Land tenure and land rights play a fundamental role in preventing deforestation and degradation. This section will address the importance of customary land tenure, property rights and the right to free, prior and informed consent in protecting forest land.
Land rights are any rights you have that relate to a piece of land. These could be:
In line with these rights, “community forestry” is based on the recognition of the customary rights of communities to establish and enforce rules governing the access and use of forests. However, deforestation processes are often predicated on the denial of participation, access to information and legal representation, as well as government-imposed deforestation policies and the forced displacement of forest communities without their consent.
Although Indigenous Peoples and rural communities hold the majority of the world’s land area, they only have ownership over a small fraction (10%) of this land. This makes these groups vulnerable to conflicts over land, including forest conflicts. These can include:
Case Example: Maya Indigenous Communities of the Toledo District v. State of Belize
This case concerned an action brought to domestic courts in Belize regarding the non-implementation of the Inter-American Commission of Human Rights’ report that the government should recognise the Maya people’s collective rights to traditionally use and occupy certain lands and natural resources in in Toledo. The state had been granting logging and oil concessions and failed to adequately protect these lands, which negatively impacted the environment that the Maya peoples depend on for subsistence, culture and livelihoods.
The Supreme Court of Belize ordered the government to recognise Maya land rights, demarcate and title their land, and cease and abstain from interfering with their right to property.
A similar claim was heard by the Supreme Court in 2013, in which the Court ruled that government permission to commence oil drilling and construct roads in Belize’s Sarstoon-Temash National Park was unlawful on the basis that the permission was granted without first seeking the free, prior and informed consent of the affected Maya Communities.
Securing land rights in forest land can be an effective tool for combatting and preventing further deforestation. There is often also legal requirement that communities who will be affected by forest use are informed, properly consulted with and their consent is given before forests can be exploited.
Forestry licenses can be challenged if this requirement hasn’t been followed.
This section only focuses on a small number of land rights issues relating to forests. If you would like more information on securing land rights, see “Who Can Take Legal Action?” on the A4J Land Rights Module.
Key Resource: Land Matrix
This resource is a public database on land deals. It is an open access platform that can be used to find detailed information about land deals in nearly 100 countries and across regional focus points.
Data can be filtered by intended land use including timber extraction, conservation, mining and biofuels.
Further Resource: Large-Scale Acquisition of Rights on Forest Lands in Africa
This is a Rights and Resources Initiative report that provides a useful overview of legal frameworks and forest concession in Central Africa. It also contains a discussion of the conditions and strategies surrounding the threat of land acquisition for palm oil in the region.
Often the acts that occur before deforestation happens, in terms of taking over the land, are in themselves breaches of rights. You may be able to challenge concessions, grants or illegal occupation of your land in order to secure your rights and protect your land from deforestation or forest degrading activities.
Full, private ownership of land has the potential to bring a greater degree of security for Indigenous and forest peoples. It can help them to enforce their land-based and other rights where deforestation and degradation occurs. However, designated lands (i.e. publicly owned) are a more insecure form of land tenure and exclude communities from a number of important rights that may prevent illegal occupation or grants of land for logging or other forms of deforestation.
Resource: Who Owns the World’s Land? A global baseline of formally recognized Indigenous and community land rights
Rights and Resources Initiative 2015 baseline report shows global, regional and country-based data regarding formal recognition of Indigenous Peoples’ and local communities’ tenure rights. It also sets out opportunities for reform.
The report identifies several key challenges presented by the lack of ownership rights:
It excludes communities from rights to due process or compensation if a government or outsiders come onto their land to exploit it; and
It may also undermine incentives to invest in long-term improvements such as reforestation or effective community management of natural resources.
Resource: FAO Voluntary Guidelines on the Responsible Governance of Tenure
Although these guidelines lack formal legal status, they can be used to evidence that your country has not created adequate systems of land tenure or has unlawfully occupied your land. It sets out a number of tenure rights and duties in respect of its public land, fisheries and forests.
Governments may choose to grant private companies in the forest risk commodity industries land rights for logging concessions on publicly owned forest land. As they are considered illegal land grabs, these concessions have the potential to lead to illegal logging and deforestation.
Resource: Tirana Declaration
The Declaration notes that large scale land-grabbing can occur at the national or international level and is defined as acquisitions or concessions that are one or more of the following:
In violation of human rights;
Not based on free, prior or informed consent of affected land users;
Not based on a thorough assessment [e.g. EIA] or disregard socio-economic or environmental impacts;
Lack of transparency in contracts and binging commitments within contracts;
Not based on democratic planning, independent oversight and meaningful participation.
Resource: Who Owns the World’s Forests? Forest Tenure and Public Forests in Transition
This 2002 report by the Centre for International Environmental Law contains concession data from 16 countries across the world and can be used as a starting point for concessions research. The report notes that most logging concessions give companies long-term rights to access and manage the land, as well as harvest timber and exclude the general public from the forest.
The report also contains information on official forest ownership in 24 countries, recent legal reforms for community forest tenure, and a number of country-specific case studies for tenure reform and forest management.
Customary landowners can bring cases against the government for its decision to issue a lease, licence or logging concession on their lands illegally. Action can also be taken if the government fails to consult with or obtain the consent of Indigenous and forest communities prior to implementing decisions regarding their land.
Therefore, illegal land concessions may be challenged on a number of legal grounds, including:
See the A4J Land Rights Module for further information about these legal grounds.
Case Example: Maniwa v Malijiwi
This case was brought by customary landowners in Papua New Guinea against government ministries and licence holders. They were challenging a lease for forest land to be harvested and logged for palm oil production. The landowners argued their land had been acquired by the state without proper consent and prior consultation. The Court ruled in favour of the landowners and declared the licence null and void.
Case Example: Jubang Anak Punjap, Juslin Majang Anak Bada, Berjaya Anak Pundu, Mat Anak Taggon Vs First Binary Sdn Bhd, Director Of Forest, Sarawak, Superintendent Of Lands And Surveys, Samarahan Division., Government Of The State Of Sarawak
An Indigenous community in Malaysia challenged a logging licence on their lands, on the basis that it was carried out without their consent. The Court concluded that their community traditions meant they had native customary title over the land. No licence could be delivered over the land.
Your country’s national law as well as public international law and international human rights law, can be useful tools for combatting insecure land rights and logging concessions. These bodies of law are most relevant to Indigenous Peoples who can use their cultural connection to the land to enforce their land rights and right to participate in decision making concerning their lands.
Resource: World Resources Institute Report – The Scramble For Land Rights: Reducing Inequity between Communities and Companies
This WRI report contains extensive information on community land rights (including information on forests and deforestation). It also contains several tables of data relevant to company land acquisition across a number of countries in Latin America, Africa and Asia, including:
Community Data and Land Tenure Laws (including information on duration of rights and ability to request land in the future);
The Land Acquisition Process/Extent of community Consultations Required;
Rights Received During Company Land Acquisition (including trees/forest resources); and
List of National Laws and Regulations Reviewed in the Report
Community consent requirements can be found in a number of legal instruments. International law generally requires states and corporations to obtain free, prior and informed consent from Indigenous and forest communities prior to starting deforestation (whether legally or illegally). States also often have an obligation to consult with Indigenous and forest communities in good faith prior to issuing concessions or granting an occupation of their land.
Key Resource: UN Declaration on the Rights of Indigenous Peoples (UNDRIP)
Article 32(2): States have an obligation to consult and cooperate in good faith with Indigenous peoples concerned through their own representative institutions in order to obtain free, prior and informed consent prior to approval of any project affecting their land or territories.
Key Resource: International Labour Organization, Indigenous and Tribal Peoples Convention, 1989 (No. 169)
Article 6(1)(a): Governments have a duty to consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, wherever consideration is being given to legislative or administrative measures which may affect them directly.
Article 15(1): The rights of the peoples concerned to the natural resources pertaining their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources.
For more information about protecting the status of land or Indigenous People against illegal use, illegal concession grants and free, prior and informed consent, as well as deforestation in these contexts, see the A4J Environment Module and Land Rights Module.
In order to bring a forest land rights claim, you must have “standing” (the legal right to bring a claim).
See Sub-Page 4 of this Guide and “Who Can Take Legal Action in a Land Dispute” in the A4J Land Rights Module for more information on standing.
Depending on how the concession was granted, who it was granted to and the activities in question, the appropriate defendant could be:
For further information, see “Who Can You Sue in a Land Dispute?” in the A4J Land Rights Module and more generally, “Who Can I Bring Legal Action Against?” in the A4J Going to Court Guide.
In public law actions, it is the claimant (e.g. you) who has the “burden of proof”. This means the person bringing a civil claim needs to bring evidence to prove their case.
One of the first things you need to do to bring a successful claim is gather evidence that will be accepted in court. You must have a set of facts that describes what happened and evidence that supports your “version of events” (i.e. what you are saying happened). This is called “factual evidence” and will be used to support your claim.
You will need to ensure you have specific evidence regarding:
For further information on evidence, including the scope of evidence you will need to provide, see the section on “Evidence and Information” in Sub-Page 11 of this Guide.
For general information on evidence, see the section on “How Can I Prove My Case” in the A4J Going to Court Guide.
These claims can be taken in national administrative or constitutional courts.
The procedure that you must follow will depend on where you are bringing the claim and whether you live in a “common law country” or “civil law country”. The law in your country will outline a judicial review, constitutional petition or amparo process, so that you can bring a claim to the courts and the court may review the situation and provide a remedy.
However, depending on the nature of your claim, you may also bring land disputes to other bodies, such as:
For more information on how to take action in land disputes, see “Where Can You Take Legal Action in Land Disputes?” in the A4J Land Rights Module.
Focus Point: Limitation Periods
A limitation period imposes a time limit within which a claimant may bring a case. The limitation period depends on the precise cause of action and will dictate the amount of time you have to file your case in court. If you do not file your case within the relevant limitation period, you may be prevented from bringing the claim.
Research the law in your country (or the law of the international body or foreign country you are bringing the case to) to determine the relevant limitation period for your claim. You will also need to identify when the time starts running for the limitation period. Time may start running from one of the following:
- The date the harm occurred (e.g. when a forest fire occurred);
- The date you learned about the harm; or
- The date the government made the specific policy decision or took an action that you are challenging.
In some cases, it may be possible to apply for the limitation period to be extended.
For more general information, see “What Procedural Steps do I need to take” in relation to Administrative, Constitutional and Human Rights Cases in the A4J Going to Court Guide.
If you bring a successful land rights claim, you may be entitled to one or more of the below “remedies”. The outcome of a successful case will depend on your cause of action and specific claim:
It is important to remember that the affected individuals and communities should lead on deciding which remedies are appropriate, as opposed to NGOs or lawyers. Consider the community impacts of each possible remedy.
For more information, see “What Legal Remedies Exist for Land Disputes”, in the A4J Land Rights Module. For more information on legal remedies, see our general page “What Remedies Are Available?” in the A4J Going to Court Guide.
Winning in court is only the start of the process. Many successful court judgements are either not enforceable or are not enforced in practice.
You may be able to go back to court and ask for the judgement to be defined and enforced. See the general page on “How Can I Enforce a Court Order” in the A4J Going to Court Guide.
In addition to all the factors above, there are further practical issues you need to consider.
One set of issues relates to the resources you will need by way of general support for you, and the case, legal and expert advisers, finance, logistics (such as transport), translation and printing.
Another set of issues is on the safety and security of you, witnesses and your information.
For general guidance on these, see the relevant headings in Sub-Page 11 “Going to Court” of this Guide.