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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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iv
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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v
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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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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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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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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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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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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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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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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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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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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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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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