By
Bruce J. Cabarle and Owen J.
Lynch
Tel 202-662-252412514; Fax 202-638-0036
Email: brucec@wri.org; owen@wri.org
Prepared for: "Addressing Natural Resource Conflicts
Through Community Forestry," January to April 1996.
An electronic conference
organized by the Forests, Trees and People Programme, Community Forestry Unit,
Forestry Department, Food and Agricultural Organization of the United
Nations.
"We live for the time when we see law not as the reflection of the perspectives of the dominant simply because of their dominance but rather a mirror of those who have become powerful because of the eloquence of their wisdom (Leonen, 1994)."
1. Summary |
2. An Introduction to Community-Based Property Rights |
3. National Law and Community-Based Forest Management |
4. The Philippines |
4.1 Background |
4.2 Enhancing Community-Bargaining Positions with Legal Instruments |
4.3 Government Schemes and Community-Based Forest Management |
4.4 The Power of Information and Networking |
5. Mexico |
5.1 Background |
5.2 Community Challenges to the Status Quo |
5.3 Gaining and Maintaining the Advantage |
5.4 The Power of Networking and Allies |
6. Conclusions |
6.1 Law and Community Forestry |
6.2 Stereotypes and Disclaimers |
6.3 Law and Conflict |
6.4 Discussion Questions |
7. References |
8. Note on the authors |
ALSONS |
- C. Alcantara and Sons, Inc. (Philippine commercial logger) |
CADC |
- Certificate of Ancestral Domain Claim |
CALC |
- Certificate of Ancestral Land Claim |
CFP |
- Community Forestry Program |
DAO |
- Department Administrative Order |
DENR |
- Philippine Department of Environment and Natural Resources |
FAPUTUX |
- Foreign- owned pulp manufacturer |
FIFONAFE |
- Community development trust fund |
FLMA |
- Forest Land Management Agreement |
IFMA |
- Industrial Forest Management Agreement |
IPAS |
- Integrated Protected Areas Systems |
ISFP |
- Integrated Social Forestry Program |
NAFTA |
- North American Free Trade Agreement |
ORDENASU |
- Organizacion en Defensa de los Recursos Naturales y Desarrollo Social de la Sierra de Juarez |
SARH |
- Mexican Secretariat for Agriculture and Water Resources |
UCEFO |
- Union de Campesinos y Ejidos Forestales de Oaxaca |
UZACHI |
- Union Zapoteca-chinanteca de la Sierra Juarez |
National legal systems and the public institutions that have legal jurisdiction over forest resources have an important impact on the frequency, intensity and outcome of conflicts between competing interest groups. These systems and institutions tend to favor the rights of political and economic elites over those of forest-dependent communities. Those who usually win conflicts have little legal or economic incentive to avoid them. Instead, they have an incentive to promote conflicts - whether directly or indirectly - in order to gain control over forest resources. National legal systems and policies that recognize and reinforce community-based rights and management systems help provide some balance of political power. They bolster the leverage of forest-dependent communities and can promote more equitable management of conflicts. Such policies can also contribute - at least in the long term - towards reduction in the frequency and intensity of conflicts, and a more favorable environment in which to pursue sustainable management of forest resources.
This paper begins with a brief overview of the nature and fundamental characteristics of community-based forest management systems. It then describes ongoing legal strategies in the Philippines and Mexico to bolster the bargaining power of forest-dependent communities so that they can better address conflicts caused by competing external interests. In both countries, intensive efforts are underway to promote more equitable conflict management arrangements, and to provide local communities with adequate incentives for sustainable management of forest resources.
Limits on the length of this paper prompt a focus on legislative and regulatory reforms in the Philippines and Mexico. Special attention is also given to advocacy strategies used in these countries for enhancing community-bargaining leverage and promoting more equitable benefit-sbaring arrangements between governments, private investors and forest-dependent communities. These countries have a more developed legal framework in regards to community based forest management than many other countries, and they provide valuable insights that may have application elsewhere.
Issues related to conflicts within and between communities when governments formally recognize the rights of one group over another are not discussed, although legal and regulatory reform may sometimes exacerbate conflicts and accelerate resource degradation (see, e.g., Sarin 1994). The importance of local-level mediating institutions cannot be overstated in these types of instances.
This paper assumes that involving local communities, especially long-term residents, in forest management makes good sense because it provides those most dependent on and knowledgeable about the local resource base with official incentives for sustainable use. It likewise empowers them to police the forest and prevent outsiders and members of their own communities from overexploiting forest resources. In other words, "the logic of community forestry goes far beyond the patronizing view that community forestry means letting the local people get some benefits from the forest." Rather, it provides a means to "create and maintain a system of forest practices that are both ecologically and economically sustainable" (Ascher, 1995). Therefore, national legal systems that embrace community-based forest management policies are more likely to achieve better stewardship of the resource base.
In legal terms, the most significant characteristic of community-based forest management particularly in terms of local peoples' relations with external actors - pertains to tenurial rights. Community-based tenurial rights are often distinguishable from Western property concepts, which are based largely on state-created, private individual rights, or socialist concepts that theoretically vest the state with ownership of all natural resources. Community-based tenurial rights are also not the equivalent of "open access" regimes. Rather, they include often overlapping individual and group rights (including common property), and typically derive from long-term relationships established between local peoples and the natural resources that sustain them.
Community-based rights tend to be rooted in a belief that the present generation has a duty to manage natural resources, including forests, in trust for future generations. The privileges of the individual are thus generally subservient to the rights of the greater community (a situation that likewise prevails even in terms of private, individual, state-sanctioned property rights which can be subordinated in the pubic interest, e.g. zoning, eminent domain, etc.). In addition, an individual's freedom is predicated upon the productive use of natural resources. By ensuring that they are carefully managed and the rights to them are equitably allocated, community-based tenurial rights contribute both to cultural and national continuity.
Community-based management systems and the property rights that they establish and support draw their fundamental legitimacy from the community in which they operate rather than from the nation-state in which they are located. Regardless of whether the system covers private or public land, community members - not government officials or employees of non-governmental organizations or development institutions - are the primary (but not necessarily the sole) allocators and enforcers of community based rights. Therefore, in this paper, community-based management is invoked only in reference to initiatives that are primarily controlled and legitimated from within a community. Externally initiated activities with varying degrees of community participation should not be referred to as community-based, at least not until the community exercises primary decision-making authority.
The transition from colonies to modern nation-states in Asia, Africa and Latin America resulted in little change in state laws, policies and practices for allocating power and wealth among the national citizenries. Instead, the new republics continue to largely mirror the policies and designs of the former colonial governments, especially in their laws concerning the management of and rights to natural resources, including forests. Indeed, national laws concerning the use and management of forest resources in at least six Asian countries (Indonesia, Thailand, the Philippines, India, Nepal and Sri Lanka) have actually become more hostile toward forest-dependent people than was the case during the colonial era (Lynch and Talbott, 1995).
Despite increasing understanding and emphasis in these countries and others on the virtues of community-based resource management, as well as growth in the number of programs, projects and, in some instances, even national laws and policies, few nation-states in Asia, Latin America, or for that matter Africa, formally recognize or appreciate community-based management systems and tenurial rights or other contributions by forest-dependent peoples to conservation and sustainable management. Likewise, few countries seriously involve local communities in decisions over conservation and local resource management. Meanwhile, although international legal protections are becoming . more defined, their impact remains minimal.
Disdain and indifference towards rural cultures and peoples is deeply rooted in the history of forest policy development and the legal systems upon which most current policies are based. Research concerning rural, community-based incentives for sustainable forest management is rather recent. Related studies by political scientists, historians and other social scientists, meanwhile, have only just begun to penetrate the prevailing ideology of national laws and legal systems governing the use and ownership of forest resources. As a result, local disincentives for sustainable forest management that are perpetrated by centralized regulatory agencies and legal frameworks are just beginning to be seriously questioned.
This situation has largely precluded, until recently, any serious debate as to why many national laws emanating from the colonial era endure, and in some cases, have become even more undemocratic since political independence. The challenge is to shift and expand prevailing legal and institutional arrangements to encompass grander and more inclusive visions which incorporate and reflect an appreciation of native values, rights and aspirations, particularly those of materially impoverished rural constituencies, which in most developing countries still comprise a majority of the citizenry.
In this regard, it will often be necessary to creatively examine and reinterpret existing laws, as well as to develop and lobby for the enactment of new ones. The making and interpretation of law is a political process and once enough powerful individuals and institutions support an alternative legal perspective, it can become the prevailing one. These efforts often commence with "soft" law approaches, of which we provide one example, the Baguio Declaration, in the Philippine case study which follows (see also Berdan and Pasimo, 1995).
The history of forest laws and policies, as well as existing laws and policies, reflects the ongoing political and economic disenfranchisement of most forest-dependent communities and their concomitant weak bargaining leverage. Instead, political and economic elites exercise democratically disproportionate control over national and state governments and international institutions. About 10 percent of the developing world's population, for example, controls one-half to three-fourths of the world's arable areas, while 50 percent of people eke out an existence on 3 to 4 percent of the agricultural land base (Cabarle and Heiner, 1994). Demographic information on forest-dependent people is sketchy at best, but their political influence is even less than those living within agricultural areas. The weak bargaining leverage of forest-dependent communities, therefore, makes it difficult - and all too often impossible - to promote legal reforms and participate effectively in the management or resolution of conflicts over natural resources.
The failure of most governments to recognize the important role of local communities in sustainable forest management, however, has not necessarily terminated communities' management of and local tenure over forest resources. Despite expansive claims of ownership, many national governments exercise relatively little control over large areas of forest. Few can pay, train or maintain the forest-department staff needed to survey, patrol and effectively manage the vast areas classified as public forest land (Johnson and Cabarle, 1993). The following case studies on the Philippines and Mexico illustrate what local communities and their allies have been able to achieve -- in the face of tremendous legal and administrative obstacles - in gaining more control over their traditional resource bases.
From a legal perspective, the challenge is to surmount legislative and judicial obstacles to community-based forestry and to promote the design and implementation of solutions. More specifically, local disincentives. for sustainable forest management that are established and supported by national laws need to be removed and replaced by incentives that create and foster appropriate legal, regulatory and economic relationships between local communities, formal governmental institutions on state, local and international levels and, in some instances, commercial enterprises. These efforts should include awareness-raising and institution-building and strengthening within governments and civil society. From a legal perspective, there is an especially urgent need in many countries to foster development of public-interest environmental law, which includes support for forest-dependent communities.
To establish mutually enforceable, appropriate, secure and enduring relationships that promote sustainable forest management, local communities should understand what their options, rights and concomitant duties are in regard to national laws. The national legal framework must also provide support for all claimants, including communities. Pilot projects have been known to establish legal precedents that provide an important impetus for establishing new community-oriented policies and programs (Lynch and Talbott, 1995; Perl, et al, 1991; Poffenberger, 1990). An adequate legal regime that recognizes the role of and supports grassroots institutions to define, preside over and redefine the rules of resource-use can help provide a fertile environment in which pilot projects flourish.
4.1 Background
Despite the enduring legal disenfranchisement of forest-dependent people, many Asian countries already have legal frameworks that support community-based forest management. Whether through newly devised regulations and procedures (as in Nepal and India) or through the rediscovery of long-ignored laws and constitutional provisions (as in the Philippines and, to a lesser extent, in Indonesia and Thailand), community-based forest management is gaining force and legitimacy throughout South and Southeast Asia. In contrast to the state-controlled paradigms that characterize most Asian and other developing countries is the official recognition in Pacific island nations that legal rights to natural resources are owned pursuant to private, community-based property rights, irrespective of documentation or Western-style acknowledgments. Although the national government in Papua New Guinea is attempting to usurp some of these rights, they nevertheless cover 90 to 97 percent of the nation's terrestrial resources, including its forests. (See Alcorn, ed., 1992; Fingleton, 1992; Lynch and Maurt, 1992.)
Official and popular support for community forestry has been steadily increasing in Asia over the past decade. Philippine laws and policies in support of community forestry are among the most elaborate and enlightened. Yet implementation lags, political will is lacking within many government institutions, and many laws, policies and programs are more than superficially contradictory.
The Philippine Government, through its Department of Environment and Natural Resources (DENR) retains sole authority to allocate legal rights to use and manage public forest resources. Its policy accords fully with that of its colonial predecessors, which since the Maura Law was enacted by the Spanish colonial regime in 1894, has insisted that all occupants of classified "public" forest lands are squatters, regardless of their length of occupancy. As such, the Philippine Government in 1996 claims ownership to nearly 60 percent of the nation's total land area of 30 million hectares. Almost half of that total is either formally classified as "public" forest or is unclassified and legally presumed to be forested (DENR, 1994). Most of these areas are in the mountainous interiors of the nation's 12 largest islands, especially Luzon and Mindanao.
The government's ongoing assertion of ownership over classified forest land has long-benefitted political and economic elites interested in the commercial extraction and exploitation of forest resources and has promoted a multitude of conflicts with forest-dependent communities. Rampant and unsustainable commercial logging reached its peak during the decade after martial law was declared in 1972, and often resulted in the arbitrary, forced and sometimes brutal displacement of forest communities. Since the mid-1980s the number of timber concessions, however, has steadily declined as the amount of available timber has dramatically diminished. Today the Philippines has less than one-half million hectares of primary forest left, and (depending on the definition) three to six million hectares of secondary and residual forests.
4.2 Enhancing Community-Bargaining Positions with Legal Instruments
Despite the generally weak bargaining position of forest-dependent communities in the Philippines most of the remaining forests are located within indigenous territories and various efforts are underway to enhance the bargaining leverage of forest-dependent communities so that they can effectively promote their rights and claims and better address conflicts in ways that benefit them. The most promising efforts have involved innovative legal and policy research, lobbying of legislators and other government officials, on-the-ground initiatives by non-governmental organizations (NGOs) to disseminate information to forest communities about their legal rights to natural resources, and, most important, actions by local communities to defend and assert their rights, including the delineation and mapping of their territorial perimeters.
For years the Philippine Government estimated that only about one million people lived with the legally classified (but often deforested) public forest zone. Independent demographic research, however, established that there are now more than twenty million Filipinos residing within the classified forest zone, including six million indigenes. Research has also identified existing national laws which support recognition of the community-based property rights of forest-dependent populations and that original, long-term occupants have especially strong rights. Foremost are legal rights which pertain to possession and to native titles.
The Bill of Rights in the 1987 Philippine Constitution, for example, provides that "No person shall be deprived of ... property without due process of law." Unlike a subsequent section which prohibits state taking of "private property" for public use without just compensation, the due process provision refers to property in a broader sense. Article 446 of the Philippine Civil Code, meanwhile, provides that "Every possessor has a right to be respected in his possession." For many occupants of the "public" forest zone, the right of possession is bolstered by a stronger right of ownership. Since 1909, the Philippine Supreme Court has repeatedly acknowledged that land occupied since time immemorial is legally presumed never to have been public. Occupants of ancestral domains hold native titles (Carino vs. Insular Government). This legal perspective finds its historical roots in Roman law and Anglo-American jurisprudence (aboriginal title) which recognized that first possessors in good faith acquired proprietary rights over the land they occupied. Support for this belief can also be found in contemporary international law instruments. In December 1986, the Philippine Supreme Court went a step further when it invoked section 48 of the Public Land Act, and affirmed for the first time ever that land occupied for 30 years or more by members of un-Hispanicized ethnic groups is not only ancestral, it is also private (Director of Lands).
Existing Philippine laws concerning possession and native title provide the legal foundation for a policy of recognition of indigenous community-based property rights, including those that overlap with forests. Areas within the classified forest-zone, or unclassified "public" land which has been in original possession for more than thirty years, at least by members of un-Hispanicized ethnic groups, should not be considered as ever having been public. Instead, the land should be considered as privately owned by the indigenous occupants and communities residing on it.
The doctrine of native title, which now has many supporters in the Philippines, provides forest-dependent communities with a legal tool to address conflicts in a way that is more favorable to them. It has even begun to influence policy making within the executive branch of the Philippine Government. Although well-grounded legally, the doctrine does not yet have broad support among political and economic elites in the Philippines, but it has been gaining allies, even within the Philippine Congress. Bills providing for the establishment of legal processes for recognizing, delineating and protecting ancestral-domain rights have been pending in the Senate and House of Representatives for more than six years.
The most promising effort to date by forest-dependent communities and their allies to use the doctrine of native title to enhance their leverage as they address conflicts vis-a-vis government and commercial interests is found within the executive branch. DENR Department Administrative Order (DAO) No. 2 of 1993 reflects the enduring legal validity of the judicial decision in Carino v. Insular Government, effective resistance and organizing by local communities, and effective lobbying by their NGO allies. The DENR order establishes a procedure for delineating and provisionally recognizing the ancestral-domain claims of indigenous forest-dependent communities.
Initially, Certificates of Ancestral Domain Claims (CADCs) of a community, and Certificates of Ancestral Land Claims (CALCs) of individuals of families/clans will provide documentary evidence of these property rights. This is a modest and innovative short-term strategy which, even if beset with tremendous implementation problems, demonstrates a developing willingness by the Philippine Government to support the empowerment of forest-dependent communities and help them strengthen their positions vis-a-vis outside interests. At present, however, there is little funding for delineation costs. DAO No. 02 only mentioned "...available sources within the DENR and other agencies and entities, public or private, who may be willing to contribute to this endeavor..."
The most significant legislative advance on behalf of forest communities to date is found in the National Integrated Protected Areas (IPAS) Act of 1991 which was enacted after the World Bank and Philippine environmental groups exerted strong pressures on the Philippine Government. Section 13 of the act provides that within designated protected areas "Ancestral land and customary rights and interest arising shall be accorded due recognition." Standing alone, this provision could be easily ignored. A later sentence in Section 13, however, is clear and definitive. It establishes that within protected areas the DENR "shall have no power to evict indigenous communities from their present occupancy nor resettle them to another area without their consent."
The IPAS implementing rules and regulations build on Section 13. Chapter VII of the regulations establishes procedures for the mandatory identification of indigenous communities, the delineation and demarcation of ancestral-domain rights and the participatory formulation and implementation of plans and rules for managing natural resources within ancestral domains. Section 10 of the regulations likewise provides that "the zoning of a protected area and its buffer zones shall not restrict the rights of indigenous communities to pursue traditional and sustainable means of livelihood within their ancestral domain."
4.3 Government Schemes and Community-Based Forest Management
Over the past two decades, partly in response to pressures from NGOs and forest communities for the Philippine Government to do something about human rights violations and the growing deforestation crises, the DENR has been developing alternative programs for granting tenurial rights to public forest-zone occupants that fall short of recognizing private, community-based rights. The programs reaffirm state (public) ownership and provide individuals and communities with the option to enter into a stewardship or management agreement through three main programs, the Integrated Social Forestry Program (ISFP), the Forest Land Management Agreement (FLMA) and the Community Forestry Program (CFP).
The keystone of the ISF Program is the leasing of up to three hectares of public classified forest land to qualified individuals. The chance of getting a lease, however, is remote for most of the more than twenty million occupants of the "public" forest zone . As of year-end 1993, only 256,000 individual agreements had been processed covering 586,000 hectares. Some 36 Community Forest Leases had also been issued, covering 76,628 hectares. At current levels of funding and staffing, the ISF Program cannot annually survey, process and document leasehold rights for more than 25,000 qualified occupants, or less than 1 percent of the independently estimated "public" forest zone population. The result is that the number of indigenous and migrant occupants who will get a stewardship certificate in 1996 will, barring a dramatic increase in ISFP funding and manpower, be less than the number of poor lowland farmers who will migrate into "public" lands in the course of the year.
The Forest Land Management Agreement (FLMA) addresses the growing concern of government-contracted private tree planters about their land tenure. Most of these people, however, are not residents of the areas in which they work. The program is essentially set up to establish commercial plantations. It was assessed by the Upland NGOs Assistance Committee to be a failure. Among the reasons cited was the poor participation of actual residents in the reforestation area. The FLMA gives the contractor 25 years (renewable one time) to manage tree plantations. Since the contractor is not required to be a resident of the planted area, it frequently happens that the leases overlook and sometimes are harmful to the interests of local communities.
The Community Forestry Program offers Community Forestry Management Agreements (CFMA) to organized upland communities for the same 25-year period as the ISFP leases. Through a management plan agreed to by the community and the DENR, the community undertakes forest management and has the right to harvest timber in a given area. In return, they are responsible for maintaining, conserving and protecting the area from illegal loggers.
Given a total ban on logging in primary (virgin) forests, and the severely degraded condition of Philippine forests generally, the DENR aims to place only 3.5 million hectares of residual forests under "sustainable management." This will include areas covered by Industrial Forest Management Agreements (IFMAs) that authorize logging in residual forests only after degraded areas covered by the agreements have been replanted. According to Department Administrative Order (DAO) 60 of 1993, prospective parties to these agreements must identify communities living within the target areas and give them notice of the application, and applicants must enter into mutually agreeable benefit-sharing agreements with local residents.
Unfortunately, many timber concessions were converted to Industrial Forest Management Agreements before the DENR issued this order. So many forest communities, especially in the large southern island of Mindanao, are legally marginalized by yet another government regulation. In addition, many post-1993 agreements are not in compliance with the new order, a fact that reflects the tenacity of conventional foresters and their resistance to change. But the new administrative order does provide some legal leverage to communities included in IFMAS after 1993.
Opposition to the Industrial Forest Management Program, meanwhile, is mounting among forest communities and non-governmental organizations. A major rallying point is an agreement entered into with C. Alcantara and Sons, Inc. (ALSONS) that covers about 20,000 hectares in the province of Davao del Norte. This concession, and others like it, overlap with the ancestral domain of 19,000 indigenous people, in this case the Ata-Manobos. After many failed attempts to negotiate a moratorium on the implementation and expansion of the agreement, Ata-Manobo warriors attacked ALSON employees on October 20, 1994, reportedly leaving three dead and six others wounded. The outbreak highlights the enormous challenges that can be faced when addressing natural resource conflicts. The Industrial Forest Management Program, meanwhile, remains the preferred means within the Department of Environment and Natural Resources and the commercial forestry sector for managing Philippine forest resources.
4.4 The Power of Information and Networking
As the ALSONS case highlights, good laws and policies, and improvement in bad ones, are not by themselves enough to improve the legal leverage, let alone overall well-being of forest-dependent communities. Local communities should know the nature and full extent of their formal (governmentally established) legal rights before government officials and commercial entrepreneurs assert legal rights or commercially exploit forest resources on a bilateral basis.
When communities do not know their legal rights, they are not as well-equipped as they could be to address natural resource conflicts. Current laws and policies in the Philippines related to forest management and conflict provide improvable tools for effectively promoting local participation and benefit sharing, as well as for conservation and sustainable development. Communities, therefore, need information on what these legal rights are, how they might choose to exercise these rights, and the short- and long-term implications of their decisions. But the process of information-sharing should not be one way; supporters of community forestry have a lot to learn as well as to share (Leonen, 1994).
Some NGOs are providing forest-dependent communities with legal information and para-legal training. Others are establishing and servicing networks for disseminating relevant and timely information to local communities. Such networks should be organized in ways that ensure respect for local cultures and sensitivities, and are readily accessible and promptly responsive to the informational needs and requests of forest communities.
There is a pressing need as well to develop and provide more opportunities for economic development. Equally, if not more, important is to build more common understanding of problems and approaches, and to better promote recognition of community-based management. In an effort to do this, representatives from 14 Asian and Pacific nations convened at a workshop in Baguio City, the Philippines, in May 1994. They shared their experiences and insights with other advocates and practitioners of community-based forest management, and concluded by adapting the Baguio Declaration, an international "soft law" instrument (Berdan and Pasimio, 1995).
The workshop participants reached three major conclusions:
1. The prevailing paradigm of nation-state ownership and management of forest resources in South and Southeast Asia is not sustaining declining stocks of forest.
2. An alternative policy and legal framework that recognizes and secures local populations' community-based tenurial rights provides the best prospects for improving forest management.
3. Local authority and management structures need further development and refinement if the respective rights and correlative duties of nation-states and local communities are to be securely balanced.
The workshop ended with the participants adapting the "Baguio Declaration," an example of an international "soft law" instrumnet The declaration commits its subscribers - and calls upon others - to abide by and take action according to ten principles. The first two principles state that "commmsit-based natural resource rights of indigenous and other long-settled communities should be recognized and protected as are rights of other sectors" and "government recognition of existing community based rights is preferable to rights based on government grants." As these principles, and others being developed and promoted, are adopted in practice, be it either by NGOs, through pilot projects or in national legislative frameworks, this is an example of how "soft law" can be used to build shared perceptions and political will to provoke change in national and international laws and standards of conduct.
5.1 Background
Mexico's 48 million hectares of forests ranks as the fifth largest in Latin America. The country has a unique tenurial system governing forest lands. Some 80 percent of Mexico's forest lands are occupied by over 8,000 indigenous communities and committees in the form of communal or "ejidal" holdings. The remaining 15 percent are privately held, and 5 percent are public forest lands.
Following the Mexican Revolution of 1910, the agrarian national constitution of 1917 established that the public interest is sovereign over private interests regarding the use of natural resources (Wadsworth, 1988). Thus the central government is the sole owner of the country's forest resources and can allocate their usage rights as it deems appropriate. Like many other countries of the region, Mexico historically has exploited its forests through concessions, whereby usage rights were reallocated from local communities to outside, industrial interests. However, recent events since the 1980s have witnessed the emergence of the most significant community forestry sector of the region.
All forestry activities are subject to regulatory oversight by the federal government through the Secretariat for Environment, Natural Resources and Fisheries. These functions were formerly carried out be the Undersecretariat for Forests within the Secretariat for Agriculture and Water Resources - SARK Until the Forestry Law of 1992, state governments did not play a major role in forest policy or regulation; they now have an increasing presence through the newly created state forestry commissions.
Between 1944 and 1976, the Mexican Government issued forest concessions by presidential decrees to private or parastatal forest companies with little regard for local benefit or participation. By 1980, practically all of Mexico's productive forests had been exploited to one degree or another under concessional arrangements with forest industry companies (Chapels and Lara, 1994).
Although local communities had clear and free title to the lands where the concessions were issued, the issuance of commercial concessions was justified by the government on the premise that the ejidos had no ability to manage the forests, forestry operations or the resulting revenues. The government recognized the right of the ejidos to compensation, however, and this became a standard provision in the concession agreements. Unfortunately, due to various strong-armed tactics, the price paid to local communities for granting access was often set by the purchaser at below market rates or paid in-kind with basic infrastructure projects, such a haft clinics, schools and roads, which did not compensate for the value of the timber removed or its replacement costs (Bray, 1991). Fortunately, the forestry law was reformed in 1986, after which concessions were phased out in favor of ejidal and communal arrangements. In response to structural adjustment after the economic turn down of the 1980s and preparations to enter into the North American Free Trade Agreement (NAFTA), Mexico entered into a period of deregulation and privatization and in 1992 revised its forestry law. The law sought to strengthen the sector by encouraging incentives for private investment in plantations and value-added processing. It also attempted to emphasize the environmental values of forests, particularly those of the tropical moist region (Merino, 1992).
5.2 Community Challenges to the Status Quo
One of the most celebrated cases in Mexico of local communities which successfully challenged this status quo, is the indigenous Zapoteca community of San Pablo Macuiltianguis, in the Sierra Juarez mountain range found in the state of Oaxaca (Chapels and Lara, 1994). In 1958, a foreign-owned pulp manufacturer, FAPATUX, was granted a 261,000 hectare forest concession in the Sierra Juarez by presidential decree (Bray, 1991; Chapela and Lara, 1994). For some reason, the concession failed to grant unconditional access, so FAPATUX was obliged to negotiate yearly contracts with the communities in which it conducted operations. However, FAPATUX frequently solicited the intervention of the Secretary of Agrarian Reform during these negotiations, who applied such tactics as denying the communities the right to sell its raw material to any other buyer than FAPATUX. This effectively created a monopoly for FAPATUX, allowing them to fix stumpage values at artificially low levels (Bray, 1991).
In 1968, the community of San Pablo Macuiltianguis allied with 14 other local communities and formed the Union de Pueblos Abastecedores de Materia Prima a FAPATUX, and successfully imposed a five-year boycott on the sale of wood to FAPATUX. In 1972, the boycott led FAPATUX to shut down production for 40 days. Finally, FAPATUX made various concessions, including the creation of a collective bargaining body of four communities, the Unidad Forestal Ixtlan-Calpulalpan-XiacuiTrinidad (IXCAJIT). For the duration of the concession, IXAJIT became the principal negotiation channel between FAPATUX and the local communities (Bray, 1991)
As the end of the 25-year concession approached, a flurry of debates erupted throughout the Sierra Juarez communities about economic alternatives and development options other than just selling stumpage to FAPATUX. Eventually, 13 of the communities decided to organize themselves into the Organizacion en Defensa de los Recursos Naturales y Desarrollo Social de la Sierra de Juarez (ORDENASIJ) in order to challenge the renewal of FAPATUX's concession. ORDENASIJ launched an aggressive grassroots campaign, convening village meetings, publishing its own newspaper, aligning with other community forestry organizations throughout Mexico, lobbying state and federal level officials and even convening the first national congress on community forestry. Supported by coalitions with student organizations and young forestry professionals, ORDENASU broadened its platform from solely blocking the renewal of FAPATUX's concession, to demanding training in forest management, administration and technical assistance as well, so that the local communities could take over the management of the concession themselves (Pineros, et al, 1987).
5.3 Gaining and Maintaining the Advantage
When FAPATUX's concession finally expired in late 1981, they attempted to renew the agreement in perpetuity, but the communities rose to the occasion and waged a successful legal battle with their new found allies. This set a major precedent for community control over forest resources in Mexico. Following the victory, the community of San Pablo Maculitianguis once again demonstrated its leadership skills by negotiating a contract with FAPATUX not as a mere supplier, but as an equal partner, owner and seller.
Having won the initial skirmish, however, the communities were faced with how to manage the forest, and found themselves ill-prepared as they were small farmers. And, by this time, ORDENASU, having fulfilled its function of challenging the FAPATUX concession, disbanded in 1983. Later on in the decade, many of the communities were able to make capital investments in logging equipment, value-added processing machinery and several forestry enterprises, as well as schools, health clinics, roads and community water systems (Bray, 1991). Several NGO support groups also arose around this time, to provide the training in business administration and the technical assistance needed for designing and implementing forest management plans.
As the 1980s came to a close, the communities of the Sierra Juarez faced two vexing challenges: obtaining affordable technical forestry services (SFT), and tapping monies from stumpage fees paid to the government and deposited in a community development trust fund (FIFONAFE). Communities in the Sierra Juarez region affiliated into two groups in order to address these issues: the Union de Campesinos y Ejidos Forestales de Oaxaca (UCEFO) and the Union Zapoteca-chinanteca de la Sierra Juarez (UZACHI). Communities must seek government authorization on the annual volume they can harvest. Furthermore, the individual trees to be cut must be marked by a professional forester, certified to use a government-issued hammer ("martillo"). The associations of professional foresters have enjoyed an exclusive concession with the government to provide this and other basic services to the communities. Communities have increasingly complained about the cost and quality of these services, however, and have argued that, since federations like UCEFO and UZACHI can hire professional staff, they should also be granted the right to use the "martillo" and purchase other needed services on the open market. Both federations succeeded in obtaining these rights by 1990 (Bray, 1991).
The FIFONAFE trust fund was set up to reinvest proceeds from stumpage fees into community development projects. However, most communities have found it difficult to find out how much money is in the fund, how is it managed and to prepare viable proposals in order to qualify for funding. Through collective organizations such as UCEFO and UZACHI, the communities hope that they can push the government to manage FIFONAFE more transparently and eventually gain control of these resources.
This still is a major source of tension between the government and the local communities.
5.4 The Power of Networking and Allies
The emergence and success of groups like UCEFO and UZACHI has allowed local communities to foster more equitable relationships with outside interests that have historically exploited local resources, with government support, with little to no reward to local peoples or the residual resource base. By generating internal consensus and then forging alliances with support groups beyond the communities' boundaries, UCEFO and UZACHI have helped to build a more democratic, open and tolerant society that increases the odds that a favorable and/or more equitable outcome can be achieved when faced with conflicts. The existence of a policy environment that permits free assembly, the exertion of control and management over local resources, and the freedom to chose how to reinvest the returns earned, are powerful incentives for local communities and outside investors to find ways to manage their conflicts.
6.1 Law and Community Forestry
Law can provide important tools and enhance the effectiveness of current and prospective strategies for increasing the leverage of forest-dependent communities when they are addressing natural resource conflicts. Legal outcomes are often skewed to favor the powerful when legal process are dominated by elite political and economic interests. Law making and application, however, are inherently political processes.
In most countries, forest-dependent communities and their allies are not yet major players in national and state-level legal arenas. As a result, their interests are still largely unreflected in national laws and judicial decisions pertaining to forest management. Yet forest communities and their allies can sometimes invoke or reshape legal interpretations to advance their causes. They need not agree with prevailing national legal perspectives that deny recognition of community-based rights and incentives for sustainable forest management, to recognize that law can provide important tools. Supporters of community forestry need to examine and better understand prevailing legal perspectives and develop more inclusive and enlightened ones.
In the short term, asserting rights, developing research and advocacy skills, and cultivating allies from other sectors may generate and/or intensify conflict with external groups that currently enjoy legal access to contested forest resources. But some forest-dependent communities are drawn into conflicts by legally sanctioned external intervention. The all-too-common outcome is that they lose access to forest resources they have traditionally depended on, or are forced to use these resources to benefit others.
In other words, for forest-dependent communities, addressing conflicts over natural resources may - at least in the short term - intensify existing conflicts or bring to the fore latent ones. But avoiding conflicts may result in communities finding themselves in situations where they no longer have access to forest resources that are coveted by more powerful outside interests.
6.2 Stereotypes and Disclaimers
To avoid misinterpretations and minimize the number of rhetorical assaults that all-too-often characterize discussions of community forestry, the obvious is hereby acknowledged: not all community-based management systems are sustainable, whether indigenous or not. Nor are they by definition operated by ecological noble savages living in symbiotic harmony with nature, or by self-centered exploiters seeking to maximize short-term gain. Like participants in other natural resource management systems, successful community-based managers are typically rational, strategic-minded individuals who assess existing conditions and act in their own best interests. The more they depend upon the surrounding resource base, the more incentive they have to protect it. If their very survival is predicated upon maintaining it, they will do so unless prevented by intervening forces. In that case, they either fight, work out a negotiated solution or, more often, are involuntarily displaced.
References in this paper to political and economic elites, including lawyers and foresters, may discomfit some influentials. They should not be misconstrued, however, as implying a belief that lawyers, foresters and other national elites comprise a homogeneous entity. Nor do they reflect any belief that elites are universally selfish. Elites in every nation perform an array of invaluable tasks and their presence is vital to national well-being. The nature and composition of national elites, furthermore, like many other social phenomena, has become increasingly complex and varied. During the twentieth century, many landed elites dependent on timber concessions have converted large portions of their rural resource assets. Many now own stocks, bonds and other interests in urban industries and corporations. Indeed, the emergence of political and economic elites with no immediate vested interest in the legal status quo concerning forest resources is one of the few hopeful indicators that substantive legal reforms may yet be achieved peacefully.
6.3 Law and Conflict
It is also important to note that the mere establishment and implementation by nationstates of "adequate" legal regimes that recognize the ownership and use of forest resources will not eliminate conflicts with government agencies, or commercial entrepreneurs, or between communities or within communities. Communities themselves are often composed of different groups defined by how and when they use certain resources within the forests. In crafting national legal and institutional frameworks to support community forestry initiatives, it is important to recognize the existence of overlapping uses, the different needs of "primary" and "secondary" users of the resource base, and to ensure that state-sanctioned rights do not simply reinforce the claims of "sedentary" groups at the expense of "migratory" ones, either in terms of time or space (Thomson, 1992). Since communities are as dynamic as the forest resources they manage, it is important that viable institutions exist at the community or village level to adequately deal with inevitable conflicts that will arise as both the community needs evolve and the resource base changes. Lastly, beware of lex simulata, where laws that are never meant to be implemented are nevertheless enacted.
Conflicts are inherent between parties who have overlapping interests and claims and rights to forest resources, particularly when the legal status of the claims and rights are poorly defined. This situation is unbalanced and unsustainable when the conflicting parties are not equally empowered to access the legal mechanisms available to manage these conflicts.
Local communities that are well organized internally are better able to access and effectively use law. Organizations in the non-governmental and legal sectors that are sympathetic to the plight of local communities, and appreciate their potentials, are important and often necessary allies for building effective partnerships. From the perspective of the legal profession, there is a pressing need to foster more interest in the legal rights, cultures and well-being or rural constituencies, including forest-dependent communities.
National legal systems and government regulations are a significant determinant factor in the prevalence, frequency and intensity of conflicts, as well as the equity of final outcomes. More legal support for community-based management and property rights would provide incentives for more environmentally friendly and equitable forest management. It would include assurances that the inevitable conflicts over forest management will be addressed in more accessible, transparent and fair legal processes.
The Philippine and Mexican experiences underscore some common elements that merit further reflection. They include, but are not limited to, the following:
* national legal systems that, while improving in some respects, fail to provide adequate support for community-based forest management
* legal support for recognition of community-based property rights
* . processes for negotiating equitable cost/benefit sharing arrangements between governments, private entrepreneurs and forest-dependent communities
* legal support for community-based forest management systems that provide a means for more equitably addressing conflicts
* intra-community conflicts and inequities
* the roles and capacities of grassroots institutions to interpret and modify the rules of resource use over time
6.4 Discussion Questions
In closing, the following questions from this paper are submitted for debate:
i) What proof is there, if any, that security of community-based tenure results in improved management over forest resources?
ii) Why are promoters of community-based forest management often accused of promoting local interests at the expense of the more broadly defined national public interest? Is promoting more equitable and sustainable management of forest resources not in the national public interest? Even if it increases conflict?
iii) Do legal and regulatory reforms in support of community-based ownership and use of forest resources reduce or increase the incidence of inter-community conflict? Intra-community conflict?
iv) How are culturally entrenched infra-community inequities best managed when addressing natutal resource conflicts?
v) How can overlapping rights and claims best be accommodated in order to promote
sustainable management and equity and reduce conflict?
vi) What criteria should used for deciding what communities, user-groups or other interested parties should be recognized as already having, or should be granted, legal rights to forest resources?
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Bruce J. Cabarle is Director of the Forestry and Land Use Program and a Senior Associate, Latin America and the Caribbean Program, Center for International Environment and Development, World Resources Institute, Washington, DC, USA.
Owen J. Lynch, Esq., is a Senior Associate, Asia and the Pacific Program, Center for International Environment and Development, World Resources Institute, and a professorial lecturer in the Program on Social Change and Development at Johns Hopkins University School of Advanced International Studies, Washington, DC, USA.
