SECURING COMMON PROPERTY
REGIMES IN A GLOBALIZING WORLD

Synthesis of 41 Case Studies on Common
Property Regimes from Africa, Asia, Europe
and Latin America.

• PREFACE
• EXECUTIVE SUMMARY
• INTRODUCTION
• ACCESS TO RESOURCES VIA COMMON PROPERTY REGIMES
• TENURE SECURITY UNDER COMMON PROPERTY REGIMES
• THREATS TO COMMON PROPERTY REGIMES
  - Markets
  - Demographic Factors
  - Legal and Governance
    Frameworks
  - Conflicts and Conflict
    Management
• EXAMPLES OF REFORM AND INNOVATION
• CONCLUSIONS
• REFERENCES
• ANNEX A: LINKS & DESCRIPTIONS OF CASE STUDIES
• ANNEX B: CASE STUDY FRAMEWORK
• ABBREVIATIONS
• Other Useful Resources on Common Property

THREATS TO COMMON PROPERTY REGIMES:

» LEGAL AND GOVERNANCE FRAMEWORKS

It is important to consider these first two sets of threats as being related to government policies and actions, rather than being exogenous trends. Government policies that encourage commercialization of natural resources, marginalize indigenous and customary institutions, or simply overlap and create confusion among resource users, are all contributing factors to the pressures discussed in this section.

Elite Capture

"Elite capture" of the commons - disproportionate use of and benefit from common property regimes by wealthier or more powerful households in a given area, was noted as a pressure on common property regimes in three case studies. While this is a relatively small number, it is worth noting, as the cases illustrate, how elite capture is not only a threat in areas where tenure regimes are weak or non-existent (as in open access scenarios), but also where common property regimes are functioning in ways that allow more powerful resource users to gain control over the decision-making processes and develop resource management provisions that can exclude poorer members of the user group.

The case from the Patha region of Uttar Pradesh described earlier in this section, illustrates how encroachment may reflect existing power dynamics within communities, such that better-off families or individuals with connections to local institutions may appropriate individual claims to the commons. (Prasad 2005) Establishing costs to accessing the commons may also contribute to the exclusion of the poorest households from the commons. User fees in Raid Mawbuh village in India 's Meghalaya state are acting as a form of "indirect privatization". A fee of 150 rupees was imposed for felling trees in community protected forests, replacing customary rules for how and when trees in this area could be cut. While this fee is not a burden on wealthier members of the community, poor villagers are complaining that they are not able to pay this amount, as household budgets are only around 300 rupees aer month (Kumar and Nongkynrih 2005).

In Nepal wealthy families that have been excluded from a leasehold scheme targeted specifically at strengthening poor families' rights and incomes, have sometimes encroached on the scheme either by grazing livestock or planting trees (Shrestha 2005). This example might be considered a kind of elite "re-capture" or "partial capture", in the sense that poor households still retain access to the commons, but these rights - envisioned to be vested in poor and marginalized households - are shared with non-poor community members as the outcome of a negotiation process.

Weakening Customary Institutions

At least eight cases identify trends of weakening customary institutions as a pressure on common property regimes. In some, such as Zimbabwe , customary institutions for natural resource management are not legally recognized. The Communal Areas Forest Produce Act of 1987 allows only limited use; limited to subsistence as opposed for economic benefit. There is little in the existing legal framework that supports community control and/or management of land and land-based resources-12 laws and several government institutions govern natural resources, most of which were established in the colonial period and retained after independence. In this regard, pressure on common property regimes is also rooted in the supremacy of statutory law over customary institutions.

State Support for Privatization

State policies are contributing factors in generating some of the pressures on common property regimes described above. Policies around natural resource tenure have not been exempt from the global trend to promote economic liberalization, creating pressure for the privatization of land and other natural resources. Earlier, this paper discussed the case from Botswana , where national agricultural and rural policies since the 1970s have resulted in the privatization of tribal communal lands and a concentration of pastoral resources in the hands of the wealthiest cattle owners. While cattle herders lost access to common pasture lands through these processes, there is no evidence that rangeland has improved following privatization policies; instead environmental pressure on common pastures that remain are on the rise (Taylor, 2005).

Peru 's 1920 constitution recognized campesino communities and guaranteed their collective property rights. In 1933, these communities gained juridical person. Until recently, under this framework community lands were inalienable. With a new land law ( Ley de Tierras ) introduced in 1995, this inalienable character was reversed. The law sets out processes through which land can be sold to persons outside the community group, opening them up to land markets. Despite this change, common property remains protected by the 1993 constitution, and counter-proposals to re-establish the inalienable character of community lands are under development (Burneo 2005).

Privatization policies are also increasingly linked to the state's promotion of foreign direct investment in extractive industries such as mining and logging . Mining may pose difficult conflicts because sub-soil resource rights are often vested in the state, even where people's rights to common property are recognized by statutory or customary laws. Mining concessions may take up great swaths of land area: in the area around Matheniko reserve in northern Uganda , about 22,000 out of 24,000 hectares has been licensed to mining companies (Obaikol et al., 2005). The possibility of new mining activities often spurs collective action to defend common property rights, as is shown in the cases from Laid village in Scotland and the campesino communities of Peru (Seki 2005; Burneo 2005).

Ambiguities in National-Level Policies

In three cases, ambiguity in national laws and policies was identified as a pressure on common property regimes, in the sense that it creates room for competing claims to resources, and the involvement of (and competition between) multiple state institutions in recognizing these claims or in directly managing resources.

Kenya lacks a clearly defined national land policy to provide some coherence between different land-related laws, as well as some procedural constraints for access and management of collective resources. The Trust Lands Act (Trust Lands are lands held for local communities in trust by elected representatives) for example, in its current form, provides local councils with excessive discretion-they can change tenure systems on trust lands without community consultations (Karangathi 2005).

In spite of an early recognition of village forests in India, as established under Forest Act of 1927 and subsequent legislation providing for the governance of the village forests, more recent revisions of the Van Panchayat Act in 1937 reduce the autonomy of forest councils by requiring that they consult with district administration in the governance of forest resources (e.g., when changing rules, or adding/changing forest guards). This limits the responsiveness of local councils to changing needs and environmental conditions. Similarly, revisions of the Forest Conservation Act of 1988 prohibit local forest councils to undertake reforestation without permission from the central government (Aggarwal 2005). These revisions contradict practices of local forest councils (e.g., auction of dead trees, etc), and undermines longer-term resource governance, because local councils do not have the ability to effectively use local information to meet changing needs and environmental pressures. The lack of legal support and trends towards curtailing the power and authority of local councils to govern resources reduces incentives for longer-term decision making and planning by local forest councils (Aggarwal 2005).

States' Roles in National Parks

In four case studies, state-led conservation efforts increase pressure on management of resources as common property, particularly where the creation of national parks and forest reserves has removed large tracts of common areas from prior users and vested control and ownership in state agencies. In Uganda , close to 36 percent of the Karamoja area is gazetted as protected area permitting very limited use by Karamojong pastoralists (Mwebaza 2005). The remaining 64 percent of Karamoja is designated a controlled hunting area and permits grazing, settlement and resource use. In 1996, part of this area was given under concession by government to marble and gemstone mining companies. Also the wildlife statute of 1996 upgraded the controlled hunting areas to protected areas, bringing them under complete state control.

Similar processes led to the creation of Lake Mburo and Kidepo Valley national parks in southwestern Uganda where the Ankole pastoralists reside and the Awash national park in Ethiopia where Afari pastoralists live (Obaikol 2005; Unruh 2005). In Indonesia two waves of nationalization in 1979 and 2003 saw the government transfer large portions of high valued (biodiversity and watershed) forest land from community control to the Natural Resource and Conservation Agency (Galudra 2005). The government took over land that had prior contested claims. In the Sopsai watershed of Thailand most of the forests were demarcated as forest reserves under the 1964 Forest Act (Kitewachukul, 2005), resulting in more than one million households today residing within national forest reserves. By removing land from the management of communities, however, governments undermine the efforts of users at creating effective management regimes. Pastoral and other systems are disrupted, significantly changing resource access and use, while legitimacy and conflict resolution mechanisms are negatively affected.