1. Masters
in
International
Development
|
PSIA
Development
and
Common
Pool
Resource
Management
Name
:
Edwin
Johan
Santana
Gaarder
Student
number
:
100047222
Page
1
of
13
PROPERTY
RIGHTS
IN
THE
BRAZILIAN
AMAZON
Reforming
the
property
rights
regime
to
incentivise
rainforest
conservation
in
Brazil
The
region
defined
in
Brazilian
legislation
as
the
Legal
Amazon
accounts
for
60%
of
Brazilian
territory.1
Its
surface
area
of
5.139.741
km2
is
larger
than
the
total
surface
area
of
all
EU
member
countries
and
contains
67%
of
the
world’s
total
tropical
rainforest
cover.2
Average
population
densities
in
the
Amazon
biome,
moreover,
are
the
country’s
lowest,
ranging
from
1
to
2,5
inhabitants
per
km2
,
making
it
one
of
the
few
remaining
frontier
regions
in
Brazil
and
the
world
(see
map).3
Prior
to
official
colonisation
efforts
by
the
Federal
Government
in
the
20th
century,
population
densities
were
even
lower:
in
1500,
for
example,
the
indigenous
population
in
the
Amazon
is
estimated
to
been
no
higher
than
5
million
people.4
As
a
consequence
of
persistent
low
population
densities
over
the
course
of
almost
five-­‐hundred
years
of
Brazilian
history,
one
of
the
main
concerns
of
Brazilian
central
governments
has
been
to
exert
control
over
territories
claimed
in
the
Amazon,
a
difficult
task
given
the
dense
vegetation,
hostile
climate,
high
transport
costs
and
limited
human
capital
that
characterise
the
region.
Although
early
governments
claimed
jurisdiction
over
most
of
the
territory
within
the
current
borders
–
basing
themselves
on
exploration
carried
out
by
their
subjects
–
there
had
always
been
a
significant
lack
of
State
presence
in
vast
swathes
of
the
Amazon.5
Protecting
the
integrity
of
Brazilian
territory
–
which
was
threatened
by
French
and
Dutch
invaders
in
the
colonial
period
and
by
neighbouring
countries
(Bolivia,
Peru)
in
the
late
19th
century
–
has
therefore
been
a
guiding
principle
of
successive
governments,
and
granting
conditional
property
rights
to
plots
of
land
has
been
one
of
1
Marco
Antonio
Gonçalves,
The
Brazilian
REDD
Strategy:
How
the
country
has
achieved
major
deforestation
in
the
Amazon,
http://www.mma.gov.br/estruturas/182/_arquivos/reddcop15_ingles_182.pdf,
2009,
(accessed
Monday
20th
April
2015).
2
ibid.
3
IBGE,
Censo
2010,
http://censo2010.ibge.gov.br/en/,
2010,
(accessed
Monday
20th
April
2015).
4
Boris
Fausto,
História
do
Brasil,
São
Paulo,
Brasil,
Editora
da
Universidade
de
São
Paulo,
2006.
5
State
presence,
here,
is
understood
as
the
establishment
of
an
effective
administrative
apparatus,
the
presence
of
military
forces,
or
even
the
residence
of
loyal
citizens
in
the
territory.
Indigenous
inhabitants
do
not
fall
into
the
last
category,
as
few
of
them
ever
recognised
the
authority
of
post-­‐1500
Brazilian
governments.
Source:
IBGE
|
Censo
2010.

2. Masters
in
International
Development
|
PSIA
Development
and
Common
Pool
Resource
Management
Name
:
Edwin
Johan
Santana
Gaarder
Student
number
:
100047222
Page
2
of
13
the
main
policy
instruments
used
to
attain
this
objective.
In
the
colonial
period,
for
example,
full
property
rights
to
land
in
Brazil
were
granted
to
settlers,
free
of
charge,
on
the
condition
that
the
land
be
cultivated
and
a
tithe
paid
to
the
Order
of
Christ.6
In
addition
to
land
that
was
granted
or
sold
under
this
arrangement,
the
1850
Land
Law
regularised
all
informal
occupations
of
land
that
had
occurred
prior
to
1850,
beginning
a
process
of
retroactive
regularisation
of
informal
settlements
that
has
been
repeated,
on
a
periodic
basis,
to
this
day.7
Given
the
sheer
abundance
of
land
in
the
Amazon
region
–
and
the
opportunities
that
exist,
therefore,
for
settlers
to
occupy
lands
that
are
not
being
used
by
others
for
productive
purposes
–
such
retroactive
regularisation
entails
almost
no
costs
for
the
actors
involved.
On
the
contrary,
settlers
are
better
off
when
they
acquire
enforceable
property
rights
from
the
government,
whilst
the
government
benefits
from
an
increased
ability
to
exert
administrative
and
legal
control
over
the
acquired
territories
and
thus
consolidate
territorial
claims.
Although
the
likelihood
of
invasions
and
other
territorial
disputes
was
reduced
over
the
course
of
the
20th
century
as
a
result
of
improved
global
governance
and
international
legislation,
Brazilian
Federal
and
State
governments
still
face
severe
challenges
to
their
sovereignty
from
drug
traffickers,
illegal
logging
enterprises
and
other
mafia-­‐like
groups
in
the
Amazon
region.
The
establishment
of
an
effective
property
rights
regime
therefore
continues
to
be
crucial
to
improving
the
governance
of
this
immense,
sparsely
populated
region.
Today,
interest
in
the
Amazon
region
is
spearheaded
by
profit-­‐seeking
individuals
and
enterprises
as
well
as
the
government,
each
one
seeking
to
secure
its
stake
in
the
region’s
natural
resource
wealth.
Lucrative
private-­‐sector
activities
in
the
region
include
logging,
with
a
view
to
selling
timber,
and
the
use
of
land
for
agricultural
activities
like
soybean
farming
or
the
raising
of
cattle.
In
addition
to
its
claim
on
tax
revenues
from
the
aformentioned
activities,
the
government
has
an
interest
in
granting
land
in
the
region
to
landless
rural
labourers
(represented
by
the
Movimento
dos
Trabalhadores
Rurais
Sem
Terra
or
MST)
who
constitute
an
important
vote
bank
in
Brazil.
The
government
also
faces
strong
pressure
from
environmental
groups
to
protect
and
conserve
the
rainforest
and
its
ecosystems.
The
Amazon
rainforest
is
host
to
a
quarter
of
the
world’s
terrestrial
species,
is
responsible
for
15%
of
global
terrestrial
photosynthesis
and
acts
as
an
engine
of
the
global
atmospheric
circulation,
regulating
evaporation,
condensation
and
precipitation.8
Domestic
and
international
pressure
to
perpetuate
the
environmental
services
provided
by
the
rainforest
–
as
well
as
its
biological
heritage
–
therefore
come
to
bear
on
the
decisions
of
the
Brazilian
government.
The
problem,
however,
is
that
many
of
the
above
activities
can
be
considered
rival:
if
one
logging
company
cuts
down
trees
in
the
Amazon
and
sells
the
timber,
those
same
trees
will
not
be
available
to
another
company;
if
one
farmer
occupies
land
in
the
Amazon
in
order
to
cultivate
soy,
that
same
land
will
not
be
available
to
a
cattle
rancher.
Although
environmental
services
are
not
rival
in
the
same
way
–
everyone
can
benefit
equally,
and
at
the
same
time,
from
carbon
sequestration,
climate
regulation
and
biodiversity
–
rivalry
does
exist
between
different
uses
of
land.
Logging
and
agricultural
activities,
for
example,
are
incompatible
with
the
conservation
of
original
rainforest
cover
for
the
provision
of
environmental
services.
The
6
Bernardo
Mueller,
Lee
Alston,
Gary
D.
Libecap
and
Robert
Schneider,
Land,
Property
Rights
and
Privatization
in
Brazil,
The
Quarterly
Review
of
Economics
and
Finance,
Vol.
34,
Special
Issue,
Summer
1994,
pp.
261-­‐280.
7
ibid.
8
Yadvinder
Malhi
et
al.,
Climate
Change,
Deforestation
and
the
Fate
of
the
Amazon,
Science,
Vol.
319,
169,
2008.

3. Masters
in
International
Development
|
PSIA
Development
and
Common
Pool
Resource
Management
Name
:
Edwin
Johan
Santana
Gaarder
Student
number
:
100047222
Page
3
of
13
government
is
therefore
faced
with
the
monumental
challenge
of
designing
rules
that
strike
a
balance
between
the
competing
interests
described
above
(redistributive,
corporate,
political,
international,
environmental),
even
though
it
is
not
itself
impartial.
In
other
words,
if
the
design
of
rules
for
the
use
of
natural
resources
in
the
Amazon
is
conceived
as
a
strategic
game,
the
government
is
not
an
exogenous
factor
in
the
game
but
an
endogenous
one,
a
player
with
its
own
strategies
(legislate,
monitor,
enforce)
and
pay-­‐offs
(votes,
formal/informal
revenues,
international
reputation).9
It
is
important
to
note,
moreover,
that
although
the
government
is
being
referred
to
here
as
a
monolithic
entity,
in
reality
there
are
many
internal
constraints
to
its
actions,
including
the
need
to
live
within
its
means
(budgetary
constraints).
This
brings
us
to
the
second
massive
challenge
in
the
regulation
of
the
Amazon
rainforest
in
Brazil:
the
sheer
size
of
the
territory
and
of
individual
plots
of
land.
In
most
cases,
it
is
practically
impossible
to
exclude
others
from
using
the
land,
because
fencing
costs
are
too
high
for
private
owners
of
the
land,
or
because
monitoring
and
enforcement
costs
are
too
high
for
the
government.
As
things
stand,
therefore,
the
government
has
not
been
able
to
design
a
set
of
rules
(or
sub-­‐game)
that
can
be
fully
enforced
on
the
ground
and
that
incentivises
individuals
and
companies
to
respect
all
of
its
(often
conflicting)
objectives.
In
the
absence
of
fully
enforceable
rules,
players
fail
to
internalise
the
environmental
and
social
costs
of
deforestation
and
continue
to
behave
according
to
individual
interests,
which
is
unsustainable
in
the
long
run.
This
phenomenon
is
known
as
the
tragedy
of
the
commons.10
Notwithstanding
the
above,
some
rules
do
exist
to
regulate
the
use
of
natural
resources
in
the
Amazon
and
annual
rates
of
deforestation
have
been
falling
rapidly
over
the
past
decade
(see
graph).
It
will
therefore
be
useful,
in
this
section,
to
present
a
brief
description
of
the
Plano
de
Ação
para
Prevenção
e
Controle
do
Desmatamento
na
Amazônia
Legal
(PPCDAm),
a
programme
which
has
been
in
force
since
2004
and
which
most
observers
claim
to
be
responsible
for
recent
9
Lee
Alston
and
Bernardo
Mueller,
Property
Rights
and
the
State,
in
Claude
Menard
and
Mary
Shirley
(eds.),
Handbook
of
New
Institutional
Economics,
Heidelberg,
Germany,
Springer-­‐Verlag,
2008,
pp.
573-­‐590.
10
Garrett
Hardin,
The
Tragedy
of
the
Commons,
Science,
vol.
162,
13
December
1968,
pp.
1243-­‐1248.
Source:
INPE
(http://www.obt.inpe.br/prodes/index.php)

4. Masters
in
International
Development
|
PSIA
Development
and
Common
Pool
Resource
Management
Name
:
Edwin
Johan
Santana
Gaarder
Student
number
:
100047222
Page
4
of
13
reductions
in
annual
rates
of
deforestation.
The
PPCDAm
was
designed
to
address
deforestation
from
three
main
perspectives:
(i) land
tenure
and
land
use
planning;
(ii) monitoring
and
enforcement
of
compliance
with
environmental
legislation;
(iii) promoting
sustainable
use
of
natural
resources.
An
evaluation
of
the
PPCDAm
in
2011
attributes
most
of
the
recent
success
to
the
second
branch
of
the
programme
(see
chart).11
Under
this
branch,
two
new
satellite
systems
were
introduced
–
known
as
Deter
and
Degrad
–
which
are
capable
of
generating
real-­‐time
information
on
deforestation
and
forest
degradation
and
thus
serve
as
the
basis
for
targeted
enforcement
activities
by
the
Federal
Police
and
other
competent
agencies.
In
addition,
between
2004
and
2008,
the
authorities
created
25
million
hectares
of
protected
areas
(Unidades
de
Conservação
or
UCs)
and
10
million
hectares
of
indigenous
lands
in
the
Arc
of
Fire
–
the
frontier
along
which
most
deforestation
has
historically
occurred
(see
map
on
next
page).12
This
clarification
of
the
legal
status
of
the
land,
together
with
effective
monitoring
and
enforcement,
has
acted
as
a
barrier
to
large-­‐scale
illegal
deforestation
in
the
frontier
region,
at
least
in
the
short
run.
Recent
evidence,
however,
suggests
that
deforestation
may
be
adapting
to
these
new
constraints
by
exploiting
weaknesses
in
the
system.
60%
of
newly
deforested
areas
in
2009
were
smaller
than
25
hectares
and
were
therefore
below
the
minimum
area
that
can
be
detected
by
the
Deter
satellite
system.
13
Once
they
were
detected
by
Prodes
–
the
older
satellite
system
that
generates
images
of
a
higher
resolution
(6
hectares)
on
a
more
infrequent
basis
–
it
was
often
too
late
to
identify
and
11
PPCDAm,
Avaliação
do
Plano
De
Ação
Para
Prevenção
e
Controle
do
Desmatamento
na
Amazônia
Legal,
http://repositorio.cepal.org/bitstream/handle/11362/3046/S33375A9452011_pt.pdf?sequence=1,
2011,
(accessed
on
Monday
20
th
of
April
2015).
12
ibid.
13
ibid.
Source:
PPCDAm,
2011
Completion
rate
of
activities
100%
Completion
rate
of
activities
75%-­‐99%
Completion
rate
of
activities
50%-­‐74%
Completion
rate
of
activities
25%-­‐49%
Completion
rate
of
activities
0%-­‐24%
Land
tenure
and
land
use
planning
Monitoring
and
Enforcement
Sustainable
Use
Total

5. Masters
in
International
Development
|
PSIA
Development
and
Common
Pool
Resource
Management
Name
:
Edwin
Johan
Santana
Gaarder
Student
number
:
100047222
Page
5
of
13
punish
the
perpetrators.14
Deforestation,
moreover,
has
recently
been
less
concentrated
in
the
Arc
of
Fire.
Greater
dispersion
means
that
it
has
become
more
costly
to
travel
to
suspect
areas
and
enforce
legislation.15
It
is
important
to
note,
moreover,
that
increases
in
the
effectiveness
of
monitoring
and
enforcement
activities
coincided
with
an
unprecedented
period
of
GDP
growth
in
Brazil
(2000-­‐2010),
during
which
the
government
experienced
a
windfall
in
tax
revenues.
It
is
to
be
expected
that
the
resources
available
to
carry
out
these
activities
will
become
scarcer
now
that
the
country
has
entered
a
period
of
economic
stagnation.
In
this
context,
it
is
significant
that
rates
of
deforestation
have
hovered
around
5.000
km2
per
annum
over
the
past
three
years
–
including
a
constant,
or
perhaps
growing
share
from
within
UCs
and
indigenous
lands
–
suggesting
that
the
PPCDAm
is
experiencing
diminishing
returns
to
monitoring
and
enforcement
activities.
In
order
to
make
further
gains
or
prevent
a
relapse,
therefore,
it
will
be
necessary
to
refocus
attention
on
land
tenure
issues
and
the
incentive
structures
that
arise
from
the
prevailing
property
rights
regime.
Only
if
there
are
strong
incentives
for
individuals
to
use
natural
resources
within
the
Amazon
region
in
a
sustainable
way,
and
if
the
need
for
costly
central
government
intervention
is
limited
to
affordable
levels,
will
deforestation
rates
be
brought
down
in
the
long
run.
Which
brings
us,
at
last,
to
the
system
of
property
rights
that
prevails
in
the
Legal
Amazon
today.
This
system
defines
land
according
to
three
main
categories:
14
ibid.
15
ibid.
Source:
Varela
et
al
(2006)
(http://projects.inweh.unu.edu/inweh/display.php?ID=5364)

6. Masters
in
International
Development
|
PSIA
Development
and
Common
Pool
Resource
Management
Name
:
Edwin
Johan
Santana
Gaarder
Student
number
:
100047222
Page
6
of
13
• Protected
Areas
(31%
of
the
Legal
Amazon).16
These
include
indigenous
lands
(dark
green)
and
UCs.
UCs
are
further
subdivided
into:
- Áreas
de
Proteção
integral
(green),
within
which
all
extractive
activities
are
forbidden;
- Áreas
de
uso
sustentável
(light
green),
within
which
some
extractive
activities
can
be
carried
out
by
economic
actors,
subject
to
the
approval
by
the
government
of
a
sustainable
natural
resource
management
plan.
Evidence
shows
that
indigenous
lands
constitute
the
most
effective
barrier
to
illegal
deforestation
in
these
areas,
because
indigenous
populations
act
as
a
low-­‐cost,
early
warning
system
that
helps
the
authorities
to
detect
deforestation
and
target
enforcement
activities
accordingly.17
In
the
UCs,
by
contrast,
costly
monitoring
and
enforcement
by
satellite
systems
and
non-­‐residents
are
needed
to
prevent
illegal
deforestation
and
ensure
that
extractive
activities
comply
with
sustainable
management
plans.
• Private
lands
(ca.
21%
of
the
Legal
Amazon).18
These
are
lands
over
which
formal
titles
have
been
acquired
by
individuals
or
companies
who:
- purchased
their
title
from
other
private
owners
or
from
the
government;
- benefited
from
Reforma
Agrária,
the
national
land
redistribution
programme;
- benefited
from
retroactive
regularisation
of
informal
land
occupations.
These
lands
are
subject
to
the
Forest
Code
(Código
Florestal
or
CF)
which
stipulates
that
80%
of
privately
owned
plots
of
land
in
the
Amazon
biome
must
be
set
aside
as
a
Legal
Reserve
(Reserva
Legal
or
RL),
meaning
that
original
forest
cover
in
these
areas
cannot
be
cleared.
Title-­‐holders
are
expected
to
provide
information
to
the
Rural
Environmental
Registry
(Cadastro
Ambiental
Rural
or
CAR)
on
the
size,
location
and
boundaries
of
their
plots,
as
well
as
the
areas
within
that
plot
that
have
been
set
aside
as
a
Legal
Reserve.
This
information
is
used
by
the
authorities
to
monitor
compliance
with
the
CF.
However,
as
of
2011,
only
1%
of
rural
properties
had
been
registered
in
the
CAR.19
• Terras
Públicas
Não
Destinadas
(TPñD)
or
Terras
Devolutas
(ca.
45%
of
the
Legal
Amazon).20
The
legal
status
of
these
lands
has
not
changed
since
the
colonial
period.
Although
they
are
technically
‘public
lands’
(i.e.
belonging
to
Federal
or
State
governments),
they
are
not
demarcated
or
destined
for
any
particular
purpose,
(e.g.
conservation,
sustainable
use,
private
ownership,
etc.).
This
leaves
them
vulnerable
to
informal
occupation
(posse)
by
two
types
of
actors:
16
Ibid.
17
Daniel
Nepstad
et
al,
Inhibition
of
Amazon
Deforestation
and
Fire
by
Parks
and
Indigenous
Lands,
Conservation
Biology,
Vol.
20,
No.
1,
65–73,
2006.
18
Instituto
de
Pesquisa
Ambiental
da
Amazônia
(IPAM),
A
Grilagem
De
Terras
Públicas
Na
Amazônia
Brasileira,
Brasília,
MMA,
2006.
19
PPCDAm,
2011.
20
IPAM,
2006.

7. Masters
in
International
Development
|
PSIA
Development
and
Common
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Resource
Management
Name
:
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Santana
Gaarder
Student
number
:
100047222
Page
7
of
13
- grileiros,
who
forge
documents
in
collaboration
with
logging
companies,
agribusinesses,
local
politicians,
bureaucrats
and
notaries,
in
order
to
obtain
de
facto
rights
over
the
lands,
which
which
can
then
be
sold
for
considerable
profit;21
- small-­‐scale
farmers
and
other
members
of
the
local,
rural
population
who
can
exercise
their
rights
under
the
1988
Constitution
to
acquire
formal
title
over
Terras
Devolutas
if
certain
conditions
are
fulfilled,
including
residence
on
and
agricultural
use
of
the
land
(which
can
be
no
larger
than
one
‘rural
module’)
for
a
continuous
period
of
one
year.22
Legitimação
de
posse
is
the
legal
practice
of
regularising
informal
occupations
of
the
second
type.
There
are
still
some
legal
uncertainties
over
whether
land
occupations
of
the
first
type
–
acquired
by
means
of
grilagem
by
former
or
current
occupants
at
some
point
in
the
past
–
are
illegal
or
informal,
meaning
that
claims
are
examined
on
a
case
by
case
basis.23
In
practice,
therefore,
only
the
Law
on
Environmental
Crimes
(Lei
de
Crimes
Ambientais)
protects
Terras
Devolutas
from
untrammelled
deforestation
by
grileiros.24
The
property
rights
regime
described
in
the
previous
paragraph
emerged
as
a
result
of
the
first-­‐
order
problem
addressed
in
the
beginning
of
this
paper,
which
corresponds
roughly
to
the
“second
institutional
level”
outlined
by
Williamson
(see
above).25
How
do
the
“formal
rules
of
the
21
Grileiros
are
those
who
engage
in
grilagem,
the
practice
of
faking
documents
in
order
to
obtain
property
rights
over
land.
The
term
originates
from
the
historical
use
of
crickets
(grilos)
to
make
documents
look
old
and
authentic.
22
A
rural
module
is
a
measure
of
the
size
of
a
plot
of
land,
which
is
defined
by
municipal
governments.
23
IPAM,
2006.
24
Sparovek
et
al,
A
Revisão
do
Código
Florestal
Brasileiro,
Novos
Estudos,
Vol.
89,
March
2011.
25
Oliver
E.
Williamson,
The
New
Institutional
Economics:
Taking
Stock,
Looking
Ahead,
Journal
of
Economic
Literature,
Vol.
XXXVIII,
September
2006,
pp.
595–613.

8. Masters
in
International
Development
|
PSIA
Development
and
Common
Pool
Resource
Management
Name
:
Edwin
Johan
Santana
Gaarder
Student
number
:
100047222
Page
8
of
13
game”
arise?
UCs,
Legal
Reserves
and
indigenous
lands
are
rights
and
obligations
created
by
the
government
in
response
to
the
demand
from
domestic
and
international
pressure
groups
for
rainforest
conservation
and
the
protection
of
indigenous
rights.
Existing
private
property
rights
over
agricultural
land,
on
the
other
hand,
(as
well
as
the
periodic,
retroactive
regularisation
of
informally
occupied
lands)
safeguards
the
economic
interests
of
the
agricultural
sector.
The
redistribution
of
land
through
INCRA,
in
its
turn,
is
a
way
of
responding
to
the
democratic
demand
for
lands
by
the
landless
rural
labourers,
who
constitute
a
significant
vote
bank
for
the
government.
Taken
together,
all
of
these
measures
allow
the
government
to
extend
its
administrative
control
over
the
area,
reinforce
its
jurisdiction
and
strengthen
its
monopoly
on
the
legitimate
use
of
violence
in
the
region.
The
problem,
however,
lies
in
the
third
institutional
level
defined
by
Williamson,
which
he
refers
to
as
the
“play
of
the
game”.26
Given
the
rival,
non-­‐
excludable
nature
of
land
and
natural
resources
in
the
Amazon
region,
it
is
almost
inevitable
that
the
interested
parties
described
above
–
armed
with
their
respective
‘rights’
–
come
into
conflict
with
each
other.
Although,
in
theory,
the
Brazilian
judiciary
has
at
its
disposal
a
number
of
tools
that
can
be
used
to
adjudicate
between
these
parties
and
resolve
such
conflicts,
the
inaccessibility
of
certain
areas
in
the
Amazon
region
and
the
lack
of
State
presence
there
mean
that
it
is
difficult
to
obtain
accurate
information
on
disputes,
and
therefore
to
pass
judgments
and
enforce
decisions.
The
result
is
that
actors
often
find
themselves
competing
for
attention
from
the
State,
or
attempting
to
establish
faits
accompli
which
are
hard
to
reverse
and
are
therefore
candidates
for
retroactive
regularisation.
The
use
of
grilagem
to
obtain
titles
that
are
later
recognised,
either
de
facto
or
de
jure,
is
a
good
example.
Another
example
is
the
strategy
used
by
the
MST
and
rural
landless
workers
to
occupy
private
lands
and
claim
them
under
the
land
redistribution
programme
run
by
INCRA,
a
phenomenon
that
has
been
described
in
detail
by
Alston,
Libecap
and
Mueller.27
Since
retroactive
regularisation
of
property
rights
is
only
carried
out
if
there
has
been
continuous,
productive
use
of
the
land
(whereas
forested
areas
are
in
practice
not
considered
to
be
in
‘productive’
use)
informal
occupation
often
leads
to
deforestation.28
Private
owners
of
legal
title
to
lands
are,
in
turn,
often
left
with
only
one
effective
strategy
to
prevent
their
lands
from
being
expropriated
under
the
land
redistribution
programme,
which
is
to
preempt
informal
occupations
and
clear
the
forest
themselves,
even
if
this
entails
a
reduction
in
Legal
Reserves
below
the
level
stipulated
by
the
CF.29
Because
of
the
failure
of
the
government
to
collect
environmental
fines,
this
is
often
a
less
costly
option
than
allowing
lands
to
be
occupied
by
the
MST:
between
2009
and
2013,
for
example,
R$15,4
billion
in
fines
were
charged
by
the
authorities
but
only
1,8%
of
the
total
amount
was
ever
received.30
Which
brings
us
to
another
conflict,
between
environmental
pressure
groups
and
the
agricultural
interests
who
believe
themselves
to
be
engaged
in
a
rush
for
land.
Araújo
and
Barreto
discuss
one
facet
of
this
26
ibid.
27
Alston,
Libecap
and
Mueller,
Land
Reform
Policies,
The
Sources
of
Violent
Conflict
and
Implications
for
Deforestation
in
the
Brazilian
Amazon,
Journal
of
Environmental
Economics
and
Management,
Vol.
39,
2000,
pp.
162-­‐188.
28
Araújo
et
al,
Property
Rights
and
Deforestation
in
the
Brazilian
Amazon,
Ecological
Economics,
Vol.
68,
2009,
pp.
2461–2468.
29
ibid.
30
Araújo
and
Barreto,
Estratégias
e
fontes
de
recursos
para
proteger
as
Unidades
de
Conservação
da
Amazônia,
Belém,
Pará,
IMAZON,
2015.

9. Masters
in
International
Development
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PSIA
Development
and
Common
Pool
Resource
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Name
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Edwin
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Student
number
:
100047222
Page
9
of
13
conflict:
the
phenomenon
of
informal
land
occupations
within
UCs
and
indigenous
territories.31
In
several
cases
examined
by
the
authors,
the
authorities
have
shown
themselves
willing
to
recognise
such
occupations
as
faits
accomplis
and
retroactively
regularise
them,
on
the
assumption
that
such
occupations
were
carried
out
in
‘good
faith’.
This
has
the
obvious
effect
of
undermining
the
PPCDAm’s
strategy
of
using
UCs
and
indigenous
lands
as
a
barrier
against
deforestation
in
the
Arc
of
Fire.32
The
2012
revisions
to
the
CF
are
another
example
of
how
faits
accomplis
have
been
used
by
agricultural
interests
to
lobby
for
a
change
in
the
“formal
rules
of
the
game”.
The
agricultural
lobby
argued
that
the
cost
of
compliance
with
the
old
CF
–
which
would,
in
a
large
number
of
cases,
have
entailed
‘reforesting’
rural
properties
in
order
to
meet
the
80%
RL
requirement
–
were
too
high,
and
were
thus
able
to
obtain
an
amnesty
on
‘environmental
debt’
incurred
before
2008
for
all
properties
between
20
and
440
hectares.33
Conflicting
Parties
Rules
of
the
Game
Play
of
the
Game
Grileiros
Government
Formal
property
rights
over
land
above
one
‘rural
module’
cannot
be
acquired
through
‘productive
use’
+
residence
Acquisition
and
use
of
land
above
one
‘rural
module’
(logging,
agriculture)
is
subject
to
purchase
agreement
+
environmental
license
Local
government
actors
and
notaries
are
coopted
by
grileiros
(through
informal
payments)
and
provide
fake
documentation
Long
delays
in
monitoring
and
enforcement
mean
it
is
difficult
to
trace
original
act
of
grilagem
Lands
are
sold
to
new
occupants
who
are
not
directly
implicated
in
grilagem
and
have
made
investments
in
the
land
It
is
difficult
to
evict
informal
occupants
so
government
is
incentivised
to
retroactively
regularise
occupations
Rural,
landless
labourers
/
MST
Landowners
with
title
Property
rights
can
be
acquired
through
‘productive
use’
of
‘unused’
private
land.
CF:
80%
of
private
land
must
be
conserved
(RLs)
RLs
are
considered
to
be
‘unused
land’
Rural
landless
labourers
clear
forests
in
order
to
demonstrate
‘productive
use’
Owners
clear
forest
in
order
to
preempt
occupation
by
rural
landless
labourers
Owners
violate
the
RL
requirements
of
the
CF
but
no
real
costs
are
incurred.
Environmental
interests
Agricultural
interests
Indigenous
lands
and
UCs
cannot
be
cleared
for
purposes
of
agriculture
CF:
80%
of
private
land
must
be
conserved
(RLs)
Deforestation
is
a
means
of
acquiring
/
securing
formal
property
rights
(see
above)
Monitoring
and
enforcement
are
weak.
Fines
are
not
collected.
Informal
settlers
and
owners
are
incentivised
to
clear
forests
for
personal
gain
and
to
secure
property
rights.
Environmental
laws
are
not
respected.
Corrective
measures
are
costly.
The
government
is
incentivised
to
retroactively
regularise
in
order
to
ensure
administrative
control
and
legal
jurisdiction
over
the
territory
and
its
inhabitants.
31
ibid.
32
PPCDAm,
2011.
33
Soares-­‐Filho
et
al,
Cracking
Brazil’s
Forest
Code,
Science,
Vol.
344,
25
th
April
2014,
pp.
363-­‐364.
“Environmental
debt”
refers
to
the
actual
RL
on
private
lands
minus
the
RL
requirement
defined
by
the
CF.

10. Masters
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PSIA
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Student
number
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Page
10
of
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It
seems
clear,
therefore,
that
insufficient
capacity
to
regulate
the
‘play
of
the
game’
and
ensure
that
rules
are
followed
is
leading
to
strategic
behaviour
by
actors,
who
seek
to
establish
faits
accomplis
that
they
can
then
use
as
evidence
for
the
need
to
retroactively
redefine
the
‘rules
of
the
game’
in
their
favour.
The
expropriation
of
private
land
which
is
then
transferred
landless
rural
labourers
under
the
Reforma
Agrária,
the
retroactive
regularisation
of
settlements
in
Terras
Devolutas
and
Protected
Areas,
the
changes
to
the
Código
Florestal
in
2012
that
forgave
environmental
debt
incurrer
prior
to
2008,
all
of
these
are
examples
of
how
the
‘rules
of
the
game’
have
been
changed
in
response
to
the
strategic
actions
of
those
‘playing
the
game’,
who
consciously
choose
not
to
abide
by
the
rules
given
the
low
risk
of
detection
and
punishment
by
the
authorities.
Although
it
is
not
within
the
scope
of
this
paper
to
provide
detailed
recommendations
on
how
to
ensure
that
players
abide
by
the
rules
in
the
future,
it
seems
clear
that
top-­‐down
monitoring
and
enforcement
will
never
be
efficient
and
effective
enough
to
deter
players
from
acting
in
this
way.
Instead,
an
incentive
structure
needs
to
be
designed
that
will
encourage
players
to
respect
established
property
rights
and
abide
by
rules
of
their
own
accord.
In
order
to
achieve
this
objective,
it
is
imperative
that
the
legal
status
of
all
lands
be
well
defined
and
assurances
provided
that
this
status
will
not
be
retroactively
changed
in
the
future.
With
this
in
mind,
Araújo
and
Barreto
strongly
recommend
that
the
retroactive
transformation
of
Protected
Areas
into
private
lands
should
be
made
illegal.34
Insofar
as
private
lands
and
Terras
Devolutas
are
concerned,
accurate
information
on
existing
property
rights
and
compliance
with
environmental
legislation
should
be
made
available
on
a
priority
basis.
Landowners
in
possession
of
titles
should
be
encouraged
to
register
in
the
CAR
through
positive
and
negative
incentives
(RLs
that
are
registered
in
the
CAR
could
be
exempted
from
expropriation
under
the
land
redistribution
programme,
for
example,
or
the
sale
of
timber
or
agricultural
products
from
land
that
is
not
registered
in
the
CAR
could
be
restricted
or
subject
to
penalties
on
domestic
or
international
markets).
The
status
of
informally
occupied
lands,
should
be
clarified
once
and
for
all.
For
informal
properties
that
have
respected
the
conditions
established
by
the
Constitution
(i.e.
smaller
than
one
rural
module,
inhabited
by
the
owners
and
used
for
agricultural
purposes,
in
compliance
with
labour
legislation)
this
requires
registration
as
a
rural
property,
demarcation
through
the
use
of
GPS
and
issuance
of
title.
The
main
instrument
used
to
carry
out
this
process
so
far
has
been
the
Programa
Terra
Legal,
a
sub-­‐programme
of
the
PPCDAm
that
seeks
to
regularise
small
properties
settled
before
2004.
However,
its
registration
targets
are
still
far
from
being
reached
(see
chart).35
To
make
matter
worse,
the
Programa
Terra
Legal
does
not
collect
information
on
regularised
properties’
compliance
with
the
CF,
nor
does
it
register
them
in
the
CAR,
even
though
synergies
between
the
two
registration
processes
could
result
in
significant
savings
for
the
State.
Another
recommendation,
therefore,
would
be
to
merge
the
process
so
that
registration
in
the
CAR
(and
compliance
with
the
CF)
becomes
a
precondition
for
obtaining
land
title,
thus
using
property
rights
as
an
incentive
for
compliance
with
environmental
legislation.
On
a
broader
note,
it
is
also
necessary
to
streamline
the
bureaucratic
process
in
order
to
make
registration
and
the
supply
of
information
less
costly
for
property
rights
holders.
The
creation
of
a
34
Araújo
and
Barreto,
2015.
35
PPCDAm,
2011.

11. Masters
in
International
Development
|
PSIA
Development
and
Common
Pool
Resource
Management
Name
:
Edwin
Johan
Santana
Gaarder
Student
number
:
100047222
Page
11
of
13
unified
registration
system
that
can
be
easily
accessed
by
all
government
entities
(Federal,
State,
Municipal,
IBAMA,
Federal
Police,
etc.)
will
be
crucial
to
ensure
that
overlap
and
contradictions
are
avoided
and
uncertainties
minimised.
Lastly,
it
is
important
to
ensure
that
lands
occupied
as
a
result
of
grilagem
be
subject
to
a
rigorous
evaluation,
which
assesses
the
land
for
extant
environmental
assets
and
possible
environmental
damage
caused
by
the
occupant,
estimates
the
economic
value
of
those
portions
of
the
land
that
are
being
put
to
productive
use
and
considers
the
relative
feasibility
and
desireability
of
regularisation
(under
certain
conditions)
as
compared
to
expropriation.
This
process
should
pay
particular
attention
to
the
issue
of
moral
hazard,
seeking
to
ensure
that
illegal
practices
are
not
rewarded
at
the
expense
of
the
State.
In
the
short
run,
funds
from
the
Fundo
Amazônia
(made
up
of
donations
from
Norway
and
Germany
under
the
REDD+
scheme)
should
be
used
to
complete
these
one-­‐off
registration
efforts
as
soon
as
possible.
All
remaining
lands
should
immediately
be
given
a
legal
status
and
a
attributed
a
specific
purpose
(e.g.
conservation,
indigenous
territory,
land
for
sustainable
use)
with
a
view
to
eliminating
the
category
of
Terras
Devolutas,
hitherto
the
prime
candidates
for
informal
occupation.
In
the
long
run,
the
Fundo
Amazônia
should
be
used
to
provide
incentives
for
private
owners
of
land,
traditional
communities
and
those
who
engage
in
sustainable
economic
activities
in
forested
areas
to
conserve
the
rainforest
and
to
act
as
monitors
and
stewards
of
the
land
that
has
been
assigned
to
them.36
Further
research
is
needed
to
develop
a
sustainable
funding
mechanism
for
the
Fundo
Amazônia
(international
donations,
general
taxation,
sale
of
carbon
credits)
and
an
effective
way
of
managing
payments
for
environmental
services
(PES),
but
it
is
in
the
interests
of
all
actors
that
such
a
mechanism
be
developed
soon,
since
PES
constitute
the
only
monetary
incentive
that
can
effectively
compete
with
the
rents
from
logging
and
agricultural
production.
In
the
meantime,
it
is
important
to
make
sure
that
a
well-­‐
defined
property
rights
system
is
in
place
when
PES
finally
become
available,
in
order
to
avoid
strategic
behaviour
that
could
undermine
environmental
and
economic
objectives
in
the
long
run.
This
paper
has
sought
to
describe
the
current
property
rights
system
and
the
inadequacies
of
36
Marcus
Peixoto,
Pagamento
por
Serviços
Ambientais:
Aspectos
Teóricos
e
Proposições
Legislativas,
http://www12.senado.gov.br/publicacoes/estudos-­‐legislativos/tipos-­‐de-­‐estudos/textos-­‐para-­‐discussao/td-­‐105-­‐
pagamento-­‐por-­‐servicos-­‐ambientais-­‐aspectos-­‐teoricos-­‐e-­‐proposicoes-­‐legislativas,
2011,
(accessed
on
Monday
20th
of
April
2015).
Performance
of
the
Terra
Legal
programme
(number
of
properties
processed)
Performance
of
the
Terra
Legal
programme
(number
of
hectares
processed)
Target
Registered
Demarcated
(GPS)
Titled
Target
Registered
Demarcated
(GPS)
Titled

12. Masters
in
International
Development
|
PSIA
Development
and
Common
Pool
Resource
Management
Name
:
Edwin
Johan
Santana
Gaarder
Student
number
:
100047222
Page
12
of
13
monitoring
and
enforcement
activities
by
the
Brazilian
government,
despite
recent
improvements.
It
has
argued
that
the
property
rights
system
that
applies
to
land
in
the
Amazon
needs
to
be
reformed,
in
order
to
build
on
these
improvements
and
create
an
incentive
structure
that
encourages
actors
to
refrain
from
illegal
deforestation.
Some
tentative
suggestions
have
been
made
regarding
the
possible
design
of
such
an
incentive
structure,
and
it
is
hoped
that
these
ideas
could
be
developed
further
through
targeted
research,
bearing
in
mind
the
possibility
of
future
integration
with
an
international
or
domestic
PES
system.
Through
enhanced
effort,
in-­‐
depth
analysis
and
well
designed
policies,
it
is
believed
that
deforestation
rates
in
the
Legal
Amazon
can
continue
to
be
reduced,
generating
opportunities
for
sustainable
development
and
preserving
the
environment
for
future
generations.
Works
Cited
Alston,
L.,
and
Mueller,
B.,
Property
Rights
and
the
State,
in
Menard
C.
and
Shirley
M.
(eds.),
Handbook
of
New
Institutional
Economics,
Heidelberg,
Germany,
Springer-­‐Verlag,
2008,
pp.
573-­‐
590.
Alston,
Libecap
and
Mueller,
Land
Reform
Policies,
The
Sources
of
Violent
Conflict
and
Implications
for
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in
the
Brazilian
Amazon,
Journal
of
Environmental
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Vol.
39,
2000,
pp.
162-­‐188.
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et
al,
Property
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in
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Amazon,
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2009,
pp.
2461–2468.
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and
Barreto,
Estratégias
e
fontes
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proteger
as
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de
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da
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B.,
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Brasil,
Editora
da
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de
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Paulo,
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M.A.,
The
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REDD
Strategy:
How
the
country
has
achieved
major
deforestation
in
the
Amazon,
http://www.mma.gov.br/estruturas/182/_arquivos/reddcop15_ingles_182.pdf,
2009,
(accessed
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20th
April
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G.,
The
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http://censo2010.ibge.gov.br/en/,
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A
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L.,
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G.D.
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13. Masters
in
International
Development
|
PSIA
Development
and
Common
Pool
Resource
Management
Name
:
Edwin
Johan
Santana
Gaarder
Student
number
:
100047222
Page
13
of
13
discussao/td-­‐105-­‐pagamento-­‐por-­‐servicos-­‐ambientais-­‐aspectos-­‐teoricos-­‐e-­‐proposicoes-­‐
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2011,
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on
Monday
20th
of
April
2015).
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Avaliação
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debt”
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to
the
actual
RL
on
private
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minus
the
RL
requirement
defined
by
the
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