marianna bicchieri vggt & customary rights

Marianna BicchieriLand Tenure Officer

22 June 2016

Protection for Customary Tenure Rights

and the

Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of

National Food Security (VGGT)

Regional Land Forum‘Bringing Land governance into ASEAN Economic Integration’

Heart of individual and community identity, culture, history and spirituality;

Source of livelihoods, shelter and income specially in times of hardship;

Key element for food security and economic development.

Background: Tenure SystemsMore than two billion people worldwide access

resources/land through customary tenure systems (USAID, 2011)

Land and NR are much more than just asset

Defining Customary Tenure

Local rules, institutions and practices governing land, fisheries and forests that have, over time and use, gained social legitimacy and become embedded in the fabric of a society.

Although customary rules are not often written down, they may enjoy widespread social sanction and may be generally adhered to by members of a local population.

Source: FAO, 2016

THE MOST VULNERABLE TEND TO LOSE THEIR LAND

Customary Tenure Right Holders:

• Indigenous People

• Ethnic minorities

• Small holders

• Local communities

Background: Tenure Systems Under Stress

As COMPETITION OVER LAND NATURAL RESOURCES increase:

•Population growth•Climate change•Urbanization•Environmental degradation•Tourism enterprise•Demand for energy… pressure, disputes conflicts…

Poisoned environment

for investment…

….everybody lose

Set of principles and internationally accepted good practices to tackle land and NR governance issues

Instrument to foster the dialogue among different stakeholders

A new opportunity to soundly address long stand issues

POSITIVE ACTIONS ARE URGENTLY NEED TO

ADDRESS THIS ISSUE

VGGT CAN BE A USEL TOOL FOR THAT PURPOSE

Five general principles – the basic elements of responsible

governance of tenure. States should:

1. Recognize and respectlegitimate tenure rights and people who hold them2. Safeguard and protect against threatslegitimate tenure rights

3. Promote enjoymentof legitimate tenure rights

4. Provide access to justicein case of violation of legitimate tenure rights

5. Prevent disputes, conflicts and corruption

TEN IMPLEMENTATION PRINCIPLES

1. Human dignity2. Non-discrimination3. Equity and justice4. Gender equality5. Holistic and sustainable approaches

6. Consultation and participation7. Rule of law8. Transparency9. Accountability10. Continuous improvement

States should recognize and protect the legitimate tenure rights of indigenous peoples and other communities with customary tenure systems (…) (VGGT, Paragraph 9.4)

VGGT and Customary TenurePart 3 Legal recognition and allocation of tenure rights and duties

Where indigenous peoples and other communities with CTS have legitimate tenure rights to the ancestral lands on which they live, States should recognize and protect these rights. Indigenous peoples and other communities with customary tenure systems should not be forcibly evicted from such ancestral lands.

(VGGT, Paragraph 9.5)


States should consider adapting their policy, legal and organizational frameworks to recognize tenure systems of indigenous peoples and other communities with customary tenure systems. (…)(VGGT, Paragraph 9.6)


Does “legitimate” means formal/legal/statutory rights?

FREQUENT QUESTIONS

Should only legally recognized rights be considered “legitimate”?

The VGGT explicitly consider as “legitimate” not only those tenure rights formally recognized by national law, but also those rights that, while not legally recognized, are considered to be socially legitimate in local societies.

LEGITIMATE TENURE RIGHTS

(see e.g. VGGT paragraphs 4.4. and 5.3)

Types of legitimate tenure rightsLegal legitimacy (legitimate through the law; legally recognized)

Ownership rights recognized by law including rights of individuals, families, and groups, and customary rights recognized by the law;

Servitudes/easements.

Social legitimacy(legitimate throughbroad social acceptance even without legal recognition)

Customary and indigenous rights to resources vested in the state in trust for the citizens;

Customary rights on state land, e.g. forest communities;

Informal settlements on private and public land where the state has accepted that it is not possible to relocate the people;

Not formally recognized traditional fishing grounds.

Source: adapted from FAO, 2009.

This means that…

Customary tenure rights

…ARE LEGITIMATE TENURE RIGHTS

THROUGH

PRINCIPLES IN ACTION

COUNTRY EXPERIENCES

VGGT principles for the protection of customary rights soundly incorporated in the national land use policy.

Land Law of 2001 has a chapter on indigenous peoples’ collective land titling. Regulations set out

procedures for communities to gain collective title.

Principles in Action1. Recognize and respectlegitimate tenure rights and people who hold them

2. Safeguard and protect against threatslegitimate tenure rights


4. Provide access to justiceIn case of violation of legitimate tenure rights


Myanmar

Cambodia

Principles in Action1. Recognize and respectlegitimate tenure rights and people who hold them

2. Safeguard and protect against threatslegitimate tenure rights


4. Provide access to justiceIn case of violation of legitimate tenure rights


FIJIThe Fiji Fisheries Act and regulations protects the fishing rights of customary users. Although fishing in ‘restricted areas’ is prohibited, it exempts from this prohibition traditional fishing and subsistence activities.

IndiaForest Rights Act provides a procedure to recognize rights under customary tenure systems demarcating the area where such rights are enjoyed and recording them; and conferring formal titles to these rights.

• Makes access to NR more equitable• Protects people from loosing their land• Supports equality among people• Helps ensure disputes are solved before they

degenerate into conflict• Supports food security and hunger eradication• Social justice, peace and stability• Secure and improve livelihoods for the rural

poor

Recognizing and protecting customary tenure….

Economically Smart: Good governance and tenure security creates an enabling environment for responsible agricultural investment and leads to increased productivity.

Thank You!

Marianna Bicchieri, Land Tenure Officer

FOOD AND AGRICULTURE ORGANIZATION OF THE UNITED NATIONSRegional Office for Asia and the Pacific

Slides ‘just in case’ in case there are questions about details and the development process of the VGGT.

What are the guidelines about?

•How people get access to natural resources.•Who can use what resources, for how long, and under what conditions

Tenure

Responsible GovernanceTo support the sustainable use of

land, fisheries and forest resources and care for the environment.

Improving Tenure governance as a priority

5 general principles summarize the basic elements of responsible governance of tenure

Together with the 10 implementation principles….

How are the Guidelines organized?

…together they create the framework for the rest of the VGGT

They are called the Guiding principles of responsible governance of tenure

Development GuidelinesMeetings around the world

• RESEARCH and NETWORKING

2000 onwards

• CONSULTATIONS 2009 – 2010

• DRAFTING 2011 (January–

June)

Public and private sectors, civil society,

smallholder farmers and academia

15 consultation meetings 1000 people from 133 countries

• NEGOTIATIONS 2011 – 2012 (July, October,

March)

• ENDORSEMENT by CFS

11 May 2012

Development GuidelinesNegotiating an important text

Development Guidelines

Committee on World Food SecurityUN Top forum for reviewing and following up policies concerning world food security

marianna bicchieri vggt & customary rights

Education