Who is the ‘community’?

11 2. COMMONS AND THE GUIDELINES by the indigenous or customary community, and the diferent members of this community may hold multiple and overlapping bundles of tenure rights to the common resource. In another situation, diferent communities may negotiate and agree on allocating certain bundles of rights to parts of the resources to members of the diferent communities for permanent or temporary collective use. However, in many cases, governments withhold the authority normally associated with ownership. This makes them unduly empowered to determine how the resources are used or to issue commercial use rights in the form of concessions for logging, mining, industrial agriculture and ranching on the customarily held commons. In other cases, governments retain important management rights, which often leads to over-regulation of use and high barriers and costs to legally use common resources. • Commons may be newly established where groups e.g. forest user groups come together to create rules and norms to use, manage and even own a speciic natural resource collectively. Such groups may also build a cooperative or an association to utilize the resource collectively and organize and carry out production as a collective. These commons may also be subject to the scenarios described above under the irst two bullet points. To secure tenure rights to commons and support the collective action needed to sustain common resources, it is crucial to devolve rights and responsibilities to govern the commons to local groups or communities and recognize their collective tenure rights see Chapter 2.2 on why it is important to secure tenure rights to commons. Hence the challenge for legislation and law implementation is to account for the complexity, diversity and lexibility of the bundles of tenure rights to commons, and to recognize the rights and responsibilities of groups or communities to govern these rights. 2. Who is the ‘community’? What constitutes a group or ‘community’ varies by region and country, by circumstance and by the nature of the resource involved. For the purposes of this guide, a community is understood in a broad sense to be a complex social and geographical unit comprising diferent types of members who have something in common. For example, the members may have in common a certain profession; an ailiation with an ethnic or religious group; a shared history; a cultural identity or kinship; an authority, common norms or rules regarding access to and use of natural resources; a common residence in existing and former settlement sites; a common use or occupation of a territory or geographical area … or combinations of these. A community may therefore be, for example, a single village or a cluster of villages, a group of persons within a village, a cluster of families, or a set of diferent user groups e.g. mobile pastoralists, settled farmers. A community may be deined by tradition or kinship, or it may deine itself, for example, in terms of resource uses or patterns of particular tenure rights e.g. a ishing community. In other cases, a community may be deined by administrative law e.g. villages as local government bodies. 12 GOVERNING TENURE RIGHTS TO COMMONS The social and geographical boundaries of a community may be lexible and renegotiated and adapted over time. They may also be only vaguely deined, as for example in forested areas, where some boundaries are so remote from settlements and the current main areas of use that no clear spatial boundaries are deined. Boundaries may hence appear fuzzy to outsiders, while the rights holders themselves may be well aware of their community boundaries and members. What is more, while a community’s social boundaries may be easily deined and upheld in the locality, its composition may alter with every birth, death, marriage or migration. Communities undergo constant change. In many cases they are not always clearly deined socially homogenous entities with legitimate and responsible leadership that always regulate the commons in a sustainable and inclusive manner, but rather are characterized by socio-economic disparities and power imbalances. Three interrelated socio-economic trends have been speeding up processes of change: migration and translocality; a gradual shift from a subsistence economy based on community solidarity towards an individualized and commercialized economy; the formalization of governance institutions, including the replacement of customary institutions with local government bodies. In this context, it is crucial to arrive at a realistic concept of community-based governance for commons that respects the imperative of local self-governance of natural resources, while supporting inclusive, equitable and sustainable beneits as well as participatory, transparent and inclusive processes.

3. Diversity of legal systems