Good Practices for Strengthening Land Rights Recognition in Forestlands of the East Asia and Pacific Region (English)
This report was prepared and published by a World Bank team led by Markus Kukkonen (Senior Land Administration Specialist) and Abidah B. Setyowati (Senior Social Development Specialist). The report was authored by GLA’s Malcolm Childress, Markus Kukkonen, GLA’s Cynthia Berning, Heather Huntington, Jennifer Lisher, Johnathan Lindsay, and Abidah Billah Setyowati.
This report contributes to sustainable recognition and formalization of all types of tenure (private, communal, and public) within forestlands by gathering emerging global knowledge and good practices on the topic. The aim is to guide decision-makers, practitioners, and other stakeholders working on the topic in the EAP region and elsewhere. The scope of the report is not limited to forests inside forestlands but also covers recognition and formalization of other land types located within forestlands, such as agricultural and residential lands. The report first provides a systematic review of counterfactual-based scientific literature measuring impacts of tenure interventions on forest cover to assess when and how formalization of rights can be used as a tool for forest conservation, and in what situations it may cause negative impacts on forest cover. It then lays out the EAP context around land rights recognition and governance in forestlands, with a focus on policies, institutions, and procedures. Finally, it identifies good practices used around the world to recognize, protect, and formalize land rights in forestlands.
EXECUTIVE SUMMARY
Millions of people, including many Indigenous Peoples, experience a lack of secure tenure to their land holdings in forests. Often, their land holdings overlap with areas that are designated as state forestlands that impose legal restrictions on the recognition and formalization of land rights, possibly causing tenure insecurity. Tenure insecurity, in return, discourages people from making long-term sustainable land investments, such as tree planting and sustainable forest management. The challenge is particularly prominent in the East Asia and Pacific (EAP) region where many countries have designated significant proportions of their land area as state forestlands.
In response to these challenges, this report examines i) the impact of land tenure interventions on forest cover; ii) the status of land rights recognition and formalization in the forestlands of EAP; and iii) good practices to strengthen all types of tenure (private, communal, and public) within forestlands. The aim is to guide decision-makers, practitioners, and other stakeholders working in the EAP region on the topic. The scope of the report is not limited to forests inside forestlands but also covers recognition and formalization of land rights of other land use types within forestlands, such as agricultural and residential lands. However, it does not cover reforestation or afforestation aspects.
A systematic review of 18 experimental or quasi-experimental studies and 20 cases evaluating the impact of land tenure interventions on forest cover reveals that the formalization of Indigenous Peoples’ or local communities’ communal land rights or the strengthening of their land governance reduced deforestation or had a neutral effect on it. The formalization of private rights yields more varied results. Four cases found formalization of private land rights to increase deforestation, and two cases to decrease deforestation. Three cases suggested that combining formalization of private land rights with conservation incentives and environmental restrictions lead to better forest cover outcomes than formalization alone.
Accurate figures regarding the population residing in forestlands in the EAP region are currently unavailable. However, it is reasonable to expect that these numbers are substantial due to the sheer size of such areas. Additionally, a significant proportion of the region’s estimated 260 million Indigenous Peoples, adat/customary communities, ethnic minorities, and ethnic group people are presumed to inhabit these areas. While most countries in EAP manage forests as state property by default, there are community forestry schemes in place. These schemes delegate the utilization and management responsibilities to communities across all 10 key forested countries – Cambodia, China, Indonesia, Lao PDR, Malaysia, Myanmar, Papua New Guinea, Philippines, Thailand, and Viet Nam. Full ownership or use rights of forests by individuals and/or communities can be acquired in Cambodia, China (for 50 years), Indonesia, parts of Malaysia, Papua New Guinea, the Philippines, Thailand, and Viet Nam (for 50 years). However, the formalization of such rights is progressing slowly, except for China, where already 180 million hectares of forestland has been allocated to collectives and over 100 million forest tenure certificates have been issued. Lao PDR is currently in the process of revising its legal framework to allow formalization rights for permanent agricultural and residential land within state forestlands, while Myanmar’s legal framework acknowledges the protection of customary land of ethnic peoples but lacks measures to protect or formalize such rights.
The following good practices and recommendations aim to enhance recognition, protection, and formalization of land rights in forests and forestlands in a socially inclusive and environmentally sustainable way.
Legal frameworks should recognize the land rights of long-term forest occupants. If such recognition is provided only to certain groups, such as Indigenous Peoples, the legal framework should clarify how such groups and their members are identified. Legal frameworks should also have measures in place to protect all formalized and unformalized, but legitimate, land rights when granting concessions, or conducting expropriation, resettlement and compensation activities. Governments should consider linking formalization of land rights inside forestlands to land use restrictions, payments for ecosystem services, and other economic incentives to ensure positive impacts on forest cover, especially when formalizing private rights.
Institutionally, formalization of land rights in forestlands requires the strong cooperation of various government agencies, such as land, forest, and Indigenous Peoples’ departments. Therefore, it is important that there is shared trust, understanding, and vision between these agencies. Governments should consider partnering with civil society and Indigenous Peoples’ organizations in the process as they generally have better reach to and trust of the local communities, which is especially important in the beginning of the process. Also, the Indigenous Peoples’ and local communities land governance institutions often require strengthening to manage land rights and uses after their formalization.
The actual formalization process should utilize principles of systematic land registration where all types of tenure (private, communal, and public) within a pre-defined area (e.g. village, district, etc.) are surveyed, adjudicated, registered, and titled simultaneously. This ensures that all types of tenure have equal treatment and improves cost efficiencies. In forestlands, the systematic land registration process often requires it to be complemented with forest zoning (e.g. totally protected zone, controlled use zone, buffer zone, etc.) as this often defines what bundle of rights can be acquired by the land holders. Ideally, such zoning should be aligned with the customary use of the forests. If this is not the case, the zoning should be reviewed as part of the formalization process. Both forest zoning as well as systematic land registration need to include a strong public awareness and sensitization process that brings in all relevant stakeholders and has special measures to involve women and other vulnerable groups. If the formalization is taking place in Indigenous land, the Free, Prior and Informed Consent (FPIC) of the impacted Indigenous community needs to be ensured before activities can begin. The surveying and adjudicating forestland parcels should utilize the principles of fit-for-purpose land administration. This includes lowering surveying accuracy requirements and utilizing aerial and/or satellite imagery when delineating boundaries of large communal parcels. The adjudication process should use social verification and soft evidence of rights, instead of strict burden of proof. Public displays of ownership and boundary information should be organized in the local language to verify the outcomes.
The land registry and land information system that hosts the formalized land rights should also include data on land concessions and licenses to identify and avoid potential overlaps. The recorded land rights information also allows monitoring and control of forest encroachment when it is combined with land use restrictions and near-real time data of deforestation. Finally, land information should be made available to the public and other government agencies to enhance sustainable forest management and governance.