When rights to land doesn’t mean rights to resources

As indigenous communities around the world gain recognition of rights to their ancestral lands, their rights to resources on those lands remain less certain. Research has found that the right to benefit from resources like timber, oil, gas, or even carbon stored in trees and soil, is not always guaranteed to indigenous peoples through land rights formalization processes by states.

In fact, several cases of allegations of indigenous rights abuses have been identified by literature research within the context of global climate and development initiatives like REDD+, which aims to reduce emissions from deforestation and degradation while making progress on a host of other social and environmental goals, and can include payments for avoided carbon release.

The issue brings to light the priority of defining and securing local tenure in any land-based approach to climate change or sustainable development, says Juan Pablo Sarmiento Barletti, a social anthropologist at the Center for International Forestry Research.

“It is so important that these big initiatives like REDD+ or FLR [Forest Landscape Restoration] are aware of the context in which they take part, and that they are well tooled, well geared, to deal with rights issues,” Sarmiento Barletti told Forests News at the Global Landscapes Forum in Bonn, Germany.

Following a discussion panel on the topic at the event, Sarmiento Barletti spoke more about his research on the intersections of rights, tenure and global climate and development goals.

This topic was discussed as part of a session titled, ‘Opportunities and lessons learned to enhance and accelerate recognition of community land rights’ hosted by the Rights and Resources Initiative and the Center for International Forestry Research.

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Here at the Global Landscapes Forum you joined a panel discussion on community land rights. How is your research related to this topic?

As part of my research at CIFOR we’re looking at multi-stakeholder initiatives in four different countries. We’re working in Peru, Brazil, Indonesia and Ethiopia. And what we’re trying to really work out is how to enhance participation in these places so that the outcomes are equitable for the people that live in forests and in forest-dependent communities.

As part of that, we are very interested in land rights and formalization initiatives to recognize land rights. Today [at the GLF] we’ve learned from different experiences from around the world – we had participants from Kenya, the Philippines and the US, including practitioners, indigenous peoples and researchers.

Can you give a country example from your research?

In Peru, there’s a massive move toward titling and formalizing collective rights for indigenous peoples, specifically in the Amazon. And this comes from an agreement that is very closely related to REDD+, that Peru signed with Norway and Germany, through which Peru has promised to title 5 million hectares for indigenous peoples.

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Benefits do not always equal cash

What we are seeing now is the massive impact donors can have on national policies, because Peru, although it’s seen as a fantastic case study for good relations of territories and communal rights, it’s been lagging for many years in terms of completing titling processes for some communities, and even just accepting applications for titling from others. Peru has been seen internationally as a success case for collective land rights due to the areas titled historically, but had more or less stopped titling indigenous territories after 2000, until recently.

So what we’re looking at is this massive effort to title communities before REDD+ is actually fully implemented in the country. While REDD+ has its pros and its cons, this recognition of the importance of securing rights before REDD+ initiatives has been really important in Peru.

When we talk about community rights, what do we actually mean? Is it the right to the land itself, or the right to all the resources involved?

That’s actually a key question. Because what we see more and more is that although indigenous people may have a title to a specific space, their rights to the resources there are not secure. Going back to Peru, for example, the Peruvian government still owns all the resources in the subsoil of titled indigenous lands. So, if oil or natural gas is found under titled land, it’s considered national property, and not owned by the people holding rights to that land.

This has led to countries – again like Peru, but also in other places – giving concession rights to extractive companies over territories that are titled; because after all, indigenous communities don’t own the subsoil.

In spite of enjoying a set of rights enshrined in the United Nations Declaration for the Rights of Indigenous Peoples, indigenous communities in most parts of the world have little say in whether extractive projects on their lands, or right next to them, are approved or not. They often end up having to deal directly with companies to reach any kind of compensation for the impact that extractive processes have on their wellbeing and livelihoods.

Now there’s even a more complicated issue, that it’s not just subsoil rights that are being claimed by states, but also the rights to carbon, which is very important for initiatives like REDD+. So yes, they have the right to the land, but as you can see it’s a bit more complicated than that; they don’t have the rights to all the resources.

What’s being done to resolve this issue of overlapping rights to land and resources?

Well, [some development and climate change-related actions have] a thing called ‘social safeguards’. The issue is that these safeguards are not always mandatory. We found in our systematic search of the scholarly literature on the topic that when it comes to REDD+, countries are being asked to promote and respect safeguards, rather than being required to do so, and they are not being asked to develop credible grievance mechanisms, either.

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What would a rights-based REDD+ look like?

And the other big issue is that although REDD+ has a lot of goodwill behind it and was put together with the best intentions in mind, it still has to be applied in a local context, and local contexts are varied. These contexts are shaped by different histories of interaction between states and indigenous peoples, there are different histories of discrimination, different histories of exclusionary practices in decision-making. So even though there’s this big, good idea, implementation is still affected by local context.

[Our] systematic search of the scholarly literature found a variety of different cases of alleged abuses of these rights in many different places in the world, within the context of REDD+. Not always that REDD+ is the cause of these abuses, but that REDD+ is being implemented in the spaces where rights abuses happen, and where rights have not been respected in the past.

What we found is that REDD+ itself is not well prepared, or is not prepared enough, to deal with these kinds of situations. And so we set a series of recommendations for how we think we can move toward a rights-based approach would benefit indigenous peoples in the future — an approach that would place indigenous peoples at the center of defining their own futures.

And what did your research recommend for future action?

The full and effective participation of communities — including both men and women — I think is incredibly important. If local communities are not part of an initiative from the start, which means being part of defining it and shaping it to meet their own needs and aspirations, they are less likely to see it as legitimate. They will tend not to feel as if they have ownership over it, which then might lead to the initiative itself not being as successful as it could’ve been.

So if the people living on the ground are your intended beneficiaries, or intended end users, and you don’t bring them into the process, they will never learn how an initiative may best apply to their lives. Or you may fail to find that it doesn’t apply to their lives at all. This includes introducing capacity-building efforts for their effective participation where it is needed.

But more importantly, this goes further than treating indigenous peoples as stakeholders, and recognizing them as rights-holders with the capacity to determine their own futures. And this requires an outright recognition of the key role that these communities play in protecting forests, and the central role that they should hold in any climate change initiative that addresses these forests.

This research is part of CIFOR’s Global Comparative Study on REDD+.