Rights and tenure reforms: What are the legal issues that need resolving?
The legal issues surrounding forest rights and tenure are many, varied and complex
Establishing a clear and secure tenure foundation is essential for fulfilling the climate change mitigation goals of REDD+ and for protecting the livelihoods and rights of its stakeholders. Although there has been notable progress towards creating this foundation, much remains to be done. A binding global climate change agreement through the United Nations Framework Convention on Climate Change (UNFCCC) would provide a strong motivation for making progress on tenure. There are steps in the right direction: the Leaders’ Declaration on Forests from COP26 in Glasgow, which publicly recognized Indigenous Peoples and local communities (IPLCs) as the best placed to preserve forests and biodiversity, involves a USD 19.2 billion pledge to protect and restore forests, USD 1.7 billion of which is aimed at supporting IPLCs (IUCN 2021). Given the long lead time in resolving forest tenure issues, it is imperative that countries continue pushing forward. Such actions could include the following:
- Forest tenure reform;
- Linkage of forest tenure and environmental compliance mechanisms;
- Institutionalization of participatory mapping in national land-use decision making;
- Resolution of longstanding contestation between customary and statutory forest land claims;
- Review of existing and planned industrial forest land concessions considering concurrent plans for forest conservation, afforestation, reforestation and REDD+;
- Clarification of forest carbon rights.
Although Vietnam’s Payment for Forest Environmental Services (PFES) programme has brought many benefits to the poor and to ethnic minorities, some ethnic Kinh people have deemed the current PFES programme unfair and discriminatory because the existing guidelines present barriers to their participation. Under the current policy, the Vietnamese government prioritizes allocating forest land and forest-related benefits to indigenous peoples. According to interviews with stakeholders, this makes it difficult for ethnic Kinh to participate in and benefit from PFES. Kinh people have also revealed that while they do not benefit from the current policy, they are still mobilized to protect the village forest when it burns or is encroached upon by outsiders. Participants in focus group discussion meetings indicated that they do not feel strongly committed to the protection of the forests because they lack formal land ownership, with many admitting that they only patrol forests on days for which they are paid, and claiming that it is the authorities’ responsibility to protect and patrol them on remaining days. This suggests that while the PFES programme in Vietnam has brought positive economic and social impacts to many participants, the programme’s focus on only one vulnerable group has undermined and reduced the incentives for other social groups to join. Forest tenure reform that expands land ownership to those responsible for protecting forests could mobilize greater resources and support towards forest protection (Pham et al. 2021).
The forests that REDD+ aims to protect are under threat not just from local stakeholders, but also, in many cases, from external claimants on local forests. These external claimants can be neighbouring villagers, seasonal migrants, colonists, ranchers and industrial enterprises of various kinds (e.g., soy in Brazil and oil palm in Indonesia).
Research from the Center for International Forestry Research’s Global Comparative Study (CIFOR GCS) on REDD+ looked at 71 villages at sites in five countries. The GCS found that in almost two-thirds of the villages there was ongoing external use of local forests, with almost a fifth of villages unsuccessful in their efforts to exclude outsiders.
It is essential to have enforceable rights of exclusion because the whole idea of REDD+ rests on not just the incentive but also the legal means to protect forests from outsiders. These rights of exclusion are also essential for protecting local livelihoods. Rights of exclusion can be sought through such instruments as legal title for smallholders and through tenure categories, such as hutan desa (village forest) and Ecosystem Restoration Concessions (ERCs) in Indonesia, and used to deflect industrial claims (Sunderlin et al. 2014).
Vietnam’s Forest Protection and Development Law 2004 was replaced by the new Forestry Law of 2017, which enhances the role, authority, obligation and responsibility of all Vietnamese government agencies for forest management. Under the new law, there is a stronger emphasis on the need to protect natural forests and, for the first time, an acknowledgement of religious and customary forests and the need to respect them. The 2017 law also promotes and prioritizes the participation of local people and ethnic minorities, households, individuals and communities of people with customs, traditions, culture, beliefs and traditions attached to forests. The new legislation is a step towards establishing a clear and secure tenure foundation by providing better clarification of forest ownership (Pham et al. 2019).
Sunderlin, W. D., Larson, A. M., Duchelle, A. E., Resosudarmo, I. A. P., Huynh, T. B., Awono, A., et al. 2014. How are REDD+ proponents addressing tenure problems? Evidence from Brazil, Cameroon, Tanzania, Indonesia, and Vietnam. World Development, 55, 37–52.
Pham, T.T., Hoang, T.L., Nguyen, D.T., Dao, T.L.C., Ngo, H.C., Pham, V.H., 2019. The context of REDD+ in Vietnam: Drivers, agents and institutions [2nd edition]. Center for International Forestry Research (CIFOR).