addition, true progress in implementing the law is dependent on courtsoperating 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 grantedto 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 foragriculture 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 landregistration in Cambodia and strengthen land management capacity. A second phase beginning in 2007 isalso planned.

It should be recognized that just because the 2001 Land Law and its subsidiary regulations provide forsecure, equal and enforceable land rights to all, this does not mean that the legislation is fullyimplemented. The proportion of landholders with legal titles to their land is still small. There is also alack of maps, land registers and a functioning land administration. The unclear ownership situation has adamaging impact above all on the economic opportunities of the poor. Reports from both law courts andresearch on land rights bear witness to the continued expulsion of poor peasants by the military, holdersof public power and some actors in the emerging private sector. The overall legal framework governingland, forestry, fisheries and water is incomplete, and compounded with weak enforcement of existinglaws 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 forCommunity Forestry, whereby a community may be granted the right to manage and benefit from anarea 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 theterms of the agreement. While the Community Forestry Sub-Decree was enacted in late 2003, it has stillnot been implemented due to the fact that the draft Community Forestry Guidelines Prakas has yet to beenacted within the Ministry of Agriculture, Forestry and Fisheries. Likewise, there is currently a draftProtected Areas Community Prakas within the Ministry of Environment that will be applicable to thecountrys 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, inthe 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 38percent; crop yields by 63 percent; and household consumption by 24 percent. The main reason is that awell-defined property right improves private appropriability of returns. Owners with secure land titles aremore willing to invest in higher-risk and potentially higher-payoff activities, such as planting perennialtrees and diversifying into vegetable and cash crops.

Unfortunately only a small portion of privately claimed land has been properly titled to date through theLand Management and Administration Project; as 80 percent of the rural households that owned landwere without land titles in 2004. In addition, indigenous minority communities seeking community titlesunder provisions in the Land Law have not benefited, due to the lack of subsidiary regulations in place.


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As such, a vast majority of Cambodias rural landholders have what may be considered as tenuous tenuresecurity, 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 providing70-year leases covering 889,399 hectares of land to 49 private companies. This was ostensibly motivatedby a perceived need to commercialize agriculture; yet in practice, only a few (about 10 concessions) areoperational.

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 responsibleinstitutions (the cadastral commission and courts) are often helpless. A number of concessions appear tobe 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 theGovernment, make rent payments or pay taxes, suggesting that thus far the scope for using concessionsto collect additional revenue has been quite limited. Suspicion over the motives for awarding theseconcessions 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 areprimarily, as the name suggests, social or distributional, there is a strong economic rationale too. As inother countries, it appears that rural households in Cambodia are small but efficient agriculturalproducers. 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 clearrationale in terms of improved productive efficiency.Increased land utilization compared to the existing economic concessions will boost aggregate economicactivity. However, the implications of the findings on small farm productivity go beyond simply makingthe case for speedy implementation of the social concession policy. More broadly, the inverse relationshipbetween 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 Cambodianagrarian structure. Although there may be a case for large commercial farms under certain agro-ecological and market access conditions, this will need to be established on a case-by-case basis. Todate, the implementation of this policy has been extremely slow and difficult, partially due to a difficultyin finding land that is not contested in some way.

An example of the potent ial growth benefits of the equitable distribution of land is that of Malai District inCambodias 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 allocationinitiated a boom in non-rice cultivation; the magnitude was so significant that Cambodias remarkablegrowth 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 (orcomplement) to forest concession management. Community forestry is envisioned as an effort to support


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and empower communities to continue their traditional use of forest resources, encourage sustainablepractices, and support initiatives for socio-economic development and poverty reduction. Communityforestry is also intended to harness local knowledge and skills regarding forest management and toensure communities have a stronger voice in forestry sector decision-making. Signs of increasing supportfor 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 CommunityForestry 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 invery preliminary stages of organizing community forestry. Many of these groups have support fromOxfam GB, NGO Forum and other NGOs. The size of these forest areas is largely unknown at presentsince many projects are in initial planning stages and/or seeking to establish community forests withinconcession areas.

Unfortunately these existing pilot sites remain just that, pilot sites. They do not have formal recognitionfrom the government. It is hoped that these sites will enter into formal Community Forestry Agreementswith 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 inrecent years, affecting particularly heavily populated areas. Forest cover in Cambodia was once estimatedto 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 likelyto 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 ratesmay 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 componentof 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 fibrousmaterial contribute to household cash income and nutrition intake.

It is commonly perceived that incomes from forestry activities are declining a fact documented by manyempirical studies and recent land-use mapping exercises, and reinforced by a recent study of perceptionsof commune heads (Danida, 2005). Perceived loss of forests was more severe in the Mountain/Plateauregions 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 inareas surrounding (expanding) villages, and alongside new road corridors. Conversion of forests toagricultural use is occurring with little regard to the optimum use of land or soil quality. Of the 1.3 millionhectares of forest land cleared between 1997 and 2002, 37 percent was of low soil quality, compared to19 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 16percent in 1999 and 20 percent in 2004. An additional and growing number of households are near-landless, 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 theydepend upon. This can take many forms from illegal cutting of resin trees, illegal conversion of forestto 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 forestareas to either economic or social concessions, etc. The loss of forest resources affects rural ethnicKhmer 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 themaintenance of a database of reported land conflicts, which enables the analysis of trends up to April2005. In 2004, land disputes rose by a reported 50 percent, which may be seen to reflect the fact thatthe Land Law had not been strictly implemented. Land conflicts, either within a community, betweencommunities, or between a community and outsiders can have a negative impact on livelihoodsdepending on the circumstances involved, but especially if it due to illegal land grabbing. It is reportedthat there has been an increase in land grabbing in Cambodia, partially due to an increase in landspeculation 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 illnessesare both devastating experiences that entail similar magnitudes of economic damage (averaging a fewhundred thousand Riels), households find it harder to cope with illness. The negative consequences fromhealth shocks are more damaging to both immediate and long-run livelihoods because they require animmediate lump-sum of money for urgent treatment. Because most households do not have sufficientsavings (and rural credit markets do not operate well), households are often forced to resort to distresssales of productive assets (including land) and/or enter long-term debt, reducing their future incomestreams and increasing their non-consumption expenditures, respectively. This broadly confirms thefindings of earlier Oxfam studies which found that half of all distress sales, or around 40 percent of casesof once-landowning families losing land, involved health crises. (Yagura 2005; Biddulph 2004; Ballard andSo 2004)


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Main Governmental and Civil Society Actors in Forestry

Government

Ministry of InteriorResponsible for local government units (province, district and commune). Commune Councils aredemocratically elected, and carry out an annual commune development planning process.Natural resources management fits within their mandate, though they are explicitly excludedfrom decision-making related to forest lands in the country. There are initiatives to change thisand to create a form of partnership forestry where the Commune Councils would have a moredirect role in forest resource management. The Department of Local Administration (DOLA) isresponsible for issues related to Commune Council administration.

Ministry of EnvironmentResponsible for managing the countrys Protected Areas system (not to be confused withProtection Forest areas, which are part of the Permanent Forest Reserve and managed by theForestry Administration). Also responsible for reviewing Environmental Impact Assessments. Willbe 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. Primaryministry responsible for implementing the State Land Management Sub-Decree and Social LandConcessions. 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-makingrelated to forest management, agricultural concessions, fisheries management, etc. The Forestry

Administration is within this ministry.

Forestry AdministrationResponsible 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 alsoco-chair of the Technical Working Group for Forestry and Environment), DIFID (RuralLivelihoods), GTZ (Rural Livelihoods, Decentralisation, Land Management), JICA (the only majordonor still directly involved with the Forestry Administration, large training program and someinvolvement in issues related to Community Forestry), ADB (multiple initiatives), WB (multiple

initiatives, including Land Management and Administration Project, but currently freezing fundson projects due to concerns regarding corruption).

NGOs and Related Organizations Cambodian Development Resource Institute (policy think-tank that has a natural resourcescomponent and has published a number of good reports), Community Based Natural ResourcesManagement Learning Institute (a relatively new research and project implementationorganization 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 withthem on indigenous land rights issues), Community Forestry International (working with local


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NGOs to assist with community forestry implementation, communities in Protected Areas, andassisting indigenous minority groups protect their land claims), WWF Cambodia (conservation,livelihoods development, community based natural resource management initiatives, sustainableforest management and certification; geographically focused in East and North of Cambodia), FFI(conservation, livelihoods development; primarily focused in Southwest Cambodia), ConservationInternational (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 (communityforestry), Concern Worldwide (heavily involved in community forestry in recent years, butchanging focus to livelihoods development), Lutheran World Federation (livelihoods developmentthrough community forestry), Oxfam GB (supports forestry related local NGOs throughout thecountry, with a specific focus on community forestry and CBNRM), Southeast Asia DevelopmentProgram (works with local NGOs and community forestry groups, especially in terms of linkingwith 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 andchiefs are appointed by the Prime Minister. At the local level, commune councils were democraticallyelected for the first time in 2002, replacing the communist model of appointed commune party chiefs inuse since the 1970s.

The governments decentralization strategy is based on a bottom-up, integrated, participatory anddecentralized rural development model. It includes an expansion in the number of Village DevelopmentCommittees (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 decentralizingexpenditure 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 andinstructions 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 implementdecentralization measures in the short to medium term. The SEILA programme, initiated in 1996 withassistance of UNDP and SIDA to formulate and test decentralization of planning, now extended at thenational level, has demonstrated the problems that arise when planning is not sufficiently linked withfinancing. The current SEILA programme is supporting both decentralized and de-concentrated agencieswith financial support and capacity building at the national and local level (provincial, district andcommune). The SEILA Task Force and Partnership for Local Governance are not only implementing thecore 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 ascrucial for the strengthening of local voices in government and improving public service delivery. Whilethe holding of commune elections was an important first step, further effort is needed to expandopportunities for citizens to influence and participate in governance. Currently, the commune councilscontrol very limited resources resulting in low levels of implementation of services and investment. Theystill lack the authority, administrative capacity, and financial resources to accelerate development at theirlevel, and have limited means for dispute resolution. The government policy on de-concentration, asmentioned above, has not been clearly articulated and there is a need for stronger harmonization


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between decentralization and de-concentration policies. The government is in the process of putting inplace an organic law for provincial and district levels of government, which will assist in clarifying thepolicies 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 naturalresources 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 Councilsbe more involved in this sector, with calls for implementation of a partnership forestry model as espousedin 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. CommunityForestry International has published a report on existing NRM networks in Cambodia, which would beuseful as background information.

There are existing gaps in current regulations and guidelines that hinder the implementation of importantprovisions 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 forimplementing the relevant rules and regulations.

There is need for direct assistance related to understanding the broader market place and opportunitiesfor livelihoods development based on broader market desires and demands. This could be based onlooking beyond the commune, district, province ultimately tying into regional markets beyondCambodias 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 theinformation that is available.

Glossary of Selected Terms Used

FA Forestry AdministrationMOE Ministry of EnvironmentOxfam GB Oxfam Great Britainprakas a subsidiary regulation, or a set of rules and guidelines to

implement an existing law or decreeRGC Royal Government of Cambodia


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Indonesia

The Legal framework on ownership and control over forest areas andland

A rticle 33 of the Indonesian Basic Constitution provides the legal doctrine for establishing state controlrights over land and natural resources. According to Law 41/1999 (Forestry Law), the states control overthe 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 alsoregulates and determines legal relations between man and forests, and the legal actions related toforestry 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. Bylegal definition, there is no difference between a natural and planted forest. Furthermore, the Lawintroduces the notion of forest zones ( kawasan hutan ) as areas that are designated by government anddeclared as permanent forest. These may or may not be covered by trees. The Indonesian governmentmentions 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, inthe early 1980s, a process named TGHK (Consensual-basis of Forest Land Use) allowed forest boundariesto 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 communitiesbecause it was seen as responsible for the unilateral acquisition of community lands. The TGHK alsobecame problematic with the introduction of the Provincial Spatial Planning (RTRWP). There were manyoverlapping 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 provincialgovernments 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 thatstate forests are forests located on land without private rights; whilst forests located on land bearingprivate rights are called private forests ( hutan hak ). In this regard, property rights between land andforest is embedded vertically. Once someone holds the land rights, s/he is able to lay claim over theforest. 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 theproperty rights system. Regulations, particularly those concerning forestry licenses, emphasize that theones who hold rights to forest resources cannot claim rights over the land. This means that there aredifferent property rights on land and forest resources. Indonesian land law recognizes this as thehorizontal principle of property rights. This is a common practice in the customary land tenure system aswell. If the law is consistent with the horizontal principle, the issue of property rights on planted forest isimportant.

There are several misleading concepts about forest zones, state forests, and the jurisdiction of theMinistry of Forestry (MoF).

First , MoF officials assume that all land within the forest zone is state forest. This is the legacy of the oldIndonesian Forestry Law (Law 5/1967), stating that state forests are forest zones and forests locatedthere can hold no-ownership rights. The new Forestry Law the state forest must have forests on it asdefined 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 toprovide 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 forestzones. 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-sideddecision of the government, there must be a delineation process for verifying whether the land is freefrom other individual or community claims. Only after the land is free from such claims can it be declaredas 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 those108 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 publicland or tanah negara is significantly different with government land. Public land refers to land withoutregistered private rights. People can obtain rights on the public land, provided they ask the governmentto grant the rights. To support its tasks and function, the government can control the land, but it shouldhave the rights, namely the right to manage ( hak pengelolaan ) or right to use ( hak pakai ). If the MoFargues that the state forest is its exclusive jurisdiction, and it refuses to grant any land rights on theforest, it seems that such forests are located on government land not on public land. Yet, there is aquestion about the legal status of such government land. Indonesian land law clearly states that thegovernment should have the hak pengelolaan or hak pakai and should register the land with the NationalLand 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 draftGovernment Regulation on adat forest mentions that the government will recognize an adat forest as long as the communities exist. Local governments would recognize their existencethrough local regulations ( Peraturan Daerah ). If the communities are assumed (by thegovernment) to no longer exist, their management rights on adat forest would be returned to thegovernment.

2. Forests with specific purposes ( Kawasan dengan tujuan khusus ): For purposes of publicinterest such as research and development, education and training, as well as religion andculture, 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 toaccess state forests.

3. Village forest ( Hutan Desa ): Law 41/1999 states that a state forest managed by a villagecommunity and used for villagers welfare is called a village forest ( hutan desa ). However, theLaw offers no further explanation and operational regulations on this.

4. Community forestry ( Hutan Kemasyarakatan ): State forest management directed towardscommunity empowerment is called a community forest. There have been sets of operationalpolicies 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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As individual citizens or groups (cooperatives), people have rights to state forests through licenses forcommercial utilization of forest areas, timber and non-timber forest products (NTFPs) as well as licensesfor collecting timber and NTFPs. These licenses are valid from one to one hundred years depending onthe type of license and resources. Under this licensing system, private companies have the sameopportunities 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 forgovernment action on agrarian reform and national forestry legal and policy development yet legaloptions for the communities continue to be primarily directed towards sharing management responsibilityover state forests. On the contrary, there are some initiatives at the local government level that providestronger rights for communities, notably adat communities . Some initiatives worth noting are districtregulations in Wonosobo (Central Java), West Lampung, Lebak (Banten) and the decree of Bupati inBungo (Jambi). These local regulations are supportive of communal land and forest tenure even thoughthe 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 communalland 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 inIndonesia cover 120.35 million hectares. These are commonly assumed as state-controlled forests. Onthe other hand, there is no exact data related to actual community control of state forests. The ForestTrends publication in 2002, using the FAO data on forest community development programs, estimatedthat community administered areas in public forest covered 0.6 million hectares. Meanwhile, the FAO inits recent publication of Global Forest Assessment has concluded that the state controls one hundredpercent 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 morecertain 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 beensome government initiatives for recognizing those forests. In Krui, Lampung, for example, 29,000hectares 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 50,000hectares of adat forest. Added with community forests, the whole government-recognized, community-administered areas cover between 115,000 to 250,000 hectares. Meanwhile, logging concessions enjoy27.8 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 alsohas no data regarding private forests. However, this cannot neglect the fact that private forests existoutside the forest zones. In the course of 2000-2004, the MoF stated that project undertakings onpeoples 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 forestcover (2004) indicated that there are approximately eight million hectares of forest located in non-forestzones, These can be categorized as private forests that could be owned by communities as well as bycompanies.


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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 forestryis still dealing with. First , illegal logging and illegal timber trading (including timber smuggling) have beentaking 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 thoseindustries came from illegal logging. A year later, the volume doubled to 56.6 million cubic meters. In thelast two years, illegal logging contributed between 30 to 50 million cubic meters of national timberconsumption. The State has lost about IDR 30.42 trillion yearly due to illegal logging and timbersmuggling. 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 forestzones due to spatial planning processes are not well coordinated; not all forest zones have managementunits, nor community-friendly forest utilization approaches. Fourth , even without official data, the MoFrealizes that the large number of poor people living in and surrounding the forest presents a bigchallenge. Fifth, the high demand for forest land from other government agencies leads to increasingtension 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 whowere involved in public consultations on the natural resource management draft law) agree thatdegraded natural resources now pose the greatest challenge. The lack access to clean water and airpollution 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 interestsamong elites at national and local levels, at the cost of forest sustainability and social cohesion of localcommunities. 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. Inaddition, 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 betweencommunities and government/private companies. The conditions of the poor get worse when disasterstake place. Resource conflicts become long-lasting problems. Land conflicts have come up throughout thecountry. 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 andmigrants. Ethnic hostilities in Central and West Kalimantan are some examples. In the CSO view, theseconflicts have demonstrated the failure of government projects on national integration by neglectingand undermining the indigenous communities. In addition, local elites have used local communities intheir political rivalries.

Efforts at tenure reform

Although there is no strong legal argument for MoF to exercise exclusive control over forest zones, MoFdomination over the zones continues. Over the past 20 years, the MoF has made no significant effort tointroduce land tenure reform. Until now, it commits to strengthen its control over the forests throughprograms 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 thegovernment institution responsible for preserving the forests, the MoF has a clear position regarding landtenure, i.e., no negotiation for changing the status of state forests. But while it appears that this ministry


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has taken a very strong political position, this is not always true. There are many examplesdemonstrating 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. From2000 to 2004, some 144,000 ha of forest have been used for other purposes. All of these illustrate thatthe 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 developingcommunity-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 145,000hectares of forest zones into non-forest zones; and the National Land Agency (BPN) then grantedindividual ownership rights to the communities.

If tenure reform is defined as allocating land for people, then to some extent there have been sporadiclocal efforts to grant or recognize management rights on forestland. As earlier mentioned, some localgovernments have recognized adat forests, and also granted community forest licenses to non-indigenous communities. Nevertheless, these efforts may appear as trial-and-error policies. The MoF doesnot conduct systematic efforts to support such local initiatives. The MoF even committed a createdblunder on the issue of community forests, by making a political request to local governments todiscontinue the granting community of forest licenses for as long as the MoF has not allocated suchcommunity 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 anexample of community-based forest management. The CSOs lobbied the Minister of Forestry forrecognition 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 Kruiadat 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 peoplereside in the sub-districts of M

Documents

Chip Fay - Review of Legal Frameworks for NRM