informal institutions and forest resources

8/14/2019 Informal Institutions and Forest Resources

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CIFOR

Pablo Pacheco

Deborah Barry

Peter CronkletonAnne M. Larson

The role of informal institutions

in the use of forest resourcesin Latin America

Forests and Governance Programme


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The role of informal institutions

in the use of forest resources

in Latin America

Pablo Pacheco

Deborah Barry

Peter Cronkleton

Anne M. Larson

No. 15/2008Forests and Governance Programme


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ISBN: 978-979-1412-79-7viii + 78p.

2008 by CIFORAll rights reserved. Published in 2008

Cover photo by Peter Cronkleton.A sawyer team working in Salvatierras orest in Guarayos. Santa Cruz, Bolivia.

Printed by Harapan Prima, Jakarta

Published by Center or International Forestry ResearchP.O. Box 0113 BOCBD, Bogor 16000, IndonesiaJl. CIFOR, Situ Gede, Bogor Barat 16115, Indonesia

Tel.: + 62 (251) 8622622; Fax: + 62 (251) 8622100Email: [email protected] site: http://www.cior.cgiar.org


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iii

Abbreviations and Acronyms v

Acknowledgments

Abstract

1. Introduction 1

2. Te conceptual oundations: orests and inormal institutions 5Te debate on ormal and inormal institutions 5

Te rules o the game or dening land tenure rights 7

Te rules governing orest resource management 8

Formal and inormal aspects o orest markets 10

3. Introducing the case studies: a diversity o situations 15

Indigenous territories in the RAAN, Nicaragua 16

Te indigenous territory o Guarayos in lowland Bolivia 19

Te agro-extractive communities in Pando, Bolivia 20

Porto de Moz in the Brazilian Amazon 21Te northern Petn region in Guatemala 22

4. Te rules o the game or ormalizing property rights 25

Land rights recognition under disparate tenure models 25

RAAN: ormal rules resting on previously inormal institutions 28

Guarayos: ormal and inormal rules eroding local governance 31

Porto de Moz: imposing conservation-inspired ormal rules 33

Pando: drawing on inormal rules or ormalizing rights 34

Petn: ormal law reshaping existing inormal land rights 37

5. Forest use and imposed management models 39Formal rules o the game or orest resource use 40

Working rules shaping orest management in practice 44

Problems arising rom the interaction o ormal and inormal rules 49

6. Avoiding the rules or engaging in orest markets 53

Factors driving smallholder engagement in inormal markets 54

Main interactions o actors in inormal markets 57

Economic gains derived by smallholders rom their orests 63

7. Conclusions: putting the pieces together 67

Reerences 73

C o n t e n t s


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able 1. Main eatures o the ve case studies in our selected countries 17

able 2. Formal and inormal rules or dening property rights according todierent land tenure modalities 27

able 3. Formal and inormal rules or orest management according to dierentland tenure models 41

able 4. Main costs related to the ormalization o community orestry operations 56

able 5. Comparison o selected community orestry initiatives 64

T a b l e s

F i g u r e s

Figure 1. Map o the study sites in Bolivia and Brazil 16

Figure 2. Map o the study sites in Guatemala and Nicaragua 18


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ASL Asociacin Social del Lugar(Local Forest user Association)

CDS Comit de Desenvolvimento Sustentvel de Porto de Moz (Sustainable DevelopmentCommittee)

CAIC Cooperativa Integral Agroorestal Campesino (Smallholders Cooperative o Agro-orestry)

CI Conservation International

CIES Convention on International rade in Endangered Species

COINACAPA Cooperativa Integral Agroextractivista Campesinos de Pando(Agroextractive Cooperativeo Smallholders in Pando)

COCODE Comite Comunitario de Desarrollo (Local Development Committee)

COPNAG Central de Organizaciones de Pueblos Nativos Guarayos (Union o Guarayo NativePeoples)

FMP Forest Management Plan

FORESCOM Empresa Comunitaria de Servicios del Bosque (Community Enterprise or ForestServices)

FSC Forest Stewardship Council

IBAMA Instituto Brasileiro de Meio Ambiente e dos Recursos Naturais Renovveis (Brazilian

Institute or Environment and Natural Resources)ICMBio Instituto Chico Mendes de Conservao da Biodiversidade(Chico Mendes Institute or

Biodiversity Conservation)

INCRA Instituto Nacional de Colonizao e Reorma Agrria (National Institute orColonization and Agrarian Reorm)

INRA Instituto Nacional de Reorma Agraria (National Agrarian Reorm Institute)

MBR Mayan Biosphere Reserve

NGO Non-governmental organization

NFP Non-timber orest product

POA Plan Operativo Anual(Annual Operational Plan)

RAAN Regin Autnoma del Atlntico Norte(North Atlantic Autonomous Region)RESEX Reserva Extractivista (Extractive Reserve)

RIL Reduced Impact Logging

SNUC Sistema Nacional de Unidades de Conservao da Natureza (National System oConservation Units)

CO ierra Comunitaria de Origen (Community Land o Origin)

NC Te Nature Conservancy

USAID US Agency or International Development

WWF World Wildlie Fund (also known as Worldwide Fund or Nature)

Abbreviations and Acronyms


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his study would not have beenpossible without the support

and quality eldwork o our

partner organizations and numerous

researchers who participated in various

phases o the research. Teir experience

and insights provided otherwise impossible

opportunities to understand the intricacies

o orest communities and the questions

this study asked. Our partners include theUniversidad de las Regiones Autnomas de

la Costa Caribe de Nicaragua (URACCAN)

and Masangni (Nicaragua), Asociacin

de Comunidades Forestales de Petn

(ACOFOP), Facultad Latinoamericana

de Ciencias Sociales (FLACSO) and

Facultad de Agronoma/Universidad

San Carlos (FAUSAC) (Guatemala),

Centro de Estudios para el Desarrollo

Laboral y Agrario (CEDLA) (Bolivia)

and Assessoria Comunitaria e Ambiental

(ARCA) and Laboratrio Agroecolgico da

ransamaznica (LAE) o the Universidade

Federal do Par (Brazil). Researchers or the

community and regional studies included

Jadder Mendoza Lewis, Ceerino WilsonWhite, Adonis Arguello, Arellys Barbeyto,

aymond Robins Lino, Onor Coleman

Hendy, Constantino Romel, Marcos

Williamson and Armando Arguello Salinas

(Nicaragua); Iliana Monterroso, Silvel Elas,

Juan Mendoza, Carlos Crasborn, Margarita

Hurtado Paz y Paz, Roco Garca, Aracely

Arevalo and Blanca Gonzlez (Guatemala);

Marco Antonio Albornoz, Marco oro

Martinez and Roberto Ibarguen (Bolivia);

and Westphalen Nunes, Patrcia Mouro,

Rubem Lobo, Guilhermina Cayres, Ione

Vieira, Ketiane Alves, Carla Rocha, Jos

Antnio Herrera and arcsio Feitosa

(Brazil). We also want to thank Diji

Chandrasekharan and to two anonymous

reviewers or their valuable comments to a

previous version o this paper. Finally, we

are grateul or the support o PROFOR/

World Bank, the Ford Foundation and the

International Development Research Centre

(IDRC) or the nancial support that made

this research possible.

A c k n o w l e d g m e n t s


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A b s t r a c t

his study adopts an institutionalapproach to analyze the way in

which inormal rules, in their

interaction with ormal rules, shape the

use o orest resources by diverse types

o smallholders and communities (i.e.,

indigenous people, agro-extractive and

traditional communities) in Latin America.

Attention is given to understanding the

working rules, comprising both ormaland inormal rules, that individuals use in

making their decisions or land and orest

resources access and use, which in turn

aect benets generation and distribution

rom such resources use. Te dichotomy

between ormal and inormal institutions

take on relative importance, it is their

interaction that matters in assessing human

behavior. Tree areas o behavior that

aect orest resource use by smallholders

and communities are examined: (1) the

interace o ormal rules, oten contained

in written laws, and practiced rules o the

game that guide how smallholders and

communities control, allocate, legitimizeand enorce land and orest tenure rights,

(2) local systems or orest resource use and

management under the imposition o ormal

regulations and models, and (3) smallholder

interaction with markets inuenced by the

constraints and opportunities produced

by ormal regulations. Te principal

ndings suggest that in spite o the act

that many governments have introduced

progressive policies intended to benet

rural populations and their orest use, it

is questionable the extent to which such

policies have actually brought about any real

change to benet communities. Exploring

the role o inormal institutions, as they

interact with ormal law, is important to

explain these outcomes in practice. Tis

study draws on ve case studies that provide

evidence supporting this argument. Field

research was carried out rom 2006 to 2007

in our dierent countries: Bolivia, Brazil,

Guatemala and Nicaragua.


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1 Introduction

Over recent decades, important

legislative and policy shits have

taken place in Latin America that

aect land and orest use and ownership.

Tese changes have ocused on ormalizing

tenure rights over orestlands, including

those o communities, and imposing new

rules o the game in avor o sustainable

orest management. At the same time,

community orest enterprises have been

actively promoted as the best pathway

to enhance the livelihoods o the orest

dependent rural poor while simultaneously

encouraging orest conservation. One

important underlying motivation behind

land and orest policy reorm was to

minimize inormal practices or land access

and orest use and reduce incentives or

illegal behavior. Although the land andorest policy reorms have brought change,

many o the anticipated outcomes related

to sustainable orest management and

increased benets to smallholders have still

not materialized.

Tis paper draws on institutional analysis to

examine the role played by working rules

which include both ormal and inormal

ones in aecting behavior o social actors

or accessing and using orest resources, and

in shaping the orms o market engagement

that inuence on income generation and

benets distribution. Understanding

working rules is crucial or assessing policies

intended to improve local peoples orest

livelihoods, the strategies that local orest

users adopt to use and benet rom their

orest resources, as well as the constraints

and opportunities emerging rom market

engagement.

Te ormal and inormal rules interact in

disparate ways each other. In some cases,

with regard to land tenure and orest

regulation, legal reorms have incorporated

inormal rules developed by community

groups or organizing land access and use.On the one hand, this may mean adopting

them or recognizing them, with or without

specically codiying them into law; on the

other, it may mean producing a new set o

ormal rules by blending or combining them

with existing ormal regulations. In other

cases, ormal laws work against existing

inormal rules and impose new ones, crated

externally, likely generating a new set o


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inormal institutions to get around them.

For example, rules designed to ormalize

and regulate the commercial orest sector

may unintentionally exclude community

orestry operations and actually promote

the development o inormal markets and

networks. Te results oten inhibit the

growth o community enterprises and

reinorce existing market asymmetries that

limit the benets or these groups.

Tis paper suggests that the current land and

orest reorms implemented in several Latin

American countries have not ully achieved

their expected outcomes because they haveinadequately acknowledged the complex

local realities in which socially constructed

working rules shape behavior related to the

access and use o land and orest resources.

Inormal rules comprise customary practice

and other local norms that are not codied

in ormal laws, oten operating at the

margin or beyond rameworks dened by

the state; they include but are not limitedto illegal practices. Formal rules tend to

avor the powerul and politically connected

orest actors with greater assets and ar

greater bargaining power in the market.

Te demand or compliance with these

regulations oten introduces or reinorces

market bias and works against those with

limited resources and greater difculty

meeting ormal requirements, and may even

reinorce inormal markets.

Tis study examined the ollowing

questions: (1) How do inormal and ormal

institutions inuence land and orest tenure

rights o smallholder and communities?

(2) How do existing inormal systems or

orest resource use and management respond

to the imposition o ormal regulations

and management models? and (3) How

do ormal regulations inuence inormal

market relationships o smallholders and

communities? o address these questions,

ve regions in our Latin America countries

are examined, namely: the North Atlantic

Autonomous Region (RAAN) in Nicaragua;

Bolivias Guarayos province in Santa Cruz,

and the department o Pando in Bolivia;

the Porto de Moz municipality in the

amazonian state o Par, Brazil; and the

Mayan Biosphere Reserve in Guatemalas

northern Petn. Tese sites have been

selected taking into account the existence

o ormal processes towards land tenure

regularization and titling implementedby the states, along with states eorts

to enorcing new rules o the game or

achieving sustainable orest management,

in local contexts in which an important

number o local people depend signicantly

on orestry-based activities or making a

living.

Tis report examines the relationshipbetween ormal and inormal institutions

in three key domains that aect the use

o orest resource by smallholders and

communities. Te rst domain relates to

statutory law and the ormal rules that

emanate rom it, as they contribute to the

practiced rules o the game guiding how

smallholders and communities control,

allocate, legitimize and enorce land and

orest tenure rights. Te second concerns

local systems or orest resource use and

the ways in which the imposition o

ormal regulations, models and practices

shape local orest uses. Te third reers to

the way in which smallholders interact

with markets, how the nature o their

engagement is inuenced by the constraints

and opportunities produced by ormal

regulations, and how market conditions


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The debate on ormal andinormal institutions

A vigorous theoretical debate revolves

around the role and nature o ormal and

inormal institutions. According to Ostrom

(1990), institutions reer to a shared

understanding that is used by humans in

repetitive situations and organized by normsand rules. In this notion, rules constitute

shared prescriptions that are mutually

understood and predictably enorced in

particular situations by agents responsible

or monitoring and imposing sanctions,

and norms reer to shared prescriptions

that tend to be enorced by participants

themselves through internally and externally

imposed costs and inducements (Ostrom1999a). In other words, norms reer to

the moral behavior o a society, whereas

rules are sets o regulations which, to be

eective, require enorceable sanctions

(Craword and Ostrom 1999). Institutions,

then, encompass moral norms, rules and

regulations, used both across and within

organizations, and the organizations

themselves (Ostrom et al. 2001).

Institutions work at dierent hierarchical

levels. Tere are three types o rules that

directly or indirectly aect peoples behavior:

operational rules, collective decision-

making rules and constitutional rules

(Ostrom et al. 1997). Each o these rules,

in turn, aects dierent types o decisions.

Operational rules are those that directly

aect individual behavior and perceptions

o resulting actions. According to Tomson

and Freudenberger (1997), these might

be considered surace level since they

are closest to the behaviors aecting the

resource base. At an intermediate level are

collective decision-making rules, which

determine how rules are dened, and

inuence emerging regulations used at the

operational level. Finally, constitutional

rules determine who can participate in the

political system, what powers and authority

they exercise, and how collective decision-

making rules are created (Ostrom et al.

2001; Ostrom 1999a).

Tis study will prioritize the analysis o

operational rules since they directly aect

2 The conceptual foundations:forests and informal institutions


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the working rules that inuence behavior

related to land and orest resources use. Te

working rules (or rules-in-use), ollowing

Ostrom (1999a), are those that individuals

use in making decisions or the set o rules

which participants would make reerence to

i asked to explain and justiy their actions

(p. 51). Tomson and Freudenberger (1997)

suggest that or a rule to be considered as

such, it must actually aect the way people

behave toward their resource. Tese authors

suggest that working rules have dierent

sources ranging rom inormal agreements

(written or not) on traditional practice

by communities to written rules createdby governments. In this vein, the roots

o working rules can be either ormal or

inormal grounded in customs or dened

by externally imposed ormal laws. In

practice they are likely to be a combination.

As a concept, the inormal has oten had

a negative connotation. Some scholars

have equated inormal with chaos ordisorganization (Perryet al. 2007), and

the term is commonly associated with

illicit behaviors, such as corruption and

clientelism (Helmke and Levitsky 2004).

However, a more textured and complex

understanding has also emerged. Inormal

institutions have been analyzed rom several

points o view; or example, some reer to

customary property rights or pre-existing

rules or community orest management that

have not been codied in law (Otsuka and

Place 2002), while others reer to activities

developed outside o ormal law as inormal

sectors or inormal economies (Guha-

Khasnobis et al. 2006). It is challenging

to assess inormal institutions given these

multiple concepts and rameworks.

Some scholars separate ormal and inormal

institutions by placing state regulations

enorced by an external authority on the

ormal side, and customary or community

rules that are sel-enorced or endogenously

enorced on the inormal side (Eriksson

2004; Cousins 1997). However, the main

problem o equating ormal institutions with

the state is that they can exist both within

and outside o ormal government, and even

within customary systems. Helmke and

Levitsky (2004) dene inormal institutions

as socially shared rules, usually unwritten,

that are created, communicated and

enorced outside o ofcially sanctioned

channels (p. 725). Drawing upon these two

denitions, or this report inormal rulesare understood as those that all outside

the scope o the ormal legal rameworks

at any scale o decision making, and that

are crated outside o ofcially sanctioned

channels. Inormal rules tend not to be

codied or written.

In this regard, customary rules are not

always synonymous with inormal rules,as they are sometimes sanctioned, or

recognized, by the state. For example,

the state may recognize the outer border

o customary property and agree not to

intrude into areas governed by customary

law (Fitzpatrick 2005), or it may attempt

to codiy customary practices into ormal

law. In cases where specic customary

institutions have not been ormally

recognized, they remain in the inormal

arena. In act, as inormal rules develop

and evolve it is virtually impossible to

adjust ormal rameworks to encompass the

wide variety o rules and local variations,

or translate them into ormal laws. Nor is

this desirable, as Sierra (1997) argues with

regard to the codication o customary

practices: customs have survived precisely

through change and adaptation in response

to social realities and particularly in relation


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to the dominant society. Although the state

requently aspires to measure, codiy and

simpliy land tenure in a workable ashion,

attempts to capture the cacophony o local

property regimes would be a nightmare

(Scott 1998). Hence inormal institutions

persist and will continue to evolve over time.

Inormal institutions are part o a broader

institutional architecture that complements

and resists ormal rules. Tus, inormal

is not synonymous with unstructured or

chaotic, since communities are capable o

producing sel-organizing structures within

or outside the reach o ofcial rameworks(Cousins 1997; Cousins and Hornby 2000).

On the contrary, the inormal sector can

be in occasions very well organized, and

it is not exceptional or groups making

decisions ollowing inormal rules to be

more organized than ormal ones (Guha-

Khasnobis et al. 2006).

As suggested by the previous discussion, itmay be difcult to dierentiate the ormal

rom the inormal in the working rules

used by individuals, groups and societies to

dene access to and management o orest

products, to inuence transactions or

positioning orest products in the market

place, and to capture the benets derived

rom orest use. Tus, the concept o

working rules is used in this report to reer

to the mix o both ormal and inormal rules

that inuences local decision making in

practice. Te challenge here is to disentangle

the eects o the two and analyze the results

o their interplay.

Te next sections discuss the three arenas

o behavior that aect orest resource use

by smallholders and communities, which

have been mentioned in the introduction.

Te rst reers to the rules o the game that

guide how smallholders and communities

control, allocate, legitimize and enorce

land tenure rights. Te second is related

to the development o local (mostly

inormal) systems or orest resource use

and management under or in reaction to

the imposition o ormal regulations and

models. Te third reers to smallholder

interaction with markets (ormal and

inormal) inuenced by the constraints

and opportunities produced by ormal

regulations, as well as by market conditions

that aect decision making, and acquisition

and distribution o benets.

The rules o the game ordefning land tenure rightsProperty is recognized as a bundle o rights.

For common property, tenure rights are

usually expressed along a continuum ranging

rom limited to more complete rights,

such as rights or access to withdrawal or

use, management, exclusion and alienation

(Agrawal and Ostrom 2001). Tese conceptsare not explained urther here since their

use is now common in the institutions and

property rights literature (see also Ostrom

and Schlager 1996; Schlager and Ostrom

1992). Barry and Meinzen-Dick (2008)

simpliy the continuum o property rights

by dividing it into two types: use rights (i.e.,

access and withdrawal) and decision-making

rights (i.e., management, exclusion andalienation).

Property rights to land and orest resources

respond to relatively complex case-specic

governance structures and rules that allocate

rights, and more importantly legitimize

those rights in practice. Because property

is composed o a bundle, dierent

institutional systems coexist to dene and

enorce these rights. Te distinction between

ormal and inormal institutions regarding


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property rights is relatively straightorward

(Otsuka and Place 2002). While ormal

rights are dened by ormal procedures o

recognition, registration and titling, either

individually or collectively, inormal rights

are mainly linked to local practices o rights

allocation, which are oten neglected in the

laws (Cousins and Hornby 2000).

Te authority that underlies the bundle o

rights that dene property can have multiple

origins, including state law, customary

law, religious law and inormal local rules

that provide a basis or claiming rights

(Meinzen-Dick and Pradhan 2002). Tiscondition has also been called a polycentric

legal system (Lund 1998) and suggests that

property relations do not evolve in a linear

ashion rom the inormal to the ormal in a

sort o legal centralism but rather that both

can coexist in a given historical and spatial

context (Manji 2006). Scott (1998) suggests

that property rights are modied over time

according to changes in the mandates andinterests o the state, and on the strength o

local communities to enact their local rules

over ormal regulations.

Formal mechanisms, such as land titling,

can be important or guaranteeing

property rights. Here, property reers to

an enorceable claim (McPherson 1978),

but while a property title is supposed to

guarantee security this is not always the case

in practice. Bromley (2005) argues that land

titles can increase insecurity or the poorest

sectors and that titles are meaningless

without the ull backing o the state that

issued them. Broegaard (2005) suggests that

perceived tenure security is more important

than the possession o a title in determining

armers investment behavior. Legitimacy is

an important source o security because it

makes property claims enorceable (Sikor

and Lund nd). In many cases, ormal

legal systems only work or those who can

maneuver or manipulate them, and thus

take advantage o such ormal laws (Nygren

2004).

Te legal recognition o customary land

rights is not a simple process. Fitzpatrick

(2006) argues that the nature and degree

o state legal intervention in a customary

land system should be determined by

addressing the nature and causes o any

tenure insecurity in specic contexts. A keyproblem is that the process o ormalization

can cause a breakdown o property rights

systems into open- or contested-access

areas due to the superimposition o and

conict between state-based, or ormal,

property systems and norm-based, or

customary, regimes. ensions can increase

i the state recognizes one side in a dispute

over local representational authority. Tesuperposition o models can also result

in orum shopping, whereby dierent

claimants appeal to their ramework o

choice to justiy property rights claims

(Ftizpatrick 2006, Larson and Soto 2008).

Sometimes this results in a breakdown in the

local system o authority, but without state

capacity to ll the void.

The rules governing orestresource managementTe current trend in orest areas is or states

to devolve greater control or decision-

making rights over natural resources to

local people and communities, including

management and exclusion (Ribot 2001a;

Sunderlin et al. 2008), Nonetheless, the

rights transerred to smallholders and


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communities tend to be heavily regulated

by ormal norms, especially in relation

to orest resources. Te main assumption

underpinning such regulations is that orests

constitute a public good whose maintenance

must be protected against private actors who

might over exploit the resource (Agrawal

2005). At the core o this assumption is

the simplied view o the tragedy o the

commons, which argues that resources

held in common would lead to their

irreversible depletion (Hardin 1968). Tis

view still has inuence in spite o ample

evidence demonstrating that this outcome

is only likely in open access situations. Forexample, in the absence o rules or orest

use, dierent stakeholders would attempt

to reap the benets by over harvesting the

most valuable timber-tree species, putting

at risk their uture regeneration. However,

it has been demonstrated that the commons

are oten or can be governed by eective

local institutions and that the development

and enorcement o rules can make asignicant dierence in the management o

orest resources (Gibson et al. 2000; Ostrom

1999b; Dietz et al. 2003). A positive

correlation has been ound among strong

local institutions, collective activities, and

good orest management (Varughese 1999;

Andersson et al. 2006).

Te question thus becomes, to what extent

can imposed external rules obtain the

expected outcomes? or, in contrast, are

orest user groups able to develop their

own rules, through collective-choice, to

prevent individual members rom over-

exploiting timber or non-timber resources,

or prevent outsiders rom doing the same?

Te above discussion suggests that the latter

the development o local rules can be

accomplished in at least two ways. First,

some argue that because sel-interested

individuals will not act to achieve group

interests, coercion by external authorities,

based on a stated set o rules, is necessary

to help individuals achieve collective

action (Olson 1965). Second, evidence

demonstrates that social groups are capable

o devising and enorcing rules among

members to protect their orests, i they

have a common interest that encourages

collaboration and collective action (Gibson

et al. 2000; Nagendra and Gokhale 2008).

Tese points suggest at least three options

or the state: (1) to establish a regulatoryramework that orces local collective action,

(2) to accept and reinorce local rules and

norms where these already exist, or (3) to

seek to impose external regulations. Each o

these implies a dierent type o interaction

between ormal and inormal existing rules.

Nonetheless, many o the norms devised

by communities or orest resource

use, and the governing mechanisms or

enorcing such norms, are oten ignored

by orestry regulations and enorcement

bodies (Pokorny and Johnson 2008). oo

oten ormal orest regulations, rather than

building on existing inormal community

orest management institutions, tend to

imposed new rules, practices and models

over the internally devised and sanctioned

rules used by indigenous, agro-extractive,and smallholder communities. Tis can

create internal conusion or competition

between the new and old organizational

structures, lead to a breakdown in control,

or to the kind o orum shopping noted

above. Te impact can eventually uel open-

access behavior that puts orests at risk and

reduces orest benets or local people in the

long term.


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Te devolution o orest rights to

communities has sometimes come hand

in hand not only with the opportunity to

undertake logging activities but also with

the pressure to do so under introduced

models or commercial orest management.

In these cases, groups may have to overcome

a variety o obstacles to adapt existing rules

and governance systems. A undamental

problem is that customary or other existing

local rules are oten ocused on subsistence

uses, particularly in indigenous, traditional,

and peasant communities. Tese same rules

do not automatically translate to contexts

in which market economies prevail andpressures to harvest orest resources increase

rapidly, without allowing time or local

adaptation. Tis may also apply to situations

when extraction o a high value product

like timber is permitted where communities

previously traded only in limited markets

or low value, non-timber orest products

(NFPs).

Rules or subsistence, and sometimes or

low value NFPs as well, tend to be tightly

embedded within the social structures and

cultural belie systems o communities.

Decision making regarding the allocation

o access and use rights is based on local

knowledge that is acquired over time,

hence age and gender are important. When

a new activity like commercial logging

is introduced, these social groups ace

enormous challenges, particularly when the

activity, or the organization promoting it,

requires organized hierarchical structures,

oten based on technical know-how or

decision making and control that have not

existed previously. While some communities

are able to adapt to changing situations

emerging rom new productive activities,

types o organization and engagement in

open markets, others ail to do so. Oten,

the imposition o an industrial model and

the rapid time rame or local appropriation

are at the heart o the ailure, revealing the

lack o recognition o the starting point o

these groups.

Tere is substantial evidence that the

expansion o markets has resulted in

signicant changes in social relations.

Mallon (1983) showed how the growth

o markets - especially labor markets

- may result in an increased ocus on

individual interests (see also Vatn 2007),

leading to conicts and the breakdown

o the collective. Indigenous and agro-

extractive communities are learning how

to communally manage timber extraction

with hierarchical organizations and

entrepreneurial models introduced rom

outside, oten premised on the goal o prot

maximization as the primary objective o

the economic activity (Pacheco 2007). As

these new organizations are introduced,community groups ace major challenges in

designing and implementing mechanisms to

marshal labor, to make decisions collectively,

to administer transparently, to distribute

benets and responsibilities equitably, to

enorce rules, and apply sanctions, not to

mention developing the skills and experience

to implement silviculture operations and to

negotiate in the market place.1

Formal and inormal aspects oorest marketsFor the purpose o this study, inormal

timber markets constitute all interactions

or exchanging goods and services among

dierent actors in the market place that

1 Mexico has been a notable exception to the rule, where com-

munity enterprises and silvicultural practices have been allowedto grow more organically (Brayet al. 2005)


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11

take place outside ormal state regulations,

including scal, commercial, labor, and

orestry norms. In this denition, illegal

acts reer only to those inormal activities

that contravene existing state regulations

or the use, transormation or exchange

o goods. For example, in the orestry

sector, regulations typically dene orest

resources that can be harvested, processes

or acquiring transportation permits,

payment levels and criteria or taxes and

ees, requirements or the registration o

enterprises, and standards or compliance

with labor norms, among other issues.

However, in spite o the regulatory breadtho most legal rameworks, there are several

realms o orest resource management that

all outside the ormal norms, and hence

remain inormal, such as operational level

transactions between stakeholders, certain

types o unregistered intermediaries and

service providers, and a variety o terms o

trade that are devised to make the market

work.

Tere are two main views why ormal

regulations may not reach production and

markets systems that they intend to reach.

Te rst argues that sectors that are unable

to comply with heavy regulatory constraints

may be excluded rom state benets. Tis

suggests that burdensome entry regulations

prohibit some economic actors rom

entering the ormal sector, leading them

to remain inormal as a deensive measure.

Te second suggests that organizations

decide to stay out o the reach o the state

as voluntary exit decisions resulting rom

private cost-benet calculations (Perry

et al. 2007). Tis view argues that some

economic actors choose to remain inormal

based on a valuation o the trade-os

associated with becoming ormalized and

the states capability and will to enorce

restrictions. Tese two views may be more

complementary than exclusive. o the extent

that regulations impose conditions that are

difcult to comply with, they also open the

door or illegal operations. Interestingly,

economic actors oten adopt a combination

o legal and illegal actions.

States tend to regulate, and in some

cases over-regulate, orest resources with

high market value, such as timber, but

may pay little attention to lower value

resources, such as many NFPs. Teprimary reason or this is that regulation

usually has a number o goals, including

obtaining prots or tax income and

promoting efcient resource use to avoid

overharvesting (Dryzek 1997), hence

the emphasis on high value resources. In

general, compliance with best practices is

monitored by controlling the circulation o

timber to dierentiate that which originatesrom approved management plans rom

that which does not. Contravening orest

regulations leads to illegal acts.

Tere is a growing literature on illegal

logging that is mainly ocused on explaining

the challenges aced by law enorcement

regarding orest planning and harvesting,

monitoring o outcomes, and the

application o sanctions (Contreras 2005).

Although it is increasingly acknowledged

that a signicant portion o illegal practices

occur due to legal shortcomings and

implementation ailures (Contreras 2005;

acconi et al. 2003), many suggestions or

overcoming orest crime still stress law

enorcement as the main instrument or

halting illegal practices (see also Larson and


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12

Ribot 2007). Such views tend to criminalize

inormal practices, without distinguishing

between the nature and role o the inormal

institutions along the value chain that are

oten organized and exploited by ormal

or legal entities. Tis happens either due

to the inability to detect the dierences

between inormal and illegal orest resource

use (Colchester et al. 2006), or because o

complicit interests.

Insufcient attention has ocused on the

unctioning o inormal orest markets,

which is particularly striking given state

eorts to implement orest regulations, andthe market distortions and asymmetries

that such regulations introduce or reinorce.

Analysis has emphasized illegal logging,

under the assumption that better orest law

enorcement will be conducive to improved

sustainable orest management. However, in

practice, most orest regulations tend to be

biased against communities and other local

orest users. As Kaimowitz (2003; 2002)suggested, ormal orestry regulations tend

to create additional costs or smallholders

and communities interested in developing

ormal orestry operations. Because they

cannot aord to comply, they instead

operate inormally at the risk o having

their activities criminalized by the state

(see also Colchester et al. 2006). In this

regard, orestry regulations increase the

entry barriers or people who lack access to

capital and cannot pay the high transactions

costs required by bureaucratic processes or

the approval o orestry operations (see also

Larson and Ribot 2007).

Another barrier or communities is that

orestry regulations sometimes implicitly

presuppose technologies or require levels

o operations that are beyond the means

o smallholders, orcing reliance on

orestry service providers, local loggers, or

timber companies. For smallholders and

communities to legally enter the orest

product market, they must ormalize their

orestry operations. Only those that create

and register their orestry enterprises (under

existing legal models), ormulate a orest

management plan, pay ees and taxes,

are in a position to obtain the approval

o their plans, and harvest their products

ollowing the prescribed standards can

legally participate. However, norms, such

as the restriction o orest pre-processing ologs with chainsaws, require that processing

take place in approved mills, and since most

communities lack the capital or capacity to

manage operations that yard, transport, and

process wood, they are orced to collaborate

with existing service providers or depend on

outsiders or technical and nancial support.

Forest users unable to perorm such tasks

are excluded, and enlarge the ranks o theinormal economy (Pokorny and Johnson

2008; Pacheco et al. 2008). Nonetheless,

as the demand or timber supply increases,

they become the source (inormal and

illegal) o raw material or the ormal

industrial sector.

imber markets in Latin America tend to

be distorted and imperect. Te problems

are mainly related to the asymmetric

distribution o power and inormation that

acilitates or even promotes elite capture. It

is argued that elite capture emerges when the

availability o high value resources is coupled

with powerul actors operating under weak

institutional control mechanisms, which

creates opportunities or them to obtain

substantial shares o the benets generated


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13

rom local orests (Iversenb et al. 2006). Te

stakeholders that capture these benets

(i.e., intermediaries and local loggers) tend

to operate in nebulous, semi-invisible

alliances that are actually highly structured

and organized shadow networks (High et al.

2005). Tese networks operate in the nooks

and crannies o market imperections,

causing the distribution o prots to be

highly inequitable and ailing to satisy the

aspirations o many actors, such as the rural

poor.


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15

his report ocuses on ve study

sites within our Latin American

countries, namely: Bolivia and

Brazil in South America, and Nicaragua and

Guatemala in Central America. In recentdecades all our countries have transerred

signicant orest area to communities under

a variety o mechanisms and legal models,

beneting a diverse group o orest users

including indigenous people, agro-extractive

communities and smallholder settlements.

In Bolivia, research ocused on two regions:

the Guarayos Province in the Santa Cruz

department, which is largely covered by

an indigenous territory or the Guarayos

people; and the northern Pando department

where agro-extractive communities

predominate. In Brazil, research centered

on the Amazonian municipality o Porto de

Moz in the state o Par, on the borders o

a large Extractive Reserve (RESEX) that has

been declared in response to demands by

agro-extractive communities (Figure 1). In

Nicaragua, the study ocused on indigenous

territories in the process o demarcation and

titling in the North Atlantic Autonomous

Region (RAAN). Te Guatemala research

ocused on the northern Petn, where asubstantial portion o the buer zone o the

Mayan Biosphere Reserve has been granted

to communities as orest concessions. Tis

section provides a brie introduction to the

cases (Figure 2).

Te variation among the selected cases

is representative o the diverse range o

traditional stakeholders ound among local

orest users in the regions orest rontiers,

including indigenous, agro-extractive

and peasant communities granted rights

as communal territories, reserves and

concessions. Although these groups depend

on orest resources in dierent ways, they all

rely on both timber and non-timber orest

resources or subsistence and commercial

uses. Commercial logging is making

3 Introducing the case studies:a diversity of situations


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16

an increasingly important contribution

to household incomes in all the regions

studied. Recognizing the context in which

local orest users develop their livelihoods

is undamental or understanding the

role o inormal institutions or orest

resources management, the impact o theormalization o community property rights,

and the introduction o legal rameworks

to promote sustainable orest management

and ormal market integration. able 1

summarizes the relevant ecological and

socio-cultural characteristics o the selected

regions.

Indigenous territories in theRAAN, NicaraguaNicaraguas Autonomous Regions were

created by the Autonomy Statute (Law 28)

in 1987, as part o the peace negotiations

taking place with dissident groups,

including an important part o the countrysindigenous population, which supported

the counterrevolutionary orces in the

1980s war. Tese two regions, the North

and South Atlantic Autonomous Regions,

known as the RAAN and RAAS, constitute

about 45% o the national territory and

12% o the population; though only

Atlantic

Ocean

Pacifc

Ocean

0 500

Kilometers

1,000

Study Site

Country Boundaries

Main Rivers

Legend

Figure 1. Map o the study sites in Bolivia and Brazil


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18

8.6% o the population sel-identies as

indigenous, the vast majority o these groups

are located in these two regions (INEC

2005). Tough these regions had ew non-

indigenous residents historically, this has

changed as colonists have moved into this

orested rontier region rom Pacic andCentral Nicaragua. According to data rom

2000, 70% (4 million ha) o the countrys

orests are located in the RAAN and RAAS

(MAGFOR/INAFOR/MARENA 2001).

Tough there are no ofcial statistics, it

appears that today at least 2 million hectares

o orest are located on areas claimed as

indigenous territories.

Te study ocused on indigenous territories

that are being demarcated and titled in the

RAAN. Tese communities won the right to

recognition o their historic territories in the

1987 constitution, but until 2003 no law

had created the procedures or demarcation

and titling. Only now the process o rightsrecognition is being ully implemented.

At the time o this study, only ve titles

had been authorized, on lands that had

been previously demarcated by an NGO,

and only one o those had been registered.

Te process was delayed by problems such

as central government oot dragging, the

misuse o unds by the titling commission

Caribbean Sea

PacifcOcean

0 200 400

Kilometers

Study Site

Country Boundaries

Main Rivers

Legend

Figure 2. Map o the study sites in Guatemala and Nicaragua


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20

claimed by the Guarayos were lost when the

government instead recognized demands

by timber industries or orest concessions

(Vallejos 1998). From 2000 to 2004,

six indigenous communities established

orest management plans as a strategy

to consolidate their hold on orest areas

that were unoccupied and thus viewed as

available to outsiders; a seventh plan is

currently being evaluated by the state orest

agency.2 Nevertheless, the ormalization o

property rights remains incomplete3, and

those lands that have been titled are ar

rom indigenous settlements. Te areas most

populated, where the highest concentration

o indigenous communities are located, are

still waiting or regularization.

Te main problem aced by the land

regularization process in Guarayos is the

pressure rom outsiders attempting to

establish landholdings, sometimes ueling

corruption involving third parties, the state

land agency and indigenous leaders. At the

same time, the tenure situation or most

indigenous people has not changed or has

changed only marginally, as ew people live

in the areas that have been granted a title.

In addition, theGuarayos people currently

lack a unied institutional structure capable

o eectively administering and managing

their expansive territory, given the dispersed

indigenous settlements, distance to the titledareas and the nature o this ethnically mixed

and dynamic region.

2 In total, 211,178 hectares o orest have been placed underGuarayo community orest management plans with the assis-tance o NGOs, which have been assisting communities to de-velop and implement orest management plans, probably morethan in any other region in the Bolivian lowlands.3 According to inormation provided by the state land agency(INRA), by the end o 2003, 970,202 hectares o the area de-manded had been titled, and by late 2006 an additional 17,958

hectares were titled.

The agro-extractive communitiesin Pando, BoliviaIn the northern Bolivian department

o Pando, agro-extractive communities

have recently gained communal property

rights over large expanses o tropical orest

based on customary claims to territory

traditionally used or Brazil nut gathering.

Modications to Bolivias tenure reorm

process have resulted in the titling o nearly

two million hectares o orest in avor

o communities. Te case is particularly

noteworthy because the changes attempted

to mold the process to the customary orest

livelihoods o the regions rural population.

While land recognition led to substantial

improvement in property rights security,

it was not without problems. Ultimately a

successul outcome will require adaptation

by community residents to organize and

align inormal institutions to the new ormal

property titles.

Te Pando department has been one oBolivias more remote orest rontiers. It

has been changing in recent times with the

construction o a road connecting the region

to the rest o the country. Historically,

NFPs have been the basis o the regions

economy. Initially, in the late 19th century,

occupation o the region was driven by

the rubber boom but later shited to other

NFPs. Brazil nuts (Bertholletia excelsa) havebeen one o the principal NFPs extracted

rom Bolivias northern orests since the

mid-20th century and more recently have

become the oundation o the regional

economy (Stoian 2000). In act, since 2003

Brazil nuts have been one o Bolivias more

important orest exports. During the rst

ve years o this century, Bolivia accounted

or over 50% o world Brazil nut exports


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21

or over 70% i only the processed shelled

nuts are considered (FAOSA 2007).

Although Brazil nuts are ound in most

o Bolivias northern Amazon, most o the

production comes rom the department o

Pando.

Competition to control orest resources in

the region has pitted rural communities

against previous orest estate owners,

known as barraqueros.4 Tese actors

ormerly dominated the region, holding

huge expanses o orests rich in stands o

natural rubber and other orest products

that were harvested by a rural work orceheld in debt peonage through a system o

habilito5, described below. Te barraqueros

lost considerable power with the collapse o

rubber prices at the start o the 20th century

and recently have been urther weakened as

a result o land tenure reorms, mainly the

recognition o land rights to communities.

However, they have actively deended their

traditional orest holdings, pushing hardagainst the claims o communities.6 Rural

communities began to orm shortly ater the

collapse o the rubber boom and, depending

on their proximity to urban centers,

difculty o access and relations with ormer

landlords, have dierent levels o orest

dependence and organization (Stoian and

Henkemans 2000). Beore recent reorms,

both types o stakeholders claimed holdings

based on traditional access rights but

without legal title.

4 Barracaswere ormerly rubber estates; nowadays a unit o or-est exploitation located in public orests which were under thecontrol o a patrn, or barraquero who holds the possession othe barraca.5 Habilito constitutes an inormal system or advancing creditin the orm o cash payments or goods in return or the uturesupply o orest products, established since the beginning o therubber boom.6 According to Ruiz (2005), in 2000 there were 221 barracas,

whose owners claimed over 3 million hectares o orest, although71% o this area was controlled by just 44 barracas.

Porto de Moz in the BrazilianAmazonTe Brazilian municipality o Porto de Moz,

in the Amazonian state o Par, has a long

history o land struggles. Most o the local

communities, established during the rubber

boom o the early 20th century, developed

diversied livelihoods that include

agriculture, shing and orest extraction. In

the 1980s, small- and medium-scale loggers

and sawmill owners entered the region

and established operations, stimulating

the advent o commercial logging. In

the 1990s, large-scale timber companies

initiated logging operations in Porto de

Moz, oten encroaching on community

lands and providing minimal benets or

local people (Nunes et al. 2008; Salgado

1995; Moreira and Hbette 2003). Te

arrival o the timber companies led to

intense conicts with orest communities,

putting in motion a strong movement

to expel the companies rom their lands.

Tese eorts culminated in 2004 witha presidential decree that created the

extractive reserve (RESEX) Verde para

Sempre covering over 1.3 million hectares.

Although the reserve secured property rights

o residents and allowed the communities to

exclude timber companies rom their lands,

it also imposed new constraints on orest

use, ueling inormal practices and markets

and aecting the livelihoods o amiliesestablished within and near the reserve.

Te RESEX changed the patterns o

inormal logging in the surrounding areas,

recongured timber markets and shited

local power structures. Tis compounded

the problems o residents that remained

outside the reserve, because it not only

triggered inormal logging within the

reserve but also increased pressure rom


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22

loggers on communities outside, which

have no ormal property rights (Nunes et

al. 2008). While the communities located

outside the reserve do not have the same

land or resource use constraints, they are not

exonerated rom compliance with existing

orest regulations. Tis means that they are

not allowed to develop orest management

plans until their property rights have been

ormalized. Tis has urther motivated their

ght or recognition rom the government.

Nevertheless, legalizing land claims is not

easy because it entails the navigation o

cumbersome legal procedures to transer

and title state lands or communities(Carvalheiro 2007).

The northern Petn region inGuatemalaTe study sites in Guatemala ocused on

the community orest concessions o the

Petn. Tese concessions represent a type o

rights allocation to communities throughthe imposition o a orest management

model that initially ocused only on

logging. Tough this model has been

adopted successully, it was implemented by

disregarding rules that had been previously

developed by local settlers or orest resource

access and management, particularly

regarding NFPs. Te community

concessions were allocated to relatively

diverse groups comprising communities

settled inside the orest, and others located

in settlements or towns in the vicinity.

In this remote tropical orest lowland,

the common practice rom 1920 to 1960

was the state allocation o large individual

landholdings, mostly or cattle ranching,

timber harvesting or gathering chiclegum

(Manilkara spp.) (Clark 1998; Schwartz

1990). Te latter also provoked an inux

o poor peasants rom other regions.

Te process resulted in distinct patterns

o settlement, with some based on gum

extraction, where amily camps were located

deep inside the orest, and others linked to

logging activities; still others resulted rom

colonization programs that ocused on

clearing orests or agriculture and ranching.

With the decline in gum prices in the 1980s,

the activity waned but not the population,

which continues to grow. Starting in the late

70s, de acto land seizures called agarradas

triggered a new legalization process that

attracted landless peasants into the southernregion o the Petn. In the north, the

establishment o the Mayan Biosphere

Reserve (1991-1996) represented a change

in the logic o orest use to conservation as

a goal, and included the establishment o

a new, but weak, government conservation

agency and unclear regulations or allocation

o usuruct rights. In this period, the Petn

underwent signicant population growth aswell.

As part o the global eort to recognize

the importance o orest biodiversity,

the Guatemalan government established

the Mayan Biosphere Reserve (MBR)

to preserve these ragile and threatened

ecosystems. Yet government eort towards

conservation met with unexpected

local resistance since long-term resident

communities lost their historic settlement

and land use rights granted under the

previous regime. Te newly ormed

conservation authorities and oreign

conservation NGOs were seen as invaders

who were undermining the very basis o

their subsistence. In a relatively short period

o time, widespread polarization set in

between communities and those associated


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23

with the MBR while a distant central

government remained anxious to maintain

peace. Tus, in 1994 the government put

into place a ormal community concession

system in the Multiple Use Zone o the

MBR. What emerged was a much more

complex system o community concessions

based on the recognition o de acto

settlement rights or some, while conerring

to others access, use and management rights

to orest resources.

Te entire tenure reorm that led to

the establishment o community orest

concessions was ocused on the exploitationo timber resources, despite the act that

only a small proportion o local community

members had previous experience in logging

activities. Te community concession model

allowed or the transer o use and decision-

making rights rom individuals to legally

recognized collective entities and required

compliance with a series o regulations, with

rights allocated through a 25-year renewable

contract. Large scale projects led by the

international conservation organizations

supported state eorts to establish the MBR7

and, as the community concessions emerged

and expanded their area and importance,

signicant levels o unding were directed

toward creating the inrastructure, building

capacity and providing the enabling policy

environment or communities to develop

timber enterprises. Tis has been one othe most serious attempts in the region to

ormalize sustainable orest management

under community land tenure systems,

though with limited rights.

7 Specically, Conservation International (CI), Te Nature

Conservancy (NC), and World Wildlie Fund (WWF), with astrong backing o USAID.


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25

Land rights recognition underdisparate tenure modelsTe wide variety o local populations living

in orested landscapes, such as indigenouspeople, agro-extractive communities, and

smallholders, have developed a diverse

range o rules, practices and organizational

strategies or guiding processes such

as territorial occupation, land use and

management o orest resources. Tese

strategies have evolved in response to actors

such as population pressures, production

needs and the availability o technology,

and are based on shared perceptions, values

and interests. However, in ormerly isolated

regions, with little previous intervention o

the state, customary institutions are now

being challenged as community members

ace pressures rom land speculators,

loggers and ranchers, as result o expanding

road networks, increased land values, and

growing market demands or timber.

Indigenous people and other traditional

orest communities whose tenure rights

are not ormalized run the risk o losing

their lands through land encroachment anddifculties in excluding third parties who

are interested in occupying community

lands to satisy short-term goals (Schmink

and Wood 1992). As a result, the diverse

array o social groups and orest users have

begun to demand that governments secure

their property rights claims, usually based

on ethnicity, rights-based approaches relying

on ancestral claims, and/or traditional

occupation, a processes that has been labeled

community-led land reorm (Sikor and

Mller nd). In addition to such claims,

governments oten ace demands rom

other smallholders, some o whom are

landless, who are seeking access to lands

in these rontier areas. Tese groups may

make their living through the extraction o

orest resources, although more oten they

4 The rules of the game forformalizing property rights


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26

are involved in agriculture production or

subsistence and market production that

entails orest conversion.

In recent years, governments have begun

actively to engage with social movements by

accepting their diverse claims, recognizing

and allocating land tenure rights in orested

areas (aylor et al. 2008). Dierent land

tenure models (i.e., indigenous territories,

extractive reserves, agro-extractive

settlements, and community concessions),

each encompassing dierent bundles

o rights, have been created as a way to

ormalize property rights in avor o localpeople (Pacheco et al. 2008). As pointed

out previously, these approaches or land

regularization do not always eectively

resolve the targeted problems, and in some

cases have actually exacerbated tenure

insecurity.

In eect, the ormalization o land tenure

rights consists o clariying those rights byadopting ormal rules that may (or may

not) contradict the rules that communities

already employ to occupy land and

manage resources (Fitzpatrick 2005). In

some cases, ormal rules may eectively

complement inormal ones in providing

secure tenure and diminishing rent-

seeking behaviors. With indigenous and

traditional people, community rules are

likely to be customary rules (mainly non-

ormalized rules-in-use), implying that they

have been repeated over time and carried

down through tradition and a customary

authority structure. In situations where

ormal rules ignore or contradict customary

rules or land acquisition and possession

by imposing ormal regulations biased

against traditional practices, the existing

practices o communities are rendered

illegal, which in turn reinorces asymmetric

power relations by privileging certain

elite interests outside o communities.

Te latter tends to aggravate illegal land

appropriation, and generate problems by

enhancing the power o authorities that do

not respond to traditional social systems.

Conversely, the recognition o a traditional

authority can reinorce and empower it;

when such authorities are not democratic

or accountable, this may also lead to the

reinorcement o elite interests, corruption,

and the exclusion o some segments o the

population (see Ribot 2001b; Larson 2008a;

Ribot et al. 2008).

At times states also adopt rules-o-law that

take a hands-o approach to the customary

rights o resident groups. Te preexisting

rights are recognized without major

intervention in internal aairs. In other

cases, states do the opposite and attempt

to intervene more heavily by imposing

restrictions on the use o certain resourcesand establishing rules or internal land

allocation and mechanisms or the election

o authorities. In the land tenure models

that governments have adopted and which

are discussed here, there is an implicit

assumption that indigenous groups have

better developed local institutions or land

allocation, use and exclusion than other

traditional communities, which are assumed

to have weaker systems o rules. However,

this is not necessarily the case or some agro-

extractive communities that have developed

institutions or orest management.

Te ollowing section assesses the ve cases

in greater detail to assess how ormal and

inormal rules related to property rights

interact in practice, and their resulting

outcomes. Te cases oer a range o


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29

indigenous territories involves resolving

boundaries with neighbors and outsiders

that hold lands inside a territory. Tere are

also issues o scale at which the territory is

demarcated and the establishment o new

territorial authorities elected rom among

traditional community authorities. While

regional political leaders are promoting the

demarcation o large territories in order

to move more quickly, some communities

preer smaller territories at the community

or smaller multi-community scale, which

is more amiliar and or which they

have created unctional territorial level

institutions. An associated issue is thatthe elected territorial authority (sndico), a

traditional authority existing previously only

at the community level, has legal powers

over natural resources as well as access to

state tax income rom resource exploitation

on behal o the territory; thus, community

level authorities ear losing direct control

over both natural and economic territory

and resources.

Te law recognizes a tenurial shell

(Fitzpatrick 2005) as dened by indigenous

people and the right o communities

to continue to manage the internal

allocation o land and resources according

to customary institutions; it does not

attempt to codiy these rules, although it

does create a system or the recognition o

existing, specic customary authorities. In

practice this has meant the registration o

communal and territorial authorities by the

regional government. While in some cases

registration occurred without incident, in

our study sites the regional government

has established arbitrary rules or the

composition o the territorial authority

in violation o the law, which states that

communities should choose their authorities

based on their own customary systems.

Hence, the government has ailed to register

the elected authorities or has registered

dierent authorities than those elected,

and, in at least one case, an ofcial colluded

with the authority registered to gain access

to community unds. Ultimately, it is

important to note that the state decides who

it will recognize.

Te resources inside community lands are

usually allocated to household agricultural

areas and to common use, although there is

some variation between communities. In the

RAAN case studies the areas designated tohouseholds were treated as private property

to be passed down rom one generation

to the next, and could also be traded

among community members. In the study

territory o asba Raya, which actually has

individual land titles as well as a collective

area, landowners have been able to transer

landownership to people rom outside;

they have also allowed some outsidersto obtain agricultural lands in common

areas. Yet people considered ounders,

and their children, oten obtain the best

areas, without limits regarding number and

size, and may even do so without the prior

consent o community authorities. At the

other extreme, outsiders or new members o

the community are more likely to be granted

use rights to small areas. I, over time, they

are accepted into the community, they will

be granted an area more permanently. asba

Rayas remaining communal area is open

or hunting and collection o rewood and

other products as needed. In the second

study area, Layasiksa, where there are no

private parcels, a communal land area is

designated or amily agriculture, although

there are some conicts with residents who

do not respect other amilies areas.


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Land sales in asba Raya are more common

than in Layasiksa since many residents o

the ormer have individual titles. Although

these titles, as agrarian reorm titles, are

by law not transerable, there is an active

inormal market or lands granted under

these titles. At various times, the state has

also permitted their sale and has oten

legalized the registration o new owners.

Sales have thus occurred both legally and

illegally. While occasional suits are brought

against new owners, depending on particular

government administrations, illegal sales

have usually been ignored. Currently,

however, the Communal Lands Law addsan additional level o control over land sales,

stating that improvements10 should be sold

to the community, rather than to outsiders.

Hence asba Rayas leaders have established

a set o rules to try to stop outside sales.

Tese include notiying the buyer and seller

o the illegality o the transaction, expelling

or undertaking actions to impede the buyer

rom gaining access to the land purchased,notiying the appropriate government

authorities and prohibiting anyone selling

land rom acquiring new lands in communal

areas. Hence, the (ormal) land law has

driven the creation o new (mostly inormal)

working rules, in an attempt to increase

the control o the collective over individual

areas, particularly with regard to the

exclusion o outsiders.

Te law does not recognize titles conerred

ater 1987, but the state itsel continued to

give out lands in both communities in the

1990s. Specically, these are areas o orest,

5,000 hectares in Layasiksa and 11,200

hectares in asba Raya, known as Collective

Blocs, given to groups o indigenous

10 Since land itsel should not be sold, improvements reers to

investments made by the landholder. Tis oten includes clear-ing orest or agriculture.

combatants as part o the peace accords.

Te ownership o these areas has not been

challenged by the communities, probably

or two main reasons. First, most o the

beneciaries also live in the communities;

second, the Miskito population respects the

combatants who ought or their rights to

land and autonomy. However, changes in

ownership and the sale o orest resources

in these areas have raised concerns, and all

within the region over which asba Raya

authorities are seeking greater control.

In Layasiksa, beneciaries living in the

community were actively seeking to prevent

the sale o land by one o the beneciarieswho was claiming to represent the group.

Te local authorities in charge o

overseeing land and natural resources

have traditionally been the wihta (judge)

with regard to internal allocation and the

sndico with regard to relations external to

the community. Both o these authorities

are elected in community assemblies andoten remain in their post until there is

a reason to have them removed, though

the ormalization process now requires

registration o the sndico every year. Over

time, however, the role o the sndico has

expanded, displacing that o the wihta with

regard to land and natural resources (with

the role o the judge staying ocused more

on internal crime, and conict resolution).

In recent practice, it is the sndico, then,

that has represented the community in

land and resource transactions externally,

and allocated resource use internally. Tis

has resulted in serious problems in many

communities, as sndicoshave become an

easy target or corruption. For example, in

one o Layasiksas neighboring communities,

with which Layasiksa has had the most

conicts over land and resources, colonists


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have invaded part o their territory; many

people believe that a sndico was selling

this land, as has been a problem in other

communities o the RAAN. Sndicoshave

also presented problems with regard to

timber sales, by ailing to provide accounts

to the community or selling community

resources or their own prot, or simply

through their limited negotiating capacity or

lack o knowledge regarding air prices.

Guarayos: ormal and inormalrules eroding local governanceIn Guarayos, inormal property rights

institutions have been given a certain degreeo ormality with the creation o the CO.

Within the CO, the INRA law denes

customary practices (usos y custumbres) as

the guiding rules or allocating and using

property and associated natural resources.

However, in practice the ormalization

process has not spatially captured much o

the area governed directly by the Guarayo

peoples inormal rules; rather the areasincluded are ar rom their settlements.

Te result is competing institutional

rameworks in which ormal institutions are

inefcient, such that inormal institutions

continue to direct local behavior, while at

the same time these institutions are under

increasing pressure and contestation by

outsiders. Te incongruence between the

two systems has created an opportunity or

corruption and rent-seeking behaviors by

powerul groups and individuals that have

eroded territorial governance.

A key dierence between inormal and

ormal property rights institutions in

Guarayos is related to the issue o scale:

inormal institutions unction primarily

at the village level, while the CO is

supposed to unction at a territorial level

with authority granted to the Guarayos

representative organization COPNAG.

Tere are unctional reasons or this

dichotomy as village level institutions, as

will be explained, manage the organization

and allocation o land or household

subsistence production, while the CO

manages territorial governance, leaving

local, internal rules open to interpretation

by members. For practical reasons, local

level institutions are well developed, while

territorial institutions are still emerging and

are not unctioning well. Tis is partially

due to the act that as an entity the CO

is vague and incomplete, being a largeterritory that is not always contiguous and

with a diverse ethnic mix that encompasses

a signicant non-indigenous population.

More importantly, governance responsibility

or the territory was passed to COPNAG,

which was not designed as an institution to

manage and administer a collective area o

land and resources but rather as a collective

movement to advocate more generally orGuarayo interests. Hence, mechanisms or

collective decision making, clearly dened

rights and responsibilities o leaders, as well

as processes or oversight by constituents

are not sufciently developed within

COPNAG.

Authority over the inormal institutions

that allocate land or agriculture is held by

village councils called centralescomposed o

resident adults with elected leaders. Lands

immediately surrounding settlements are

divided into agricultural zones (zonas

agrarias). Beyond these, orest lands and

wetlands are considered zones o inuence

(zonas de inuencia) that are the loosely

dened territories usually extending or 15

to 20 km rom each community, depending

on its size. Although it is not clear when this


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orm o territorial organization originated, it

is similar to the agrarian unions ormed by

peasants when claiming land. It was likely

inuenced by outsiders who arrived with the

rontier expansion that started in the 1970s,

a time when Guarayos amilies elt greater

pressure to develop a strategy or occupying

territory.

Agricultural zones provide a means to

distribute agricultural lands to resident

households and are authorized by the village

central at the request o groups o local

amilies looking or land to cultivate. Te

agricultural zones are communal areas withan assigned president. Te size o the zones

varies depending on the number o member

amilies, although they usually include less

than a couple dozen amilies. Each amily

is granted ownership o plot that typically

contains swidden agriculture elds, allows

and orest areas. Ownership is based on use

and can be passed rom one generation to the

next. However, by custom amilies can not

sell their rights, and i the plot is abandonedthe president can assign it to another local

amily. Te number o zones depends on

the size o the community (or example, the

study site o Cururu has only one zone, while

Santa Maria is one o eight zones o the

community Yotau). Te zone o inuence

is a communally held reserve area, where

orests are used by community members

or subsistence (hunting, extraction) and i

necessary or the expansion o agriculture.

Located outside indigenous communities,

these zones have no ormal or legal standing

other than being maniestations o the de

acto occupation o land.

o demarcate the CO, INRA has to

evaluate competing claims and regularize

legitimate property rights (a process

called saneamiento) beore titling lands

or indigenous people. At the start o

the process, INRA immobilized the

territory within the CO demand: this was

supposed to reeze land transactions while

the agency sorted out contested property

claims. Tere were legitimate third party

claims to land within the CO demand,

such as landowners with long histories

in the region or who had purchased land

and received title prior to the initiation o

this round o the agrarian reorm process.

Tough these peoples rights needed to be

considered, the process did not eectively

protect indigenous claims. Working at the

territorial scale limited the eectiveness othe CO as a property rights institution

because mechanisms or resource allocation

customarily worked at the village scale.

Te polygons INRA dened combine

multiple communities in large areas, which

complicated distinguishing membership

rom an ethnically mixed population.

Rather than ocusing at the settlement

scale and addressing customary propertiesdelineated by agricultural zones, INRA

instead grouped large expanses o territory

into ve polygons. Tese were independent

o the pattern o indigenous land use, and

apparently drew a distinction between

distant areas that were unoccupied and

the contested lands near the highway and

settlements. INRA adopted a strategy o

rst concentrating on remote polygons

with ew inhabitants instead o attempting

to afrm indigenous land holdings near

settlements. Tis strategy allowed the agency

to cover more territory rapidly by avoiding

the need to resolve competing claims (i.e.,

the places where people live).

Te long delays and ocus on uncontested

areas allowed illicit land transactions to

take place in the accessible lands that were


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highly prized by both indigenous people

and outsiders. Some unscrupulous actors

paid or orged titles or other documents,

including certication rom corrupt

COPNAG leaders proving the existence

o property prior to the CO demand

(Lpez 2004). Te atmosphere o illegal

transactions has also begun to undercut

the customary system established by the

Guarayos people to allocate land. Some

amilies that had received individual title to

their plots, or documents authorizing their

occupation during earlier agrarian reorms,

realized that they could sell these rights to

outsiders and move urther into the orest toestablish new plots. During the long delay,

members o some agrarian zones claimed

by ranchers or non-indigenous armers

accepted payment to drop their claim to

the land. In such cases it was apparently

easier or indigenous amilies to make these

decisions because o the perception that

large areas were going to be titled in their

avor (although under communal titles,

which would hamper chances or utureland sales).

Te potential benets o ormal property

rights, along with the legal regulation

and authority they would entail, have not

to date extended protection or greater

security to most indigenous amilies in

the province. Generally the areas where

indigenous amilies live and the lands

informal institutions and forest resources

Documents