Addressing the Shortfalls of the Community Rights Law: To Amend or Adapt?

Community forest lands are defined as forested or partially forested land traditionally owned or used by communities for socio-cultural, economic, and developmental purposes. The CRL recognizes the inherent rights of communities over their forest resources, subject to regulations developed by the Forestry Development Authority (FDA) in consultations with the connected Community Assembly. The FDA has a degree of discretion to decide upon how the law should be implemented, but only when the law provides for this or when it is ambiguous. The governing framework for forest resource management on community forest lands is the Community Forest Management Plan (CFMP), which lays out how the community intends to sustainably manage and use forest resources over a five-year period. The FDA then confirms that the CFMP accords with the principles established in Chapter 2, Section 2.2 of the CRL. The CRL does not require any particular procedure to be followed before an Authorized Forest Community signs a commercial agreement with a third party, nor does it provide the FDA with the authority to determine whom an Authorized Forest Community may contract with. However, the implementing regulations attempt to limit small-scale commercial activities to community members, either collectively or singly in support of livelihoods, and introduce additional requirements for medium-scale commercial activities when undertaken by third parties. The analysis reveals that some provisions within the Regulations directly contradict what is written in the CRL, and are therefore unenforceable. Some stakeholders have called for the CRL to be amended, so the intended protections can be enshrined. However, the passage of the CRL was tortuous, and the rights of communities hard won, so reopening the process would likely be difficult and there would be no guarantee that the amended legislation would accomplish this objective. The proposed changes to the regulatory regime would mean that companies would not be able to contract with communities to engage in small-scale commercial activities, and would have to compete against each other in order to gain access to a community's forest resources on lands covering 5,001-49,999 hectares. This would mean that small areas of community forest land would be less likely to be deforested and/or degraded, since community members would be undertaking operations themselves. Communities would also be assured a better commercial arrangement when contracting with third parties to engage in medium-scale commercial activities, because companies would have to take part in a competitive bidding process, overseen by the Public Procurement and Concessions Commission (PPCC).