Documentation:Open Case Studies/FRST522/2020/Comparative study of the governance of community forest management in Nepal and Joint Forest Management in India

A comparison of some governance issues in community-based forest management in Nepal and India

Map depicting locations of Nepal and India

Summary

Community-based forest management (CBFM) is implemented in many countries around the globe with adaptations that suit the local context . After the failure of top down approach community-based participatory forest were introduced in India and Nepal in the 1970s . The narrative of CBFM became popular with Ostrom's common pool resource study in 1990 . The interest of the local people to manage the resources was supported by amending the policies and laws by the government and with the capacity building by I/NGOs and aid agencies. Despite similar socio-economic status of the forest users in both countries the CBFM has resulted in different effectiveness due to the autonomy provided. The community forests of Nepal have more rights and decision-making power compared to JFM and the Department of Forest (Nepal) is lenient compared to the Indian counterparts. The autonomy of local institution for good governance of natural resources in local level was found to be effective .

Keywords

Community forest, Joint Forest Management, Nepal, India, community-based forest management

History and Context

The community forests across Nepal follow the same guidelines and are granted under same national law whereas the JFM-participating communities in India falls under the respective state jurisdictions. Hence JFM-participating communities in each state have a different trajectory of development and strands in the bundle of rights.

In Nepal, for much of it’s history forests were not regulated and were treated as open access (there were no restrictions for the locals to collect the forest products) and often times they were managed under customary rights. Most parts of the country the population was small for the resources available. People were motivated to convert the forestland to agriculture land. In the 1920s the government of Nepal hired J.V. Collier (British forester) to improve timber felling in terai (the plains bordering India). “Collier produced a report in 1928, which suggested extensive clearing of the terai forests for conversion to agriculture and settlements”

The country was ruled from 1846 to 1951 under dictator Rana's family and they had given about one-third of total land to their close relatives and government employees. After a democratic government was established in the 1950s the forests adjoining India were still being exploited for settlement and as a source of timber exports to India. The government then decided to nationalize all the forest in 1957 to curb forest exploitation and elite clawback controls over resources. It did this through Private Forests Nationalization Act, 1957.

Though this law was enforced to strip the Rana family from their self-declared properties, the forests managed by locals under customary rights were also affected. This law created dissatisfaction among local people, and they started deforestation beyond the government's capacity to control. In 1959, the Ministry of Forestry was established, but it took two more years to promulgate the first Forest Act, which defined the forest types, duties and jurisdiction of the forest department, listed offence and penalties . It was realized that it is not possible to manage the forest without the local's support, and in 1977 the Forest Act was amended such that the locals could manage the nearby forest.

The Panchayat Forest and Panchayat Protected Forest operating rules were prepared in 1978, but this program was not successful as the users did not have a long term legally defined tenure, had limited decision making power and elite capture . The master plan for forestry sector prepared in 1989 recognized community-based forest management and was a steppingstone in the context of transfer of power to community forest user groups. After the restoration of multi-party democracy in 1990, the legislative provision was set out in the Forest Act of 1993, prioritizing community forests. The forest regulations and community forestry operational guidelines in 1995 created a legal framework by which the community forest user groups (CFUG) were handed over the forests. In the same year Federation of Community Forest Users Nepal (FECOFUN) was established. There have been a couple of amendments in the legislation that ensure women's participation and disadvantaged groups in the executive committee of CFUG for equitable benefit sharing. There has been a paradigm shift from policing to facilitation and extension, which has been made possible through the policy changes .

Before the colonization of India by the British East India Company, the common use and management along with customary practices were present. After colonization there was extensive exploitation of the forest and expansion of agricultural lands for higher revenue. Indian Forest Service began in 1864 led by Dr. Dietrich Brandis and the first Forest Act was enacted in 1865 which provided the forest service with the necessary jurisdiction. The colonial government labelled the people's customary rights to use the forest as a privilege that had become void after colonization . Indian Forest Act of 1878 classified forests as reserve forest, protected forest and village forests. The reserve forest and protected forests were demarcated in the ground but not the village forests during the colonial era.

After independence, the central government’s control over forest continued with strict legislative measures . The forest policy of 1952 continued to emphasize commercial forests over use by the local community. In that decade, princely owners had extensive clear-cutting before the post-colonial government nationalized their land .

After intense public agitation in northern and southern states, the government began pilot programs with community participation on forest land in the 1970s, which later was designated as the joint forest management programme. For the first time, the forest policy of 1988 focused on subsistence needs, protection of rights, and decentralization, which created a foundation for joint forest management (JFM) in India . In 1990 the government of India formally accepted the JFM and instructed all the states to resolve the land disputes in the forest. Panchayat Extension to Scheduled Areas Act (PESA) 1996 transferred power to village assembly over resources like NTFP. Forest Protection Committees (FPC) were formed at the village level for implementation of JFM. The guidelines in 2000 and 2002 have further expanded the scope of JFM by increasing women participation, extending JFM to good forest areas, contributing to the management of forest, increasing conflict resolution, and building capacity in non-timber forest product marketing .

Tenure Arrangements

"Tenure is generally defined as a “bundle of rights” and it can take many forms".The tenure in community forests in Nepal is the validity of the community forest’s operational plan and constitution, usually ten years. For most of the CF the operational plan gets renewed unless they have severely violated the terms of the operational plan. The revenue generated by the CF is used by the CF (except for the stumpage fees of high-value species for which a few percent must be paid as revenue). The Forest Act, 2019, which replaced the Forest Act, 1993, expands the provisions related to community forests, forest protection and enterprise development. There have been many debates over the proposed new taxations and the complexities of pre-approval to sell any forest products . Though the Act has been replaced other guidelines and bylaws have not been amended and the CFUG continue to follow the Community Forest Guidelines, 2009. Section five of the Forest Act, 2019 has the provisions for the handover of CF, taking back of CF, re-handing over of CF, punishment for contravening the work plan and expenditure for community forest development.

Rights shaping landscapes and livelihoods in Nepal

The forest users in India who had held the customary rights were most impacted by the colonial and post-colonial forest regulations, which took away most of their rights. They have limited withdrawal, management and exclusion rights and are highly dependent on the Forest Department for decision making. A proper legal framework that includes JFM is not present. The tenure in joint forest management is India varies according to state and is uncertain as the Forest Department can take back the JFM or allocate it to someone else. The FPCs are responsible for management of forest and enforcement of rules. Share of revenue between state government and forest protection committee ranges from 25 percent in West Bengal to 100 percent in Andhra Pradesh and other states in between.

Table 1: Bundle of rights in the framework described by Schlanger and Ostrum, 1992 (modified by RRI, 2012a )

	Community forests of Nepal	JFM in India
Operational-level rights
a)     Access	Yes	Yes
b)    Withdrawl	Yes	Yes
Collective choice rights
a)    Management b)    Exclusion c)    Alienation d)    Duration of rights e)    Extinguishability f)     Bequeathe	Yes Yes No 5-10 years No Yes	No No No 5-20 years No Yes

Institutional arrangements

In Nepal, the Ministry of Forest and Environment is the central policymaker for forest sector and gives directives and guidelines to the department. The policies and laws pass through the cabinet of ministers and get approved, and few are sent to parliament for approval after discussion.  Department of Forest supports the ministry to draft any revisions forest acts, laws and by laws and implement the forest development projects and plans. The Division Forest Offices and Sub-division Forest Offices are responsible for facilitating the locals to create the community forest operation plan and constitution, forming the community forest user group and approving the community forest constitutions and operation plan. It is also responsible for monitoring and collecting the revenues along with addressing the grievance of locals about CF. These are all government agencies, so they report frequently internally through reports and meetings. The Division and Sub-division Forest Offices carry out the enforcement of the Ministry of Forest and Environment laws. They are the initial point of contact for the locals. In addition to it, the technical manpower is involved directly in the communities as facilitators for aiding them in the management of CF. Although Nepal is a federal country with a decentralized administration, the natural resources are still controlled by the central government. The staff of the Division and Sub-division forest Office are not accountable to the local people. The CFUGs are autonomous institute that are responsible towards the local forest users. The executive committee in the CFUG are the elected members who are responsible for managing the CF for two to three years as specified in their constitution. in addition to it, they implement the CF constitution, levy fine to violators and carry out forest operations. At least 50% of the executive members should be women, pro-poor, ethnic and indigenous groups. One of the most influential and important organizations is the Federation of Community Forest Users Nepal (FECOFUN) which was established in 1995. FECOFUN coordinates among the member CFUGs and represents the CFUGs on local, district, provincial and federal levels. The members in the FECOFUN boards are elected from the CFUG representatives. FECOFUN has mounted pressure on the government to extend and strengthen CF all over the country, protects the rights of CFUGs and is a permanent vocal structure that has the ability to that .

In India, the central government’s Ministry of Environment and Forests is responsible for making the policies in consultation with the chief forester and Indian Forest Department. After going through cabinet of ministers, these policies and laws are sent to parliament where it is discussed and approved if majority of members agree to do so. The state government's laws that are then implemented as the state government are responsible for managing the forests. The types of community-based forest and rights differ among and within the states. Each state is free to set it's objectives for JFM within a broad limitation . The District Forest Office is responsible for enforcing the JFM policy, allocating the JFM, and overseeing it. The Forest Department makes rules about demarcation, forest management and collection of non-timber forest product and enforces them . The members of the JFM are elected to form Forest Protection Committee (FPC) which is responsible for managing the overall operations of the JFM. The duration of  FPCs in JFM vary from 5 years to 10 years in different states of India. There is provision of reservations for women, scheduled caste and tribes in FPCs to make the FPCs inclusive .

Table 2: Levels and functions of governance

	Nepal	India
Federal / Central government	Formation of policies. Enact laws and guidelines necessary for functioning of CF	Formation of policies and issuing circular for implementation of JFM
State government	Not applicable	Issue orders necessary to implement JFM
Department of Forest/Forest Department	Handover and termination of CF, monitoring and evaluation	Handover and termination of JFM, monitoring and evaluation
CFUG/FPC	Management and operation of CF with high level of autonomy for the duration of 2-3 years	Operation of JFM with less autonomy for the duration of 5-10 years.

Stakeholders

Affected Stakeholders

Affected stakeholders in Nepal’s community forest are: CFUGs, Local forest dependent population, Federation of Community Forest Users Nepal (FECOFUN)

CFUGs are responsible for managing the forest according to the CF constitution that they approved with the Division Forest Office. The local users are the priority for government to allocate the community forests as they are dependent on the forest and have customary rights. They are responsible for managing the forest after the community forest has been handed over to them.

FECOFUN represents these CF’s in national level with a team of experts who lobby with the government on behalf of these users. FECOFUN also actively protests and challenges the government if some legislative change that will restrict the users are being discussed in the Ministry of Forest and Environment. They are supported by other INGOs like CARE Nepal and have the capacity to challenge the government’s decision in court.

Affected stakeholders in India’s JFM are: FPCs, Local forest dependent population

FPCs are responsible for operations of JFM according to the agreement made with the Forest Department. The local forest dependent population are prioritized for JFM but it is not always the case.

Interested stakeholders

Interested stakeholders in Nepal’s community forest are: CARE Nepal, US Agency for International Development, Netherlands Development Organization, German Agency for Technical Cooperation (GIZ), The Centre for People and Forest (RECOFTC) and other donor agencies and I/NGOs. These INGOs and donor agencies operate different projects for community empowerment, entrepreneurship, and capacity building in community forest user groups. The inception of Nepal’s current community forestry program was a result of persuasion from Australian Agency for International Development and still these major donor agencies have a lot of influence over the Department of Forest. Research oriented non-profits like Forest Resources Studies and Action Team (ForestAction) provide policy advice to the government. Banchautari was established by ForestAction which is a forum where all stakeholder can hold discussion about different aspects of CF .

Interested stakeholders in India’s joint forest management are: World Wildlife Fund (WWF), World Conservation Union (IUCN), World Bank and other I/NGOs. WWF had filed a case against the Union of India in 1995 which led to changes in forest management. The donor agencies and INGOs press the government to implement participatory approach in forestry sector and operate projects in rural India. Japan International Cooperation Agency (JICA) is involved in capacity development in Forest Department for JFM.

Power Analysis

Table 3: CF in Nepal

High importance and high influence Government of Nepal and Ministry of Forest and Environment under it	High importance but low influence Forest dependent users, CFUG
Low importance but high influence INGOs and Donor agencies, FECOFUN	Low importance and low influence Local business and population not dependent on forest, University, Forest Resources Studies and Action Team

Table 4: JFM in India

High importance and high influence State government	High importance but low influence Central government, forest dependent locals, FPCs
Low importance but high influence INGOs and Donor agencies, Judiciary system, Forest product industry, tribal agency	Low importance and low influence Local business and population not dependent on forest, University

Discussion

Different management regimes in order of passive participation to active participation

The community-based forest management is not a panacea of all problems faced by the forest dependent population but if managed properly will help to alleviate some. While the CF in Nepal faces the problems of transparency and elite capture, the JFM in India face the same problem in larger extent. The policy change by Government of Nepal that navigated the issues in forestry and solved the participation and equity issues. The social hierarchy in the Indian society might be responsible in creating an invisible barrier to include some of the population but the intervention by Ministry of Tribal Affairs to include the scheduled tribes and traditional forest dwellers helpful . The Forest Department of India needs to have a shift in paradigm by changing it’s policing policy to a facilitating policy which provides more management rights to the users and focus on oversight, this particular approach has been successful in Nepal. Government actor's mistrust in JFM results in FDs exerting more authority eventually reducing the effectiveness of JFM .

The CF management is capable of contributing to social welfare to the users if there is active participation in implementation of CF operational plan as compensation for their participation . It has been found that promoting social security and cohesion through social inclusion policy which is in place increase participation of users in decision making process . The elite capture problem has been drastically reduced as a result of the government regulations requiring mandatory inclusive management committee. Despite the legal provisions the involvement of socially marginalized groups is substantially less in some community forests. The role of institutions like FECOFUN should not be undermined as it is a primary organization that is lobbying for the expansion of rights of CF with government. They are well equipped to do so as they have many offices around the country with foresters, lawyers and activists as employees and members .

The targeted pro-poor schemes like credit facilities and entrepreneurship opportunities have upgraded the status quo of that group. The decision making process could be improved by including the women and poor and expanding their leadership roles . When the hamlets (toles) are the first level in decision making then the participation and leadership skills of the users were increased. The networking of local groups and CFUG association, NGO’s brought synergy .

Not all decentralized forest management are truly decentralized as they are controlled by bureaucracy and absence of participation. JFM do not have any legal power to manage or protect the forest, the area was allocated by FD, not accountable to local democratic bodies. In addition to it often times decisions regarding forest protection, management, fund made by DF . Autonomy is a crucial characteristic of a self-governing organization. Autonomy of local institution for good governance of natural resources in local level found to be effective. This can be seen in customary rights and management practices present in the Naidu Village . Large scale community forests like Meadow Lake Community Forestry are not possible due to resources and technology constraints in both CF and JFM. The differences in policy, institutional environment and level of devolution of authorities is responsible for the different outcome in community-based forest management in these countries .

Recommendation

CF in Nepal

The funding from government for community forests is insufficient which hampers the newly formed community forests without any revenue sources. While direct financial incentives are not correlated with the participation , financial aid is required for the management of the forest in the initial years. The technical manpower in the Division Forest Office is insufficient or sometime not available for CF operation plan drafting, students from the Institute of Forestry could be mobilized as volunteers. Transparency and entrepreneurship are important traits of successful CF and this is to be spread in all CFs. Strict anti-corruption guidelines which apply to both employees of department of forest and the CFUG executive members are to be implemented. The pro-poor targeted programs need to be expanded to reduce the poverty and conflicts among the users. The inclusion of women, pro-poor and ethnic groups made mandatory by the Community Forest Guidelines, 2009 should be expanded to include more robust participation of these groups and to avoid pseudo-participation. Forest Act, 2019 needs to be amended to provide autonomy to the CFUG in forest product sales. The lessons learnt from the older CFUG should be disseminated to newer CFUG as it might help to enhance the efficiency . Acknowledgement of customary rights of the indigenous people by the CFUGs is recommended.

JFM in India

To resolve the lack of legal framework that supports JFM, JFM needs to be incorporated in the Indian Forest Act. More rights to JFM FPC and less control from the FD is essential for the better performance of JFM. Strict enforcement of anti-corruption measures in FD. More legislative interventions that ensure the rights and smooth functioning of JFM. Decentralization is recommended so that entity like JFM can devise their own rules. The FPCs should be provided with more autonomy to reduce the conflict among the forest dependent population and Forest Department. The FPC duration should not be more than 3 years for efficient functioning. FPC need to be more inclusive by including more women and tribes. Robust organization similar to FECOFUN is necessary to coordinate the JFMs, share the learnings and to minimize conflicts among the JFMs. Some percentage of revenue from the JFM should be used for implementing income generation activities for poor users. Restitution of the land lost by forest dependent tribes and indigenous groups under JFM is recommended.