Policies and legislation

Photo 20. Integration of walnut trees (Juglans regia) in an arid ecosystem. The Imlit Valley in Morocco. (© Bellefontaine/Cirad)

Trees outside forests may come under either farm or forestry legislation, or a combination of the two, or be totally ignored by either or both. National laws and regulations covering trees can be contradictory. Forest policies and the official services responsible for the management of wood resources often extend their prerogatives to all trees, even those growing on agricultural lands. Rules governing land tenure as well as customary or formal access to resources are all grafted onto these legal texts and policies.

Policy and legislation on forest and agricultural land

Forest policies

The extent to which national forestry policy guidelines cover Trees outside forests is quite often influenced by the extent of forest cover and the economic role of wood. In countries with extensive forest cover, the state will intervene in the logging sector, stimulating the wood industries and fostering tree-planting, and Trees outside forests will receive less consideration. In the arid countries with their scant tree cover, forest and farmland are more integrated, and so the distinction between forest and agricultural policies tends to be rather blurred. The tree is perceived as a means of enhancing production systems and satisfying the need for energy, service wood and `forest' products. This may produce forest policies that give consideration to how farmers and rural people use trees. In Libya, non-wood forest products play an acknowledged role in rural economies. Forest land in Iraq is open for grazing year round for an unlimited number of animals (FAO, 1993b). Forest policy in Niger has supported wood supply schemes and the establishment of rural woodfuel markets (Bertrand, 1993).

In the last twenty years, developing country forestry policies have underscored consensual management of wood resources, as a means of controlling desertification and enhancing food security, through community or rural forestry systems. These systems promote integration of the forestry, agriculture and livestock production sectors and encourage active and voluntary rural community participation (FAO, 1996c).

Forest legislation

Forest laws regulate land under the forest regime, and may apply to any area suitable for forest cover, thus making the administration competent to act over a large part of the territory. They are based on the status of the land and may fail to reckon tree cover into the equation, as the two are not systematically concordant. Some countries (India, for instance) take this dichotomy into account, distinguishing between forests and other wooded lands. Generally speaking, forest legislations consider the forest as a domain reserved to the state where most usages are forbidden. Countries such as Zimbabwe (FAO, 1996c), and Gambia (Box 20), have distinguished themselves by transferring of rights to users (Kinara, 1993, cited in FAO, 1996c).

It needs to be pointed out that legislation in the last few decades (varying widely from one country to the next), covers the planting, protection and use of trees in urban and per urban settings. Such laws may spell out the rules for usages specific to certain species, or stress specific situations such as parks and protected sites, or govern permits and authorizations on private and/or public lands, or, again, deal with tree-linked operations such as felling and replacement (Box 21).

Forest law may consider agroforestry systems and plantations as part of the forest domain, thus clearly and unambiguously bringing many Trees outside forests under forest law. This is true of Peru, which distinguishes between natural and cultivated forest (Article 9 of the Forest Law), of Guatemala, which recognizes three types of natural forest: managed, unmanaged, and agroforestry systems (Decree 101-96 of the Forest Law. It is also true of Costa Rica, where plantations and agroforestry systems are classified as "plantations", so the utilization of such trees is not covered by the provisions of forest management (Kleinn, 1999).

Customary rules

The above provisions refer to national forest policies and laws. They go hand in hand with land ownership laws and rules governing land, and tree cover on this land, which may derive from national law and from local land tenure systems. Customary rules can conflict with the provisions of national law, in more than one country.

Modern legislation frequently ignores customary usage in imposing written norms, but there are some innovative examples. In the south Pacific, traditional associations have been granted legal recognition, and sometimes laws have been amended to attribute rights to users, as in Côte d'Ivoire. In Papua New Guinea, the law allows associations to form owners' groups with decision-making powers over land and resources. The characteristic feature of forest management in the Solomon Islands is the legal power granted to customary land owners (Karsenty, 1996). Another important point is that legislative texts only rarely incorporate one of the major principles of customary law: land ownership is not synonymous with the ownership of the trees growing on that land. Senegal, which recognizes that forest formations regularly established on the national domain are the property of the private, physical or moral persons who planted them, excluding any subsequent appropriation of this same land (Law 98.03 of 8 January 1998), is rather exceptional in this respect.

Unlike formal law, customary rules are not a fixed set of "instructions for use" concerning land and other resources, but rather an expression of social relationships (Riddell, 1987), with a certain flexibility in adapting to change and addressing the interaction between society and its resources. In West Africa, one group may have `property' rights over the gum Arabic harvest, another may pasture its animals, and yet a third may collect dead wood -- all on the same piece of land. There is no particular reason to believe that compartmentalizing space into private lots offers a beneficial alternative to the resource-sharing and social control inherent in customary usage. Translating customary rights into rigid legal rights is reductive, especially since group ownership, the prevalent customary solution to tree resource management, can prove quite incompatible with the individualistic orientation of formal law. There is a great gap between the `western' perception of private property rights and the complex reality of customary resource access rights and usages. This creates confusion and inconsistencies between customary and formal law, and is not conducive to land security.

Tree ownership and resource access

There is nothing universal about the notion of ownership, which implicitly fuses the right to use, to enjoy the fruits of, and to abuse (usus, fructus and abusus). In many parts of the world access to land and access to trees obey a different set of rules (Riddell, 1987).

With respect to legislation

As we have said, trees growing outside forest stands and systems may come under either private or public domain. Most forest law recognizes private forest ownership by the state, communities, or individuals. Pakistan possesses vast tracts of private forest whose owners, feeling coerced, have lost interest in managing their trees (FAO, 1993b). In India, forest law was amended to stimulate tree-planting on private land. Indian forests are divided into classified forest (55 percent), protected forest (29.5 percent --which may now be exploited or have been in the past), and unclassified forest (15.5 percent). The first two categories are governed by forest law and belong to the state, whereas unclassified forest may belong to the government, the community, the family, the clan, or the individual. In no case does Indian legislation authorize the commercial exploitation of wood by private parties, which discourages farmers from planting trees on their land (Bon, 1997). In the State of Uttar Pradesh, the 1976 law on the preservation of trees was made more flexible in 1991 with the removal of felling restrictions for some twenty species. Trees which spring up spontaneously or are planted on privately owned land may be freely exploited only where forest cover is less than one percent (Panday, 2000).

Several countries recognize national domain (sometimes called rural domain), which is distinct from the public domain. The state has management rights over such domain, but recognizes that individual ownership may occur, thus leaving room for existing usages. In Côte d'Ivoire, for example, the new land ownership law of 1998¹¹ ratified the establishment of private property within the rural domain where registered as private or communally-owned land. But forest law does dictate that the government may retain management rights over all trees on the territory. Senegalese law No. 98-03/98 stipulates that the state may concede forests in the national domain to local communities, which amounts to a transfer of ownership. Moreover, Article L9 stipulates that the "gathering and trimming of forest products and the transformation of wood into charcoal are free of restrictions where carried out by the physical or moral owner of the plantation". A 1998 Turkish law allows land covered by trees or brush to be converted to farmland and awarded to villagers (FAO, 1993b).

From the legal standpoint, the status of the land on which a tree is growing is the prime determinant of rights, and whether or not the tree was planted a secondary consideration. The ownership of an immature tree which has clearly been planted will not be contested, whereas the government may claim ownership of older trees which sprang up wild. Among planted trees, fruit tree orchards mostly come under the regime of private ownership. They are thus generally lumped together with agricultural crops and do not come under the forest service In Jordan, private forests are regulated by the 1973 farm law (FAO, 1993b). In large-scale commercial farms in Zimbabwe, planted trees and woody vegetation may be harvested, but the owner must report this to the Forest Commission. In small-scale units, both the land and the wood are state-owned, but permits may be granted for harvesting for home consumption. In Côte d'Ivoire, land appropriation for shrub crops such as cocoa and coffee remains in a sort of legal limbo which does not translate into property rights (Verdeaux, 1998). In Egypt, most trees planted around plots or as windbreaks come under private ownership regimes, whereas the government owns trees planted along roadsides and canals, in parks and in the desert, where trees are watered by semi-treated domestic waste waters from urban agglomerations.

National law is, on the whole, not sufficiently developed to support private investment in tree resources, even those located outside the forest. The idea that land development and the subsequent appropriation of this same land basically follow the path of conversion for agricultural purposes has been a contributing factor in the disappearance of forest cover. Some laws, such as those of Senegal or Gambia, seem to reflect a willingness to attribute more rights to the population, maintaining restrictions on felling but allowing unrestricted harvesting of other wood products. For the most part, national law remains independent of and fairly incompatible with customary law. The latter, which has the merit of not erecting a barrier between forest and agricultural domains, generally accords more rights to those managing and maintaining trees growing on farmland.

With respect to tree ownership

The concept of tree ownership has expanded over the last ten years (Dubois, 1997). The mode of ownership is recognized as a decisive factor in planting or conserving trees (Godoy, 1992; Warner, 1993). In Europe, land ownership implies ownership of the resources flourishing on, below and above the land. There is, in this case, no distinction between land ownership and tree ownership. This concept is a great deal rarer in customary law, where tree rights and land rights are not necessarily synonymous. According to Fortmann and Riddell (1985), tree ownership is broken down into four rights: the right to own and to inherit, the right to plant, rights of usage, and the right to dispose of the tree through sale or lease. All four are influenced by whether the tree grows wild or was planted, whether it is used for commercial or subsistence purposes, and whether it is privately or communally owned.

Photo 21. Wood products from poplar windbreaks add to farmer incomes in Ksar el Kébir, Morocco. (© Bellefontaine/Cirad)

The appropriation of trees frequently precedes and induces land ownership - as in frontier areas. (Karsenty and Sibelet, 1999). Planting and harvesting a tree may take place independently of land ownership. Salul (1988) reports that the right to pick sheanuts on borrowed land implies the retention of permanent rights. In semi-arid parts of East Africa, communally-owned trees remain the property of the person who planted them, even where that person no longer owns the land (Banana et al., 1999). In the Yatenga region of Burkina Faso, the foliage, fruits and fuelwood from trees on borrowed land are exclusive rights of the owner and not the user (Boffa , 1991). In Anjouan in the Comoros, when there are not enough plots for each child to inherit, some may inherit the land and others the trees (Sibelet, 1995).

Trees and their products may be communally harvested. Sène (1979) reports that in some regions of Senegal, Faidherbia albida and Cordyla pinnata growing in farmers' fields become communal goods during the dry season and can be freely used by herdsmen. Some trees are considered community property even on private land. The Iteso people, for example, consider trees with edible products to be sacred (Banana et al., 1999).

ICRAF has shown a correlation between land tenure and forest cover. Afforestation of land under customary tenure was seen to be far superior to that on public lands (Banana et al., 1999). Among the Kikuyu of Kenya, the use of trees to mark land boundaries was recognized under customary law long before the colonial era and `social forestry'. Hedgerows were planted to forestall discussions over land ownership between lineages, or to settle ongoing conflicts (Dewees, 1995). Land tenure systems which guarantees owner rights over wood and non-wood forest products discourage those leasing land from planting trees.

Concerning the status of the individual in society

The acknowledged status and place in society of an individual or group affects the right to own property, as well as access to and control over resources. The principles underpinning custom in this domain tend to recur with certain constancy. The major components are the lineage to which the individual or group belongs, age, and the local identity. Certain groups, mainly the young, immigrants, and (especially) women, tend to have restricted access to both land ownership and land use.

Despite the pivotal role of women in agricultural production -- women are responsible for over half of the aggregate world output in the sector (FAO, 1999b) -- legal and cultural strictures deny them the same access to land as men. There are situations where custom keeps them from owning land even where they would be legally entitled to do so, and other situations where the law itself denies them access, granting title only to the male sex, a provision often echoed in land and agrarian reform programmes. Then there are cases such as matriarchal societies where women inherit major resources such as land and livestock through the mother's line, and play a central role. But in many societies in many countries and continents, society is so organized that women are considered "outsiders" within their husbands' families, and on sufferance in their own. The upshot is that they may neither own nor inherit land. Women work as field labourers for the head of the household, who in turn often works a piece of land belonging, in the final analysis, to the village community. Women may be allowed tiny plots of land for their own use, but without secure tenure, not to mention rights or guarantees.

The same is true of resource use, especially tree resources, which fall under a certain continuum of meanings that exclude those not masters of the land and its management (Le Roy et al., 1996). Recourse to analogies or symbols directly linked to the nature of women, and which vary from one society to the next, make it possible to legitimate taboos, or at least give them a certain primacy. In any case, women often possess only the ephemeral right to gather and pick wood and wood products, but rarely to plant or cut trees. Divorced women in Zimbabwe have no right to the trees they planted during the marriage, and widows enjoy only an informal right to the products of the tree, but not the tree itself.

Establishing rights and land security

"A tree is worth any bit of stamped and signed paper", writes Bertand, (1993). This remark, made in connection with planted rônier trees, reaffirms the role of trees as markers. Trees may be planted in order to gain access to that other input: land. Exotics rather than indigenous species may be planted so as to allow appropriation of the land. In southern Niger, different rules govern the exploitation of the date palm Elaeis guineensis and that of wild species such as the doum palm (Jahiel, 1996). Date palms confer land rights and become a factor in securing tenure. The private and individual appropriation of land via the tangible mark of a planted tree may, however, be feared as a potential source of conflict.

Riddell (1987) notes that land claims in Latin America often follow the clearing of land for planting. The investment in labour is seen to create either ownership or usage rights (Shepherd, 1992). Often the right to land is conferred upon whoever developed it. Conversion to farmland was long considered the only form of land development (Thébaud), 1995).

The notion of "development" with respect to land is worth examining in terms of long-term environmental management. Recognition by governments and land managers of the silvopastoral use of forest and fallow lands as a mode of development would improve the dialogue with local actors for "shared" tree management. Guaranteed land security is often a prior condition of such development. In Zimbabwe, Fortmann et al. (1997), using the situation of women as a basis for discussion, demonstrated a clear and strong link between securing tenure and tree-planting. Where women lack either guaranteed tenure or assured usage rights, they often plant fewer trees on concessions compared to men. But they behave just as men do on communal plots because they stand to benefit from the investment of their labour. Private appropriation is readily perceived as the best way of gaining secure land tenure and ensuring sustainable tree management, but this is not necessarily the case. Much depends on how societies operate in terms of their cultural patterns and functions, so responses to this issue can be contradictory.

Photo 22. Tree left standing as a boundary marker at the edge of a rapeseed field in France. (© Bellefontaine/Cirad)

On the one hand, land insecurity (Box 22), is usually seen as a factor in resource degradation, and private appropriation as the means of remedying this drift. Often enough communally owned or freely accessible lands have been overexploited, as was the case on communal or "panchayat" lands in India (Pant, 1983, cited in Riddell, 1987). The reverse tendency is observed on private lands. In the experience of the social forestry projects, rural populations mainly plant trees on private or permanently appropriated land, particularly where there are no nearby forests or woods (Barrow, 1991; Sheperd, 1992). Brokensha and Riley (1987) reported that in Mbeere, Kenya, tree-planting rates shot up following private grants to title. Land security here appears to have guaranteed tree conservation.

On the other hand, experience has shown that private land rights are no guarantee of good land management (Thébaud, 1995). Privatization can be a nefarious influence - among other things, it does not ensure equal access to resources, particularly for the poorest and for sectors of the population lacking either acknowledged land rights or guaranteed access. It has also often exacerbated land tenure problems and the process of resource degradation (Le Roy et al., 1996). The notion of land security is relative. It obviously depends on legislation, but it also and equally turns upon the exercise of access rights to land and other resources.

Land privatization can, therefore, be one way of ensuring land security, but it is neither the only option nor the best one, since the two notions are not interchangeable. At the same time, usage rights encourage people to safeguard trees growing on farmland. The challenge, then, is to ensure a land status which will guarantee rights in the long term without marginalizing the least privileged members of society, and at the same time enhance the value of land through the planting and maintenance of trees. Legal provisions should also favour the assumption of greater responsibility on the part of local communities with respect to Trees outside forests. This amounts to giving the green light to careful and reasonable resource use rather than applying bans, and recognizing the potential contribution of local tree management lore and procedures. Policies including the tree as a strategic tool and goal of land management through tree-planting incentives, (just to give one example), would do more than just recognize the value of trees, they would enhance the value of the land.

¹¹ Côte d'Ivoire's Programme national de gestion des terroirs et d'équipement rural (PNGTER) includes a `'land security" component that has governed rural land ownership since 1990 under the Plan foncier rural (PFR). Decrees in application of the 1998 land ownership law recognize the PFR as the legal regulatory body for issuing land certificates.