WORLD RAINFOREST MOVEMENT
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CONCERNS ABOUT THE SOCIAL IMPACT OF THE LAO PDR FOREST
CONSERVATION AND MANAGEMENT PROJECT.
The GEF, IDA (World Bank) and FINNIDA are considering financing
a project in Laos which has grave implications for the future of
the forest dwelling peoples of the country. This project builds
on the foundations laid by the SIDA-funded, and led, Tropical
Forestry Action Plan for Laos. It also draws on SIDA-funded
technical assistance carried out by the IUCN, which helped draft
the new conservation law for Laos, and UNDP-funded technical
assistance which helped draw up new laws on land tenure, forestry
and community forests. The project will apparently involve both
the IUCN and the WWF-USA in implementation.
The main aim of project is to assist in the implementation of a
national programme of forest management and conservation designed
to regulate and control popular access to forest resources.
Unless they are changed, the projects will facilitate the
application of very restrictive laws which are not only entirely
contrary to international legal norms regarding indigenous
peoples (eg ILO Convention 107 and 169) but which are also
contrary to the World Bank's own recently revised Operational
Directive on Indigenous Peoples.
These new laws and policies will, unless they are revised, create
serious conflicts of interest between traditional forest dwellers
and Government institutions. The emerging and draft legislation,
which has been devised and promulgated under the guidance of
international development agencies and conservation bodies,
secures weak and ambiguous rights to rural communities, while
subjecting them to considerable restrictions and potential fines
and punishments. The chances are very high that this will lead
to a deepening gulf of mistrust between the State agencies and
local peoples, especially the upland communities.
The consequences of this alienation may be severe. By denying the
validity of traditional systems of resource management; by
curtailing or extinguishing customary rights of access to and use
of the environment and by seeking to impose rapid change on the
rural communities, the new legislation and associated natural
resource management policies, risk alienating people both from
the government and from the natural resources. As can be
concluded from the experience of other tropical forest countries,
especially in Asia, this alienation will be politically,
socially, economically and, not least, environmentally costly.
It may also create serious hardship and difficulties for Lao
citizens.
The WRM has been monitoring the evolution of this project, in
collaboration with regional counterparts in SE Asia. The
information appended below sets out in detail our concerns.
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WORLD RAINFOREST MOVEMENT
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Yves Wong
Senior Agriculturalist
Agriculture Division, East Asia Department
The World Bank
1818 H Street NW
Washington DC 20433 17 June 1992
Dear Mr Wong,
LAO PDR FOREST CONSERVATION AND MANAGEMENT PROJECT
I was sorry that we were not able to meet in Washington the week
before last, but I am grateful to you for arranging for me to
meet with your colleague Monika Huppi regarding our concerns
about the social and environmental implications of the
IDA/GEF/FINNIDA funded Forest Conservation and Management Project
(FCMP) in the Lao PDR.
As Ms Huppi says she was not familiar with either the project,
the draft staff appraisal report or the draft legislation on land
tenure, conservation and forestry in Laos, she recommended that
I write to you for clarification of the key issues of concern to
us. The main concerns are the following:
1. Participation/ Consultation:
As far as we are aware - and according to both the Environmental
Data Sheet in the April MOS and the Back to Office Report of
ASTEN dated 21 May 1992, filed at the GEF - so far no Lao-based
NGOs have been consulted about the project.
This appears to be contrary to the new norms developed by the
World Bank on NGO participation and environment assessment. I
would be grateful for your comments on this apparent lapse in
procedure.
2. Indigenous Peoples Component:
The majority of those to be affected by the FCMP are classed by
the Bank as 'indigenous peoples' - that is to say they are
members of 'social groups with a social and cultural identity
distinct from the dominant society that makes them vulnerable to
being disadvantaged by the development process' (OD 4.20:1).
The draft staff appraisal report (dated January 14, 1992) reveals
that there has been no attempt yet made by the project to
implement the World Bank's operational procedures on indigenous
peoples (see Tribal Peoples in Bank-Financed Projects (OMS 2.34)
and Indigenous Peoples (OD 4.20)).
Among the stipulations of OD 4.20 that appear not to be adhered
to by the project are the following:
i. Identification of an Indigenous Peoples Plan:
Article 13 of the directive states that 'the borrower should
prepare an indigenous peoples development plan that is consistent
with the Bank's policy. Any project that affects indigenous
peoples is expected to include components or provisions that
incorporate such a plan' (OD 4.20:3).
Article 14 states that the prerequisites of a successful
development plan include inter alia:
- a culturally appropriate plan based on the options preferred
by the affected people.
- studies to anticipate adverse trends and the means to avoid
them
- institutions with the needed social, technical and legal skills
- a longer lead time than normal as well as arrangements for
follow up
The draft SAR makes no mention of such a plan, much less does it
develop details to identify how such a plan could meet these
prerequisites.
ii. Development of an Indigenous Peoples Plan.
Article 15 provides further details as to how such a plan should
be developed, emphasising the need for: legal assessments,
especially those related to land tenure: baseline data studies:
strategies for local participation: on-site research by qualified
personnel to identify the best means for providing suitable
education, health, credit and legal assistance: assessment of
government institutional capacity: elaboration of an
implementation schedule: provisions for monitoring and
assessment: cost estimates and financing plans for the indigenous
peoples component or plan.
None of the stipulations appeared to have been adhered to by the
project.
iii. Articulation in the Project Cycle
Article 16 notes that action should be taken by the Task Manager
to set in motion the application of the directive during project
identification including assessments of the numbers, locations,
legal status of the people concerned, the identification of the
relevant government agencies and their policies, procedures and
plans. Anthropological studies should be initiated. These issues
and the overall project strategy regarding indigenous peoples
should be signalled in the Initial Executive Project Summary.
None of these steps appear to have been undertaken in the
identification phase.
Article 17 notes the need for the provision of technical and
social science assistance during the project preparation phase.
This will include the participation of NGOs. Steps for securing
land rights should be clarified with the borrower at this stage
in the project cycle.
These steps have still not been undertaken even though the
project is now in the appraisal phase.
Article 18 states that the plan for the indigenous peoples
component should be submitted to the Bank prior to project
appraisal. The appraisal should then include an assessment of
this plan and should also ensure that the 'indigenous people have
participated meaningfully in the development of the plan'. The
article notes 'It is particularly important to appraise proposals
for regularizing land access and use.'
Such a plan has never been submitted to the Bank, no appraisal
has been made of its contents and the legislation regarding
tenure has not been appraised as required (see below).
I would be grateful if you could explain why the project has so
far not adhered to OD 4.20 and what steps are proposed to remedy
this situation.
3. Resettlement:
The Bank has well-defined procedures in the case of projects that
require resettlement (Operational Directive 4.30). Furthermore,
in 1991, the Bank issued a new Forest Policy which states that
'involuntary resettlement should be avoided whenever possible,
since it carries with it the high risk of impoverishment of
indigenous populations. Involuntary resettlement of forest
dwellers is rarely practical.....' (Forest Policy 1991:48).
Ms Huppi informed me that the Lao PDR has now dropped its policy
of resettling forest communities out of the forests and
sedentarising them on newly developed lowland agricultural sites.
(In 1991 the Lao PDR was cited as having a target of resettling
900,000 people out of the forest by the year 2000.)
I would be grateful if you could confirm that this is indeed the
case.
However, the *draft* legislation, particularly that concerning
conservation zoning will extinguish customary rights to the use
of many forest products, and will also prohibit residence in
conservation areas (see attached memo).
Please could you confirm that no resettlement is contemplated
under the project and that conservation zones will not require
the relocation of present occupants.
On the other hand, if resettlement is contemplated, please could
you explain why the Bank's procedures on resettlement have not
been adhered to in the elaboration of the project.
4. Land Tenure, Conservation and Forestry Legislation.
A major goal of the project is to formalise the presently
inadequate and internally contradictory laws in the Lao PDR
relating to land tenure, conservation and forest management.
The attached memo, prepared in April 1992, details our concerns
about the emergent and draft laws.
The available information leads us to conclude that the project,
by formalising and implementing these laws, will cause very
serious problems for an estimated 1.8 million forest-dwelling and
forest-dependent people in the Lao PDR, by denying them rights
of use and access to the forests and undermining their
livelihoods.
These problems are likely to be on such a wide-scale and of such
severity that they risk not only causing serious conflicts
between the Lao PDR Government and Lao citizens but will
translate into increasing pressure on forests, as customary
systems of resource management are replaced by a de facto
situation of open access.
The draft staff appraisal report dated January 14, 1992, which
we have since been able to examine, does not offer clear
reassurances in this regard. The draft SAR does repeatedly
mention the need for the involvement of local people, their
empowerment and their provision with enforceable rights to
natural resources and mentions the inappropriateness of
legislation and policies that deny them access to forests.
However, no attempt is made to examine the existing draft laws
or to set out clearly how they are to be modified to ensure that
these principles are properly enshrined in law.
In particular, the draft conservation law, developed with
technical assistance from the IUCN, has serious implications for
rural communities. In should be noted that the scale of the
problem potentially posed by this law is now greater than ever
as the Lao PDR has now apparently decided to increase the area
to be set aside for conservation purposes from 2.5 million
hectares, as envisaged under the TFAP, to 3.5 million hectares,
equivalent to 20% of the country. It is also evident that a
number of the areas selected by the GEF project component for
conservation management planning *are* presently occupied,
including the Nakai Plateau/Nam Theun and the Dong Ampham areas
(Back to Office Report of ASTEN May 21, 1992:2).
The recent mission to Laos substantiates some of the concerns
raised in our memo. Referring to the draft conservation
law, the mission report notes:
'A review of the model regulations reveals inadequate
provisions for actual community participation in planning,
decision-making and management of resources in and around
the protected areas. Rather the regulations largely
emphasise the actual control and regulation of the use of
the resources in these areas by the local people by stiff
penalties and other restrictive norms. In the light of this,
it could be difficult to establish the participatory
development process that the GEF project intends to put in
place'(Ibid.).
We would be grateful if you could inform us what steps will be
taken to ensure that these legal provisions will be modified
before the project is finalised for negotiation.
We would also like to know what steps are being taken to ensure
that the other laws relating to land tenure, forest management
and community forests are revised prior to project negotiation.
5. Categorisation of the Project.
The FCMP project will have a major influence on the future of the
Lao PDR. The zonation and legislation set in place by the project
will establish the basis for natural resource management for the
whole country and will have a profound impact on the lives of
some 50% of the Lao population many of whom are culturally
distinct from the politically dominant lowland and urban
populations.
Despite this awesome responsibility, the project has been
categorised as a 'B' project.
We urge that the project be redefined as an 'A' category project
to ensure that due attention is paid the long term social and
environmental implications of the project.
We would be grateful for your reaction to this suggestion.
6. Projected dates for project cycle completion.
The latest MOS (June 1992) states that the project is still in
the appraisal phase, while the latest 'Environmental Data Sheet'
for the project (MOS April 1992) stated appraisal was to be
completed by November 1991 and that the project would be
presented to the board on 18 August 1992.
We take it that the project has therefore been delayed. We would
be grateful for clarification of the expected dates for
completion of appraisal and the date that the project is now due
to go to the Board. We would also be grateful for details
regarding the present status of the funding for the GEF component
of the project.
We look forward to hearing from you.
Yours sincerely
Marcus Colchester
Director, Forest Peoples Programme
cc. Mohammed El-Ashry
UK Executive Director
Bank Information Centre
Jeff Sayer, IUCN.
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WORLD RAINFOREST MOVEMENT
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COMMENTS ON LAO PDR FOREST POLICY AND PEOPLES' RIGHTS.
by Marcus Colchester, Forest Peoples Programme.
*Summary*
The main aim of the World Bank and GEF's projects in the Lao PDR
is to assist in the implementation of a national programme of
forest management and conservation designed to regulate and
control popular access to forest resources.
The projects will facilitate the application of very restrictive
laws which are not only entirely contrary to international legal
norms regarding indigenous peoples (eg ILO Convention 107 and
169) but which are also contrary to the World Bank's own recently
revised Operational Directive on Indigenous Peoples.
These new laws and policies will create serious conflicts of
interest between traditional forest dwellers and Government
institutions. The emerging and draft legislation, which has been
devised and promulgated under the guidance of international
development agencies and conservation bodies, secures weak and
ambiguous rights to rural communities, while subjecting them to
considerable restrictions and potential fines and punishments.
The chances are very high that this will lead to a deepening gulf
of mistrust between the State agencies and local peoples,
especially the upland communities.
The consequences of this alienation may be severe. By denying the
validity of traditional systems of resource management; by
curtailing or extinguishing customary rights of access to and use
of the environment and by seeking to impose rapid change on the
rural communities, the new legisaltion and associated natural
resource management policies, risk alienating people both from
the government and from the natural resources. As can be
concluded from the experience of other tropical forest countries,
especially in Asia, this alienation will be politically,
socially, economically and, not least, environmentally costly.
It may also create serious hardship and difficulties for Lao
citizens.
The World Bank and GEF projects should thus be halted forthwith
and revised. The proposed legislation on land tenure, forest
management and conservation should be radically redrafted with
the following aims:
- the evolution of a fully participatory planning process in
which local communities have a decisive voice over plans for
resource use and zonation in their areas;
- clear and unambiguous recognition of the rights of local
communities to the use and control of the natural resources in
their areas;
- the subordination of commercial development programmes and
timber extraction to ensure that the meeting of local peoples'
needs and recognition of their rights are given first priority;
- much more detailed censuses, surveys and studies to document
existing populations, patterns and systems of resource use.
*Land Tenure and Customary Rights*
To a large extent the potential conflict between the Lao PDR
Government and the forest dwelling communities results from the
fact that the rights of rural communities to the resources that
they depend on are ill-defined in Laotian law.
Thus, whereas, a Forestry Policy and Forestry Laws are in a rapid
phase of development, crucial issues concerning peoples' rights
to land and resources are being marginalised. A land law for Laos
is, apparently, still not defined (Laos PDR 1991a:4) (and see
below).
However, the reality is that some 85% (3.4 million people) of the
population derive their livelihood directly from the land. Indeed
it may be that the figure is even higher since very large numbers
of town-dwellers are part-time farmers with small-holdings
outside town.
Moreover, although only 47% of the country is thought to be
forested, mainly the upland areas, these forested uplands produce
some 40% of the country's rice. Perhaps as much as 55% of the
population actually live in forests or make direct, almost daily,
use of forest resources.
For a variety of reasons the number of people living in the
forests is actually increasing. Population increase is one
reason. More significantly, however, has been a increased
settlement in the lower forest by lowland farmers. Some of these
people have been forced off their lowland farms by war (de Beer
1991; Mekong Committee 1991). Others are said to have moved
because of declining crop yields due to overintensive rice
monocropping and subsequent nutrient depletion. A tax on paddy
rice may also have discouraged lowland farming, while a ban on
the trading of rice between provinces may have forced people in
some areas to clear forest lands for rice growing when yields
from lowland paddy fields have been inadequate (IUCN 1988; Van
der Heide 1990). Increasing use of lowland farm lands for cash
cropping and the introduction of capital intensive farming
practices may also have increased land concentration, leading to
rising rural landlessness and consequent forest colonisation
(Lohmann 1990:2).
Between 35% and 45% of the population of Laos are however
*traditional* upland dwellers, whose economies and ways of life
have developed in the forested hills of southern China and SE
Asia over literally thousands of years. Many of these peoples
have developed complex systems of land use and land ownership,
by which access to resources is regulated by customary
institutions, beliefs and laws (Geddes 1976; Althing von Geusau
1986; IUCN 1988).
Under existing Laotian law, however, these peoples' have almost
no rights to the use, possession or ownership of these forest
areas. On the contrary, at present, according to Decree No. 117
of 5 October 1989, Part II, Article 3, people in forest lands are
only entitled to get rights of permanent possession to 2-5 ha.
per family, with, in addition, some 100-500 ha. being allocated
to each community as community forests (Lao PDR 1991a:6).
These areas are, *intentionally*, inadequate to maintain the
traditional economy of these upland communities. It means that
under current Laotian law, customary rights are not recognised
and traditional economic activities are made largely illegal.
This is a formula for conflict between local communities and
Government. Unfortunately, proposed changes in the law and the
Government's express policy are likely to worsen this situation
not improve it. The reason is that the Government has an express
policy of eradicating shifting cultivation (Lao PDR 1991a:5).
*Shifting Cultivation and Forest Policy*
The Lao Government apparently considers shifting cultivation to
be the main constraint to increased forest production (Madar and
Salter 1990:2). The Government has, as a consequence, embarked
on a policy of resettling shifting cultivators to fixed farming
areas. In 1989, the Government set itself the ambitious target
of reducing the area under shifting cultivation by 30%, aiming,
according to one source, to completely eliminate the practice by
the year 2000 (Ibid:3). Other sources suggest that the
Government's target is to resettle some 900,000 people onto
750,000 ha. of land as permanent cultivators by the same date
(Lohmann 1990; Van der Heide 1991:22).
These plans seem extraordinarily unrealistic. It must be borne
in mind that despite a total land area of some 24 million
hectares only some 730,000 ha. of Laos, less than 3%, are thought
to be under agriculture. Of this area some two thirds are given
over to rice production (Mekong Secretariat 1991:4). In any one
year it is estimated that some 300,000 ha. are being cultivated
by shifting cutlivation) (Lao PDR 1990: 19). In effect therefore
the Government's aim is to nearly triple the area of land under
permanent agriculture in only eight years, by the relocation of
nearly one million people!
The task seems implausible for technical reasons, but must be
seen to be impossible when the political, social and cultural
dimensions are also better appreciated. For, although many of the
problems associated with shifting cultivation in Laos maybe due
to recent migrants into the forests, the majority of upland
dwellers have a very long history of forest occupation. Peoples
such as the Karen, Lawa, and Khmu who typically live in the
middle altitude forests have systems of land use which are widely
acknowledged as stable and environmentally sound (Pei 1986; IUCN
1988; Kunstadter 1976; McKinnon and Bhruksasri 1986; McKinnon and
Vienne 1989). These peoples may account for as much as 34% of the
Laotian population (Lao PDR 1990).
A further 9% live on the higher hills above 1,000 metres.
Typically these include Sino-Tibetan and Tibeto-Burman peoples
such as the Hmong (Meo), Mien (Yao), Akha (Hani), Lahu and Lisu.
*Some* of these people cultivate poppies (some 10,000 ha.
according to one source - Mekong Secretariat 1991:16) for opium
production, and *some* of these groups do tend to practise a
system of migrant agriculture by which areas are not rotated but
cultivated till they are exhausted and abandoned (Geddes 1976).
This leads to the removal of treecover and the emergence of
grasslands dominated by *Imperata cylindrica* (Pei 1986; IUCN
1988). Soil erosion and gullying of the uplands is one result of
this practice. These extravagant land use practices of *some* of
these peoples can best be seen as a result of a very long history
of political marginalization. Never having enjoyed good relations
with their lowland neighbours or Governments (Geddes 1976) and
lacking any land security, these peoples have not developed
stable systems of land use. *The important lesson to be drawn
from these cases is that it is lack of political stability and
land security which encourages prodigal patterns of resource use
and management* (Colchester 1990, 1991).
The difficulties of rapidly transforming shifting cultivators
into settled agriculturalists have been made plain by the
experiences in other Asian and Southeast Asian countries. The
extensive documentation on these experiences does not need
reciting here but should be carefully appraised by the those
proposing new forest policies in Laos. In summary one can note
that efforts to oblige shifting cultivators to change their ways
of life have more often than not failed. They have brought
serious health and nutritional problems to those affected. They
have exaggerated environmentally unsustainable practices. They
have been economically costly but brought little return. They
have caused serious political problems brought on by deepening
the mistrust that local communities have of Government officials.
Not rarely these conflicts have escalated into violence and
militancy, with tragic consequences for all involved (for example
see Tapp 1986; Poffengerger 1990; McKinnon and Bhruksasri 1986;
McKinnon and Vienne 1989; Brewer 1989; Colchester 1990, 1991)
However, the proposed changes in Lao PDR forest policy, which are
being promoted by the international development agencies and
conservation bodies, ignore these lessons of history. The policy
is to alienate these peoples, as far as possible, from their
forests in order to liberate them for other purposes. The plan,
as expressed in official documents, is that once unencumbered of
human occupants, the forests can be divided up into three
categories. Some 5 million ha. will be set aside as production
forests, principally for the extraction of timber. Another 9.5
million hectares will be designated as protection forests -
largely in steep and mountainous terrain where a permanent forest
cover is deemed desirable to prevent soil erosion, landslips and
to stabilise hydrological cycles. Finally a further 2.5 million
ha. is to be set aside for biodiversity conservation (Madar and
Salter 1990:2; Lao PDR 1990). These plans are being directly
assisted by international agencies such as the World Bank, UNDP,
IUCN and SIDA. As part of this process Government officials and
expatriate consultants are hastily drawing up new legislation to
provide a legal basis for the proposed land use pattern.
*Emergent legislation*
These new pieces of draft legislation include the following:
- new 'Land Law' (Lao PDR 1991g)
- Decree for the Reform of the Forestry Sector (Lao PDR 1991f)
- Regulations on the Management of Village Forestry Resources
(Lao PDR 1991e)
- Regulations for the Future Management of a Protected Area
System and for the Future Management of Wildlife Resources in the
Lao PDR (Madar and Salter 1990: Annex 3).
*New Land Law*
As under previous Laotian law, the new draft Land Law decrees
that all land belongs to the State (Article 2). Land can however
be 'possessed' by individuals and 'farmer's organizations. This
possession may be either for a given period or in perpetuity
(Article 5). The law does not define what constitutes a 'farmer's
organization'. Probably this is meant to refer to registered
cooperatives or agricultural industries rather than to villages.
It thus seems that the draft land law does not make provision for
the possession of land by communities.
Land possessed by a farmer or farmer's organization is subject
to a number of conditions. If these are not satisfied the State
may reallocate the land. Amongst the conditions stipulated by the
draft law are the following:
- land must be in 'constant use' (Article 15).
- land must be 'cleared' to secure possessory rights (Article
24).
- land which has not been 'put into production' may be
'confiscated' and assigned to others (Article 25).
These legal provisions are intended to secure the State's policy
of encouraging land clearance for permanent agriculture (Article
28). They are similar to the laws prevalent in Franco-phone
Africa ('mise en valeur') and Latin America where land title is
secured by clearance and permanent use. As has been widely noted,
these laws have been major causes of deforestation in these areas
(Colchester and Lohmann 1990; Jones 1990).
The draft land law explicitly sets out to 'encourage people in
the mountainous areas to give up occupation in slash and burn to
a permanent occupation' (Article 28). The law ensures that upland
farmers cannot secure rights to land used for shifting
cultivation. They may be subject to fines if they use land
unlawfully (Article 47).
No rights of possession are envisaged under the draft Land Law
for other activities such as collecting, fishing or hunting. The
exception is Article 29 by which the State may assign land to
individuals, villages or organizations to 'develop forests in two
hectares of land area'. The meaning of this Article is unclear.
*Draft Decree on the Reform of the Forestry Sector*
The draft forestry decree applies to all land which is totally
or partly covered by trees, but does not include areas under
'permanent lawful cultivation' (Article 1). The law is thus
directly relevant to all areas under shifting cultivation.
As for all land in Laos, forest land is owned by the State. Its
use is to be made subject to a strict process by which management
plans are submitted on behalf of potential users and their rights
to use lands are then authorised. Exceptionally tree felling may
be allowed with the permission of a forest officer (Article 5).
Resource management plans are prepared by a Forest Officer
(Article 8). Areas called 'Resource Management Areas' are,
apparently allotted to the personal responsibility of forest
officers and plans are developed for each such area and then
zoned (Articles 9-10).
The Law does provide for 'community forest management agreements'
by which land may be entrusted to a community for use according
to the plan, for an unlimited period (Article 11). Issuance of
'community forest management agreements' are subject to the
discretion of the Forest Officer (Article 13). The plans are
developed by the Forest Officer in consultation with the
community. Once a community has secured an agreement best efforts
are made to secure the communities' rights unless the management
has 'irretrievably collapsed' (Article 17, 3 (ii)).
Moroever there is a provision that gives priority to 'the basic
needs of the local rural community' in the allocation of
Production Forest for use (Article 12). While land may be zoned
as Conservation Forest, *without the basic needs of local rural
communities being taken into account*, where 'conservation
management agreements' are contemplated for Protection Forests
these can can only be handed out for areas not required to meet
basic needs (Article 15).
These provisions seem to provide some weak rights to local
communities to their forests. However, it is not clear how it is
established that forests are being used by communities to satisfy
their basic needs, before they are allocated to other purposes.
Nor is it clear if community plans for well-managed rotations of
crops and forest fallows under shifting cultivation could
constitute a Forest Management Plan. No limit is stipulated on
the size of areas to which community forest management agreements
might apply.
On the other hand, the draft decree does set out severe penalties
for those who use forests outside of these processes. Illegal
tree-feeling or setting of fire may incur a fine or imprisonment
for up to a year (Article 30, 1 (ii)). Products illegally taken
from the forest may be confiscated (Article 30, 2 (i)). A very
short three months transition period is contemplated to allow
forest users to regularise their access to forests.
*Draft Regulations on the Management of Village Forestry
Resources*
Parallel to the drafting of the Forestry Reform Decree, the Lao
Government is in the process of drafting more detailed
regulations relating to village forest areas. No mechanism is
stipulated by which these village areas are allocated. The only
existing legal process which contemplates the establishment of
village forests appears to be Decree No. 117 of 5 October 1989,
Part II, Article 3, which provides for forest areas up to 500
ha.to be allotted to a community. This needs to be clarified.
This is particularly the case as it is not clear whether the
draft regulations or the draft forestry reform law would be
determinative.
Management of village forests is the responsibility of 'village
administrative committees', which are the village level
representatives of Government. The processes by which posts are
elected, appointed and held in the committees is not made clear.
Since decisions about access to the community forests are made
by these committees which allocate areas to farmers' families
(Article 1; Article 6) and decide on punishments in the case of
infractions (Article 16), it is clearly crucial that these
institutions are open and accountable to the community members
(cf Colchester 1991).
However, the law obliges the same committees to promote permanent
cultivation 'with the aim to eliminate and put an end to slash
and burn cultivation' (Article 6 (7) and also Article 11). This
provision is likely to put the committees in an invidious
position with respect to community members. It will either
institutionalise dissent within the community or undermine the
authority of the committees or both.
However, the proposed regulations do apparently recognise that
shifting cultivation may *have* to be permitted under some
circumstances. An ambiguous provision in Article 10 allows the
committee to authorise lands to be cleared for 'upland
cultivation' where the land cannot be used for paddy fields.
Moreover, though firing is in general prohibited, an exception
is made to allow farmers to burn areas for upland cultivation
after suitable precautions are taken (Article 13, (2)).
It seems that these draft regulations offer a more realistic
structure for forest resource management than either existing
laws or the others being drafted. It is clear, however, that the
regulations appear to be contradictory to other laws and it needs
to be made clear which laws take precedence. Moreover, the
process by which communities secure areas of forests which are
then subject to these regulations need to be made much clearer.
The regulations also need to be made much less ambiguous to allow
well-managed shifting cultivation to continue where necessary or
desired. Much clearer rules need to be set out to secure
community access to forests for other resources essential to
their economies.
*Draft Regulations for the Future Management of a Protected Area
System and for the Future Management of Wildlife Resources in Lao
PDR*
As noted under the draft Forestry Reform Decree, areas zoned as
Conservation Forests extinguish customary rights in those areas
(Lao PDR 1991f:8). It is intended that some 2.5 million ha. of
forests be classified in this way (Madar and Salter 1990:3).
Legislation drawn up for the Lao Government by the IUCN will
subject all those pursuing their traditional livelihoods in these
newly designated areas to fines and punishments (Articles 47,
48). In areas designated as National Parks traditional economic
activities such as hunting, fishing, felling of forests or
setting fires to create fields for cultivation will all be
rendered illegal and subject to fines. Even residence in these
areas will be prohibited (Article 25). However, in areas
designated as wildlife sanctuaries a limited number of economic
activities may be permitted, subject to authorisation by the
central authority charged with nature conservation (Article 39).
It is not clear how a person could obtain such a permit.
What is particularly shocking about the proposed law is that it
provides no mechanism for popular participation in decision-
making or management. The only concession to local peoples
interests is that there should be a 'summary of the opinions of
the persons affected by the proposed establishment of a protected
area' (Article 20)
Under the proposed law, the Conservation Authority would have the
power to regulate and prohibit traditional economic activities
even more widely than the protected areas themselves. The draft
law would allow the authority to declare areas surrounding
protected areas as 'buffer zones'(Article 23), something also
allowed for under Article 22 of the proposed Forestry Reform
Decree. The buffer zones 'shall be as wide as necessary' and any
activities in these buffer zones may be subject to (unspecified)
controls (Article 23). Moreover, apparently anywhere in the
country and subject to no mentioned procedure, the authority may
'declare any area of land' a wildlife sanctuary, a controlled
hunting zone or a controlled fishing zone (Article 38).
What is most surprising about this draft law prepared by the IUCN
is that its technocratic, prescriptive approach to nature
conservation appears to go directly contrary to the IUCN's own
revised 'Guidelines for the Management of Tropical Forests' which
state inter alia:
- the allocation of tropical forest land to other uses should be
determined only after thorough economic, social and ecological
evaluation - by a range of disciplines - and through dialogue
with local communities;
- the people who live in and around tropical forests should
control their management.
*International norms*
It is important to realise that the very weak and ambiguous
rights provided to forest dwellers under the existing and draft
Laotian laws, and the heavy restrictions which this legislation
imposes on their traditional systems of resource management, are
not compatible with international law or development norms.
Whereas Conventions Nos. 107 and 169 of the International Labour
Organisation explicitly recognise the rights of tribal and
indigenous peoples to the use and ownership of their traditional
lands and make specific provisions for shifting cultivators, the
proposed laws and policies will effectively deny these rights.
The proposed World Bank and GEF projects will also violate the
World Bank's new guidelines on indigenous peoples, which apply
to all Bank funded projects in tribal areas (Operational
Directive 4.40). This directive commits the Bank to a policy of
'informed participation' achieved through 'direct consultation'.
The policy makes sensible recommendations on the need to secure
indigenous peoples land rights or resource control and makes the
Bank's funding of projects conditional on the existence of
special project components to apply the Bank's policy
prescriptions. According to the policy these components need to
be developed *prior to project appraisal*. The new policy also
insists that novel mechanisms are developed to ensure popular
participation in project design, execution, monitoring and
evluation. The World Bank's new environmental assessment
procedures and new forest policy are also intended to secure
forest dwellers' rights and ensure participation.
*International assistance*
Ever since the Lao PDR opened its doors to international
conservation and development agencies, there has been a heavy
focus on restructuring the Forest Sector. The Tropical Forestry
Action Plan for Laos, developed with technical assistance from
SIDA and published in 1990 (Lao PDR 1990) has now been officially
instituted by law (Lao PDR 1991b), although many of the
deficiencies of the plan with respect to its likely impact on
local peoples had previously been highlighted (Lohmann 1990).
Following up on the TFAP, the World Bank is now in the process
of developing a US$ 10 million to US$ 15 million loan to the Lao
PDR Government through the so-called Laos Forest Management and
Conservation Project. It is proposed that a further US$ 5.5
million to US$ 6.5 million is channelled through the Global
Environment Facility into a sub-project titled the 'Lao PDR -
Wildlife and Protected Areas Management', developed by the SIDA,
IUCN and WWF(USA). Both the World Bank and GEF projects are,
explicitly, being developed within the framework of existing Lao
PDR and TFAP policies, in the development of which SIDA has
played a lead role (GEF 1991:45; IUCN 1991, 1992).
On the surface many of these agencies appear to be committed to
a participatory development process that will encourage
community-based forest resource management, at least outside of
strict conservation areas. For example, the GEF sub-project will
allocate US$ 600,000 to a 'Community Resource Management
Programme'. The aim of this project is stated to be to encourage
'more enlightened practices of agricultural production and use
of forest resources ....(by) improving the ways in which
communities interact with their local forests in accordance with
the provision of a clear system of identifying and securing
property rights including land tenure and use as provided for
under the completion of the legal and institutional framework.
This would apply to all communities living in or on the periphery
of forests in the region but particularly to those adjacent to
the forests' (GEF 1991:47).
In the same way the World Bank espouses an approach 'built around
*existing community resource use* (which must) provide forest
dwellers with real incentives to improve resource management
....in the form of enforceable land use and access rights' (World
Bank 1992a:1). The Bank apparently visualises that 'Community
Forest Management Agreements', as summarised above, *would*
include the allocation of areas for shifting cultivation and for
the supply of forest products needed by the community (World Bank
1992a:6). The Bank also envisages that areas set aside for
commercial logging should continue to be available for
communities for 'harvesting on non-timber products, hunting etc.'
(Ibid:6). The involvement of NGOs to help achieve these
objectives is also stressed (Ibid:7).
However, it should be noted that these statements are entirely
at odds with the fact that the World Bank and GEF projects are
part of an international development assistance process which,
as detailed above, has promoted the evolution of national forest
policies and laws which directly contradict these goals. As the
World Bank notes, moreover, no local NGOs have been consulted
while its environmental assessment was carried out (World Bank
1992c).
*Conclusion*
The proposed legal framework in Laos, which has been developed
with international assistance and which is still seen as
fundamental to the World Bank and GEF projects (IUCN 1992:1),
needs to be substantially changed if the policy objectives
outlined in the World Bank and GEF project documents are to be
realised.
Whereas the proposed projects assert that communities need to be
given clear rights to the resources that they depend on, the
existing and draft laws on which these projects are predicated
deny these rights. Until these legal changes are made and policy
and institutional measures are introduced so that they can be
applied, the World Bank and GEF project monies *should not be
approved*.
This preconditionality is in line with the World Bank's express
policy on indigenous peoples which makes clear that 'land
regularization' should take place before project appraisal and
loan negotiation (Operational Directive 4.40).
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