The types of property rights over a resource guide resource access of local people, including the poor. Property rights refer to the rights to use a resource (Alchian & Demsetz, 1973). The terms 'rights' and 'rules' are interchangeably used in the literature.
Schlager and Ostrom (1992), however, emphasised the difference between them: ‘rights’ specify the rights to use the resource whereas ‘rules’ specify the resource to be taken. Commons (1968, p. 48) defined a property right as "the authority to undertake particular actions related to a specific domain". Rules exist to authorise particular actions for exercising the property right that an individual holds. A property rights regime for CPR management specifies rules as well as rights.
In the CBNRM literature, property rights to a natural resource are generally categorised into legal and customary (or traditional) rights (McCay & Acheson, 1987; Hanna & Munasinghe, 1995; Meinzen-Dick et al., 1997). Legal rights are also referred to in the literature as formal, official, de jure or written rights (Meinzen-Dick et al., 1997). 'De jure rights' are more narrowly defined because they must be backed up by statutory laws. Similarly, traditional, de facto, or customary rights often are used synonymously in the literature. ‘Customary rights’ as used in this study denote rights guided by customs, traditions, religious norms, or sociocultural norms (Warren & McCarthy, 2002). These rights are fundamentally embedded in complex social processes (Banana & Gombya- Ssembajjwe, 2000; McCarthy, 2005) and are perceived to be as strong as legal rights within the local community (McCay & Acheson, 1987; Mohamed-Katerere, 2001; Warren & McCarthy, 2002). Fitzpatrick (2005) and McCarthy (2005) describe customary rights as characterised by kinship or territory-based criteria for land access in developing countries.
'Access' is often referred to as a 'property right', but in fact they represent a very different notion. ‘Access’ is described as the right to enter and to use common-pool resources such as forests (Grima & Berkes, 1989; Schlager & Ostrom, 1992; Baumann, 2002; Neef et al., 2003). But it has been argued that natural resource analysts use the term 'access' frequently without defining it clearly (Ribot, 1998). Ribot and Peluso (2003) clarify the distinction between these terms:
'Access' is the ability to derive benefits from a resource whereas 'property rights ' is the right to benefit from a resource. 'Access' refers to a bundle of powers which highlights the importance of a wider range of social relationships that can constrain or enable an individual to benefit from a resource. But 'property rights' represent just a bundle of rights to benefit from a resource without considering the social relationships (pp. 153-154).
This definition makes the concept of access broader than the classical notion of property rights. People may have legal rights to a resource, but it does not mean that they have access to benefits (irrespective of customary rights). Access is influenced by physical as
well as social factors. Physical access and social access are important for people to obtain benefits from a resource.
Physical access implies accessibility in terms of proximity to the resource. An individual having physical access to the forest may not necessarily have social access. The notion of right to benefits is inadequate for understanding the access of the poor to the forest (Balakrishnan & Narayan, 1996). The notion of ability (also called capability) is required to understand access of the poor to the forest because it takes into account the social relationships, including individuals' influence and social position within particular sets of social relationships (Sen, 1993; Johnson, 2004). It is the social access that really determines what benefits an individual obtains from the resource (Mosse, 1997). Understanding access of the rural poor from the perspective of social access requires a focus on resource governance and the culture of the community (Larson, 2005).
A community in general includes poor and well-off people. They have different powers and positions in social relationships, and as a result they have different access to the resource benefits. Adhikari et al. (2004) found that poor people have more restricted access to products from community forests than do well-off households in the hills of Nepal. Adhikari (2002) also raises the issue of access to different types of forest products by poor and well-off people. Well-off people are able to obtain more forest products such as timber, fodder, grasses, and litter required to maintain their larger land and livestock assets than can poor people. Poor people may be fully dependent upon the forest for their firewood needs (for cooking food) but utilise low quantities of timber, fodder, grasses, and litter because they have smaller land and livestock assets (Adhikari, 2005).
Four types of property rights are described in the literature: state, private, common, and open access (Bromley, 2001). These rights determine who has access to the resource, who is excluded from using the resource, how the resource should be used, and whether or not these rights can be transferred (Ostrom, 1986). Under a state property right, ownership and management control of a resource are held by the state. An individual has an exclusive right to use a resource under a private property right (Bromley, 1991). Under a common property right, access is limited to a specific group of resource users who hold their rights in common (Ostrom, 1986). Under open access, resource use rights are neither exclusive nor transferable and these rights are owned in common but are open to everyone, therefore the property belongs to no one (Grima & Berkes, 1989). Open access denotes lack of ownership and control over a resource (Ciriacy-Wantrup & Bishop, 1975).
Although the theory differentiates these four types of property rights, in reality, they are not distinct and self-contained. Many resources are held in overlapping and sometimes conflicting combinations of these arrangements (McKean, 2000; Meinzen-Dick et al., 2001). Tachibana et al. (2001) and Meinzen-Dick et al. (2002) argue that many resources held under CBNRM regimes in developing countries may be under state property rights by law (i.e. de jure or legal state property), but a part of such resources is managed either under de facto (i.e. in practice or customary) common property, open access or private property rights. Common property rights theory emphasises the importance of a common property right for successful governance of a common-pool resource (Ostrom, 1990; Bromley, 2001). However, empirical studies report that the poor often cannot improve their access to the resource governed under common property rights (Adhikari, 2002; Shackleton et al., 2002; Shahbaz, 2003; Berkes, 2004; Fisher et al., 2004).
Common-pool resources are particular types of natural resources, the characteristics of which make it costly but not impossible to exclude potential beneficiaries from obtaining benefits from their use (Ostrom, 2003). Forests, ocean fisheries, and grasslands are some examples of common-pool resources. The term ‘common-pool resources’ is often used interchangeably with the term ‘common property resources’ in the literature, but this is not appropriate. Common property resources are the resources used in common by a group, and are governed under common property rights (Jodha, 1993). Not all common-pool resources are governed under common property rights (Meinzen-Dick et al., 2006).
Property rights have a significant influence on the way a resource is governed under a CBNRM regime with respect to access of the poor to the resource (Arnold, 2001; Di Gregorio et al., 2004). Two key aspects of property rights that are influential in this regard are: (i) legal rights introduced by CBNRM regimes, and (ii) customary rights and their relationship with legal rights (Khan, 1998a; Cleaver, 2000; Di Gregorio et al., 2004; Nemarundwe, 2004; Adhikari, 2005; Sunderlin, 2006).
Legal rights introduced by CBNRM Regimes
Four key factors regarding legal rights influence the access of the poor to a resource governed under CBNRM regimes: (i) the type of legal rights an individual has through CBNRM regimes, (ii) membership or non-membership of the group, (iii) legal security of the rights, and (iv) resource users’ awareness regarding the legal rights.
Under CBNRM regimes, a group of resource users can hold four types of legal rights, which indicate different levels of authority in governing a natural resource and impact on resource access (Schlager & Ostrom, 1992; Agrawal & Ostrom, 2001; Adger, 2003). These are: (i) right to use the resource (e.g. cutting firewood), (ii) right to manage the resource (e.g. planting seedlings, thinning trees), (iii) right to exclude (e.g. determine who else may use the resource), and (iv) right to alienate (e.g. to transfer rights to others, either by inheritance, sale, or gift) (Table 3.2). Authorised users have rights to enter the resource and use resource products. Claimants have rights to enter, withdraw, and also manage the resource. Proprietors hold the rights to enter, withdraw, and manage the resource, and exclude people without the user-rights benefiting from the resource. Owners possess full rights to enter, use, and manage the resource, exclude use by non- members, and sell (or control) the rights over the resource (Agrawal & Ostrom, 2001). Ostrom (1992) and Meinzen-Dick and Knox (2001) suggest that management and exclusion rights by user groups are essential for the success of CBNRM regimes in terms of conservation of the resource. However, little is said about whether these rights, if held by the poor, actually ensure that they have adequate access to the resource.
Table 3.2: Matrix of Common Property Rights over the Resource and Categories of Rights Holders
Right holders Rights to use Rights to
manage
Rights to exclude
Rights to alienate
Owners Yes Yes Yes Yes
Proprietors Yes Yes Yes No
Claimants Yes Yes No No
Authorised users Yes No No No
Source: Schlager & Ostrom, 1992; Agrawal & Ostrom, 2001
Khan (1998a) and Tachibana et al. (2001) reported that secure legal rights provide incentives to groups for managing forest resources successfully. In developing countries, the legal rights under CBNRM regimes often provide groups with the rights to use, manage and sometimes exclude other people, but usually not the right to alienate (Agrawal & Ostrom, 2001). All the members within a group are theoretically supposed to get such legal rights equally (Platteau, 1991; Adger & Luttrell, 2000). However, this often is not the case for a heterogeneous group consisting of users with different economic and social status (Bardhan & Dayton-Johnson, 2000; Agrawal & Gibson, 2001; Kumar, 2002; Adhikari et al., 2004). In the group, members with higher social and economic status
obtain a greater proportion of benefits than do members with lower social and economic status (Chopra et al., 1990; Singh et al., 1996; Hill & Shields, 1998; Beck & Ghosh, 2000; Johnson et al., 2003; Adhikari, 2005). The influence of 'culture' and resource governance mechanisms, including the individual attributes of people, may explain these inequities.
Under government-initiated CBNRM regimes, people often must pay fees to obtain membership in the group, through which they obtain legal rights for using and managing the resource (Adhikari, 2005; Thanh & Sikor, 2006). In developing countries, the poor often lack the ability to pay these fees, restricting them from membership and access to the resource (Clark, 2000; Abraham & Platteau, 2000; Mosimane & Aribeb, 2005). In many cases in developing countries, the elite, wealthier and more powerful people obtain legal rights through membership at the expense of the poor and women (Cooke, 2000; Platteau, 2000; Malla et al., 2003).
Local people’s awareness about their legal rights is important for them to be able to gain access through these rights (Lise, 2000; Mahapatra, 2001). Lise (2000) reported that when a joint government-village institutional arrangement for forest protection was introduced in India, many poor people did not know about their legal rights and so they did not obtain benefits from the forests. Studies from Bangladesh, Bolivia, Honduras, and Tanzania have shown that many poor people had no feeling of ownership due to lack of awareness about their legal rights, and as a result, they lacked motivation to protect forests and obtain benefits from them (Khan, 1998b; Lise, 2000; FAO, 2001b; Mustalahti, 2006; Sunderlin, 2006).
Customary rights and their relationship to legal rights
The influence of customary rights on resource access of the poor is guided by social norms in which the legitimacy of these rights is rooted (Cleaver, 2000). Customary rights are associated with complex interrelationships among local people for resource use (regardless of the quality of the resource) in developing countries, and they may constrain or facilitate the resource access of the poor (Banana & Gombya-Ssembajjwe, 2000; Banda, 2001; Porro et al., 2001; McCarthy, 2005). Jessup and Peluso (1986) reported in their study in Indonesia that customary rights received through inheritance help people secure their access to forest benefits, both for current and future use. Brosius et al. (1998) and Li (2002) reported that customary rights provide resource access to local communities in developing countries and enable them to manage resources effectively. Platteau (1996)
found that customary rights, guided by social hierarchical structures, favour the more powerful members of society in Sub-Saharan Africa.
In many developing countries, when legal rights were introduced through CPR regimes, these rights overruled customary rights, constraining resource access of the poor (Enters & Anderson, 2000; Shackleton et al.,2002; Sarin et al., 2003; Thongphanh, 2003; Ostrom, 2004; Elias & Wittman, 2005). Studies from India showed that when legal rights were introduced through joint forest management regimes, the customary rights of local people, including the poor, were neglected and their access to forest resources was not addressed (Nagothu, 2001; Sarin et al., 2003). Husain and Bhattacharya (2004) commented that through these regimes, the state focussed on holding the power to control local people’s roles in forest governance, rather than on the rights of local people to utilise forest resources for their livelihood needs. Once the legal rights were introduced, many customary users were excluded from legal membership, creating two divisions (i.e. members and non-members) in the community (Lavigne-Delville, 2000; Thoms et al., 2003; Oyono, 2005). Engel & Palmer (2006) found that in Indonesia the extent of influence of legal rights overruling customary rights to resource access is greater in heterogeneous (i.e. multi-ethnic) communities than in homogeneous (i.e. single ethnic) communities. It is the view of Benda-Beckmann (1995) and Hildyard et al. (2001) that legal rights introduced through CBNRM regimes, which do not consider customary rights, will negatively impact on the resource access of the poor because of the social embeddedness characteristics of the property rights.