Rights and Responsibilities Devolved

Having explored formation, operation and outcomes of grassroots organisations as recipients of forest devolution, this section now turns to the second aspect of devolution policies, namely rights and responsibilities transferred. By looking at different types of transferred management authority, the classification of Edmunds et al. (2003a) overlaps with that of Sikor and Tran (2007), who classify devolution based on the governance relations that devolution programmes seek to set in place, such as how rights are divided between central government and the recipients of devolved management authority. Devolved rights and responsibilities involve the management of either specific forest products (e.g., non-timber forest products (NTFPs)) or forest as a whole (Edmunds and Wollenberg, 2003).

Property rights lie at the heart of debates about rights and responsibility of local resource users in the devolution process (Knox and Meinzen-Dick, 2001; Edmunds et al., 2003a). Property rights, in this sense, refer to the authority acknowledged and supported by law, custom and/or convention to undertake a particular action relating to a resource (Ribot and Peluso, 2003). Schlager and Ostrom (1992) divide property rights into five types, namely: rights of access (i.e. rights to enter a resource); rights of withdrawal (i.e. rights to obtain a product from a resource); rights of management (i.e. rights to regulate internal use of a resource); rights of exclusion (i.e. rights to decide who can and cannot access a resource); and rights of alienation (i.e. rights to sell or lease the last two rights). When all five rights are bundled together, a full property right is seen. When this full right is shared by a group of people, a complete common property right is allocated (Barsimantov et al., 2011).

In addition to the above typology, Schlager and Ostrom (1992) further differentiate property rights into de jure and de facto rights. They consider de jure property rights to be rights enforced by government departments, who grant lawful recognition to resource users to use and manage concerned resources. In contrast, de facto property rights are often recognised among resource users but not by government authorities. De jure rights granted to local people under devolution policies are often curtailed in practice, because of users’ uncertainty regarding their rights, local elite domination, or de facto control by the government (Thoms, 2008). This is one of the factors that obstruct the success and sustainability of induced grassroots organisations at the case study sites and will be revisited in Chapter 6 and 7. Furthermore, de jure property rights may or may not match de facto rights. This often depends on whether or not communities accept state

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attempts to define tenure and whether state definitions of tenure align with existing local tenure arrangements (Barsimantov et al., 2011; Chapter 6).

This classification of property rights characterises the typical power struggle between states and their citizens over control of natural resources. This occurs when different resistance strategies by local resource users are employed to claim resources from the state, especially in areas where state and customary authorities overlap (more on resistance strategies: see Section 2.5). Often in these situations, claims for customary (de facto) rights by some local actors are ignored by devolution policies. Even when devolution policies recognise the customary rights of some local actors, it is done in such a way that it weakens the customary rights of other actors by failing to acknowledge them (Sikor and Tran, 2007).

A common property regime is defined as institutional arrangements for the cooperative (shared, joint and collective) use, management and, sometimes, ownership of natural resources (McKean cited in Humphreys, 2006). This regime allows an identifiable group of interdependent users to exclude outsiders and regulate use by its members, and rights are often recognised by customary law (Jones and Carswell, 2004). Co-management or joint management models (to be discussed further) restrict the property rights of local actors to use rights (Agrawal, 2001b). The common property regime under community-based NRM (CBNRM) is, in fact, a form of shared private property, where access and rights to resources are reserved for a specific community or communities. This is markedly different from an open-access common property regime, where rights to resources are not regulated, and they can be exploited by anyone (Bromley, 1989). The communities at the case study sites of this study suggest using individual rights of access and withdrawal in combination with collective management structure to manage natural forests (see Section 7.5), which is different from both common property and shared private property.

Property rights are widely recognised as important components of sustainable NRM because the manner in which people use natural resources depends upon the property rights regimes governing these resources (Behera and Engel, 2006). Studies show that, where community conservation initiatives are implemented with local people enjoying legal ownership of the area and tenurial security through rights over resources, it is more likely that these resources will be managed sustainably (see Bigg and Satterthwaite, 2005). This is because, by holding full property rights, local people are allowed to control the benefits and cost of protecting a natural resource. This encourages them to manage it for the long term, especially if they can see how these costs and benefits can enhance their livelihoods (Barrow et al., 2000; Gibson and Becker,

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2000; Bigg and Satterthwaite, 2005; Fisher et al., 2005; Brown et al., 2007). This is the case for the success of CBNRM programmes in India (see Nongkynrih, 2006) and the Philippines (see Potter, 2008), especially because national laws in these two countries recognise traditional ownership (and practices and customs) of local people over natural resources as legitimate institutions for NRM. However, full property rights cannot always been secured for local resource users especially in protected areas or in countries like Vietnam where state owns all natural resources (see Chapter 4). As a result, it is important to explore a flexible arrangement for property rights that work in these contexts. This is one of the objectives of this study and discussed in Chapters 7, 8 and 9.

Having discussed property rights to highlight core issues relating to rights and responsibilities transferred under devolution policies, this section now examines rights and responsibilities towards specific forest products, or forest as a whole, in the context of JFM and CBNRM initiatives. In Nepal, Thoms (2008) observed that rights and responsibilities given to CFUGs have been extensive. According to law, CFUGs are permitted to sell and set prices for forest products, and enforce rules governing access and withdrawal (Thoms, 2008). Generally, each member household of a user group is allowed to harvest an equal amount of a given forest product, regardless of household size or income. Those members who do not need the product are allowed to sell their surplus to other users or other people in nearby communities (Thoms, 2008). In addition, the government does not take a share in the income generated by CFUGs from sale of forest products, membership fees and fines for rule violations (Pokharel, 2008). In theory, with comprehensive transference of rights, some improvements to local livelihoods should be expected. In Nepal, Dev et al., 2003 and Yadav et al., 2003 argue that community forestry has both direct and indirect livelihoods impacts, including improved natural capital (in terms of regenerated forests) and social, physical, financial and human capital (in terms of sale of forest products, and empowerment of women and low caste groups). In other Asian countries, devolution policies have been observed to provide direct benefits to at least some local forest users in almost every case (see Edmunds et al., 2003). These benefits include improved access to forest products, support for alternative livelihoods and access to outside financial support, which (with some caveats) contribute to the improvement of livelihoods of some forest users (Edmunds and Wollenberg, 2003).

Despite being characterised, in theory, by the sharing of property rights over natural resources (either forest products or forest as a whole) between communities and the state, the reality of

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transference of rights under participatory NRM models, such as JFM and CBNRM, tells a different story. In China, for example, under reforms of the state forest sector, administrative villages and individual households have been granted increased responsibilities and rights regarding forest management under various tenure arrangements and forest management institutions. However, the central government still maintains considerable control over forests through taxes and state regulations on harvest and sale of timber products, which constrain the ability of farmers to make realistic decisions about the forests they purportedly own (Dachang and Edmunds, 2003). Elsewhere in Asia, local people’s property rights over natural resources are often limited to the use of certain natural products (i.e. rights of access and withdrawal), and do not extend to authority in deciding what management mechanism should be in place for those products (i.e. rights of management) (Agrawal, 2001b; Woodcock, 2002). In India, rights transferred under JFM are only administrative, not legal rights, and as such can be withdrawn at any time (Behera and Engel, 2006). Other types of rights, such as withdrawal rights, alienation rights and power for enforcement have been transferred to communities only to a very limited degree (by powerful forest departments) (TERI, 2004; Behera and Engel, 2006).

In addition, devolution of right and responsibilities do not often advance livelihood improvements for local resource users. In many JFM initiatives, livelihood opportunities are not considered together with transference of rights and responsibilities, thus raising vulnerability for local people living near forests (see Gibson and Marks, 1995; Oates, 1995, 1999; Fisher et al., 2000; Kumar, 2002; Holmes, 2003; Edmunds and Wollenberg, 2003; Wollenberg et al., 2008; Pulhin and Dressler, 2009; Bhattacharya et al., 2010). Also, forests that are under the management of local people in JFM or CBNRM programmes are not often in good condition, with strong presence or growth of subsistence products (Banerjee, 2000; Edmunds and Wollenberg, 2003). In this regard, legal access to these forests does not guarantee benefits to right-holding villages, which is also seen at one of the case study sites (see Section 7.3 in Chapter 7). In other cases, where access to forest products are transferred to local people in JFM, they are usually limited to non-commercial products (see Edmunds and Wollenberg, 2003; Edmunds et al., 2003b; Thoms, 2008). In addition, in places where biodiversity is robust (e.g. in many parts of Africa), governments often do not trust local people to devolve rights and responsibilities to them (see Wily, 1999 cited in Woodcock, 2002), or more powerful resource users (such as SFEs in the case of Vietnam; see Chapter 4) are given first priority to forest resources. In this regard, benefits emerging from devolution policies for local people often remain limited (Edmunds et al., 2003a), with the poor being most affected. This is because poor

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households tend to be the most dependent on forest and other common resources (at least in relative, if not absolute terms), especially in the case of crop failure or family distress (Beck and Nesmith, 2001; Arnold, 2003; Dev et al., 2003; Sunderlina et al., 2005; International Fund for Agriculture Development, 2007; Shackleton et al. in Thoms, 2008; see also Chapter 5). For this reason, for transference of rights and responsibilities to be effective, they should form part of sustainable livelihood strategies that also aim to protect natural assets (see Chambers and Conway, 1991; Scoones, 1998; Farrington et al., 1999; Sunderlina et al., 2005). These aspects of rights devolution are also observed at the case study sites and discussed in Section 7.3 in Chapter 7.

Improvements to livelihoods notwithstanding, transference of rights and responsibilities has not yet contributed significantly to the advancement of equity. In a review of 30 case-study publications in India and West Africa, Beck and Nesmith (2001) find a gradual but systematic exclusion of the poor from accessing common property resources, including forests, which increases the vulnerability of their livelihoods. In the case of CBNRM in Nepal, although communities are given rights and responsibilities over forest as a whole, these forests are often closed immediately after being handed over to communities (on the advice of forest departments for the objective of maintaining and conserving forest resources). This forces the poorest out of communal forest resources that they previously depended on for their subsistence needs (Springate-Baginski et al., 2003). In its turn, this likely results in reduced incentives for sustainable resource management and even provides incentives for over-exploitation of forests for quick economic benefits (Behera and Engel, 2006; Bhattacharya et al., 2010; Chapter 6). In summary, when devolution policies aim to enhance participation of local resource users through transferring them rights and responsibilities over forest management, they are expected to contribute to poverty alleviation, improved distribution of benefits, and realisation of more sustainable use of natural resources over time (Crook and Sverrisson, 2001; Sundar, 2001; Ribot, 2002b, Edmunds et al., 2003a). In contrast to this aim, the review of rights and responsibilities transferred under devolution policies presented here reveals considerable scepticism about the extent to which powers of decision making and enforcement are really being devolved. Very often, there is discrepancy between the responsibilities that people are given and the rights and powers they have (including the power to act on their responsibilities) (Fisher, 2000).

In this line of argument, many attempts at devolution exhibit a common pattern in which the local level actors are expected to implement objectives set at a central level (Fisher, 2000). This

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effectively shows the participation of local resource users as tokenism. This might explain recent observations that CBNRM has largely failed to deliver the expected and theoretically predicted benefits to local communities (Blaikie, 2006) and that forest devolution in general is merely “a

shift in the manner in which central governments control forest, rather than a genuine shift in authority to the poorest resource users” (Edmunds and Wollenberg, 2003:158). In this regard,

motivation of states to encourage functional participation of people (Pretty, 1995) in implementing centrally set objectives simply reduces NRM costs they otherwise have to bear in full. As such, it is not surprising that the rights and responsibilities that are transferred tend to be those of restoration, protection and monitoring rather than those of empowerment of local communities or power sharing between state and non-state actors (see Potter, 2003). This pattern is also seen at the study sites and discussed in Section 7.3 in Chapter 7).

2.5. The Relationship between Existing Local Management Practices