Rights and tenure reforms: What are the legal issues that need resolving?

Although Vietnam’s Payment for Forest Environmental Services (PFES) programme has brought many benefits to the poor and to ethnic minorities, some ethnic Kinh people have deemed the current PFES programme unfair and discriminatory because the existing guidelines present barriers to their participation. Under the current policy, the Vietnamese government prioritizes allocating forest land and forest-related benefits to indigenous peoples. According to interviews with stakeholders, this makes it difficult for ethnic Kinh to participate in and benefit from PFES. Kinh people have also revealed that while they do not benefit from the current policy, they are still mobilized to protect the village forest when it burns or is encroached upon by outsiders. Participants in focus group discussion meetings indicated that they do not feel strongly committed to the protection of the forests because they lack formal land ownership, with many admitting that they only patrol forests on days for which they are paid, and claiming that it is the authorities’ responsibility to protect and patrol them on remaining days. This suggests that while the PFES programme in Vietnam has brought positive economic and social impacts to many participants, the programme’s focus on only one vulnerable group has undermined and reduced the incentives for other social groups to join. Forest tenure reform that expands land ownership to those responsible for protecting forests could mobilize greater resources and support towards forest protection (Pham et al. 2021^[1]).

The forests that REDD+ aims to protect are under threat not just from local stakeholders, but also, in many cases, from external claimants on local forests. These external claimants can be neighbouring villagers, seasonal migrants, colonists, ranchers and industrial enterprises of various kinds (e.g., soy in Brazil and oil palm in Indonesia).

Research from the Center for International Forestry Research’s Global Comparative Study (CIFOR GCS) on REDD+ looked at 71 villages at sites in five countries. The GCS found that in almost two-thirds of the villages there was ongoing external use of local forests, with almost a fifth of villages unsuccessful in their efforts to exclude outsiders.

It is essential to have enforceable rights of exclusion because the whole idea of REDD+ rests on not just the incentive but also the legal means to protect forests from outsiders. These rights of exclusion are also essential for protecting local livelihoods. Rights of exclusion can be sought through such instruments as legal title for smallholders and through tenure categories, such as hutan desa (village forest) and Ecosystem Restoration Concessions (ERCs) in Indonesia, and used to deflect industrial claims (Sunderlin et al. 2014^[2]).

Vietnam’s Forest Protection and Development Law 2004 was replaced by the new Forestry Law of 2017, which enhances the role, authority, obligation and responsibility of all Vietnamese government agencies for forest management. Under the new law, there is a stronger emphasis on the need to protect natural forests and, for the first time, an acknowledgement of religious and customary forests and the need to respect them. The 2017 law also promotes and prioritizes the participation of local people and ethnic minorities, households, individuals and communities of people with customs, traditions, culture, beliefs and traditions attached to forests. The new legislation is a step towards establishing a clear and secure tenure foundation by providing better clarification of forest ownership (Pham et al. 2019^[3]).