The Governance of Forests Initiative An Introduction to the DRAFT Indicator Framework

OVERVIEW: The objective of the Governance of Forests Initiative (GFI) is to bring widely accepted principles of good governance to bear on the particular challenges of forest protection. Our goal is to identify progressive processes and practices that can help empower poor, forest dependent people, and to meaningfully support positive environmental outcomes. This document presents a draft framework for organizing and defining issues pertinent to “governance of forests,” and includes a preliminary set of indicators addressing land and resource tenure. BASIC METHODOLOGY: The GFI indicator framework is intended to be an objective but qualitative assessment of the integrity of the processes and arrangements that determine how decisions about forest management are made. Our premise is that good processes and capable institutions are critical to addressing the challenges of sustainable management of forest resources and reducing deforestation. Although the focus of these indicators is on how decisions are made, the relevance of these questions is linked to the extent to which they result in concrete changes in outcomes or outputs in the forest sector. The framework therefore also includes a “baseline” section where potential users would gather key facts and quantitative information relevant to a country’s forest resources. This information is intended to provide necessary context for the assessment.

GOVERNANCE COMPONENTS

Actors government institutions, international institutions,

civil society, private sector

Rules policy & law

content, policy & law processes

Practice implementation, administration,

monitoring, enforcement

Transparency

Inclusiveness

Accountability

Coordination

PRIN

CIP

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S O

F G

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D

GO

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AN

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Capacity

BASELINE INDICATORS (key facts and quantitative information relating to forest sector outcomes or outputs)

Issues: ◊ land tenure ◊ land use planning ◊ forest management ◊ revenue distribution & economic incentives

The matrix above outlines the key principles and components that we have used to define “governance of forests.” The proposed indicators of governance of forests are based on a set of diagnostic questions that assess the quality and adequacy of a particular aspect of governance. The responses to these questions result in one of five “values” or “scores” on a scale from good (i.e. high) to bad (i.e. low). The indicators within the framework address the following crucial issues:

land and resource tenure land use planning forest land management revenue distribution and economic incentives

The GFI framework will consider these issues in the context of three major components of forest governance: actors, rules, and practice. The framework first addresses the functions and capacity of a range of actors and institutions that are involved in decision-making from the local to the national level. Relevant actors may include, for example, various governmental agencies and bodies, civil society, the media, international organizations, and industry. Second, the framework considers the rules (the laws, policies and regulations) that govern the forest sector. We include both the processes by which laws and policies are made or changed, as well as the scope and the content of the significant laws or policies. Finally, the framework assesses practice at the operational level. We assess the adequacy of the processes of administration, monitoring, and enforcement to in order to assess the extent to which the “rules” that are in place are actually being implemented. The GFI indicator framework is also based on five widely accepted principles of good governance. Each indicator will be designed to assess the extent to which a particular aspect of forest governance reflects one or more of these principles. Transparency: Transparency is the process of revealing actions so that outsiders can scrutinize them. Facilitating access to information is critical in order to inform and engage public constituents. Attributes of transparency include the comprehensiveness, timeliness, availability, comprehensibility of information, and whether efforts are made to make sure information reaches affected and vulnerable groups as appropriate. Inclusiveness: Diverse and meaningful input helps decision-makers consider different issues, perspectives, and options when defining a problem. It allows them to gather new knowledge, integrate public concerns with decision-making, and manage social conflicts by bringing different stakeholders and special interest groups together at an early stage when change is still feasible. The value of public participation in decision-making is increasingly well-recognized, and makes decisions more credible. Elements of access to participation include formal space for participation in relevant forums, the use of appropriate or sufficient mechanisms to invite participation, the inclusiveness and openness of such processes, and the extent to which the gathered input is taken into account. Accountability: Access to justice and redress are necessary to hold governments and actors in the private and public sector accountable, to enable individuals and public interest groups to protect their rights to information and participation, and to challenge decisions that do not take their interests into account. This includes the extent to which there is clarity about the role of various institutions in sector decision-making; there is systematic monitoring of sector operations and processes; the basis for basic decisions is clear or justified; and legal systems uphold the public interest.

Coordination: Coordination refers to the extent to which various agencies and actors whose decisions impact upon forests are advancing common objectives. There are usually separate government agencies and authorities with oversight for forests, environment, land use, agriculture, infrastructure and general macroeconomic planning, respectively. Too often, there is a lack of coordination between these actors.

Capacity: Capacity refers to the government’s social, educational, technological, legal, and institutional ability to provide public access to decision-making, as well as the ability of civil society to make use of such access. This includes the capacity of government and official institutions to act autonomously and independently, the availability of resources (both human and financial) to provide access, and the capacity of civil society (particularly NGOs and the media) to analyze the issues and participate effectively. We have attached a DRAFT subset of indicators addressing land and resource tenure, and five sample indicators that have been elaborated into full worksheets containing diagnostic questions and proposed scales for scoring. These documents are being circulated to you for your feedback and input.

Additional Resources and Indicators

International Instruments & Initiatives for Forest Governance United Nations Forum on Forests

United Nations http://www.un.org/esa/forests/index.html

Forest Law Enforcement, Governance and Trade (FLEGT) European Commission http://ec.europa.eu/environment/forests/flegt.htm

Forest Law Enforcement and Governance (FLEG) World Bank http://go.worldbank.org/FMKUFABJ80Forest Governance Learning Group Sponsored by the International Institute for Environment and Development (IIED) http://www.iied.org/natural-resources/key-issues/forestry/forest-governance-learning-group Global Criteria / Indicators / Principles (forest specific) FSC Principles and Criteria for Forest Stewardship

Forest Stewardship Council (1996) http://www.fsc.org/pc.html

The CIFOR Criteria and Indicators Toolbox Series Center for International Forestry Research (1999) http://www.cifor.cgiar.org/acm/pub/toolbox.html

Revised ITTO criteria and indicators for the sustainable management of tropical forests International Tropical Timber Organization (2005) http://www.itto.or.jp/live/PageDisplayHandler?pageId=201The Pyramid - A diagnostic and planning tool for good forest governance WWF, World Bank, IIED (2002) http://www.panda.org/about_wwf/what_we_do/forests/our_solutions/tools/index.cfmForest Transparency Indicators Instituto Centro de Vida http://www.icv.org.br/ Global Criteria / Indicators / Principles (not forest specific) World Governance Assessment Overseas Development Institute http://www.odi.org.uk/projects/00-07-world-governance-assessment/Index.htmlWorldwide Governance Indicators World Bank http://info.worldbank.org/governance/wgi/index.aspThe Access Initiative Coordinated by the World Resources Institute http://www.accessinitiative.org/The Electricity Governance Initiative World Resources Institute and Prayas Energy Group http://electricitygovernance.wri.org/

DRAFT Dec 2008

DRAFT Land Tenure Indicators Land Tenure: a “bundle of rights” associated with land and values related to land, which defines the relationship (either legally or customarily) among people with respect to land

ACTORS

General issue description Potential indicator Potential indicator details Relevant Governance Principles

CUSTOMARY INSTITUTIONS1

1. To what extent do customary institutions provide transparency regarding internal land tenure administration?

Format: Case study of one community Elements of quality: • Rules and procedures are clear and understood by

community members • Land allocations are made through a transparent

process • Records of land allocations are maintained • Records of land allocations are accessible by

community members

Transparency Internal land tenure administration: Customary lands are generally administered by internal authorities and institutions as opposed to the state. These institutions must define and implement internal rules and procedures and monitor and sanction compliance with those rules. As with government administration, there are examples of poor governance within customary tenure institutions. For example, corrupt customary authorities may choose to allocate land to an outsider for a significant profit rather than to a member of the community for a token fee. The same parcel of land could also be allocated to different people, with the customary authorities receiving a fee from each person. Attention to key principles of good governance can help increase the accountability of customary institutions, thereby increasing the likeliness that customary rules are perceived as legitimate by the community.

2. To what extent do customary institutions provide adequate mechanisms to handle internal disputes?

Format: Same case study as indicator #1 Elements of quality: • Effective conflict resolution mechanisms exist (e.g.

conflicts over land allocation decisions, over who to exclude, over who gets to make the rules, over the rules themselves, over interactions with outsiders, etc)

• Community members have access

Accountability

1 These indicators will not apply in countries where customary tenure systems are not present. Further, due to the great variety of customary tenure arrangements, even within a given country, it is not possible to achieve a high level of detail with these indicators.

DRAFT Dec 2008 3. To what extent is there

clarity and agreement within the general community regarding the identity of the customary authority?

Format: Same case study as indicator #1 Elements of quality: • The identity and role of the customary authority are

known and clear • The customary authority is not widely disputed

Accountability

Interactions with outsiders: Customary institutions must be able to effectively exclude, negotiate with, and represent their interests to external groups, including other communities, the government (at all levels, but especially local), and private companies. Civil society organizations and/or the government may provide capacity-building support for this role.

4. To what extent do customary institutions have the ability to effectively interact and negotiate with external groups?

Format: Same case study as indicator #1 Elements of quality: • Ability to act in a coherent and organized manner • Ability to negotiate effectively • Access to relevant information • Access to support from CSOs or other

Capacity

LAND TENURE ADMINISTRATION AGENCIES

5. To what extent do agencies have the capacity for effective implementation of land tenure laws and policies?

Format: Identify agencies that administer land tenure in forests. Conduct capacity assessment for each. Could also be a case study of key land agency. Elements of quality: • Access to adequate information technology and

relevant expertise • Access to adequate and sustainable financial

resources • Access to qualified and competent staff • Access to social expertise • Access to environmental expertise • Staff opportunities for knowledge enhancement

Capacity Land tenure administration: The rules (laws and policies) of land tenure are administered through procedures to allocate, transfer, document and delimit the boundaries of rights on both private and public lands. These processes may be carried out by one or several agencies within the land and/or forest sectors depending on the types of rights involved (e.g. private land ownership rights, commercial resource extraction rights, community use/access rights, etc). These agencies are also responsible for recording and disseminating information about rights, which typically involves large amounts of both descriptive and spatial data.

6. To what extent is there effective horizontal coordination between the various agencies responsible for land tenure administration?

Format: Using the agencies identified in #5, conduct the general assessment or case study. Elements of quality: • Concrete mechanisms to support and encourage

coordination • Clearly defined lines of communication • Effective mechanisms for sharing information

Coordination

DRAFT Dec 2008 7. To what extent is there

effective vertical coordination within agencies responsible for land tenure administration?

Format: Identify relevant levels and conduct the general assessment. Elements of quality: • Concrete mechanisms to support and encourage

coordination • Clearly defined lines of communication • Effective mechanisms for sharing of information

Coordination

8. To what extent do land tenure administration agencies effectively monitor their own performance?

Format: Case study of one or two key agencies Elements of quality: • Monitoring is regular and timely • Monitoring is based on a broad range of criteria • Customer input is solicited as a part of monitoring • Resulting performance reports are accessible by the

public

Accountability, Transparency

9. To what extent are land tenure administration agencies independently monitored?

Format: general assessment Elements of quality: • Audits are independent • Audits are regular and timely • Audits are based on a broad range of criteria • Audits are accessible by the public • Agency reports and accounts are accessible by the

public to allow civil society monitoring

Accountability, Transparency

Performance monitoring: The accountability of land administration agencies can be enhanced through performance monitoring. Internal performance monitoring should draw upon both internal input (staff) and external input (customers). Independent monitoring may include audits by other arms of the government (e.g. legislature) or watchdog activities of civil society groups. Monitoring may be based on a wide range of performance indicators, such as accuracy of transactions, time to process transactions, cost of transactions, financial stability of the system, customer satisfaction, staff satisfaction and morale, and cooperation with other agencies.

10. To what extent are land tenure administration agencies responsive to the need for reform?

Format. Case study. Choose a performance assessment from a previous year and comment on the extent to which steps have been taken to solve problems identified by the assessment. If issues have not been resolved, why not?

Accountability

Human resource policies: The staff of land tenure administration agencies frequently have considerable latitude in interpreting laws and policies, which raises the risk that certain stakeholder groups may unduly influence them. Staffing policies and codes of behavior can prevent the capture of institutions, thus safeguarding the independence of land agencies. In some countries, staffing policies may be common for all government servants.

11. To what extent do human resource policies promote the independence of staff?

Format: conduct the assessment of HR policies at whichever level is relevant (i.e. government-wide or for the land agency. Elements of quality: • clear criteria for hiring and promotion • predictable tenure with clear procedure for removal

before end of term • requirements for disclosure of interests • conflict of interest rules • adequate and transparent salaries • clear codes of behavior for staff

Accountability

CONFLICT RESOLUTION SYSTEMS

DRAFT Dec 2008 Conflict resolution mechanisms may be both general and land specific. They may include formal (judicial) systems, alternative systems (administrative, arbitration, mediation, etc) and customary systems. The effectiveness of these systems is critical to ensure the protection of rights, especially for marginal groups. However, it is beyond the scope of this framework to look at the impartiality (or other overarching qualities) of the entire justice system. Therefore, we focus only on capacity as it relates to land tenure issues.

12. To what extent do judges, arbitrators, and other decision-makers have adequate expertise regarding land tenure cases?

Format: Case study Elements of quality: • Access to professional training and sensitization on

land tenure issues OR existence of specialized bodies to solve land tenure disputes

• Access to information necessary to make informed decisions

Capacity

CIVIL SOCIETY

Civil society organizations (CSOs) can play a critical role in promoting security of tenure. Since land administration is often dominated by financial and technical considerations, other public interest concerns such as customer service, equity in access and environmental impacts are frequently under-represented. Civil society organizations have an important role to play in representing these additional concerns. However, to play this role effectively, civil society organizations must have the necessary capabilities to ensure their voices are heard: technical --including an understanding of environmental and economic aspects of the sector-- financial, organizational, and political. This indicator looks at the capabilities of civil society organizations active in land tenure issues.

13. To what extent do civil society organizations have the capacity to work on land tenure issues?

Format: General assessment Elements of quality: • Expertise in land tenure issues • Ability to provide support for weaker groups and

grassroots links • Access to ongoing knowledge enhancement • Credibility with a wide range of stakeholders • Effective networking amongst CSOs

Capacity

DRAFT Dec 2008

RULES

General description of the issue Potential indicator Potential indicator details Relevant Governance Principles

LAW & POLICY CONTENT

14. To what extent does the law recognize and protect customary tenure systems?

Format: General assessment Elements of quality: • Customary tenure is legally recognized • Indigenous rights to land are legally recognized • Law includes safeguards to ensure customary rights

are not encroached upon by outsiders • Law provides for the formal documentation of

customary rights

Accountability Creating rights: Land rights exist within both statutory and customary systems of tenure. Tenure is said to be a bundle of rights associated with land and values related to land, since it may involve multiple types of rights (e.g. ownership, access and use rights) belonging to several different persons or groups. The law should recognize a variety of rights relevant to the national context, and should also afford protection for the different types of rights it recognizes. Protection generally includes access to some sort of legal documentation (e.g. a title) and the right to challenge land administrative decisions on points of law. Such decisions may include the valuation of property, compulsory purchase of land, land use planning, and land taxation. It may also include rights to transfer land (by sale, lease, heirs, gift, grant, mortgage, etc). Finally, rights should also be non-discriminatory, clear and non-conflicting so as to provide a sense of certainty.

15. To what extent does the law recognize and protect multiple types of land rights?

Format: Identify the different forms of tenure that are relevant in the country. Options may include private ownership, collective ownership, secondary rights, access / use rights on public land, resource rights, rights over ecosystem services, other. Conduct the assessment for each type of right identified Elements of quality: • Right is legally recognized • Right is clear and unambiguous • Right can be formally documented • Right brings with it the ability to challenge

administrative decisions based on points of law • Right is available to all without discrimination

Accountability

Extinguishing rights: Most countries have adopted legislation to address the practice of compulsory land purchases, thereby providing a measure of protection against such "forced" evictions. This sort of protection is widely accepted by the international community as a fundamental human right.

16. To what extent does the law create fair procedures for to extinguish land rights?

Format: general assessment Elements of quality: • Law prohibits evictions that render individuals

homeless • Law requires all feasible alternatives to be explored

prior to carrying out a forced eviction • Law provides for adequate compensation of evicted

people • Law creates procedures for evictees to seek redress

in the case of illegal evictions.

Accountability

DRAFT Dec 2008 17. To what extent are land

laws and policies clear and consistent?

Format: expert assessment to analyze the existence of inconsistencies on key aspects of land tenure laws/policies and the existence of aspects of the laws that are unclear or can have various interpretations

Coordination Clarity of laws and policies: The content of laws and policies relating to land tenure should be clear and consistent amongst themselves and with laws and policies from other sectors. In many countries, the legal framework reflects a multitude of land-related laws, compiled over decades with little effort to rationalize the ambiguity or contradictions arising through successive legislation. This trend is encouraged by the relative ease of creating new laws as opposed to improving existing legislation.

18. To what extent are land laws and policies consistent with laws and policies of other sectors?

Format: expert assessment to analyze the existence of inconsistencies on key aspects of land tenure laws/policies and those of other sectors.

Coordination

19. To what extent do laws and policies provide a clear mandate for customary institutions in land tenure administration?

Format: general assessment Elements of quality: • Law provides adequate space for customary tenure

authorities to define their own rules • Responsibilities and roles of customary authorities

are clear and non-conflicting with those of local statutory authorities

Accountability, Coordination

Responsibilities for land tenure administration: Administration of statutory land tenure systems is the responsibility of the government, but customary tenure systems may be administered by community authorities. The law should establish clear mandates for these various authorities that are non-conflicting.

20. To what extent do laws and policies provide a clear and non-conflicting mandates for land tenure administration agencies?

Format: general assessment Elements of quality: • Mandates of land tenure administration agencies

are clearly defined • Mandates of land tenure administration agencies

are manageable. • Mandates of land tenure administration agencies

are non-conflicting

Accountability, Coordination

21. To what extent do laws and policies establish effective and efficient systems for land administration?

Format: general assessment Elements of quality: • Provisions do not exceed national capacities for

implementation • Provisions promote efficiency and do not exceed

what is necessary to achieve reasonable and legitimate objectives

• Provisions encourage transparency • Provisions encourage accountability

Accountability Provisions for land tenure administration: A basic regulatory framework for land tenure administration typically includes provisions for registration, adjudication and survey. Regulations should encourage transparency and efficiency. Complex forms, procedures and regulations slow the system down and discourage its use. Simplicity is important to ensure that costs are minimized, access is fair and the system is maintained.

22. To what extent do laws provide for alternative conflict resolution mechanisms?

Format: general assessment Elements of quality: • The law establishes alternative systems • The law grants adequate authority to alternative

systems to interpret the law and make rulings • The law recognizes customary systems

Accountability

DRAFT Dec 2008

LAW & POLICY PROCESSES

23. To what extent is there public disclosure of information on the basis and goals of policy and legal reform?

Format: Case study Elements of quality: • breadth of documentation available • documentation is easily accessible • documentation is available in a timely fashion • documentation is accessible by a range of stakeholders

Transparency

24. To what extent is there meaningful media coverage of policy/law and reform?

Format: Case study Elements of quality: • volume of coverage • quality of coverage • balance of coverage

Transparency

25. To what extent is there clarity of process for public participation in policy-making?

Format: Case study Elements of quality: • Clear responsibility for decision • clear time frame for decision • clear time frame for input • accountability for input • documentation of consultation process • timely distribution of information about process • broad distribution of information about process • targeted distribution of information about process

Transparency, Accountability

26. To what extent is there effective public participation in policy-making?

Format: Case study Elements of quality: • quantity of participation • breadth of participation • summary of public participation • response to public participation

Inclusiveness, Accountability

For a policy or law to be effective and enforceable, it must reflect realities on the ground. This can be enhanced through broad consultation, including meaningful input from communities and other stakeholders.

27. To what extent is there a high quality of legislative debate on land laws?

Format: Case study Elements of quality: • duration of debate • attendance of members • composition of speakers • availability of transcripts

Capacity

DRAFT Dec 2008 28. To what extent is the

public have the ability to comment on draft laws and regulations before they are passed?

Format: Case study Elements of quality: • Access to draft laws • Adequate time frame for input • response to input • timely distribution of information about process • broad distribution of information about process • targeted distribution of information about process

Transparency, Accountability

DRAFT Dec 2008

PRACTICE

General description of the issue Indicator Indicator details Relevant Governance Principles

IMPLEMENTATION

29. To what extent is land tenure administration predictable and transparent?

Format: General assessment Elements of quality: • based on laws and regulations • Service standards exist • Service standards are publicly advertised • predictable and transparent

Transparency, Accountability

Land tenure administration: Land tenure administration is the way in which the rules of land tenure are made operational, such as processes to record and register private interests in land. These processes should operate in predictable and transparent ways and should be seen to be based on laws and regulations. Clear, enforceable and publicly known standards to this end (for example, how long a procedure should take and what results can be expected), can help improve the predictability of processes and maximize efficiency. Administrative services should also be widely accessible (in terms of time, cost and location) in order to promote compliance with the system and to avoid discrimination. If services are too costly, time consuming, or physically distant. For example, the poor may be marginalized, thus encouraging informal land transactions with less tenure security. Further, services should be accessible across all forms of tenure.

30. To what extent are land tenure administration services widely accessible?

Format: General assessment Elements of quality: • services are offered at times and places that are

convenient for users • Costs of services are not prohibitively expensive • Services are not overly-complicated • Services are provided in a reasonable amount of

time • Services are available to all without discrimination

Inclusiveness

Land tenure information: Land agencies are responsible for collecting and disseminating information regarding tenure. This includes records that define who has what rights and the spatial extent of those rights. Information should be accessible to all without discrimination, even the illiterate. This includes information on ownership and rights (register), state-owned lands, and cadastral information. Access to information is necessary for civilians to challenge

31. To what extent is accurate and comprehensive information about land tenure available?

Format: Conduct the assessment for 2 types of information – (1) who has rights (2) spatial extent of rights Elements of quality: • Information is comprehensive • Information is available in an adequate scale • Information is updated with an adequate periodicity • Information is reliable

Transparency

DRAFT Dec 2008 the fairness of land administrative decisions. 32. To what extent does the

public have access to information about land tenure?

Format: Conduct the assessment for 2 types of information – (1) who has rights (2) spatial extent of rights Elements of quality: • Information is widely accessible • Information is available online • Information is available in relevant languages

Transparency

State land management: Public lands are often treated as “free” and are the focus of corrupt activities. They may be transferred to private interests through questionable, if not illegal, means. Special interests groups may be favored in concessions for logging and mining. Improving transparency in decision-making and in record-keeping can help increase accountability and reduce corruption.

33. To what extent is there transparency in the allocation and disposal of state lands?

Format: general assessment Elements of quality: • The sale and other allocations of state lands is

transparently approved and executed • Records are kept on state land allocations • Records are accessible to the public

Transparency, Accountability

ENFORCEMENT & COMPLIANCE

34. To what extent are dispute resolution mechanisms accessible to all users without discrimination?

Format: Conduct assessment for judicial courts, administrative mechanisms and customary mechanisms (if relevant.) Elements of quality: • Services are available at times and places that are

convenient for users • Cost of services are not prohibitive • Legal services and other support are available for

the poor • Rulings are delivered in a timely fashion • Appeals processed in a timely fashion

Transparency; Inclusiveness

Conflict resolution: All people should have access to dispute resolution systems without discrimination or bias. The ability to defend property rights through fast and low-cost processes is a key part of ensuring tenure security. Relevant processes of the system include hearing conflicts, delivering rulings, processing appeals, and ensuring compliance with rulings.

35. To what extent is there transparency regarding rules and other relevant processes concerning land cases?

Format: Conduct assessment for judicial courts and administrative mechanisms Elements of quality: • Existence of rules for transparency • Public access to rulings • Public access to appeals • Process for decision-making is clear and known

Transparency

c 2008 Law/policy dissemination: Public awareness of relevant laws, regulations and policies is important to ensure compliance. Laws should be publicly available in accessible languages, but the extent of awareness is usually an outcome of the state's role in civic education.

36. To what extent is the public aware of relevant land laws and policies?

Format: Elements of quality: • policy and law text is available to the public at no

cost • text is translated into relevant language • government provides civic education and extension

services to raise awareness

Capacity, Transparency

Community mapping: Participatory mapping is a way for communities to raise their own awareness about the status and value of their resources. It can also build community consensus on organizing to defend tenure security or making a claim for ancestral or historically owned lands. Community maps may strengthen community negotiations regarding tenure rights deals with government agencies and private firms.

37. To what extent is there meaningful community participation in mapping of community-owned lands?

Format: Case study Elements of quality: • Maps of community lands exist • Maps generated through a broadly participatory

process • maps are perceived to be legitimate by the

community

Inclusiveness, Participation

MONITORING Social impacts: 38. To what extent is there

effective monitoring of the social impacts of land tenure laws and policies?

Format: General assessment Elements of quality:

Effectiveness: 39. To what extent is there effective monitoring of the effectiveness of land tenure laws and policies?

Format: General assessment Elements of quality:

DRAFT De

DRAFT Dec 2008

References – Land Tenure Indicators Sunderlin, W.D.; J. Hatcher; M. Liddle. 2008. “From Exclusion to Ownership? Challenges and Opportunities in Advancing

Forest Tenure Reform.” Washington, D.C.:Rights and Resources Initiative. Bending, T. 2008. “Indicators and Monitoring on Tenure Security and Access to Land – progress and prospects for ILC

involvement.” International Land Coalition (ILC) Working Paper. Burns, T. 2007. “Land Administration Reform: Indicators of Success and Future Challenges.” Agriculture and Rural

Development Discussion Paper 37. Washington, DC: The World Bank. COHRE. 1999. “Forced Evictions and Human Rights: a manual for action.” Geneva: COHRE International Secretariat. Eguren, F. 2007. “Monitoring Land Tenure Rights.” CEPES-Peru. http://www.landcoalition.org/pdf/07_cepes_ind_trans.pdf. Enemark, S. and Van der Molen, P. (2006): A Framework for Self-Assessment of Capacity Needs in Land Administration.

Proceedings of the XXIII International FIG Congress, Munich, October 2006. 23 p. http://www.fig.net/pub/fig2006/papers/ts71/ts71_05_enemark_molen_0811.pdf

FAO. 2003. Mutlilingual thesaurus on land tenure. Ed. Gerard Ciparisse. Rome: FAO. FAO. 2007. “Good Governance in Land Tenure Administration.” FAO Land Tenure Studies 9. Rome: FAO. Forest Trends. 2002. “Strategies for Strengthening Community Property Rights over Forests: Lessons and Opportunities for

Practitioners.” Washington, DC: Forest Trends. Inter-American Alliance for Real Property Rights. 2005. “Blueprint for Strengthening Real Property Rights.”

http://www.landnetamericas.org Legal Entity Assessment Project (LEAP). 2002. “An Assessment Framework for Communal Property Institutions.”

http://www.leap.org.za/File_uploads/File/ASS005.doc. Lindsay, J.; A. Mekouar; L. Christy. 2002. “Why Law Matters: Design Principles for Strengthening the Role of Forestry

Legislation in Reducing Illegal Activities and Corrupt Practices.” FAO Legal Papers Online #27. FAO Development Law Service.

Meinzen-Dick, R.; M. Di Gregorio; and S. Dohrn. 2008. “Pro-Poor Land Tenure Reform, Decentralization and Democratic

Governance.” UNDP. Oslo Governance Center Brief 4. White, A. and Martin A. 2002. “Who Owns the World’s Forests? Forest Tenure and Public Forests in Transition.”

Washington, DC: Forest Trends. Wilusz, D. 2006. “Quantitative Indicators for CP Tenure Security.” International Land Coalition.

http://www.landcoalition.org/pdf/qty_indi_cp_tenure.pdf Zimmerman, W. 2007. “Good Governance in Public Land Management.” Rome: FAO. Other Land Tenure Indicator Initiatives: World Bank Doing Business Survey World Bank Land Governance Study IFAD ILC / CAPRi USAID / Inter American Alliance for Real Property Rights UN Habitat

ACTORS: LAND TENURE ADMINISTRATION AGENCIES Capacity of land tenure administration agencies Relevance of the indicator: The rules (laws and policies) of land tenure are administered through procedures to allocate, transfer, document and delimit the boundaries of rights on both private and public lands. These processes may be carried out by one or several agencies within the land and/or forest sectors depending on the types of rights involved (e.g. private land ownership rights, commercial resource extraction rights, community use/access rights, etc). These agencies are also responsible for recording and disseminating information about rights, which typically involves large amounts of both descriptive and spatial data. Land tenure administration is a cross-sectoral and multi-disciplinary area, and a broad range of specialized expertise is necessary if the institution is to successfully manage these complex issues. Guidance for assessment teams: Identify the major agency or agencies responsible for administering rights over forest lands and resources in your country. Conduct the assessment for each of agencies identified. Elements of Quality: • Information infrastructure: Land administration agencies have access to adequate information technology and related

expertise to manage and maintain data relating to tenure. • Staff resources: Land administration agencies have access to qualified and competent staff based on relevant criteria for

hiring and promotion. • Financial resources: Adequate financial resources to undertake activities are available to land administration agencies.

These financial resources must be stable and transparent. • Environmental expertise: Member(s) of staff possess relevant expertise such as specialized higher education or past

experience on environmental issues OR the agency has access to relevant environmental expertise through coordination with other agencies.

• Social expertise: Member(s) of staff possess relevant expertise such as specialized higher education or past experience on social issues OR the agency has access to relevant social expertise through coordination with other agencies.

• Knowledge enhancement: Periodic opportunities for professional and/or educational development are available to staff members.

CAPACITY OF LAND ADMINISTRATION AGENCIES

Elements of Quality Explanation Information infrastructure ___ Staff resources ___ Financial resources ___ Environmental expertise ___ Social expertise ___ Knowledge enhancement ___ Continued Explanation: Values Select Not applicable/ Not assessed __ Land administration agencies meet no elements of quality Low __

Land administration agencies meet one element of quality Low-Medium __

Land administration agencies meet two elements of quality Medium __ Land administration agencies meet three elements of quality Medium-High __ Land administration agencies meet four or more elements of quality High __

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ACTORS: LAND TENURE ADMINISTRATION AGENCIES Horizontal coordination with other agencies Relevance of the indicator: It is crucial to have systems in place to ensure coordination between the different agencies whose authorities and decisions impact upon or are affected by land tenure issues. In many countries, separate agencies have responsibility for issuing concessions for forest management or establishing protected areas, and the agency with responsibility for administering land for other purposes (such as commercial agriculture, or personal or subsistence use). This indicator considers the extent to which there is information sharing and cooperation between institutions and agencies in various sectors on the issue of land tenure administration. The specific pertinent agencies and sectors are likely to vary from country to country; however the assessment team should be sure to consider cooperation between the land tenure administration agency and the agency / ministry responsible for forest management, the ministry of agriculture, and the ministry or agency responsible for national economic planning. Elements of Quality: • Concrete operational mechanisms to support and encourage coordination • Clearly defined lines of communication • Effective mechanisms for sharing of information

HORIZONTAL COORDINATION WITH LAND ADMINISTRATION AGENCY

Explanation Values Select Not applicable/ Not assessed __ Land administration agencies meet no elements of quality Low __

Land administration agencies meet one element of quality Low-Medium __

Land administration agencies meet two elements of quality Medium __ Land administration agencies meet three elements of quality Medium-High __ Land administration agencies meet four or more elements of quality High __

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RULES: LAW AND POLICY CONTENT Legal recognition of multiple forms of tenure Relevance of the indicator: Tenure systems may involve multiple rights (e.g. ownership, access and use rights) belonging to several different persons or groups. A variety of rights relevant to the national context need to be recognized in the law, and should also afford protection for the different types of rights it recognizes. Protection generally includes access to some sort of legal documentation (e.g. a title) and the right to challenge land administrative decisions on points of law. Such decisions may include the valuation of property, compulsory purchase of land, land use planning, and land taxation. It may also include rights to transfer land (by sale, lease, heirs, gift, grant, mortgage, etc). Finally, rights should also be non-discriminatory, clear and non-conflicting so as to provide a sense of certainty. Guidance for assessment teams: Assessment teams will need to identify the various forms of tenure relevant in the country context. Potential options may include, but are not limited to: private ownership, collective ownership, secondary rights, access / use rights on public land, joint management on public land, and rights over ecosystem services. Once the relevant forms of tenure are identified, the teams should assess the quality of the legal recognition of rights for each form of tenure based on the following elements of quality. Elements of Quality: • Legal recognition: The right is recognized under law. • Clarity: The legal text describing the right is clear about the definition and scope of the right. • Protection: The law provides for parties to apply for legal documentation of the right • Redress: The law provides the ability to challenge land administrative decisions on points of law • Non-discriminatory: The right is available to all without discrimination.

RECOGNITION OF MULTIPLE FORMS OF TENURE

Explanation: Values Select Not applicable/ Not assessed __ The right is not recognized Low __

The right is recognized and one elements of quality are met Low-Medium __

The right is recognized and two elements of quality are met Medium __ The right is recognized and three elements of quality are met Medium-High __ The right is recognized and all four elements of quality are met High __

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RULES: LAW & POLICY PROCESSES Effectiveness of public participation process (case study indicator) Relevance of the indicator: Public participation in efforts to reform or develop laws and policies around land tenure is necessary. Even if public participation processes are well structured, they will only be effective as a way of influencing outcomes if a sufficient numbers of stakeholders from a wide range of perspectives participate actively, and if decision-makers actually incorporate inputs into the final decision.

To apply this indicator, the assessment team must first identify a most pertinent (and recent) law making process that impacted upon land tenure arrangements. The researchers should clearly justify the basis upon which the law assessed was chosen. Obtain the full set of stakeholder comments, and examine them for number of comments, breadth of perspectives and quality of reasoning. Also obtain the final policy decision and any supporting documents, and examine these documents for evidence that public comments were read, scrutinized and reported on. If necessary and possible, interview the government officials responsible for coordinating the public participation process and the decision, in order to better understand whether and how public input was incorporated into the decision.

Elements of Quality: • Quantity of participation: At least ten submissions are made in response to a call for public input on the policy process. A

minimum number of public submissions as part of a public participation process are a necessary condition for effective participation. Since this element measures only quantity, any submissions from any sector or interest group may be considered for the purpose of this element.

• Breadth of participation: Comments and analyses are submitted by a broad range of stakeholder groups that include not only the power industry and industrial users, but also public interest NGOs, labor, consumer groups, and other sectoral consumers such as farmers. As a rule of thumb, sufficient breadth might be indicated if at least 20% of comments or five strong comments are submitted from non-industrial groups. For the purpose of this indicator, a comment should be counted if it makes at least one substantive or analytical point. Rhetorical comments that do not explain causes for disagreement, while they serve useful purposes in other contexts, should be discounted for the purpose of this indicator.

• Summary of public participation: The final policy decision or an accompanying document summarizes the feedback received through public participation.

• Response to public participation: The final policy decision or an accompanying document provides reasoning for the final decision with reference to public input.

EFFECTIVENESS OF PUBLIC PARTICIPATION PROCESSES

Explanation: Values Select Not applicable/ Not assessed __ The policy process met no elements of quality Low __

The staffing policies meet one element of quality Low-Medium __

The staffing policies meet two elements of quality Medium __ The staffing policies meet three elements of quality Medium-High __ The staffing policies meet all four elements of quality

High __

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PRACTICE: IMPLEMENTATION Accessibility of administrative services Relevance of the indicator: Administrative services include processes to document and transfer rights to land and resources. These services should be widely accessible (in terms of time, cost and location) in order to promote compliance with the system and to avoid discrimination. If services are too costly, time consuming, or physically distant, for example, the poor may be marginalized, thus encouraging informal land transactions with less tenure security. Further, services should be accessible across all forms of tenure.

Elements of Quality: • Convenient: Services are offered at times and places that are convenient for all users. • Affordable: The cost of services, including relevant indirect costs, are not prohibitively expensive. • Simple: Processes are not overly complicated or confusing. • Timely: Services are provided in a reasonable amount of time. • Non-discriminatory: Services are available to all users without discrimination.

ACCESSIBILITY OF ADMINISTRATIVE SERVICES

Explanation: Values Select Not applicable/ Not assessed __ The accessibility of administrative services meets one element of quality Low __

The accessibility of administrative services meets two elements of quality Low-Medium __

The accessibility of administrative services meets three elements of quality Medium __ The accessibility of administrative services meets four elements of quality Medium-High __ The accessibility of administrative services meets all five elements of quality High __

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PRACTICE: IMPLEMENTATION Public access to information on land tenure Relevance of the indicator: Access to information about (1) how rights to land have been distributed and (2) the special extent of these rights is necessary in order for citizens to understand the various arrangements for tenure that are in place. Citizen access to such information is particularly crucial to allow an appeal of decisions that may not have been in fair accordance with the law. The agencies responsible for land tenure administration must be responsible for collecting, and publicly disseminating information regarding the status of land tenure. This includes records that define who has what rights and the spatial extent of those rights. Information should be accessible to all without discrimination, even those citizens who may be illiterate. Elements of Quality: Organization of information: Information on land tenure is regularly collected and analyzed by the agency If such information is collected, then the following elements of quality should be assessed: • Accessibility of information: Information on is widely accessible to all citizens, including those who may live in remote

forest areas • On line access: Information is made available in a digital format and available on the world wide web to facilitate

accessibility and accuracy • Language accessibility: The information is made accessible in the various local languages • Simplicity: Information is made easy and simple to understand through the use of visual tools such as maps

PUBLIC ACCESS TO LAND TENURE INFORMATION

Elements of Quality Explanation Organization of information Accessibility of information Online Access Language Accessibility Simplicity Explanation continued Values Select Not applicable/ Not assessed Land tenure information is not collected and organized by the agency Low

Land tenure information is collected, but no elements of quality for public access are met Low-Medium

Public access to land tenure information meets one element of quality Medium Public access to land tenure information meets three elements of quality Public access to land tenure information meets all three elements of quality

High

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