Patrick McAuslan: Legal dimensions to providing for customary forest rights
Legal dimensions to providing
for customary forest rights
Professor Patrick McAuslan
• Going to talk about the legal aspects of providing
for customary and traditional forest rights when
legislating for forest management with special
reference to Anglophone experiences.
• I will look at Tanzania’s Forest Act 2002 which I
was involved in drafting in the late 1990s.
• What were the practical solutions that were
implemented in Tanzania and what are legal
dimensions that had to be addressed to make
Legal Pluralism: the key issue
• The co-existence of two or more legal systems
in one country: the imposed system – common
law, Roman-Dutch law, civil law; the customary
law system and for some countries Shari’a.
• Issue must be addressed in developing forest
laws which provide for customary forest tenure
rights to be given an equal role in forest
management to statutory rights based on the
• Equality of tenure and legal systems
• Recognition of communal rights in land
• All tenure systems adapt to national goals
• Provisions to opt from one system to another
• Use of customary ADR for dispute settlement
• Judicial system empowered to fuse the systems
• Local level land administration
• In land adjudication, record all customary
• Clear rules for public and private actions
• Bringing formal market institutions on board
Forest Act 2002: Tanzania
• Tenure principles of the Forest Act followed the
tenure principles of the Land Act and Village
Land Act 1999 based on National Land Policy
• These Acts based on customary tenure being
equal tenure to statutory tenure, gave village
councils powers to manage village land held in
accordance with principles of customary tenure,
modified to comply with Constitution and NLP.
• Under the colonial Forest Act enacted in 1957
customary rights derived from and understood
by local communities were converted to statutory
permissions deriving their authority from central
• This was based on belief that the common
property forest resources under customary law
operated on ‘unregulated open access use’ as
customary system lacked any institutions or
mechanisms to enforce rules about limited use.
National Forest Policy 1998
• NFP of Tanzania, the basis on which Forest Act
was drafted made decisive break with this
approach. It provided a legal framework for
community-based ownership of forests.
• NFP accepte that rather than replace existing
rights and authority derived from below with
statutory non-rights and authority derived from
above, government should build on and adapt
existing rights and authorities.
Anglophone Models for the Law
• South Africa: Community Property
Association Act 1996
• Uganda: Land Act 1998 drew on and
• Zanzibar: Resource Management and
Conservation Act: Community
Management Group; CFM Area
• Gambia: Community Forest Management
Agreement with ‘concerned group’
Drafting the Forest Act
• Issues and Options Paper to suggest how
NFP can be turned into law
• I&O paper discussed
• Drafting group worked on 1st draft
• Workshop on 1st draft
• Work on 2nd draft
• Workshop on 2nd draft
• 3rd draft submitted to Ministry
Act recognises customary rights
• Find out and record existing forest rights which
local communities claimed in a forest which is or
is proposed for a forest reserve.
• Investigator appointed to investigate claims to
customary rights in proposed forest reserves.
• Investigator assists persons to make claims and
is given wide powers to get information
necessary to make recommendations on forest
How customary rights developed
• Five possibilities for the investigator to come up with:
• continuation of the existing rights;
• continuation of existing rights with modification(s);
• don’t declare a forest reserve because of effect on
• end rights because of importance of forest reserve:
replace rights by licences;
• create a village land or community forest reserve as
best way to preserve existing rights and the forest.
• proposal which deprives persons of their customary
tenure rights involve the payment of compensation
Community Forest Groups
• Act provides for community forest management
• Act helps community groups in two ways;
• first, recognition of existing and traditional
• second, by the establishment of community
forest management groups.
• wide range of persons may form themselves into
a community forest management group.
• groups to be inclusive and democratic and must
consult members before taking specific actions.
Lessons from Forest Act 1
• national policy must be in place before a law can be
drafted. Laws cannot be a substitute for policy but must
follow and apply policy.
• national policy of recognition of customary forest tenure
as an equal tenure to statutory forest tenure must
adopted. Forests cannot be managed as if customary
tenure did not exist.
• use participative approach to find out what customary
forest rights people have; this needed to develop forest
management laws incorporating such customary rules.
• a participative approach to developing community forest
reserves should be adopted with reserves being
recognised on the basis of practice on the ground.
Lessons from Forest Act 2
• legal backing for community managed reserves based
on existing traditional management practices or via new
community management organisations should be in law.
• where community and village forest reserves exist
central advice, support, supervision and if necessary
intervention to ensure proper management must exist
• a clear legal regime to ensure accountable, transparent
and democratic forest management at all levels.
• open participative approach to law making makes better
law, more understanding and wider acceptance.
• any forest law should be kept under continuous review
and amended and revised as circumstances change.