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Patrick McAuslan: Legal dimensions to providing for customary forest rights


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Day 1, Session 1: Current status of tenure and emerging lessons from ongoing reform

Presentation by Patrick McAuslan, Professor of Law, Birkbeck, University of London

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Patrick McAuslan: Legal dimensions to providing for customary forest rights

  1. 1. Legal dimensions to providing for customary forest rights Professor Patrick McAuslan
  2. 2. Introduction • 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 this possible?
  3. 3. 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 received law
  4. 4. 10 principles • 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 interests • Clear rules for public and private actions • Bringing formal market institutions on board
  5. 5. 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.
  6. 6. Colonial Background • 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 government. • 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.
  7. 7. 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.
  8. 8. Anglophone Models for the Law • South Africa: Community Property Association Act 1996 • Uganda: Land Act 1998 drew on and simplified CPAA • Zanzibar: Resource Management and Conservation Act: Community Management Group; CFM Area • Gambia: Community Forest Management Agreement with ‘concerned group’
  9. 9. 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
  10. 10. 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 tenure rights.
  11. 11. 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 existing rights; • 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
  12. 12. Community Forest Groups • Act provides for community forest management • Act helps community groups in two ways; • first, recognition of existing and traditional groups • 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.
  13. 13. 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.
  14. 14. 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.