Rights and natural resources: contradictions in claiming rights
David Brown, ODI
Mac Chapin, Native Lands Centre
Duncan Brack, Chatham House
1. The sixth meeting in the series was held on Monday 14th February 2005, at ODI and was chaired by Duncan Brack. The speakers were David Brown and Mac Chapin.
2. The first speaker, David Brown opened by explaining that the overarching theme of his talk was an examination of the role of development assistance in upholding claims and obligations in the forest sector and addressing the complexities that this involves.
3. He laid out various reasons for the complexity of taking a rights approach to the forest sector. Firstly, the forest sector was characterised by weak resource tenure, some of which stemmed from alterations during colonial periods, and, in many situations, post-colonial governments had been slow to reinstate rights. In terms of legal process, rights holders had limited capacity to claim and the legal framework in this sector was deeply problematic and contested.
4. Secondly, due to the potential for high commercial value, high forest areas were frequently managed as sovereign territory under national law, local rights holders had little influence and international law only tangential relevance: there was, for example, no international forest convention.
5. Thirdly, as a sector which was driven by 'outcome' objectives, such as conservation, taking a rights-based approach represented a challenge. Rights had not been central in development assistance to the sector, in fact, in the case of the push for sustainable forest management, the promotion of rights of the poor had been contingent on sustainability and it had been argued that they were subordinate to the primacy of the protection of resources for future generations.
6. Fourthly, issues of public accountability, particularly those that span international boundaries ('third dimension accountability'), were unique to the forest sector given the emblematic nature of environmental resources and strong international environmental concerns.
7. For all these reasons, and the acute power imbalances which resulted from them, Brown emphasised that the forest sector presented an interesting and challenging sector for taking a rights approach within development assistance. He elaborated on this issue using two examples: firstly the current interest in forest law enforcement and governance and, secondly, concern around the control of wildlife utilisation.
8. He reflected on the way that the current Forest Law Enforcement and Governance (FLEG) process, and the associated concern with ensuring legality of timber production, was heavily donor driven. Within the debate there was a tendency to oversimplify the legal framework, which could result in the subordination of local agendas to external ones, and the consequent reduction of space for local actors to contest their claims. He reviewed the range of factors which led to this oversimplification, stressing that mere imposition of a 'donor agenda' was rarely one of these. Rather, the complexities of the underlying issues, and the difficulties of progressing certain types of local claims (those relating to shifting cultivators, for example), tended to encourage policy prioritisation in forms which disadvantage local resource users.
9. In the case of wildlife utilisation, he highlighted the progressive loss of access rights which had occurred as the issue had risen up the international policy agenda. A perceived hierarchy had been created topped by those whose claims were not perceived as being problematic: that is, a very small proportion of local users whose off take was assumed to be sustainable. However, for the majority of users, interests were being marginalised with the justification that the rights of future generations had been prioritised.
10. In conclusion, Brown emphasised that, although the rights agenda was important, there were some real risks for the poor in the way that these issues were addressed and it was necessary to guard against the repressive application of the law. He emphasised that there was a need for monitoring (this did justify the presence of international actors, but must be coupled with a democratic platform to avoid the distortion of local interests). He also expressed doubts about the representative claims of some NGOs and the danger that advocacy can be harmful to those whom it claimed to represent.
11. The second speaker, Mac Chapin, focused on some international dynamics of indigenous rights by discussing issues surrounding the accountability of international environmental NGOs. Drawing on his recent paper in World Watch magazine, he raised some fundamental questions about the role of large international environmental NGOs in their representation of indigenous rights.
12. Taking a historical perspective, he discussed the way in which partnerships and collaborative relationships between large international conservation NGOs and indigenous peoples, common in the early 1990s, had retreated and there were now increasing allegations of abuses by some large NGOs towards indigenous peoples. This raised questions about the legitimacy and accountability of these organisations, as well as their funders, in the representation of local rights.
13. Chapin highlighted the problem of how the agendas of these organisations and those of indigenous people did not always overlap. For example, the main concern of indigenous people was the strengthening of tenure rights and the need for capacity in political organisation, but conservationists often wanted to start with less political aspects that suited their own objectives, such as the development of area management plans.
14. This mismatch of priorities coincided with a growth in the size and funding base of the large conservation groups, which he noted brought with it a skewed distribution of power. He described the increasing trends in conservation management of a shift to large-scale approaches of 'hot spots' and eco-regions, which were expensive and increased the need for aggressive fund raising techniques.
15. Another phenomenon described by Chain was that of the 'gatekeeper', whereby money was given to one organisation for disbursement to others. He reflected on the political conditions which accompanied these funding mechanisms as well as the reduced incentive for the gatekeeper to strengthen the capacity of local NGOs to do the very work that they were involved in.
16. In conclusion, Chapin emphasised that there was a need for increased accountability of large environmental NGOs through, for example, more objective evaluations. He called for donors to focus on targeting indigenous people but warned against routing money through large organisations. He also emphasised the problematic nature of the outcome objectives of conservation sector for a rights-based approach and called for increased attention to process through supporting workshop, conferences and exchanges.
17. The discussion was wide-ranging and focused on the benefits of using a rights approach in a sector with such complexity of power dynamics. The issue of the need for the progressive realisation of rights in the context of resource constraint was raised but caution was called for in using this argument because experience in the forest sector had demonstrated that it tended to lead to a hierarchy of claimants, with the interests of the poor at the bottom.
18. Other points raised during the discussion revolved around the specific features of the sector, for example the long production cycles and the temporal and spatial dynamism of local land use systems, which required caution and a longer term perspective when applying inflexible and temporally static legal instruments.
This session examined issues relating to conflicts in defining and claiming rights associated with natural resources. Using the forestry and conservation sectors the session explores two main areas: firstly the way in which national legislation can undermine local rights where, for example, conflicts between statute and customary law are not resolved. Secondly, at the international level there are a number of questions associated with the role of intermediary mechanisms (such as large international NGOs) and the partnerships between conservationists and indigenous peoples. What, for example, is the legitimacy and accountability of these external organisations, as well as their funders, in the representation of local rights?