Legal frameworks for forest management in Asia - ScholarSpace

Occasional Papers of the Program on Environment

1993

Paper No. 16

Legal Frameworks for Forest Management in Asia Case Studies of Community/State Relations

edited by

Jefferson Fox

with assistance f r o m

Owen Lynch, Mark Zimsky, Erin Moore, and Helen Takeuchi

E A S T - W E S T

C E N T E R

Legal Frameworks for Forest Management in Asia

Case Studies of Community/State Relations

edited by Jefferson Fox

with assistance f r o m

Owen Lynch, Mark Zimsky, Erin Moore, and Helen Takeuchi

East-West Center Program on Environment

1777 East-West Road Honolulu, HI 96848

Occasional Paper No. 16 1993

Library of Congress Cataloging-in-Publication Data

Legal frameworks for forest management in Asia : case studies of community/state relations / edited by Jefferson Fox ; with assistance from Owen Lynch, Mark Zimsky, Erin Moore, and Helen Takeuchi.

p. cm. — (Occasional paper ; no. 16) Includes bibliographical references. ISBN 0-86638-158-9 1. Forest management—South Asia. 2. Community forests—Law and

legislation—South Asia. 3. Social forestry programs—Law and legislation—South Asia. 4. Forestry law and legislation—South Asia. 5. Forest management—South Asia. 6. Community forests—Law and legislation—Asia, Southeastern. 7. Social forestry programs-Law and legislation—Asia, Southeastern. 8. Forestry law and legislation—Asia, Southeastern. 9. Forest management—Asia, Southeastern. I. Fox, Jefferson, 1951- II. Series: Occasional paper (Program on Environment (East-West Center)) ; no. 16. KNC800.L44 1993 346.7304'675-dc20 [347.3064675] 93-11400

CIP

Jefferson Fox is a Fellow with the Program on Environment, East-West Center. He has worked on designing and implementing joint community/state resource management plans in Asia for more than a decade.

© 1993 by the East-West Center All rights reserved Printed in the United States of America

CONTENTS

List of Figures and Tables v

Preface v i i

Introduction i x Jefferson Fox

P A R T I: INDIA, J A V A , A N D B A N G L A D E S H

1. The Legal Framework for Joint Management of Forest Lands in India 3

M a r k Poffenberger a n d C h h a t r a p a t i S i n g h

2. Forest Protection Committees in West Bengal, India 19 S. B . Roy

3. Contractual Agreements in the Java Social Forestry Program 31

F r a n c e s j . Seymour a n d D a n i l y n R u t h e r f o r d

4. A Strategy for Saving the Madhupur Sal Forest in Bangladesh 39

M o h i u d d i n F a r o o q u e

P A R T II: T H E PHILIPPINES A N D T H A I L A N D

5. Development Assistance and Property Rights in the Philippine Uplands 53

D o n n a Z . G a s g o n i a

6. Strengthening Community Stewardship Agreements in the Philippines 73

Jefferson R. P l a n t i l l a

7. Legal Issues in Forest Land Management in Northeast Thailand 89

V i y o u t h C h a m r u s p a n t h

8'. Drafting a New Community Forest Act in Thailand 97 Weera A t t a n a t h o

9. Community Forestry Legislation in Thailand: A n N G O Perspective 105

Yos Santasombat

/ V

PART III: O U T E R I S L A N D S O F I N D O N E S I A

10. The Legal Case for Social Forestry in the Production Forests of Indonesia 115

S o p a r i Wangsadidjaja a n d Agus Djoko I s m a n t o

11. Toward Community-Based Forestry and Recognition of A d a t Property Rights in the Outer Islands of Indonesia 131

S a n d r a M o n i a g a

12. Differential Access to Resources and Conflict Resolution in a Forest Concession in Irian Jaya 151

I w a n Tjitradjaja

13. The Parieri Land Dispute: A Case Study from Biak 161 A u g u s t i n u s R u m a n s a r a a n d Decky R u m w a r o p e n

PART IV: C O N C L U S I O N

14. Contractual Agreements for Community-Based Social Forestry Programs in Asia 173

Frances ]. Seymour a n d D a n i l y n Rutherford

Contributors 189

Abbreviations 191

References 193

V

FIGURES AND TABLES

Figures

4.1 Madhupur Sal Forest, Bangladesh 40

13.1 Parieri and surrounding area, East Biak 163

Tables

1.1 Community-based forestry management policies in three Southeast Asian countries xiv

1.1 Community-based forestry management policies in India 8

2.1 Number of forest areas, forest protection committees,

and members in West Bengal 20

5.1 The various types of D E N R documents issued 56

5.2 Comparison of D E N R programs 57

5.3 Selected provisions of D E N R programs 58

5.4 Philippine areas under concession 60

6.1 Factors determining inclusion of forests in ISFPs 75

11.1 Comparison of forest land and actual forest in 1982 by classification 135

13.1 Recent history of government and people's interests in the agathis complex at Parieri 168

vii

PREFACE

The papers presented in this volume were prepared for a workshop sponsored by the East-West Center Program on Environment and the Ford Foundation from November 4 to 6, 1991, in Bali, Indonesia. The workshop focused on the legal mechanisms used in Asia for managing state forest lands through community participation programs. The editors hope these papers wi l l lead to a better understanding of the strengths and weaknesses of existing legal arrangements for community participation in the management of state forest lands. Except for the papers by Tjirradjaja and by Rumansara and Rumwaropen, the voices heard in these papers are the voice of legal scholars, foresters, and natural resource managers seeking to design sustainable legal frameworks for forest management.

The book developed in two stages. In the first stage, many of the authors of these papers were invited to the East-West Center for a 6-week period in the summer of 1991 to write their papers. The best of these papers were selected for presentation at the Bali meeting with the addition of a few other papers. The result is the present volume.

I have benefited from the comments, suggestions, and support of numerous people and organizations. The impetus for a workshop focusing on legal mechanisms for managing state forest land came out of discussions with Frances Seymour, then a Program Officer with the Ford Foundation in Jakarta. Workshop participants were identified by Ford Foundation program officers throughout the Asian region—David Thomas in Bangkok, Frances Korten in Manila, Jeffrey Campbell in New Delhi, Asmeen Khan in Dhaka, Nicholas Menzies in Beijing, and Eva Wollenberg in New York. The workshop benefited from their contributions—both substantive and financial.

The summer workshop was greatly assisted by the able advice of Owen Lynch, a lawyer with the World Resources Institute. Mark Zimsky, then a graduate student at the Yale School of Forestry, worked with workshop participants on an individual basis in writing and editing their papers. Erin Moore provided invaluable editorial assistance. Charles Zerner provided detailed and useful comments on the original manuscript.

At the East-West Center, the book benefited from comments by Richard Morse and Michael Dove. I am also grateful to East-West Center staff for their contributions: Tammy Jones and Gidget Tsui who typed the numerous drafts of this book, Laurel Lynn Indalecio drew the figures, and Helen Takeuchi and Daniel Bauer provided invaluable editorial assistance.

v//7

Certainly one of the most exciting and promising trends in forest management in Asia has been the development of a variety of joint or co-managed schemes on state forest lands. These strategies have arisen in response to intense conflicts over access to and control of forest lands and resources, conflicts that have led to degradation or elimination of forest cover. These papers, I hope, will lead to a better understanding of the strengths and weaknesses of existing legal arrangements for community participation in the management of state forest lands. This work is timely, given the growing worldwide interest in integrating traditional resource management systems into national-level management plans. I hope that the approaches outlined here can be adapted and applied to forest management in other countries and that this book will stimulate others to carry out further work on this important topic.

Jefferson Fox Honolulu, 1993

i x

INTRODUCTION

Jefferson Fox

Since the colonial period, South and Southeast Asian countries have increasingly invested control of the region's forest resources in centralized resource management agencies. Land legislation either ignored or little recognized the customary rights of long-term occupants or indigenous communities. Today the acceleration of deforestation indicates that these centralized agencies are failing to manage forest resources in a sustainable manner. While many scientists argue that environmental problems in South and Southeast Asia are the result of population growth and the commercialization of natural resources (e.g., see Al len and Barnes 1985; Grainger 1986; Panayotou and Sung-suwan 1989), the most significant factor may be the failure of existing institutional arrangements to rationally manage scarce resources.

In recent decades many of the common property management regimes that once existed throughout Asia have collapsed under a variety of pressures (Jodha 1990). Population growth and commercialization of forest products are two of the major factors behind this collapse. But perhaps the most significant factor affecting the collapse of common property systems has been the extension and intensification of state authority that has placed control over rural communities and resources in the hands of government agencies and corporations that lack either the wi l l or the means to manage forests in a sustainable manner. Through this process, "communities lose the authority to restrict use of state forest land, while forest departments lack the organization capacity to control access" (Poffenberger 1990b).

This problem is not insignificant. In the Philippines, for example, more than 50 percent of the country's total land area is upland forest under the authority of the Department of Environment and Natural Resources (Lynch and Talbott 1988). Over 14 mill ion indigenous people and migrant settlers live inside state forests (Cruz 1986). In Indonesia, the Ministry of Forestry with a staff of 50,000 attempts to regulate human use of 74 percent of the country's entire land area. M u c h of the state-claimed forest land is inhabited by swidden and sedentary farming communities. Estimates of the number of people l iving on or near this land range from 30 to 40 mill ion people. In Thailand, the Royal Forestry Department with a staff of 7,000 administers 40 percent of the nation's land area (Poffenberger 1990c:101). Although the governments of Southeast Asia have been relatively successful in claiming large areas of forest for the nation, they have been less successful in establishing management structures that ensure the sustainable management of this land.

x Jefferson F o x

In many South and Southeast Asian countries today, a number of programs known as social forestry, community forestry, or joint forest management are found. These programs differ in many respects, but they share the common objective of developing new institutional mechanisms for providing direct linkages between people's use of the environment and personal consequences of those uses. In this volume, we use the terms social forestry, community forestry, and joint forest management interchangeably.

Common Property Theory

Common property theory provides the theoretical underpinning of community-based resource management systems. Property theory recognizes four general categories of property rights (Bromley 1992), including:

• Open access—absence of well-defined property rights. Access to resource is unregulated and is free and open to everyone.

• Private property—right to exclude others from using the resource. These rights are recognized and enforced by the state.

• Communal property—resource is held by an identifiable community of interdependent users. Users exclude outsiders while regulating use by members. Communal rights may be legally recognized or de facto. Communal property rights tend to be more successful when they are recognized and enforced by the state.

• State property—rights to the resource are vested exclusively in the government.

Since publication of Hardin's (1968) formulation of the "tragedy" of the commons, common property regimes have been the subject of careful study. Contrary to Hardin's argument, common property regimes are not free-for-alls but consist of well-defined ownership arrangements within which management rules are developed, group size is known and enforced, incentives exist for co-owners to follow accepted institutional arrangements, and sanctions work to ensure compliance (Bromley and Cernea 1989). Resource degradation often originates in the destruction of local-level institutional arrangements whose very purpose was to create sustainable resource use patterns. When local-level institutional arrangements are undermined or destroyed, common property regimes gradually convert to open access. Open access is a free-for-all in which the rule of capture drives each player to get as much as possible before the others do. While this has been referred to as the "tragedy of the commons," it is, in reality, the "tragedy of the open access" (Bromley and Cernea 1989).

I n t r o d u c t i o n x i

Prevention of escalation from commons situation to dilemma to tragedy is a function of property systems. Herring (1990:89) argues that Hardin's tragedy resulted not from a failure of common property, but rather a failure to preserve common pool resources precisely because no common property arrangements evolved to limit their use. Though the Hardin problematic focuses on disaster, commons situations raise as clearly the potential of collective action to create new institutions in a progressive rather than defensive sense.

In South and Southeast Asia there are clear empirical examples of the ability of small-scale social systems to overcome the tragedy of the commons in exactly this manner. Wade's (1988) work in India suggests that collective action problems have been overcome in villages in which the benefits of managing irrigation and grazing exceed a certain threshold level. Cooperation depends on the material benefits to be received.

Ostrom (1990) has reviewed a rich cornucopia of empirical cases describing the circumstances and histories of particular common property regimes and has extracted conceptual and theoretical conclusions. From the experience of six cases she reviews in depth, Ostrom exacts eight design principles for successful common property regimes. These design principles are essentially about two things: bounding the common property-using group (i.e., clearly defining limits of the group having access to the resource); and having an effective means of lowering the transactions costs of making and enforcing internal, collective decisions.

Ostrom's (1990:211) suggestions for assessing the sustainability of common property regimes are useful for assessing the design of social forestry programs. For groups under a political system that is indifferent to what happens to the common pool resource, Ostrom suggests that the likelihood of users adopting a series of incremental changes in operational rules to improve joint welfare will be positively related to a small, stable group of relatively similar people, with similar expectations and discount rates, who share generalized norms of reciprocity and trust, and who are able to achieve low governance costs. For groups that are not under an indifferent political system, there is an additional factor: the contribution of the surrounding political system in supplying and/or supporting appropriate local governance institutions.

Interestingly Herring (1990:89) classifies the type of "commons" situation dealt with in social forestry programs as "social ecology" (i.e., the conservation of a usable resource as a collective good), as opposed to "deep ecology," which he conceptualizes as the preservation of ecosystems as a public good independently of their utility as resources. In common property resources, "the natural is valuable insofar as it constitutes a resource, something to be exploited" (Herring 1990:94).

x i i Jefferson F o x

Joint Management: Forest Management Based on Community/State Partnerships

Recent political, economic, and social changes have undermined the management capacity of communities in South and Southeast Asia to protect forest resources. Few communities can manage forest resources in a sustainable manner through a simple transfer of use rights and responsibilities. In many forest communities, traditional methods of access control, usufruct allocation, and conflict resolution have become ineffective or have disappeared (Poffenberger 1990a:282). Local elites may attempt to capture community forestry management programs for quick profits, creating conflicts and mismanagement. Through use and presence on these lands, millions of more recent migrant settlers have justifiable claims on forest resources; but these communities often have little experience in managing forest lands.

Consequently, community participation in managing forest lands may be a necessary but insufficient condition for sustainable management. A s Ostrom suggests, national governments play important roles in community-based management systems. In social forestry programs, this includes enforcing a community's right to forest resources against outside interests; guarding the interests of the state against short-term profit takers; conducting research on silviculture, forest regeneration, and other topics of interest to community-based management; and providing technical support to local communities in developing community forest industries. Efforts to transfer management authority to forest communities thus must involve cooperation between the state agency and the local community in designing and implementing management policies.

But while the state plays an essential role in community-based resource management programs, there are inherent contradictions or tensions built into this role. Forest organizations attempting to implement such policies are subject to the influence of political, military, and commercial interests. The good intentions of these organizations are generally constrained by a complex and changing national policy environment, which often produces laws and regulations that inhibit attempts to decentralize management and extend greater responsibilities for resource administration to community groups. In addition, many Asian governments are still in the process of extending their authority into local communities, further eroding traditional rights and responsibilities. Peluso's (1992) discussion of the Java social forestry program, for example, concluded that the institutional interests of the State Forest Corporation (SFC) are antithetical to the interests of farmers; that the mandate of the SFC is contradictory to the social forestry program; and

I n t r o d u c t i o n x i i i

that the "social functions" of the SFC are actually an effort to secure control and security of forest lands.

C . Barber (pers. com.) argues that community-based forest management programs can be viewed as a revolutionary departure from the vision of the state as the sole legitimate representative of civil society, in that they acknowledge that the state and civil society are distinct social formations with often conflicting visions of how resources should be owned and managed. The danger lies in the fact that community-based forest management programs can also be viewed as an expression of state power and policy, utilized to assert greater state control over both the forest and the communities living in and around it.

The Papers

The papers in this volume were prepared for a workshop sponsored by the East-West Center Program on Environment and the Ford Foundation from 4 to 6 November 1991 in Bali, Indonesia. The workshop focused on the legal mechanisms used in Asia for managing state forest lands through community participation programs. The editors hope these papers wi l l lead to a better understanding of the strengths and weaknesses of existing legal arrangements for community participation in managing state forest lands. Except for the papers by Tjitradjaja and by Rumansara and Rumwaropen, the voices heard in these papers are those of legal scholars seeking to design sustainable legal frameworks for forest management. These are not the voices of the forest-dwelling peoples for whom these policies are meant to affect.

The first three papers in Part I describe the legal framework of community-based forest management systems in India and Java. These programs are based on forest protection committees where cooperation between the state forest departments and forest farmer groups is defined in contracts spelling out the specific rights and responsibilities of both partners as well as the length of the agreement. These are generally the most successful social forestry programs found in the region. Table 1.1 of this introductory chapter and Table 1.1 of Chapter 1 summarize pertinent characteristics of the community-based forest management systems found in South and Southeast Asia .

Mark Poffenberger and Chhatrapati Singh review resolutions for joint forest management recently passed by various Indian states. These resolutions recognize communities as management partners for specified tracts of government forest lands. Most of the states allocate all non-timber forest products for community use, whereas timber-sharing arrangements vary. Timber is allowed only for fuelwood in Bihar and

xiv Jefferson F o x

Table 1.1 Community-Based Forestry Management Policies in Three

Country Product Rights Responsibilities

Indonesia Java

Outer Islands

Philippines Integrated Social Forestry (CSC)

Agroforestry products intercropped with timber species (no right to timber)

Rights to exploit and benefit from forests as long as these activities do not infringe on basic forest law

Exclusive use rights

Follow FD directions; repay loans; guard and protect forests; meet timber seedling survival standards

Not specified

Responsible land stewardship

Community Forestry Stewardship Agreement (CFSA)

Sharing of income from sale of timber, MFP

Responsible land stewardship; form a legal nonprofit organization

Ancestral Domain Not specified

Thailand Forest Village Program 2.8 ha of agricultural

land; 0.8 ha for home lots

Responsible land stewardship; form a legal nonprofit organization


Stewardship Certificate 2.8 ha of agricultural Program (STK) land use


MFP = Minor (nontimber) Forest Products; FD = Forest Department

I n t r o d u c t i o n xv

Southeast Asian Countries

Participants Restrictions Tenure Rights

Community members Illegal felling; fires; en-with emphasis on croachment landless

No ownership; contracts renewed every 2 years through length of timber rotation

Not specified Not specified Adat (customary) rights are recognized except when land is deemed necessary for FD purposes

Landless occupant who lived on the land before January 1982

Upland dwellers

Not specified

Not specified

25 years renewable

25 years renewable

Approved indigenous groups

Not specified Not specified

Thai citizens; landless or small landholders

Thai citizens; landless or small landholding; forest occupancy before January 1982

Cannot transfer right except by inheritance; cannot cut or use forest trees; no grazing

Cannot transfer right except by inheritance; cannot cut or use forest trees; no grazing

Not specified

25-year contract

xvi Jefferson F o x

for subsistence use in Orissa; whereas in Rajasthan, up to 60 percent of net commercial timber revenues go to participating communities. The resolutions also vary in the ways community participation is organized.

S.B. Roy's paper describes the evolutions of legal agreements in West Bengal, the Indian state most experienced with forest protection committees. These efforts began in the early 1970s and today over 1,800 forest protection committees protect more than 240,000 ha of natural sal ( S h o r e a r o b u s t a ) forest. This paper illustrates the problems associated with the development of these committees and the process by which these problems have been addressed.

The paper by Seymour and Rutherford describes the Java social forestry program. The government of Indonesia recognizes 6,000 forest villages on Java containing at least twenty mill ion people (Peluso and Poffenberger 1989). Since the 1970s, the State Forest Corporation (SFC) has supported various programs seeking to minimize conflict between the SFC and villagers through income-generating activities on and off forest land. The social forestry program is designed to offer farmers a greater volume and wider range of benefits, and benefits over a longer period of time. This paper surveys the problems that have emerged from the legal framework on which these efforts are based.

The paper by Mohiuddin Farooque analyzes the Bangladeshi legal system to detennine the potential for introducing forest protection committees. Farooque concludes that although such programs are perhaps inevitable if the country's remaining woodlands are to be saved, such programs are legally limited. The paper is an interesting discussion of the complexity of tenure and title issues in Bangladesh and the contest between customary and statutory norms.

Part II discusses the legal basis of community-based forest management systems in the Philippines and Thailand. Social forestry programs in these countries developed along similar lines. Recently, however, they have diverged radically, with the Philippines developing more progressive policies for allowing community management of state-owned forest lands (see Pragtong and Thomas 1990; Gibbs et al. 1990).

Both countries issue usufruct certificates. In the Philippines these are known as Certificate of Stewardship Contracts (CSCs) and in Thailand as S i t T h i T h a m k i n (STK), or right to harvest. These certificates convey the right to use and occupy land for a given number of years (usually 25 years, renewable for a second 25-year period) to current occupants before given cutoff dates. Although these rights cannot be sold or used as collateral, a vigorous market in certificates usually exists. Seymour and Rutherford (1990) point out that there is ample anecdotal evidence that these documents confer meaningful rights to the holder. In the Philippines, for example, possession of a C S C has

I n t r o d u c t i o n x v i i

enabled farmers to win compensation from neighbors who have taken forest products without permission; in Thailand, possession of an STK enables farmers to acquire sugarcane allotments. Strictly speaking these certificates are not a form of community-based resource management and are more closely related to private property than common property. While this type of legal arrangement is appropriate for forest lands that are suitable for conversion to other purposes but where such a conversion is not politically possible, most recipients of these agreements would prefer a private ownership arrangement. The papers by Donna Gasgonia and by Viyouth Chamruspanth explore individual stewardship agreements in the Philippines and Thailand.

Besides individual stewardship agreements, the Philippines has implemented progressive agreements for recognizing community management of state forest lands; Thailand has recently begun to express interest in these policies. These agreements are usually made with long-term occupants (indigenous groups) who have some form of claim to the land (often through indigenous law or length of occupancy, and not through land title). Such land tends to be in remote areas where the occupants do not have access to authorities who are empowered to legitimize their claim. Furthermore, many of these lands have been subject to less timber development and are still covered by valuable forests, which make them attractive to forest departments and investors alike. Successful management of these lands depends on developing mechanisms for recognizing and defining the rights (e.g., absolute title, percent of profit, joint concession) of long-term inhabitants, and demarcating boundaries based on history and land use.

The paper by Donna Gasgonia describes the different types of community agreements used in the Philippines. One type of community agreement is the Forest Lease Management Agreement (FLMA) offered to families, communities, and incorporated groups. For a given period of time, F L M A holders may harvest, process, sell, or otherwise use the products grown on forest land covered by the agreement. The Community Forestry Management Agreements (CFMAs) also give limited rights to upland dwellers to undertake timber-harvesting operations. Finally the Philippines has established regional and provincial task forces to delineate boundaries of ancestral domains through ground surveys and, in the process, identify the specific indigenous communities that have rights to these areas as traditional territories. These communities can then be issued Certificates of Ancestral Land Claims.

Jeff Plantilla examines the Community Stewardship Agreements (CSAs) issued in the Philippines. C S A s are part of the Integrated Social Forestry Program, perhaps the best articulated community forest management initiative in the region. C S A s are issued for 25 years and

x v i i i Jefferson F o x

are renewable for an additional 25 years. The community is charged with preparing a management plan, and developing, conserving, and protecting forest resources. Plantilla examines the legal structure of the certificate and the limitations placed on its use.

Weera Attanatho and Yos Santasombat discuss the new community forest act being prepared in Thailand. Attanatho, a forester with the Royal Forestry Department, presents a historical overview of Thai forest law. His paper then describes and analyzes the government's proposed community forest act. The paper concludes with recommendations regarding regulations for implementing the act. Santasombat, a sociologist, works for the Local Development Institute, a Thai non-government organization (NGO). Santasombat reviews the proposed community forest act from the perspective of the N G O community. His recommendations about the act stress the need to recognize customary property rights, local decisionmaking processes, and local resource management systems.

Part III discusses efforts to develop community-based forest management agreements in the Outer Islands of Indonesia. Outer Island Indonesia differs from most other areas of South and Southeast Asia in the richness of its forest resources and the relative sparsity of the population. The papers in this section pose several interrelated questions: (1) Can the existing legal structure in Indonesia accommodate and allow for the enforcement of effective community forestry management systems? If so, what are the most effective vehicles for implementing such policies? (2) If existing structures tend to frustrate or undermine effective community forestry management arrangements, at what level should reform be sought?

The paper by Wangsadidjaja and Ismanto, foresters with the Indonesian Department of Forestry, analyses the mandates in the Constitution of 1945, the Basic Forestry Law, and other governmental regulations to assess whether social forestry can be legally implemented within the production forest of the Outer Islands. The paper concludes that current legal arrangements can accommodate the implementation of community forestry agreements but that policies and regulations for implementing these objectives have not yet been articulated. The authors suggest a tripartite agreement among farmers, foresters, and forest concessionaires for implementing community participation objectives.

O n the other hand, the paper by Sandra Moniaga concludes that existing legal structures tend to frustrate community forestry management arrangements and asks the second question: at what level do we seek reform of these arrangements? Moniaga argues for interpreting the Indonesian constitution in a way that is more equitable to the long-term inhabitants of forest lands.

I n t r o d u c t i o n x i x

The papers by Iwan Tjitradjaja, and by Augustinus Rumansara and Decky Rumwaropen, provide examples of conflicts between local forest-dwelling people and logging concessionaires in Irian Jaya. The papers deepen our knowledge and understanding of these conflicts and analyze the processes and mechanisms by which these conflicts are settled.

The final paper by Frances Seymour and Danilyn Rutherford questions four assumptions of community-based forestry management systems. These assumptions include (1) formal legal mechanisms can protect the rights and enforce the responsibilities of members of forest communities against threats from within and without; (2) forest users can find suitable individuals and institutions to represent their interests in a management agreement; (3) forestry agencies have both the will and the ability to bargain in good faith and to uphold their side of the agreements that result; and (4) third parties can play an effective role in the framing and implementation of a community forestry agreement.

In general these papers indicate that, whether one works within or on the fringes of the bureaucracy, fundamental change in forestry law is not a precondition for program implementation. As Wangsadidjaja and Ismanto argue, even in Indonesia it would not take an overhaul of the existing legal system to make room for a community forestry management agreement (Barber 1989; Zemer 1990). Current regulations could encompass such agreements and the process of negotiation involved. While the radical reform at the center that Moniaga argues for is appealing as a long-term goal, practitioners argue that a more realistic strategy takes advantage of existing space in the legal system for the benefit of communities here and now.

Seymour and Rutherford conclude that in what Myrdal (1968) calls the "soft" states of South and Southeast Asia, the legal institutional arrangement itself is less important than the understanding, commitment, and good faith of parties to the agreement. As Herring (1990:95) argues, real implementation must take place on the ground, where the local state exhibits the permeability, incapacity, and embeddedness characteristics of soft states in extreme form. The process, not the paper, is the key to meaningful community participation in forest management, although the existence of a written document can make a difference in the behavior of farmers and foresters alike. Written contracts are more likely to reflect, rather than to induce, the development of viable forest management institutions at the community level.

Part I India, Java, and Bangladesh

3

1. THE LEGAL FRAMEWORK FOR JOINT MANAGEMENT OF FOREST LANDS IN INDIA

M a r k Poffenberger and C h h a t r a p a t i Singh

One of the major objectives of the Indian National Forest Policy of 1988 is to "create a massive people's movement with the involvement of women for achieving (the policy's) objectives and to minimize pressure on existing forests." Pursuant to this policy objective, the Indian Ministry of Forests and Environment issued a notification in June 1990 (see No. 6-21/89-EP.) to various s t a t e forest departments encouraging the involvement of village communities and voluntary agencies for regenerating forest land. The national guidelines to support joint forest management begins by stating:

The National Forest Policy (of] 1988 envisages people's involvement in the development and protection of forests. The requirements of fuelwood, fodder and small timber such as house-building material, of the tribals and other villagers living in and near the forests, are to be treated as first charge on forest produce. The Policy document envisages it as one of the essentials of forest management that the forest communities should be motivated to identify themselves with the development and protection of forests from which they derive benefits.

Subsequently, a number of s t a t e governments have formulated and approved resolutions to encourage experimentation with collaborative forest management. These programmatic guidelines represent a positive step in formally recognizing and accelerating the emerging community forestry management systems appearing in many parts of the country. Since joint forest management represents a process of decentralized empowerment benefiting some of India's most disadvantaged groups and also has the potential to reverse forest degradation, the approval of these resolutions is most encouraging. However, if these programs are to succeed and be sustained over a long period of time—an element essential for effective forest management—they need to be critically evaluated to identify their strengths and weaknesses. Due to limited experience with joint forest management, it is inevitable that early resolutions formulated to support these new programs may not always be consistent with the field realities of the program or with community needs.

This paper reviews the contents of recently approved resolutions. In it we raise a number of issues dealing with institutional arrangements, local government coordination, tenure concerns, and the economics of production systems and sharing agreements outlined in the

4 M a r k Poffenberger and C h h a t r a p a t i Singh

resolutions to highlight important policy areas needing further research and possibly policy adjustments. More specifically the paper attempts to respond to the following issues:

• How should the National Forest Policy's directive to "create a people's movement" be interpreted? The National Forest Policy stresses women's involvement—what form is this involvement to take? Do the recent national and state resolutions concerning joint forest management meet the 1988 policy directive?

• Are the joint forest management programs suggested in recent resolutions compatible with existing acbrunistrative, legal, and social mechanisms?

• What lessons can be drawn from India's experiences with social forestry programs over the past two decades that might improve the new joint forest management policies and programs?

Background

Since mid-nineteenth century large areas of forest land throughout the Indian subcontinent have been designated public land and placed under the management of state forest departments for production and protection purposes. Millions of rural inhabitants throughout India who had used these lands to meet basic needs for food, fuel, building materials, fibers, and medicines lost access rights. By 1980, nearly 23 percent of India's land area was placed under state management, displacing through time an estimated 300 million rural resource users. As the rights of rural communities were eroded, conflicts between the state agencies and Indian villagers became increasingly evident. Disagreements over management priorities led to forest exploitation and gradual degradation of India's vast forests. By 1990, less than 10 percent of the country possessed good forest cover.

Over the past few years, planners and forest administrators have begun developing new policies to reduce the conflict between state agencies and rural groups. These policies were designed to facilitate the emergence of collaborative forestry management systems that respond to national needs and local resource requirements.

New Directions in Forest Policy

In the 1980s, while concern was growing in India over the deteriorating state of the nation's vast forest lands, some state forest departments were experimenting with alternative management systems. Abandon-

Legal F r a m e w o r k for Joint M a n a g e m e n t in India 5

ing traditional methods that relied exclusively on the state forest departments for production and protection purposes, foresters in West Bengal, Haryana, Gujarat, and some other states attempted to involve community groups as local protectors. As early as the 1970s, divisional forest officers in West Bengal had begun working on joint management agreements with local villages. In return for a community commitment to protect degraded forests from fires, grazing, illegal cutting, and agricultural encroachment, forest officers agreed to share forest products with villagers. In degraded forest tracts where communities were exclusively empowered to protect resources, forests began regenerating rapidly through coppice growth. Yet these experiences were often isolated in remote parts of the state and consequently received little attention from policymakers and planners. Informal agreements between forestry field staff and community groups often collapsed when the officer involved was transferred. It was only with the passage of the first West Bengal Resolution in July 1989 that joint forest management began to take official shape in one part of India.

E m e r g i n g Forest P o l i q f Guidelines

The passage of the 1989 West Bengal Resolution may be seen as a precedent in the shifting orientation of Indian forest management policy. On the surface the resolution states a number of usufructuary rights given to communities involved in forest protection activities. Its greater significance lies in the context in which it was passed. As mentioned earlier, West Bengal forest officers had been gradually shifting informal policies since the early 1980s by encouraging individual communities to take over protection responsibilities for public forest lands. Given the populist sociopolitical environment in West Bengal during this period, many villages had also been acting on their own to control access to forest in their area, thereby asserting their sole management rights in relation to other communities who had also been using the lands. The West Bengal Forest Department resolution formulated an official program but also provided government legitimacy to this grassroots emergence of community resource management groups.

The 1989 resolution provided guidelines for the organizational structure and function of forest protection committees (FPCs) and the rights and responsibilities of the FPCs and the forest department under the program. Due to its influence on subsequent national and state resolutions supporting joint forest management in India, it is useful to note certain components of the West Bengal document. The West Bengal resolution notes that the FPC would be linked to local government by placing it under the supervision of the land use committee (Bon-O-Bhumi Sanskar Sthyee Samiti) of the Zilla Parashad (elected body of

6 M a r k Poffenberger and C h h a t m p a t i Singh

subdistrict level representatives). The document stipulates that organizations are required to hold annual meetings, elect representatives, and maintain record books. Its primary function is to ensure protection of the forest consistent with existing forest policies. In return each FPC is entitled to a 25 percent share of timber produced in their area and to all nontimber forest products. The resolution includes a clause mandating a 5-year vesting period during which protection must be effectively carried out prior to the granting of rights in the timber harvest, though nontimber forest products are available from the outset of the agreement. The resolution concludes with a statement empowering the forest department and the Zilla Parashad to dissolve FPCs that fail to perform protection responsibilities.

While the West Bengal resolution lacks clarity in some areas and also raises some problematic institutional and economic issues, it is, perhaps, most significant for its authority to provide some legitimacy to emerging community forestry management groups. This appears to have been its intention, since there were already over 1,300 villages, generally of 10 to 50 families each, managing 150,000 ha of state forest lands when the resolution was approved. To that end, it provided de jure status to a de facto management system.

Encouraged by the extensive and generally successful experiences with joint forest management in West Bengal, a group of individuals from both government and non-government organizations (NGOs) drafted a national resolution encouraging state forest departments in other parts of India to begin experimenting with collaborative management systems. The resolution, which was approved in June 1990, encourages NGOs, state forest departments, and community groups to collaborate in managing state forest lands. The resolution gives considerable latitude for involvement of community groups, specifying pan-chayats (village governments), cooperatives, and informal village organizations. It notes that no restrictions should be placed on membership. It suggests (1) that communities be given usufruct over timber and nontimber products generated from collaboratively managed community lands, referring to the 25 percent share of timber allocated by the West Bengal Forest Department to participating community groups; (2) that community management groups be involved in formulating working plans for the forest area under their protection; and (3) that the community protect the forest from illegal extractive activities and ensure that no grazing or agriculture is carried out on forest lands. It encourages fruit tree, shrub, and grass enrichment planting.

In addition to the national and West Bengal resolutions on joint forest management, a number of other Indian states have approved or are drafting similar guidelines (see Table 1.1). These resolutions pos-

Legal F r a m e w o r k for Joint M a n a g e m e n t i n India 7

sess similar provisions for recognizing communities as management partners for specified tracts of government forest lands. Most of the state resolutions allocate all nontimber forest products for community use, whereas timber-sharing arrangements vary (e.g., timber is allowed only for fuelwood in Bihar and for subsistence use in Orissa, whereas participating communities receive up to 60 percent of the net commercial timber revenues in Rajasthan). Organizationally, the resolutions also vary. The suggested management unit is the panchayat in Orissa and the village development committees in Bihar. In both Haryana and Rajasthan, community-based forest protection committees are advised to register under the Indian Societies Act. While all state resolutions suggest that community management groups take responsibility for forest protection, some states require management groups to take a specified form in terms of committee membership, leadership, meetings, and record keeping.

While the national and some state resolutions clearly note that no ownership or lease rights are implied by joint forest management programs implemented under these guidelines, the national resolution states that participating communities should be involved for a 10-year period with the option to renew their management agreements with the forest department. Similar provisions are outlined in the West Bengal resolution.

In summary, the national and state notifications share a number of common features:

• All resolutions provide user groups with usufruct rights only, clearly noting that land is not to be allocated or leased.

• The resolutions generally recommend village-level committees as functional groups.

• Village-level groups are to be operated through forest department officials.

• In most resolutions the period of tenure for usufruct rights is not mentioned.

• There is a lack of clarity in the possible roles community forestry management groups would play in terms of protection and conservation, enhancing natural regeneration, or implementing intensive plantation planting. While roles may vary across areas, depending on forest conditions and local interests, these options carry with them different labor and management demands and corresponding legal implications that need to be examined separately.


Table 1.1 Community-Based Forestry Management Policies in India

Product Rights Responsibilities

National

Rajasthan

Orissa

Community should share in usufruct grasses, MFPs, fuelwood, timber (i.e., 25%)

All MFPs (except bamboo), 60% of net timber, 50% to be reinvested

Subsistence timber/fuel; free—not for sale

No grazing; no agriculture; promote stall feeding

Gujurat

West Bengal

All MFPs; 25% of GFD timber; 80% of timber from other sources

25% of timber net after minimum 5-year protection; all MFPs

Regenerate and develop degraded forest land; no agriculture or grazing

Protect forest against fires, encroachment, cutting

Haryana 25% net of timber; first priority to HRMS vested after 3 years; all MFPs except fodder and fiber lease

Protect, manage, plan development and accounts, form rules and regulations

Bihar Dry leaves, branches, and grasses for free subsistence; not for sale

Establish rules for forest protection and enforcement; help organize forest labor; meet regularly; distribute produce

FPC = Forest protection committee GFD = Government forest department HRMS = Haryana resource management societies MFP = Minor (nontimber) forest products


Participants Restrictions Tenure Rights

Exclusively to village, No ownership or community; no individu- lease; use rights 10 al agreements years + renewal

Registered society; revenue village based

FPC-panchayat based; 8+member of village pan-chayat

Village communities, pan-chayat, society, or informal groups; all families

Community-based FPC under panchayat broad-based land management committee

Registered society revenue village or community with revenue village area if other villages agree; all household male and female heads

Village development committee; all members of 1 or more villages with tribal representation

Control grazing, illegal felling, fires, encroachment

Same as above + distribution to villages

Not specified; maximum of 50 ha per group

Not specified

No lease or ownership rights; joint management agreement

10-year rotation with possible extension

Not specified except 1-year lease on fiber and fodder bamboo area; HRMS first choice

2 years, then new committee is formed


Policy Issues

Newly drafted national- and state-level resolutions supporting the establishment of joint forestry management systems in India provide an attractive opportunity for experimenting with community/forest department collaboration. However, these guidelines will need further improvement as expertise is gained to further support joint forestry management activities by providing communities with adequate managerial authority, tenurial security, and appropriate economic incentives. Some policy issues that may need further study and consideration as joint forest management programs evolve are discussed in the next section.

I n s t i t u t i o n a l Issues

Researchers studying the formation of community forestry management groups have found that many grassroots organizing for environmental management is taking place in various parts of India. Reports from south Bihar, eastern Gujarat, Orissa, eastern Maharashtra, southwest Bengal, and other parts of the country indicate that, in response to deteriorating forest conditions, thousands of communities have attempted to restrict exploitation and halt the process of environmental degradation. A number of state forest departments have supported these local activities for several years. Some research findings show that where state forest departments are supportive, village forest management groups are often able to sustain protection effectively, even when under pressure from other communities and the private sector. With the approval of state joint forest management resolutions, these groups can be given some formal legitimacy to further strengthen their authority. Policy questions concern what form this recognition should take and the legality of these local management organizations.

If these forest management groups are formed or exist at the sub-village panchayat level, what is their relationship to the local government? There is some concern that emerging forest management organizations may not fit well within the system of local governance (panchayati raj) or may be in conflict with the customary rights of the larger local user population. Experience concerning the possible relationships between community forestry management organizations and local government is limited. Most resolutions suggest that local panchayat institutions play an oversight role in monitoring the activities of village groups, as is the case in West Bengal. If, however, a forest tract and managing communities are spread over a large area covering several panchayats, coordination may be more difficult.


One option to deal with the problems of the extra-legal nature of community forestry management groups and their relations with local government bodies is to extend membership in forest management groups to all members of the panchayat as suggested in the Orissa joint management resolution. In some areas, however, this would create other problems. Since many joint forest management groups are comprised of members from a single, small hamlet, incorporating all communities within the panchayat would expand membership significantly. The community that originally formed a joint forest management group would have to join other villages in creating a new management system. In the process, the original community's authority over forest management decision-making would be eroded. Finally, where existing community management groups are functioning, they would be obligated to share forest produce with other communities incorporated into the management committee. The West Bengal Forest Department has attempted to form multivillage forest protection committees (FPC), in some cases combining smaller community FPCs. Field documentation of such situations indicates that the component communities generally agree to keep an independent identity within the larger group, maintaining clear boundaries of their area and retaining exclusive control over harvests in their territory. At the same time, the larger group plays a helpful role in facilitating joint protection activities and in resolving disputes. According to the West Bengal resolution, these larger groups can then be linked to the village panchayat.

There is also some concern that if joint forest management groups were absorbed by the village panchayat, vested interests that continue to be influential in many communities might exert control over decisionmaking. While more democratically elected village panchayats are developing in Karnataka and West Bengal where the new panchayati raj system has been adopted (and already exist in many communities in other parts of India), in many states traditional elites still effectively manipulate village panchayat decision-making. Since many small, community-based forest protection groups are comprised of less powerful groups and communities within the larger panchayat, they may lose authority to elites if the management groups became a direct adjunct of the panchayat.

Experience over the past 20 years from Indian social forestry programs indicates that in many cases panchayats had difficulties effectively managing community woodlots. In some cases, due to their inherent political nature and often diverse constituencies, panchayat-based management groups have had difficulties reaching a consensus regarding the management of community forest resources. More re-

12 M a r k Poffenberger and C h h a t m p a t i Singh

cent experiences from both India and Nepal demonstrate that smaller community groups (often comprised of 10 to 50 households), because of their economic and social homogeneity and physical proximity to the forest, can more effectively mobilize to establish management systems such as protection activities, harvesting and sharing systems, and dispute arbitration. While there is a need to clarify the relationship of local forest management groups to local government institutions, simply subsuming them as part of the local government body could threaten their effectiveness.

It may be more useful to explore the role local governments could play in working collaboratively with the forest department in assisting with planning and monitoring forest management activities of local groups. There also appears a need for a formal institution, like the local government, to help arbitrate disputes among communities and, when the need arises, disputes between communities and the forest department. The former role needs a better definition in all state resolutions, whereas the latter role has not yet been addressed.

While the resolutions are generally vague when addressing relationships between community management groups and the local government, the West Bengal resolution may have been overly specific in terms of the role of the forest department and local government in detennining committee members. The original 1989 resolution (No. 4461-for./D/lS-16/88) stated that 'The beneficiaries shall be identified from amongst the economically backward people living in the vicinity of forests concerned," and that the local panchayat land management committee "shall select beneficiaries for construction of the forest protection committee." Accordingly, local government representatives from outside the community would determine who could and could not participate. In 1990, the West Bengal Resolution was revised to allow every family in the village to be a member of the management group; however, the new resolution maintained the clause that the panchayat land management committee and the West Bengal Forest Department should determine families eligible to benefit from the program.

If membership is selective and determined by outside agencies and local government bodies, some families already participating in joint forest management activities might possibly be denied membership and would be excluded from the program. It seems fundamental that community-based organizations have final authority over their own membership. Studies in West Bengal indicate that many villages organize their own FPCs and determine their own membership. Further, FPCs surveyed, which were comprised of all or most households in the community, had more effective forest management organizations than those with partial membership. In areas where local groups func-


tion effectively, the forest department and local government may only need to formally empower them and provide technical assistance. At an operational level, this is generally occurring in the field in West Bengal. Since the West Bengal resolution and resolutions from a number of other states imply that the forest department and local government direct the formation of community forestry management organizations, the policy does not entirely fit the realities of the rural context in which the program is being implemented. Forest departments and policymakers need better information regarding how and why communities form organizations to manage forest resources, and how they might best relate to local government bodies. With this knowledge, clearer policies can evolve to support these emerging and promising community organizations.

Perhaps more problematic is the issue of pre-existing user rights. In many forest areas in India, cornmunities and panchayats already possess customary legal rights over forest resources that have been granted under earlier forest acts. Under the emerging joint management program, forest departments are entering into new agreements with communities and extending a new set of rights targeted to local groups. This process can create problems if earlier rights holders are excluded from the new agreements. Existing rights first need to be reviewed prior to formalizing new management agreements, and if rights have not been settled under the earlier forest act, the task will need to be completed. In India there are still large geographical areas where forest rights have not yet been settled. Rapid appraisal documentation and micro-planning exercises might facilitate establishment of prior customary rights. Some FPCs operating in southwest Bengal negotiated with neighboring communities to clarify rights and territorial responsibilities when they began to initiate protection activities. In many cases, communities have the strongest incentive to avoid conflicts with their neighbors over forest rights. These villages have demonstrated that they can conduct much of the negotiation on their own or with the assistance of the local government. The forest department, however, holds ultimate responsibility for seeing that its agreements with management groups do not create conflicts over real or perceived pre-existing usufruct. Inter- village consensus reached regarding forest management rights then need to be approved legally.

Some government agencies are also empowered with certain rights and interests. Panchayats and parastatal organizations, as well as local cooperatives, often have harvesting and marketing rights to timber and nontimber products that must be recognized or settled when the forest department is developing usufruct agreements with community management groups.


Recent resolutions could also stimulate the proliferation of numerous new community-level organizations completely dependent on the forest department for existence. These organizations could undermine the possibility of greater self-governance at the lower level or the development of more democratically elected or selected institutions or processes. Community forestry management groups, as little brothers in partnership with the forest department, would have little say over policy and management decisions. Most state resolutions possess clauses that allow the forest department to dissolve forest management organizations if they fail to perform as expected by the department. While forest departments will require some statement in the.resolution to dissolve the management agreement if their community partners fail to uphold their responsibilities under the joint forest management program, it is also important that the identity of village resource management organizations be respected. In Rajasthan and Haryana, where the resolutions require that communities with active forest management groups become registered societies, protection committees have a separate and legal identity and, consequently, greater independence. In Haryana and West Bengal, some committees have requested assistance from the Member Legislative Assembly and other politically elected leaders to strengthen their bargaining power. In the Pinjore area north of Chandigarh, 14 community management groups met to ask the Haryana Forest Department to modify the terms of the grass lease-pricing and payment system. These experiences suggest that community forestry management groups will want to maintain a separate identity and use local governance bodies, elected leaders, and group apex organizations as mechanisms to express their needs and negotiate more effectively with forest department partners. The needs for autonomy and democratic process at the community level are currently not reflected in state resolutions and should be carefully considered as these documents are revised.

Satisfactory agreements between forest departments and community management groups might also be facilitated by representatives from both groups developing a joint plan for the area (beat, range, division, and circle). While some resolutions mention community input into micro-plans, current forest department working plans are not subject to community input, creating unresolved tension between the forest departments and communities—especially when the resolutions and working plans differ substantially. Mechanisms are needed to ensure that the forest department and management group plans for joint management areas are compatible and satisfactory to both parties.

Most resolutions also lack clarity regarding the role of women in joint forest management systems. Although the Gujarat resolution spe-


cifically requires at least two women members on each community management committee, and revised guidelines for the joint forest management program in Haryana require that both male and female heads of households be members of the community forestry management society, most resolutions do not refer to women's participation. Since women are frequently the primary users of forest resources, it is logical that they play an important role in management decisionmaking as voting members of local management groups. Further, in some rural contexts where men migrate from the village for extended periods or are too busy with agricultural work to allocate time to management activities, it may be appropriate for the community to establish management groups solely comprised of women. In fact, this has already taken place in a number of states. Again, this indicates that resolutions need to be flexibly written to support emerging community initiatives and provide multiple models of community management.

Tenure Issues

Except for clauses in the national and West Bengal resolutions, most program guidelines do not address the long-term rights of participating communities. Clear tenure security enhances the authority of community management groups to carry out protection activities, especially under pressure from neighboring villages and private interest groups. Participating communities that invest labor in protecting forest resources and expecting to benefit from future production increases may need greater assurance from the government of its commitment to their participation in the program. Since state forest departments are in essence entering into management partnerships with village groups, it seems necessary that the time frame, as well as the basis for extensions, for such agreements be clearly stated. It may be appropriate for the time period to correspond to the production cycle, or rotation, of the primary products. In West Bengal, this is the 10-to-12-year rotation of sal poles. Without a clear time mandate, community management groups may fear that their labor investments will not yield benefits, since the forest department may revoke the agreement prior to the harvest.

Aside from providing tenure security through specific clauses in state joint forest management resolutions, there is also a need to inform management groups of their tenurial rights and formalize these rights through counter-signed agreements, certificates of usufruct rights, and symbols of authority. When the authority of community management groups is questioned by outsiders or when the group must challenge offenders, such documents are important in demonstrating legitimacy of the group.


Economic Issues

In any partnership arrangement of the type suggested by the national and state resolutions, it is important that both parties to the agreement (i.e., the forest department and the participating communities) feel their efforts receive "fair" remuneration relative to the amount of labor and capital invested (as reflected in opportunity costs). Most of the current resolutions cite a specific proportion of the net revenue generated by timber sales. Although it is important that a figure is given (i.e., 25 percent in West Bengal), since communities need to know what to expect, joint forest management programs do not have sufficient information to determine what is "fair" in terms of protection costs to the community. Consequently, these share percentages are arbitrary figures that may or may not compensate communities for their protection activities. Further, any fixed percentage as a flat rate fails to respond to different site characteristics that effect forest income generation. Of particular importance is the ratio of forest area protected to number of participating families, biological productivity of the forest area, and the amount of labor required to protect and manage a given tract of forest. In West Bengal, the ratio of forest area to families may vary from 5 ha per household at one extreme to 0.10 ha per household at the other extreme. For most FPCs, the ratio is between 0.5 to 2 ha per family. Where the ratio is high, 2 or more, forest income is generally substantial; but where the ratio is 0.5 or less, income may be insufficient to meet opportunity costs, raising the question of whether a flat rate of 25 percent is equitable.

Management costs will also vary between communities and regions. Communities with fewer families or larger forest tracts may need to spend more time protecting regenerating forests. Communities who were economically dependent on commercial fuelwood collecting but ceased operations to enter into a joint management agreement with the forest department suffer a greater opportunity cost than those who were only involved in subsistence fuelwood collection. In areas with high grazing or cutting pressures from outsiders, villagers may have to spend much more time patrolling the area than in forest areas where such pressures are light. Ultimately, communities need to feel that they are benefiting fairly from their role in the management partnership. If not, they may lose interest and abandon the program. Furthermore, according to the resolutions from West Bengal and some other states, timber sharing is based on the net revenue generated. Since participating communities rarely have any knowledge of forest department management costs, they have little basis to anticipate what income they might derive from management activities. In the Arabari forest area, one of the first jointly managed areas in West Bengal where production sharing was carried out, management costs totaled 53 percent of the gross. This

Legal F r a m e w o r k for Joint M a n a g e m e n t in India 17

left communities with less than 12 percent of the gross. In interviews, selected FPC members in West Bengal indicated that a 40 percent share of the harvest would be fair remuneration. Although the West Bengal Forest Department is trying to lower management costs, it is still important that forest departments provide community management partners with accurate information regarding their likely share of benefits from participation in forest management activities.

Ecological Issues

The level of biological productivity is also an important consideration for policies regarding produce sharing. In semi-arid western India, tree growth and biomass production will be slower than in high rainfall areas. There is considerable variation within regions. Some disturbed forest land in southwest Bengal still possesses healthy sal stumps and other root systems that rapidly regenerate secondary forest growth after coppicing. Within a few years, a community may possess a substantial secondary forest that generates multiple products. In other forest areas, where stumps have been removed for fuelwood and soil erosion has been extensive, forest products will be considerably slower to materialize. If community management costs in such contexts are to be met, the forest department will need to invest in more capital-intensive enrichment planting and possibly provide additional employment opportunities. To date, joint forest management policy documents do riot address the need for flexibility in ensuring an equitable flow of benefits to participating community management groups operating in different ecological contexts.

Conclusion

In this paper, we briefly summarized the contents of recent resolutions supporting joint forest management programs and identified some of the issues that need further study and possible policy adjustments. The resolutions provide guidelines to formally involve communities in the management of state forest lands. The resolutions and the programs represent an important opportunity to improve forest management by decentralizing authority to the user group or community level. Yet to succeed, policies and programs will need to be based on local community organizational strategies, to have appropriate linkages with local governance bodies, and to respond to ecological and economic conditions as well as to village needs. This will require considerable sensitivity given the great diversity found in India. No single model will be equally effective in all contexts. To that end, the resolutions and pro-


grams must play an enabling role, supporting local initiatives in all their diversity rather than as a directive or prescribed role.

Forest departments will also need considerable will and creativity to respond to the challenges involved in supporting the evolution of joint resource management systems. For decades, forest departments have acted as sole custodians of vast territories, in essence as state landowners. To halt the degenerative process occurring on the nation's natural forests, forest departments now seek the collaboration of thousands of rural communities. In the past, these communities served only as a pool of contract labor for management activities directed by forest officers. Officers need to work with communities as equal partners when formulating and implementing joint management activities. If this newly evolving collaborative management system is to be effective and sustainable, forest departments need to demonstrate flexibility and commitment in responding to community needs and priorities.

Resolutions alone may have little or no effect on field realities and operational activities. Only if they are effectively communicated to forest department staff and village families can these new resolutions help clarify program objectives and procedures. The resolutions will need to be translated into local languages and circulated to all participants, and meetings will need to be organized between forestry staff and participating communities to explain the resolutions and discuss their implications. Through diagnostic research, program monitoring, and open discussion with participating groups, new ideas will emerge regarding ways to further improve resolutions and the programs they support, further facilitating community involvement in managing India's natural forests. To the extent that policies and program activities can support the problem-solving strategies being developed by communities and foresters, joint forest management offers a promising opportunity to respond to India's forest management problems in a socially and ecologically sound manner.

19

2. FOREST PROTECTION COMMITTEES IN WEST BENGAL, INDIA1

S. B . Roy

India, like many other Asian countries, is responding to forest degradation and food and energy shortages by experimenting with new forms of resource management. This paper examines recent experiences with joint forest management, a cooperative effort between forest dependent communities and state forest departments to regenerate degraded forests. One of the most successful programs to date is in West Bengal where over 1,700 rural community-based forest protection committees protect more than 237,000 ha of natural sal (Shorea robusta) forest, dividing the forest products with the forest department (Table 2.1). Prior to the initiation of the program, much of the program area suffered from severe forest degradation and conflicts between the forest community and the forest department.

Efforts by the forest department to gain the assistance of local people in forest management through forest protection committees began as early as 1970-72 when the divisional forest officer of Purulia explored and encouraged such efforts (Palit 1970). Over the next 18 years the program evolved gradually, with forest department officers and communities making informal management agreements. It was not until 1989 that a formal program policy was finally approved, and later revised in 1990. This paper will examine how far the current government orders can (1) provide legal justice to the people while allowing for a pragmatic approach to natural resources management; (2) empower the people to manage the forest for their own benefit under existing forest law; and (3) consider whether the situation can be improved by changing or amending the government order of the West Bengal Forest Department, keeping in mind that "any future legal reform concerning the forest must thus aim first of all at doing justice to the people and only subsequently at doing justice to nature and future generations" (Singh 1986).

Historical Background

One of the earliest experiences with joint forest management in West Bengal occurred during 1971-72, when A. K. Banerjee, a divisional forest officer and silviculturist from the South Division in East Midnapur, motivated people from ten villages in Arabari and involved them in protecting 1,250 ha of totally degraded natural sal forest and planta-

Table 2.1 Number of Forest Areas, Forest Protection Committees, and Members in West Bengal as of June 1991

Total

District Division

Total Forest

Area (ha)

Area Under Sal and Misc. Species (ha)

Number of FPCs

Forest Area Protected (ha)

Forest Area Protected (%)

No. of Members (families)

Officially Recognized

FPCs

Burdwan Burdwan 25,140 U , 3 6 8 21 7,422 30 6,146 21 Bankura Bankura (North) 73,688 44,910 441 45,664 62 44,165 231 Bankura Bankura (South) 66,042 30,263 205 18,185 28 13,600 164

Midnapur East Midnapur 81,082 45,000 374 59,080 73 50,667 41

Midnapur West Midnapur 89,107 70,000 309 53,142 60 28,431 179 Purulia Purulia 92,254 49,049 376 53,230 58 35,976 227

Western Circle Total 427,313 251,590 1,726 236,723 55 178,985 863

FPCs - Forest protection committees

Forest Protection Committees i n West Bengal 21

tions. Initially, through meetings and contact programs, 618 families comprising 3,607 people inhabiting 11 revenue villages agreed to cooperate in rehabilitating the forest in the project area. The villagers in the program understood that in exchange for their assistance, they would be given employment opportunities with the forest department, the right to collect fuelwood at an ecologically sustainable rate from the protected forest, and usufruct rights to the forest (BardhanRoy 1991).

The rapid forest growth, which occurred after community protection activities were initiated, provided the forest department with an impressive demonstration of the potential of this new approach to management. Poor rural communities, previously considered destroyers of the forest by the forest department, became effective resource managers when given the authority to protect the forest resources. Although the agreement was based on "good faith" during the first 15 years of the program, in 1987 the forest department officially agreed to share 25 percent of the profit from timber sales after deducting project costs with the ten villages of Arabari participating in forest protection. While the original trials with joint management were occurring in Arabari, many other foresters and community groups began forming similar arrangements; however, there was frequently little clarification regarding the entitlements or rights of the participating villagers. The forest department's order had no clear guidelines detailing the formation and functioning of other forest protection committees (FPCs). The forest department was also not very confident about the consequences of issuing a blanket government order that would formally empower communities to participate in joint forest management activities.

During this period of uncertainty, other agencies, including the World Bank and Ford Foundation, came forward to study and support the joint forest management system in West Bengal. The Ford Foundation supported two NGOs—the Indian Institute for Bio-social Research and Development (IBRAD) and the Rama Krishna Mission (RKM)—to study the local situation through diagnostic research. IBRAD is a group of anthropologists and other professionals who had previously worked with the state health department conducting research and training activities to strengthen participation in community health programs. RKM, one of West Bengal's largest NGOs, has extensive experience with community-based vocational training programs.

A workshop involving forest departments, NGOs, and the Ford Foundation was held in June 1989. The workshop was attended by senior forest department officials and field staff. Case histories of forest protection groups from all three districts of West Bengal where people were involved in forest protection were presented (Malhotra and Poffenberger 1989). Encouraged by the successes documented in the work-

22 S. B. Roy

shop, the West Bengal government issued the first statewide policy supporting the FPC program on 12 July 1989. In this new order, the government encouraged the formation of FPCs to protect state forest lands and offered each FPC a 25 percent share of the net income from the timber after final harvesting.

Government Orders of 1989 and 1990

Some senior officers and field staff felt that unless the evolving working arrangements had legal sanction, cooperating villages would stop their protection activities. The 1989 Government Order was a response to this concern and provided an instrument to formalize collaborative forest management arrangements that had emerged in hundreds of communities across Southwest Bengal over the preceding decade.

Certain aspects of the government order merit special attention (see Appendix 1 of the 1989 Government Order for complete text). The order recommended that local people be actively involved in regeneration, protection, and maintenance activities of forests and plantations. FPCs are required to protect the forests/plantations from encroachers (human and animal) for 5 years. In exchange for their participation, FPC members are entitled to receive 25 percent of the net sale of timber (subject to conditions set by the forest department), and the right to collect fallen twigs, grass, fruits (except cashews), flowers, and seeds without paying royalties to the government. Previously recognized rights of tribal peoples to forest products remained intact (State Government'Order No. 2001, 1981).

The 1989 Government Order resulted in three individuals wielding considerable influence over the formation and functioning of the committees. The Ban-O-Bhumi Sanskar Sthayee Samiti (chairman of the block-level Panchayat Committee on Land Management) was empowered to select all committee members and was instructed to include members from communities legally defined as economically backward. The beat officer was designated as member secretary and made responsible for convening committee meetings and recording the minutes. The divisional forest officer was entitled to dissolve the FPC if the committee failed to comply with the order or with the Indian Forest Act of 1927. As we shall see later, vesting so much power over the operation of FPCs in these three individuals severely limited the control members could exhibit over their own committees.

Initially, forest department and state government planners assumed that only low-income families would be interested in carrying out protection activities and targeted them exclusively for participation. This

Forest Protection Committees i n West Bengal 23

policy, however, effectively deprived better-off families and communities of the opportunity to join local forest groups and share membership benefits. In many villages, furthermore, low-income families represented only 10 to 20 percent of the population and could not protect the forest if the middle- and upper-income classes wanted to destroy it. Field experience and monitoring studies indicated that the most effective forest protection committees involved most or all of a community's households from various cultural and political groups. To encourage broad-based participation in 1990, therefore, the state government modified the original 1989 order with the following amendment: "Every family living in the vicinity of the forest shall, however, have the option of becoming a member of the forest protection committee if such family including the female members is interested in the work of protection."

The revised 1990 resolution provided the opportunity for the majority of the villages to join FPCs. This amendment has also had a significant impact on the formation of FPCs and on how members join the committee. As stated previously, the Ban-O-Bhumi Sanskar Sthayee Samiti had been authorized to select the FPC members from the economically backward people, making the membership of the FPC dependent on the mercy of a political body. This created resentment in the villages and annoyed some of the forest villagers who had been protecting the forest for a long time. Many forest protectors from the village were unable to join the FPC because they had no political influence on the Ban-O-Bhumi Sanskar Sthayee Samiti. When the amended order was issued, neither the forest department nor the local political party had the power to exclude or include anyone from becoming a member of the FPC. This change had made the program more accessible to all interested villagers, including women, who are now able to become members of the FPC. The program, however, still does not adequately address the needs of women.

Another significant 1990 amendment to the 1989 Government Order was a statement broadening the role of the FPC. In the earlier document, the FPCs role was limited to protection, while the revised version suggested "various activities." This reflected an attempt to involve people in additional forest activities such as the development of local management plans (i.e., micro-planning).

Unfortunately, the 1990 amendment failed to adequately address certain aspects of the program that need to be improved: the operating efficiency of the FPCs, women's participation, committee registration procedures, the process of forest area boundary demarcation, micro-planning exercises, and reorientation and training requirements for foresters working with the FPCs. The government of India subsequently

24 S. B. Roy

issued an order in June 1990, emphasizing the important role people and NGOs should play in forest management, ln the following pages, the author will attempt to identify other issues that require further improvements in program policy and procedures.

Suggested Policy Changes

F o r m a t i o n and Registration of F P C s

Divisional forest officers are now in the process of registering all FPCs. Since registration is lengthy and time<onsurning, some older FPCs have not yet been registered, whereas more recently established ones have been. This has caused some resentment in the older committees because, according to current program policy, FPCs are only entitled to benefits after 5 years of protection activities from the time of formal registration. This means that newly formed FPCs registered in 1991 will have the same seniority and equal rights to sharing the harvested timber as those "formed" in 1985 but only registered in 1991. This has undermined morale and commitment in many older FPCs because their early forest management efforts are not being recognized in forest department records.

The divisional forest officer should grant seniority based on evidence that an FPC has been formed and functioning for a specific period of time. A well-protected and productive forest would seem to be evidence enough that a successful management system has been in operation. Communities that have received awards from the government for their conservation efforts, such as the Sitrampur FPC under Godapeasla Range in East Midnapur which received the prestigious Indira Priyadarshani Vrikshamitra Award, obviously deserve official recognition. This will solve many problems for older FPCs that have been protecting their respective forests, ensuring that their early efforts are suitably acknowledged.

This policy of backdating registration can, however, create problems. Some FPCs or political parties may pressure the divisional forest officer to endorse the seniority status of the older FPCs. Documents and/or witnesses from the neighboring FPCs should be required to verify the accuracy of such claims. During this process, a few FPCs may undeservedly receive seniority status. This is preferable to the previous situation, however, when long-standing FPCs were not properly rewarded for their efforts.

F P C Meetings

The current government order (1990) states that "The Beat Officer, as Member Secretary, shall convene the meetings of the Executive Com-

Forest Protection Committees in West Bengal 25

mittee as well as Forest Protection Committee as per the schedule procedure." In practice, beat officers may have difficulty holding so many meetings. A survey revealed that it is not possible for the beat officer to regularly convene formal FPC meetings. Most of the FPCs are in remote villages and the responsible field officer often has many other official assignments. In these cases, the FPC members are deprived of the opportunity to hold regular meetings. Moreover, when villagers plan to record unfavorable opinions against a beat officer, the officer may intentionally avoid convening a meeting.

The policy should be modified to allow other members of the executive council to call a meeting of the FPC if the beat officer is unable or unwilling. If the executive committee members show no interest in convening a meeting, the members of an FPC should be allowed to initiate a meeting. Providing such rights to FPC members empowers them to manage the FPC and not remain hostage to the whims of the beat officer or at the mercy of the executive committee—members who are often the privileged people in the village. Similarly, the FPCs should be permitted to take minutes if the beat officer or executive committee members do not show an interest in recording the proceedings.

Furthermore the government order states that "The Ban-O-Bhumi Sanskar Sthayee Samiti of the respective Zilla Parashad will monitor, supervise, and review the function of the Forest Protection Committee." This program review stage has not yet been reached in West Bengal. However, when the time comes, the district head of the elected body will be unable to properly monitor and review locally based, forest-oriented programs because he is too far removed from the communities. The village-based, locally elected body or the FPC itself is perfectly capable of reviewing the program. The impact of this aspect of the government order is not apparent now, because most of the FPCs are in the formative stage and political support to form FPCs for forest management is strong. However, a problem could arise if the local FPC, however good it may be, is not getting along with the district-level political party. If so, the local FPCs should be empowered to form a body to monitor the program with assistance from the local beat officer.

Addressing the Needs of Women i n the FPC

That the government has not appreciated women's contribution to the FPC program is evident by its failure to recognize the role of women in forest protection in the 1989 Government Order. Women have protected forests and gathered forest products for quite a long time. Many women in the vicinity of the forest collect nontimber forest products (NTFPs) such as fuelwood, sal leaves and seeds, flowers, resins, mushrooms, many forms of food and nuts, grasses, and honey. In tribal

26 S. B. Roy

communities, where women are especially active in forest product collection and processing, the contribution to the subsistence and cash-generating needs of the family is substantial (DasGupta and Maity 1986).

Few effective support systems have been developed for FPC members to market NTFPs. When women sell their harvested NTFPs, they are often exploited by middle persons (Dutta and Adhikari 1991; Pachu-ari 1991); however, they are often hesitant to voice these problems to local authorities. Although men often market NTFPs produced by women, husbands frequently keep the money. Because women have no formal status within the FPC, their position is further weakened.

Given these circumstances, a number of changes should also be made in the government order to help the FPC operate more effectively and equitably. Women should be granted joint membership in the FPC program with the names of husband and wife recorded in the FPC register. This will not only officially involve women in the FPC program but will also raise their status in society. In some cases where the forest department has finished the FPC registration, it may be difficult to cancel the old registration and re-do the entire registration process. In such cases a statutory government law should be passed that automatically bestows membership upon the wife if her husband is already an FPC member. The bank account, where shares will be deposited by the forest department after harvesting, should be jointly held and operated by the husband and wife.

According to the current Government Order (1990), beat officers are required to act as member secretaries at FPC meetings. The beat officers normally meet only with the men of the villages and never consider women a functional unit of society. This effectively cuts women off from the FPC program and undermines their commitment to it. As they are never formally recognized or listened to, women are unable to express their opinions on forest management, depriving the program of their rich experiences in managing forests for fuelwood, fodder, and NTFPs. If only to improve forest management, women should be involved in FPC meetings. The FPCs and the executive committee members should actively encourage participation by women and heed their suggestions. The FPC of Jay pur Range, Bankura (North) Division of West Bengal, has successfully demonstrated that literate women can also play an important role in keeping minutes and FPC records. In some cases where women do not share their opinions in open men's groups (due to caste group socialization), a separate subgroup meeting of women should be held and its discussions included in the minutes of the primary FPC meeting.

Women can also help improve the village economy by being permitted to play a role in the marketing of mushrooms, sal leaves and

Forest Protection Committees i n West Bengal 2 7

seeds, medicinal plants, etc. Before creating a market demand for NTFPs, however, sustainable management techniques must be developed that can simultaneously supply a cash income to the FPC without placing undue pressure on the forest resource. At least two women should be nominated to serve on every executive committee to ensure that the women's perspectives will be heard before decisions are made in the FPC.

New laws and policies that address the needs of women should be sufficiently broad based to involve both tribal and caste groups and should give all women the opportunity to work based on their need, culture, and values. The rather simple program changes suggested here could transform the role of women from that of "offenders," who previously had no choice but to illegally harvest forest produce, to active and essential participants in forest management and protection (Chat-terjee 1991).

Guidelines for M i c r o - p l a n n i n g and D e m a r c a t i o n of Forest Boundaries

The 1990 Government Order mentioned that FPC members will be involved in "various activities," but did not state clearly what kinds of activities these would be or what role the FPCs would have in developing management plans. After the formation and official registration of FPCs, it is imperative that committee members participate in micro-planning and in the demarcation of forest boundaries.

The forest department must cooperatively develop separate working plans with each community to address its specific cultural and physical needs in the context of a particular ecological zone. As part of the micro-planning effort, the team should examine, among other things, community demographics, population, the role and number of cattle in the economy and their impacts on the forest, and the capability of the natural resource base to support management options as they relate to the people's expressed needs. For example, in the Kumhar potter community of Bamunmara Village, Manickpara Range, Midnapur District, 80 percent of the villagers are potters and rely heavily on firewood to fire the kilns. In this instance, a management plan would focus on fuelwood production at the expense of other possible forest products.

As members of the micro-planning team, FPC members have a key role to play in voicing community needs. They possess and have access to "local knowledge" that may go unrecognized by outsiders and that is crucial to successful project planning. Final management plans, however, must be pragmatic, given ecological constraints and the capability of the beat officer and forest department staff to cooperatively implement them with the FPCs.

28 S.B.Roy

Confusion over forest boundaries is a recurring problem for the FPCs. In one instance, members from Chandmura Village of Arabari claimed that they had faithfully protected the Arabari forest with the understanding that they would receive the benefits from their protection activities. Only when the forest was harvested for timber did they realize that they were not considered part of the program. This incident created a great deal of tension throughout the communities involved and resulted in Chandmura Village taking the government to court, seeking an injunction to stop the harvest. The entire situation could have been easily avoided by incorporating boundary demarcation into the micro-planning process. Maps should be drawn once boundaries are agreed upon by all parties (including neighboring communities that may be protecting adjoining forests) and physical barriers constructed if needed. The forest department could also develop uniform signs that would clearly delineate forest land and state which community is responsible for its management and protection.

Divisional forest officers should be encouraged to document how the participation of FPCs in forest protection has helped forest growth, and these data should be made available to the forest department. Species chosen for planting in the forest should also be based on need and be ecologically appropriate for each site. Future government orders should highlight both of these issues. Further stress needs to be placed on the program regarding the primary role communities play, rather than on communities as secondary supporters of the forest department's activities.

Forest Department and Forest Community T r a i n i n g

Since joint forest management represents a new style of interaction between communities and forest departments, it is important that both parties receive some orientation to the objectives and operation of the program. In many cases, earlier management systems created considerable conflict and tension between field staff and villagers. As part of the professional orientation, most foresters were socialized to adopt a paramilitary orientation in dealing with rural people and carrying out their custodial activities. Some communities still mistrust foresters, since their past behavior often has not been supportive of village needs and problems. Orientation programs organized by the Indian Institute for Bio-social Research and Development and the Rama Krishna Mission have been effective in introducing the new concept of collaborative management to foresters and villagers. Orientation efforts provide opportunities for foresters to raise concerns about the new program and examine their behavior under older management systems. Informal discussions and meetings at the village level allow villagers to express their

Forest Protection Committees i n West Bengal 2 9

resentment of past forest department policies and to learn more regarding policy and procedural changes the department has made to respond to their needs.

Given the importance of orientation for both groups, region-wide training programs should be expanded and encouraged through formal inclusion in program policies. The forest department will need to accept responsibility for organizing these activities with assistance from the N G O community. Clear policy guidelines for implementing orientation activities would facilitate this effort.

Role of the W o r k i n g Groups

In West Bengal, as in a few other states in India, a working group (WG) of forest officials, NGOs, and research institutes plans and monitors FPC activities. Although initially informal, they have been effective in coordinating activities and facilitating the learning process. They also study training needs and document the successes and failures of FPCs. WGs should also be formed at the lower and middle administrative levels to improve program support and monitoring activities.

Although the WGs have no legal status, decisions made by state-level WGs sometimes take the form of government resolutions. This saves the time required for "file processing" in the government bureaucratic system. At present, FPCs are not represented in WGs. Since WGs are the best available platform for decision-makers to receive information generated at the village and district level, the participation of FPCs, who would voice village-level concerns, would benefit the entire process and prevent formation of policies that fail to address the needs of the FPCs. At least at the division levels, WGs should be formed with representatives from FPCs and NGOs. They should also receive legal status so that the state is obligated to implement WG decisions.

Conclusion

The West Bengal Forest Department has developed a laudatory approach for involving communities in the protection and development of forest lands. A number of issues, however, still need to be addressed to further improve policies and procedures. Since joint forest management is a new strategy, initial policies and programs will inevitably require continuous monitoring and modification. This process should be viewed as ongoing, where learning and frank discussion of field experiences are encouraged. If the West Bengal Forest Department can commit itself to respond positively to emerging opportunities, the program will effectively continue to address community needs and pro-

30 S. B. Roy

vide leadership to other Indian forest departments experimenting with similar schemes.

Acknowledgements

The author would like to express his gratitude to the Program on Environment, East-West Center, for the opportunity to write this paper. The author also thanks Jefferson Fox, Owen J. Lynch, Mark Poffenberger, and Mark Zimsky for providing initial guidance and for editing the manuscript.

Endnote

1. A revised version of this paper was published in Economic and Political Vkekly (A Sameek-sha Trust Publication) 27(29): 1528-1530 Ouly 18, 1992).

31

3. C O N T R A C T U A L A G R E E M E N T S I N T H E JAVA S O C I A L F O R E S T R Y P R O G R A M

Frances J. Seymour1 and D a n i l y n R u t h e r f o r d

Many newcomers to Java are surprised to learn that almost one-fourth of the island's area, or more than three million ha, is designated forest land. Because of Java's population density of over 100 million, however, few forest areas are far from human settlement. The government of Indonesia recognizes some 6,000 "forest villages" on Java containing at least twenty million people who are highly dependent on forest resources for food, fodder, fuelwood, and building materials. Many are among Java's poorest residents, owning little or no land and residing far from alternative employment opportunities (Peluso and Poffenberger 1989).

Most forest land on Java is classified as production forest by Perum Perhutani, State Forest Corporation (SFC) for Java, a semi-autonomous unit within the Ministry of Forestry. While often criticized for its heavy-handed law enforcement and envied for its financial means, the SFC is grudgingly respected in government circles for its relative efficiency and effectiveness. In addition to revenue generation and law enforcement on forest lands, the SEC's mandate has been broadened in recent years to include responsibility for income and employment generation in forest villages.

Rural people, however, have generally feared and resented the SFC as a paramilitary force who is quick to use repressive measures to restrict access to forest resources (Peluso 1988). A legacy from the colonial era, the SFC's custodial approach to forest management is characterized by treatment of villagers as trespassers and attempts to exclude villagers from forest areas except as laborers in reforestation activities. Those activities can take one of two forms: c e m p l o n g a n , in which villagers are paid a daily wage for land preparation and tree planting, or t u m p a n g s a r i , a form of t a u n g y a , in which villagers are allowed to cultivate food crops on forest land during the first 2 years of plantation establishment in return for the planting and caring of tree seedlings.

Events of the 1940s disrupted government control and management of Java's forests, and the degradation of many areas and disputes over landownership began from that period. In addition, forest management through law enforcement has proven increasingly nonfunctional in the face of a rapidly growing rural population hungry for land and forest products. C e m p l o n g a n and t u m p a n g s a r i , while welcomed by farmers as temporary sources of wage income and access to land, do not provide villagers with any incentive for long-term forest protection. In the 1980s,

32 Frances J. Seymour and D a n i l y n Rutherford

the continuing loss of forest cover due to theft, fire, and uncontrolled grazing, as well as the frequency of violent SFC-villager confrontations, focused national political attention on improving the management of Java's forest lands and caused the SFC to rethink its land management strategies.

Since the 1970s, the SFC leadership has supported various programs seeking to minimize conflict between the SFC and villagers through income-generating activities on and off forest land (Kartasubrata 1988). The most recent effort, initiated under the rubric of social forestry, was begun by the SFC in the mid-1980s with support from the Ford Foundation. In 1984, the SFC contracted with several Java-based universities to conduct case study research in 12 forest villages on interactions among forest villagers, forest resources, and SFC personnel. The research illuminated the conflicts described previously and provided indications of how traditional forest management practices might be modified to render them more responsive to the needs of rural communities (Peluso 1986).

The Java Social Forestry Program

In 1986, with further support from the Ford Foundation, the SFC launched 13 social forestry pilot projects on degraded forest lands in West, Central, and East Java. Although based on the traditional t u m p a n g s a r i reforestation system, the social forestry pilot projects incorporated marginal, although potentially significant, modifications in both the agroforestry system and the social approach employed. Compared to traditional t u m p a n g s a r i , social forestry is designed to offer the farmer greater volume benefits, a wider range of benefits, and benefits over a longer period. Because the timber trees (species such as teak or pine) are spaced more widely than in traditional t u m p a n g s a r i , farmers participating in social forestry have both more space and additional seasons to plant food crops before the canopy closes. Farmers are also allowed to plant nonfood crop species, such as fodder grasses and fuel-wood trees, as well as fruit trees and other horticultural crops previously forbidden on forest lands. Finally, at social forestry sites, farmers' access to the land can be extended until the timber is harvested, allowing them continued access to nontimber products and the opportunity to cultivate shade-tolerant species beneath the forest canopy.

The social forestry program has also attempted to engender a gradual change in the relationship between SFC personnel and participating farmers that is characteristic of traditional t u m p a n g s a r i . Forest rangers receive training in how to approach forest villages as commu-

C o n t r a c t u a l Agreements in Java SFP 33

nity development agents rather than as law enforcement officials. Villagers, rather than relating to the SFC as individual contract laborers, are encouraged to form "forest farmer groups" {Kelompok Tani H u t a n , or KTH) to enter into forest management agreements with the SFC on a collective basis, although each farmer is allocated an individual plot of approximately 0.25 ha. KTHs vary in size, but are usually divided into subgroups of 10 to 20 members. Program guidelines assert that KTH members are to be involved in planning the social forestry site and are to be given a degree of choice in the nontimber species to be planted (Perum Perhutani 1989). The KTH is to meet regularly with SFC staff and to organize cooperative workdays and savings-and-loan activities.

Contractual Agreements

The forest management agreement or contract currently in use was drafted at a workshop in 1986 (Barber 1989) and is based on the t u m pang s a r i contract used by the SFC with laborers in reforestation projects. The contract specifies the agroforestry system to be implemented and the rights and obligations of each party. It is signed by all members of the KTH and a district-level SFC official and is witnessed by a local government official.

The only right of participating farmers recognized by the old contract was the right to food crops grown on the site; the social forestry contract also recognizes farmers' rights to horticultural products, but adds rights to receive technical assistance and input loans from the SFC, which the SFC is obligated to provide in addition to seedlings. The SFC retains the right to determine the agroforestry system, rights to the land and the tree stems, and the right to terminate the rights of those who violate the terms of the agreement. KTH members are obligated to follow SFC direction, repay loans, and participate in guarding and protecting the forest at the planting location and surrounding areas. The contract includes seedling survival standards to evaluate farmer performance, but these standards are to be waived if the SFC fails to deliver obligatory services.

An important difference between the old contract and the new is the renewability of the latter. While regular t u m p a n g s a r i contracts expire after at most 2 l h years, the social forestry contract can be extended at 2-year intervals throughout the length of the timber rotation. The renewability of the contract was intended to assure farmers of their continued access to products from horticultural and shade-tolerant species. The process of completing the contract was envisioned to serve

34 Frances }. Seymour and D a n i l y n Rutherford

as a catalyst for a participatory process between SFC staff and KTH members.

The training of SFC field staff in community organization skills has been conducted by Yayasan Bina Swadaya (Foundation for Community Self-Help, henceforth Bina Swadaya) with financial support from the Ford Foundation. Bina Swadaya, a nationally prominent NGO, has also fielded one advisor in each province to provide backstopping for field staff in KTH development. Although the pilot projects are staffed by a mix of internally and externally recruited field workers, project sites opened during the last 4 years of expansion depend on regular SFC forest rangers and guards who have been given special training in community organization techniques. Early program experience has been documented by the Center for Development Studies of Bogor Agricultural University. With support from the Ford Foundation, undergraduate, masters, and doctoral students have conducted case study research at pilot project sites.

Initial positive experience with the pilot projects has motivated the SFC to expand the program to some 150 additional sites in 1987 and 1988, and expansion for the 1989-93 period is slated to cover almost 50,000 ha. A 1989 evaluation revealed that the rapidity of the program expansion simultaneously indicates and threatens the program's initial success. The addition of new sites has outpaced the training of personnel to staff them, and has overburdened an already weak planning and monitoring capability just as SFC officials attempt to incorporate social forestry's major features into the agency's standard operating procedures (Bina Swadaya 1989).

Problems

In addition to problems directly related to the rapid expansion, other problems have emerged and are awaiting attention from overstretched program proponents. Poor and landless farmers are supposed to be given preferential access to participation in the KTH (Perum Perhutani 1989). However, preliminary evidence indicates that many factors other than equity, including past performance in t u m p a n g s a r i and ability to make an irregular payment to forestry officials, come into play in participant selection (Sunderlin 1990). Poor households appear unable to take time away from wage labor opportunities to make the initial investment in cultivating a social forestry plot. And to the extent that the opening of a social forestry project represents the closing of an open access resource—albeit one of low productivity—the exclusion of poorer elements of the KTH community could easily make them worse off.

C o n t r a c t u a l Agreements i n Java SFP 35

Significantly, the rights conveyed to the farmers over fruit, fuel-wood, and fodder products apparently are not respected by the rest of the community Non-KTH members continue to treat these products as open access resources, so the participating farmer is seldom the one to enjoy them. The fact that KTH members have not chosen to press the issue with village officials or to set up a rotational guard system (such as that used in West Bengal) to protect their plots may be an indication of the low value of the products lost through such pilferage. One reason that the potential benefits to each farmer are so low is that at many sites all applicants were accepted into the KTH resulting in tiny individual plot size. While program guidelines specify that each farmer should receive 0.25 ha, in some sites plots are as small as 0.10 ha.

Low production per plot, pilferage by other community members, and the yet-to-be proven viability of shade-tolerant crops in the agroforestry system raise serious questions about the sustainability of the social forestry program. Ironically, KTH members (rather than the foresters) have begun to unilaterally abrogate contracts, abandoning their plots after the tree canopy closes. It may be that for the program to succeed, the SFC will have to provide a longer period of agricultural benefits to participating farmers, perhaps through alley-cropping, or entitle them to a share of timber at harvest.

The social forestry contract has also failed to meet the more idealistic expectations of program proponents. At a 1-day workshop hosted by Bina Swadaya in June 1990, Bina Swadaya and SFC field staff revealed not only shortcomings in contract implementation, but also troublingly narrow perceptions of its purpose (Bina Swadaya 1990).

Workshop participants stressed first the role of the contract in protecting SFC rights. Apparently the most important role of the contract has been to reassure the SFC that expanding and extending farmers' access rights—particularly the addition of horticultural species to the agroforestry system—would not lead to unwelcome claims to ownership of the land or the trees.2 Indeed, it was reported that a new clause was to be added to the contract in the near future, forbidding signatories from disputing the status of the land. The existing contract already implicitly affirms the SFC's property right, and program guidelines forbid the inclusion of disputed lands (Perum Perhutani 1989). Nevertheless, recent rapid expansion of the program into disputed areas raises the risk of the contract being misused to mislead or intimidate farmers into relinquishing claims to such lands. When confronted with this possibility, workshop participants stated that an exchange of rights (in the form of pending claims on disputed forest land) for program benefits (by signing a contract relinquishing their claims) would be a good deal for the farmer.

36 Frances } . Seymour and D a n i l y n Rutherford

Also stressed by workshop participants was the function of the contract to specify farmers' responsibilities. A case was cited in which an SFC official used the terms of the contract to convince a KTH to expel a member who was not fulfilling his obligations. Although lip service was also paid to the role of the contract in specifying farmers' rights and SFC's responsibilities, all acknowledged that due to the extreme imbalance of power between the two parties, these elements of the contract would have little meaning in the case of a dispute. The validity of these contracts has yet to be tested in court.

The role of the contract in regulating KTH membership also appears weak. Unofficial transfer of plots within and between households is apparently common (Sayogyo et al. 1990). Wives of the predominantly male KTH members do not appear to be anxious over the fact that only their husbands sign the contract; however, when prodded by a researcher over what would happen in the case of divorce or polygamy, one group of women took a sudden interest in becoming co-signers (Santiago and Dharsono 1989), Most forestry workers and male farmers dismiss the need for co-signing, insisting that community norms regarding inheritance in the case of death or abandonment would be followed regardless of the contract format.3 The potential role of the contract in at least educating farmers as to their rights and responsibilities and perhaps catalyzing a participatory planning process appears to be undermined at many sites by poor implementation. Workshop participants reported contracts being signed without a public reading, which is critically important in areas of high illiteracy. The contract itself is usually stored in the SFC subdistrict office, and copies are not routinely distributed to KTHs. Formal extension of the contracts after the initial 2-year period is reported to be haphazard. Unfortunately, more systematic data on implementation of the contract do not exist, as none of the organizations cooperating in the program has focused on the agreement as a particular topic for research or monitoring. Program managers from Bina Swadaya and the SFC have been slow to respond to the need for a special contract implementation handbook for field staff and an explanation of the contract in layperson's terms for farmers.

Despite the Java Social Forestry Program's success in achieving various secondary goals, including raising participants' income in the short run, increasing the variety of species they are allowed to plant, and establishing a working relationship between a forestry agency and an NGO, it appears to have fallen well short of the primary objective of developing a community forestry management system. The potential of the contract to strengthen farmers' rights and catalyze genuine participation in forest planning and management has not been realized.

C o n t r a c t u a l Agreements i n Java SFP 3 7

While prior existence of the t u m p a n g s a r i system provided a basic legitimacy for granting farmers limited rights to forest lands and products, lingering colonial-era attitudes on the part of both farmers and foresters have proven difficult to overcome. One observer has made the pessimistic assessment that over time, social forestry is tending to become more and more like regular t u m p a n g s a r i rather than the reverse (pers. com., William Sunderlin 1990).

Endnotes

1. In addition to the references cited in the text, this section is based on numerous discussions, field visits, and formal and informal reports available to the first author during a 3-year association with the program as Program Officer in the Ford Foundation office in Jakarta.

2. Land disputes have been a chronic headache for the SFC and have often concerned areas planted to perennial crops following the disruptions of the 1940s and mid-1960s (pers. com., Nancy Peluso 1990).

3. KTH membership is predominantly a male domain. Although women provide a substantial share of total labor at the social forestry sites and often attend K T H meetings, formal KTH membership is usually limited to the head of household, traditionally defined as the husband. However, most KTHs include a few female heads of households, usually widows, as full members.

39

4. A STRATEGY FOR SAVING THE MADHUPUR SAL FOREST IN BANGLADESH

M o h i u d d i n F a r o o q u e

The per capita availability of forest land in Bangladesh is less than 0.02 ha, one of the lowest in the world. A recent report reveals that the forest cover is only about one mill ion ha, or 6 percent of the country's total land area (USAID 1990).

The Madhupur Sal (Shorea r o b u s t a ) Forest is the largest remaining patch of forest on the plains of Bangladesh. The area is 60 miles long from north to south, and 5 to 15 miles wide from west to east. The Madhupur tract extends from the Dhaka district northward to the India border in the Garo hills (Figure 4.1).

The Madhupur Sal Forest (hereafter referred to as the Area) has been the worst victim of indiscriminate deforestation over the past few decades. The 20,000 acres of sal forest that existed in 1970 has shrunk to 1,000 acres (USAID 1990). Even the stumps of sal trees are dug up for use in nearby brick fields, although the use of logs for this purpose is prohibited. The competition for the remaining forest resources, together with the cultural heterogeneity of the residents in and around the Area, has created severe social tensions.

The social and environmental problems within the Area are closely linked to the legal complexity of tenure and title issues in Bangladesh and the contest between customary and statutory norms. In this paper I wi l l attempt to identify major issues regarding land tenure in the Area that have contributed to conflicts, crimes, and, ultimately, mass deforestation. Relevant laws are analyzed in order to help all the actors in the Area understand the legality (or illegality, as the case may be) of their actions, omissions, claims, etc. Finally, the potential for introducing joint public-private sector forest management programs in the Area is examined. Such programs are perhaps inevitable if the woodlands of the Madhupur Sal Forest are to be saved and developed sustainably.

Historical Legacy

From the perspective of historical proprietorship, the Madhupur Sal Forest fell into three revenue units: the Attia Forest, the Bhawal Forest, and the Madhupur Forest. Other patches of forests in the Area were owned by small proprietors who earned revenue from the sale of sal trees.

40 M o h i u d d i n Farooque

Figure 4.1 M a d h u p u r S a l Forest, Bangladesh (Source: U S A I D 1 9 9 0 ) .

In the seventeenth century the Mughal Emperor Jahangir gave the Attia Forest as j a i g i r (a grant of land) to the Panni family who at the time were the local zamindar (feudal landlords who obtained lands from the Emperor or the British colonial administration). In 1540, Emperor

Saving the M a d h u p u r Sal Forest 41

Sher Shah granted the Bhawal Forest as j a i g i r to the Gazis, a group of Afghan migrants. The Gazis held the land until they failed to deposit revenue to the treasury by a pre-established date. This "sun-set law" on the z a m i n d a r i was introduced by the British colonists under the Permanent Settlement Act of 1793. Another z a m i n d a r later bought the estate. During the second decade of the twentieth century when the last heir died, the administration of the Bhawal Forest was entrusted to the Court of Ward. The Madhupur Forest was purchased under the sunset law by the Maharajah of Natore (who resided far from the forest). The maharajah settled people in the forest, particularly in the areas where rain-fed agricultural crops could be grown.

In trying to stem the rapid loss of forests occurring during the middle of the twentieth century, the government Forest Department assumed control of the Madhupur Sal Forest under the Private Forest Act of 1949 (later modified and enacted as the 1959 Private Forest Ordinance). However, the 4-year lag between the time this legislation was proposed and when it was actually implemented prompted further damage to the sal forest and random leasing of the land to tenants.

Shortly after the Private Forest Act was introduced, the State Acquisition and Tenancy (SAT) Act of 1950 was enacted, which also had significant legal as well as environmental ramifications for the M a d hupur Sal Forest. This act abolished the z a m i n d a r i system by transferring all "rent-receiving" interests to the government. In addition, the SAT declared all "land consisting of forest" as "nonretainable property" under Sec. 20(2a). In short, the law stated that no individual could retain ownership rights to such lands since they were now considered the sole property of the government. The news of the impending enactment of the SAT Act induced landowners in the Area to settle as much land as possible, even prompting them to issue back-dated title deeds and tenant rent receipts. The practice of settlement executed with falsified documents continued even after de jure vesting of the forest with the Forest Department, which had no field data on such occupations. These events severely complicated the tenure and titles on lands in the Area.

After the government claimed ownership of the Area, it was declared (or at least considered) a reserved forest under the 1927 Forest Act. This act provides that the government may declare any forest land or wasteland or any land suitable for afforestation as reserved or protected forest if the government has a proprietary right over the land in question or its produce. If the said land is private property, declaring it reserved forest is illegal (AIR 1923 Cal 377, DB).


Current Problems of Disputed Land Rights

^ P u b l i c Versus P r i v a t e C l a i m s of O w n e r s h i p

Inspection of ambiguities in the relevant statutes reveals that government claims to large sections of the Madhupur Sal Forest may be tenuous. A s mentioned, the scope of the 1927 forest Act extends to "forest land or waste-land or land suitable for afforestation" for the purpose of declaring the same "reserved forest." However, the SAT Act uses the phrase ' l and consisting of forest" instead of the term "forest land," and it makes no reference to the scope of the Forest Act in defining "land consisting of forest." Therefore, what has been declared "nonretainable property" is not necessarily the forest land referred to in the Forest Act. Presumably, if there is no forest on the land it would not be liable to automatic acquisition under the SAT. In other words, the occupiers of forest lands cleared of trees may be lawful tenants despite the claims of the Forest Department to the contrary.

Land cleared of forests without further improvements can be legally categorized as "vacant nonagricultural land" under Subsec. 2(b)(iii) of the Non-Agricultural Tenancy Act of 1949 and would not fall within the purview of Sec. 20 of the SAT Act. 1 Moreover, under the Non-Agricultural Tenancy Act a nonagricultural tenant is entitled to hold any such land for religious or "other purposes" connected with the exercise of any "forest rights" (Sec. 5). A right to trees, as distinct from a right to or interest in land, is a forest right. But a right to grow trees for timber by undertaking a regular course of cultivation is agriculture (53 C W N 569). "Any other purpose" should include preservation and exercise of cultural practices and rituals, and all other corollary and incidental rights.

It should also be noted that the scope of the 1927 Forest Act does not automatically render as reserved forest all "forest land or wasteland or land suitable for afforestation." To do that, the government has to follow a lengthy procedure. 2 A s the procedures decreed in the 1927 Act has not yet been completed, and also in view of the scope of the SAT, lawful private ownership of lands can exist in the Area.

C u s t o m a r y L a n d R i g h t Issues

The question of lawful settlement in the Area is particularly complicated for the Garo, a tribal people who comprise most of the residents. The Garo of Madhupur are descendants of swidden {jhum) cultivators who migrated from the interior Garo hills in Assam, India. N o historical document is available to identify the period of their migration. However, the Garo have been living in the Area for at least one hundred years (Khaleque 1984). They continued to practice j h u m until it was pro-


hibited by the government in 1950. Today, they are wet rice cultivators but are still dependent on the forests for subsistence needs.

Many of the tribal families possess valid title documents executed by former z a m i n d a r i , but most of them claim their land tenure and title as "traditional rights." When the Garo held land under the z a m i n d a r i , they were required to pay revenue to the z a m i n d a r i for allowing them to live and cultivate in the Area under conditions stipulated in written agreements (Khaleque 1984). In cases of default their properties were confiscated.

In the 1950s the Garo were allowed by the Forest Department to continue to enjoy the benefits of their titles. However, these rights were gradually withdrawn in order to bring the lands in question under the full possession and control of the government. Attempts to relocate the Garo out of the Area, especially from the Madhupur National Park where their settlement is mainly concentrated, started in the 1960s. The divisional forest officer issued notices, asking the Garo to shift their houses from the national park to a designated area outside the park but within the reserved forest. However, the Garo claimed that the proposed relocation area is fully occupied by Bengalis and that suitable agricultural land is not available. Although the government publicly assured compensation to the Garo for relocating, the Garo have not yet relocated. The Garo consider the eviction measures taken by the Forest Department to be a threat to their social, economic, and cultural development (Khaleque 1984). The present scenario is a hostile story of violence, accusation and counter-accusation, litigation, encroachment, and wholesale destruction of the natural forest.

Given that most of the Garo claim ownership to land within the Area based on traditional rights, it would be relevant to examine the status of traditional or customary rights under various land tenure laws. The Bengal Tenancy Act of 1885 declared that the courts must take into account "local custom" (Sec. 5[4][a]) in determining whether a tenant is a "tenure holder" or a raiyat (someone who has a right to hold land for cultivation purpose). The Bengal Tenancy (Amendment) Act of 1928 further provided that every raiyat who holds a customary right of occupancy prior to the commencement of the act in any land shall continue to have a right of occupancy in that land (Sec. 19[1]). Every person who for a period of 12 years was a raiyat of land situated in any village, under lease or otherwise, was deemed to be a "settled raiyat" with a right of occupancy (Sees. 20 and 21). If a r a i y a t died intestate, the customary right of inheritance had to be observed (Sec. 26). Sec. 183 of the act clearly states, 'Noth ing in this Act shall affect any custom, usage or customary rights not inconsistent with, or not expressly or by necessary implication modified or abolished by, its provisions." These pro-


visions demonstrate that in Bengal, customs and customary rights were active in regulating land tenure issues and the law recognized them with some qualifications. In fact, the origin of many of the rights of present title holders was initially based on customary rights by the z a m i n d a r i .

The SAT Act d id not completely repeal the 1885 Act, and the existence of "custom" is acknowledged. Perhaps the most important provision in the SAT Act according special tenurial status to lands falling within the traditional domain of aborigines3 is Sec. 97, Subsec. 2, providing that "no transfer by an aboriginal raiyat of his right in his holding or any portion thereof shall be valid unless it is made to another aboriginal domiciled or permanently residing in Bangladesh." Where the transferee is not an aboriginal, permission from a revenue officer would be required. This provision explicitly protects the integrity of the cultural territories of aborigines. The SAT Act not only recognized the titles of various r a i y a t s but also declared "any land or building in a h a t or bazar" and "any land actually in use for ferry" as nonretainable properties. O n these properties community usufructuary rights were preserved against individual titles in the name of "public ownership." Similarly, lands used as a place of public prayer or religious worship, or as a public graveyard or cremation grounds, are exempted from payment of rent (Sec. 151A). Therefore, the principle of "common property" appears to be accepted in the SAT Act.

These provisions amply acknowledge the "title holding eligibility" of the Garo and the special status of the cultural domain of aboriginals who reside in the forests of Bangladesh. The application of the SAT Act has further been limited to the H i l l Tracts of Chittagong where the majority of tribal people live under a customary legal system headed by a tribal monarch*

Finally, the 1927 Forest Act states that the forest settlement officer is responsible for observing, investigating, and making decisions on all claims made on government lands under consideration for reserved or protected status. For example, for a claim relating to the practice of shifting cultivation, the forest settlement officer must record the local rules or orders and may delimit the territory of the practice (Sec. 10). Although swidden cultivation has been totally prohibited in the Area since the 1950s, this outright ban of local rules and practices may not be consistent with the intention of the 1927 Act.

The 1927 Act further requires the protection of right of way, right of pasture, or rights to forest produce or a watercourse (Sec. 12-15). If it becomes essential to commute such rights, the government must compensate the aggrieved persons with money or a land grant (Sec. 16). However, these rights cannot be alienated, sold, or bartered (Sec. 24).


If the government stops any public or private way or watercourse in a reserved forest, it must provide a substitute. In protected forests, such a notification cannot be made unless the nature and extent of the rights of the government and private persons are settled and recorded. N o such action can abridge or affect any existing right of an individual (Sec. 29). In reserving any class of trees, such measures cannot extend beyond 30 years. The 1927 Forest Act provisions vividly demonstrate that private ownership and customary rights over public lands in reserved or protected forests were neither precluded nor connived, but have been accorded legal recognition.

In summary, the situation in the Area is such that those claiming to have statutory titles are not in possession of the land, and the physical possessors of the land feel uncertain and insecure about their tenure. The result is "day-night economic exploitation" with substantial degradation of the total ecosystem.

The Potential for Social Forestry

The complexity of the land disputes in the Area precludes immediate legal settlement. By the time the question of "who owns what?" has been resolved, the remaining forests may have disappeared. To tackle the fast-approaching bankruptcy of forest resources and to respond to the dictates of sustainable environmental management, various multipurpose land-use programs are being implemented throughout South Asia and elsewhere that attempt to resolve the conflicts over forest resources (Fox and Fisher 1990). These programs are referred to collectively as social forestry. Social forestry seeks to conserve forest resources by encouraging government forest departments and local communities of resource users to work together in a cooperative management strategy.

In a social forestry program, security of land tenure is still a critical issue. Unless the participants are assured of their titles and interests with security and sanction, they are unlikely to cooperate. Hence, in many cases, "it may be difficult to insert [social] forestry prior to a more far-reaching reform of land tenure or change in use" (Rao 1984:15)—a classic example is the Madhupur Sal Forest.

In the Area, the Forest Department initially planned to gradually convert the irregular forest into plantations of sal and other valuable species. Soon after the government assumed possession of the Area, the Forest Department plans were implemented under a t a u n g y a system that combined the swidden agriculture of the Garo with plantation-style, tree cultivation. After clear felling, the areas were prepared by


the Garo for cultivation by burning. They were allowed to grow their own crops between the rows of sal for 3 years if they agreed to weed without renumeration. Thus most of the j h u m fields were converted into sal regeneration plots on which the rights of the Garo were not recognized by the Forest Department. The t a u n g y a plantation failed disgracefully. The Forest Department attributed the failure to destruction caused by the Garo whose j h u m lands were converted, and the latter pointed to the corruption of the Forest Department. In general, the Garo had little enthusiasm for the plantation since they had no share in the benefits from it.

More recently, some enthusiastic officers of the Forest Department have taken steps to promote agroforestry activities involving local settlers on a yearly verbal contract basis. Such individual initiative is commendable in the current context, although it is weaker in form than the much-criticized agricultural "share-cropping" system. A few N G O s have been successful in motivating local groups to protect small patches of forests. However, their l o c u s s t a n d i to allocate tenure is nonexistent. Although the lands now look green, their durability is questionable as the participants might deforest the area overnight out of frustration with the unstable tenure situation.

Although past efforts to involve local residents in the management of Forest Department-administered forest lands have met with little success, it should be noted that existing national legislation in Bangladesh is supportive of social forestry concepts. For example, the 1927 Forest Act explicitly recognizes the possibility of co-management of public and private forest. Sec. 28 states:

1. The Government may assign to any village community the right of government to or over any land which has been constituted reserved forest, and may cancel such assignment. Al l forest so assigned shall be called village-forest.

2. The Government may make rules for regulating the management of villages-forests, prescribing the conditions under which the community to which any assignment is made may be provided with timber or other forest produce or pasture, and their duties for the protection and improvement of such forests.

3. All the provisions of this act relating to reserved forest shall (so far as they are not inconsistent with the rules so made) apply to village-forests.

The scope of these provisions grants sufficient latitude to the Forest Department to accommodate social forestry programs on reserved forest lands. The government or the Forest Department on its behalf can frame detailed operational rules granting secured tenure, and participatory management with protection and improvement responsibilities. Once


adopted, the bylaw wil l acquire precedence over the parent-law concerning incompatibilities (Subsec. 3). Moreover, if on a forest land or wasteland joint proprietary or pecuniary interests of private individuals and the government co-exist, the latter may either undertake management of such forest or issue regulations for its management by a person with joint interests (Sec. 80). A n d for the government, there is no insecurity of such investments or divestments because power of recovery is authorized by the act (Sees. 81-85).

The basic inherent weakness of the resource management laws is failure to recognize and accommodate customary practices of the resource users. These laws largely regulate to titles but not the actual modes of use (Farooque 1991). Consequently, most laws are unenforced or institutionally unenforceable, and the ambitious underlying objectives are never achieved.

In addition, Subsec. 2a(iii) of the SAT Act has a significant anti-forestry implication: The moment anyone who takes up afforestation on private lands succeeds in creating a "forest," the land becomes "non-retainable" as "land consisting of forest" and ownership wi l l vest with the government.

Proposed Strategy

To work out a strategy to resolve or overcome land tenure complexity in favor of cooperative management of the Madhupur Sal Forest, the following recommendations are made:

• Prepare the Forest Department for an alternative management strategy. The Forest Department should realize that the tenurial anarchy has largely been caused by its own ignorance, negligence, institutional inertness, or impractical policies. The department should focus on regaining the trust and confidence of the local people.

• Encourage the Forest Department and the Department of Land Records to work together to complete the unfinished task of surveying lands and preparing records of rights. Special consideration must be given to the land right issues of the Garo.

• Ensure that necessary rules and orders are adopted under Sec. 28 of the 1927 Forest Act.

• Expedite the litigations pending before civil courts. Misuse of "forest offense" provisions must be stopped. A close working relationship must exist between the Forest Department and the legal aid and human-rights groups active in the Area. It is essential to establish accountability within the hierarchy of the Forest


Department and the Ministry of Environment and Forests. Illegal loggers must be punished and all brick-buming fields from the Area must be removed.

• Persuade the occupiers, in cases of severe disputes, to make contractual arrangements through a lease or mortgage. For the Garo, a clause can be inserted in the new arrangements indicating that they do not waive their claims, if any, on the lands by entering into joint management programs (the example of stewardship agreements used in the Philippines can be followed).

• Tailor social forestry programs to deal with at least four types of situations: (1) lands fully controlled and owned by the government; (2) lands recorded in private names; (3) Garo traditional lands; and (4) encroached lands.

• Facilitate the efforts of N G O s to mobilize and initiate social forestry programs. The role of N G O s is inevitable because it may take quite some time before a partnership psychology is established between the direct actors. N G O s can help bridge the gap.

To save the Madhupur Sal Forest, a crucial choice must be made between a cooperative public-private sector approach and untenable proprietorship efforts. Since most of the Area has been occupied by private settlers for decades (no exact figure is available), it is unfortunate that the fight to establish or re-establish government title is still continuing. The main purpose of acquiring forest from feudal families in the name of the people was to develop the resource for the people, with the people, and not simply to enhance the symbolic stature of the government's omnipotence. If the resource is regenerated and sus-tainably developed for the short- and long-term benefit of the people, then the actual public purpose wi l l have been achieved. It is high time to develop mechanisms for the "social" rather than the so-called "public" interest.

Endnotes

1. It should be noted (hat the lands in possession of various occupants in the Area are cleared lands devoid of forest.

2. The legal formalities the government must follow for taking possession of forested areas are quite lengthy. The procedures were established in Sees. 3-20 of the 1927 Forest Act. The act provides that whenever any land is declared government-owned forest, a notification to that effect has to be issued and a forest settlement officer must determine the existence, nature, and extent of any rights alleged to exist in favor of any person. The officer must issue a proclamation in the local area and invite and inquire claims and record his decision. Anyone aggrieved by such decisions, including the FD, can file an

Saving the M a d h u p u r Sal forest 49

appeal. After decisions are finalized, the "government shall publish a notification specifying definitely, according to boundary marks erected or otherwise, the limits of the forest which is to be reserved" (Sec. 20).

3. By Act LXI of 1947, the Garo has been recognized as "aboriginal."

4. In these areas, land was acquired under a special law—The Chittagong Hill Tracts (Land Acquisition) Regulations of 1958. This law guarantees compensation for damage sustained due to acquisition of structures, bamboo, trees, or standing crops.

Part II The Philippines and Thailand

53

5. DEVELOPMENT ASSISTANCE A N D PROPERTY RIGHTS IN THE PHILIPPINE UPLANDS

D o n n a Z. G a s g o n i a

for people already in the ecologically c r i t i c a l areas, we must introduce env i r o n m e n t a l enhancement and protection programs as w e l l as environmentally sound livelihood technologies. Secondly, we must formulate pragmatic strategies and integrated development plans to address the problem of m i t i g a t i n g the tide of migrations to the ecologically c r i t i c a l areas and the primate city. A n i n s t i t u t i o n a l f r a m e w o r k dedicated to this purpose must be created,

—Secretary Fulgencio S. Factoran, Jr. Department of Environment and Natural Resources

Quezon City, Metro Manila Philippines

People living on public forest lands for more than 30 years,1 many since time immemorial, have been a major factor in preserving the remaining forests of the Philippines. Their presence and management practices have helped deter large-scale logging operations and encroachment by people from the lowlands. Many of these residents of forest lands practice indigenous agroforestry,2 an essential element of sustainable development in the Philippine uplands (NEDA 1989).

Unfortunately, the Philippine government, since the Spanish colonial period to the present, has been generally prejudiced against upland dwellers. People living within classified forest lands have long been indiscriminately labeled as destructive k a i n g i n e r o s (i.e., slash-and-burn farmers). They have also been mdiscrirninately referred to as squatters on government lands (Act No. 274, 1901; Presidential Decree No. 705, as amended, 1975). It was only in 1982 that a legal distinction was made between recent migrants and upland dwellers who occupied "public forest lands" before 1 January 1982 (Letter of Instructions No. 1260, 1982). The longer term, upland dwellers became eligible to participate in the Integrated Social Forestry Program of the then Ministry of Natural Resources. This recognition gave these dwellers official status wi th a definite government program that allowed them to stay where they were. Since then policies have changed, programs have been strengthened, forgotten or canceled, and new programs have been initiated. Yet public awareness about the rights of Phil ippine upland dwellers, 3

especially indigenous cultural communities living within what are officially classified as "public forest lands," remained relatively low.

In the meantime, large-scale timber and nontimber concessions continue to deplete forest resources. The logging roads provide access to

54 D o n n a Z . Gasgonia

the forests from the lowlands, resulting in a steady influx of lowland migrants. Settlements of lowland migrants with slash-and-burn farms using tilled monocropping methods appear on both sides of these logging roads. This phenomenon accounts for accelerated resource depletion and increasing population densities in the remaining forests.

Long-term forest occupants face tremendous pressures to make quick decisions that may spell ecological disasters. Material benefits from cash crops work against traditional swidden farms that require long fallow periods. At the same time, national prejudice against cultural communities perpetuates ignorance of the ecological importance of indigenous methods of agroforestry. If upland dwellers are to be given a fair chance, decades of disenfranchisement and injustice must be eradicated and public sentiment must sway in their favor.

The time has come for both government and non-government organizations (NGOs) to ensure that long-term upland dwellers do not succumb to the prejudice that labeled them as "forest destroyers." The issues of property rights and development assistance relative to large-scale concessions and other upland programs need to be addressed. For its part, the government must take clear and decisive actions toward more community-based and environmentally sustainable programs.

With the 1987 Constitution as its mandate, the government can establish and/or strengthen the necessary institutions to prioritize programs for long-term upland dwellers. The rationale for these programs is best expressed in Department Administrative Order No. 123, series of 1989:

1.1 The conventional practice of awarding forest product utilization permits/licenses to timber companies has denied legal access to these resources by rural communities.

1.2 Despite many decades of forest products extraction, poverty is still widespread in the uplands.

1.3 Forest conservation is an imperative precondition to sustainable development and requires the active participation of rural communities.

The historical as well as official significance of these words proclaims a policy shift toward forest management by upland dwellers. It follows that upland dwellers should now be better able to acquire legal rights to use natural resources within the traditional territories they occupy. This improved status should result despite the assumption of the Regalian Doctrine that all public lands are owned by the state.

Government policies and programs in favor of upland dwellers already exist. Access benefits have trickled down to some communities, mostly to those with cultural and political unity. In many cases, however, where procedural and technical channels are clogged, immedi-

P h i l i p p i n e Uplands 55

ate evaluation is necessary to institute corrective measures. Furthermore, the task at hand is not to merely ensure that benefits "trickle down" to target communities, but that they sweep through the entire nation, appropriately and efficiently.

Government Programs

The Department of Environment and Natural Resources (DENR) has jurisdiction over public forest lands in the Philippines. 4 The DENR's mission is "to promote the well-being of the Filipino people through sustainable development of forest resources, optimal utilization of lands and minerals, social equity and efficiency in resource use, and effective environmental management" (DENR 1989b). Under this mission, several DENR programs and policies target people living on public forest lands or upland dwellers as beneficiaries. These programs can be grouped into (1) the Integrated Social Forestry Program (ISFP), (2) the National Forestation Program (NFP), and (3) the Ancestral Land Delineation Task Force (TF-AD) (see Table 5.1).

The ISF, oldest among these D E N R programs, is centered around the concept of stewardship. Upland dwellers within public forest lands can secure a Certificate of Stewardship from the D E N R and acquire exclusive rights to use and occupy land for 25 years, renewable for another 25 years (Letter of Instructions No. 1260,1982). Stewardship certificates are issued to individuals and associations or indigenous communities.

The NFP, through their more recent programs, offers various livelihood opportunities to upland dwellers. The most popular program is contract reforestation, which is primarily a short-term employment agreement to undertake government reforestation projects (DENR A d ministrative Order No. 39, 1988). Contracts are awarded either through the family/community approach or through the corporate approach. The latter includes private corporations, N G O s , local government units, and other private sector entities.

By 1989, after the first year of implementation of contract reforestation, upland dwellers became apprehensive about their long-term prospects because employment is assured for only 3 years and tenure is not a project component. Their growing concern was addressed when the D E N R offered a subsequent agreement under the NFP, called the Forest Lease Management Agreement, or F L M A (DENR Administrative Order No. 71, 1990). Holders of the F L M A may harvest, process, sell, or otherwise use the products grown on land covered by the agreement for a period similar to the ISF.

Another community-based program is the Community Forestry


Table 5.1 The Various Types of D E N R Documents Issued

Program Individual/

Family Community Indigenous

Peoples

ISF CSC CCFS CSC or CCFS

NFP FCR CCR FCR or CCR F L M A FLMA FLMA CFMA CFMA MFPP MFPP MFPP or negoti

ated contract

TF-AD C A L C C A L C _

CALC Certificate of Ancestral Land Claim CCFS Certificate of Community Forest Stewardship CCR Corporate Contract Reforestation CFMA Community Forestry Management Agreement CSC Certificate of Stewardship Contract FCR Family Contract Reforestation FLMA Forest Lease Management Agreement ISF Integrated Social Forestry MFPP Minor Forest Product Permit NFP National Forestation Program TF-AD Ancestral Land Delineation Task Force

Program (CFP), which offers Community Forestry Management Agreements (CFMAs) to upland dwellers with the same 25-year period as the ISF (DENR Administrative Order No. 123, 1989). The C F M A gives limited rights to upland dwellers to undertake timber-harvesting operations. Unlike the F L M A , the C F M A emphasizes community organizing and planning, and N G O involvement.

The D E N R is currently undertaking a nationwide delineation of ancestral domains through regional and provincial task forces as an exclusive service to Philippine indigenous cultural communities. The first task force, created in the Cordillera Administrative Region, serves as a model for other areas (DENR Special Order No. 31, 1990). Basically, the task forces seek to delineate the boundaries of ancestral domains through actual ground survey, and in the process, identify the specific indigenous cultural communities that have rights to these areas as traditional territories. The communities or individual members thereof are eventually issued Certificates of Ancestral Land Claims (CALCs) .

In terms of development assistance and land tenure, see Table 5.2 for a comparison of the government programs.


Table 5.2 Comparison of D E N R Programs

Tenure Program (yrs) Development Assistance

ISF 25 Infrastructure support, credit assistance, planting stock production

Contract Reforestation 3 Employment for planting, weeding, monitoring, evaluation

FLMA 25 Production sharing of income from the sale of timber harvested

CFMA 25 Community organizing, on-the-job training in forest management planning and conservation, livelihood opportunities in forest resource rehabilitation

Rattan <;io Rattan plantation establishment and development

TF-AD - Not specified

CFMA Community Forestry Management Agreement FLMA Forest Lease Management Agreement ISF Integrated Social Forestry TF-AD Ancestral Land Delineation Task Force

Program Analysis: Property Rights and Social Benefits

Each program has strong and weak points that can be used by upland dwellers to strengthen tenurial security and gain access to government services. These programs give upland dwellers a choice of opportunities to work with government for advancing their interests. In turn, the government hopes this wi l l result in better management of the uplands. Unfortunately, implementation is rather impaired because of confusion about these different programs. A simple table of selected provisions about available and prohibited areas shows a significant area of confusion (see Table 5.3).

Large-scale concessions given by the D E N R to business enterprises controlled and owned by a few rich individuals generally have priority over social forestry programs. These concessions are given through T L A (Timber License Agreement), TPSA (Timber Production Sharing Agreement), P L A (Pasture Lease Agreement), A F L A (Agroforestry Farm Lease Agreement), A G L A (Agroforestry Grazing Land Lease Agreement), FTP (industrial tree plantation), and IFP (industrial forest plantation), among others. Under the National Forestation Program and the Community Forestry Program, areas covered by these permits, leases, agreements,


Table 5.3 Selected Provisions of D E N R Programs

Program Available Areas Prohibited Areas

ISF

Contract Reforestation

FLMA

CFMA

Areas within existing TLA, PLA, ITP, or AFLA that have been developed as of 31 December 1981 and as concurred by the Secretary and provided further that it is not in conflict with the reforestation obligations of licensee/leaseholder

Areas within TLA with poor reforestation performance

Land that was reforested or otherwise developed by virtue of a contract implemented under the NFP

Land that was reforested or otherwise developed under any other program implemented or administered by the DENR that shall be brought under coverage of this Order by virtue of an official action by the Secretary

All lands in the public domain

Areas already covered by existing DENR reforestation projects, CFMA, FLMA, and other similar projects

Areas covered by permits, licenses, and agreements

Notwithstanding the list of available areas, no FLMA shall cover land that falls within the following categories: land that is part of a TLA, TPSA, FLGLA/PLA, or IFP

Critical watersheds, protected and wilderness areas, reservations covered by permits, leases, or contracts

Note: See Annex B for a complete list of available and prohibited areas. AFLA Agroforestry Farm Lease Agreement CFMA Community Forestry Management Agreement DENR Department of Environment and Natural Resources FLGLA Forest Land Grazing Lease Agreement FLMA Forest Lease Management Agreement IFP Industrial forest plantation ISF Integrated Social Forestry ITP Industrial tree plantation NFP National Forestation Program PLA Pasture Lease Agreement TLA Timber License Agreement TPSA Timber Production Sharing Agreement


or contracts are prohibited. Even the Integrated Social Forestry (ISF) Program has thrown in a convenient loophole for concessionaires; it prioritizes reforestation obligations to the exclusion of upland dwellers.

For instance, the ISF can cover areas within existing large-scale concessions, provided the area has been developed by the upland dwellers before 1982 and awarding the area to them wil l not conflict with the reforestation obligations of the licensee/leaseholder. Tracing the origin of this provision is quite interesting. In 1988, Secretary Factoran issued the revised regulations for ISF (DENR Administrative Order No. 97, 1988). In that order, he included T L A , P L A , A G L A , etc., as prohibited areas for ISF. O n 27 February 1991, he revoked the provision, so that now upland dwellers can apply for areas within T L A , P L A , or A G L A , provided they can prove development activities before 1982 (DENR Administrative Order No. 04, 1991). This shift in policy must be interpreted to mean that the licensee is no longer preferred over the prospective ISF participant.

Only "reforestation obligations" of the licensee/leaseholder can dislocate the prospective ISF participant. If the reason for making reforestation obligations an exception is to prevent the licensee/leaseholder from using the ISF to evade this responsibility, then the operations plan of the licensee for 1982 should have indicated clearly that reforestation was to be undertaken by 1982.5 This operations plan should have been submitted and officially received by the then Bureau of Forest Development at the latest in 1981. Furthermore, by this time, if no reforestation has been undertaken by the licensee/leaseholder, the ISF applicant should have been given the option to undertake this, with costs to the licensee/leaseholder; and all trees planted should now be co-owned by the D E N R and the ISF stewardship holder.

With respect to the recent programs under the NFP, these licensed/contracted areas are listed as prohibited areas. Unlike the ISF stewardship contracts, the F L M A and the C F M A cannot be availed of by upland dwellers if the area is covered by licenses, agreements, or contracts. Facts and figures about these large-scale concessions provide distressing signals. In 1989, timber licenses, tree farms, forest plantations, or agroforestry landholdings and grazing lands covered 5.490 million ha (see Table 5.4).

When the present state of the Phil ippine uplands is evaluated, it seems illogical to allow such large landholdings to persist and continue to breed poverty not only in the uplands but in the entire nation. A n "extended or social" benefit-cost analysis tips the economic scale against timber concessions (Talisayon 1991). A similar argument against industrial and grazing agreements can be made.

60 D o n n a Z. Gasgonia

Table 5.4 Philippine Areas Under Concession (in mill ion ha)

1989 1979

Agreement Number Area Number Area

Timber 113 4.67 284 9.156 Industrial 375 0.468 45 0.039 Grazing 903 0.352 3,633 0.967

Total 5.490 10.162

Source: Forestry Management Bureau (1989).

Note: see Annex C for detailed tables.

There is a clear need for natural resource accounting to put implementation priorities in a more rational perspective. Without this, "the false dichotomy between the economy and the environment leads policy makers to ignore or destroy the latter in the name of economic development" (Repetto et al. 1989). A long this line, the D E N R recently initiated studies in natural resource accounting in a deliberate effort to recognize the productive role of natural resources in state economics. Coupled with the strengthening of the Environmental Impact Assessment System in the Philippines, the D E N R is taking steps to recognize social benefits and social costs. The next step would be to remove the burden of social costs from the upland dwellers and redistribute them to society. This is realistically correct if large-scale concessionaires cannot be made to answer for these costs. A s a corollary to this, social benefits should be allocated away from the elite and to the upland dwellers who play crucial roles in sustainable development.

Consistent with these steps, a D E N R acuTunistrative order should be issued, revoking all provisions in its regulations that prioritize large-scale landholdings relative to social forestry programs. 6 The Secretary of the D E N R can declare areas within "public forest lands" as available to social forestry programs for national interest even if these areas are covered by permits, agreements, and contracts in favor of large-scale lancmoldings.7 Furthermore, these permits, agreements, or contracts have provisions that allow the issuing authority to cancel, revoke, or revise the same for public interest. This unilateral authority may not even have to be invoked if a thorough performance evaluation determines that cancellations are warranted due to violations of forestry laws and the terms and conditions of the respective agreements. In other words, there are various ways explicitly legal to get the same result. Therefore, it is a basic question of prioritizing grassroots concerns over conservative policies that favored economic and political elites.


Another important and urgent matter that needs attention is the right of indigenous cultural communities to their ancestral domains. 8

The DENR has begun providing technical assistance to indigenous peoples by conducting ground surveys of their ancestral claims. Although delineation is a mere preliminary step, indigenous peoples have been able to assert their rights more eloquently because of its official stature. In practice, however, when these claims overlap with licensed areas, even the D E N R surveyors and foresters need to get permission of the licensee to conduct the survey. Otherwise, they risk the ire of the licensee's guards, who are often armed.

Development Assistance

From a regulatory standpoint regarding development assistance, there is confusion over whether the different D E N R programs, especially social forestry programs, are mutually exclusive. Namely, the N F P takes priority over the ISF, which in turn takes priority over licensed/contracted areas, yet licensed/contracted areas take priority over NFP. There is a circuitous ambiguity here. Once the area has been declared for ISF, the upland dwellers awarded ISF contracts should not be excluded from the livelihood benefits of the more recent programs under NFP, especially when they have Community Forestry Stewardship Contracts (CFSCs). 9 The strong but short-term appeal of N F P programs, as opposed to ISF programs, is immediate cash through direct compensation by contract reforestation. This incentive should not work against the upland dwellers who may opt for the short-term N F P reforestation contracts by causing them to forfeit their privilege to avail of ISF stewardship contracts. In the same manner, if upland dwellers decide to apply for ISF contracts, they should not be excluded from the livelihood and financial benefits offered under other D E N R programs.

This "exclusivity" situation appears to have surfaced due to DENR's commitment to ISF stewardship contract holders that everything they produce within the area belongs to them (including trees, whether fruit or hardwood). 1 0 Under contract reforestation, which is financially supported by loans from the Asian Development Bank, the D E N R holds a major share in the trees planted in the area. Thus it has been argued that if a reforestation contract is given to ISF stewardship contract holders, the D E N R loses its share in the trees planted and wi l l have problems repaying the loans obtained.

Without going into the intricacies of government debt service, the speculated problem of "loss of share/ability to repay the debt" can be easily answered by an administrative circular that specifies such shar-


ing arrangements whenever "ADB loan/fund" assistance is availed upon by ISF stewardship contract holders (See Annex D for a draft Administrative Order). Under this method, upland dwellers, as well as forestry officials, wi l l not be forced to select one program to the exclusion of others.

These arguments also apply to indigenous peoples who have opted for Certificates of Ancestral Land Claims ( C A L C ) . Where physical inaccessibility no longer provides protection from encroachment, ancestral domains are kept intact through contractual arrangements with government agencies and private parties. These include employment, royalties, leases, and use of forest product privileges. The indigenous peoples insist on recognition of their ancestral rights more than anything else. Yet they are constrained by lack of "legal documents" to apply for social forestry programs and abate immediate displacement. In fact, most of their rights, especially to ancestral domains, have never been directly recognized, in contrast to prior and vested rights of Spanish origins. The fact that they are indigenous peoples should entitle them to better privileges, not less.

There is already some speculation that wi th the creation of T F -A D s and the issuance of C A L C s , indigenous peoples wi l l no longer participate in ISF or the N F P in general. But when they do decide to avail of the livelihood and technical assistance under these programs, they should not be turned away. Their participation in these programs is not only for their own benefit, but more to the benefit of government and society, for the indigenous peoples hold their ancestral domains sacred. This is the essence behind the inclusion of the nonwaiver provision in ISF contracts concerning ancestral land rights.

Conclusion and Recommendations

The D E N R has been under new administration since 1987, with Secretary Factoran opening up greater opportunities for upland dwellers to gain legal access to forest and land resources. Policy changes and program implementations have been responsive to the initiatives of N G O s and private voluntary organizations (Seymour and Rutherford 1990). The administration completed its term in 1992.

Subsequent administrators should work toward streamlining the different social forestry programs and coordinating efforts to giving better service to upland dwellers. The D E N R needs to make a clear and immediate pronouncement of priorities regarding its different programs, with a definite emphasis on social forestry as conceptualized under the ISF.


However, policy pronouncements and comprehensive programs wil l remain empty promises if the DENR's key field officials do not effect the necessary actions. A huge bureaucracy with a wide spectrum of concerns, the D E N R serves upland dwellers through a decentralized structure. Successful implementation at the field level depends on the regional executive directors (REDs). The REDs should receive clear instructions and motivation to implement social forestry programs, and institutional support to strengthen their ability to follow through.

The basis for evaluating their performance should also give more weight to the impact of social forestry as a "key result area." Evaluation should include not only "number targets," such as number of certificates issued and areas covered, but socioeconomic and cultural impacts of the programs. This would allow the REDs to concentrate on coordinating efforts to ensure greater impact (see Annex F for a draft memorandum to REDs). Furthermore, the REDs who work closely with N G O s and private voluntary organizations (PVOs) should be given better performance ratings, because social forestry programs in the Philippines enjoy greater success by upland dwellers when N G O s and PVOs are present in the area.1 1 A n Integrated Social Forestry Program that is properly implemented and prioritized is a pragmatic institutional framework for upland dwellers. It incorporates environmental enhancement and protection with livelihood technologies based on sustainable agroforestry in the Philippine uplands. By directly confronting the issues of implementation priorities in development assistance and property rights in the uplands, and resolving the same in favor of upland dwellers, an essential ingredient for any sustainable development program wil l have been assured—that of people participation at the grassroots level.

Ultimately, the upland dwellers, we hope, wi l l assert their rights to these resources in all areas.12 They must be able to use official documents to pressure government to prioritize social forestry programs and to acquire better recognition of rights, including ownership, communal titles, and self-determination with respect to ancestral domains.

Endnotes

1. Philippine civil law recognizes possessory rights over land when exercised in an open, continuous, exclusive, and notorious manner for 30 years or more. However, jurisprudence is not settled about "public forest land" and "native titles," or ancestral domains.

2. In this context, agroforestry is defined as any sustainable land-use system that maintains or increases total yields by combining food (annual) crops and/or livestock on the same unit of land, either alternately or at the same time, using management practices

64 D o n n a 2. Gasgonia

that suit the social and cultural characteristics of the local people and the economic and ecological conditions of the area (Vergara et al. 1982).

3. "Upland dwellers" shall henceforth refer to those who have occupied forest lands before 1982, as provided for in the Integrated Social Forestry Program, and shall include indigenous cultural communities and upland farmers.

4. As of 1989, there were 15.88 million ha of classified and unclassified forest lands, or about 53 percent of the total Philippine land area (Forestry Management Bureau 1989; see Annex A for a Land Classification Table).

5. The ISF imposed 1982 as a cut-off date for eligibility of upland dwellers to secure stewardship agreements. In accordance with the constitutional mandate for equality before the law, the licensee/leaseholder must have conclusive documentary proof that an operations plan for 1982 was duly submitted and officially approved before 1 January 1982. Without such proof, no presumption lies in his/her favor.

6. Since the priority given to large-scale concessions was done through administrative regulations, the same can be revoked administratively (see Annex D for a draft Administrative Order).

7. The authority to revoke or cancel contracts because of national interest finds basis in the 1987 Constitution, Art. II, Sees. 10, 22, and 23; Art. XII, Sec. 5; Art. XIV, Sec. 17 (see Annex E for complete provisions).

8. The 1987 Constitution contains several provisions about the rights of the indigenous cultural communities to their ancestral domains/lands and makes reference to their customary laws as basis for the delineation of their traditional boundaries (Art. XII, Sec. 5; see Annex E).

9. A CFSC area is a large area with the perimeters defined such that the resources within are for the exclusive use of the community. Within the CFSC area, there are individual and common areas that can be better developed through NFP technical and financial support. The CFSC is also popular among the indigenous peoples who practice integrated individual and communal forest management.

10. For commercial harvests that would involve transportation of goods from the area to the market or buyer, permits are required from the DENR.

11. The DENR has established regional N G O desk offices, directly under the supervision of the REDs. These N G O desk officers act as information centers and coordinate with NGOs and PVOs regarding implementation and policy reviews of DENR programs (DENR Administrative Order No. 120, 1989; memorandum from the Head Executive Assistant Gozun to all REDs/Project Managers, 23 August 1989).

12. Development in other arenas likewise needs to be attended to, especially those in Congress where the following bills are pending: Public Land Management Code, Forestry Code, Mining Code, and Ancestral Domain Commission.


ANNEX A

Land Classification (in ha)

Alienable and Forest Land

Year Disposable Unclassified Classified Total Area

1989 14,117,729 881,157 15,001,114 15,882,271 1988 14,117,753 881,157 15,001,090 15,882,247 1987 14,108,087 881,297 15,010,616 15,891,913 1986 13,852,398 1,186,575 14,961,027 16,147,602 1985 14,659,760 1,319,794 14,020,446 15,340,240 1984 14,515,393 1,827,335 13,657,272 15,484,607 1983 14,467,592 5,060,139 10,472,269 15,532,408 1982 13,370,546 5,553,178 11,076,276 16,629,454 1981 13,327,630 5,846,639 10,825,731 16,672,370 1980 13,269,340 7,025,490 9,705,170 16,730,660 1979 13,093,263 7,578,178 9,328,559 16,906,737

S o u r c e : Forest Management Bureau (1989:4, Table 1.01).

ANNEX B

DENR Social Forestry Programs—Available and Prohibited Areas

Program Available Areas Prohibited Areas

ISF

NFP: Contract Reforestation

Open and denuded areas

Areas covered by former projects on forest occupancy management, family approach to reforestation, communal tree farm, and other suitable reforestation/afforestation projects

Areas within existing T L A , P L A , ITP, or A F L A that have been developed as of 31. December 1981 and as concurred by the Secretary and provided further that it is not in conflict with the reforestation obligations of the licensee/leaseholder

Communal forest, communal and other leases that have ceased to serve their original intention, or neglected or abandoned as determined by a study team to be designated by the Secretary

Denuded/logged-over areas in regions, provinces, and/or watersheds that need reforestation as identified by the Secretary or his duly authorized representative who follow the criteria for selection

Idle denuded forest lands, including watershed reservations

Areas wherein continued occupancy would result in massive soil erosion, sedimentation in rivers and streams, reduction in water yield, and impairment of other resources to the detriment of community and public interest

Areas already covered by existing DENR reforestation projects, C F M A , F L M A , and other similar projects

Areas designated strictly for protection purposes such as virgin forests, areas for biodiversity conservation, and areas beyond 50% slope and 1,000-meter elevation

Reforestation projects with development plans for the next 5 years

Areas covered by permits, licenses, and agreements

Underdeveloped portions of reforestation projects that are not covered by the development plan for the next 5 years

Denuded portions of mangrove areas not covered by existing permits or leases

Areas within T L A with poor reforestation performance

F L M A

C F M A

Land that was reforested or otherwise developed by virtue of a contract implemented under the NFP

Land that was reforested or otherwise developed under any other program implemented or administered by the DENR that shall be brought under coverage of this Order by virtue of an official action by the Secretary-

O n a case-by-case basis and subject to approval by the Secretary, lands within officially designated watersheds, reservations, parks, or preserves, provided that F L M A operations shall be consistent with the provisions of PD. 705 as amended and with the limited production forest utilization approach described in the Philippine Master Plan for Forestry Development

All lands in the public domain

Notwithstanding the list of available areas, no F L M A shall cover land that falls within the following categories—land that is part of a T L A , TPSA, F L G L A / P L A , or IFP

Critical watersheds, protected and wilderness areas, reservations covered by permits, leases, or contracts

AFLA Agroforestry Farm Lease Agreement CFMA Community Forestry Management Agreement DENR Department of Environment and Natural Resources FLGLA Forest Land Grazing Lease Agreement FLMA Forest Lease Management Agreement IFP Industrial forest plantation

ISF Integrated Social Forestry ITP Industrial tree plantation NFP National Forestation Program PLA Pasture Lease Agreement TLA Timber License Agreement TPSA Timber Production Sharing Agreement


ANNEX C

Large-Scale Concessions (in mill ion ha)

1989 1979


Timber license 99 4.259 198 6.776 Pulpwood 1 0.05 7 0.525 Softwood 1 0 2 0.016 Provisional 0 0 15 0.94 Private land 1 0.026 0 0 Civil reservation 1 0.03 6 0.051 Ordinary 0 0 46 0.828 Special 1 0.01 3 0.011 Mangrove 0 0 1 0.001 Land grant 0 0 1 0.001 Hardwood 0 0 5 0.007 Provisional timber production 9 0.295 0 0

Total 113 4.67 284 9.156

Source: Forest Management Bureau (1989:31-33; Table 2.01).

Tree Farms/Plantations (in million ha)

1989 1979


Industrial tree plantation 93 0.318 7 0.035 Tree farm 153 0.019 38 0.004 Agroforestry farm 129 0.131 0 0

Total 375 0.468 45 0.039

Source: Ibid. (p. 38, Table 2.03).

Grazing Land (in million ha)

1989 1979


Grazing lease 878 0.349 1,807 0.813 Grazing permit 25 0.003 1,826 0.154

Total 903 0.352 3,633 0.967

Source: Ibid. (p. 42, Table 2.06).


ANNEX D

(draft) DENR Administrative Order No. Series of

SUBJECT: Revised regulations governing the Integrated Social Forestry P r o g r a m , the N a t i o n a l Forestation P r o g r a m , and the R e g i o n a l / P r o v i n c i a l Task Fortes for the D e l i n e a t i o n of Ancestral Domains

Pursuant to P.D. No. 705 as amended, Letter of Instructions No. 1260, Executive Order No. 192 dated 10 June 1987, and in line with the Government's policy of sustainable development, the following rules regarding the Integrated Social Forestry (ISF) Program, the National Forestation Program (NFP), and the Regional/Provincial Task Forces for the Delineation of Ancestral Domains (TF-AD) are hereby promulgated:

1. The ISF, NFP, and TF-AD are people-oriented and community-based programs for the sustainable development of the country's natural resources.

2. All lands of the public domain under the jurisdiction of the DENR are hereby declared ISF areas, except officially proclaimed critical watersheds. This pronouncement shall be subject to the rights of indigenous cultural communities to their ancestral domains, who shall have exclusive rights to avail of ISF stewardship contracts within their ancestral domains.

3. The ISF National Coordinating Committee shall be strengthened by support from the NFP and TF-AD whenever these programs are availed of/exist in the ISF area/s.

4. Indigenous cultural communities and forest occupants, eligible for ISF, shall be accorded security of tenure, property rights, and development assistance under the programs above-described.

5. Indigenous cultural communities and ISF stewardship holders may avail of other NFP programs within their ISF areas; provided that the area/s devoted to non-ISF activities shall be clearly identified with monuments, without being segregated from the ISF area/s; provided further that the identified area/s shall be subject to separate terms and conditions in compliance with auditing rules and regulations.

6. Indigenous cultural communities or members thereof may apply for ISF and NFP programs, without prejudice to the delineation of their ancestral domains under the TF-AD, especially with regard to technical and financial assistance.

Repealing clause—This order revokes, cancels, supersedes, and amends all DENR administrative orders, circulars, and memoranda. The provisions of DAO No. 04, series of 1991, except those contradictory to this Order, shall remain in force and effect.

Effectivity Clause—This Order shall take effect immediately.


ANNEX E

Relevant Provisions of the 1987 Philippine Constitution

Article II Declaration of Principles and State Policies

Sec. 10. The State shall promote social justice in all phases of national development.

Sec. 22. The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.

Sec. 23. The State shall encourage non-governmental, community-based, or sectoral organizations that promote the welfare of the nation.

Article XII National Economy and Patrimony

Sec. 5. The State, subject to the provisions of this Constitution and national development policies and programs, shall protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social, and cultural well-being.

Article XIII Social Justice and Human Rights

Sec. 6. The State shall apply the principles of agrarian reform or stewardship, whenever applicable in accordance with law, in the disposition or utilization of other natural resources, including lands of the public domain under lease or concession suitable to agriculture, subject to prior rights, homestead rights of small settlers, and the rights of indigenous communities to their ancestral lands.

Article XIV Education, Science and Technology, Arts, Culture, and Sports

Sec. 17. The State shall recognize, respect, and protect the rights of indigenous cultural communities to preserve and develop their cultures, traditions, and institutions. It shall consider these rights in the formulation of national plans and policies.


ANNEX F

(draft)

Memorandum for: All Regional Executive Directors From: The Undersecretary for Field Operations Subject: Key Result Area

Pursuant to the DENR's strategy of involving long-term upland dwellers in the sustainable development of ecologically critical areas, you are hereby instructed to submit social impact targets on ISF, the NFFs Contract Reforestation, FLMA and CFMA, and delineation of ancestral domains for those with indigenous cultural communities in their regions. The involvement of NGOs and people's organizations in the formulation of these targets should be reflected in your reports. Proposed targets should be submitted within two weeks from receipt of this memo but not later than 15 October 1991 for evaluation and approval by this office.

73

6. STRENGTHENING COMMUNITY STEWARDSHIP AGREEMENTS IN THE PHILIPPINES

Jefferson R . P l a n t i l l a

The Community Stewardship Agreement (CSA) is the legal instrument for community forest management in the Philippines. CSAs, formerly called Community Forest Stewardship Agreements (CFSAs), became available in 1982 when the government launched the Integrated Social Forestry Program (ISFP) (Letter of Instruction No. 1260,1982). Through this instrument the government enters into agreement with forest communities to manage, protect, and rehabilitate forests.

A s of December 1990, the Philippine government had issued 13 CSAs (including 2 Memoranda of Agreement, which are the predecessors of CFSAs) covering 44,221.3 ha and involving 8,858 forest dwellers. More than 70 percent of the CSAs are in the northern Philippines, while the rest are in the southern part of the country. Except for two organizations, the forest communities involved are indigenous cultural communities.

The area covered thus far by C S A is not extensive, and the number of beneficiaries affected is negligible compared to the hundreds if not thousands of forest communities that could benefit from acquiring a C S A . Despite the great potential of the C S A , no official assessment of existing CSAs has been conducted.

The Philippine Department of Environment and Natural Resources (DENR) is currently embarked on a massive contract reforestation program with the support of loans from the Asian Development Bank and the Overseas Economic Development Fund. The same drive, however, is not seen in the implementation of CSAs, ostensibly a premier activity of the "people-oriented" forestry program. Indeed, there is no apparent reason for the D E N R not to have a full-blown implementation of C S A s throughout the country.

The community forestry management system under the social forestry program of the Philippines is explained in this paper. Emphasis is placed on the legal instrument of the system, the C S A , and the l imitations placed on its issuance. As there is always room for improvement in developing a truly "people-oriented" forestry, the paper builds on the positive elements of the current program and instrument and offers recommendations to further strengthen them.

The Community Management Program

Community management of the forest is one of two strategies (the other is individual forest management) implemented in the Philippines'

74 Jefferson R . P l a n t i l l a

"people-oriented" ISFP. Community management has several advantages. For social development purposes, the community forestry program fits well into the concept of mobilizing the people around development issues. In terms of environmental protection, a community forestry project can have wide coverage both in area and in the number of people involved. The size of the area that a community manages can be based on the social, economic, and cultural needs of the community and on the physical makeup of the area (such as a watershed unit). A wider area also makes room for diverse forest activities that are indigenous to the area or adaptive to the situation.

From the government's viewpoint, community forestry management means greater impact with less administrative cost in addressing both environmental protection and poverty alleviation. Community forestry management also builds on the belated realization by government that forest dwellers are de facto resource managers.

From the viewpoint of the forest dwellers, community forestry management adapts well to existing systems of forest management. Community forestry management is also a good strategy to secure the following objectives: (1) recognition of a community's presence in a forest area, (2) delineation of the forest area that the community claims and utilizes, (3) protection against encroachment into the forest area by people who do not belong to the community, and (4) protection from other government forestry programs that do not secure the community's tenure over the area.

Despite its enormous potential, the community management program is hampered by serious problems. These include exclusion of large areas from the program and an unnecessarily complicated process for acquiring and issuing CSAs . Perhaps most important, the C S A legal instrument is flawed in several respects. A n examination of these problems follows.

Exclusion of Areas of Coverage

Forest lands that have been occupied or used by forest dwellers since January 1982 may be covered by CSAs, provided that the government has identified them as project areas. When identifying a project area, two variables must be taken into account: the physical characteristics of the land, and whether there are government programs already existing in the area. Table 6.1 illustrates how the variables are applied.

D E N R Administrative Order No. 4, Series 1991 (27 February 1991) and the Revised Regulations Governing the Integrated Social Forestry Program (hereinafter cited as D A O 4/1991) established a complicated process for determining whether a forest area is suitable to become an ISF project area.

Strengthening CSAs i n Philippines 75

Table 6.1 Factors Determining Inclusion of Forests in ISFPs

Not Available Available

PHYSICAL CHARACTERISTICS

Open and denuded areas <10% stocking (and available for ISFPs) X >10% stocking X

Other areas <50% slope and < 1,000 m X >50% slope and > 1,000 m X Occupation will not result in massive soil erosion,

sedimentation, reduction of water yield, and impairment of other resources X

Occupation will result in the situation above X

GOVERNMENT PROGRAMS

Suitable reforestation/afforestation projects X

T L A , PLA, ITP, AFLA areas Areas developed as of 31 December 1981 and this

fact is concurred with by Secretary, and not in conflict with reforestation obligation of license holder X

The reverse situation is true X

Communal forest, communal pasture lease, and other leases Area no longer serves original intention, neglected or

abandoned as determined by study team designated by the Secretary X

Area still used for original purpose X

Area for reforestation projects (all kinds) X

Protection forests (virgin forests, biodiversity conservation areas) X

Note: Based on DENR Administrative Order No. 4, Series 1991 (27 February 1991). AFLA Agriculture and Forest Lease Agreement ITP Industrial tree plantation PLA Pasture Lease Agreement TLA Timber License Agreement


Two provisions in particular warrant a closer look. The first refers to forest areas other than open and denuded areas, which are exempted from the ISFP because continued occupation wil l result in "impairment of other resources to the serious detriment of community and public interest" (DAO 4/1991, para. 1, Sec. 9). This vague provision opens the gate to a wide latitude of interpretations that can prevent implementation of the ISFP in many forest areas. What is the meaning of "other resources" and "serious detriment of community and public interest"? These phrases are unilaterally interpreted by D E N R officials, many of whom are adverse to social forestry. As a result, many forest areas have been excluded from any prospective coverage under the C S A .

The second provision refers to forest areas under Timber License Agreements (TLAs), Pasture Lease Agreements (PLAs), industrial tree plantations (iTPs), and Agriculture and Forest Lease Agreements (AF-LAs) that were "developed" by the forest communities before 31 December 1981 and that can be considered as project areas (DAO 4/1991, para. 3, Sec. 6). The first issue pertains to the definition of the word "developed." Does developed mean settled, cultivated, and cleared by forest communities? Who determines the mirumum criteria of development in the forest area? The lack of any clear definition for the word empowers D E N R officials to exclude areas under cultivation and/or settlement.

The second issue refers to the need for concurrence by the D E N R secretary on any fmding that a forest area is already developed as of 31 December 1981. The necessity of this requirement is questionable. It is absurd to have a finding of fact by a local-level or district D E N R official subject to concurrence by the highest D E N R official. This means delay in the identification of project areas. Assuming for the sake of argument that the concurrence of the secretary is necessary, why is it required only in T L A , P L A , ITP, and A F L A areas? By having this regulation, the government seems to be overly protective of those specific areas.

The third issue refers to the provision about the lack of conflict between the identification of the area as an ISF area and the license holders' reforestation obligations. The logical implication is that license holders can proceed with reforestation activities even on developed areas if a conflict exists, because a conflict wi l l exempt the area from the ISFP.

There are many cases where settled forest communities are located in developed areas. These communities are liable to be legally ejected or displaced from their areas (see the Revised Forestry Code, as amended. Sec. 53). What is the obligation of the license holder to the affected people? If these communities are indigenous cultural commu-


nities or have lived in the area for a long period of time, their prior existing right to the land wi l l be adversely, and in some cases illegally afteded (Lynch and Talbott 1988).

The exclusion of developed areas within T L A s , P L A s , ITPs, and A F L A s from the social forestry program unduly favors concessionaires. The rights of the people who developed the area and the rights of the license holders are in conflict. Since the C S A is precisely a scheme to protect the forest environment through the efforts of forest dwellers, the protection should be left to the people who developed the areas.

Sizes of CSA Areas

There are no limitations on the amount of land that may be managed under a C S A agreement, but the area covered by a C S A depends on several factors. Government Regulation D A O 4/1991, Sec. 1, defines two of these factors in rather vague terms, namely, the nature of the site and history of the group in the area. Is "nature of the site" equivalent to the physical characteristics of the area? Does it include the concept of an integrated unit such as a watershed area? Does "history of the group" refer merely to the length of time that the group has stayed in the area, or to the traditional practices of the people? Does it cover claims over areas based on past community practices?

Section 5 of the D A O explicitly mentions occupation and utilization as factors to be considered in determining size. Each factor should be carefully and fairly interpreted in favor of the concerned forest community. Access to forest resources and the corresponding incentives to manage them sustainably wi l l certainly be affected by a restrictive interpretation. Emphasis therefore should be placed on the potential needs and capabilities of the forest dwellers in using the resource to determine the size of a C S A area.

O b t a i n i n g a CSA

The procedure for obtaining a CSA is divided into four main parts: identification of the project area, perimeter survey, application for C S A , and approval and signing of the C S A .

A project area is identified, based on the provisions of D A O 4/1991, solely by the D E N R . Forest dwellers are not consulted at this stage. U n der the same administrative order, the needs and capabilities of the forest dwellers wi l l not be considered until a stewardship plan is prepared.

A perimeter survey is done to determine the actual area that wi l l be covered by the C S A . To effectively use the factors for determining the appropriate size of the C S A area, forest community involvement must be assured at the time the area is being determined. Also, be-


cause the forest community members are familiar with the project areas, their participation should be required.

The application for a C S A by a forest community likewise poses many problems. First, the application must be made using a prepared application form; a mere letter from the forest community is not sufficient. Then the form must be accompanied by the forest community's constitution, bylaws, articles of incorporation (whenever applicable), and a copy of a certificate of registration. These requirements add another hardship for C S A applicants.

L e g a l Personality

Forest communities applying for a C S A must establish a nonprofit corporation registered with the Securities and Exchange Commission in Metro Manila . This effectively precludes many forest communities unable to prepare documents or file registration papers from applying. The effect of the requirement is not mitigated adequately by the fact that the D E N R has field personnel who are supposed to assist forest communities in these matters. Non-government organizations (NGOs) capable of giving the same assistance are available to help the communities, but like the D E N R , they can only help a small number of those eligible.

Establishing nontraditional, formal organizations is a cumbersome and unnecessary requirement. The West Bengal, India, experience is worth considering. In West Bengal, a community's legal personality is established simply by registering a community's Forest Protection Committee with the District Forest Office (see Chapter 2).

In most situations, forest communities avail themselves of the C S A to protect their peaceful occupation of the land. The question of having transactions with both public and private institutions for developing their areas is not yet an issue. The immediate task is to issue the C S A as soon as possible to provide tenurial security and developmental incentives. In this regard, there is no need to require a legal personality for forest communities through their formal registration with a district government agency unconcerned with forest issues.

Required Documents

In addition to the incorporation documents, D A O 4/1991 requires four more documents to be submitted by a community applying for a C S A : a sketch map of the area, a list of association/community members, a preliminary plan, and a census of all individuals residing within the area applied for. This requirement entails a processing of papers that may be beyond the forest community's capability to accomplish. Although DAO 4/1991 provides that government assistance can be given


to prepare the preliminary plan and make a census of residents, there is no guarantee that such assistance wi l l be available at the field level.

The last stage in the procedure is the approval/disapproval of the application for C S A . Because the government approval system is mul-tileveled, approval or disapproval of the C S A application is often delayed, and communities have a difficult time discovering where the application is being held up. Under D A O 4/1991, there are six transfers (up to the office of the D E N R secretary) of the application and other documents before the C S A is finally released. Under the previous regulation, which had the same multileveled approval system, at least six applications for CSAs took more than 1 year to process. In two of these cases, concerned personnel had to do a great deal of follow-up in the central D E N R office.

CSA as a C o n t r a c t

A contract is a legal instrument voluntarily entered into by a person (including an association or organization that has a legal personality). It embodies provisions that are needed to attain the objectives of the parties involved. To be legally enforceable (not just binding) between the parties involved, it must be a notarized written document. The C S A is a formal document that binds forest communities and the government together. Each party has the right to enforce on the other the provisions of the C S A . The form and content of the C S A must be examined more closely to understand this relationship better.

As in any other contract, the participants in a C S A have their individual objectives. In this case, the government's objective is environmental protection, while the forest dweller's objectives are security of tenure and promotion of livelihood activities. The consideration that each party expects to receive from the other is neither burdensome nor prejudicial to the other party's interest. Within the limitations of a C S A , each party's interest is promoted.

A standard C S A document is written in English (there has been only one known C S A written in Tagalog). According to D A O 4/1991, D E N R community development officers who prepare C S A contracts are supposed to explain the contract in a dialect understandable to the forest community before.the agreement is signed.

In the Philippines, a contract can be signed by a person even if it is in a language that the person does not understand, as long as the contents of the contract are explained by someone whom that person trusts (normally someone who is not identified with the other party). In the case of CSAs , the contents of the agreement are explained by the representative of the other party, the D E N R . C S A s should be written in the language/dialect of the forest communities involved to maximize the forest communities' participation in the contract preparation.


Lease C o n t r a c t

The C S A is a lease contract involving "public land" (as far as the government is concerned). The forest community is the lessee and the D E N R is the lessor. Under the concept of land lease, the following elements exist:

1. The lease refers to the use of a specific parcel of land for a definite period of time.

2. The land involved must be used for the specific purpose stated in the contract.

3. The lessee recognizes the right of the lessor to the land. Correspondingly the lessee does not assert any right contrary to that of the lessor.

A l l of these elements apply to the C S A . The tenurial rights referred to in a C S A are time- and activity-bound. The duration of the tenurial rights depends on faithful compliance with the terms and conditions of the contract. In no case, however, do these rights extend beyond the period stated in the contract (25 years, renewable for another 25 years). This arrangement is acceptable to forest dwellers not seeking to lay claim to rights on forest land (especially ownership) but who desire only to secure legal access to the forest land and forest resources.

Other forest dwellers, however, may participate in a C S A for a strategic reason: to strengthen their landownership claims. This is especially true of indigenous cultural communities who lack customary techniques for resisting encroachment. A clause in the C S A provides that the participation of an indigenous cultural community in a C S A does not prejudice the community's ultimate goal of having the government recognize its ancestral rights to the land. But as a rule the C S A does not deal with the issue of ownership of forest land by indigenous forest dwellers.

Considering that a C S A is a contract of lease, one would expect that the lessee is the one who wi l l actually use the land. Under ISF rules, only those who have been dwelling in the forest and tilling the soil since 1 January 1982 are qualified. Thus absentee claimants are not qualified to be parties to a C S A . It must be noted, however, that in the C S A program, only forest communities can be involved. Conversely, organizations or communities of lowland farmers, though they intend to till the forest land suitable for agriculture, wi l l not be qualified as parties to a C S A . A contradiction arises, however, under the present agrarian reform law (Republic Act No. 6657). This law provides that lowland farmers who are qualified to become beneficiaries of the agrarian reform program of the government can avail themselves of a C S A .

Strengthening CSAs in Philippines 81

S e r v i c e C o n t r a c t

A CSA can also be considered a service c o n t r a c t , whereby one party renders services that are paid for by the other party. Under the existing rules, forest communities are considered to be "stewards" whose main responsibility is to manage, protect, and rehabilitate forest land. The community's compensation for the service it renders is secure tenure for a given period of time over a given piece of forest land.

Under the service contract concept, actual occupation of the forest land is incidental, and the land tenure issue is thus not a primary concern of the government. O f the nine specific responsibilities listed under DAO 4/1991, Sec. 10, for a party to the stewardship, seven relate to forest land management, protection, and rehabilitation. The 25-year period of the contract can be seen as necessary given the nature of the tasks involved.

C o n t r a c t of A d h e s i o n

As a rule, parties to a contract must be on equal footing. With free consent, both parties bind each other to an undertaking for a certain consideration. At present the C S A is an agreement made available by the government to a forest community. U p o n the tatter's application, the government may provide a contract with predeterrnined terms and conditions. Variation of these terms and conditions, as may be necessitated by the specific situation of the forest community concerned, is not permitted or possible. This is actually a case of a contract of adhesion, where one party has only the option of agreeing or not agreeing to the predetermined terms and conditions of the contract.

A s a rule, contracts of adhesion shall be interpreted in favor of the party who adhered to the agreement and against the one who made the same (Sec. 1377, C iv i l Code of the Philippines, Republic Act No. 386, 1949). C S A s are not seen as having prejudicial terms and conditions. However, a C S A is a contract of adhesion that removes any opportunity for the forest communities to negotiate their own terms and conditions.

The government would not benefit if forest communities refused to obtain C S A s because of a failure by D E N R to accommodate their justifiable demands. A contract of adhesion system, therefore, limits rather than promotes implementation of the C S A .

I m p l e m e n t a t i o n of t h e CSA

Whether a C S A is considered to be a lease or a service contract, implementation of the C S A demands a degree of independence by forest communities. The rules require that a forest community submit a


Stewardship Development Plan to the government for approval, submit a yearly performance evaluation of the forest community's implementation of the development plan, and hold workshops for organization building, agroforestry, soil and water conservation, project management, and livelihood enterprises.

These activities, though helpful in assuring the fulfillment of C S A goals, are also avenues for control by the government. For instance, failure of the D E N R personnel to follow a truly participatory process of preparing a development plan can lead to a forest community's assumption of responsibilities that are beyond its capability to perform. As a consequence, this wil l lead to dependence on D E N R support. A yearly performance evaluation system may put undue stress on participating forest communities, which may in turn affect their relationship with the D E N R personnel.

Ironically, one of the objectives of the ISFP (as found in D A O 4/1991, Sec. 4) is to strengthen local institutions for "future autonomy." The dependence of a forest community on D E N R , even for a short period at the beginning of the program, is potentially harmful to the development of the community. In the past, people's organizations organized by the government have failed to develop into independent and self-reliant organizations, as a result of strong government intervention. These "people's organizations" have instead become mouthpieces and implementors of government programs; they disappear when government support wanes (Gaffud 1990; Gonzales 1983). This experience could recur in the case of a C S A .

O n the other hand, D A O 4/1991 does not provide rules or establish a mechanism for holding D E N R (or its personnel) accountable for failure to perform their corresponding obligations to the forest communities. A system of D E N R accountability would enhance the independence of the forest communities. Forest communities that are parties to the C S A would also have greater confidence in performing their obligations if they can likewise exact performance by the government of its obligations.

T e r m i n a t i o n of C o n t r a c t

A C S A , just like any other contract, may terminate either upon the lapse of the period of the contract or upon the action of either party (the forest community or the DENR) . Aside from the failure of either party to comply with the terms and conditions of the C S A , other reasons for termination include incapability of either or both parties to perform, dissolution of the forest community (as a legal entity), public disorder (such as the existence of armed conflict), or natural disasters (destruction brought by floods, typhoons, or volcanic eruptions).


D A O 4/1991 provides, among other reasons for termination, that the C S A (or the stewardship contract for that matter) may be canceled "when public interest as determined by the Secretary of D E N R so demands." This is an example of the rule that the interest of the few must yield to the interest of the general populace. Using this provision, the D E N R can unilaterally and prejudicially cancel CSAs . There is an implicit admission in the same administrative order of the prejudice (damage) to the forest communities that a unilateral cancellation would cause. It provides for reimbursement at fair market value of the permanent improvements made on the forest land and for the relocation of affected forest communities.

Recommendations

The C o n t r a c t

The right of the forest communities to negotiate locally specific terms and conditions of a C S A with the government should be protected. Within the parameters of the existing rules and regulations, C S A provisions that are appropriate to the situation, needs, capabilities, and aspirations of the forest communities should be formulated.

A l l C S A s should be written in the language or dialect of the forest communities concerned and English translations provided. In case of conflict of interpretation, the C S A version written in the dialect/language of the forest community involved should prevail.

P o l i c i e s

People's P a r t i c i p a t i o n . People's participation is one of the policy guidelines of the ISFP (DAO 4/1991, Sec. 1). Key points in the ISFP program or the C S A are presented with suggested improvements, in the hope that the concept of people's participation wi l l be better realized.

C o n s u l t a t i o n m e c h a n i s m . A n effective prior consultation mechanism is necessary. The process described in the Implementation Manual for Participatory ISF Projects (DENR 1989a) is insufficient. A thorough presentation of the C S A should be made prior to any other activity leading to the establishment of a specific C S A . This presentation should aim at obtaining the consent of the forest community to the C S A and not just merely explaining the program.

Initiating implementation of the C S A prior to the consent of the forest community may have a negative impact on existing systems of community forestry management. Prior consent of the forest community wil l minimize such negative impact.


Legal p e r s o n a l i t y . In view of the need to have more widespread implementation of C S A s and the fact that most members of forest communities are not formally educated, the definition of what constitutes a legal personality must be re-examined. Formal registration through the Securities and Exchange Commission and other government agencies should be discontinued. Recognition by the D E N R of the existence of the forest community should provide the legal personality for obtaining the C S A . The Forest Protection Committee model of West Bengal, India, should be considered for this purpose.

A c t i v i t y p l a n n i n g . A n y Stewardship Development Plan required of the forest communities under the C S A should be deemed to have been incorporated into the lease agreement.

The community-organizing component of the C S A (ISFP) should be reviewed. Community organizing is a necessary tool for strengthening the unity and capability of the forest communities to address their problems. But if government personnel do all the community organizing work in introducing and implementing the C S A (or the ISFP for that matter), the participatory concept wi l l be adversely affected. A government community organizer may exert such an influence that the forest community's plans and activities may reflect the DENR's priorities rather than those of the forest community. The community-organizing work should be turned over to N G O s active in social development work, as is the case with other D E N R programs.

A c t i v i t y i m p l e m e n t a t i o n . Given the fact that C S A holders are responsible for managing, protecting, and rehabilitating the forest, community members holding a C S A should be treated as independent contractors. As independent contractors, C S A holders would have more room for adjustment in performing their responsibilities. With this suggested policy, the government would have to take a supportive role that aims at improving the performance of the C S A holders.

B e n e f i t s

Tenure. Different types of forest land occupation and use should be treated differently regarding tenure. Some forest dwellers have an historic claim of ownership; others have occupied the land long enough to be entitled to legal recognition of the claim of ownership; and still others have occupied the forest land only recently. A l l are entitled to security of tenure.

Those who can show ancient possession or a sufficiently long period of occupation should be given proper recognition as landowners. Such recognition, which can initially be done through the C S A , would strengthen the existing management of the forest area by the forest communities under a claim of ownership. This may not be equivalent to


the issuance of actual title to the land, but it is a step toward that direction and is based on the principle of private existing rights on areas classified as public land. This suggested policy does not contradict the present statutory provision prohibiting the declaration of forest land with slope 18% or greater as alienable and disposable land (land that can be acquired by private persons). In addition, this land classification scheme must not apply to lands that have been held since time immemorial as private property and are thus presumed never to have been public land.

C o n t i n u i t y of t h e a g r e e m e n t . The criteria for renewing the contract should be clearly stated from the start of the agreement, for the benefit of the C S A holders. Such criteria should not be changed except in consultation with the C S A holders.

A r e a c o v e r e d . The present set of factors determining the size of the area that can be covered by the C S A must be further clarified. The physical characteristics of the area (such as whether or not it is a watershed area and the economic, social, and cultural uses of the area by the forest dwellers) should be considered. The right of forest dwellers on developed areas within existing T L A , P L A , A F L A , and ITP areas should be recognized. If these rights are found to have existed before issuance of the T L A s , P L A s , ITPs, and A F L A s , the forest dwellers' claim of ownership should be recognized and the area segregated. Finally, forest communities should be involved at the very start of the project area identification.

Role of g o v e r n m e n t . The government as a whole should intensify its development efforts in the uplands. The present concern for environmental protection, as well as appropriate development for the large population of disadvantaged sectors in the uplands, augurs well for a more active government role in the upland areas. The following policies relating to C S A should be adopted toward this end.

First, the government should support forest-dweller initiatives in managing and using the forests. Traditional/indigenous systems, as well as recent practices that promote forest protection and rehabilitation, should be supported through the C S A , and not just studied for future use. Adequate support services and simplified acurunistrative processes should be provided. Budgetary and human resource allocation at the grassroots level should be made. Because forest protection is involved, loans can be obtained from the Asian Development Bank and the Overseas Economic Development Fund.

Second, the C S A should be part of an integrated upland development program (covering both the livelihood and environmental development of the uplands). The upland economy should be improved through the C S A with a long-term goal of providing greater envi-


ronmental protection and better food production. Under this policy, upland/forest development programs of the different agencies and departments (Department of Agriculture, Department of Environment, Department of Trade and Industry) should be merged into one program. Effective coordination between these government departments and agencies should be established. Within the D E N R , the various forestry programs such as contract reforestation (with Forest Lease Management Agreement), Community Forestry Management Agreement, Ancestral Land Claim certification, and the minor forest products concession system should be integrated with the social forestry program. The C S A should be the banner program to maximize benefits to the forest communities.

I n s t i t u t i o n a l r e q u i r e m e n t s . The continuing promotion of "people-oriented" forestry requires a major policy shift within the D E N R , the organization that facilitates socioeconomic development and environmental protection in forest areas. While this change of policy is clear at the department's top level, the entire meaning, significance, implications, and consequences of the change may not be well appreciated at the lower levels. The traditional notion of the role of government in relation to the forests remains in the culture of the D E N R lower-level personnel. For the new policy to be effectively realized, therefore, a value-reorientation process among the D E N R lower-level personnel should take place.

Other than the usual seminars and workshops offered by the human resources development program, value reorientation can be done in several ways. First, an explanation of the policy shift should be communicated in a clearer and more extensive manner throughout all levels of the D E N R . Second, more frequent interactions should be promoted among groups (such as social development agencies) and forest dwellers who support the new policies. Such interaction can be in the form of exposure trips to social development areas and continuing dialogue with forest dwellers. Field personnel should study the socioeconomic and cultural situation of forest dwellers to better appreciate the proper implementation of "people-oriented" forestry. New insights about problems in forest areas wi l l help in the value reorientation process. Finally, more frequent dialogue between the upper- and lower-level D E N R personnel would be helpful.

The general weakness of the Philippine government is its front-line services. N o program wil l really succeed under this situation. Basic facilities (e.g., communication, transportation, equipment for surveying) and well-oriented and technically capable personnel should be available at the field level.


Disputes between communities of forest dwellers and the D E N R on matters relating to the implementation of the C S A program may arise. A mechanism for dispute resolution should be established to address these inevitable problems. The local municipal court judge could be designated to act as arbitrator on such disputes.

Role of t h e N G O s . The evolution of the C S A program and its present implementation has been strongly influenced by N G O s . These organizations should be encouraged to continue to participate in this process to assure further development of the C S A concept. The experience of N G O s working closely with forest dwellers and their demonstrated capability to formulate policy proposals make these organizations effective advocates for C S A issues. In addition, the capability of N G O s to provide technical assistance in some aspects of C S A implementation and to prepare forest dwellers for the C S A should be properly recognized and utilized.

Conclus ion

The Community Stewardship Agreement is a promising social forestry concept. The effective implementation of the concept, however, is another issue. This paper has examined the rules that govern CSAs and raised questions regarding the effective implementation of this program. Issues relating to the wider impact of the program include the need for the program to provide more appropriate opportunities for the forest communities, as well as the need for more effective participation of forest communities in the processing and implementation of CSAs . Recommendations have been made that address these issues. It is clear that the finer details of implementing the C S A program need to be given greater attention. A n improved C S A means a better opportunity to assist forest communities while protecting the environment at the same time.

89

7. LEGAL ISSUES IN FOREST L A N D M A N A G E M E N T IN NORTHEAST THAILAND

V i y o u t h C h a m r u s p a n t h

Since the end of World War II, deforestation has become an increasingly serious problem in Thailand. In the Northeast the annual deforestation rate has escalated drastically over the last 30 years; between 1974 and 1978 it was more than 8 percent across all watersheds, resulting in a decrease of forest cover throughout the region. Forest coverage in the Northeast was less than 15 percent in 1982 and 14 percent in 1984 (Waeharakitti and Chuntanaparb 1984).

Deforestation in the Northeast is due to many factors, including population growth, logging concessions and illegal logging, infrastructure development, and encroachment by farmers to plant cash crops (Hafner 1990; Hafner and Apichatvullop 1990). In 1964, the Royal Thai Government passed the Forest Reserve Act (FRA), establishing forest reserves throughout the country. The one million families living in these areas at that time were thus classified as "illegal settlers." The F R A had little impact on forest protection because large portions of many forest reserves had already been encroached on by loggers and farmers in search of land. Attempts to address this problem were strongly influenced by internal security conditions and the growing communist insurgency in the Northeast (Hafner and Apichatvullop 1990).

In 1975 the Thai Cabinet attempted to address these problems by granting amnesty to illegal residents of national reserved forests and by authorizing the Royal Forestry Department (RFD) to improve the management of degraded forest areas. The R F D has concentrated its efforts on areas where the reserved forests were already degraded by illegal resident encroachment. The Forest Village Program (FVP) was approved by the cabinet in 1975, whereas the National Forest Land A l location Program, or STK ( S i t T h i Thamkin—bright to harvest") Land Certificate Program, has been promoted since 1979 under the same 1975 cabinet resolution (Pragtong 1987; Hafner and Apichatvullop 1990). The two forest land management programs are similar. Both programs grant land use rights to illegal forest residents, create permanent home settlements to prevent further land encroachment, and encourage reforestation of degraded forest areas. They differ, however, in two important aspects. First, infrastructure considered to be necessary for the livelihood of the new settlers such as roads, schools, electricity, water supply systems, and village temples is provided to the villages under the FVP, but not to those under the STK program. Second, during program implementation the F V P is not based on prevailing patterns of local land tenure, whereas the STK program is based on these patterns.

y

90 Viyouth Chamruspanth

Despite numerous efforts made by the RFD, villagers and outsiders (e.g., traders and government officers) continue to encroach on forest reserves. In addition, social problems and conflicts have occurred among the settlers due especially to ethnic and cultural differences. The government initiated several social forestry projects in the early 1980s to address these problems.

This paper examines the legal problems encountered by the U p land Social Forestry Project in Northeast Thailand regarding forest land management under the Forest Village and STK programs. Recommendations are made on how to improve these programs.

The Upland Social Forestry Project in Northeast Thailand

In 1987, the Thailand Upland Social Forestry Project (USFP) was started as a collaborative effort between the R F D and Chiang M a i , Kasetsart, and Khon Kaen universities, with financial and technical support from the Ford Foundation. The primary aim of the project is to develop practical field methods that facilitate RFD-community collaboration in land use management" planning that satisfies local needs and national resource management policy objectives. The project has employed a collaborative strategy at two levels. The R F D is collaborating at the regional level with policy advisors from university forestry and social science faculties and with N G O staff members. At the local level, the RFD is formulating mutually acceptable land use plans with local communities while exploring the potential for community management of nearby reserved forests (Pragtong and Thomas 1990:180-181).

A learning process approach is used to implement the collaborative strategy at the local level. Community organizers (COs) with agricultural degrees are employed and stationed in targeted villages. These C O s spend most of their time organizing and encouraging local people to participate in social forestry activities that are responsive to the community's needs and problems. The COs are well supported by RFD field project staff and by university faculty and researchers. During monthly meetings, the C O s discuss their progress, problems, and ideas and develop plans with central, regional, and local RFD field staff and university faculty and researchers. University staff analyze the dynamics of the targeted villages and conduct applied research on issues relevant to and supportive of project implementation. Monthly meetings are crucial components of the project because the local situation is analyzed collaboratively during these meetings and technical assistance and advice are provided to the C O s .

Forest Land Management in NE Thailand 91

The social forestry project was launched in three types of villages: those participating in the FV and STK programs, and forest villages where there are no RFD programs. The villages selected are located in three forest reserves: Tablan National Park, Nakhon Ratchasima Province; Dong M u n National Reserve Forest, Kalasin Province; and Dong Lan National Reserve Forest, K h o n Kaen Province.

Legal Issues in the Social Forestry Project

L a n d T e n u r e u n d e r t h e F V a n d S T K P r o g r a m s

Because the programs were implemented in forest reserves, the land allocated to the villagers is considered government-owned. Consequently, settlers are only granted rights of direct use. These include the right to plant, harvest, gather, or build (Crocombe 1974) but not the right to sell or mortgage the land. The Thai government's basic assumption is that giving landownership status to the villagers wil l further forest land encroachment.

Q u a l i f i c a t i o n s a n d P r i o r i t i e s

To be eligible for land allotment under the FVP, participants must be Thai, be an adult head-of-household, be engaged in agriculture, be landless or a small landholder, and be wil l ing to use and manage the land allotted. Similar qualifications are applied to those wishing to participate in the STK program: applicants must be Thai, with proof of occupancy and agricultural activities in the national reserved forest before January 1982, no record of regular offenses against forestry law, and no ownership of sufficient land elsewhere. In both programs, priority is given to the following three categories of participants in allocating land: (1) illegal residents who encroached on the forest prior to the program's starting date, (2) farmers cultivating land but not resident before the program's starting date, and (3) households residing on but not cultivating the land before the program's starting date. If sufficient land remains in the area designated for allocation, priority is also given to landless households evicted from other national reserved forests, residents near the land allocation areas, and households who apply to join the F V or STK programs (Chuntanaparb and Wood 1986).

L a n d A l l o c a t i o n a n d C e r t i f i c a t e of Use

Under the terms of the FV and STK programs, participants are allotted no more than 2.4 ha (15 rai) of agricultural land, and under the F V P an additional 0.8 ha for house lots. Land allocation under the STK program takes the local land tenure system into account. Villagers who

92 Viyouth C h a m r u s p a n t h

previously claimed and cultivated land exceeding 2.4 ha can maintain rights to an additional 8 ha of land by renting it at US$12/ha/yr. Land is allocated in the STK program according to Article 16 of the 1964 National Reserved Forest Act, which allows any household to plant trees in areas not to exceed 5.6 ha with the permission of the R F D director-general.

STK certificates are issued to villagers according to the following procedures. Initially a committee of local and provincial officers from concerned departments is formed by the provincial governor. Meetings with local residents are arranged to explain the program, advise them of qualification requirements, and discuss application procedures. Surveys of the site are made to determine boundaries for which the entitlement application has been made and to ensure that the land was not claimed by other parties. After these steps have been followed and the required qualifications met, an STK certificate is given to each qualified household.

A n STK certificate grants a family land use rights for a 5-year period. These rights can only be transferred by inheritance. U p o n inspection, if the terms of the certificate are detenrtined to have been violated, land use rights can be canceled and the land confiscated. The final decision o n revoking land use rights is made by the provincial governor. To date, however, no formal inspections have been made due to local conflicts and the slow administrative system.

Legal Problems Encountered by the Social Forestry Project

Ehiring the last 4 years of project implementation, the U S F P has experienced several unresolved legal problems regarding forest land management under the FV and STK programs. The legal framework of the programs constrains U S F P implementation, which subsequently influences the way the local people react to the project and government policies.

I n f o r m a l Transfer of L a n d R i g h t s

Informal transfer of land rights has occurred in many villages in the project area, especially those villages under the FVP. Participants lease or sell land to nonparticipants who may be unqualified to receive land rights or who are new migrants in search of land for cultivation. Land is also sold illegally to traders. Leasing or selling arrangements are usually based on a gentleman's agreement and are often found among kinship groups. These practices, however, violate the terms and conditions of the program.

Forest Land Management in NE Thailand 93

For example, in Rajsamakki forest village, Nakhon Ratchasima Province, four households had their land use rights withdrawn after a random inspection. Local R F D officers recognize that informal transfer of land rights still occur not only in Rajsamakki but also in other USFP sites. This situation has raised the critical question of who is really using the allocated land. The C O s sometimes get confused and wonder if they are working with the right households. The R F D has no record of people's mobility since that is the responsibility of the District Office under the Ministry of Interior. In some cases, villagers fail to notify the district authority that they are moving even when they are required to do so by law. This makes it very difficult for the local R F D officers to keep track of villager migration.

I l l e g a l A c t i v i t i e s of L a n d l e s s H o u s e h o l d s

The implementation of the FV and STK programs has created a "magnet effect," bringing about massive immigration of landless households to the project areas. As previously mentioned, these new households are not granted land use rights because they lack the required qualifications. Most of the landless become wage laborers in cash crop production, while some have engaged in illegal logging activities, taking advantage of a loophole in the forest law that allows timber cutting for domestic use, particularly for housing construction.

In fact, many migrants have made a business out of cutting timber from the reserved forest and building rough-framed houses without complete walls, floors, or roofs. According to the law, if these houses have been standing for 2 years they can be legally disassembled and sold. In Phu H u n g village, Kalasin Province, there were 60 unoccupied house frames in 1985. Each year, four or five of these structures were disassembled and the timber sold to buyers from the Northeast where timber was in short supply (Hafner and Apichatvullop 1990).

In addition, collection of certain forest products for household consumption (e.g., fuelwood, bamboo shoots, mushrooms, medicinal plants, fruits, and vegetables) is also allowed by the forest law. This creates opportunities for local people to enter the reserved forests to collect forest products allowed or prohibited by the law. Landless villagers in Rajsamakki village, Nakhon Ratchasima Province, have taken advantage of the opportunity to collect prohibited forest products. Some of them hunt wi ld animals, which are then sold to "forest food" restaurants in town.

Illegal harvest of forest products provides migrants with income to support their families. This makes it difficult to convince them to participate in social forestry activities that prohibit this activity. Encouraging people to plant trees is even more difficult because as

94 Viyouth C h a m r u s v a n t h

migrants they do not hold any land use rights. In addition, most migrants are so busy providing for their families that they do not have time for community activities.

L e g a l C o n s t r a i n t s o n I n c o m e - G e n e r a t i n g A c t i v i t i e s

The framework of the Forest Law often constrains implementation of income-generating activities that have been integrated into the U S F P to provide settlers with sources of income while participating in forest land management programs. Sericulture and cattle raising cause the most legal problems.

In several villages sericulture has become big business due to the high market demand of silk industries. Local people have begun using improved silkworm species that produce cocoons of the quality required by the market. This increases pressure on the land since more mulberry trees are needed to feed the imported silkworms, which consume more leaves than do indigenous worms. Silkworm keepers have expanded their mulberry tree plots as part of their homegardens. Problems regarding land use, however, remain for landless households involved in silk production.

In one instance, the C O s helped establish a 2.4-ha mulberry tree plot for three landless households from Sabjareon village, Nakhon Ratchasima Province, in a eucalyptus plantation located in a reserved forest. The households were allowed to plant mulberry trees on the plot, provided that they weed and maintain the mulberry trees and not harm the eucalyptus. These arrangements were based on an informal agreement with authorities of the local national park. Problems occurred in 1990 when a new national park officer maintained that no mulberry leaves could be taken from the plot because it was prohibited by the 1961 National Park Act, Article 16 (8), which states that no one is allowed to collect or harm flowers, leaves, or fruits in a national park. Upon hearing this, the villagers became uncertain as to whether they could continue to collect mulberry leaves. The case was settled after discussion with the chief of the local office of the National Forest Land Management Division, representatives of the USFP, and the local national park authority. Since then, no further mulberry tree plantations have been promoted.

Cattle grazing is also prohibited by the 1961 National Park Act. The National Reserved Forest Act of 1964, however, provides some flexibility. If there are sufficient areas in a reserved forest, they can be designated cattle-grazing areas for the local community. The community must seek permission from the regional forestry office, and the governor of the province makes the final decision. The U S F P has organized cattle-raising groups to reduce pressure on forest reserves in three villages

Torest Land Management in NE Thailand 95

in Nakhon Ratchasima Province: Nongkai Sai, Prong-Cha-None, and Rai-Leam-Tong. The groups are allowed to use a plot of land in a eucalyptus plantation located in the reserved forest to grow grass for cattle feed. The group members are not allowed to graze their cattle in the plot, but can cut and carry the grass to their animals outside the forest. Although the cut-and-carry system is operating smoothly some group members are demanding that more forest areas be allocated as public-grazing areas to keep pace with the growing cattle population and the subsequent demand for pasture.

Summary

The FV and STK programs were implemented to grant land use rights to farmers who were illegal residents of reserved forests. Each qualified household has been given land use rights to hold no more than 2.4 ha of cultivated land. Land rights can be transferred through inheritance only Upon inspection, violation of any required qualifications may result in the cancellation of the grantee's land use rights. In 1987, the USFP was started as a collaborative effort between the RFD and regional universities to encourage local people to take part in forest management. Social forestry activities pertaining to conservation and income generation have been implemented in 12 villages under the F V and STK programs. Throughout the last 4 years of the project, however, the USFP has been constrained by three major legal problems: the informal transfer of land use rights, illegal activities of landless households, and legal constraints on income-generating activities.

Recommendations

In order to manage forests more efficiently, the following recommendations should be implemented:

• A general inspection should be immediately undertaken by a research team from the R F D and the universities to assess who is really using the land. Households in violation of regulations should have their land use rights withdrawn. These rights should then be given to the landless households. Several key questions need to be answered: Why and how are informal transfers of land use rights occurring? Who is really using the land? Who are the landless? What are their socioeconomic backgrounds, and how do they earn their l iving in the villages? If land reallocation is necessary, the RFD should be certain that land use rights are given to the most deserving households.

96 Viyouth Chamruspanth

• The RFD local offices should work more closely with local people to be aware of what is going on in the villages and improve relations with local people. In addition, knowledge regarding forest laws should be transferred to the local people through the social forestry program so that they know what they can and cannot do. Local people are often accused of violating laws that they did not even know existed.

• Experience shows that establishing village settlements does not prevent local people from using forest resources. Therefore, parts of reserved forests should be designated as community forests to be managed by local villagers. These forests can be located where local people collect forest products to meet their basic needs. In addition, these community forests can function as buffer zones between villagers and reserved forests, thus reducing pressure on reserved forests. Finally, the reserved forest boundaries should be demarcated clearly and made known to villagers so that they can take necessary precautions when entering reserved forest areas.

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8. DRAFTING A NEW COMMUNITY FOREST ACT IN T H A I L A N D

Weera A t t a n a t h o

In the past, Thailand's forests provided rural people with many resources. Villagers obtained food, cloth, medicine, and dwelling materials from the forest. In 1961, government statistics showed that 53 percent of Thailand's total land area was forested. As of 1989, however, coverage had decreased to 28 percent, or about 14.3 million ha (89.6 million rai). National forest policy, by contrast, requires that 40 percent of the country, or about 20.5 mill ion ha (128 mill ion rai), should be forested—15 percent for conservation forests (watershed areas, national parks, and wildlife sanctuaries) and 25 percent for economic forests.

High population growth and the increased demand for land are the main reasons for the high rate of annual deforestation. The introduction of new cash crops such as kenaf and cassava has also served to accelerate deforestation. The Thai government has responded to the deforestation crisis by establishing a number of projects.

The National Reserved Forest Improvement Project was set up by Cabinet Resolution in 1975. The project has developed a "forest village" program that entails the gathering of villagers to work and live together in selected forest areas. A s of 1990, the project encompassed a total of 119 forest villages scattered throughout the country, involving 37,183 families and covering 55,344.6 ha (345,903.7 r a i ) . In 1979, the National Forest Land Allocation Program (STK) was established by the Cabinet. It provided for the issuance of temporary land use permits. The beneficiaries are squatters illegally occupying forest land. This project commenced in 1982 and has benefited 709,395 families on 1,158,911 ha (7,243,195 rai) of land.

A project was established in the Northeast during 1991 to allocate nonproductive reserved forest areas to landless people. Within 5 years, it should distribute rights to 2.28 mill ion ha (14.27 mill ion rai) of forest land in 17 provinces. In addition, the Land Reform for Agriculture Project allocated rights to degraded national reserved forest areas. This project is managed by the Agricultural Land Reform Office.

These projects have resulted in forest land being divided into small units throughout the country. Most of those small patches are located near forest villages and are still being used to provide forest products and as grazing land under the regulation of forest law. Some of them have been reserved and maintained by the villagers.

At present, the Royal Forestry Department (RFD) is promoting a new law, the Community Forest Act, that wi l l empower additional people in rural areas to use and manage their own forest land and resources.

98 Weera A t t a n a t h o

The new act wi l l spell out major objectives. Additional rules and regulations need to be promulgated to make the new act more practical and effective.

This paper presents a historical overview of Thai forest laws and describes and analyzes the government's proposed Community Forest Act. It also recommends regulations needed to implement the act.

Present Forest Law

In the nineteenth century the prolific forests of Thailand, especially around the northern cities of Chiang M a i , Lampoon, Lampang, Prae, and Nan, were under the jurisdiction of city governors. The governors issued licenses to western logging companies and in turn earned stum-page revenue from these licensees. Unfortunately, there were confrontations among licensees and also among governors' descendants.

King Rama V enacted two laws to solve this problem. The first act was the City Superintendent Acts of 1874, which dealt with teak-logging licenses. The second act concerned tax collection from teak- and other tree-logging licensees. This latter act has been changed and improved several times and is still in use. Current acts related to forest conservation can be classified into three categories:

1. Tree e x p l o i t a t i o n . These laws establish controls on logging, collecting, and transporting forest products. The laws are meant to prevent unnecessary deforestation and preserve important tree species. Lists of reserved tree species and forest products are announced in Royal Decrees. People can use only trees and forest products that are not indicated as reserved. This is the main element of the Forest Act of 1941.

2. Forest r e s e r v a t i o n a n d p r o t e c t i o n l a w s . These laws provide for the identification of forest areas that should be reserved and designated as national reserved forests. National reserved forests have to be intensively protected by the government. The laws aim to sustain and improve forest ecosystems.

Areas in reserved forests that have been degraded are designated as inferior forests. People who have already lived in these areas are authorized to continue living in and using them by applying to government officials. Private businesspeople are also eligible to apply for permission to use these areas for planting trees to provide raw materials for industries. This allows for both economic benefit and forest maintenance. This concept belongs to the National Reserved Forest Act of 1964.

3. S u s t a i n a b l e forest l a w s . The purposes of these laws are to maintain the original environment and ecosystem of forests and to conserve

New C o m m u n i t y Forest Act in Thailand 99

wild animal species. Logging, collecting forest products, mining, and any other activities that effect a change in the forest environment are prohibited in designated areas. The most important law is the National Park Act of 1961.

The Community Forest Act (Draft)

Objective

The RFD has prepared a draft Community Forest Act to provide community rights for the large number of communities living on forest land that depend on forest products. The proposed act will authorize some forest communities to protect, manage, and use forest resources in designated areas. Participating communities will be able to cut trees and collect forest products without permission from government officials.

The draft law will also exempt communities from paying royalties and fees. It will give people in the community a "sense of belonging" to the community forest and a sense of responsibility for protecting and improving forest resources. The act aims to decrease forest degradation and improve the quality of life for people in rural areas.

D e f i n i t i o n s

The following definitions are used in this act: (1) C o m m u n i t y forest means "forest land or national reserved forest land that has been previously designated under the Forest Act and National Reserved Forest Act, and which is designated as community forest under this Act"; (2) Village c o m m i t t e e means "a village committee that has been appointed under the Local Administration Act, including the village committee which is set up pursuant to this Act."

Establishing a Community Forest

If a community wants forest land near the village to be established as a community forest, a village committee will need to submit an application approved by the local subdistrict (tambol) to government officials, pursuant to procedures and regulations established by the RFD director-general. If there is no current village committee designated by the Local Administration Act, villagers will be able to establish a committee pursuant to regulations established by the RFD director-general.

After receiving a request from a village committee, RFD officials will determine the suitability of the area proposed to be established as a community forest. This determination must be carried out, and a report made to the RFD director-general within 60 days of receiving


the request. The RFD director-general has authority to approve the request by publishing an announcement in the government gazette, accompanied by a map identifying the community forest area.

M a i n t e n a n c e

The village committee is responsible for installing border poles and signs to clearly indicate the boundary of the community forest. The committee is also responsible for planting, tending, improving, and protecting trees in the community forest. This must be carried out under village committee regulations approved by the RFD director-general.

Money collected from logging and forest products are exempt from taxation. The village committee can spend this money for tending and improving the community forest or for other public benefits to the community. This also must be in accordance with committee regulations approved by the RFD director-general.

Community forests give an opportunity to government researchers and technicians to study the management of community forests. To access a community forest under the Community Forest Law, however, researchers or technicians must identify themselves to the chairperson of the concerned village committee. In return, the village committee is expected to cooperate with such visitors.

U t i l i z a t i o n

People living in a village within a community forest will be allowed to cut trees; collect forest products; saw, process, keep, or store wood or forest products; transport wood and forest products; and establish wood-industry factories that employ local people.

A village committee will have the right to establish regulations for land use, logging, wood processing, collecting forest products, and other types of resource use, provided that these regulations are approved by the RFD director-general. The regulations will have to conform with the following policies:

1. Natural trees can only be used for individual or community (i.e., noncommercial) consumption.

2. Planted trees can be used either for individual/community consumption or for commercial purposes.

3. Forest products can be used either for individual/community consumption or for commercial purposes.

4. Trees or forest products used for individual or community consumption will be exempted from payment of royalties and forest-improving fees.

5. Trees or forest products used for commercial purposes will not be exempted from payment of royalties and forest-improving fees pursuant to the Forest Act or the National Reserved Forests Act.

New C o m m u n i t y Forest Act in Thailand 101

W i t h d r a w a l

If a village committee does not install border poles and signs or fails to maintain, protect, and improve its community forest, the RFD director-general will have the authority to withdraw the villagers' rights to use the community forest.

Penalties

Any person who obstructs an authorized government official conducting research or other activities will be liable to imprisonment for up to 1 month, a fine of up to 1,000 baht, or both. Any person who occupies, utilizes, lives in, constructs, clears, bums, logs, and gathers forest products in a community forest area, or conducts any other activities that are not in accordance with the regulations established by a village committee with approval from the RFD director-general will be liable to imprisonment from 1 to 20 years and a fine of 5,000-200,000 baht.

Analysis

According to Sec. 4 of the draft Community Forest Act, forest land that a village committee requests for community forest must be land that has been previously designated as forest land under the Forest Act of 1941 or the National Reserved Forest Act of 1964. In addition, the government, by using data, imaged satellite and aerial photographs, and maps, currently is zoning and classifying forest areas into the following three groups:

1. C o n s e r v a t i o n a n d p r o t e c t i o n . These include forest reserves, wildlife sanctuaries, watersheds, and national parks. These areas may not be designated as community forests in accordance with the national goal of maintaining 15 percent forest coverage.

2. R e a l l o c a t i o n as a g r i c u l t u r a l l a n d . Areas that are currently devoid of trees and are suitable for agricultural purposes will be assigned to the Land Reform for Agriculture Project, under the responsibility of the Agricultural Land Reform Office. These areas will be allocated to farmers and no longer will be under RFD responsibility.

3. R e f o r e s t a t i o n . Degraded areas that are unsuitable for cultivation or other agricultural activities will come under government reforestation projects, or may be leased by any person or corporation wanting to replant trees.

Land in national reserved forests that can be designated as community forest should be in the third category. In addition, small patches of forest areas scattered around villages that are used for purposes such as grazing land, sacred areas, cemeteries, sources for wood, fuelwood,


or natural food, and which are being protected and conserved by the villagers, should also be designated as community forest.

The draft Community Forest Act requires that an area to be established as a community forest must be located near the concerned village. Section 6 states that the suitability of the area proposed to be established as a community forest should be determined by RFD officials before the director-general gives approval. Additional regulations should determine the following:

• the maximum distance to and from the village for an area proposed as a community forest;

• the degree of dependency of villagers on the forest area in question;

• the allocation of areas claimed by more than one forest village; • the minimum and maximum size of a community forest for one

village, and the appropriate methodology to be used (e.g., forest area and number of villagers); and

• procedures and precise criteria to be used as guidelines for determining the proposed area's suitability.

The draft Community Forest Act will allow villagers to cut trees, collect forest products, process timber, and engage in other use activities within a community forest under regulations established by the village committee, without receiving government permission. These provisions will override regulations in the Forest Act and National Reserved Forest Act. Applying for permission under these current laws is a complicated and lengthy procedure. Moreover, villagers must currently pay royalties or forest maintenance fees if they use products from the forest. The draft Community Forest Act will make it easy for villagers to use forest products pursuant to regulations created by them.

The products from community forest will be used for consumption witriin the village or for commercial purposes. Pursuant to the draft act, income from selling community forest products will also be exempt from payment of royalties or forest maintenance fees, and the village committee will have the right to use this income for village activities, mduding the maintenance and improvement of the community forest.

The draft Community Forest Act also reflects a concern for conserving natural tree species. According to the draft act, planted trees can be used for consumption and commercial purposes, but natural trees can be used for consumption within the household or community only. To enable the act to be more practical and effective, "villagers" should be defined as people who have permanent residence in the village. This will protect the community forest from exploitation by people from outside the village.

New C o m m u n i t y Forest A c t in Thailand 103

The previous regulations in the National Reserved Forest Act indicate that land within the national reserved forest area cannot be used by anyone without receiving permission from the officials, the director-general, or the Cabinet. The draft law provides for the right to use and manage land within the community forest under the regulations established by the village committee. This provision can be inferred as the "free" way for villagers to access and manage their forest easily and effectively

The draft Community Forest Act allows for regulations to be established by two sources. Regulations determined by the RFD director-general include those governing (1) application to establish the forest land as community forest; (2) selecting and designating a village committee, in case there is no current village committee designated by the Local Administration Act; and (3) determining the suitability of an area proposed to be established as community forest. Regulations determined by the village committee include those governing (1) logging, wood processing, and forest products collection; (2) use of income from selling products from a community forest for maintenance and improvement of the community forest; (3) land use and management within a community forest area; and (4) protecting, improving, and maintaining a community forest.

The draft Community Forest Act addresses main objectives arid regulations. As of this date, changing or improving the draft act would be complicated. After the draft is passed by the Cabinet and the House of Parliament, it will become law. Further practical provisions and regulations can then be created by the administrative sector; these can be easily adjusted or improved to fit future situations and policy.

As the foregoing discussion shows, the government is trying to give more authority to local people so that they can benefit from the forest and contribute to forest conservation and improvement. The government hopes that the new Community Forest Act will make people perceive the values of forest and natural resources and also involve them in resource conservation.

Conclusion

During the last three decades, forests have been invaded and exploited by a large number of people for settlement, cultivation, and commercial activities. Forest land has been divided into small patches scattered throughout the country. Although most of the people in rural areas make their living near or within forest areas, there are currently no forest laws that provide enough rights to people using forest resources.


The draft of the Community Forest Act proposed by the RFD will provide forest villagers with the necessary rights. The act will encourage people to get involved and take responsibility for forest ecosystems and be willing to protect and manage forests as sustainable resources for themselves and their descendants. Additional provisions and regulations, however, are necessary.

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9. COMMUNITY FORESTRY LEGISLATION IN THAILAND: A N N G O PERSPECTIVE

Yos Santasombat

The imminent threat to the earth's biosphere, an alarming degradation of habitats and ecosystems, and the rapid loss of genes and species are issues that have captured the interests and concerns of the world community The destruction of tropical rain forests and the loss of biodiversity are danger signs to the world's environmental systems and humanity's life-support mechanisms. The crisis in the tropics also undermines prospects for sustainable development and deprives the Third World's rural poor of the resources they need to survive.

During the past century, tropical natural resource production and management have been overwhelmingly based on methods and practices developed in, and appropriate to, the north temperate region. Most of the applied tropical sciences, especially forestry science, have been devoted to making developing countries a better producer of commodities for the developed world's conspicuous consumption. The value of local wisdom, methods, and practices has never been recognized and appreciated. Furthermore, the growth-oriented development model, with its underlying attempt to achieve economic equivalence with the developed world, results in marginal izarion and impoverishment of the majority of people in developing countries, especially those in the agricultural and rural sector.

In the case of Thailand, the destruction of tropical forests has been occurring at an alarming rate. From the elitist point of view, it has been very popular to blame rural populations for this when, in fact, it is commercial exploitation and government policies (or lack thereof) that have contributed to the depletion and degradation of tropical forests. Unbalanced growth between urban and rural sectors, skewed land distribution and insecure land tenure, unsustainable exploitation of forests for industrial timber production and export, inappropriate government policies regarding land tenure, rural poverty and encroachment into forest land—these are interrelated issues that stem largely from the growth-oriented development paradigm, policy of centralization, industrialization and mismanagement of natural resources, and institution of large-scale development projects.

Furthermore, increases in agricultural production in the past few decades have by no means brought about increases in productivity and real income. The increase in production is only carried out by means of expansion of land for cultivation, which means, in effect, clearing more and more forest lands. Thai farmers have consistently been left

106 Yos Santasombat

undeveloped. There has been very little, if any, improvement in technology for most people. Infrastructures such as irrigation are limited largely to the Central Plain. Educational opportunities only serve to drain talented human resources away from the rural communities. In the process, the majority of rural populations become increasingly poorer and eventually helpless. Their only alternatives are to either migrate to urban areas to seek jobs or go into the forests to seek their livelihood. Hence, the poor and landless have been pushed increasingly farther to the end of the country's land frontiers. This is how a large part of the forest reserve has come to be occupied by large numbers of people. There is no question that the destructive pressures on tropical forests result from growth-oriented development. We are thus faced with a familiar picture in which the inexorable short-term "necessity" of demands for cash and commodities menace the long-term prospects for sustainable development and the conservation of global resources.

Community Forestry in Thailand

During the past several decades, it has become increasingly clear that tropical forest destruction and degradation present unprecedented environmental problems, and the construction of national forestry action plans cannot be regarded as the only possible or feasible solution to this crisis. Indeed, contrary to the dominating centralized system of planning and management of forest resources, a more feasible solution is the decentralized system of community forestry and sustainable management of local forest resources. Certainly, sustainable use of tropical forest resources includes not just maintaining timber and conserving biological diversity, but also maintaining the ecological balance and functions of forest such as soil quality, hydrological cycles, climate and weather, as well as maintaining supplies of other forest products essential to the livelihoods of local people. Logging can definitely never be sustainable in such terms. Furthermore, the tropical forest conservation effort cannot focus solely on establishing forest reserves, watersheds, and national parks. Because the clearing of forests is symptomatic of a pattern of uncontrolled and destructive land use, it is unlikely that forest reserves can be protected within a landscape that is otherwise completely overexploited. Unless the surrounding areas are developed in a sustainable manner and local communities are actively involved in the protection of "their own" forests, conservation will never succeed. Forest conservation methods, therefore, must include not only forest reserves, but also local participation and innovative approaches to rural development. This is the crux of the community forestry concept (i.e., forestry for community development).

C o m m u n i t y Forestry Legislation in Thailand 107

Based on local knowledge and traditions, community forestry has indeed been practiced in many parts of Thailand for centuries.1 During the past few decades, however, community forestry has been greatly undermined, challenged, and encroached upon by outside forces— especially logging concessions, cash-crop production, land speculations, golf course and resort construction, consumerism, and the financial underpinnings of the growth-oriented development paradigm that, in turn, has seriously impacted the strength and livelihood of local communities and the local system of resource management. During the past few years, groups of Thai NGOs have been actively involved in promoting the community forestry concept as a feasible alternative not only to environmental protection but to rural development as well.

The issue of rural development raises the matter of sustainable development as the ultimate purpose of community forestry. As distinguished from industrial forestry with its exclusive interest in commercial plantation and wood products, the primary concern of community forestry is with local people and communities coexisting with their own environments. The basic concepts and principles of community forestry stress sustainability in meeting local needs for tree-related outputs, and enhancement of agricultural productivity and environmental stability through the use of trees in an agricultural system. Viewed this way, the tree-growing activity under community forestry is naturally related to agriculture and sustainable land use systems and practices. In the process, it helps to increase productivity and generate local income. This means possible involvement and participation by entire communities concerned, which, in turn, would significantly help reduce deforestation and promote better management efforts.

The basic issue in community forestry is how to change land use in such a way that people obtain what they need on a sustainable basis from a relatively fixed, or even shrinking, land base. This is an immense task that asks how we can relax the pressure on land clearance yet sustain development. On the socioeconomic front, the problem is how to promote local participation in activities involving a combination of technologies that can both stabilize the environment and increase productivity. Conservation without economic benefit is difficult to promote. If planners have a good understanding of the local situation and local knowledge, wisdom, and practices, they can select activities that are both technically sound and likely to be well supported by local people because of their economic benefit. It is here that local N G O workers play a vital role in community forestry projects. N G O workers can gain local support and involvement by working closely with the people and selecting activities that will meet the people's objectives. The fundamental question is not the importation of new technologies into the communities but, rather, one of how local knowledge and wisdom could

108 Yos Santasombat

be further advanced and extended to cope with the needs and demands of modern life. Local participation will take place only if the people have the ability to do so, the knowledge of what to do and how, the incentives to stimulate them, and the institutions to support and sustain their activities. Government commitment and response through legislation, as well as technical and financial support, will have a direct effect on local ability, interest, and participation.

Community Forestry Legislation: Voices from the Margin

Lhiring the past several years, Thailand's growing struggle for and conflict over natural resources has become increasingly apparent. The root of these critical problems lies in the inability or unwillingness of the government to bring about fair socioeconomic development in which natural resources and wealth are equally distributed among citizens of different classes and sectors. Consequently, pressures for a new approach to natural resources management (especially to land and forest policies) have grown, culminating in the 1989 logging ban in Thailand and in local movements against encroachment of eucalyptus plantations on land occupied by villagers -in the national reserved forests (NRFs). Local peoples and NGOs have repeatedly called on the government to suspend planting of "commercial forests" until land rights problems in NRFs were solved. This indicates further that the policy allowing the private sector to undertake reforestation projects should be reformulated. Reforestation by private firms should be separated from the national forestry policy. This type of commercial plantation should be restricted to specific areas and not be allowed to encroach into forest land already occupied by local villages.

Local peoples and NGOs also urged that the government shift its emphasis in national forestry policy from law enforcement to promotion of local participation in forest management. This means further that the government should decentralize its power in natural resources management, giving more power to local communities. These communities should be formed into juristic bodies and allocated forest land to manage under flexible guidelines and supervision from the Royal Forestry Department (RFD).

Significantly, the issue of community forestry has been raised time and again in several seminars and workshops among Thai NGOs and academicians, more so as the national forestry policy with its commercial bias increasingly comes under public criticism. The issue of community forestry has certainly unleashed a positive change in the

Community Forestry legislation in T h a i l a n d 109

approach to forestry development. New socioeconomic dimensions and diverse institutional, cultural, and survival contexts have been added to forestry, and whole new ranges of contradiction and congruence issues have surfaced. Against this complex background, the RFD is now drafting new community forestry legislation.

In response to this positive development, and to ensure that the new legislation can meet its stated goals of promoting the local rights and management of forest resources, two seminars were organized by Thai N G O s to initiate public debates on this new legislation. Criticisms and debates among the local peoples and N G O s were wide-ranging, some of which can be summarized as follows.

D e f i n i t i o n of C o m m u n i t y F o r e s t r y a n d D e g r a d e d F o r e s t

Participants in the seminars agreed that the definition of "community forestry" as appeared in the draft legislation should be redefined to cover not only the national reserved forests but also national parks and watershed areas where community forestry activities have long been practiced by local people.

The definition of "degraded forests" should also be redefined and priority given to providing for the landless poor and to regenerating the tropical forest's ecosystem. Equating the planting of fast-growing tree species with expanding or substituting forest cover, as so earnestly articulated in the 1985 National Forest Policy, is obviously unrealistic. Fast-growing tree plantations must be justifiable, and any possible impact on ecology and neighboring land areas must be taken care of.

R i g i d Rules a n d C e n t r a l i z a t i o n vs. L o c a l C o n t r o l

A rigid framework of rules and procedures invariably objectifies the local people and their relatedness to local resources. Moreover, local people are usually "voiceless" and invisible in the corridors of power and institutional networks. Given the local power structure and its influence and access to government mechanism, wood-based industries and large-scale plantations tend to trap in their net most of the forest resources and benefits. Consequently, an inherent mistrust of government by the rural poor has developed.

In the drafted community forestry legislation, for instance, the decision-making power lies solely in the hands of the RFD director-general, who can reward local people by granting them rights or punish them by eviction. Local peoples voiced their concerns against this highly centralized line-of-command and suggested that perhaps the decision-making power should be delegated to regional and provincial forestry officials who could deal more directly with them. Community forestry management should be made more collaborative and sensi-

110 Yos Santasombat

tive to the multiplicity of local needs and more reliant on local organizations as opposed to the centralized administration. The demarcation of community forest land, for instance, should be a joint effort between local people and provincial forestry officials.

In addition, local organizational structures vary and cover a wide range of geographical and ethical contexts. Therefore, rules and regulations governing the practice of community forestry should be flexible enough to facilitate a wide range of local organizational structures, customary laws, and practices. Local autonomy and a self-determined system of control and sanction should be encouraged. The action of developing local institutions and legitimizing them over time should underpin community forestry policy and legislation.

T e n u r i a l G u a r a n t e e

There is a growing consensus that government alone cannot solve the deforestation crisis. Success, everyone agrees, must depend on identifying measures to halt the path of unsustainable land use and to stimulate the active participation of the millions of people who use forests to meet their daily needs.

But tree growing takes time. Those who are constrained to survive on a day-to-day basis cannot afford to invest in activities from which the returns are uncertain and could accrue only after an interval of some years. Indeed, long gestation periods vis-a-vis immediate survival needs (e.g., cash-crop production), skewed land tenure, lack of iru^astructure, and marketing mechanisms are important barriers to the success of community forestry. Therefore, the government should provide the custodians of the forests with public supports such as credit, access to seeds and seedlings, market mechanisms, and most important, assured title or tenurial guarantee for land, at least on a collective basis.

Furthermore, community forestry activities not only entail tree-growing activities and establishment of nurseries, forest boundaries, and forest surveillance teams, but also require an urgent action to slow or halt unsustainable development paths that are leading to deforestation. Activities should focus on planning, funding, protecting, and managing community forest areas through local action. Community forestry requires both traditional knowledge and modern science to create new uses for forest resources and to enhance the properties of foods, medicines, and tree-related products; it requires management systems that promote the sustainable use of forest and agricultural production; and it requires policies and mechanisms that ensure that the grassroots innovators and protectors of the forest are provided incentives to continue innovation and conservation.

Community Forestry Legislation i n T h a i l a n d 111

To be most effective, community forestry activities should be a collaborative effort involving active participation of local people, N G O s , government organizations, academicians, and technical specialists and should be integrated with education and sustainable development. This wi l l help ensure that community forestry is relevant to the problems faced and that it addresses priority needs as identified through an interactive process of planning and consultation involving all parties concerned. Government commitment and assistance through community forestry legislation and technical and financial support wi l l have a positive effect on community forestry. Furthermore, new legislation and policies that recognize existing customary property rights, the local decision-making process and the local resource management system, and that promote tenurial security of forest dwellers wi l l strengthen the incentive of local peoples to protect their forests. In addition, comprehensive policy reform, secure land tenure, land use planning, and development of capable local institutions are basic and necessary preconditions for the successful implementation of community forestry legislation on the national level.

Endnote

1. At the beginning of a research project on "Community Forestry in Thailand: Development Perspective" supported by the Ford Foundation, our research team identified over 140 community forests in the northern region. These communities have actively preserved and protected their forest resources for generations, and they have done so without outside assistance or initiatives, relying on traditional wisdom and practices passed on for generations. They are living proof that people and forest can coexist and benefit from each other.

Part III Outer Islands of Indonesia

115

10. THE LEGAL CASE FOR SOCIAL FORESTRY IN THE PRODUCTION FORESTS OF INDONESIA1

Sopari Wangsadidjaja and Agus D j o k o Ismanto

This paper assesses the flexibility of existing laws and regulations to accommodate social forestry in the production forests of Indonesia. The state of Indonesian forestry is briefly reviewed. Experiences with social forestry programs in Indonesia and other Asian countries are presented. The 1945 Constitution, the Basic Forestry Law, and various regulations are examined. Finally, the authors recommend policies for implementing social forestry programs in production forests.

Forestry in Indonesia

One goal the Indonesian forestry sector seeks to achieve is prosperity for the entire society. Forests are simultaneously perceived as sources of capital for development and as guardians of the nation's environmental integrity. Consequently, fulfilling national development objectives must be undertaken carefully and wisely to ensure that forest resources can be used by future generations.

The forest land area of Indonesia covers 143.5 million ha and is divided into four main categories: protection forest, nature conservation forest, conversion forest, and production forest. Protection forests occupy 30.3 mill ion ha and are designated to preserve water resources, prevent soil erosion, and conserve the overall environment. Nature conservation forests, totaling 18.8 million ha, are preserved to protect biodiversity, including wildlife and other genetic resources. Conversion forests are the 20.9 mill ion ha of forest land that can be converted to other land uses. Finally, the largest category of forest is the 64.9 mill ion ha of production forests, which are to remain forested forever. Production forests can be harvested under government-approved management plans.

Not long ago, Indonesia relied on forestry to generate capital for development, because other industries were not yet developed. Forestry was second only to the oil industry in earning foreign exchange. Forest industries still maintain a significant role in Indonesia's economy today, generating 16 percent of total export earnings and employing about six million people.

Despite the apparent health of the forestry sector, as seen by its sizable contribution to the Indonesian economy, it is not without problems. Forest resources are under increasing pressure from a bur-

116 Sopari Wangsadidjaja and Agus Djoko Ismanto

geoning population, extensive clearing by shifting cultivators, overex-ploitation by concessionaires, and forest fires. Forest managers lack adequate forestry inventory information to properly monitor timber harvesting. The harvesting process itself must be improved, as it is too wasteful at present. Regulations to prevent misuse of the forests are ineffectively enforced. Local people reap few benefits from large-scale harvesting and are unable to properly participate in forest protection and maintenance. Finally, conflicts of interests between and among local people, the forestry sector, and other development sectors are common.

These problems endanger forest sustainability and therefore comprehensive alternatives to current forest management practices must be found. One objective receiving increasing emphasis in forestry sector policy is the promotion of equity among the people, especially among local people. Programs must be developed that can meet the dual objectives of promoting equity among the people and solving the problems faced by the forestry sector.

Social Forestry

Social forestry focuses on the high degree of interdependence between forests and forest communities, and gives individual communities or community organizations responsibility for managing the forests in their areas. Social forestry programs seek to develop community-level forest management (planting, maintaining, harvesting, processing, and marketing of produce) and are aimed at promoting self-reliant increases in community welfare and awareness regarding the importance of forest functions and natural resource, land, and forest conservation.

Although social forestry programs can result in better land management, they depend on the ability of foresters to build the capacity of communities to organize themselves and to engage in land management activities. In production forests, social forestry may provide a method to involve forest communities, forest concession holders, and government bureaucrats in managing forest lands.

Social forestry programs on state forest lands can be found throughout the world. Two of the more successful programs are in the Phil ippines and West Bengal, India. The Integrated Social Forestry Program (ISFP) in the Philippines is premised on the assumption that forest occupants are an integral part of the forest system, and their needs must be considered for any forest development program to succeed. The ISFP has worked hard to institutionalize a system of tenurial arrangements. One type of tenure granted through the program is known as the Community Forest Stewardship Agreement. These agreements allow tribal

Production Forests of Indonesia 117

and other forest comxnunities to lease on a communal basis the areas they currently use for noncommercial purposes.

In West Bengal the Forest Department has a program in more than 1,250 forest villages to regenerate 152,000 ha of natural sal forest. Forest communities are encouraged to form forest protection committees to guard against unauthorized cutting and grazing. To gain community cooperation in protecting the forests, the Forest Department created employment opportunities and offered the communities usufruct rights to the nontimber forest products in the rapidly regenerating sal forests. In most cases, once the local commitment had crystallized and a harmonious relationship was established between the people and the Forest Department, the role of department officials changed from policing to organizing and providing technical and custodial assistance.

In Indonesia, Perhutani (State Forest Corporation) has had an active and successful social forestry program in Java since 1986. In the Outer Islands, the Directorate General of Forest Utilization has conducted social forestry pilot projects in Irian Jaya, East Kalimantan, and South Kalimantan. These projects have demonstrated the capacity of local people to protect forests. For example, the project in the Cyclops mountains of Irian Jaya was implemented by the Regional Forestry Office in collaboration with the World Wildlife Foundation and the Irian Jaya Rural Development Foundation (YPMD) , a local N G O that operates in the region. To establish a border between village lands and the nature reserve, the people organized themselves into forest farmer groups—KTH (Kelompok Tani H u t a n ) and marked the boundary with brightly colored, easy-to-identify tree species. Similarly, Cendrawasih University has played an important role in negotiating a dispute between a forest community and the Forest Department on agatfus forest lands in Biak, Irian Jaya.

More recently, diagnostic studies have been conducted in forest concessions in Irian Jaya and East Kalimantan to assess the possibility of implementing social forestry within production forests. These studies highlight interactions between local people and concessionaires.

In East Kalimantan studies were carried out in two concessions. Swidden cultivation was observed to be the main farming activity of these communities. The tribal a d a t (customary) system allows for private landownership. Owners stake a claim to a piece of land by planting fruit trees or rattan on the plot. The introduction of the Forest Land Use by Consensus (TGHK) system resulted in problems wi th regard to the use of forest land by local people. Different individuals often claim ownership of the same piece of land. Patterns of land use in swidden cultivation may differ between tribes, which sometimes lead to problems of land status. Access roads planned for timber extraction were also


observed to cause land problems. When roads pass through land claimed by private owners, these owners may claim compensation not only for the land but also for the crops. Yet people usually receive only a minimal sum of Rp 15,000-Rp 25,000 per m 3 of timber.

In Irian, the study was conducted in a concession near Jayapura, the provincial capital. This study showecj that the presence of the concessionaire did not change the status of local people with respect to their traditional lands. The concessionaire respected the control of the ' local authority" over forests. Many conflicts, however, occur in the concession involving the local people, the company, and neighboring communities. These conflicts included issues such as land and tree compensation, job opportunities, community land boundaries, and other disputes that are due not only to the presence of the concessionaire but also to other problems. The study also indicated that the presence of the concessionaire attracted local people to move and to cultivate forest land located along the road.

Legal Analysis

The purpose of this legal analysis is to explore the mandates in the 1945 Constitution, the Basic Forestry Law, and other governmental regulations that have been given to the Ministry of Forestry to manage the production forests, and to assess whether social forestry can be legally implemented within these areas.

The M a n d a t e s

Article 33 of the Constitution is an appropriate place to begin: "Land, water, and natural resources contained therein should be controlled by the state and be made use of for the welfare of the people." In this article, the Constitution declares that forest areas should be controlled by the state for the welfare of the people. Furthermore, it provides a mandate to the state to control vital production sectors for the benefit of the people: "Branches of production which are important for the state and which affect the lives of most people shall be controlled by the state."

Elaboration of this article is given in the official elucidation of the Constitution:

[in Article 33]. . . , is laid down the basis of economic democracy, production by all for all, under the leadership or control of the members of society. It is prosperity of the community which is stressed, not prosperity of individuals. . . . The economy is based upon economic democracy, prosperity is for everybody. Therefore, branches


of production which are important for the state and which affect the lives of most people should be under control of the state. If they are not, the top management of production will fall into the hands of individuals who are in power and members of society will be oppressed by them.

This article guides the direction of national development. The utilization of resources (including forest resources) should be aimed toward creating a prosperous community founded on Panca S i l a (Indonesian Philosophy), in which no member of society is oppressed by another in respect to resource utilization.

This article also granted authority to the government of Indonesia to manage, administer, and control the forests of Indonesia. The authority and jurisdiction established in this article is manifested further in the provision of Basic Forestry Law (BFL), Act No. 5/1967. The BFL is composed of seven chapters: forest definition, planning, administration, management, production, conservation, and security.

Article 5 of the BFL mandates state control over forest areas and natural resources contained therein:

1. All forests within the territory of the Republic of Indonesia, including the natural resources contained therein, are controlled by the state.

2. The right to control given to the state as stated in Section (1) of this article provides accountability to: a. determine and arrange planning, designation, reservation,

and utilization of forests in accordance with their functions to render benefits to the people and the state;

b. arrange management of forests in the general sense; c. determine and arrange (regulate) legal relation between in

dividuals or legal institutions and forests and deal with legal activities related to the forests.

Article 5 gives the state authority over forest areas in the entire territory of Indonesia, including private forest. Moreover, Section 2(c) above may mean that in order to exercise the rights to plan, designate, reserve, and utilize the forest, the state should initiate such agreements or arrangements with individuals, groups of people, or corporate bodies. There is no exception to whom this kind of agreement could be given—local people, Indonesian citizens, and domestic or foreign corporations are evidently eligible to enter into an agreement with the state. The article also directs the state to provide regulations for the aforementioned relationships in which requirements and conditions are established for those who enter into the agreements. Other regulations connected to the provision of this article will be discussed later.

120 Sovari Wangsadidjaja and Agus Djoko Ismanto

To be more specific in carrying out the mandates, the government should initiate general planning related to forestry. Article 6 of the BFL states that:

Government shall make general plans for designation, reservation, and utilization in a multipurpose and a sustainable manner of the forests all over the territory of the Republic of Indonesia for the purpose of: 1. hydrology, flood, and erosion control and maintaining soil fer

tility; 2. producing and marketing forest products in order to meet the

needs of the people in general, and especially the needs for development, industries, and export;

3. various sources of livelihood for the communities living within and in surrounding forest areas;

4. protecting flora and fauna, particularly in the interest of science, culture, national defense, recreation, and tourism;

5. transmigration, agriculture, plantation, and animal husbandry; 6. others, for the benefits of the society.

Forests should be sustainably managed and provide multiple benefits and products. Management plans must accommodate ecological, environmental, commercial, political, and social functions and aim to achieve the greatest benefit for the most people. Communities living within and in surrounding forest are exclusively recognized in this article. The article may be interpreted to mean that because the presence of local communities is legally recognized, they should be integrated into the general forestry plan.

Recognizing and mtegrating communities in the forest management process is articulated in Article 9 of the BFL:

1. Forest management shall aim at obtaining the greatest benefits in a multipurpose and in a sustainable manner, both direct as well as indirect, in the effort to develop a just and prosperous Indonesian society founded on Panca Sila, based on a general plan and work plan.

2. Forest management, as stated in Section 1, includes: a. to plan and implement protection, designation, gazetting,

maintenance, and utilization of forests, as well as regreening; b. to manage nature conservation forest and recreation forest

as well as to conserve wildlife and hunted animals; c. to implement forest inventory; d. to conduct research on forest and forest products as well as

their uses and benefits, and research on the socioeconomic condition of the people living within and in surrounding forest;

e. to arrange and to implement extension and education in the field of forestry.


Paragraphs (d) and (e) of Section 2 of this article clearly mention that the government should conduct research. Results of this research should be used as a basis for overall forest management. The presence and importance of the local community is recognized through socioeconomic research, the results of which should also be integrated into the general forest management plan. This means that the designation, gazetting, utilization, etc., of the forest should be based on research results.

Furthermore, the government is obligated to educate the people in forestry. The purpose of providing extension and education is to ensure the implementation of multipurpose, sustainable practices. This statement was clarified in a general explanation of the entire BFL:

Proper education in forestry knowledge and skills is required to meet the needs of skilled manpower necessary to carry out the assignment satisfactorily. Guidance and advice are also needed to make people aware of the functions of forests for the whole community and to bring about a feeling of responsibility to participate in maintaining and protecting forest as national property.

In addition, Article 9 is intended to encourage people's participation in maintaining and protecting the forest by fostering and developing a sense of responsibility among the people for the resources.

Three key points arise from this analysis regarding social forestry implementation in production forests. First, the government has been given mandates by the Constitution and forest regulations to manage the entire forest within the territory of the Republic of Indonesia for the greatest benefit of the people, including people who are living within and around the forest. Second, forests have ecological, economic, political, and social functions, which should be integrated into the general forest management plan. Third, the presence of local people is recognized by law; indeed, people's participation is encouraged to maintain and to protect the forest.

Community Rights and Obligations

Community rights and obligations are delineated in Chapter V, Articles 15 and 17 of the BFL. The community as a whole is simultaneously perceived as a threat to sustainable forest management and as a rightful and responsible beneficiary of the state forest. Therefore, people can be seen as environmentally destructive and supportive forces. This ambivalent definition of the people's relationship to the forest is reflected in Article 15 of the BFL:

1. Forests need to be protected for sustainability in order to be able to fulfill their functions.

122 Sopari Wangsadidjaja and Agus Djoko lsmanto

2. Forest protection includes: a. preventing and limiting damage to forest and forest products

caused by people and cattle, fire, other acts of God, plant pests, and diseases;

b. protecting state rights over forests and forest products; 3. To ensure that the protection of forests be carried out as well

as possible, participation of the people is required.

The article is further explained in the BFL:

Members of traditional communities can always take advantage of their forests, as long as it does not interfere with the aims stated in the Act. . . . However, it (the government) is obligated to develop sources of livelihood for the people dwelling within and in surrounding forests. And on the other hand people have to be aware of their responsibility to participate in protecting the forest.

The community is given a right by law to take advantage of the forest resources as long as this right is used in accordance with the purposes of the act and the plan designated for the particular forest area.

The BFL states that people can participate in forest management through the appropriate institutions: "In order to guarantee support and control by the people, in line with the policy decision regarding forest utilization, the communities and mass organizations should participate through institutions designated for this purpose" It seems that people and mass organizations should be allowed to exercise control over forest management policies and influence forest use planning. People's participation in supporting and controlling forest use should be institutionalized in order to accelerate the participatory process. Therefore, grassroots community organizations have to be strong enough to deal with regional and national decision-making processes.

In addition to the rights and obligations of the community, a limitation is set in Article 17 that requires local people to exercise their rights in accordance with the overall national interest: "The exercise of communal rights and its members' individual rights to exploit or to take benefits from forest, both direct as well as indirect, based on legal relations, as long as it is still existing, shall not infringe upon the achievement of the aims stated in this Law."

This limitation does not mean that the rights of local people should be eliminated. The explanation of Article 17 describes the correlation between the given rights and limitations:

Besides written laws, several communities in Indonesia still acknowledge customary laws on forest exploitation, animal husbandry, wild game hunting, and forest products collection, among others. In implementing customary laws, damage to forest should


be prevented, so as not to reduce the production and protection functions.

It is not recommended that customary laws be used to prevent the implementation of the general plan provided by government. In addition, it is not recommended that customary laws be used as a basis to damage the forest.

Article 17 accommodates the interests of the local community and the nation. Because both are important, a procedure to implement the regulation should be provided.

Along with customary rights, Article 6 of Government Regulation (GR) 21/1970 elaborates the implementation of Article 17 of the BFL concerning a concession-holding company (HPH) to whom timber exploitation rights have been granted. It states that:

1. The rights of communities and their members having customary law, based upon customary law rules actually in effect, should be implemented in such a way as to not disturb implementation of forest exploitation.

2. Implementation mentioned in paragraph (1) must secure permission from the Forest Concession Holder who has to grant permission for implementation of the rights stated in paragraph (1) which are regulated by procedures resulting from a consensus meeting between the Concession Holder and the customary rights community with the guidance and supervision of the provincial forestry service.

3. For the sake of public safety within the forest area that is currently being exploited in the context of forest utilization, the implementation of the above right is temporarily frozen.

Article 6 of GR 21/1970 explicitly recognizes the existence of customary law and local communities, specifically in the production forest areas. Although the right to harvest is already given to the concessionaire, the people are allowed to practice their customary law in certain conditions as a result of the tripartite consensus. This article provides a promising option as to how social forestry can be implemented; institutionalizing the tripartite consensus could be the basis for facilitating an entry point for social forestry. Unfortunately, an implementation regulation for Article 6 as a followup to this paragraph is not yet provided. The absence of this regulation creates uncertainty as to how a tripartite consensus should be conducted. Therefore, Article 6 of GR 21/1970 should be capitalized and institutionalized. In addition, a government order or ministry decree should be established that facilitates tripartite agreements in conjunction with other articles related to the implementation of people's participation in forest management.


GR 21/1970 also addresses rights to collect forest products that can be integrated in the tripartite agreements and in social forestry implementation. Article 1, Section 5, establishes rights for local people to gain benefits from the forest: "Forest Products Utilization Right (HPHH) is a right to fell in accordance with their own capability which includes forest areas at a maximum 100 hectares for a maximum period of two years, and the right to collect wood and other forest products at the amount as stated at the license for a period of six months."

H P H H is applicable to both individuals and groups or legal institutions owned by an Indonesian citizen as detailed in Article 11, Section 1, of GR 21/1970: "Forest Products Utilization Right can be granted to Indonesian citizens and Indonesian legal institutions in which all capital is owned by Indonesian citizens." However, the HPHH was canceled by the Ministry of Home Affairs because of its misuse by the people; many were selling their rights to companies that damaged the forest during harvesting activities. This experience indicates that community capabilities should be developed before rights are granted to them. Mutual understanding of the purpose and social value inherent in given rights has to be established and institutionalized.

Another way of involving people in forest management is by providing share-holding opportunities in concessionaire companies. Article 4 of GR 20/1975 states: "Involvement of capital or funds from the people and government is possible in order to strengthen domestic corporations holding the Forest Concession Right." The government intends to implement this article by requesting that concessionaires sell shares to village cooperatives. Many concessionaires have responded positively to this article and, as a result, many cooperatives now hold shares. Local people must organize themselves into a legal entity, however, before they can take advantage of this policy.

Organizing local people into a legal entity is a useful step, not only because it enables them to buy shares from concessionaires, but because it also provides access to other policies requiring legal status, such as Departmental Regulation (Surat Keputusan Menteri) No. 208/Kpts-II/1989—the right to collect rattan, and No. 149/Kpts-II/1989—the right to have a rattan plantation concession.

Forest U t i l i z a t i o n System

Based on the BFL, production forests are managed through a concessionaire system as stated in Article 14, Section 3: "Forest Utilization Right may be given to state corporations, local corporations, and private corporations (HPH)."

Forest utilization aims at achieving prosperity for the people in accordance with the national development objectives. Article 13 of the


BFL delineates the objectives and scope of forest utilization activities: "(1) Forest utilization aims to obtain and to increase production of forest products for the sake of national economic development and the prosperity of the people. (2) Forest utilization is carried out based on sustainable and corporate/business principles . . . including planting, maintaining, harvesting, processing, and marketing."

More specifically, Article 8 of GR 21/1970 outlines the rights and obligations of the HPH holders: "Forest Utilization Right (HPH) only allows felling by selective cutting systems based on forest sustainabil-ity forest products processing and marketing, and forest regeneration naturally or artificially and to maintain the forest." The HPHs only allow for timber cutting that guarantees the sustainability of the forest. This means that the HPHs are not only given access to timber production but they are also given the responsibility to sustainably manage the forest and to take into account the ecological, economic, and social aspects of their activities. Article 6 of the GR, discussed previously, implies the intention of the state to integrate social aspects into the HPH system.

A departmental regulation of the forestry ministry (SKHPH) declared that concessionaires are obligated to help local people. Article 2, Section 8, states that concessionaires are required to: "Assist the people present (yang ada) within and in surrounding areas under the concession to improve their standard of living and the development of the respective region." This government policy is in line with the guidelines subsequently provided by the International Tropical Timber Organization that deal with principles of sustainable management of natural tropical forests. Among other articles related to production forests and local people are:

Principle 26 Permanent production forests have to be protected from activities that may interfere with the sustainability of timber production, such as shifting cultivation, which are often associated with the opening up of the forest. Principle 29 There should be incentives to support long-term sustainable forest management to all involved parties. The concession holders should have guarantees for the continuity of their concession for long-term periods which could provide benefits for the surrounding communities and ensure the state incomes that are enough to manage the forest sustainably. Principle 35 The success of forest management for the sustainability of timber production is dependent upon its capability/suitability to fulfill the needs of the communities living in the surrounding forest areas.


Concessionaires in Irian Jaya and East Kalimantan have shown their respect for the local people in a variety of ways. Some have provided compensation (Rp 5,000-Rp 25,000 per tree) for the trees cut that belonged to local people. Others have maintained village roads, built and maintained educational, religious, and other public facilities, funded the salaries of local teachers, and provided materials for building other public facilities to fulfill their obligation to assist local people. Since helping people was perceived by the concessionaire as an obligation rather than a gesture borne out of true concern for local people, the assistance was not properly and systematically arranged. The government intended to bring prosperity to the community, to foster self-reliance, and to encourage the equitable sharing of the benefits of timber harvesting with the community when it required the concessionaire to participate in local development. Because the concessionaire's help was perceived as charity, however, this regulation did not bring about the intended results. Therefore, the manner in which concessionaires participate in local development for the people's benefit should be improved.

Summary of L e g a l Analysis

The foregoing Constitution and regulations provide mandates to the state and the Ministry of Forestry to manage the entire forest within the territory of the Republic of Indonesia. Forests are perceived to have many purposes including ecological, political, and social functions. The state is mandated to accommodate these functions into its management system. The presence of local people within and around forests is respected by existing law, and people's participation in forest management is encouraged to protect and maintain the forest. The regulations provide mandates to implement tripartite agreements by the concession holder, the local community, and the government, to secure forest sustainability, and to fulfill the needs of local people. Mechanisms on how to integrate the social functions of the forest and make tripartite agreements, however, are not yet covered by existing regulations. The implementation of the social forestry concept in production forests can be accommodated by the existing regulations. Unfortunately, however, due to the different priorities of forestry in the past, the supporting articles have only partially been implemented.

Intervention Options

Compatibility of Social Forestry i n Production Forests

The dynamic performance of the forestry sector over the past decade has not occurred without causing environmental damage, a source of


growing concern in Indonesia as well as internationally. Only part of this damage can be laid at the door of the timber industry; most of it is indirectly caused by population pressures and the concurrent increased demand for forest land and forest products.

Encroachment of productive forest land in Sumatra, the second most densely populated island after Java, has already begun. On the other islands, most forest land encroachment occurs through shifting cultivation practices. Approximately 0.2 million ha of forest land on the Outer Islands are cleared annually by shifting cultivators. Shifting cultivation is practiced by indigenous forest people as well as migrants who enter production forests. This agricultural practice cannot be accommodated indefinitely with increasing population growth. Traditional tribal shifting cultivators cause only part of the damage since they have ancient cultivation traditions responsive to environmental constraints and change. More serious damage is caused by migrants practicing shifting cultivation without the appropriate environmental knowledge and practical experience. The destructive effects of these practices may be mitigated by using land use options such as agroforestry. Land pressures may also be decreased by assisting community development and creating rural-based industries. Social forestry programs can facilitate the mediation of differences among groups involved in agriculture and forestry production management to counter the destructive effects of shifting cultivation practices and to improve forest productivity.

Another problem encountered by the forestry sector is regulatory violations by concessionaires, even though penalties for overexploita-tion2 (denda eksploitasi) in 1990 totaled approximately Rp 2-3 trillion, equivalent to almost US$1-1.5 million. Overexploitation is due not only to mismanagement of the concession holders but also to other factors such as illegal logging, lack of forest inventory information, inability of the government bureaucracy to control entire forest areas, and lack of people's participation. From the viewpoint of forest managers, the root of the problem is the lack of an effective mechanism to control harvesting. Under the current system, the control of forest areas and timber exploitation is the responsibility of a government bureaucracy that lacks the qualified personnel necessary to reach out into the depth of the jungles and adequately monitor forest harvesting. This limits their ability to control forest exploitation or to inventory forest lands. Accurate forest inventory information is the foundation upon which sustainable forest management is built. The entire process of logging operations and forest maintenance will be hampered without this information.

Local people who reside in the forest are often perceived suspiciously and presumed to be a threat to the success of sustainable forest


management. In fact, local people should be seen as potential supporting partners working with the government and the concessionaires in facilitating sustainable management. If people are better organized, they will be able to provide early warning to the Forest Department to prevent violation of regulations. They can also be mobilized to protect the forest and ensure the security of the forest. Appropriate people management will offer greater benefits for government, concessionaires, and the people themselves. The local people, the concessionaires, and the government should simultaneously draw benefits from the forest according to their respective interests.

The growing concern of promoting equity among the people will be facilitated through the implementation of social forestry. Social forestry can facilitate solving and preventing disputes among the people, the concessionaires, and the government, while allowing the local people to have increased access to forest resources, ln most cases social forestry is in accord with attempts to overcome the problems related to managing production forests. Institution building becomes essential, however, for long-term success.

As previously discussed, the articles of the regulations that support the implementation of social forestry have been a low priority during the past two decades. Consequently, attempts to rank these articles in terms of their importance to social forestry implementation will create controversy among the interested parties. Because social forestry is a relatively new approach requiring an open mind, resistance to social forestry by some parties should be anticipated, and advocates of social forestry must be prepared to respond and to prevent potential negative impacts.

A l t e r n a t i v e Courses of Action

Some alternative courses of action to improve the management of production forest land include abolishing the concessionaire system, improving the existing regulations, and institutionalizing the supporting articles. Each alternative brings about its own consequences and benefits.

Abolishing the concessionaire system would entail the highest risk in the current situation. For the time being, this is not recommended due to the absence of a system that could adequately replace its contribution to national development goals and production forest management. The second alternative, improving the existing regulations, is a more acceptable recommendation. This tactic, however, will not improve the situation in field practices in the short term. Improving the regulations, especially the Basic Forestry Law and government regulations, will take a long time. Moreover, many adjustments are required, de-


pending on the area that needs improvement. Therefore, the second alternative is recommended for the long term. The third alternative, institutionalizing the supporting articles, is the most appropriate since it is the most direct and simple way to address the actual problem. Furthermore, it wi l l provide more input as well as supporting ideas for the second alternative.

Institutionalizing the supporting articles wi l l energize and add power to them and bring about a willingness by the Forest Department, local people, and other interested parties to actually implement the articles. The body of law supportive of social forestry should be internalized by the government bureaucracy, the corporations, and the community to provide a permanent vehicle for development that encourages equity and a prosperous community.

Various conditions are required to bring the articles into power to run the "social forestry vehicle." These include advocacy to stimulate concern and commitment to implement the regulations and bring about equity, and the development of government regulations that emphasize and articulate the messages of the articles and provide guidance as to how the articles should be implemented.

Conclusions and Recommendations

The existing regulations such as the 1945 Constitution, the Basic Forestry Law, Government Regulations 21/1970 and 20/1975, and other departmental regulations can accommodate the implementation of social forestry in the production forest areas of Indonesia. Various opportunities are available for the local people to gain access to the forest resources, such as use of wood and nonwood products, to collect or plant rattan, or even to buy shares from the concessionaires.

Customary law is recognized by the regulations, and it should be exercised in conjunction with the interests of the nation and local people. People's participation in - protecting and maintaining the forest should be implemented through the designated institutions. Implementing regulations that facilitate the supporting articles where social forestry can be implemented, however, do not yet exist.

A method for institutionalizing tripartite agreements3 should be developed to ensure sustainable forest management as well as prosperity and equity for the local people. The Social Forestry Program can be used to facilitate the institutional process of this agreement.

A survey of nontimber forest product use should be conducted to determine which products wi l l render greatest benefits to the local people. The capacity of the communities should be strengthened so that


they may better deal with local, regional, and national decision-making processes and further their ability to manage forest land and resources to their benefit.

Local organizations such as the K T H s should be strengthened and developed into legal entities (i.e., cooperatives) so that they may obtain shares from concession-holding companies if they choose.

Provisions for implementing regulations are necessary to provide guidelines to the related agents responsible for implementing the supporting articles. Prior to the provision of the implementing regulations, pilot projects are needed to provide additional information and input.

Endnotes

1. The arguments made in this paper draw on the work of Zerner (1990).

2. Overexptoitation includes exceeding the allowable annual cut according to the government-approved management plan, cutting outside the specified harvest block, and harvesting the wrong species, among other violations.

3. This should not preclude the establishment of two-party agreements between the government and local people as well.

131

11. TOWARD COMMUNITY-BASED FORESTRY A N D RECOGNITION OF A D A T PROPERTY RIGHTS

IN THE OUTER ISLANDS OF INDONESIA

S a n d r a M o n i a g a

L a n d , water, and their n a t u r a l riches a r e controlled by the State and are to be utilized for the m a x i m u m prosperity of the people.

—Article 33 Constitution of the Republic of Indonesia

There has been much discussion about "community forests/' "social forestry" "community-based forest management," and "forestry for people." Although strategies may differ, these programs share a common credo that sustainable forestry management activities wi l l improve the socioeconomic conditions of forest communities and that forest dwellers must be active partners in these efforts (Salazar 1990). In Indonesia, this credo conforms with the 1945 Constitution, which clearly states that natural resources should be used for the welfare of the people. Since at least 1978 when "Forests for People" was the theme of the World Forestry Congress held in Jakarta, this constitutional provision has been ripe for an interpretation which holds that forest use that arbitrarily harms forest communities is unconstitutional.

Indigenous communities in the Outer Islands of Indonesia have been sustainably managing forest resources for generations (e.g., see Dove 1983, 1986; Ngo 1988; Colfer 1983; Alcorn 1990). These communities rely on indigenous systems of natural resource management, which include adflf—or customary—laws for allocating, regulating, and enforcing property rights. These communities are harmed by arbitrary state forest policies and laws that undermine and marginalize their a d a t property rights. Making matters worse, indigenous forest farmers have been made the primary scapegoat of deforestation in the Outer Islands.

Broadly speaking, forestry policy—with law as its instrument—has not taken into consideration any of the positive aspects of indigenous resource management regimes. Swidden (slash-and-burn) agriculturalists in particular have been the subject of negative assessments (Zerner 1990). National laws and policies, moreover, often have not differentiated among diverse traditions of resource management and the environmental effects of similar practices in different environmental contexts (Kartawinata 1984). A l l too often, government development activities trap swidden agriculturalists in a downward spiral of economic and ecological deprivation, including the displacement of local people from their native areas (Aditjondro 1990). There is a need to develop

132 Sandra Moniaga

alternative policies for forestry management in the Outer Islands of Indonesia. These policies should be based on indigenous community forestry management. They should recognize communal a d a t rights as a way to enhance people's participation in sustainable forest management.

This paper examines several problems concerning statutory Indonesian laws and policies, especially those related to production forests, and their failure to recognize and accommodate the rights and practices of indigenous forest managers. The paper wi l l demonstrate that the prevailing interpretation of relevant national laws effectively ignores these practices and customary rights and is, therefore, in conflict with the Constitution. A n alternative perspective based on the Constitution and other existing national laws is then presented. This interpretation holds that the recognition, delineation, and protection of indigenous territorial rights is constitutionally and statutorily mandated. It merits emphasizing that this alternative perspective be animated by environmental as well as legal and ethical considerations.

In order to avoid misunderstanding, references are made in the paper to "community forestry" rather than to "social forestry," the latter terminology being identified with the government's forestry program (Barber 1989; Wiersum 1984; Bratamihardja 1989). It is acknowledged, furthermore, that some migrant forest dwellers in the Outer Islands may also be engaged in sustainable forest management. This paper focuses only on indigenous community forest management because of the uniqueness of indigenous people's technologies and institutions, their ideal models of so-called people's participation in sustainable development, and their uniquely "marginalized" position in national laws and policies.

Forests and Concessions

Indonesia has 10 percent of the world's remaining forest resources and is second only to Brazil in its amount of remaining tropical forests. There is a great deal of uncertainty over the rate of deforestation in Indonesia; estimates range between 700,000 and 1.2 mill ion ha per year (Pra-mono 1991). Regardless of the exact rate, the country is confronted with a serious deforestation problem and is attracting growing world attention from environmentalists.

Indonesia has a total land area of 190.9 mill ion ha and a population of over 180 mill ion. The country can be divided into two major areas: Java (including Madura and Bali) and the Outer Islands. The area covered by state-claimed forest land is uncertain but ranges between 75.7 and 92.7 percent of the total land area (Pramono 1991). Java, with

Forestry and Property Rights, Outer Islands of Indonesia 133

only 6.9 percent of the nation's total land area, has about 60 percent of the nation's population. Java has been subject to more particularized state forest management since the colonial period. This was a result of both the more intensive nature of government on the densely populated island and the fact that commercial forest exploitation was centered there (Barber 1989:143).

Prior to the mid-1960s, the Indonesian forestry sector emphasized the extraction of teak from plantations in Java. In the beginning of the new era of the Suharto administration (commonly known as "the New Order") in 1966, forestry institutions were completely reorganized (Pramono 1991), and the Basic Forestry Law (BFL) 5/1967 was promulgated. It was, and continues to be, based on Article 33 of the Indonesian Constitution of 1945, which empowers the national government to control, manage, and administer all designated forest lands.1 The BFL gives the Ministry of Forestry primary legal jurisdiction over "public" forest lands. Pursuant to the BFL, many forest-based industries— especially logging companies—were granted hak p e n g u s a h a a n h u t a n (HPH) or concessions on the Outer Islands.2 Foreign investors were the initial beneficiaries,3 and many North American, European, and Japanese corporations operated concessions in Indonesia's forests. The domination of these corporations ended during the 1980s as foreign concessionaires were replaced by 20 large, domestic conglomerates (Pramono 1991).

Production forests, which consist of normal production forest, l imited production forest, and conversion forest, include the largest area of forested land in Indonesia: 96.7 mill ion ha. Production forests have been the focus of most commercial exploitation and have contributed to the government's efforts to gain capital for development. A total of 57.9 million ha of production forests have been allocated to Production forest Concessionaires (HPHs) (Pramono 1991). The application requirements for obtaining H P H s and other concession rights to forest resources are too complicated and costly for small-scale resource users. The legal consequence is that in these areas forest resources are not controlled by local entrepreneurs.

Areas designated for protection and conservation cover a total of 48.5 million ha of forest land. Strict provisions are placed on the use and occupancy of these areas,4 without any consideration given to the fact that indigenous forest dwellers live within some of the reserves. A s such, there currently is no provision made for local management and use, let alone payment of compensation to local people who are displaced as a result of the designation. This may change with the introduction in 1989 of nature tourism concession rights.5 Nevertheless, local people wi l l still have to deal mainly with forestry officials and rangers regarding a d a t property rights.

134 S a n d r a M o n i a g a

Forest Land Classification

The BFL also gives the Ministry of Forestry authority to designate and classify the lands under its control. Indonesian forests are classified into four major categories: (1) protected forests, (2) production forests, (3) nature conservation forests, and (4) conversion forests.6

In 1970 the government began to develop a master plan for forest land use.7 The plan was intended to be an official response to the increasing pace of development and conflicting land demands. The plan preceded formulation of the Consensus Forest Land Use Plan (Tata G u n a H u t a n K e s e p a k a t a n - X G H K ) , which categorized forested lands as the following:

1. Nature Reserve, Conservation Areas ( P e r l i n d u n g a n d a n P e l e s t a r -i a n A l a m )

2. Protection Forest ( H u t a n L i n d u n g ) 3. Limited Production Forest ( H u t a n P r o d u k s i Terbatas) 4. Normal Production Forest ( H u t a n Produksi B i a s a / H u t a n N e g a r a

Bebas) 5. Convertible Production Forest, simplified as Conversion Forest

( H u t a n Produksi Konverst) 6. Unclassified

These categories were derived from three criteria used to develop site indexes: soil erodibility, rainfall intensity, and slope. A l l lands greater than 45 percent slope were categorized as protection forest, as were lands of certain soil types. Otherwise, there was no agreed-upon criteria. Official categorization was made at the provincial level among Agriculture, Forestry, Public Works, and Agraria (now Badan Pertana-han Nasional or National Land Board) authorities, with the governor acting as chairperson of the consensus group (Pramono 1991). Many site-specific categorizations were based on subjective criteria, as there was a lack of data for long-term planning purposes.

Map inaccuracies as shown in the results of RePPProt, a recent joint mapping project, are also problematic. 8 Moreover, when maps were transferred and measured on RePPProt's project base maps, the official T G H K figures differed greatly from the actual area by as much as 33 million ha (Table 11.1). The various scales of base maps used in designing T G H K were most likely the cause of this disparity (Pramono 1991:16).

Determining the exact number of hectares under H P H concessions has also been problematic. The FAO found that of the 57.9 mill ion ha of total H P H land in 1988, only 43.28 million ha were in production forest areas, while the rest were in protection forests (3.84 mill ion ha),


Table 11.1 Comparison of Forest Land and Actual Forest in 1982 by Classification (in mil l ion ha)

Forest Classification

Forests

Forest Classification TGHK 1 Actual2 RePPProt3

Conservation forest 18.8 17.3 14.7 Protection forest 30.3 31.2 25.1 Normal production forest 30.5 30.8 24.8 Limited production forest 33.9 30.1 24.4 Conversion forest 30.54 36.7 22.7 Unclassified forest - 31.0 5.9

Total 144.0 177.1 117.6

Sources: GOI (1990); RePPProt (1990).

•TGHK = T a t a G u n a H u t a n Kesepakatan (Consensus Forest Land Use Plan) 2 As determined by the RePPProt study. 3 As recommended by the RePPProt study, includes unclassified forest.

conservation forests (0.71 million ha), and even nonforested land (10.07 million ha) (Pramono 1991:16). For the last land use type, this is certainly a problem from the viewpoint of the concessionaires, while trees in the other two types are often cut despite their protected status. Areas within Kutai National Park, believed to be one of the most important reserves in Indonesia, for example, overlap with several concessions.9

Forest Land Demographics in the Outer Islands

Confusion about the amount of forest land and concession areas likewise applies to estimates concerning the number of forest dwellers. The Ministry of Forestry stated that in 1985 there were 1.2 mill ion swidden agriculturalists (around six mil l ion people total) using an area of 9.3-11 million ha of forest lands (Harahap 1991:3). Another source stated that in 1960 an estimated 35.4 mill ion ha of land was being used by 3.8 mi l lion families of swidden agriculturalists (Djajadiningrat 1990:172). The RePPProt study team estimated that as of 1991 there were 1,199,970 families of swidden agriculturalists using 11,402,300 ha of forest land (Pramono 1991:Table 4.9). Poffenberger (1990e) estimated that there are 30-40 mill ion people l iving in and near 143 mill ion ha of forest lands in the Outer Islands.1 0 Whatever the correct figure, clearly there are serious problems with the government's official underestimate. In Bulun-


gan District, East Kalimantan province, for example, the Gajah Mada University research team estimated a population density of 148 people per k m 2 while the official estimate was only 15 people per k m 2 (National Development Planning Study Center 1991:9).11

More confusion is evident in regard to estimates of the total area under private land that belongs to indigenous communities ( t a n a h - t a n a h m i l i k a d a t ) . There are no national programs to delineate the a d a t forest territories of indigenous communities. For some provinces, land status maps at a scale of 1:500,000 are available, prepared by the Land Use Directorate, Agraria Director General, Ministry of Home Affairs. In the case of Kutai District in East Kalimantan, for example, map categories show areas of forest lands, private (individual) lands, and state lands that are occupied by people. These maps, however, were prepared without consulting the local people (Moniaga 1986).

The numbers wi l l continue to be played with and confusion wil l persist. But until a credible data base is established, there wi l l be no satisfactory answers regarding a d a t tenurial territories and the population of indigenous resource managers in the forested lands of the Outer Islands. Credible demographic and tenurial data are a prerequisite for any credible forestry development and management program involving Indonesian forest dwellers. The lack of credible demographic data helps perpetuate the economic status quo, which profits the conventional forestry sector.

At the national level, therefore, the legal and economic marginali-zation of forest dwellers occurs in a development process that is still controlled by a few landlords. Intergenerational rights are rarely considered as local peoples are displaced by the government-created tenures (Swasono 1990). The fact that many indigenous people have been living in and maintaining the forest is not recognized in national policy, nor is the fact that nontimber products are important for the economies of many rural areas (Zerner 1990).

Deforestation and Law

The Indonesian government, like those of most countries, has been practicing traditional development paradigms that focus on economic growth through high foreign and domestic capital investment for industrialization. After giving many promises for the reimplementation of state principles formulated in the 1945 Constitution but not implemented by the O l d Order, the New Order government retreated. The priorities changed to political stability and national economic growth that favored urban centers at the expense of rural areas (Nusan-tara 1988:18).


From a legal viewpoint, although Indonesia has a modern environmental law, 1 2 its natural resources are still managed pursuant to classic environmental law paradigms embraced early on by the New Order. The old paradigm is use-oriented and biased in favor of the conventional forestry sector. A s a result, natural forests continue to be widely exploited for commercial purposes with little, and often no, participation from forest dwellers or their local leaders.

Sustainable development requires a legal system with environmental insights based on principles such as intergenerational rights, preservation and sustainable utilization, "polluter pays" principles, early warning and information access, coordination and integration, environmental standards and monitoring, incentives and disincentives, recognition of environmental rights, and compensation and restoration (Brundtland Report 1988; Danusaputro 1985). Most Indonesian forestry laws were developed before these principles had gained widespread acceptance. However, even recent legislation such as the Biological Resource and Ecosystem Conservation Ac t 1 3 still fails to reflect these new insights.

A positive change in the development of the forestry law is the requirement that an integrated environmental impact analysis (EIA) be made prior to the implementation of any development project 1 4 The EIA also establishes a sustainable conservation resource management approach. 1 5

Current forestry laws in Indonesia are responsible for the present rate of deforestation and the lack of community participation in forest management. The failure of these laws are reflected in both their substance and their enforcement mechanisms. Ideal forestry laws should proceed from legal principles that halt deforestation, restore destroyed areas, and promote community participation in sustainable forest management.

Government Attitudes Toward Indigenous Agriculture

The marginalization of indigenous forest dwellers is also evident in government attitudes toward indigenous agriculture. Apparently there is no provision in any Indonesian law that prohibits the practice of swidden agriculture or any other indigenous community resource management regime. In general, however, all farmers who practice swidden agriculture are considered to be destructive and are encouraged to change their traditional systems. This also removes them as threats to commercial forestry interests (Mubyarto et al. 1991:4).

Although no laws prohibit so-called indigenous agricultural practices, these practices are not legally recognized and supported. In fact.


existing laws such as Government Regulation 28/1985 on Forest Protection and many others can always be used against swidden farmers.

At the same time, there is a growing perception that swidden agriculturalists should not be held fully responsible for forest destruction in Indonesia in general and especially in East Kalimantan. But in formal speeches by high-ranking government officials, the promotion of pengendalian—control or sedentarization of swidden agriculturalists-is a common theme. 1 6

The Minister of Forestry has often stated that in aiming to resolve local conflicts and improve the economic welfare of forest-dependent people, the national government has implemented several programs. These programs include:

1. Ministry of Forestry: • sedentarization/control of swidden agriculture practices • village development (HPH b i n a desa—village development by

logging concessionaires) • community forestry • agroforestry etc.

2. Ministry of Agriculture: • nucleus estates in which the swidden agriculturalist may par

ticipate • export crops commodity rehabilitation and development

3. Ministry of Transmigration: • land allocation for the communities originally living in or near

the transmigration sites 4. Social Ministry:

• social welfare development for isolated communities 5. Ministry of Home Affairs:

• resettlement program

These programs are seen by Mubyarto et al. (1991:4) as being based on a strategy to settle and control swidden agricultural practices (fal-safah m e n g e n d a l i k a n k a u t n p e l a d a n g ) , instead of developing (or improving) those practices—which is why most of the programs have failed (Moniaga 1986; Colfer and Soedjito 1980).

An Alternative Perspective

The fact that Indonesia is comprised of many ethnic groups and a rich and diverse archipelagic ecosystem provides for many opportunities, as well as many complications. Serious attention needs to be given to public laws and policies that address national diversity, especially those

Forestry and Property R i g h t s , O u t e r Islands of Indonesia 139

that place too much emphasis on uniformity in a nation noted for its diversity The history of development in Indonesia is replete with examples that not all laws and policies created in Jakarta are suitable for other areas of the country.

National forestry laws and policies provide a classic example of the overemphasis on uniformity and the failure to meaningfully address the nation's rich diversity iri a democratic and participatory manner consistent with the Constitution. A s regards forest land management in the Outer Islands, the reality is that indigenous resource management systems (based on a d a t rights) exist and that these systems are sustainable and often overlap with classified production forests (see Dove 1985, 1986). In addition, forest use activities, including the extraction of timber and nontimber products, provide local people with food, shelter, and sources of income.

It should not be necessary to emphasize that swidden farmers and other forest dwellers are also Indonesian citizens and they possess the same rights and obligations under the Constitution as other citizens. The fact that many forest dwellers do not possess land title certificates does not mean that they possess no rights to natural resources. In most instances lack of certificates merely means that they remained unaware that since 1960 a national law requires registration and conversion of a d a t land rights. Meanwhile, forest land classification in the late 1970s through the early 1980s was usually done without the knowledge or participation of local people.

Adat Property Rights and the Basic Agrarian Law

The recognition of a d a t rights in the postcolonial era is provided for in the Agrarian Basic Act (BAL) 5/1960, which is also the first national law enacted after independence in 1945. The B A L was ostensibly designed to end the two-tier, or dual, system of land tenure established during the colonial regime, when the Dutch superimposed a state-centered system onto locally established adat property systems. The B A L aimed to provide statutory rights ( k e p a s t i a n h u k u m ) to all Indonesian citizens. These rights were to be registered according to Article 19. Registration was meant to provide an unambiguous land tenure system in the country. In the rural areas of the Outer Islands, however, where isolation from information is common, 1 7 most indigenous communities were never informed about the need to register their property rights with the provincial office of the National Land Board (Badan Pertana-han Nasional—BPN, previously the Agrarian Office). The B A L demonstrates the importance of cuTferentiating between the traditional tenure

140 Sandra Moniaga

systems in rural Java and those of the Outer Islands. Traditional systems on Java tend to be more clearly defined; they also were more affected by the colonial experience.

Many communities in the Outer Islands have been established in the forests for centuries. Some forest dwellers practice settled agriculture such as rubber (Hevea b r a s i l i e n s i s ) planting, some are swidden farmers, and some are hunter/gatherers. Within these communities there are already customary laws ( h u k u m a d a t ) , some of which deal with the use of natural resources. This fact is recognized in Article 5 of the B A L . The law specifically states that "adat law applies to the earth/or land, water, and the air as long as it does not contradict the national and State interests, based on nation unity with Indonesian socialism and also the other related regulations within this Act and others, all in respect to the religious laws."

Community-based a d a t property rights are referred to as h a k u l a y a t . Zerner defined h a k - h a k u l a y a t as "mutual or joint rights of a group of inhabitants occupying a specific piece of land" (see also Dove 1985). Although well known within a community, there is little written documentation about traditional land tenure rights and practices.18 This fact reflects the oral traditions of many indigenous communities. U n fortunately, it also makes it easier for unregistered a d a t property rights to be ignored and undermined.

The B A L highlights the problem. Despite the recognition of a d a t rights in Article 5, an earlier article provides that "The Indonesian territories consist of a union of the motherland of the Indonesian peoples which are united as the Indonesian nation." The same article also states that " A l l land, water, and natural resources, including underground resources within the Republic of Indonesia, have been granted by G o d to the motherland, are the land, water, and natural resources of the Indonesian people, and have become a national asset."19

The official explanation of these provisions is that the Indonesian people have the right to all land, water, and natural resources within Indonesian territory. They are also interpreted to mean that all lands traditionally owned by indigenous communities that have not been officially registered and documented as such have become the c o m m o n p r o p e r t y of t h e n a t i o n . In other words, the Indonesian people as a whole possess a kind of h a k u l a y a t to all land, water, and forest resources within the nation. This interpretation is tenable and just only if it is understood to apply to all natural resources in Indonesia, mcluding those that the government concedes to be private.

The Indonesian Environmental Act of 1982, meanwhile, states unequivocally that all citizens have rights to a good and decent environment, and rights to participate in managing the environment. These


provisions provide implicit support for the recognition of a d a t property rights of indigenous forest communities.

Legal support for the recognition of a d a t property rights can also be found in Indonesian forestry laws. The Joint Decree between the Forestry Minister and the chairperson of the Land Board on Technical Guidelines for Land Inventory is one example. 2 0 This decree provides for the "discharge" of areas within classified forest land and for the issuance of land use rights for agricultural development purposes. This existing process could be used as a basis in the delineation process.2 1

Forestry Law vs. Property Rights

Although the transition between a d a t property rights and the national tenurial system has not been finalized, the Basic Forestry Law (BFL) is unconstitutionally having an adverse effect on customary tenure. The treatment of a d a t rights ( h a k a d a t ) pursuant to the BFL is ominous. The law basically is being used as a mechanism to legitimize state claims of ownership over forest resources and to arbitrarily sanction the removal of local control from forest communities, including indigenous ones.

The general official explanation of the BFL states that in Article 2, the term "state forest" is used to designate all forests that are not private property forests ( h u t a n m i l i k ) . With this understanding, state forests cover forests designated as such, as well as indigenous territories that are under the joint jurisdiction of customary law communities ( m a s y a r a k a t h u k u m a d a t ) . The explanation implies recognition of regional community rights (hak u l a y a t ) provided they still exist (Zerner 1990:25).

The designation of state forests under the control of customary law communities does not annul ( t i d a k m e n i a d a k a n ) the a d a t property rights of the communities. Community members have the statutory right to use and obtain benefits from the forest provided they actually possess adat rights to do so. The only restriction is that their exercise of a d a t rights must not conflict with the objectives spelled out in the BFL and its regulations. Thus, within state forest areas, regional community rights are valid to the extent that they exist, and to the extent that they do not conflict with the provisions and implementing regulations of the BFL.

The prevailing interpretation of Article 5 of the BFL, however, undermines a d a t property rights. It reinforces the power and ultimate authority of the state over forest areas and the natural resources they contain. Article 5 states that " A l l forests within the territory of Republic Indonesia, including the natural resources they contain, are taken

142 Sandra Moniaga

charge of by the State." This grant of authority is invoked by the Minis try of Forestry as giving it the power to plan, designate, reserve, and use forests in order to benefit the people and the state.22 A problem arises with paragraph (c) of Article 5. It empowers the state to "determine and regulate legal relations between individuals or corporate bodies and forests, and deal with legal activities related to the forests."

Paragraph (c) is interpreted as providing the state with authority to regulate all legal relationships, including a d a t property rights, pertaining to forest utilization. This flat grant of power should be limited to regulation of corporate bodies using or managing forests, including Indonesian businesses, foreign corporations, Indonesian citizens, or other corporate bodies. It would also be applicable to individuals and forest communities that do not possess a d a t property rights. In other words, it may mean that the state may initiate forest utilization contracts or tenurial arrangements with local communities of forest farmers that have fulfilled the requirements of legal incorporation, but this is unclear. Another troublesome provision in the BFL is Article 1(4), which provides that "the forest lands' determination is to be controlled and defended by the Ministry of Forestry."

The process of forest land determination has two implications: some lands that already have statutory titles become private forest, but lands that have no statutory title and have never been officially claimed by or titled to an owner can be classified as state forest. This includes clan-owned forest, regional forests, autonomous state forests, and areas covered a p r i o r i by a d a t property rights. A s a result, lands commonly managed and owned by indigenous communities are often designated as state-owned forest land without their knowledge and perhaps without any intention from the decision-makers and development planners who do not understand the local a d a t system. The foregoing provisions in the BFL should be interpreted to mean that the Minister of Forestry may d e s i g n a t e forest lands by forest function, but may only declare forest ownership based on existing ownership status of the land, including a d a t - b a s e d ownership. The Ministry of Forestry, however, has gone further than just designating forest lands based on forest function or purpose. With the authority to classify, manage, and utilize forest lands (both in state and private forest), the ministry operates as if it were the owner of the forest (e.g., see Weinstock 1990; Cendrawasih University 1990; Rintuh 1991a, 1991b).

Another point stated in the official explanation of the Basic Forestry Law is that (italics added) " A l l activities exploiting the natural richness of Indonesia which materialize in the form of the forest are aimed to develop the national economy i n t h e s h o r t e s t p e r i o d p o s s i b l e , so that we can achieve the national goal to develop a just society, and, if needed, t h e g o v e r n m e n t may p r o v i d e necessary f a c i l i t i e s . " 1 3


Indigenous forest dwellers have not yet been able to participate in forestry-sector development. Instead of seeing them as the main actors who should be primarily supported by the Ministry of Forestry, they are more often seen as k e l o m p o k m a s y a r a k a t y a n g hams d i b i n a — communities that need to be developed in a top-down fashion. The extension and intensification of state authority over rural communities and resources have, in many cases, placed property rights in the hands of government agencies and corporations that lack either the wi l l or the means to manage forests in a sustainable manner. Through this process the communities lose the authority to restrict use of the state forest, while the forestry ministry lacks the organizational capacity to control access (Poffenberger 1990e).

Fortunately from a legal viewpoint, the government has not yet made any national declaration as to which forested land areas in the Outer Islands are to be classified as state forest and which areas are to be classified as private property forests. Without baseline data on landownership, it is impossible to make such decisions. The absence of definitive declaration, however, raises the possibility that the Ministry of Forestry might yet comply with the spirit and the words of the Constitution and thereby contribute to management of the forests for the people.

Toward a Policy of Recognition

The Republic of Indonesia's Constitution states that Indonesia is a democratic nation. The Constitution also recognizes that state control of natural resources is meant to promote the people's welfare. National integrity and security can best be promoted if there is no oppression of the rural poor and when there is solidarity between all different ethnic groups (Swasono 1990).

The Constitution's recognition that the management of land, forest, and other natural resources is to be for the benefit of the Indonesian people is a value rooted in the nation's indigenous cultures. It provides no basis for ignoring or abolishing a d a t property rights. Rather, it is, among other things, a constitutional mandate to recognize the a d a t property rights of indigenous forest dwellers so that they wi l l be able to use their unique local knowledge and experience to promote better land and forest management, and thereby benefit all Indonesian people.

As demonstrated in the foregoing discussion, major statutory laws that support this constitutional mandate include the Agrarian Basic Law, the Environmental Basic Act, and, to a certain extent, the Basic Forestry Law. The Agrarian Basic Act was enacted to rid the nation of a colonial and feudalistic pattern of landholding. 2 4 It provides a statutory

144 Sandra Moniaga

basis for recognizing, delineating, and protecting a d a t property rights. It should not, and constitutionally cannot, be interpreted to mean that unless indigenous forest dwellers have registered their a d a t property rights, they have no rights to local resources that are recognized by the Indonesian government.

These laws provide a basis for recognizing the a d a t property rights of citizens, including indigenous forest dwellers, who have been managing natural resources in sustainable ways. Pending amendment of existing forestry laws, however, there is a need to interpret existing national laws in a way that mandates the recognition, protection, and delineation of the a d a t rights of indigenous forest dwellers. This interpretation would require (1) recognizing a d a t rights to the land and forest resources; (2) delineating traditional boundaries and clearly defining the indigenous communities' property territories within forest land; and (3) assisting indigenous and other forest dwellers in their efforts to sustainably manage forest resources.

The major conclusion of this paper is that the recognition of private property (hak m i l i k ) , community rights ( h a k - h a k m a s y a r a k a t ) , and customary law ( h u k a m a d a t ) rights are acknowledged in the Basic Forestry Law. 2 5 To date, however, this recognition exists largely on a theoretical level. There are no implementing laws, and therefore the recognition lacks substance and effectiveness.

Recognition of adat property rights must be integrated into both substantive and procedural laws, 2 6 and there should be a clear mechanism to administer sanctions against violations of these rights. Because there is no sanction clause against any violations of adat rights in forestry laws, what is meant by recognition? In most cases, where the indigenous common property rights ( t a n a h u l a y a t ) overlap with H P H s or other legal tenure, it is difficult for local people to get their land back 2 7 A n d again, if a d a t rights are recognized, why have owners never been consulted about activities related to their properties?

With regard to strengthening the legal position of communities, the Ford Foundation's experiences with constructive engagement in social forestry in Indonesia have been disappointing. In the Java and Outer Islands program, the range of rights and responsibilities that the state has been willing to devolve has been very limited (Seymour and Rutherford 1990). As demonstrated by the Java and Biak cases, forestry officials are capable of verbally supporting the concept of community rights while passively resisting any means for recognition thereof.

Indigenous forest dwellers have been practicing community resource management for centuries. They contribute to the economic well-being of their local communities, as well as to the well-being of the whole nation. By growing paddy rice on their farms, sago palm in t h e


dusun sagu, and sweet potatoes, they have contributed to national efforts to achieve food security and self-sufficiency. Without support from any agricultural extension services, they have been cultivating rattan, rubber, and t e n g k a w a n g , raising honey bees, and collecting swallow nests. Most indigenous forest dwellers have also been managing the resources communally—a fact, however, that does not imply the absence of individual customary rights.

Therefore, an Indonesian policy of recognizing a d a t property rights should not be based solely on equity considerations, but should also be based on environmental and economic considerations (Lynch 1990:11). With government support, indigenous forest dwellers wil l better help the nation in protecting forest resources and providing for their own livelihoods.

Mechanics of Delineation

Since most indigenous forest communities have never documented or registered their a d a t property rights, it is necessary to delineate their territorial perimeters. Delineation wi l l put outsiders on notice that the area within the perimeter is not available for settlement or the extraction of forest products. This wi l l lessen the growing demographic and commercial pressures on the nation's forests.

Many communities have clear ideas about their customary boundaries, including their communal perimeters. Some of them even have village maps drawn during the colonial era with the help of Dutch officials. Other groups wi l l need assistance in identifying their territorial limits.

In areas where migrants have established overlapping claims, procedures wi l l have to be established for resolving disputes. Migrants using land and resources within the territories of indigenous communities (i.e., under the h a k u l a y a t ) , however, should be bound by the customary property rules of the concerned indigenous community, as well as by customary laws concerning other civil "transactions."

Delineation activities could be performed, in close consultation with the communities concerned, by an independent group or task force comprising officials from the Badan National Land Board (BPN) and the Ministry of Forestry's Office of Forest Inventory and Use (INTAG), the Ministry of Agriculture, and the State Ministry for Environment and Population. Task force activities on local levels should involve local community leaders, local non-governmental groups, and academics. 2 8

146 Sandra Moniaga

The delineation process must be consultative and involve all stakeholders in a k ind of m u s y a w a r a h process. Resources to be covered include cultivated lands, fallowed lands, orchards, burial grounds, ritual/sacred places, community hunting grounds, as well as other areas that the community can prove have been sustainably maintained and used and for how long. Migrants who have been using forest resources in environmentally sustainable ways outside of indigenous territories should also be provided security of tenure.

Communal Presumption and Related Considerations

Consistent with the essence of indigenous community resource management, it is important to focus on the community land ( t a n a h -t a n a h adat) delineation at the beginning. Community territories wi l l sometimes overlap with dusun or k a m p u n g areas.

Facilitating the communities rather than individuals wi l l also minimize costs and opportunity for fraud and cultural disruptions, and simultaneously promote local-level empowerment. The t a n a h a d a t , therefore, should be presumed to be communally owned and inalienable outside of the community. This presumption should remain binding until and unless a majority within the community express a clear preference for individual certificates of title. 2 9

Each ethnic ( s u k u ) group has its own unique a d a t system. For this delineation process to work, each community needs to work within its own a d a t system to identify its boundaries and needs to recognize the boundaries established by other groups according to their a d a t systems.

Important Role of the Forestry Department

Meaningful recognition of a d a t property rights wi l l not negate the important role of the Indonesian Forestry Department in managing forest resources. It is clear that not all classified forest lands overlap with a d a t property rights. Many a d a t leaders, furthermore, understand the nation's need to use the forests. They also understand that government agencies are responsible for forestry management with the authority to classify forests and other natural resources.

But indigenous forest dwellers cannot understand and accept this authority if this classification wil l prevent them from participating in managing the natural, or forest, resources. They likewise expect the government to recognize that many forest dwellers are not only con-


cerned about sustainable management, but they are already sustainably managing forest resources.

In this regard, the Forestry Department is expected to continue playing an important role as forest managers, but not as the owners of all the nation's forests. The Forestry Department should coordinate with other government agencies in developing integrated natural resource management based on the upcoming Zoning Bil l ( R a n c a n g a n U n d a n g -u n d a n g Tata Ruang—RUTR). The department should also provide technical support to local communities in developing community forest industries. Finally, the department should become a neutral agent in all disputes between forest dwellers and concessionaires. Recognition of a d a t rights to forest lands wi l l help the government monitor existing forest concessions.

With these basic principles in mind, there is a need to review the latest version of the National Forestry Action Plan (NFAP) prepared by the Forestry Department, as well as the Basic Forestry Law, including the implementation of its regulations. 3 0

Conclusion

Indonesia is experiencing rapid deforestation; one of the primary reasons is the lack of fairness displayed by the national government and the conventional forestry sector toward tens of millions of forest dwellers, especially indigenous people. In a nation noted for its richness of cultures, forestry laws and policies should not be biased in favor of uniform, capital-intensive exploitation of forest resources. Forest laws and policies should also accommodate the rights and claims of forest-dependent communities to promote an ideal value system (tata n i l a i y a n g ideal), by way of equitable and environmentally sound development processes.

Unless there is legal recognition of customary property rights ( h a k -h a k a d a t ) over natural resources and greater appreciation of indigenous resource management systems, "social forestry" or "community forestry" wi l l fail to promote the well-being of many forest dwellers or the sustainable development of the nation's forest resources. The effort to promote recognition of indigenous people's rights should be seen as part of a broader, ongoing campaign to implement the democratic vision ensconced in the Constitution of Indonesia.

148 Sandra Moniaga

Endnotes

1. See Basic Forestry Act 5/1967, Articles 13 and 14; Government Regulation (GR) 28/1970 on Basic Regulation for HPHs; GR 7/1990 on Timber Estate Concession; and the following Ministry of Forestry Decrees: 687/Kpts-II/1989 on Nature Tourism; 556/Kpts-071989 for Endangered and Protected Species Utilization; 196/Kpts-II/1986 on Livestock Grazing and Staple Collection/Gathering in Forest Land; 148/Kpts-l1/1989 on Rattan Plantation Concession; 208/Kpts-11/1989 on Rattan Extraction Right.

2. Other types of concessions granted by the Ministry of Forestry include timber-cutting permits, timber estate concessions, rattan plantation concessions, rattan extraction rights, nature tourism utilization permit, permits to hunt, own, and/or transport protected endangered species, and permits for livestock grazing and fodder collection. Most rights are granted by the Central Office of the Forestry Department, after consultation with the concerned provincial government. The beneficiaries are usually private or state-owned companies, and occasionally cooperatives. Rattan plantation and extraction rights can be granted by the Provincial Forestry Office and beneficiaries may include farmers' associations and individuals.

3. See, e.g., the Foreign Investment Act (FIA) 1/1967 and the Domestic Investment Act (DIA).

4. GR 28/1985 for Forest Protection and Biological Resource, and Ecosystem Conservation Act 5/1990.

5. Ministry of Forestry Decree 687/Kpts-ll/1989.

6. Article 1(4) and Article 3.

7. See GR 33/1970.

8. RePPProt is a joint project with the government of Indonesia's Transmigration Department, the Land Resources Department, and the Natural Research Institute, ODA, London. The project uses LANDSAT data to map land cover.

9. The recent RePPProt studies did not clearly differentiate primary forests from logged-over areas. These studies calculated that 63% of the 1,909,051 km1 total land area of Indonesia is still forested, either intact or logged forests (Pramono 1991).

10. Poffenberger has since raised his estimate to 60-65 million people (pers. com. 1991).

11. Lynch and Talbot (1988) described how government officials in the Philippines underestimated the number of people who reside on classified "public" forest lands and classified "public" lands at 1,327,359 occupants, while an independent researcher calculated the forest zone population to be 14.4 million as of 1980.

12. Environmental Management Basic Act (EMBA) 4/1982.

13. No. 5/1990. Article 37 states that people's participation is to be guided and mobilized by the government.


14. GR No. 29/1986.

15. Biological Resource and Ecosystem Conservation Act 5/1990.

16. Forestry Minister Ir. Hasjrul Harahap often cites these programs during his public presentations.

17. A study conducted by University Palangkaraya, Central Kalimantan, reported that in one village 87% of the population had no knowledge of the Agrarian Basic Act 5/1960.

18. Some communities have started mapping their land boundaries with cooperation from local churches and NGOs. Other communities already have maps that were made during the Dutch period; but in most communities, respected leaders from communities and from neighboring communities know the procedures of delineation that fit within their customs.

19. Article 1, Sections 1 and 2.

20. Decree 361/Kpts-VI 1/90.

21. The decree was designed, however, to promote agroindustries on denuded forest lands and on critical lands.

22. Article 5, Section (2a), as translated by Charles Zemer.

23. Official explanation of FBA 5/1967, paragraph 18.

24. See notes of debates for developing the Agrarian Basic Act 5/1960.

25. See Forestry Basic Act 5/1967, Article 2(2) and Article 17.

26. See the following Agricultural Ministerial Decrees: 837/Kpts/Um/ll/1980 on Criteria for Establishing Protection Forests; 683/Kpts/Um/8/1981 on Criteria for Establishing Production Forests; 681 /Kpts/Um/8/1981 on Criteria for Establishing Nature Reserves; 682/Kpts/Um/8/1981 on Criteria for Establishing Optimal Forest Areas and Conversion Forest Areas; 680/Kpts/Um/8/1981 on Guidelines for Consensus Forest Land Use Plan (TGHK).

27. The cases in Parieri on Biak, Irian Jaya, and in Bentian Besar, East Kalimantan, are good examples (Pantir 1991).

28. For several years the State Ministry of Environment and Population has been helping the President award Kalpataru Awards on 5 June (Environmental Day). Some awards have been given to communities who manage their resources (environment) with their adat institutions in a sustainable manner. For a comparative situation in the Philippines, see DENR Special Orders 31 and 31A, 1990, regarding creation of the Task Force for Acceptance, Identification, Evaluation, and Delineation of Ancestral Domain, and the rules in DENR Department Circular 03, 1990.

29. For more discussion of these concepts as applied in the Philippine context, see Lynch and Talbott (1988).


30. Special attention in this regard should be given to the Proprietary/Private Forest Recognition implementing regulations and to the General Forestry Procedural Law [ H u k u m A c a r a K e h u t a n a n ) for forest planning, management, forest utilization/harvesting/production, and forest protection.

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12. D I F F E R E N T I A L A C C E S S T O R E S O U R C E S A N D C O N F L I C T R E S O L U T I O N I N A FOREST

C O N C E S S I O N I N I R I A N JAYA 1

I w a n T j i t r a d j a j a

Conflicts between local forest-dwelling people and logging concessionaires have been widely reported in the Indonesian Outer Islands.2

However, our knowledge and understanding about such conflicts is still limited, since little field research has documented the nature and concrete forms of such conflicts or analyzed the processes and mechanisms by which such conflicts develop and are settled.3 This paper is a contribution to our understanding of these questions. In it are presented some findings of recent fieldwork 4 among two forest-dwelling communities within a concession area in Jayapura District, Irian Jaya. These findings not only add substantial evidence to such reports but also show that conflicts among villagers themselves have occurred as a result of the presence of the timber company and its activities.

Villagers, Military, and Concessionaire

The following is a brief introduction on the communities studied: Tab-beyan and Sentosa, two of many village communities (in the subdis-tricts of Demta, Nimboran, Bonggo, Unurumguay, and Kaureh) whose settlements and forest lands overlap with the PT.YLS (You L i m Sari) concession area.

Tabbeyan and Sentosa were officially established as administrative villages, the former in the subdistrict of Kaureh and the latter in the subdistrict of Unurumguay, in 1978.5 The villages at that time consisted of several nearby scattered clan settlements of about 50-75 people or 15-20 nuclear families. Under the tribal community welfare assistance project launched by the Department of Social Affairs in 1983/84 and 1984/85, the families were resettled in two main village settlements. The Tabbeyan village settlement was built on a former clan settlement area called Taja, and the Sentosa settlement, on an area known as Jadam. Many families, however, refused to be resettled because their gardens, sago, and forest lands would be farther away and make access more difficult. Only after they were guaranteed access to extracting sago palms, opening gardens in the surrounding forest area, and constraints on the use of military force were they convinced to resettle in the new village settlements.

152 I w a n Tjitradjaja

Soon after the people were resettled, the military, which played a major role in the resettlement, established a permanent post in Tabbeyan. Other military posts in neighboring areas were also established. In the military view, the resettlement and the establishment of posts were strategically helpful to suppress the Free Papuan Organization (Or-ganisasi Papua Merdeka—OPM) rebellion movement, active in the area since the mid-1970s. In 1977 a former leader and some residents of Tabbeyan village reportedly went into the forest and joined the rebels. Also according to reports, in 1988 two rebels were caught in the Tabbeyan forest area. The military suspects that the O P M rebels still run their operations in the area.

The military has been cautious and sometimes suspicious in its approach to the local people. The military put some restrictions on the villagers' mobility. Villagers who planned to travel out of the village for hunting or visits had to acquire permission from the post. Villagers were also asked to report to the posts if they spotted rebels. With the purpose of maintaining order in village life, the military has interfered with various village affairs such as teaching the village school children when the teachers were absent, ordering and supervising public works, supervising the distribution of various but trivial government aid among the villagers, and managing the settlement of local conflicts mainly related to the depletion of sago palms, land trespassing, and acts of adultery. Most villagers expressed fear of and sometimes hatred toward the military, for the military often used force in dealing with them.

Forest ownership is vested in several patrilineal and exogamous clans. A person has access to forest resources belonging to his/her clan, mother's clan, grandmother's clan, and wife's or husband's clan. 6 Access to forest resources can be gained by nonmembers through use permits granted by the heads of the clans (ondoafi). Forest resource access has been distributed and controlled by the ondoafi and jealously guarded by clan members. In the old days, the clan members could severely punish those caught trespassing, but now punishment of trespassers by resource owners has been banned by the military. The owners can only chase away the trespassers wi th harsh words; if fighting occurs, the military steps in .

PT.YLS, the joint Indonesian-Korean timber company established in 1983, entered forest claimed by the Sentosa and Tabbeyan villagers in mid-1989.7 This was followed by a spontaneous migration of Sentosa villagers from Jadam to Uh l i in late 1989. The villagers built houses on a sizable, cleared former PT.YLS camp area, along both sides of the corridor about 49.5-50.5 km from Demta. By mid-1980, all Sentosa villagers except 36 elderly and handicapped persons had moved down from Jadam to the area. Many villagers who were not members of the Tar-

forest Concession i n Irian Jaya 153

gulam clan (to which forest resources in Uhl i and its adjacent area belonged) still went back and forth to their forest lands in the vicinity of Jadam for sago and other forest products, however, because the head of the Targulam clan only allowed them to use the forest lands surrounding Uhl i for small gardens.

At the time of the fieldwork reported here, mid-November 1990 to mid-Apri l 1991, the Tabbeyan village settlement was still located at Taja some 20 km north of the PT.YLS base camp, which was situated along both sides of the corridor some 58 km south of Demta seaport; the Sentosa village settlement in U h l i was located just 8 k m south of the base camp. From the city of Jayapura, the settlements of these adjacent v i l lages could be reached by land transportation in approximately 4 hours. The 365 Tabbeyan villagers and 295 Sentosa villagers still rely on sago extraction, food gathering, gardening, and hunting as their principal means of subsistence.

The presence of PT.YLS and its activities in the area have generated social tensions and conflicts between the villagers and PT.YLS and among the villagers themselves.

Conflicts Between Villagers and Concessionaire

From the first week of fieldwork, during meetings, visits, and talks with the Tabbeyan and Sentosa villagers, repeated complaints and expressions of resentment against PT.YLS were recorded. The villagers perceived that PT.YLS officials had not fulfilled promises made to the people; that PT.YLS logging activities had resulted in the destruction of a sizable area of forest upon which the villagers' livelihood depended; and that PT.YLS, as an employer, had treated workers unfairly and arbitrarily The villagers expressed these grievances individually to PT.YLS officials and collectively to the local military representatives. However, that did not lead to negotiation of a settlement to the advantage of the aggrieved villagers, or to both the villagers and PT.YLS. The conflicts were unlikely to develop into violent acts by the villagers due to the presence of the local military, whom the villagers perceive as PT.YLS supporters.

The villagers complained that PT.YLS officials had made promises to representatives of all the villages affected by their road-building and logging activities without the intention of fulfilling them. The grounds for complaints are reflected by the experience of A p u , head of Tabbeyan village. A p u and five other clan leaders were invited by PT.YLS to a meeting on 1 June 1989 at the PT.YLS base camp, in the presence of two commanders of the local military posts. At the meeting, a PT.YLS


spokesperson asked for the villagers' approval to open the road and start logging in a forest area claimed by the village. In response, A p u , representing the clan leaders, demanded that PT.YLS build a road connecting the logging road to the village settlement at Taja and pay monetary compensation to the village. The PT.YLS spokesperson agreed to these demands at once and promised to fulfill them later when PT.YLS began operations. The spokesperson then asked A p u and the other clan leaders to endorse a letter of agreement. A p u refused, however, because the letter d id not contain their demands. ( A p u is one of the few Tabbeyan villagers who can read and write—though poorly—the Indonesian language.)

Soon after the meeting, PT.YLS started to cut the villagers' forest without paying monetary compensation. Many villagers repeatedly complained about damage caused by the PT.YLS operating machinery, and told how their rattans had been destroyed and game animals had disappeared. Since PT.YLS started their logging activities in the area, hunted animals have reportedly become more difficult to find in the adjacent forest. A p u requested several times without success that the PT.YLS officials fulfill their promises. 8 H e expressed doubt that PT.YLS would give any attention to his demands after he saw a copy of a letter from the Kaureh district head to PT.YLS dated 9 July 1990. The letter revealed that even the district head complained about the indifferent and slow response he received from PT.YLS, although he had come to the base camp office to ask for the payment of honoraria to h im and other members of the district governing body.

Apu's doubt about the villages receiving monetary compensation also seems to be justified by the content of the following conversation between a logger and A n d u , a villager, who encountered a surveyor in September 1990 on his forest land. According to A n d u , he stopped the surveyor because he perceived that the man was trespassing on his property. The man tried to run away. A n d u chased and successfully persuaded h im to come along to have a proper talk with the head of his clan, to which the forest area belonged. A n d u nonetheless admitted that at the time he was frightened at the prospect of losing the surveyor, who, he thought, would then report h im to the military as a rebel ( o r a n g hutan—literally "forest person"). O n the way to see his clan head, A n d u had a rare argumentative conversation with the surveyor, which reflected the unbridgeable positions of both parties. The following is an edited version of Andu's narration.

On our way to see Pebu, head of my clan, Mr. Lin was surprised to find a very big agathis tree {Agathis spp.). He asked who owned the tree and the forest. I told him it belonged to me. He asked how much was the tree if I wanted to sell it to him. I said two million

Forest Concession i n Irian Jaya 155

rupiahs. With a surprised look, he said that it was too expensive, that he could not afford it but he would, anyway, cut it down in the future. I told him that he could not do it unless he paid the two million rupiahs. He replied that he had paid five billion rupiahs to the governor and the head of jayapura district, so he had the right to cut the tree. I said that the governor and the district head were Sentani and Tobati people, and therefore, he could go to Sentani and Tobati and cut their trees. He then tried to persuade me by telling me that his company planned to build the road to the agathis forest, and if my people went along with that, his company would build a plywood factory, thus a city, in the forest. To that, again, 1 just said that he could go and cut the Sentani and Tobati trees.

The villagers7 complaints about not receiving monetary compensation for their destroyed forest lands did not subside, although PT.YLS had allocated and paid Rp 50,000 monthly honoraria to the villages since October 1990. PT.YLS seemingly regarded the payment of the monthly honoraria to village representatives affected by their activities as a practical necessity to avoid hostile relations with the villagers. A s wi l l be shown, the honoraria that were supposedly distributed in turn among heads of the village clans have induced suspicion and disagreement among the clan heads and their members.

Most villagers perceived that PT.YLS had trespassed on their property. In the old days, elderly informants explained, trespassers, if caught, would be severely punished. A garden owner could shoot a trespasser, and even ki l l h im with his arrows. In the same way, a holder of forest-use rights could punish a trespassing hunter. It was not infrequent that a trespassing incident could lead to a clan or v i l lage war. It was, therefore, rather curious that the villagers did not confront PT.YLS, their perceived trespasser, in a hostile manner, or take matters into their own hands.

The villagers expressed their fear of confronting PT.YLS. Still fresh in their memories was an incident in 1989 when Yunug, a Sentosa v i l lager, aggrieved by logging in his forest, went to the PT.YLS base camp office. Angri ly he confronted the loggers. He told them to stop logging and building logging roads deep into the forest. Frightened by Yunug's hostility, the loggers then reported to the base camp military and asked the military to deal with h im. Yunug was harshly beaten by the mil itary, temporarily detained in the military base camp, and then sent to the military battalion headquarters at Sentani before he was released. This incident has intimidated the villagers from confronting the loggers again.

Employment termination of local employees by PT.YLS is another basis for villager grievances against the company. Boda, Osmas, and


Jasom were among 35 villagers who lost their jobs at PT.YLS. They felt that their dismissal was an example of PT.YLS's unfair treatment of local employees. PT.YLS officials explained that they discharged the v i l lagers from their positions as security guards because of undisciplined acts. A n inspector found that they were frequently absent from duty posts without permission. The villagers, however, regarded PT.YLS as unfair in terrninating their employment, because they felt that they did no wrong leaving their posts for gardening or other subsistence activities; after all, they and their families had to eat. Since then, they expressed their resentment against PT.YLS and sometimes even against their fellow villagers still working for PT.YLS, who numbered 39 as of A p r i l 1991.

Knowing that direct attempts to make PT.YLS negotiate a settlement were ineffective, the villagers collectively communicated their grievances to the local military. In Apr i l 1991, male adult residents of Tabbeyan village met with the commander of the Tabbeyan military post. The post commander, a young, freshly graduated army officer, asked the village head and the village clan leaders to voice their grievances and demands to PT.YLS without reservation. They all, in similar tones, complained about their destroyed forest lands and expressed worry that they could not sustain their livelihood in the future. They asked the commander to support their demand that P T Y L S compensate the village with Rp 20 mill ion (initially they asked for Rp 10 mill ion, but after the commander asked them again about the amount, they came up with Rp 20 million, anticipating that if PT.YLS would bargain, they might still get the Rp 10 million) plus one pickup truck and two chainsaws. They also asked the post commander to help place boundary signs around their remaining unlogged forest to prevent PT.YLS from trespassing. The commander said that he did not have the authority to tell PT.YLS what to do, but that he would report their complaints and demands to his superior officer. Also he said that he did not object to sending his subordinates to accompany them when they wanted to put up the boundary signs. Before closing the meeting, the commander asked the villagers to be good residents and to report to him if they saw rebels or suspicious people in the village and its adjacent area. The result of this meeting is not yet known.

Conflicts Among the Villagers Themselves

Conflicts among the villagers themselves have also occurred because of PT.YLS presence and their activities. Many conflicts have arisen from competition for the limited job vacancies at PT.YLS and from land

Forest Concession in Irian j a y a 157

trespassing induced by the arrival of outside hunters. Such conflicts tended to escalate into disputes and hostility and involve a third party in settling conflicts.

The logging road has made it easier for the villagers to travel to and from the city of Jayapura and some adjacent district capitals, and for outsiders (e.g., traders and hunters) to reach the villages. The v i l lagers have become more exposed to market forces and now want commodities that they previously did not even think about. Money has become more important: The money that some villagers formerly made from selling garden produce or by hunting and trapping animals was trivial. Work at PT.YLS became the single, most attractive source of cash income. Jobs that were available for them were as security guards, field surveyors, and field laborers. Vacancies were limited and competition for jobs among the villagers could not be avoided. For example, Boda, a Tabbeyan villager, rebuked and chased away a Sentosa villager who worked as a night security guard for PT.YLS protecting logging equipment. The equipment had been temporarily placed on Boda's forest land. Boda came and rebuked him on the spot: 'Th is is not your place; go back to where you belong." Boda came to the PT.YLS base camp office and told the officials that the area belonged to him, so it was he or his son who had the right to work as a security guard there. The Sentosa villager was dismissed and both Boda and his son were accepted by PT.YLS as his replacements, although later they were dismissed because of their undisciplined action.

Conflict among the villagers also occurred because outside hunters began using the logging access roads to roam through the forest. Villagers reported that since PT.YLS started its activities in the area, an increasing number of outside hunters had come in . The researchers met two groups of hunters on different occasions during their stay in the villages. These hunters had military permission to hunt in the surrounding forest. (The researchers had the impression that the hunters also had military support and cooperation.) The leader of one group of hunters boasted to the researchers that they had a hunting permit from the Department of Forestry in Jakarta. The local military then asked some villagers to be the hunters' guides and take them into the forest area where game animals, especially bird species, could be found. Since the forest was not an open-access resource, but rather was customarily divided into areas over which ownership and use rights belong to different clans and families, the hunters trespassed on someone's property wherever in the forest the local guides took them. However, the vi l lagers whose property was trespassed did not dare confront the hunters, who they perceived had military support. A l l they could do with their grievances was to confront their fellow villagers who had guided the hunters. There has been a significant number of such cases.


Potential conflict among village members may arise from their suspicion of fellow villagers who deliberately lay claim to forest that does not belong to them in order to get monetary compensation from PT.YLS. This relates to the villagers' lack of understanding about how monthly honorarium was allocated and paid by PT.YLS to the village clan leaders. For example, Pias, a village official who belonged to the Somobra clan, made the accusation that Sisar, head of the Sarwa clan, had received Rp 1.5 mill ion compensation for trees chopped down by PT.YLS in a forest area belonging to the Somobra clan. (It was unclear how Pias came up with the Rp 1.5 mill ion figure.) Pias was suspicious of Sisar after Pias, representing the head of his clan, was refused an Rp 50,000 monthly village honorarium by a PT.YLS official in December 1990. The official said he had already paid the compensation money to Sisar earlier that month. Pias concluded that Sisar had taken all the compensation money for himself.

Pias brought his accusation to the head and members of his clan whose logged forest area was the largest among those belonging to other clans. However, neither he nor other members of his clan confronted Sisar. Likewise, although Sisar knew that many villagers talked about him receiving Rp 1.5 million from PT.YLS, he chose not to confront Pias. Sisar has withdrawn from social mingling, spending much of his time at home, stating that sooner or later the villagers would know what really happened.

Sisar told one of the researchers who visited him that he did receive some money but not as much as Pias accused h im of taking. Earlier that month at the village entrance, he met Mr. C g from PT.YLS who asked h im to tell A p u , the head of the village, to come to the office the next day to get the village monthly honorarium. Sisar went to see A p u , who he found was i l l . Sisar told A p u that he would go to the office to pick up the money Sisar went to the office the next day and was told about the monthly honorarium that would be received in turn by leaders of the village clans every month. Sisar then was given Rp 100,000 and was asked to endorse a receipt of the payment for October and November. He was told that the December payment would be paid by PT.YLS early the next month (January 1991).

In January 1991, Pias went back to the PT.YLS office and received the monthly honorarium. Talk among the villagers that Sisar had taken money he did not deserve had begun fading away when the researchers left the village in mid-Apri l 1991. It was unclear to the researchers why A p u did not try to defend Sisar.

Forest Concession in Irian Jaya 159

Conclusion

This study shows that conflicts have occurred between the villagers and the concessionaire over the villagers' claims for compensation for "their" forest destroyed by logging activities. As discussed, the villagers' unsuccessful attempts to bring the concessionaire into negotiation for a settlement were related to their having little bargaining power and no access to national conflict-resolution forums. An institutional vacuum surrounded the relationship between the concessionaire and local communities. These conflicts have not tended to escalate into hostilities because of the presence and occasional intervention of the military.

The case study also shows that disputes have arisen among members of the local communities because of land trespassing for hunting, facilitated by the availability of logging roads, and because of competition for work opportunities at the timber company. The local military and the concessionaire played a major role in settling such disputes, which indicates that the legitimacy of the conflict management institutions has been declining.

Finally, this case study suggests that one of the most urgent problems faced by forest-dwelling communities in the concession areas is an institutional one: gaining access to national conflict-resolution forums. Although they may be allowed access to such forums, this may not do the local people any good if local interests and needs do not have a place in the national policies or authoritative systems that give meaning to the nationwide institutional frameworks.9 In cases such as the one studied, the answer to the problem would likely require "special treatment" from the government.

Endnotes

1. This article was first published in Ekonesia 1(1): 58-69 (1993).

2. Some policy analysts (e.g., Zemer 1990; Gillis 1988) argue that such conflicts result from conflicts in the Indonesian law itself, and from a bias against forest-dwelling communities in government policies. The government granted many areas under previously existing customary rights as forest production concessions. As a result, "the rights assigned to timber concessionaires conflict with the rights of the local people. By restricting access to land formerly used by the local people, the concessions caused resentment and encouraged excess timber harvests by local people within timber concession areas" (Gillis 1988:49). Curiously, the issue has not been covered in the mass media until recently, although there have been many forest concessions since the 1970s.

3. For example, Mubyarto et al. (1991) report, without providing concrete data in detail, that conflicts between the villagers and concessionaires have taken place in East Kalimantan.

160 Iwan Tjitradjaja

4. The research was sponsored and funded by the Department of Forestry, Republic of Indonesia, and the Ford Foundation. The fieldwork was carried out from mid-November 1990 to mid-April 1991, involving seven fieldworkers from the University of Indonesia, Cenderawasih University, Fajar Timur Theological Institute, and the Regional Planning and Development Agency of Irian Jaya.

5. See Governor of Irian Jaya Province Decision Letter No. 155/GIJ/1978 (Surat Keputu-san Gubernur Kepala Daerah Tingkat I Irian Jaya Nomor 155/GIJ/1978).

6. That the local arrangements allow a person access to forest resources belonging to his/her clan, mother's clan, grandmother's clan, and wife's and husband's clan might relate to the fact that there have been extensive social relationships among the various clans through marriage and the attendant exchange of presents. Members of a clan have tended to seek intermarriage with members of as many other different clans as possible within a large area. Marriage has commonly been patrilocal. There have been no clan houses; the newlyweds usually move into a house of their own (cf. van Baal 1953; Adim 1963).

7. PT.YLS was granted a 30-year concession to 367,000 ha of forest land in the district of Jayapura, Irian Jaya, with Forest Production Concession Decision Letter No. 147/Kpts-IV/84, 25 July 1984 (Surat Keputusan Hak Pengusahaan Hutan [SK.HPHJ Nomor 147/Kpts-IV/84, 25 July 1984). PT.YLS, however, had begun their road-building and logging activities earlier in January 1984 (see Korwa 1985). PT.YLS officially opened the logging port in March 1984 and the sawmill in April 1985 at Demta. In May 1986 they stopped activities for 2 years before proceeding again in May 1988.

8. A road connecting the Tabbeyan village settlement at Taja to the corridor (logging road) was finally opened by PT. Tuju Wali Wali in February 1991, as a part of the Taja-Lereh Road Development Project. For practical reasons, PT. Tuju Wali Wali subcontracted the work to PT.YLS.

9. Other authors (e.g., Bromley 1991; Zerner 1990; Poffenberger 1990e; McCay and Ache-son 1987) have argued about the incompatibility of national and local interests: how the government execution of national development policies has very often destroyed local institutional arrangements; and how the government's subsequent failure to replace the destroyed local-level authority systems with a nationwide institutional infrastructure has created an institutional vacuum. A situation where "the institutional foundations of the economy being ineffective in providing the secure basis of economic calculation over space and time, . . . (the) social sanctions and conventions regarding land and natural resource use are either absent, or contradictory" (Bromley 1991:15) has made mismanagement of forest resources and conflicts over their use a widespread and continuing problem in the developing countries.

161

13. THE PARIERI LAND DISPUTE: A CASE STUDY FROM BIAK

A u g u s t i n u s R u m a n s a r a a n d Decky R u m w a r o p e n

During t h e anti-colonial campaigns we were told that development would mean better l i v i n g conditions. Several years have gone by and all we see are people coming from t h e capital to w r i t e about us. For me t h e hoe and the water pot w h i c h carried my grandmother still remain my source of livelihood. When I work on the land and fetch water from the river, I know 1 can eat. But t h i s development y o u talk has yet to be seen in t h i s village (Durning 1989).

These words were spoken by a Kenyan woman more than a decade ago. She still has the opportunity to fetch water from the river or to work with her hoe on the land. Yet the people of Parieri and East Biak are forced to leave their soil, rivers, and forest in the name of "national development." As everywhere in the Third World countries, development that emphasizes only economic growth benefits only the "haves." As Durning (1989) also put it:

For the have-nots, food comes from the soil, water from the stream, fuel from the woods, traction from the ox, fodder from the pasture, reeds to make mats from the stream bank, fruits from the trees around the hut. Poor people know that to endanger any of these things is to imperil themselves and the lives of their offspring. Most villagers have a love of their native land, a desire to own land, and an intense attachment to their ancestral soil . . . a reverence for nature and toward habitat and ancestral ways.

Since development programs need land, the only economic resource of the people, land becomes a source of conflict between those who promote national development and the people who struggle to maintain their livelihood.

This paper attempts to describe the land dispute in Parieri between and among the government, logging companies, and the people concerning the status of the so-called "agathis complex," a name given by the Dutch to the agathis forest in East Biak which covers approximately 20,000 ha. Observations made in this paper are based on reports from the Irian Jaya Rural Community Development Foundation (Yayasan Pen-gembangan Masyarakat Desa Irian Jaya—YPMD-Irja), an N G O involved in the social forestry project at this pilot site (YPMD-Irja 1991), as well as on direct communications with local elderly people. We hope that this particular case contributes to a wider understanding of the range of problems behind land disputes, particularly why people resist to maintain their only economic resource for survival, and the need for

162 A u g u s t i n u s Rumansara and Decky Rumwaropen

regulations or laws to protect the people who are in a weak bargaining position.

General Features

L o c a t i o n a n d A d m i n i s t r a t i v e B o u n d a r i e s Parieri is a village located in the subdistrict of East Biak on the island of Biak, District of Teluk Cendrawasih in Irian Jaya, the easternmost province of Indonesia (see Figure 13.1). Parieri is connected by a 20-km car road with Biak town, the district capital (UNCEN 1990).

G e o g r a p h i c a l S e t t i n g a n d V e g e t a t i o n The soils of Biak are of coral origin, with calcareous appearance. Almost 90 percent of the soils on the island are classified as mediterranean, with a depth of about 20-30 cm. Only small areas, such as the agathis complex, have lateritic soils with a depth of more than 100 cm. The topography is hilly, with a specific composition of vegetation. At the top of the hills grow agathis ( A g a t h i s sp.) trees and other species such as k a y u besi ( I n t s i a sp.) and m a t o a (Fometia sp.). On the lower parts grow sago palm ( M e t r o x y l o n sp.), which depend on water provided by creeks flowing at the hill bases. The creeks provide an optimal ecosystem for growing sago, and destruction of vegetation on the upper part of the hills directly affects the water management system for the sago stands at the lower part of the hill.

H i s t o r i c a l B a c k g r o u n d Some authors claim that the economic importance of agathis for copal production became obvious when traders first came to Irian Jaya during the reign of Sultan Tidore in the nineteenth century. The tree's importance grew in the 1950s following Indonesia's independence from the Netherlands. To overcome the negative trade balance of the Netherlands New Guinea (now Irian Jaya), the Dutch government promoted export commodities including copal. Initially in the agathis complex at Parieri, copal was collected by the owners and then sold to Chinese traders. Later, in order to increase the quality, the Dutch government decided that the tapping of agathis trees and the collection of copal should be done by workers hired by Boswezen, the Dutch forestry department. An agreement with the landowners in 1959 gave responsibility for managing copal production to Boswezen and required the Dutch government to pay a royalty to the tree owners. According to existing documents, in 1959 there were about 21,000 trees, and the royalty to the landowners was about two Dutch guilders per kilogram of copal harvested.

Parieri Land Dispute 163

Figure 13.1 P a r i e r i a n d s u r r o u n d i n g a r e a , East B i a k .

The Dutch government realized that the agathis trees would eventually become unproductive and therefore made efforts to plant new trees, agreeing in 1956 to help landowners plant agathis.

After Irian Jaya was integrated into Indonesia in 1963, copal production and therefore copal export decreased ( U N C E N 1990). In the 1970s, instead of improving the agathis stands, the government offered the forest to a logging company, PT. Sukardi Parapance. In 1985, the govern-


ment of Indonesia through Dinas Kehutanan (the provincial Forestry Department) decided to implement a project called Hutan Tanaman In-dustri (HTI) (industrial forest), under which new agathis trees would be planted. This caused a series of protests from the people that continue today, because the land still belongs to the community in Parieri and other villages.

L a n d / P e o p l e R e l a t i o n s h i p s P o p u l a t i o n . The people living in this area belong to the Biak ethnic group, who inhabit islands such as Biak, Numfor, a part of Raja Ampat islands, as well as the northern coast of the Bird's Head peninsula. The Biak are a strong people focused toward survival, living as they do on very poor coral islands and largely dependent on food supplies from Japan and the Indonesian mainland.

In 1986 the total population of the subdistrict of East Biak was 9,065, with an agricultural density of 1.3 per ha (see Rumansara 1986). (This figure was based on the fact that the people living on the subdistrict's smaller islands actually also depend on the land of the main island, Biak.)

L a n d o w n e r s h i p . In this area and in Biak in general, land is owned communally. Only planted plants, particularly annual crops, are owned individually, usually by a nuclear family. Perennial crops can be owned by an extended family. Plants or trees which are not planted/cultivated are owned communally by a clan, which means that a tribal chief cannot make any land transactions on behalf of the clan.

Since Biak people are patriarchal, only men hold communal rights. If a woman marries into another clan, she has no such rights. Only if her husband dies, for example, or because of other specific reasons, can she and her family cultivate plants on a piece of her clan's land, although they cannot own the land. This is one source of land rights conflict, since after three or four generations there results a mixture of overlapping ownership boundaries. Traditionally, ownership disputes are solved by inviting the elders from other clans to decide the owner—a process called k a k a i n k a k a r a .

T r a d i t i o n a l l a n d use. Basically, two systems of land use are exercised by the people. The first is rotational shifting cultivation, where the secondary forest is cut down to cultivate annual crops. According to calculations of Rumansara (1986) based on the experience of people in this area, a family of five needs about 20 ha and a rotation interval of 10 years to sustain production. The actual rotation interval has decreased as the population has increased.

The second system is based around the ser, a permanent forest where people cultivate their sago and fruit trees. In the past the agathis


complex was the ser. The second form of land use has a more stable ecosystem, and it functions as a food supply buffer for the people. If, for example because of a windy season, people cannot get their sago from Japan, or a long dry season causes annual crops to fail, the ser is the only place they can go to get their food. If a family cannot live from the wage the husband receives as a worker in the city, the family can always get its food supply (sago) from the ser. It follows that the people have a life-or-death relationship with their ser and give a lot of care to it.

The Parieri Land Dispute

Writers have identified three land disputes in Parieri since 1956 (Rumansara 1986; Werinussi 1989; UNGEN1990). The first was when Boswezen made a 25-year agreement with landowners to collect copal from their agathis trees. After the integration of Irian Jaya to Indonesia, this agreement was continued by the Indonesian government, although the people wanted to abolish it. The second and probably most significant land dispute arose in 1977 when, without warning, PT. Jatipura started logging in the area. PT. Jatipura was contracted by PT. Sukardi Parapance, who held the logging concession to 50,000 ha. The company paid only Rp 500 (currently equal to US$0.25) per tree, yet left behind a destroyed sago ecosystem and destroyed ser. The logging took place without any monitoring from the government (UNCEN 1990:4).

The third and most recent dispute occurred when Dinas Kehuta-nan of the East Biak subdistrict planned to convert 2,200 ha of the agathis complex and additional surrounding land, totaling 13,000 ha, into an HT1 (industrial forest) (UNCEN 1990:37). On 13 April 1985, Dinas Kehutanan asked 13 people from East Biak to sign an agreement supporting use of the area as an HTI. Two weeks prior to this, however, on 30 March 1985, 10 people, following a meeting in the subdistrict office, had signed a statement clearly saying that the people of East Biak refused to give their land for conversion to HTI. The document contained the following arguments:

1. Forest destruction will cause soil erosion; 2. Roads built into the agathis coniplex would block the river creeks,

in turn affecting the sago trees; 3. Less land would be available for agriculture; 4. The 25-year agreement with the (Dutch) government was com

pleted, and therefore the agathis trees should be returned to the people.


To counter this new agreement, which was signed on 13 April 1985, a long letter with more elaborated arguments to refuse the HTI project was signed by 346 people and sent to the head of the district ( k a b u p a t e n ) .

In colonial times, although the price of copal was controlled by the government, the people still possessed their land and agathis trees and used their sago stands as much as they wanted. In 1956 when the government decided to plant new agathis to replace the old trees, the agreement letter clearly stated that "Boswezen t a ' a k a n m e m i l i k i t a n a h d a n p o h o n - p o h o n d a m a r i t u s e r t a t a ' a k a n m e n d j u a l a t a u m e m b e l i h a s i l d a m a r i t u . (The government forestry will not own the land and the agathis trees and will not sell or buy the product of these agathis trees.)"

This agreement was signed by the Boswezen head and the landowners and was witnessed by the subdistrict and district heads. In this case, only the production management was administered by the Dutch government, including price determination; the land was still owned by the people. The people were disappointed that after 25 years, production management was not returned to them but was automatically continued under Dinas Kehutanan.

Advocacy: External Interference

Before April 1985, to avoid implementation of new projects in the agathis complex, the community made statements and wrote letters to the government and parliament members. In 1986, an article appeared in K a b a r d a r i K a m p u n g ("News from the Village"), a bimonthly bulletin of YPMD-Irja based in Jayapura, the capital of Irian Jaya Province. The article put this case together with other negative impacts of logging in Irian Jaya, attracting external attention to the head of Dinas Kehutanan in Jayapura, including questions and protests from the East Biak community living in Jayapura. In the same year, a social forestry program was discussed by the Ford Foundation with the Ministry of Forestry, a promising event since one of the objectives of this program was to harmonize relationships between and among the people, the government, and the private sector concerning usage of the forest and land. After a long discussion, two pilot sites were agreed upon by the Ford Foundation, Ministry of Forestry, Dinas Kehutanan, and two NGOs. Through this project, advocacy interference to support local communities was possible. Several activities and interference strategies warrant mention here.

N G O involvement strengthened the communities' voice and reoriented the program toward the concept of social forestry. The government sees the social forestry program as a tool to ease the conflicts


between the government and government-owned companies like Perhutani, for example, by providing the unused land inside the industrial (teak) forest to local fanners for cultivation. In Java and especially in Irian Jaya, the involvement of NGOs such as YPMD and WWF ensures that the a d a t rights of the people are recognized and that the people are consulted on issues of forest use.

The Ford Foundation played an indirect advocacy role, working at the macro-level to create leverage for involvement of local people through NGOs. The foundation worked to assure that NGOs became members of the Provincial Social Forestry Supervision Team setting up policies at the provincial level. The trairung for PLPS (field workers of Social Forestry Program) was also earmarked to be carried out by YPMD and WWF. Community leaders, including leaders from Bosnik (Parieri), were invited to the training. The Ford Foundation also sponsored studies and seminars conducted by the State University in Jayapura to seek ways for settling the land disputes in Biak.

Concluding Observations

The Core of t h e P r o b l e m As this case demonstrates, the core problem of land disputes is the differing interests of the government and the local people concerning ownership and use of the land. Disputes over use of the agathis complex at Parieri can be traced in Table 13.1.

A land dispute that involves the people's livelihood can create tremendous problems for both sides. Invoking macro-policies such as the Constitution or other regulations will not solve the problem as long as people's "life-and-death" relationship is at stake. Recognition and protection of people's traditional land use rights will be more acceptable to the people.

The argument that a project is important because it will create jobs has yet to be proven. Although logging concessions can create jobs for local people, this may actually mean a degradation of the social status of people from landowners to project laborers.

The R o l e of A d v o c a c y The role of external advocacy has been slow to emerge. There is still no clear understanding by the government of how the people relate to their land, or of the role and limits of a customary leader as arbiter. The limited information and research done by the universities and NGOs, however, has created leverage for further dialogue. In spite of a 1991 decision by Dinas Kehutanan to maintain the agathis complex


Table 13.1 Recent History of Government and People's Interests in the Agathis Complex at Parieri

Government's People's Level of Tune Interest Interest Conflict

Before 1956

1956-61

1961-70

1970-80

1980 +

1991

Tapping and copal collection by the colonial government to improve quality for export

Colonial policy continued by Dinas Kehutanan but with less profit

Gave forest concession to a logging company to increase government earnings

Wanted the land for HTI;1 legitimized this with Article 33 of the 1945 Constitution

Dinas Kehutanan maintained the forest as protected forest; the local government urged the people to plant tree seedlings in the area

Sold copal to Chinese traders to make money

Management was in the hands of the colonial government, which had the pricing monopoly

Wanted the agreement with the Dutch government abolished

Received US$0.25 per tree logged

Wanted to use the land to cultivate trees according to their need; demanded that the government recognize adat land rights

Still refused to accept forest management by Dinas Kehutanan; see support by the local government to plant tree seedlings as a positive sign for recognition of their communal rights

None

Low

Low

High

Very high

High

'Hutan Tanaman Industri (industrial forest)

P a r i e r i Land Dispute 169

as Hutan Lindung or protection forest, rather than an industrial forest, the local government distributed tree seedlings to be planted inside the disputed area. This shows that if individual government officials can be convinced, policies wi l l be formulated responsive to the needs of the people.

The Role of the Community

Once threatened by external forces; the people united in their efforts to maintain ownership of the land: The strength of their action was proven by their letter to the head of the district signed by 346 people. However, their weak point was that no clear ownership boundaries exist between the clans. This contributed to the subsequent misuse by the government of Article 33 of the i945 Constitution of Indonesia, which legitimizes government use of the land for "common prosperity" or for "national development," to justify the self-interest of certain government and private-sector staff.

O n the other hand, this conflict between clans might be settled if the process of k a k a i n k a k a r a can be used to solve the land conflict. This traditional institution has fallen out of use since being replaced by imported schemes that do not function well in this community. There is a need for the government to recognize the people's communal land rights while allowing communities to solve internal conflicts themselves through traditional institutions. Indeed, in one of the villages (Bosnik), the land title issued by the government was accepted only after being recognized by traditional clan leaders through k a k a i n k a k a r a .

Part IV Conclusion

173

14. CONTRACTUAL AGREEMENTS FOR COMMUNITY-BASED SOCIAL FORESTRY PROGRAMS

IN ASIA

Frances J. Seymour and D a n i l y n R u t h e r f o r d

Implicitly or explicitly the promotion of community forestry agreements as a way to strengthen local rights and responsibilities for forest management rests on a number of assumptions regarding relations between and among local groups, third parties, and the state. Although individual stewardship agreements may be founded upon some of the same premises, the issues appear in sharp relief when a community approach is promoted. We have chosen to examine four such assumptions, and the questions they raise, as articulated below.

Assumption 1: Formal legal mechanisms can protect the rights and enforce the responsibilities of members of forest communities against threats from w i t h i n and without. Questions raised by this assumption include: Is positive law capable of accommodating alternative forms of forest tenure? Does raising legal questions expose existing informal arrangements to unwelcome scrutiny? Does the existence of a legal document make a difference, inside or outside of court? In what ways might agreements be abused at the expense of community interests?

The social forestry programs represented in these papers have different histories. However, they are alike in that the administrative and legal systems in which they operate, regardless of the country's colonial history, incorporate Western conceptions of land management based on a strict separation of agriculture, with an emphasis on private property ownership, and forestry, with an emphasis on state authority over public lands. Newly independent nations sometimes reinforced the barriers to legal recognition of collective tenure systems arid local access rights to forest lands. In Indonesia, the Basic Agrarian Act of 1960 honors traditional land rights only insofar as they do not conflict with national priorities (see the papers by Wangsadidjaja and Ismanto, and by Moniaga). The complexity and inconsistency of legal codes built on colonial law are in themselves formidable barriers to identifying appropriate legal mechanisms.

In three of the cases reviewed in this volume, legal space for community management agreements has been created under forestry (as opposed to agrarian) law. Although the Philippine Integrated Social Forestry Program (ISFP) has recently been linked to the Comprehensive Agrarian Reform Program, community rights conferred to date in the ISFP, as well as in the West Bengal and Java programs, have been


conveyed through a delegation of authority from the relevant government forestry agency. However, as far as we are aware, in no case has the legality of such delegation been definitively tested in court.

In the Outer Islands of Indonesia, space in forestry law for community management has not yet been acknowledged by the Indonesian Ministry of Forestry. In the Biak case, the possibility of an agreement may well founder on the community's unwillingness to accept any conditions from the Ministry on their right to manage the agathis forest as they see fit.

While the law may be amenable to community forestry management in some cases, the next question is whether or not the existence of a formal legal document makes a difference. Evidence suggests that legal recognition of property rights does not necessarily result in much protection for the poor. The leader of Indonesia's premiere legal aid association contends the disadvantaged "never" win land cases against the state or its powerful friends, no matter how good their claim, and that the most land certificates can do is to earn their holders the right to compensation (pers. com., Abdu l Hak im Nusantara 1990). In Thailand, "differential access to formal procedures" and the government's "ability to manipulate records" allowed the elite to use a reformed property law to appropriate the holdings of homesteading peasants (Thomson et al. 1985).

The cases indicate that the importance of formal legal documents may also be diminished by the relative strength of local custom. In the Java Social Forestry Program, officials of the State Forest Corporation (SFC) and male members of Kelomvok Tani H u t a n (KTH), or forest farmer groups, argue that the customary concern of villagers for a recently widowed woman carries far more force regarding her inheritance rights to a social forestry plot than her name on any contract could. Although some wives of K T H members might differ on this point, community sanctions can matter more than legal assurances, especially in areas where literacy—not to mention legal literacy—is low. In Biak, to end land disputes officials turn to the church and a "white magic" ceremony in which adversaries pray while standing on contested land. 1 Only when cases take a criminal turn do officials bring formal legal mechanisms into play.

In light of the above, actors in a number of our cases have not gone to the trouble of making their agreements legally binding. Project proponents of a project in the Arfak Mountains in Irian Jaya (not included in this volume) suggest that the law has mattered little up to now, which is fortunate, since the participating communities are essentially breaking it. A n d those who have worked with the bureaucracy note that official recognition can be the death knell of creative collaboration:

Agreements for Community-Based SFPs i n Asia 175

arrangements that worked informally often die when they are formally inscribed in the system. For the actors in the case studies, especially those at the local level, the importance of written contracts has relatively little to do with the documents' prospects in court.

But this is not to say that legal agreements do not make a difference. In some cases written documents have a practical and symbolic power that work toward (or against) a community's advantage. The Biak case provides an example of a bureaucracy forced to consider making ah exception to its rules against written proof of the legitimacy of community claims. That the original Dutch contract has been lost matters little; forestry officials have recognized the strength of local sentiment based on its memory and have changed their language, if not their actions, accordingly In the context of the Java Social Forestry Program, SFC officials seem to value the contract not so much for its potential validity in court, but rather believe that farmers are more likely to respect authority when it is in writing.

There is a similar belief on the part of villagers in West Bengal and Irian Jaya regarding the value of a document to strengthen community authority. A written recognition of committees' rights in both programs appears to be a "felt need," not so much to legitimize the communities' forest use rights vis-a-vis the government, but rather to strengthen the communities' authority to exclude outsiders. The Community Forestry Stewardship Certificate (CFSC) has apparently played a similar role in the Philippines, as tribal communities holding certificates are now reported to have the confidence to expel migrants and illegal loggers from their land.

Despite potential benefits, legally sanctioned agreements are also subject to abuse. In an earlier discussion of individual stewardship agreements in Thailand and the Philippines, the problem of illegal transfer of land use rights to nonresidents was mentioned. While we are unaware of such transfers in the context of community agreements, the possibility and its implications must be considered. The recent establishment of a private foundation by a senior forestry official in Irian Jaya in the name of a forest-edge community would raise serious conflict-of-interest questions if the foundation were employed to acquire forest use rights.

Another potential avenue for abuse is the use of management agreements to negate pending land claims. This potential may well undermine otherwise elegant proposals, such as the one promoted in a recent study of Indonesian forestry law (Zerner 1990). Within the regulations on timber concessions, language already exists supporting a "process of negotiation" between local groups and logging concerns. The Zerner study suggests using this space to promote long-term contracts legitimiz-


ing the presence of forest communities within production forest areas. While this option would buy time for indigenous forest users, communities could be construed as forfeiting prior claims on the land by signing a contract that implicitly recognizes state authority and concessionaire rights.

The Philippine C F S C model reduces this risk by adding a special clause to the stewardship agreement protecting ancestral land rights claims from being deemed nullified by the agreement. A s the Java Social Forestry Program experience suggests, the danger of forestry agencies abusing agreements without such clauses to "resolve" disputes in their favor is far from remote. Similar protection for the Parieri community in Biak appears to be an essential element in any future formal agreement, but the likelihood of the Indonesian government accepting such a clause appears equally remote.

In summary, formal legal mechanisms have the potential to protect the rights and enforce the responsibilities of community members, although that potential has not been consistently realized in the programs discussed. While written documents can indeed influence the behavior of communities and forestry officials, documents are not sufficient to ensure that social forestry program goals are achieved, and in some cases may not be necessary.

Assumption 2: Forest users can find suitable individuals and institutions to represent their interests in a management agreement. Questions raised by this assumption include: Who is the community? Can local community members agree on who is "in" and who is "out"? Do institutions exist that are legitimate and stable, both in the eyes of local people and the law? And if not, can they be created in the context of a social forestry program? Are these institutions easily appropriated by the powerful to the exclusion of the weak? Men to the exclusion of women?

Defining the community and its representatives may be the most difficult challenge that faces participants in social forestry programs. A well-designed process for concluding a management agreement with the forestry agency is worthless if the wrong people are participating. Those who have attempted to conclude forestry management agreements have grappled with these issues in a variety of ways.

In terms of defining who is " in" and who is "out," the cases examined here reveal a diversity of experience. In the Philippine program, dealing with relatively homogeneous tribal communities in the context of their ancestral lands has proven an effective strategy. In this case, questions of community membership are likely to center on issues such as whether or not rights should be apportioned to outsiders who marry

Agreements for Community-Based SFPs i n Asia 177

into the group, or the extent to which rights are forfeited by individuals who move out of the community

Although culturally homogeneous, the Parieri community in Biak is highly factionalized, a condition exacerbated by the social forestry program's limitation to one clan. While all residents could probably be accepted as community members in the context of a management agreement, the fact that the "uphil l" faction considers itself to be "more equal than others" bodes i l l for the conclusion of such an agreement. O n the other hand, ambiguities in traditional land rights systems, shortages of arable land, and long-sustained feuds are scarcely unique to Parieri. A community that reaches consensus too quickly probably merits a closer look.

In the Java case, program guidelines direct foresters to give priority to poorer farmers in areas where demand for reforestation land exceeds supply, thereby limiting K T H membership to a subset of village households. Anecdotal evidence suggests, however, that in many sites the poorest have been passed over by officials applying other criteria in participant selection (Sunderlin 1990). To the extent that the site was previously an open access resource, the poor may have indeed lost ground. At the same time, to the extent that n o n - K T H members in the village continue to treat the site as an open access resource, program participants are denied the products of their labor. Ironically, at sites where K T H membership has been the most inclusive and has accepted all applicants, the resulting tiny plot size has similarly undermined incentives for long-term forest protection.

In the West Bengal program, committee membership has tended to encompass all the households in a village, although conflicting claims of adjacent villages over a given forest area continues to be a challenge. In all the programs we have examined, a tendency to rely on the male head-of-household to represent family units suggests that women's interests may not be sufficiently taken into account in their respective community management agreements.

Related to the question of community membership is the issue of what legal institutional structure wi l l be used to represent it. One option is to employ existing structures. In Biak, it is hoped the church wi l l be able to play a role in mediating conflicts.. Compared to other village institutions in Irian Jaya (such as official cooperatives), churches, which in Indonesia can legally hold land, seem to have the most legitimacy in the eyes of both the local villagers and the law.

Another avenue open to social forestry program proponents is to encourage the creation of new institutions to enter into legal relationships for local forest users. While this model has been pursued under

178 Frances } . Seymour and D a n i l y n Rutherford

the Philippine C F S C program, in fact the most successful associations have been built upon existing community structures, and even then not without significant outside technical assistance. Because the associations established under the program represent integral cultural communities, their potential scope encompasses aspects of community life far beyond forest resource management, as evidenced by the Kalahan Educational Foundation, for example. In contrast, forest protection committees in West Bengal and K T H s i n Java have been created specifically to regulate forest exploitation, with some related income-generating activities. In the Java program, rapid program expansion has led to a low intensity of technical assistance provided to the K T H s by both the SFC and Bina Swadaya staff. A s a result, many recently formed K T H s are merely paper organizations.

Thus our cases reveal a range of experiences in community definition and representation. Some have had more difficulties than others in deciding who is " in" and who is "out." Some have successfully built upon existing institutional structures, while others have been able to fashion new entities that function wi th varying degrees of effectiveness.

Assumption 3: Forestry agencies have both the w i l l and the ability to barg a i n i n good f a i t h and to uphold their side of the agreements that result. Questions raised by this assumption include: Can a government agency enforce an agreement to which it is party? Do national decision-makers have the power to get local staff to try something new? Conversely, do local staff have room to move in spite of the resistance of their superiors?

The third assumption underlying the conclusion of joint management agreements between communities and forestry agencies is that the latter can enter into such agreements in good faith. It would be unreasonable to expect forest departments to act as neutral facilitators in the negotiation process, given that they are in fact party to the agreement and have interests of their own to protect. Leaving them out of the process, however, is not an option, at least in the long run, as it is the forestry agency's authority over forest land that is recognized by the state. Unless that authority is to be challenged in a court of law, the agency's formal sanction of the agreement is necessary if the community's rights are to withstand future challenges from third parties or indeed from the agency itself. The question is, then, to what extent have forestry agencies proven themselves wil l ing to voluntarily recognize a division of forestry management rights and responsibilities with local communities, and to honor the community's rights and the agency's responsibilities in the event of conflict?

The social forestry programs previously described provide ample evidence that forestry agencies have been wil l ing to recognize limited

Agreements for Community-Based SFPs in Asia 179

community rights to forest resources. While the concessions achieved to date may appear negligible to the outside observer, they are significant in their departure from the traditional custodial forestry management ethos. The West Bengal Forest Department's recognition of community rights to a portion of the timber harvest was no doubt seen as a revolutionary step, and a step that the Java State Forest Corporation is not yet ready to consider. Similarly the SFC's acceptance of fruit trees and other previously forbidden species in social forestry sites represents a major policy change in regulations that have been in force since the colonial period. The Philippine government's willingness to legitimize occupancy as well as use rights within designated forest areas represents a dramatic policy shift within the last 15 years.

It is hardly surprising that the resolutions, contracts, or other written documents emerging from these programs emphasize the agency's rights and the community's responsibilities. For the forestry agency, the document serves to reassert the agency's authority and clearly demarcate the limited rights of the community, lest anyone gets the idea that full property rights are being conferred. In the Java program, the contract is a "felt need" for SFC officials rather than for the participating farmers.

In the three cases in which the forestry agency has been willing to formally extend limited rights to communities—the Philippine Integrated Social Forestry Program, the West Bengal Forest Protection Committee Program, and the Java Social Forestry Program—the forest area in question was severely degraded, with limited potential for timber extraction or reforestation w i t h o u t enlisting the support of the local community In the Irian Jaya cases where the forestry agency has shown more reluctance to recognize community rights, the forest area in question is still intact and in possession of valuable resources. While it would be premature to draw conclusions from such a limited sample, one could cynically observe that forest departments appear to be willing to grant community rights to forest resources only when those resources are so degraded as to be worthless to the agency.

The many rights retained by the agencies in comparison to the closely circumscribed rights conferred on the communities appear to reflect paternalism in some cases, and recognition of a genuine conflict of interest in others.2 Forestry agencies feel fully justified placing conditions on the forest use rights that they extend in light of their mandate to manage watersheds, protect endangered species, and otherwise manage the forest for the public good. They may also have reasonable doubts about unsophisticated communities' ability to make decisions in their own best interests in the face of rapidly changing conditions. Landowners in the Parieri agathis forest, under pressure from private firms, have sold their trees in the recent past through arrangements

180 Frances J. Seymour and Danilyn Rutherford

of dubious legality; could they long resist the siren song of timber merchants if granted unrestricted rights to sell? But it is not easy to guide people to use their resources sustainably without stripping the notion of ownership of its meaning. The point is not what activities will be allowed in the agathis forest, but how the decisions will be made and by whom.

The "father knows best" paternalism of certain forestry officials may also reflect a confusion of rights and benefits. While social forestry programs often include the complementary objectives of increases in local control over forest resources and increases in forest-based income, recognizing rights and providing benefits are two very different things. And yet precisely because social forestry programs tend to be targeted to poor landless, or otherwise disadvantaged groups, the two concepts have often become fused. This tendency was recognized by a senior official from West Bengal, who asserted that "There should be a conscious attempt in all forestry projects and programs to ensure that the benefits from such activities go to the people, not as a philanthropic gesture from a benevolent donor, but as a responsible and honorable partner in forest management and related activities" (Malhotra and Poffenberger 1989).

The Java State Forest Corporation field staff attending the June 1990 workshop felt that an exchange of rights (in the form of pending claims on disputed forest land) for program benefits (by signing a contract relinquishing their claims) would be a good deal for farmers and saw no problem in the SFC encouraging farmers to make the trade. Forestry officials associated with the Biak forest case interpret the community rights to the agathis forest as rights to an income stream from the forest rather than rights to decide how the forest will be managed. They have adopted the language of rights, but are really talking about welfare.

The welfare orientation may also color forestry agencies' cavalier attitude toward their contractual responsibilities. Backup support from the West Bengal Forest Department reportedly failed to materialize when one of the forest protection committees attempted to assert its authority over encroachment by neighboring villagers, leading to disappointment by members and open hostility toward forestry officials (Malhotra and Poffenberger 1989). SFC field staff in Java tend to see the KTH as a convenient vehicle for extension, without recognizing its potential to channel farmers' ideas, needs, or even demands to the SFC.

At the same time, the programs examined here present few examples of forestry agencies exercising their authority to unilaterally terminate the agreements for noncompliance by the communities, aside from a few instances of SFC officials pressuring KTHs to expel members who do not follow agency rules. As previously reported, social


forestry programs that use individual stewardship agreements in Thailand and the Philippines have done little to enforce the stewardship responsibilities of rights holders even in the face of an active resale market for the certificates.

Several of our cases illustrate the difference between "macro" and "micro" policy reform (Korten 1986). According to Korten, a macro-policy reform is one that can be achieved at the stroke of a pen by a senior policymaker. The West Bengal state government's resolution providing legal recognition to the Forest Protection Committee Program could be considered one example. Micro-policy reform, however, refers to the adjustments in attitudes and behaviors of officials throughout a bureaucracy that translates a high-level policy directive into a meaningful change in the way the agency perceives and carries out its mandate. The fact that several senior officials in the SFC are genuinely committed to social forestry ideals makes no difference if field staff continue to relate to villagers as police officers dealing with trespassers and wage laborers. Support for community management agreements at the policy level must be supplemented by an arduous process of training and socialization of those whose job calls for implementing the new policies.

The more successful programs among our cases started out not as top-down national programs, but rather as local experiments that were not initially sanctioned by forestry law or policy. The forester responsible for the initial pilot project in the West Bengal program, for example, took a risk by promising villagers 25 percent of the timber harvest, although he could not be sure that the Forest Department would support him. Unfortunately, such local-level policy entrepreneurs are rare, especially in highly centralized bureaucracies such as those found in Indonesia. Provincial-level foresters sympathetic to the goals of the Indonesian Outer Islands Social Forestry Program have been unwilling to take any action without first getting approval from the highest officials in Jakarta.

Forestry agencies have indeed been willing to enter into community forestry management agreements in several of the cases considered, although there appears to be an inverse relationship between the value of the resource and the agency's willingness to share its authority. In addition, the agencies' good faith is tempered by paternalistic and welfare-oriented attitudes, and compromised by the agencies' difficulty in effecting micro-policy reform.

We should also note that government participation in forestry management agreements is not limited to the state or national forestry agency. It appears that local governments can play an important role in sanctioning joint management agreements and are seen by commu-


nities as somewhat more neutral than the forestry agencies. For both the Java social forestry contracts and the West Bengal resolutions that form forest protection committees, a local government official countersigns the document. In the Biak case, community members have looked to local government structures for redress in their dispute with the Ministry of Forestry.3

A s s u m p t i o n 4: Third parties can play an effective role in the framing and implementation of a c o m m u n i t y forestry agreement. Questions raised by this assumption include: Is the involvement of a neutral third party necessary or sufficient to conclude an agreement between a forestry agency and a community? Do donor agencies, universities, and non-government organizations (NGOs) consider securing local resource rights a priority, and are they willing to work with government agencies in achieving this goal? What resources can they bring to the process? What risks do they run by getting involved?

Third parties, in the form of foreign donors and various NGOs, have played important roles in many of the social forestry programs examined here. International organizations such as the Ford Foundation and the World Wide Fund for Nature have provided the initiative, flexible funding, and legitimacy to get programs such as those in Java and the Philippines off the ground. Such organizations can also play a facilitating role by supporting the involvement of university or local NGOs in the program that forestry agencies would not likely initiate if left to themselves. However, that such external support is insufficient is clearly demonstrated by the Biak case, where after almost 4 years of intermittent input from a donor agency, the provincial university, and Irian Jaya's leading secular NGO, there has been no substantive progress toward the implementation of a community management agreement.

Third parties may not consider the conclusion or enforcement of a legal agreement to be appropriate or a high priority in the context of their participation in a social forestry program. The lack of progress in making the Java social forestry contract meaningful to farmers is less surprising given the fact that neither the university research nor the N G O training and monitoring has focused attention on the issue. By contrast, the proactive role of Philippine NGOs to fight for the rights of forest communities has undoubtedly influenced the more liberal government policy.

There is also a danger of external agencies moving beyond a supportive role and getting too far in front of the ostensible implementing entity. While a community management agreement may never be drafted if left to the forestry agency, one may question whether the

Agreements for Community-Based SFPs in A s i a 183

agency will ever feel ownership over any agreement drafted by an expatriate staff member of a foreign organization. As demonstrated by the Java and Biak cases, forestry officials are capable of verbally supporting the concept of community rights while passively resisting any meaningful recognition of these rights. Worse, there have been instances of forestry officials cynically appropriating the language of social forestry to camouflage schemes distinctly at odds with the interests of local communities.

Such misappropriation of rhetoric is but one of the dangers of a "constructive engagement" approach to forestry agencies by foreign organizations. In choosing to work directly with agencies that are often perceived as repressive or corrupt, donors must face the accusation that they are sanctioning the agency's shortcomings both within and beyond the particular social forestry program. Such an association may also engender suspicions by NGOs and communities who perceive the donor's engagement as an endorsement of the agency's policies rather than an attempt to change them. Recognizing that forestry agencies may be interested in social forestry only insofar as it is instrumental in achieving agency objectives, a donor may choose to downplay the social justice aspects of its agenda.

A similar dilemma faces domestic NGOs working within social forestry programs. In Java, the apparent sympathy of Bina Swadaya staff for the SFC officials' perception of the social forestry contract's function is evidence that there is a fine line between constructive engagement and co-optation. Indeed, Bina Swadaya has been subject to criticism from other Indonesian NGOs for being too close to the government. It should be remembered that in the context of the Java Social Forestry Program, Bina Swadaya provides training and backstopping services to the SFC rather than directly to forest farmer groups. N G O staff directly accountable to communities would presumably be less vulnerable to adopting the government agency's perspective, but they would also have commensurately less opportunity to influence that perspective for the better.

A division of labor within the N G O community between those working to change the system from within and those employing a more advocacy-oriented strategy would appear to be attractive in political climates that allow it. In the Philippines, the Philippine Association for Intercultural Development (PAFID) has assisted tribal communities in the process of obtaining CFSCs and have provided subsequent on-site technical assistance. Their work is complemented by that of the Legal Rights and Natural Resources Center, Inc. (LRC), a policy-oriented legal consulting firm, that is pursuing concurrent litigation strategies to strengthen the rights recognized by CFSCs up to and including their conversion to communal title.


A final observation concerns the risk that NGOs and donors undertake in advocating that a larger share of forestry management rights and responsibilities be allocated to local communities. NGOs and donor agencies promoting social forestry projects implicitly assume that given appropriate recognition, community management structures will be able to manage the forest resource at least as well, and as sustainably, as the government forestry agency, if not better.

But such an assumption may not always be borne out by experience, and at least one writer has warned of the naivete that equates the respect of traditional land rights with conservation (Poole 1989). In the Biak case, given increasing land pressures on the island and factionalism within the community, a perfectly reasonable scenario might predict that recognition of community rights would be followed by cutting of the agathis forest for short-term profit and agricultural expansion. If such a scenario were to be played out, the more conservative forestry officials would be proven right and the cause of community management, along with the credibility of its advocates, would be dealt a serious blow.

Third parties can indeed play effective roles in shepherding Community Forestry Management Agreements into being, although the involvement of donors, universities, or NGOs in social forestry programs is neither necessary nor sufficient for a successful outcome. Such organizations may not see the conclusion of a formal agreement as a priority for their forestry programs and may be vulnerable to accusations of co-optation if perceived as being too close to the government, or of naivete if they overestimate community management abilities. Nevertheless, the critical inputs provided by third parties in several of the described case studies testify to the constructive roles third parties can play.

Implications for Contractual Agreements

In general these papers indicate that, whether one works within or on the fringes of the bureaucracy, fundamental change in forestry law is not a precondition for program implementation. As Wangsadidjaja and Ismanto argue, even in Indonesia, it would not take an overhaul of the existing legal system to make room for a Community Forestry Management Agreement (Barber 1986; Zerner 1990). Current regulations could encompass such agreements and the process of negotiation involved. While the radical reform at the center that Moniaga argues for is appealing as a long-term goal, practitioners argue that a more realistic

Agreements for Community-Based SFPs in A s i a 185

strategy takes advantage of existing space in the legal system for the benefit of communities here and now.

Another point worth noting is that neither the notion of granting limited rights over forests nor its expression in written documents is new. The colonial regimes that "managed" Third World resources concluded agreements with indigenous rulers; promises broken abound in North America as well. Agreements securing the use of ancestral lands or local labor gangs served Dutch interests in the Indies, and the traces of these agreements are a factor in the Java and Biak cases from Indonesia. While the agreements discussed in this paper are in many cases hailed as innovative approaches to resource management, many in fact are laden with attributes and attitudes with deep historical roots. A discussion of these roots lies beyond the scope of this volume, but their implications for contemporary agreements should not be underestimated.

In short, then, social forestry programs can and should exploit spaces in existing law to advance Community Forestry Management Agreements. At the same time, practitioners should be aware of the historical baggage that accompanies existing legal mechanisms and attempt to anticipate how that baggage will influence implementation of "new" ideas.

Promoters of community management of natural resources must also acknowledge the significant external and community inputs necessary to set up and maintain social forestry management systems. The programs described here involve high initial costs in terms of personnel, training, budget, and time. West Bengal foresters reported having to meet up to 20 times with villagers prior to the establishment of a forest protection committee. Officials of the Department of Environment and Natural Resources estimate that the current force of 800 social forestry technicians would have to be increased to 25,000 to adequately service all upland communities in the Philippines.

We have to consider how much of the problem will be solved by creating the appropriate mechanism, such as a contract or an agreement, for community management, and what level of continuing management intensity will be necessary from the concerned government agencies during the replication phase. How much of the initial community organization and subsequent dispute resolution activities do we envision being subsidized by the community members themselves, by NGOs and churches, by local governments, by other line agencies, or by the courts?

Community management regimes may be costly only in comparison to current expenditures on forest management, which result in what are effectively open access regimes. The costs of establishing and nur-


hiring community management systems may measure up well in comparison to alternatives available to the government, such as more intensive law enforcement, or to the true long-term costs of ecological and social distress that would result from continuing current practices.

Unfortunately, the record indicates that even when such trade-offs are recognized, government agencies have difficulty maintaining attention to social and organizational aspects during program expansion. After initial positive success with pilot projects, the Java Social Forestry Program has expanded rapidly, without specially recruited staff, with a diminished training component, and with an overburdened monitoring capability. In the interest of "efficiency," SFC staff have concluded agreements with "super-KTHs" of hundreds of farmers and have obtained signatures on the contract by going door-to-door rather than staging a discussion with participating farmers. Similar examples from other programs abound. Such tendencies, and the potential abuses of agreements discussed, should give us pause as we imagine promoting large-scale social forestry programs in a context as heterogeneous and dynamic as Irian Jaya.

Program planners, then, should anticipate the need for intensive management inputs not only in the initial pilot project phase, but also during phases of expansion and incorporation into the standard operating procedures of the agency. Continued monitoring to identify and check abuses is particularly critical.

In conclusion, the message from our examination of experience with legal agreements in the context of social forestry programs is that the document itself is less important than the understanding, commitment, and good faith of parties to the agreement. The process, not the paper, is the key to meaningful community participation in forest management, although the existence of a written document can make a difference in the behavior of farmers and foresters alike. The cases described indicate that program strategies initiated without formal sanction have fared better than attempts to change the system from within. We conclude that where possible, social forestry efforts should begin with a process of community organization around forestry management activities that eventually culminate in a formal agreement, rather than attempting to use a formal agreement to catalyze that process. Written contracts are more likely to reflect, rather than to induce, the development of viable forest management institutions at the community level.


Endnotes

1. Informants claim that Biak is full of sick and crippled people who did not pass this test, in which the legitimate claimant is believed to be struck down by God.

2. An issue that we will not pursue here is the implicit paternalism of donors and other program proponents who insist on affirmative mechanisms to strengthen the representation of poor families or women in local institutions in violation of community norms.

3. Indeed, there are many examples of local governments siding with communities in land disputes with forestry agencies. In the Riam Kanan watershed of South Kalimantan in Indonesia, the local government's formal recognition of a new district and new villages within the watershed has effectively negated the Ministry of Forestry's designation of the area as a protection forest and associated plans to resettle its inhabitants. Experience from a major community forestry program in Nepal, however, confirms that local governments may not be appropriate entities for implementing social forestry programs, as administrative jurisdictions seldom match meaningful resource management units (Poffenberger 1990d).

T h i s is a n edited and shortened version of a paper prepared for the First A n n u a l M e e t i n g of the I n t e r n a t i o n a l Association for the Study of Common Property, "Designing Sustainability on the Commons," 2 7 - 3 0 September 1 9 9 0 , D u k e U n i v e r sity, D u r h a m , N o r t h C a r o l i n a .

189

CONTRIBUTORS

W E E R A A T T A N A T H O

V I Y O U T H C H A M R U S P A N T H

M O H I U D D I N F A R O O Q U E

J E F F E R S O N F O X

D O N N A Z . G A S G O N I A

A G U S D J O K O I S M A N T O

S A N D R A M O N I A G A

J E F F E R S O N R. P L A N T I L L A

M A R K P O F F E N B E R G E R

S. B . R O Y

A U G U S T I N U S R U M A N S A R A

D E C K Y R U M W A R O P E N

D A N I L Y N R U T H E R F O R D

Y O S S A N T A S O M B A T

F R A N C E S J. S E Y M O U R

Roya l Forestry Depa r tmen t , N a k h o n Ra tchas ima , T h a i l a n d

Facul ty of H u m a n i t i e s a n d Soc ia l Sciences , K h o n K a e n Univers i ty , T h a i l a n d

D e v e l o p m e n t S tud ies Center, D h a k a , B a n g l a d e s h

P r o g r a m o n E n v i r o n m e n t , East-West Center , H o n o l u l u , H a w a i i

D e p a r t m e n t of E n v i r o n m e n t a n d N a t u r a l Resources , Q u e z o n Ci ty , M e t r o M a n i l a , P h i l i p p i n e s

M i n i s t r y of Forestry, Jakarta, Indones i a

W a h a n a L i n g k u n g a n H i d u p Indones i a , Jakarta, Indones ia

S t ruc tu ra l . A l t e rna t i ve Ass i s tance for Grassroots , M e t r o M a n i l a , P h i l i p p i n e s

U n i v e r s i t y of C a l i f o r n i a , Berkeley, C a l i f o r n i a

I n d i a n Insti tute of B i o - S o c i a l Research a n d D e v e l o p m e n t , Ca l cu t t a , Ind ia

I N G I Indones ia , Jakarta, Indones ia

Y P M D , Jayapura, Ir ian Jaya, Indones i a

D e p a r t m e n t of A n t h r o p o l o g y , C o r n e l l Un ive r s i ty , I thaca, N e w York

L o c a l D e v e l o p m e n t Institute, B a n g k o k , T h a i l a n d

F o r d F o u n d a t i o n Southeas t A s i a Reg iona l Off ice , Jakarta, Indones ia

190 C o n t r i b u t o r s

C H H A T R A P A T I S I N G H

I W A N T J I T R A D J A J A

S O P A R 1 W A N G S A D I D J A J A

I n d i a n L a w Institute, N e w D e l h i , I nd ia

U n i v e r s i t y of Indones ia , Jakarta, I ndones i a

M i n i s t r y of Forestry, Jakarta, I ndones i a

191

ABBREVIATIONS

A D B A s i a n D e v e l o p m e n t B a n k

A F L A Agrofores t ry F a r m Lease Agreemen t ; A g r i c u l t u r e a n d Forest Lease A g r e e m e n t

A G L A Agrofores t ry G r a z i n g L a n d Lease A g r e e m e n t

B A L Basic A g r a r i a n L a w

B F L Basic Forestry L a w

C A L C Cert if icate of A n c e s t r a l L a n d C l a i m

C C F S Certif icate of C o m m u n i t y Forest S t ewardsh ip

C C R Corpora t e Cont rac t Reforestat ion

C F M A C o m m u n i t y Forestry M a n a g e m e n t A g r e e m e n t

C F P C o m m u n i t y Forestry P r o g r a m

C F S A C o m m u n i t y Forest S t e w a r d s h i p A g r e e m e n t

C F S C C o m m u n i t y Forestry S t e w a r d s h i p Cert i f icate /Contract

C O C o m m u n i t y organizer

C S A C o m m u n i t y S t e w a r d s h i p A g r e e m e n t

C S C Cert if icate of S t e w a r d s h i p Con t rac t

D E N R Depar tmen t of E n v i r o n m e n t a n d N a t u r a l Resources

F C R F a m i l y Cont rac t Reforestat ion

F L G L A Forest L a n d G r a z i n g Lease A g r e e m e n t

F L M A Forest Lease M a n a g e m e n t A g r e e m e n t

F P C Forest protec t ion commi t t ee

F R A Forest Reserve A c t

F V Forest v i l lage

F V P Forest Vi l l age P r o g r a m

G O I G o v e r n m e n t of Indones i a

G R : G o v e r n m e n t regu la t ion

H R M S H a r y a n a Resource M a n a g e m e n t Societ ies

I B R A D Ind i an Institute for B io -soc ia l Research a n d D e v e l o p m e n t

I F P Indus t r i a l forest p lan ta t ion

ISF Integrated socia l forestry

I S F P Integrated Soc i a l Forestry P r o g r a m

192 A b b r e v i a t i o n s

U P Indus t r i a l tree p lan ta t ion

K T H K e l o m p o k T a n i H u t a n (forest farmer g roups)

L R C Lega l Rights a n d N a t u r a l Resources Center, Inc.

M F P M i n o r forest p roduc t

M F P P M i n o r Forest P r o d u c t Permi t

N E D A N a t i o n a l E c o n o m i c D e v e l o p m e n t A u t h o r i t y

N F P N a t i o n a l Forestat ion P r o g r a m

N G O N o n - g o v e r n m e n t o rgan iza t ion

N T F P N o n t i m b e r forest p roduc t

PA F I D P h i l i p p i n e A s s o c i a t i o n for Intercul tural D e v e l o p m e n t

P L A Pasture Lease A g r e e m e n t

P O People 's o rgan iza t ion

P V O Pr ivate v o l u n t a r y o rgan iza t ion

R E D Reg iona l executive director

R F D Roya l Forestry D e p a r t m e n t

R K M R a m a K r i s h n a M i s s i o n

S F C State Forest C o r p o r a t i o n

S T K Sir T h i T h a m k i n (r ight to harvest)

T F - A D A n c e s t r a l L a n d D e l i n e a t i o n Task Force

T L A T i m b e r L icense A g r e e m e n t

T P S A T i m b e r P r o d u c t i o n S h a r i n g A g r e e m e n t

U S F P U p l a n d Soc ia l Forestry Project

W G W o r k i n g g r o u p

193

REFERENCES

A d i m , Tuti W. 1963. "Penduduk Daeerah Nimboran/ ' in P e n d u d u k I r i a n B a r a t , ed. Koentjaraningrat and H . W. Bachtiar, pp. 175-192. Jakarta: PT. Pener-bitan Universitas.

Adihondro, G . , ed. 1990. Development Refugees: A n Indonesian Study. WALHI country report prepared for the Southeast Asia Regional Consultation on People's Participation in Environmentally Sustainable Development, Pun-cak, Indonesia.

A l c o m , J. 1990. "Indigenous Agroforestry Strategies Meeting Farmers' Needs," in A l t e r n a t i v e t o D e f o r e s t a t i o n : Steps Toward S u s t a i n a b l e Use of Amazon R a i n forest, ed. A . Anderson. New York: Columbia Univ. Press.

Al len , J. C , and D. F. Barnes. 1985. "The Causes of Deforestation in Developing Countries." A n n a l s of t h e A s s o c i a t i o n of A m e r i c a n G e o g r a p h e r s 75:163-184.

Aquino, R., R. del Castillo, and E. Payuan. 1987. Mount ing a National Social Forestry Program: Lessons Learned from the Philippine Experience. Working Paper, Environment and Policy Institute, East-West Center, Honolu lu , Hawaii .

Barber, C . 1986. Legal and Administrative Aspects of Forest Land Use Planning and Policy in Indonesia. Consultancy report to the Ford Foundation Southeast Asia Office, Jakarta, Indonesia.

Barber, C. 1989. The State, the Environment, and Development: The Genesis and Transformation of Social Forestry Policy in New Order Indonesia. P h D dissertation, University of California, Berkeley.

Barber, C . 1990. The Legal and Regulation Framework for Forest Production in Indonesia, in Appendix A , "Communi ty Rights, Customary Law, and the Law of Timber Concessions in Indonesia's Forests," by C . Zerner. Forestry Studies UTF/INS/065, FAO, Jakarta, Indonesia.

BardhanRoy, B. K . 1991. Arabari Experience: A Mode l for Joint Forest Management With People's Participation. West Bengal Forest Department, West Bengal, India.

Bina Swadaya. 1989. Laporan Evaluasi Program Perhutanan Social Sub Program Jawa: Bantuan Teknis Bina Swadaya. Java Social Forestry Program report, Jakarta, Indonesia.

Bina Swadaya. 1990. Rekaman Proses Pelaithan Pelaith Perhutanan Sosial. Java Social Forestry Program report, Jakarta, Indonesia.

Bratamihardja, M . 1989. Social Forestry in State Forest Land. Perum Perhutani, Jakarta, Indonesia.

194 References

Bromley, D. 1991. Property Authori ty Systems, and the Artful State. Paper presented at a conference on C o m m o n Property, Collective Action, and Ecology held at the Center for Ecological Sciences, Indian Institute of Science, 19-21 August, Bangalore, India.

Bromley, D. 1992. "The Commons, Common Property, and Environmental Policy." E n v i r o n m e n t a l a n d Resource E c o n o m i c s 2:1-17.

Bromley, D. , and M . Cernea. 1989. The Management of C o m m o n Property Natural Resources. World Bank Discussion Paper No. 57, Washington, D C .

Brundtland Report. 1988. M a s a D e p a n K i t a B e r s a m a (Our common future). Jakarta: Gramedia.

Cendrawasih University. 1990. Interaksi Masyarakat Dengan Hutan di Daerah Parieri, Biak Timur, Irian Jaya. Cendrawasih University, Jayapura, Indonesia.

Chatterjee, M . 1991. Role of Women in Joint Forest Management. Draft paper, IBRAD, Calcutta, India.

Chuntanaparb, L . , and H . Wood. 1986. Vol. 1, Management of Degraded Forest Land in Thailand. Northeast Thailand Upland Social Forestry Project F i nal Report. Faculty of Forestry, Kasetsart University, Bangkok, Thailand.

Colfer, C . 1983. "Change and Indigenous Agroforestry in East Kalimantan." B o r neo Research B u l l e t i n , Vols. 15a and 15b.

Colfer, C , and H . Soedjito. 1980. O n Resettlement from the Bottom Up . Paper presented at Inhabitant Resettlement Workshop, Samarinda, Indonesia.

Crocombe, R. 1974. " A n Approach to the Analysis of Land Tenure Systems," in L a n d T e n u r e i n O c e a n i a , ed. H . Lundsgaarde. Honolu lu , HI : Univ. of Hawaii Press.

Cruz, C. J. 1986. Integrated Summary Report—Population Pressure and Migration: Implications for Up land Development. Los Banos Center for Policy and Development Studies Working Paper No. 87-06, Los Banos, Philippines.

Danusaputro, M . 1985. H u k u m L i n g k u n g a n (Environmental law), Book 1: General. Bandung: Penerbit Binacipta.

DasGupta, S., and A . Maity. 1986. The Rural Energy Crisis: Poverty and Women in Five Indian Villages. International Labor Organization, Geneva, Switzerland.

D E N R (Department of Environment and Natural Resources). 1989a. Implementation Manua l for Participatory ISF Projects. Quezon City, Metro Mani la , Philippines.

D E N R . 1989b. Miss ion Thrusts, Programs, and Organization. Quezon City, Metro Mani la , Philippines.

Djajadiningrat, S. 1990. Kualitas Lingkungan d i Indonesia 1990 (Environmental quality in Indonesia 1990). Kantor Menteri Negara K L H , Jakarta, Indonesia.

References 195

Dove, M . 1983. "Swidden Agriculture and the Political Economy of Ignorance." A g r o f o r e s t r y Systems, Vol . 1.

Dove, M . , ed. 1985. P e r a n a n K e b u d a y a a n T r a d i s i o n a l I n d o n e s i a d a l a m M o d e r n i s a s i (The role of Indonesian traditional culture in the modernization). Jakarta: Yayasan Obor Indonesia.

Dove, M . 1986. "The Ideology of Agricultural Development in Indonesia," in C e n t r a l G o v e r n m e n t a n d Local D e v e l o p m e n t i n I n d o n e s i a , ed. C. McAndrew. Kuala Lumpur: Oxford Univ. Press.

Durning, Alan B. 1989. Poverty and the Environment: Reversing the Downward Spiral. Worldwatch paper. Worldwatch Institute, Washington, D C .

Dutta, M . , and M . Adhikar i . 1991. Sal Leaf Plate Making in West Bengal: A Case Study of the Cottage Industry in Sabalmara, West Midnapur. Working Paper, IBRAD, Calcutta, India.

Environmental Management Bureau. 1990. The Phil ippine Environment in the Eighties. Department of Environment and Natural Resources, Government of the Philippines.

Farooque, M . 1991. State of Environmental Laws in Perspectives: The Case of Bangladesh. Report prepared for the Ministry of Environment and Forests, Bangladesh.

Forestry Management Bureau. 1989. Philippine Forestry Statistics 1989. Department of Environment and Natural Resources, Government of the Philippines.

Fox, Jefferson, and R. J. Fisher, eds. May 1990. Communi ty Organizations and Government Bureaucracies in Social Forestry. Working Paper No. 22, Environment and Policy Institute, East-West Center, Honolu lu , Hawaii .

Gaffud, R. 1990. The Emergence of an Associative Economy of the Poor. Southeast Asian Forum for Development Alternative, Jakarta, Indonesia.

Gibbs, C , E. Payuan, and R. del Castillo. 1990. "The Growth of the Philippine Social Forestry Program," in Keepers of t h e Forest: L a n d M a n a g e m e n t A l t e r n a tives i n Southeast A s i a , ed. M . Poffenberger, pp. 253-265. West Hartford, CT: Kumarian.

Gill is , Malcolm. 1988. "Indonesia: Public Policies, Resource Management, and the Tropical Forest," in P u b l i c . P o l i c i e s a n d t h e M i s u s e of Forest Resources, ed. R. Repetto and M . Gi l l i s , pp. 43-114. Cambridge, M A : Cambridge Univ. Press.

G O l (Government of Indonesia). 1990. Forestry Indonesia, 1990. Ministry of Forestry, Jakarta, Indonesia.

Gonzales, N . T. 1983. Agricultural Cooperatives in the Philippines: Problems and Prospects. Cooperative Union of the Philippines, Quezon City, Philippines.

196 References

Grainger, A . 1986. The Future Role of the Tropical Rain Forests in the World Forest Economy. PhD, University of Oxford, England.

Hafner, J. 1990. "Forces and Policy Issues Affecting Forest Use in Northeast Thailand, 1900-1985," in Keepers of t h e Forest: L a n d M a n a g e m e n t A l t e r n a t i v e s i n Southeast A s i a , ed. M . Poffenberger, pp. 69-94. Hartford, GT: Kumarian.

Hafner, J., and Y. Apichatvullop. 1990. "Migrant Farmers and the Shrinking Forests of Northeast Thailand," in Keepers of t h e Forest: L a n d M a n a g e m e n t A l t e r n a t i v e s i n Southeast A s i a , ed. M . Poffenberger, pp. 187-219. West Hartford, CT: Kumarian.

Harahap, H . 1991. Pemanfaatan Hutan Dalam Mensejahterakan Masyarakat. Paper presented at Seminar on Economic Democracy in the Forestry Sector, W A L H I , Jakarta, Indonesia.

Hardin, G . 1968. "The Tragedy of the Commons." Science 16:1243-1248.

Herring, R. J. 1990. "Rethinking the Commons." A g r i c u l t u r e a n d H u m a n Values 7(2): 88-104.

Jodha, N . S. 1990. "Rural Common Property Resources: Contributions and C r i sis." E c o n o m i c a n d P o l i t i c a l Weekly (June 30).

Kartawinata, K . 1984. "The Impact of Development on Interactions Between People and Forest in East Kalimantan: A Comparison of Two Areas of Kenyah Dayak Settlement." The E n v i r o n m e n t a l i s t , Vol. 4, Supplement No. 7.

Khaleque, K . 1984. Prospect of Social Forestry in the Garo Villages of Madhupur Garh: A Study in Appl ied Anthropology. Unpubl ished manuscript. Dhaka, Bangladesh.

Korten, D. C 1986. "Micro-policy Reform: The Role of Private Voluntary Agencies," in C o m m u n i t y M a n a g e m e n t : A s i a n E x p e r i e n c e a n d P e r s p e c t i v e s , ed. D. C. Korten. West Hartford, CT: Kumarian.

Korwa, Abner. 1985. Dampak Operasi Perusahaan Kayu PT. You L i m Sariterhadap Kesejahteraan Masyarakat Desa d i Kabupaten Jayapura, Irian Jaya. Yayasan Pengembarigan Masyarakat Desa Irian Jaya, Jayapura. Research Report iW)2/Lap/YPMD/IV/85, Indonesia.

Lynch, O. 1990. Whither the People? Demographic, Tenurial and Agricultural Aspects of the Tropical Action Forest Plan. World Resources Institute, Washington, D C .

Lynch, O., and K . Talbott. 1988. "Legal Responses to the Philippine Deforestation Crises." J o u r n a l of I n t e r n a t i o n a l L a w a n d P o l i t i c s (New York University) 20(3): 679-713.

Malhotra, K . C , and M . Poffenberger, eds. 1989. Forest Protection Through Community Participation. Working Paper, West Bengal Forest Department, West Bengal, India.

References 197

McCay, Bonnie M , and James M . Acheson. 1987. The Q u e s t i o n of t h e Commons. Tucson: Univ. of Ar izona Press.

Moniaga, S. 1986. Peranan Perundang-undangan Agraria Nasional dalam Pen-gendalian Perladangan Berpindah d i Long Segar, Kalimantan Timur (The role of agrarian laws in transforming the swidden agriculture practices in Long Segar, East Kalimantan). Sarjana thesis. Appendix 2, Parahyangan University, Bandung, Indonesia.

Mubyarto et al. 1991. K a j i a n S o s i a l E k o n o m i D e s a - D e s a P e r b a t a s a n d i K a l i m a n t a n T i m u r . Yogyakarta: Penerbit Aditya Media .

Myrda l , G . 1968. A s i a n D r a m a : A n I n q u i r y i n t o t h e P o v e r t y of N a t i o n s . London: Penguin Press.

National Development Planning Study Center. 1991. Ungkapkan Penyebab Kerusakan Hutan d i Kalt im (P4N), Gajah Mada University, M a n u n t u n g D a i l y , 3 February, p. 9.

National Program Coordinating Office. 1991. Vols. 1-3, P o l i c i e s , M e m o r a n d a a n d O t h e r Issuances of t h e N a t i o n a l F o r e s t a t i o n P r o g r a m . Department of Environment and Natural Resources, Government of the Philippines.

N E D A (National Economic Development Authority). 1989. Philippine Strategy for Sustainable Development, N E D A M e d i u m Term Plan, Philippines.

Ngo, M . 1988. Luma "Umaa": Suatu Kajian Perladangan Ulang A l i k Orang Kayan di Desa Padua Kec. Putusibau, Kalimantan Barat. Sarjana thesis, University of Indonesia, Jakarta.

Nusantara, G . 1988. Politik H u k u m Indonesia (Indonesia politics of law). Indonesia Legal A i d Foundation, Jakarta.

Ostrom, E. 1990. G o v e r n i n g t h e Commons: The E v o l u t i o n of I n s t i t u t i o n s for C o l l e c t i v e A c t i o n . New York: Cambridge Univ. Press.

Pachuari, R. 1991. Sal Plate Making and Marketing. Working Paper, Ford Foundation, Delhi , India.

Palit, S. 1970. "Problems of Protection: Forest Protection CoiruTiittees." West Bengal F o r e s t r y J o u r n a l , Vol. 2.

Panayotou, T , and S. Sungsuwan. 1989. A n Economic Study of the Causes of Tropical Deforestation: The Case of Northeast Thailand. Discussion paper, Harvard Institute of International Development, Cambridge.

Pantir, T. 1991. Jadikan K U D Sebagai Tuan Rumah (Promote the village cooperatives to be the host). Paper presented at Seminar on Economic Democracy in the Forestry Sector, W A L H I , Jakarta, Indonesia.

Peluso, N . L. 1986. Report on Social Forestry Field Research in West and Central Java. Prepared for the Ford Foundation and Perum Perhutani, Jakarta, Indonesia.

198 References

Peluso, N . L . 1988. Rich Forests, Poor People and Development: Forest Access Control and Resistance in Java. P h D dissertation, Cornell University, Ithaca, New York.

Peluso, N . L . 1992. R i c h F o r e s t s , P o o r People: Resources C o n t r o l a n d Resistance i n J a v a . Berkeley: Univ. of California Press.

Peluso, N . L . , and M . Poffenberger. 1989. "Social Forestry in Java: Reorienting Management Systems." H u m a n O r g a n i z a t i o n 48(4): 333-344.

Perum Perhutani. 1989. Pedoman Perencanaan Perhutanan Sosial. Seri Produksi 32. Perum Perhutani, Jakarta, Indonesia.

Poffenberger, M . 1990a. "Conclusion: Steps Towards Establishing Collaborative Management," in Keepers of t h e Forest: L a n d M a n a g e m e n t A l t e r n a t i v e s i n Southeast A s i a , ed. M . Poffenberger, pp. 277-283. West Hartford, CT: Kumarian.

Poffenberger, M . 1990b. "The Evolution of Forest Management Systems in Southeast Asia," in Keepers of t h e F o r e s t : L a n d M a n a g e m e n t A l t e r n a t i v e s i n Southeast A s i a , ed. M . Poffenberger, pp. 7-26. West Hartford, CT: Kumarian.

Poffenberger, M . 1990c. 'Tacilitaring Change in Forestry Bureaucracies," in Keepers of t h e Forest: L a n d M a n a g e m e n t A l t e r n a t i v e s i n Southeast A s i a , ed. M . Poffenberger, pp. 101-118. West Hartford, CT: Kumarian.

Poffenberger, M . 1990d. Joint Management of Forest Lands: Experiences from South Asia . The Ford Foundation, New Delhi, India.

Poffenberger, M . , ed. 1990e. Keepers of t h e Forest: L a n d M a n a g e m e n t i n Southeast A s i a . Mani la : Ateneo de Mani la Univ. Press.

Poole, Peter. 1989. Developing a Partnership of Indigenous Peoples, Conservationists, and Land Use Planners in Latin America. Planning, Policy, and Research Working Paper Series No. 245. The World Bank, Washington, D C .

Pragtong, K . 1987. "Helping Rural People Help Themselves: A Report on Thailand's Forest Villages," in C o m m u n i t y F o r e s t r y : Lessons f r o m Case Studies i n A s i a a n d t h e Pacific Region, ed. Y. S. Rao, M . Hoskins, N . Vergara, and C . Castro. Bangkok: FAO.

Pragtong, K . , and D. Thomas. 1990. "Evolving Management Systems in Thailand," in Keepers of t h e Forest: L a n d M a n a g e m e n t A l t e r n a t i v e s i n Southeast A s i a , ed. M . Poffenberger, pp. 167-186. West Hartford, CT: Kumarian.

Pramono, H . 1991. A Brief Review of Forest Land Use and Deforestation in Indonesia. Unpublished draft report prepared for W A L H I , Jakarta, Indonesia.

Rao, Y. S. 1984. "Communi ty Forestry: Requisites and Constraints," in C o m m u n i t y F o r e s t r y : Some Aspects, pp. 4-15. Bangkok: FAO.

Repetto, R., W. Magrath, M . Wells, C . Beer, and F. Rossini. 1989. Wasting A s sets: Natural Resources in the National Income Accounts. World Resources Institute, Washington, D C .

References 199

RePPProt. 1990. Regional Physical Planning Programme for Transmigration Project document. Jakarta British Overseas Development Authority, London.

Fintuh, C . 1991a. Analisis Faktor-faktor Yang Mempengaruhi Kelestarian H u tan Alam: Suatu Studi Kasus DI Kalimantan Tengah. Masters' thesis, Gajah Mada University, Yogyakarta, Indonesia.

Rintuh, C. 1991b. Kaitan Antara Masyarakat di Lingkungan Hutan dengan Pen-gusahaan Hutan Tanaman Industri (The forest dwellers and the timber estates development). Paper presented at Seminar on Economic Democracy in the Forestry Sector, W A L H 1 , Jakarta, Indonesia.

Rumansara, A . 1986. Kasus Penolakan Masyarakat Pemilik Tan ah Adat di Biak Timur terhadap Program 'Timber Estate" (Perkebunan Kayu) di Biak Timur (Refusal to the customary landowners in East Biak to timber estate program in East Biak). Kabar dari Kampung, Jayapura, Indonesia.

Salazar, R. C . 1990. Communi ty Organization in Social Forestry: Alternatives and Implications, in "Communi ty .Organizations and Government Bureaucracies in Social Forestry," ed. J. Fox and R. J. Fisher. Working Paper No. 22, Environment and Policy Institute, East-West Center, Honolu lu , Hawaii .

Santiago, Carmen, and Emmy Dharsono. 1989. Social Forestry at Kiara Payung and the Village Women. Draft. Asian Institute of Management, Mani la .

Sayogyo, Pudjiwati, et al. 1990. Women in Social Forestry: A Study of Two Cases of the Social Forestry Programmes in Java. Draft. Center for Development Studies, Bogor Agricultural University, Indonesia.

Seymour, F , and D. Rutherford. 1990. Contractual Agreements in Asian Social Forestry Programs. Paper presented at the First Annua l Meeting of the International Association for the Study of Common Property, 27-30 September, Duke University, Durham, North Carolina.

Singh, C. 1986. C o m m o n P r o p e r t y a n d C o m m o n P o v e r t y : I n d i a ' s F o r e s t s , Forest D w e l l e r s , a n d t h e l a w . New Delhi , India: Oxford Univ. Press.

Sunderlin, Wil l iam. 1990. Pemerataan Sosial dan Usaha Reboisasi d i Empat Lokasi Perhutanan Sosial Jawa. Prepared for the Seminar Hasil-Hasil Penelitian Perhutanan Sosial d i Jawa, 16-17 February, Bogor, Indonesia.

Swasono, S. E. 1990. "Membangun Akar Rumput (Developing the grassroots)." P R O S P E K , No. 4 (21 October).

Talisayon, S. 1991. Social Benefit Cost Analysis for Development Projects. Paper presented to policy and environmental officials of the Department of Environment and Natural Resources, Quezon City, Philippines.

Thomson, J. T , D. H . Feeny, and R. J. Oakerson. 1985. "Institutional Dynamics: The Evolution and Dissolution of Communi ty Property Resource Management," in P r o c e e d i n g s of t h e Conference o n C o m m u n i t y Property Resource M a n a g e m e n t . Washington, D C : National Academy Press.

200 References

U N C E N , Pusat Penelitian. 1990. Laporan Penelitian Interaksi Masyarakat Den-gan Hutan d i Daerah Parieri Biak Timur Irian Jaya (Research report on interaction of the communities with the forest in Parieri, East Biak: Irian Jaya). Proyek Kerjasama Uncen dan Ford Foundation, Jayapura, Indonesia.

USAID. 1990. Environment and Natural Resource Assessment. Final report for the World Resources Institute, Washington, D C .

van Baal, J. 1953. The Nimboran Communi ty Development Project. Technical Paper No. 45, South Pacific Commission, Noumea.

Vergara, N . , J. Dixon, J. Gilbert, J. Swift, N . Briones, and P. Hoare. 1982. The C o n c e p t of A g r o f o r e s t r y — N e w D i r e c t i o n s i n A g r o f o r e s t r y : The P o t e n t i a l of Tropical Legume Trees. East-West Center, Honolu lu , Hawaii , and United Nations University, Tokyo, Japan.

Wacharakirti, S., and L . Chuntanaparb. 1984. Land Use and Resource Management in Northeast Thailand. Department of Forest Management, Faculty of Forestry, Kasetsart University, Bangkok.

Wade, R. 1988. V i l l a g e R e p u b l i c s . Cambridge: Cambridge Univ. Press.

Weinstock, J. A . 1990. Field Investigation, Riau, Sumatera: Study on Shifting Cultivation. Unpublished group report, FAO, Department of Forestry, Jakarta, Indonesia.

Werinussi, C h . 1989. Laporan Penelitian Hak Adat atas Tanah d i Parieri Biak Timur (Research report on customary land rights in Parieri, East Biak). Irian Jaya Rural Community Development Foundation (YPMD-Irja), Jayapura, Indonesia.

Wiersum, F. 1984. Developing Strategies for Social Forestry: A Conceptual A p proach. Working Paper, Environment and Policy Institute, East-West Center, Honolu lu , Hawaii .

YPMD-Ir ja . 1991. Laporan Kegiatan Program Social Forestry, Pilot Site Parieri Biak (1987-91) (Progress report of social forestry pilot site Parieri, Biak). Irian Jaya Rural Communi ty Development Foundation (YPMD-Irja), Jayapura, Indonesia.

Zerner, Charles. 1990. Community Rights, Customary Law, and the Law of Timber Concessions in Indonesia's Forests: Legal Options and Alternatives in Designing the Commons. Forestry Studies UTF/INS/065, FAO, Jakarta, Indonesia.

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15. Too M a n y People, Too L i t t l e L a n d : The H u m a n Ecology of a Wet R i c e - G r o w i n g Village in the Red River D e l t a of V i e t n a m , by Le Trong Cue and A. Terry Rambo, editors, with the assistance of Kathleen Gillogly. 1993, xx, 207 pp. ISBN 0-86638-157-0.

14. South Asian Seas: A Review of the Oceanography, Resources, and E n v i r o n m e n t , by Philomene A. Verlaan. 1991, x, 54 pp. ISBN 0-86638-147-3.

13. K e i m a m i sa vakik na liga n i K a l o u (Feeling the hand of God): H u m a n and N o n h u m a n Impacts on Pacific Island Environments, by Patrick D. Nunn. Revised edition, 1992, viii, 69 pp. ISBN 0-86638-154-6.

12. Agroecosystems of the M i d l a n d s of N o r t h e r n V i e t n a m : A Report on a P r e l i m i nary H u m a n Ecology Field Study of T h r e e Districts in Vinh P h u Province, by Le Trong Cue, Kathleen Gillogly, and A. Terry Rambo, editors. 1990, xiv, 232 pp. ISBN 0-86638-134-1. (Also in Vietnamese; translated by Nghiem Phuong Tuyen and Vu Minh Hoa.)

11. Conservation or Conversion of Mangroves in Fiji: A n Ecological Economic A n a l ysis, by Padma Narsey Lai. 1990, xii, 108 pp. ISBN 0-86638-132-5.

10. I n t e r n a t i o n a l Conference on the Sea of Japan: T r a n s n a t i o n a l Ocean Resource M a n a g e m e n t Issues and Options for Cooperation, by Mark J. Valencia, editor/author. 1989, xiv, 239 pp. ISBN 0-86638-116-3.

8. Water in Nepal: A n I n t e r d i s c i p l i n a r y Look at Resource Uncertainties, Evolving Problems, and F u t u r e Prospects, by Dipak Gyawali. 1989, xii, 126 pp.

6. Forestry Research Capacity i n the Asia-Pacific Region: A n E v a l u a t i o n M o d e l and P r e l i m i n a r y Assessment, by David N. Bengston, Hans M. Gregersen, Allen L. Lundgren, and Lawrence S. Hamilton. 1988, x, % pp.

4. M a r i t i m e Jurisdiction in East Asian Seas, by J.R.V. Prescott. 1987, vi, 72 pp.

3. I n t e r n a t i o n a l Conference on the Yellow Sea: T r a n s n a t i o n a l Ocean Resource M a n a g e m e n t Issues and Options for Cooperation, by Mark J. Valencia. 1987, vi, 165 pp.

2. Applying Ecology to Land M a n a g e m e n t i n Southeast Asia, by David E. Harper, Daniel B. Botkin, Richard A. Carpenter, and Brian W. Mar. 1987, x, 148 pp.

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