The FAO/SIDA Forests, Trees and People Programme, coordinated within FAO by the Community Forestry Office, is focused on strengthening the approaches, methods and tools to help forest services, activity managers and rural leaders support and strengthen the effectiveness of the management role and the benefits rural people have in relation to their forest and tree resources. In selecting topics which should be examined within this focus, tenure was considered a central issue which must be addressed.
The failure to clearly understand existing rights in land and trees has been a common cause of failure in community forestry projects. Individual incentives are as a result often misjudged, and the benefits of projects are distributed quite differently than intended. For the designers of a forestry initiative, the existing system of tenure in land and trees is almost, if not quite, a given.
Can we understand systems of tenure through rapid appraisal? Not thoroughly of course, but can we understand enough to make the effort worthwhile? As in all rapid appraisal, the need is for a certain amount of structure and discipline in inquiry which can save us from gross subjectivity and tunnel vision.
Dr. John Bruce, Director of the Land Tenure Center, University of Wisconsin, Madison, Wisconsin, was asked to develop a framework for more effective analysis and design of community forestry activities. The task is inherently difficult because in grappling with tenure one moves beyond the readily observable into the realm of values and norms. The framework adopted here is to first consider tenure issues within three broad tenure types (the holding, the commons and the reserve), and then examine, from the point of view of the household, the opportunities for tree planting and use under each of the three types of tenure. While there are obviously limits to how far one can go with such issues in rapid appraisal, it should be possible to significantly reduce tenure-related design problems in projects through the procedures suggested here. If the issues raised cannot be adequately explored during rapid appraisal, they can be flagged for further investigation.
Dr. Bruce's document has been reviewed both within the Forestry Department and the Economic and Social Policy Department as well as by an-Expert Consultative Group and judged to be of highest quality. It is, however, a new approach. It is therefore being produced first in draft in order that some experience can be gained in different locations to assess how it may need to be modified to fit specific sites. It is hoped that a number of readers will have a chance to try this framework and comment so that the document may be finalized with any modifications required. Comments should be addressed to:
The Community Forestry Officer
Policy and Planning Service
Forestry Department, FAO
Via delle Terme di Caracalla
00100 Rome, Italy
Tenure is a matter of "rights," the rights which are held in land and trees. The study of tenure is the examination of the nature of those rights, their origins, their operation and how they relate to a multitude of other matters, including the planting and conservation of trees.
As we begin, let us be clear on some terms. By "tenure" is meant the set of rights which a person or some private or public entity holds in land or trees. A "tenure" is a "bundle of rights." Particular combinations or "bundles" of rights in resources are recognized by law and custom in particular societies. The people affected will have a name for recognized tenures: "ownership" or "usufruct" are examples of Western tenures. Some tenures consist of a fairly clearly prescribed bundle of rights but the content of others, "leasehold" for instance, can be determined to a large extent by contract between the parties. A "tenure system" is the set of tenures in a given society. There are usually several different tenures in a tenure system, for different land uses or types of users, but they should constitute a coherent system, complementing one another. So we speak of the "land tenure system" of the Naga (which would be the land tenure system of that group, including effective elements of national law) or the "land tenure system" of India, which would include national land law and the tenures it recognizes plus all the particular local tenure systems.
Tenure comes in a bewildering diversity of forms. Some Third World farmers are using land or trees under "freehold," "leasehold" and other tenures from Western law, but many others cultivate under indigenous land tenure systems. These systems, though there are "family resemblances" among some of them, have evolved to meet specific needs of particular peoples, in specific environments and using certain technologies. They are so diverse as to make generalization difficult. Today, national land legislation often seeks--not necessarily successfully--to homogenize tenure, overriding local, particularistic tenure systems.
That tenure in land and trees affects tree planting and conservation is not new knowledge: it has long been a part of the folk consciousness of farmers throughout the world. An old English epigram says that "oaks scorn to grow except on free land," suggesting that holders of land under insecure or servile tenures did not plant oaks, a slow-maturing hardwood. But the impact of tenure on tree planting and conservation will vary from case to case. It will vary depending on the nature of the tenure arrangements, and on a wide variety of other factors. Tenure is after all only one factor affecting tree planting, and its importance relative to other factors will vary from one situation to the next. To state the obvious, no tenure arrangement will encourage farmers to plant trees for whose products there is no need, or plant trees where rainfall cannot sustain them.
This diversity in tenure systems prevents easy generalization about tenure and its impact on trees, but it does. not rule out the development of broadly relevant lines of inquiry for rapid appraisal. We can identify three broad types of tenure situation (or tenure "niche") which tend to be closely related in practice to particular management arrangements and ecological niches. Rocheleau uses the term "socio-ecological niche" for a similar but slightly broader concept (Rocheleau 1988). These types of tenure niche can structure our discussion:
THE AGRICULTURAL HOLDING. The majority of farm units in most countries consist of individual or household farming operations. Tree planting on these holdings takes a variety of forms: monocropping, alley-cropping, windbreaks, etc. Here the key tenure issue is thought to be the extent to which the farmer has the security of tenure needed to invest in trees. Trees are slow-maturing and_ so constitute a long-term investment. Their costs, including opportunity costs, may not begin to be recovered for some years, and complete recovery will require a long period. The farmer will want to be sure he or she can hold onto the trees until those costs can be recovered; there is a need for secure tenure.
THE COMMONS. A communal forest or a village woodlot is a "commons." Tenure and management are vested in a community, and the critical issue is the effectiveness of community resource management. The community may be a lineage, a village, an age-set, a religious group, or a cooperative. In the classic commons the members have rights to utilize land or trees concurrently or sequentially as individual producers. But unlike the holding, no user has the right to exclude others. The group does have the right, however, to exclude non-members from the use of the resource. Common property situations may involve broader or narrower rights of exclusion by the community and greater and lesser effectiveness in the exercise of those rights.
THE GOVERNMENT FOREST RESERVE. Units of government (national, regional or local) may own forests and seek to protect forest resources. The forest may be a natural forest, sheltering biological resources and genetic diversity of great value. Or it may be managed for commercial production, with areas periodically cut and replanted. Governments have asserted the need to create reserves to protect forest from non-sustainable use in free access or ill-controlled commons situations. While exclusion of farmers is the critical concern in creation of reserves, ineffective control by the state means that use sometimes continues on a furtive or even open basis.
Is this all a part of what we call community forestry? For instance, agroforestry is currently attracting a preponderance of attention in forestry project design. Agroforestry is the integration of trees into a farming system, with growing of food and other corps, animal husbandry and other agricultural activities. Agroforestry has generally been associated with the agricultural holding. Is agroforestry community forestry? First, agroforestry can occur on the commons, as when a communal forest is used for livestock grazing, or in the state forest reserve, as when taungya farmers grow food crops among seedlings. Second, when it is practiced on a holding, it is still community forestry in an important sense: the community creates the framework of law and custom which gives the holder tenure in the land and trees and creates the mechanisms which protect tenure.
Even more important for present purposes, in project design it is impossible--or at least very unwise--to consider tree planting on the agricultural holding in isolation. This is because the household which is making decisions about trees on the holding is involved in a farming system which overflows the holding into the commons and sometimes into the forest reserve. The household's decisions about trees are made in terms of its overall access to tree products, whether on or off the holding.
The household may have tenure in all these situations. The tenure will be most extensive and exclusive over the agricultural holding but the household may also have use rights in a communal forest as a member of a village or clan and may have a right, for instance, by license from the state or by accepted custom, to gather forest products from a forest reserve. A household's options concerning trees in any one of these situations cannot be defined in isolation--they all constitute part of the farming system. A strategy for adoption of new forestry practices by households is the key component in design of a community forestry initiative.
This paper utilizes the three management situations--the holding, the commons and the reserve--because one can ask a set of broadly relevant tenure questions about each situation. But it will also repeatedly return to the perspective of the farm household, which is involved in all three situations and must think about all of them together.
There is a need for one more concept about tenure before looking at the role it plays in projects and project design. The concept is "tree tenure," as opposed to land tenure, and the term has come into general use only within the last few years.
People who have been exposed only to the more familiar forms of western property law often assume that trees are part and parcel of the land on which they grow. They are "fixtures," and like buildings are assumed to be owned by whoever owns the land. But, in fact, trees can like minerals and water be an object of property rights separable from the land on which they are located. That there can be rights in trees is obvious to anyone who has witnessed the Japanese transplanting a twenty foot tree carefully wrapped in rice straw or the wholesale movement of twenty-five foot palm trees from a nursery to a California subdivision. These are examples in which the trees have been severed from the land, but many tenure systems confer property rights in standing trees quite distinct from the land on which they stand.
A tree tenure regime can be complicated, drawing important distinctions on several bases, as is indicated by the following excerpt from Obi on classification of economic trees under Ibo customary law. A tree tenure regime may distinguish between planted trees and wild trees. Even where the ownership of land is one determinant of ownership of the tree, the species of tree may be subject to particular tree tenure rules which affect the outcome. Rights to use trees' products may also depend upon the nature of the use, for instance whether the produce is taken for personal or commercial use. Rights in a tree may be distributed among several individuals, often according to provision of labor and other productive factors.
Tree tenure is a system of property rights every bit as variable as land tenure, mineral rights or water rights. Tree tenure is not some bizarre phenomenon found in out of the way places, and it should no longer be treated as an exception. Questions about rights in trees must be asked together with those about rights in land, and the relationship between the rights understood. We are only beginning to understand the potential of rights in trees as development tools. They provided West African commercial cocoa farmers with liquidity for a wide variety of purposes, allowing their trees to serve as security for loans since they could not legally mortgage their customary tenure holdings (Adegboye 1969). Where there are weak individual rights in land, whether because shifting cultivation is still practiced or for other reasons, tree tenure may provide the requisite security of expectation. Similarly, where some class of individuals is disadvantaged in terms of land rights--for example, women who hold land only as their husbands' wives--tree tenure may provide the necessary incentive through security of tenure in the trees themselves. And in socialist states, where nationalization of land may have diluted farmers' incentives to plant trees, perhaps tree tenure can provide the needed security and incentives. If we focus on tree tenure as well as land tenure, we will be more likely to discern such potentials and, eventually, to better gauge their effectiveness. We will also notice problems of tree tenure. Louise Fortmann has stressed importance of tree tenure in agroforestry initiatives, and she suggests a classification of tree tenure issues in the excerpt which follows.
One or two general principles stand out clearly in connection with rights and interests over economic trees. . . .
1. If economic trees are self-sown they belong to the owner or owners of the soil on which they grow. But if they are planted by man, they are the property of the person who planted them. It makes no difference on whose land they were planted. Nor is it material that the permission of the landowner was not obtained before the planting was done, bad faith apart. . . .
Economic trees growing wild on communal reserve land . . . are the joint property of all eligible members of the landowning group. The individual's rights therein are limited to freedom to act in common with others in accordance with recognized rules petaining to harvesting and appropriation of the produce. These rules vary from place to place. . . .
Economic trees growing wild on communal farmland [belong to] the individual who actually farms the area around a given tree. . . . This rule probably had its origin in the desire to prevent damage to crops by one member exercising his right of entry among another member's growing crops. . . .
2. Sale or other transfer of land does not necessarily carry with it any rights or interests in economic trees growing thereon. Thus in the absence of express agreement to the contrary, the vendor, pledger or lessor of land retains full rights over all economic plants on it, including the right to go on the land in question for the purpose of enjoying these rights, e.g., harvesting the year's crops. Similarly, on apportionment of communal, or family land, the trees remain in common ownership, unless and until arrangements are made for their distribution.
S.N. Chinwuba Obi, "Rights in Economic Trees," in Whose Trees?: Proprietary Dimensions of Forestry, eds. Louise Fortmann and John W. Bruce (Boulder: Westview Press, 1988), at pp. 34-38.
In any agroforestry system tree tenure issues must be carefully examined to avoid the following problems.
1. The loss of rights may result from an agroforestry project as a consequence of a number of factors:
a. The project may disturb or destroy rights to other uses of the land or the trees on it . . .
b. Certain practices for cultivating and protecting trees may result in the loss of gathering rights.
c. When the value of trees is increased there is a tendency for both land and tree tenure to shift from communal to private holdings . . .
2. The protection of the trees can be a problem. The ability to exclude others from the use of trees and tree products is essential if tree planters are to reap the benefit of their investment. . . . While one may have a legal right to prevent others from using resources including trees, in communities based on a system of reciprocal rights and obligations this is often very difficult to do. The personal or institutional capacity to enforce exclusionary rights may be very small indeed. . . .
3. Certain categories of users may be unable to participate in the project because they do not have the right to plant or own trees. This is likely to be true of the landless, those with temporary claims to land, and women. In many places, these three categories singly or in combination will comprise the majority of the population. Thus, a project which does not take this into account may end up serving a relatively advantaged minority of the population, or such a project may be destroyed by those who are excluded from it.
4. Because trees can be used to establish rights to land, it is necessary to monitor who is planting project trees where. Agroforestry projects can be used by private individuals to establish private claims to communal land. Similarly, it is necessary to ensure that the community accepts the planting of trees on community land for otherwise disenfranchised people.
Louise Fortmann, "The Tree Tenure Factor in Agroforestry with Particular Reference to Africa," Agroforestry Systems 2 (1985), at pp. 240-243.