Communal Land/Resource Tenure in the SouthWest Amazon: Where

do Carbon Rights Fit?

Grenville BarnesUniversity of Florida

Structure of Presentation

• Key questions• Conventional Property Frameworks• Community Tenure in SW Amazon• Lessons from Land Sector• Challenges and strategies – C rights

• Who “owns” the tree?• How to formalize the transaction?• What would prevent sale to others?• How can conservation rights be enforced?• What is a fair market price?

Jose’s $500 tree(Acre, Brazil)

• Individual rights accrue through ‘labor’ (Locke)

• Property under Roman Law

• ‘Bundle’ of Property Rights paradigm - Classification into state, private, communal and open access

Conventional ‘Property’ Frameworks

“The reason many natural resources are not traded efficiently in market systems is …. the good or service should be private rather than public…….” (Portela et al 2008: 13)

“Resolving the uncertainties surrounding legal title to the sequestered carbon is critical to securing its market value in a CDM transaction.” (Miller et al 2008: 166)

Tenure Regime Definition Examples

Res Communes Things open to all by their inherent nature(CO2 )

Air, sea (open access)

Res Publicae Things belonging to the public and open to the public by law (sub-soil C; forest C?)

Roads, navigable rivers(public property)

Res Universitatis Property belonging to a private or public group in its corporate capacity (forest C in communities)

Private university, condominium (community property)

Res in Patrominium

Things that could be privately owned by an individual (forest C on private land)

Land under private ownership

Res (Terra) Nullius

Things belonging to no-one(CO2 )

Unclaimed land, fish or game

Roman Law Classification of PropertyRoman law underlies almost all civil law countries (e.g. Latin America)

State Private Communal Open Access

Who Owns the world’s Forests (and Forest C)?

22% of Forests in Developing Countries is reserved for or privately owned by communities – 2008 study shows trend continues

[White and Martin 2002]

Focus on Amazon

Annual Net Change in Forest Area by Region (1990-2005)

[FAO 2005]

“… an estimated 20 billion tons of carbon could be released into the atmosphere over the next 20 years under a “business as usual” scenario in the Brazilian Amazon alone.” (Nepstad et al 2007)

NPando - Bolivia

Tenure Situation in Communities - MAP Region

M(adre de Dios) – A(cre) – P(ando)

Brazil

Bolivia

Peru

moooooo

Pictures from the Amazon (2006)

Spot the Carbon?

STATE PRIVATE

NationalParks

NATURALRESOURCES

Conservation Concessions

LAND

NationalReserves

Eco-Tourism Concessions

Reforestation Concessions

SUB-SOIL

Recognized

Isolated

Titled

Untitled

INDIGENOUSCOMMUNITIES

Brazilnut Concessions

Titled

Forest Concessions

Intangible Area

Communal Reserves

Certified

Buffer Zone

60 % 3-5 %35-37 %

De Jure Land and Resource Property Rights in Madre de Dios (Peru)

Lotes Petroleros

Mining Concessions (gold)

Madre de Dios (Peru)Land Tenure Spectrum

• State• Indigenous Communities• Private

“What is a community?” No unity of title – no nuclear settlement – individual concessions…….

Individual land holdings

Individual concessions

Propiedad Privada5%

Propiedad Comunal37%

Tierra del Estado47%

Otras11%

+- 37% of Forest Carbon is on Communal Land

Pando - Bolivia

Land Tenure Spectrum

• State (Parks/Fiscal)• State (forest concess)• Peasant Communities• Indigenous Communities• Private

• Inalienable• Indivisible• Imprescriptible• Inembargable

Community Title Conditions

Land vs Resource Rights – Community in Pando (Bolivia)

[Source: Cronkleton and Albornoz 2007]

Family Brazilnut Tenure

Nucleated settlement – unity of title - individual and collective tree tenure -

Article 348: “natural resources” = “minerals in any form, hydrocarbons, water, air, soil and sub-soil, forests, biodiversity, the electromagnetic spectrum and all of those elements and physical forces susceptible to use (aprovechamiento).” These natural resources are regarded as “strategic in character and of public interest for the development of the country.”

Article 349 further qualifies these natural resources as the “indivisible, ‘non-expropriable,’ direct property and dominion of the Bolivian people, with the administration of the collective interest being the responsibility of the state.”

The state “will recognize, respect and authorize individual and collective property rights to the land, as well as use and improvement rights to other natural resources.”

New Constitution – Bolivia (not ratified)

Public interest - state ownership on behalf of the nation -C changes the scale as Public Interest could apply to international community

Extractive Reserve - Brazil

Unity of concession – family trails – individual tree tenure – spatial extent varies by resource

Family house

Rubber Trail

Rubber Tree

Brazil nut Tree

• State owns land• 20/30 year usufruct concession

Extractive Reserve - Brazil

Unity of concession – family trails – family tree tenure – spatial extent varies on resource

Family house

Rubber Trail

Rubber Tree

Brazil nut Tree

Brazil nut Trail

Formalization of rights and transactionsA cadastre is a land information system that provides legal

security, public notice and a current, comprehensive record of property rights within a jurisdiction. It addresses the following specific questions with respect to property rights:

• WHERE are they located?• WHO holds them?• WHAT is the nature of these rights?• HOW were they acquired?• WHEN were they acquired?

Could a ‘carbon cadastre’ be applied to C property rights ?

Land Administration Projects – Latin America

Over $1 Billion invested in LAC on Property Formalization Projects (since 1996)

CENTRAL AMERICABelize (BID)Guatemala (BM)Honduras (BM, UE, BID)El Salvador (USAID, BM)Nicaragua (BM, MCC)Costa Rica (BID)Panama (BM, BID)

SOUTH AMERICAGuyana (BID, DFID)Colombia (BID)Ecuador (BID, BM)Peru (BID, BM, USAID)Brazil (BID)Bolivia (BM, USAID, Ned, Nordic)Paraguay (BID)Surinam (Ned, BID)

CARIBBEANJamaica (BID)Trinidad & Tobago (BID)Bahamas (BID)Republica Dominican (IBID)Antigua & OECS Countries (OAS)Turks and Caicos (DFID)

Mexico (BM & BID)

Lessons from Land Cadastre Initiatives

• Tenure dynamics• inheritances• sales• rentals• subdivisions

• Rapid De-formalization following titling (no buy in)• Narrow focus on individual, marketable property• Poor baseline data• Too much focus on land as opposed to key resources• “Ladder” of formal rights not just ‘title’• Tenure pluralism (indigenous vs colonial)

Conventional cadastres treat community-based tenure as a homogeneous polygon that assumes all internal rights are shared equally … (Ankersen & Barnes 2004)

Who Holds Carbon Rights?

Stakeholders:• Households• Local Communities• Companies• Government (national, regional, local)• Concessionaires (brazil nut, timber, conservation)• International Community• Carbon Shareholders

Need to uniquely identify each rightholder and their relationship to each other across space and time…

SCALE

Challenges facing a Carbon Cadastre• Recognize resource dynamics in system:

Changes due to disease, drought, fire, natural disasters Changes due to population dynamics - migration, death Changes due to market price dynamics – timber, brazil nut, beef

• Develop capacity to document and map resource rights within communities • Meshing participatory products with official records (QC)• Scaling up from community to region (vertical governance)• Governance of carbon rights – transparent, accountable, equitable• Dealing with spatially overlapping resource rights

Without developing capacity at local, community level, the adequatedefinition, mapping and recording of forest carbon rights will not be possible.