State Laws and Rivaj Exist, But What About Enforcement – Debating Forest Institutions and their Structural Intentions in the North-West of Pakistan
by
Urs Geiser, Switzerland
In the North-West Frontier Province (NWFP) of Pakistan, a whole array of institutions exist that (intend to) govern and ‘structure’ forest use by all sections of society. There are the ‘formal rules of the game’ (to use the famous notion of D. North), i.e. state forest policy, acts/ordinances, rules, and organizations, and there are the ‘informal’ ones, i.e. traditional rules and regulations (generally called rivaj) and related organizations (e.g. jirga). However, de facto forest use shows little correlation with the existing formal as well as informal institutional regimes – (de jure) institutions and ‘everyday social practices’ do not match.
The first question to be asked is whether this represents ‘a problem’, and if so, for whom. This paper argues that in principle, most of the stakeholders do benefit from the present practice of forest use (local people get firewood and timber below market price; the state receives revenue and forest officials an ‘adequate’ income, for example) – the almost only ‘loser’ is the forest itself. But whether this is a ‘problem’ needs careful discussion. Increasingly, studies show that the proposed relationship between downstream effects (e.g. silting) of upstream deforestation may exist in specific cases, but not as a general rule. Timber or firewood can be substituted, and soil erosion after deforestation arrested by terracing (terraces, by the way, on which fodder trees can be grown; see the expansion of fodder tree cultivation in Nepal).
Agreed – this is a radical view, but can such a radical view at least provide entry points into a better understanding of why formal as well as informal institutions related to forestry in the NWFP are not enforced and do not structure people’s everyday practices? Standard explanations for example argue that ‘traditional institutions’ are often more robust; however, a closer look at ground realities in the NWFP shows that there is a huge gap between discourse and practice of rivaj. Or it is argued that existing state regulations are not ‘stakeholder-friendly’; recent experience with Joint Forest Management, though, indicates that deforestation continues in spite of the supply of such new institutional arrangements.
One such entry point – provoked by the above argument – can be to ask for the objective of forest use, and, related to this, whether existing institutions support this objective. The basic assumption behind this question is that (formal and informal) institutions are considered valid structures for everyday practice by the involved stakeholders, when their interests/needs are taken care of – or are adequately compensated for in case they can not be directly met. The discussion of this question represents the main part of the paper, and shows, among others, that existing state regulations intend to restrict forest use by local people without offering alternatives or compensating them for foregone benefits. Rivaj, on the other hand, works against people who have not inherited use-rights. It also argues that the objective of forest use is not discussed in a broader societal process, but taken as a pre-determined condition (i.e. as defined by traditional forest science). The paper ends with the (very preliminary) hypothesis that changing existing forest institutions (as for example attempted over the past 20 years with donor support) while maintaining existing forest use objectives might not improve their enforcement unless the objectives of forest use are re-defined taking into account the peculiarities of the NWFP and of Pakistan in general – even if this goes against globally dominant forest use discourses.
The Impact of Deforestation on Local Communities and its Economic and Institutional Dynamics: Evidence from Pakistan
by Shaheen Rafi Khan, Pakistan and Gideon Kruseman, The Netherlands
This study attempts to quantify and assess the poverty-environment nexus with regard to the forestry sector. In the Pakistani context, the poverty-environment nexus has two strands; the first relates to the vulnerability/poverty of resource dependant communities engendered by environmental degradation. In turn, this is induced by extractive development policies. The second strand, which completes the cycle relates to the impact of poverty on the environment. The present study will focus on the first line of causality in the nexus, one that has not been adequately explored in the literature, namely the degradation-poverty link. Most studies link incentives to degradation but fail to expand the research in order to determine the link between degradation and resource dependent communities.
The usage of common pool natural resources (such as forests) is governed by bundles of rights. These bundles encompass rules and regulations regarding entrance, extraction, management, exclusion and alienation (Schlager and Ostrom, 1992). These property rights are embedded in institutions. In Northern Pakistan, two sets of de jure institutions exist next to each other. The first is statutory law, the second customary law. To some extent the rules these two sets of institutions lay down complement each other, but more often they contradict each other. In the undefined space created by the competing de jure institutions, de facto property rights regimes embedded in informal institutions can exist which are inimical to forest-dependant communities. When poor households in affected rural communities depend critically on the natural resources for their livelihoods, well-defined rules and regulations, whether de facto or de jure, are indispensable.
Critical to the “success” of a set of property rights is the ability of stakeholders to deal with competition amongst themselves. This includes the ability of stakeholders to enforce their rights and duties laid down in the institutional framework when necessary. Dependency on natural resources by different stakeholders may lead to conflicts over management of that resource, especially when enforcement is weak, or there are different perceptions as to the prevailing set of rules. Especially when the poor in the local communities depend heavily on the natural resources for their livelihoods, and conflict resolution forums are weak within the existing institutional frameworks, problems can arise with regard to both sustainable management of the natural resources and the poverty alleviation of the affected communities. In other words, in the advent of conflicting sets of property rights regimes, sub-optimal behavior with respect to both short-term appropriation of benefits as well as its long-term sustainable management can occur.
To be able to make a meaningful contribution to the ongoing policy reform process in the forestry sector, a clear analysis of the existing circumstances is necessary. For the first step of the analysis, insight is needed into the resource dependency of the predominant stakeholders in the study areas. In addition, it is necessary to understand the economic consequences of the competing sets of rules regarding the use and management of the natural resources. In other words: who are the winners and losers under different property rights regimes. This requires insight into the institutional arrangements and an analysis of their economic consequences. Given the conflicting nature of different sets of property rights, conflict theory can be used in the analysis. To be able to make a contribution to the ongoing policy reform in the forestry sector, insight is needed on how alternative policy changes will affect the different stakeholders. This requires calculation of pay-offs, which can then be used in a game theoretical analysis of policy change scenarios.
Resource Rights and Wrongs: The Governance Dimensions of Environmental Insecurity?
by: Adil Najam, USA
Ever since Garrett Hardin’s seminal article ‘Tragedy on the Commons’ it has been conventional wisdom that environmental resources that are not ‘owned’ will be abused. Many have questioned the wisdom of Hardin’s assertions and there has been a lively debate on just what is a ‘common’ and whether commons are condemned to environmental ‘tragedies’ or not. Meanwhile, a parallel and connected debate has also raged that uses the language of ‘rights’ rather than the language of ‘property’. Both of these (and other concurrent) conceptual debates highlight the importance of the governance dimension to issues of environmental security. This presentation will seek to explore the various ways in which governance becomes a key aspect in discussions of environmental insecurity and posit that not only might governance be a critical aspect of the nexus of environment and human security but it may well be the missing piece in the puzzle that allows the environmental insecurity discussion to move from debate to action.
Governance of Forests in Swat in Historical Perspective
by Dr. Sultan-i-Rome, Pakistan
The Swat valley has always been rich in forests. In the 16th century, the Yusufzai tribe occupied the valley and adopted a peculiar system of land tenure and resource ownership, whereas the Kohistan area remained in the hands of the old occupants, with a separate system of resource ownership.
Miangul Abdul Wadud, the ruler of Swat State, on the one hand tried to exploit the forests of Swat and on the other somewhat collaborated with the colonial authorities in their endeavors to conserve them.
With the birth of Pakistan, the rulers of Swat State signed at first an Instrument of Accession and later the Supplementary Instrument of Accession. Under these Instruments, they had no obligation to the Provincial Government in managing, exploiting, and conserving the forests of the State in accordance with the rules of Pakistan.
Although the rulers of Swat State outwardly managed the forests, in some respects, according to the prescriptions of the colonial Government and then Pakistan, they made and issued their own rules and orders. The tract of Kalam, Ushu and Utror had its own separate status being not a part of Swat State.
With the merger of the State, the rules of Swat State were retained but the situation on the ground changed drastically. The Provincial Government declared that the said forests were its property, then extended its forest laws, and later declared them Protected Forests. These, however, brought about no change and the situation on the ground went from bad to worse.
The objective of this paper is to analyze the changes brought about by Swat State and then by the Provincial Government in governance of the forests in Swat and the reasons the measures taken by the Provincial Government failed.
The major findings of this study are that lack of proper implementation of rules and inefficient and ineffective management are the main factors responsible for the failure to conserve the forests.
Whose Rights? Who’s Right?
Customary and Statutory Law for Managing Natural Resources in the Northern Areas of Pakistan
by Patricia Moore, Thailand
A long-standing and well-developed customary law regime in Northern Areas governs the principal ecosystems and resources of the region: pastures, including resources other than forage available in them; forests, including timber and non-timber forest products; wildlife; and water.
The customary legal system in Northern Areas is structured around the principles of shared space and shared blood relations. This system is based on collective responsibility that in most cases aims at using natural resources in a sustainable manner. Collective responsibility is built into the structure of customary regulatory institutions, which are similar across Northern Areas, although there are local variations on specific powers and duties.
Customary law in the Northern Areas contains many of the same elements and operates in much the same way as statutory law. The primary, fundamental difference between customary and statutory regimes is clear: most statutory regimes governing natural resource management and use in Northern Areas were designed to promote resource exploitation, rather resource conservation, with the benefits of resource exploitation flowing to statutory institutions rather than customary ones. The perceived and real conflicts are questions of substance – exploitation vs. conservation and sustainable use – as well as of equity.
At the operational level, there should be relatively little difficulty in harmonizing customary and statutory law. “Harmonization” in this sense does not mean diluting customary law, incorporating it into statutory law and expecting that it would then disappear. Rather, it means understanding and respecting customary law as a sophisticated and dynamic legal system, with at least as long a regulatory history as statutory law if not longer, and which has already reformed itself to incorporate elements of statutory law.
Introducing the concept of collective property rights into the current statutory system would be more complicated, but feasible through consultation and consensus-building. Harmonization in the sense of equity would undoubtedly be the most difficult issue to resolve, given long-standing vested interests in the benefits of natural resource exploitation.
Long-term, effective regulation of natural resources in Northern Areas will require reciprocal recognition of customary law and corresponding reform to incorporate many elements of it into statutory law. International agreements and processes are placing increasing emphasis on recognition of community property rights and equitable sharing of benefits. The implications for sovereignty have been addressed and resolved in countries that have already taken steps to recognize and provide for the survival of the customary legal traditions practiced in their territories.
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