17 2. COMMONS AND THE GUIDELINES
These legitimate tenure rights should be safeguarded and legally protected against infringement, extinguishment, forced or arbitrary eviction §§ 4.4, 4.5, 7.1, 7.6, 9.5, 10.6
and unauthorized use 9.8. They should also be considered in spatial planning § 20.3. The Guidelines call on states to clearly deine and publicize the categories of rights that
are considered legitimate in the national context through a transparent, participatory and consultative process, in accordance with the Guidelines §§ 3B, 4.4, 8.2.
3. Communities need to participate and be consulted.
One of the core procedural requirements in the Guidelines is participation and consultation: “engaging with and seeking the support of those who, having
legitimate tenure rights, could be afected by decisions, prior to decisions being taken, and responding to their contributions; taking into consideration existing power
imbalances between diferent parties and ensuring active, free, efective, meaningful and informed participation of individuals and groups in associated decision-making
processes” § 3B.6.
This gives communities with legitimate tenure rights a far-reaching right to be consulted and to participate in decision-making that might afect them, such as
participation in the formulation and implementation of policy and law, decisions on the allocation of tenure rights, and decisions on territorial development §§ 4.10, 5.5,
9.2, 9.10, 8.6, 8.7. For indigenous peoples, the Guidelines additionally require “free, prior and informed consent” FPIC under the United Nations Declaration on the Rights
of Indigenous Peoples § 9.9 of the Guidelines and related human rights instruments, including the application of this standard for investment projects. The FPIC standard
also applies to the zoning and sale of resource concessions, land acquisition, leasing of land, and state plans for resource development or extraction see also FAO, 2014a.
Both state and non-state actors are called on to provide technical and legal assistance to communities to facilitate and ensure their participation, especially that
of vulnerable and marginalized groups § 9.10.
4. There should be delegation of responsibility and authority for commons, recognition of self-governance, and integration of customary and statutory
systems. Overall, the Guidelines attribute to communities a key role in governing and managing
common land, isheries and forests and aim to delegate responsibility and authority for commons and collective tenure arrangements §§ 8.7, 8.8, 9.2, 9.4. States have the
power to allocate tenure rights in various forms, from limited use to full ownership § 8.8. They should specify in their policies the delegation of responsibilities and rights
for tenure governance § 8.7, and determine whether they will retain for themselves any form of control over allocated land, isheries and forests § 8.8. States need to
make sure that their allocation policies are consistent with broader social, economic and environmental objectives § 8.1, that the policies take into account the social,
cultural, spiritual, economic, environmental and political values of land, isheries and forests § 9.7, and that they do not threaten the livelihoods of people by depriving
them of their legitimate access to these resources § 8.7.
18 GOVERNING TENURE RIGHTS TO COMMONS
Furthermore, the Guidelines call on states to recognize and protect the rights of self-governance of indigenous peoples and other communities with customary
tenure systems § 9.2. These rights of self-governance are bound to human rights standards, e.g. “where constitutional or legal reforms strengthen the rights of women
and place them in conlict with custom, all parties should cooperate to accommodate such changes in the customary tenure systems” § 9.6. They are also bound to the
objective of providing equitable, secure and sustainable access, and inclusive and participatory decision-making processes § 9.2. At the same time, “states should
consider adapting their policy, legal and organizational frameworks to recognize tenure systems of indigenous peoples and other communities with customary tenure
systems” § 9.6.
5. There are numerous administrative tasks involved in implementing tenure rights to commons.
