Indigenous Peoples and Community Forest Tenure
Brief produced by the Rights and Resources Initiative (RRI) presenting preliminary results of a legal analysis on the state of indigenous peoples and community forest tenure rights globally.
What Rights? Measuring the Depth of Indigenous Peoples and Community Forest Tenure: Preliminary Findings from a Legal Analysis of 33 Forest Tenure Regimes in 15 Countries
This brief presents some preliminary results of a legal analysis conducted by RRI to provide a fuller picture of Indigenous Peoples and community forest tenure rights globally. This analysis unpacks the collective rights to forestland and forest resources held by communities and codified in law. RRI has developed a database monitoring the dynamics of statutory forest tenure rights over time in approximately 45 forested countries covering more than 90% of the world’s forests. The present legal analysis complements the tenure distribution data by clarifying what legal rights are associated with Indigenous Peoples community forest tenure regimes.
Two important caveats must be made about this analysis. First, this analysis is limited to community forest tenure regimes established by national legislation and does not cover the wider set of instruments that provide or recognize the rights of forest communities and individuals.3 Second, it is important to note that a law might provide a wide spectrum of rights to communities on paper without being exercised in practice. In some cases, the forest area under community tenure regimes accounts for a significant portion of the country’s forests (e.g. Brazil, at least 25 percent) while in others it accounts for almost none despite the existence of community tenure regimes (e.g. Indonesia, less than 1 percent).
Due to the complexity and specificities of national legislation, and the goal of creating a comparative database of rights, this analysis uses the “Bundle of Rights” conceptual framework as its foundation (see Table 1). The analysis assesses whether communities can access forest resources; make decisions over forest management; commercially harvest timber or other forest products; exclude outsiders from their forests; whether the tenure regimes confer the right to lease, sell, or use forests as collateral; and, whether the law guarantees communities due process and fair compensation if the state revokes these rights. An additional element was added to this analysis: the duration of the conferred rights (limited or unlimited).
RRI examined the legal basis of 33 tenure regimes that accord rights to communities in 15 countries. In Asia: China, India, Indonesia, and Papua New Guinea (PNG); in Africa: Cameroon, the Democratic Republic of Congo (DRC), Mozambique and Zambia; in Latin America: Bolivia, Brazil, Colombia, Mexico, Peru and Venezuela; and in Australia.4 These 15 countries are home to close to 70% of the world’s tropical forests.
The data was collected through a thorough literature review and analysis of over 80 laws and other legal documents. Subsequently, more than 40 local experts verified the preliminary results, helping to ensure that the data was as complete as possible and that it was based on the most up-to-date laws and regulations, and consistent with the interpretation of local courts and government bodies. The results (see Table 5) are based on legislation and does not account for the implementation or lack thereof of these rights. Where possible the area (in millions of hectares) under each regime is included in the regional summary tables to provide context on the implementation of the regimes.
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