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Some tenurial and legal aspects of agro-forestry

S. Kolade Adeyoju

Two major types of poverty exist in most developing countries: urban and rural. Urban poverty is largely the concern of the socio-economic and political experts. However, the causes of urban decay are not altogether unrelated to rural poverty, which is far more profound in its setting and complexity. Fortunately, however, because of low population density as well as poor infrastructural development, rural affairs are generally more amenable to the application of legal instruments than are urban questions.

Over the last eight or ten years, agro-forestry has been broadly accepted as a major strategy for alleviating rural poverty. While there is an increasing literature on the characteristics of agro-forestry and the policies to be adopted in its implementation, the appropriate legal framework has yet to be clearly defined. Although FAO (1978) and Chowdry (19821 have outlined the relevant institutional components of agro-forestry, these synopses do not include indications of the legislation needed. Indeed, it is hardly an easy task to do this because of the innumerable combinations of activities relevant to agroforestry. However, if we view it as a multiple land reform strategy, then we should be able to identify the land use practices which are obstacles to agro-forestry and also to make some suggestions about the set of laws and regulations needed to enhance its productivity. Thus the way in which land is held, inherited, acquired or disposed of, as well as the conditions enabling the farmer to transfer his land from agriculture to forestry or vice versa, or to make combinations of both from time to time, are the main concern of this paper.

Land Tenure and Agro-forestry Development

In all countries the process of agricultural production takes place within an institutional matrix. Within this matrix, the form of land tenure exerts a profound influence on the level and efficiency of agricultural production. It follows therefore that the land tenure system in any country tends to freeze the processes of agricultural production in their existing form. Similarly, the extent of agro-forestry and the involvement of local farmers are directly related to the flexibility or otherwise of the prevailing form of land tenure

For instance, in a society based predominantly on hunting and food gathering - a primitive form of agrosilvopastoralism - individuals attach considerable importance to the land. Man himself makes the minimum contribution to development in these circumstances, although his contribution may include eliminating infestations by insects and preventing depredations by wild animals. In this situation, the land as an input contributes about 70-80 per cent to agricultural development. The minimal contribution of man is matched by the informality that he initially attaches to arrangements for the utilization of land. These arrangements or working rules establish the patterns or modus operandi which all members of the community implicitly or explicitly agree to follow as each individual establishes rights of use over particular areas of land. In the African context, these arrangements have become customs or traditions so that we speak of the customary or traditional land tenure system.

As agriculture is the occupation of the majority of the population of developing countries any programme of development should take into full consideration the institutional aspects of the countries' agrarian structure. The land tenure system is an integral part of this and exists in several forms as shown in fig. 1. It is the family, existing as a corporate body, that has rights of "absolute" ownership in land under customary tenure arrangements. The head of the family ensures security of individual's rights over land through the exercise of rights of management and control as he acknowledges the opinions of other elder members of the family. On the whole, these systems of land tenure are not conducive to plantation agriculture let alone agro-forestry. The reason is that forestry practices are alien to traditional farming. It is no surprise therefore that the Nigerian First Developement Plan, 1962-68, recognizes that "traditional farming methods and systems of land tenure inhibit an extensive use of land for farming." For an extraneous enterprise such as forestry or agro-forestry, the implications may be quite considerable.

Again, the problem of land tenure was succinctly highlighted in the Second Nigerian Development Plan 1970-74. The authors of the plan recognized that "the prevailing land tenure system in the country sometimes hinders agricultural development . . . Ownership and control of food-crop land by individuals tend to be transitory . . . As a result of the system of inheritance, land owned by individuals or extended families also tend to become fragmented and scattered . . . If Nigeria's agriculture is then to develop very rapidly and have the desired impact on the standard of living, there must be reform in the system of land tenure." As this situation is not unique to Nigeria, the relevant solutions may, of course, not be dissimilar in other countries. Therefore if considered from the agro-forestry point of view, our concern with land is in its use and maintenance. Similarly, from the point of view of the farmer as an economic entrepreneur, the concern also focuses on ownership and other tenurial aspects of land.

FIG. 1. Main Forms of Rural Land Tenure

Forest Land Tenures and Agro-forestry

Ten types of forest land tenures have been identified (Adeyoju 1976). Table 1 is a summary of the various tenurial trends and attributes. The remarks for each tenure are largely indicative of the improvement potential. Many of these estates have unsettled tenure and are therefore prone to frequent use transfers. For instance, under types 2, 4, 5 and 10 it should be possible to introduce agro-forestry as a catalyst for tenurial stability.

Considering two factors of land tenure policy - economic efficiency and social progress - Famoriyo (1979) noted that the contribution of agricultural production to Nigerian development is very low. This is because agricultural land is "wasted" and mismanaged. Undoubtedly there is a need to promote more highly efficient utilization of resources through a land tenure policy. This need may be fulfilled by improvements in technology, creating flexibility in the land tenure system, taking adequate measures to prevent fragmentation and consolidating already fragmented areas. These tenurial improvements will be encouraged by agroforestry since this system strongly promotes a more sedentary type of farming than is traditionally practiced.

TABLE 1. Summary of Tropical Forest Tenure Attributes

Guidelines for Agro-forestry Land Tenures

What has been outlined in the last two sections relates to land tenure under two distinct production regimes agriculture and forestry. Because agro-forestry is a hybrid of the two, and also because planned and systematic agroforestry is only just emerging, no really pertinent forms of tenure can readily be cited. Therefore the purpose of this section is to highlight certain preconditions for tenures, which will be appropriate to agro-forestry.

General Considerations

Flexibility
Flexibility as an objective in land tenure implies that opportunities exist for movement along the agricultural ladder. It means introducing a tenure system which creates opportunities for industrious labourers to become farmers and for ambitious customary tenant farmers to acquire absolute interests in land. More important, it means that whoever wants to practice mixed farming including both specific forest crops and annuals will have authorization and legal support to continue his enterprise until the forest crops are due for hamest. Access to these opportunities should not be hindered.

Consequently, the policy that is envisaged should include provisions for facilities such as credit for capital formation, opportunity to market crops at reasonable prices, and the creation of adequate infrastructures. A system of land tenure that is flexible is never static. Rather, it is dynamic and it changes in accordance with the new social and economic features of the population for whom it is designed.

At present, those examples of agro-forestry that have, in general, been successful have been reported mainly from forest estates in Thailand, the Philippines and Nigeria. In the vast agricultural lands of tropical Africa, agro-forestry has yet to make a breakthrough. The reason is due largely to the inflexible system of land tenure as well as its attendant insecurity. Since the security of rights in land is crucial to agricultural development, measures to preserve such security should constitute the principal element of agro-forestry land tenure. Both accessibility to land and security of interests therein are closely related and should be the core of an agro-forestry land policy. We may therefore agree with Uchendu (1971) that the question of accessibility constitutes "the irreducible minimum criterion demanded for a productive tenure system." This condition is indisputably fundamental to the adoption of agro-forestry by peasant farmers.

Investment in land
The security of interests in land encourages the farmer to make necessary investments. In other words, provision of security creates the opportunity for the farmer to raise the status of agriculture from a susbistence base to one oriented towards investment. Agroforestry is far more capital-demanding than traditional agriculture and thus would constitute a major investment in rural areas.

The most important social objective of a land tenure policy is to facilitate the development of a well-integrated rural community. The trends in agro-forestry are strongly directed towards the development of prosperous rural communities, but again these efforts are localized within consolidated forest estates. Outside the forest estate, necessary incentives should be given to agro-forestry farmers whose willing participation will promote economic integration.

Conflicts and Complementary Effects between Objectives

In attempting to incorporate agro-forestry objectives within the frame of land tenure policy and legislation, it should be realized that objectives may conflict with each other, or, on the other hand, may be mutually complementary. For instance, a close relationship exists between security of tenure and rational conservation of soil in that a customary tenant farmer whose stay on the farm is short does not have a long-term interest in the land. Also a complementary relationship exists between the objectives of flexibility and security in land tenure. Where a land tenure system is sufficiently flexible to accommodate the more efficient methods made possible by progress in agriculture, it is only farmers whose interest in the land is secure and sustainable who will be inclined to adopt such methods.

Even between the two broad goals of economic efficiency and social progress conflicts may arise. For instance, where a political system is oriented towards eliminating the traditional system of agriculture in order to build a new and, it is hoped, more stable system, social progress may be hindered although the economic efficiency of agriculture may be improved. However, agro-forestry as a production system is not intended to eliminate, but rather to ameliorate and, where possible, transform traditional wasteful land use practices. Again it should be emphasized that in the execution of well planned agro-forestry projects, not only are the conflicts that may arise between the goals of economic efficiency and social progress less sharp, but it is often possible to achieve a satisfactory compromise between these goals, or even to make some progress in reaching both.

Legal Reforms to Remove Anomalies

Most of the forms of tenure listed in fig. 1 and table 1 coexist within each developing country. Suffice it to say that most of these forms of tenure are not easily adaptable to agro-forestry. Urgent efforts should therefore be made to redefine and/or codify such conditions and situations as:

- The role of forest reserves particularly with regard to their currently exclusive or restrictive use;
- The type of land usable for agro-forestry and the variety of crops permissible;
- Derivation factors for the sharing of revenue from individual economic trees on farmlands;
- The role of forest guards (protection staff) with regard to their activities outside the forest estate;
- Mandatory technical assistance that should be provided by both the agriculture and forestry departments to agro-foresters; and
- Inheritance of agroforestry lands.

Development Horizon

In the past, the main preoccupation of land tenure was to guarantee succession to rights in land for food production per se. Therefore in that context forestry tenure was alien. In modern times, however, the need to accelerate agricultural production from the vastly depleted soils and for the enlarged population has made land tenure a national rather than a local issue. In the wake of new programmes to increase food production the sacrosant status of forestry tenure is being persistently attacked. Indeed, considerable dereservation has taken place in many places for plantation agriculture of one type or another.

However, agriculture and forestry still remain distinct landuse regimes with their own relevant laws and tenurial arrangements. The food situation in many countries as well as their festering economic and social problems demand that the rigidly separate forms of tenure applied to land used for agriculture, forestry and livestock should be tempered by the startling realities of the day. In a situation in which the forest service is patently locking up land the vulnerability of forest tenure is self-evident. Impetus towards support for forestry will come from a population that is either visibly benefiting from forest management programmes or is less dependent on the agricultural economy. Agro-forestry is undeniably a key programme for mass participation and rural development (Adeyoju 1978), and therefore an indispensable tenurial ingredient. In this connection it should be noted that the real barriers to state action over forest land tenure are political and economic, not legal.

Again an interesting development has been observed in parts of Nigeria. Through the various rural forestry projects the loss of forest land to agriculture has been slightly compensated for by the steadily increasing number of converts to farm forestry. During the last decade the shortages of such produce as wrapping leaves, poles and firewood (which are critical to the domestic and food preparation habits of certain groups of Nigerians), have created a favourable atmosphere for private ownership of fairly large woodlots, particularly in the savannah zone. The thriving small forestry business of these private citizens (however few in number) refutes the previously held maxim that large tracts of forests are necessarily required to support processing plants. These rural forestry projects are generally devoid of tenurial problems in the short run, although the questions of inheritance and of succeeding rotations are still unsettled.

Projects of this type should not be imposed on land held under existing forms of tenure. At present, because the main objective is to satisfy the needs and preferences of local population, the projects are being executed without turmoil or upheavals. Therefore emphasis should be placed on the set of laws and regulations essential to successful agro-forestry in order to dispel the notion that the new efforts are an extension of the old-fashioned forest reservation policy.

If public participation is viewed as a means of mobilizing talent, expertise and special knowledge relevant to agroforestry, then such public involvement is completely consistent with the optimization of tenurial functions which land-use projects are expected to foster. Consequently, in order to obtain good tenurial adjustments and appropriate legislation, all affected parties need to be involved in both preliminary discussions and ultimate decisions.

To summarize. we have attempted as far as we can, to apply the theory of political economy to what has been, in the past, the mutually discriminating nature of agriculture and forestry. In order to develop a coherent philosophy of rural land management, of which agro-forestry is an important part, we should identify and stress the significant similarities and common objectives between forestry and all the other land use sectors. This approach should lead to a clarification of the tenurial options for development and the basis for legislation.

While we have distinguished between the traditional forestry and agricultural regimes, our intention is largely to draw attention to the problem of evolving the appropriate institutional framework for agro-forestry. Much additional work is needed in order to better delineate the variety of traditional land tenures and existing legislation on the one hand, and the requirements of agro-forestry on the other, as well as the means of obtaining the required information. This is a challenge to foresters, agriculturist and other specialists.

References

Adeyoju, S. Kolade. 1976. Land Tenure Problems and Tropical Forestry Development. FAO, Rome, 36 pp. FO FDT/76/5 (b). -. 1978. "People's Participation in Forestry for Local Community Development." Position Paper 1, 8th World

Forestry Congress, Jakarta, Indonesia, 24 pp. FRC/1-10. Anon. 1962. National Development Plan, 1962 68. The Federal Ministry of Economic Development, Lagos
- 1970. Second National Development Plan 1970-74. Federal Ministry of Economic Development and Reconstruction, Lagos.

Chowdry, K. 1982. Agro-forestry The Rural Poor and the Institutional Structures Position Paper, Workshop on Agro-forestry, Freiburg, 31 May - 5 June.

Famoriyo, S. 1979. Land Tenure and Agricultural Development in Nigeria. The Nigerian Institute of Social and Economic Research, Ibadan, 146 pp.

FAO. 1978. Forestry for Rural Communities. Rome, 56 pp.

Uchendu, V.C. 1971. The Conflict Between National Land Policies and Local Sovereignty Over Land in Tropical Africa. Seminar on Problems of Land Tenure in African Development held at the Afrika Studie Centrum, Leiden, Holland, 13-17 December.

Discussion

Five main aspects were discussed as follows:

Definition of "Agro-forestry" in order to focus on legal problems
Participants differed in the relative importance given to agriculture, forestry, livestock or general good land use, but laws relating to any of these will affect agroforestry. The exact role of cattle and small stock needs to be established. When are they beneficial and when destructive? What are local attitudes and regulations and government policy regarding livestock? How do tenure regulations relate to which is the best crop to interplant? Some crops such as potatoes and corn may have adverse effects on soil erosion. Fish-farming is another subject which may be integrated into agro-forestry, and will have legal aspects.

Laws protecting whose rights?
There are many conflicting rights - of government, Iand-owners, landless peasants, transhumants and other minority groups ("tribals") some of whom practice shifting cultivation. The latter's rights are often neglected or misunderstood and in some areas (e.g. India) this may affect thousands of desperate people. To what extent do the rights stress land use - or product use? There is an important distinction between rights of ownership and rights of use. "Communal rights" still exist in some areas, but are often highly adaptive to new circumstances, e.g. cocoa in Ghana led to land ownership using modified traditional forms; the mailo system in Uganda promoted cash-crops.

What laws?
There is a wide range of types of law, including national laws, regional or local regulations, and traditional laws regarding rights to land and to trees. The right to trees may not include the right to the land on which they grow. Are there too many laws, as was suggested in Colombia? Or is it inevitable that complex situations necessitate complex laws? What is important is that people have knowledge of the laws, and that laws support effective landuse planning. Some laws (e.g. colonization in Brazil) support "land-improvement" which may mean extensive tree-clearing, other laws over-protect trees, even forbidding a land-owner to fell certain species unless he pays high fees to the government.

Enforcement
Examples were provided from many countries of forest laws not being enforced, from shortage of officials. because people were not persuaded that laws were needed, or because it was easy to bribe forestry officials to turn a blind eye. Many other laws (on agrarian reform, land tenure, tax, marketing) affect agro-forestry, also. "Regulation is inimical to extension." If true, should forest regulatory activities (fees, permits. prosecution, all policing) be separated from educational and extension work?

What are the consequences of laws? Many laws are enacted without a thorough consideration of whether they are enforceable, or appropriate, or of what the benefits and costs will be - and to which groups. It is desirable (where countries have the capacity) to analyse the socioeconomic impacts of proposed legislation before making it into law.

Other Points from Discussion

- It was apparent that although specific situations are very diverse, there are certain universal legal principles which can be used (with appropriate modification) in analysing all cases.
- In considering legal aspects of agro-forestry, we should take a wide view and emphasize an integrated rural development approach, including all other relevant social and economic activities and institutions.
- An important legal aspect relates to the view from below, the knowledge, institutions and perceptions of the local people. Before introducing new laws, officials should understand the existing legal institutions and customs which govern land use rights and the organization of the means of production. In many cases it will be found that traditional institutions are foundering under intense pressures (population increase, land shortage). Indigenous technical knowledge, which includes an extensive knowledge of local vegetation and its properties, should also be taken into account: too often this is overlooked. For instance exotic species are often introduced when indigenous species may be more suitable. Before introducing new legal ways of resolving conflicts, existing institutions and methods should be examined to see if they can be modified and used. Ironically, success in agro-forestry ventures may well lead to an increase in conflict and litigation, as people scramble for new opportunities.
- Bureaucracy-any laws must take into account the existing bureaucratic structure, especially the hierarchy and responsibilities of different ministries. Where inter-ministry co-operation is lacking (a common situation in many vertically integrated ministries) the chance of new laws being introduced and effectively enforced is low.
- Information clearing house: finally, several participants stressed the need for a more effective means of communication, so that we can learn from each other's experiments and errors. Both FAO and ICRAF are working on this problem.

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