Forest tenure Summary of the current situation

20 The majority of the land allocated under social forestry programmes has been degraded forest. For example, in Viet Nam, 75 percent of the forestland allocated to local people under the Community Forestry Management Pilot Programme was bare land or poor-quality forest RECOFTC, 2010. Most community forests are designated for the purpose of production and the protection of soils and water resources. The transfer of management and use rights in conservation forests and protected areas has been less common, even when permitted under national law. Recently, Cambodia began to develop mechanisms to engage local people in the management of protected forest areas RGC, 2010; Oberndorf, 2010. Indonesia and Viet Nam are exploring co-management or collaborative options to improve the management of protected forests under pressure from human activity Mulyana et al., 2010; Swan, 2008; Nguyen et al., 2012.

2.5 Forest tenure

The specific bundles of rights, duties and responsibilities Box 6 that are transferred and the length of tenure vary with the different models Table 9. The length of tenure ranges from 15 years in Cambodia to 50 years in Viet Nam and as much as 70 years in Lao PDR under specific circumstances. Box 6: Land and forest tenure and bundles of rights Tenure arrangements consist of a package or “bundle” of assigned rights, responsibilities and benefits. In many cases, the details of the tenure rights transferred to local people depends upon the type of land or forest and the model of social or community forestry being applied. Different types of rights relating to forest land include: •฀ access rights – right to enter an area of forest; •฀ use or withdrawal rights – to use timber and non-timber forest products; •฀ management rights – to make decisions about forest use patterns and improvements; •฀ exclusion rights – right to decide who can and cannot use the forest resources; •฀ alienation rights – rights to lease, sell, exchange, transfer, inherit, mortgage or use the land as financial collateral; •฀ carbon rights – a newly emerged right, likened to property and intellectual property rights, to “commoditize” carbon and allow it to be traded in voluntary and regulatory markets. ASEAN governments have yet to develop legislation on carbon rights, but this will presumably be based upon established systems of forest ownership and use rights Suzuki, 2011; Felicani-Robles, 2012. Tenure agreements are generally renewable if conditions have been met, although tenure rights can be withdrawn by the government in the public interest; guidelines governing compensation are often unclear or insufficient. In Malaysia, social forestry does not include transfer of tenure rights but instead focuses on the development of basic village infrastructure and alternative livelihood projects on state forestland. In almost all cases, rights include both access and management rights. In the Philippines, the State retains significant control over community-based forest management through regulations on resource use; community-based forest management is vulnerable to changes in government policies, although indigenous communities are granted substantially more autonomy through ancestral domain titles than in most other countries. In the majority of cases, rights cannot be alienated. The exceptions are Myanmar, where rights can be inherited, and Viet Nam, where they can be inherited, rented, transferred and mortgaged. Exclusion rights are granted under many social forestry models but appear very difficult to enforce in practice. Experiences from Oddar Meanchey Province in Cambodia and some community forests in Myanmar are demonstrating that although forest communities hold exclusion rights in principle, in practice their ability to exclude other, often more powerful, forest users from their community forests is limited. This weakens their ability to protect the community forest from encroachment by outsiders, prevent deforestation and degradation and maintain forest carbon stocks Tint et al., 2011; CIFOR, 2013. Ownership of forest carbon rights has yet to be clarified by ASEAN governments. Ownership of these rights at the community level could be instrumental towards incentivizing carbon sequestration and storage and ensuring the fair distribution of potential future benefits from carbon financing mechanisms. Ideally, carbon rights should be closely associated with forest use rights to incentivize activities to increase carbon stocks. If the ownership of carbon rights is unclear or vested in state or private entities, the incentives for communities to invest in forest protection and forgo immediate benefits from forest resources will be weakened. Secure tenure also appears important for adaptation because local people are unlikely to invest in adaptation responses on their lands such as reforestation, improved infrastructure, water harvesting, irrigation systems or climate-resilient crops unless their land tenure status is secure Barnett, 2013. 21 Table 9: Overview of legal rights and forest tenure arrangements in Southeast Asia Cambodia Indonesia Lao PDR Sabah, Malaysia Myanmar Philippines Thailand Viet Nam Country Bundle of rights Use Social forestry model Forest type Access Management Community-based forest management Community protected area Community-based forest HKm Village forest hutan desa Village forest Social forestry projects Community forestry Community-based forest management Community forestry Community land use permit Community forestry management – Land use rights certificate Community forestry management – Forest protection contract Production forest MAFF Protected forest MOE Protection and production Protection and production Any state forest Forest management units in commercial reserve All state forest All state forest State forest land except protected areas State forest land except protected areas Production and non- critical protection Protection Exclusion Alienation Length of tenure Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Timber and non-timber forest products NTFPs for domestic use Permits and royalties for commercial use NTFPs from sustainable use zone Commercial use of timber prohibited Protection forest – NTFPs Production forest – timber and NTFPs Protection forest – NTFPs Production forest – timber and NTFPs Collection and sale of some NTFPs Small amounts of timber for domestic use in production forest Alternative livelihoods projects and development of basic infrastructure Collection and sale of forest products for domestic use without taxes Limited use rights in protected areas and watershed reserves Collection of dead wood and NFTPs Felling timber is prohibited in natural forests Collection of dead wood and NFTPs Felling timber is prohibited in natural forests Plantation forest – all products can be sold without restrictions Dry fuel wood and some NTFPs May be limited, depending on protection function Yes Yes Participate in management board Yes Yes Local communi- ties consulted Yes Yes Yes Co-manage- ment Yes Unclear Yes No Yes unclear No unclear Yes, but in practice it is weak Yes Unclear Yes Yes Yes No No No No No No Can be inherited Community-based forest management agreements are non- transferable Certificate of Stewardship Contract is transferable No No Rent, transfer, mortgage and inherit Not permitted for communities 15 years – renewable State can reclaim 15 years 35 years and can be extended, based on evaluation 35 years and can be extended, based on evaluation Degraded forest 30–40 years Barren forest 40–60 years Remote areas 40–70 years No tenure 30 years – renewable 25 years – renewable Department of Environment and Natural Resources retains significant authority Unclear Renewable Duration set by government committee 50 years 1-year contracts – extendable up to 5 years 22 23 As previously noted Southeast Asia is one of the world’s most vulnerable regions and is likely to suffer more from climate change than other parts of the world ADB, 2009. Many human settlements are situated along coastlines, riverbanks and river deltas and are exposed to the impacts of rising sea levels and more severe storms. The impacts of climate change will have far-reaching social and economic consequences, affecting agriculture, food security, water availability, economic development, health and security and are likely to hinder efforts towards poverty reduction and widen economic disparities between and within nations.

3.1 Potential impacts of climate change