1. Property Rights to Carbon in the Context of Climate Change
Grenville Barnes and Sheryl Quail
School of Forest Resources and Conservation
Geomatics Program
University of Florida
March 2009

2. Structure of Presentation
Introduction
Understanding Carbon pools and dynamics
Climate Change Mitigation Strategies
Who controls the major forest Carbon Pools
  Conceptualizing Property Rights
Defining Property Rights to Carbon
Conclusion 

3. How to formalize the transaction? What would prevent sale to others?
Who “owns” the tree?
How to formalize the transaction?
What would prevent sale to others?
How can conservation rights be
enforced?
What is a fair market price?
Jose’s $500 tree
(Acre, Brazil)

4. Need to define C property rights
“Clarifying both property rights to forestland and the legal rights and responsibilities of landowners is a vital pre-requisite for effective policy and enforcement… (Stern et al. 2007: 608)
Only when property rights are secure, on paper and in practice, will longer term investments in sustainable management become worthwhile. (OCC 2008: 58)
In order to create and deliver carbon credits to a carbon offset investor, project proponents must ensure that landownership and formal property rights are well defined and documented. This creates a special risk for developing countries that have inaccessible or costly land titling procedures.” (Randrianarisoa, Vitale & Pandya 2008)
“…time has come for property theorists to ‘reconstitute property’ to engage with the sociological and ecological [dimensions]…” (Boydell et al 2008)
“..property rights, far from being straightforward instruments of ownership, are nuanced and highly important to any system that essentially creates permits and offsets …” Allan & Bayliss 2005)
“The reason many natural resources are not traded efficiently in market systems is …. the good or service should be private rather than public…….” (Portela et al 2008: 13)
“Resolving the uncertainties surrounding legal title to the sequestered carbon is critical to securing its market value in a CDM transaction.” (Miller et al 2008: 166)
“Many REDD systems will create a new form of tradable commodity in the form of carbon rights…(PEP Report 2008)

5. Natural Carbon Cycle CO2 in Atmosphere Forest Carbon Ocean Carbon
photosynthesis
Ocean uptake
respiration
Ocean loss
Forest Carbon
Ocean Carbon
runoff
Fossil Carbon
decomposition
Soil Carbon

6. The Human Influence CO2 in Atmosphere Forest Carbon Ocean Carbon
Burning
Fossil
Fuels
Forest Carbon
Ocean Carbon
Warming temps
Acidification
Deforestation
Land Use Change
Forest clearing
Fossil Carbon
Soil Carbon
Forests cheapest option…

7. [http://www. globe. gov/fsl/html/templ. cgi[

8. Bali Action Plan – REDD (2007)
Kyoto Protocol
Bali Action Plan – REDD (2007)
Clean Development Mechanism (1 project)
emissions reduction from developed
countries to developing countries
Afforestation and reforestation (A/R) in
developing countries
World Bank –
Forest Carbon Partnership Facility
funds for capacity building and project design
BioCarbon Fund
A/R & REDD
Joint Implementation
emissions reductions between
developed countries
UN-REDD Programme
Chicago Climate Exchange (CCX)
European Union Emissions Trading System
Regional Greenhouse Gas Initiative (RGGI)
New South Wales ETS
Over the Counter (OTC) trades
Formal Markets
($128 B )
UK ETS
Voluntary Markets
($331 million – 2007)
Cap/trade
(Signatories)
C Emitting Companies

9. REDD focuses on forest carbon
Global Forest Coverage
Annual Net Change in Forest Area by Region ( )
[FAO 2005]
“… an estimated 20 billion tons of carbon could be released into the atmosphere over the next 20 years under a “business as usual” scenario in the Brazilian Amazon alone.” (Nepstad et al 2007)

10. Who Owns the world’s Forests (and Forest C)?
[White and Martin 2002]
22% of Forests in Developing Countries is reserved for or privately owned by communities – 2008 study shows trend continues…

11. FOREST TENURE 2008 – Latin America 2008 – Africa
99.7% administered by Government
(Data source: Sunderlin, Hatcher and Liddle 2008)

12. Property Lenses Conventional western views – Locke, Blackstone et al
Roman Law – the basis for civil law
Common Property Resources
‘Bundle’ of Property Rights paradigm
Web of interests
Layers of Rights and Interests

13. Roman Law Classification of Property
Tenure Regime
Definition
Examples
Res Communes
Things open to all by their inherent nature
(CO2 )
Air, sea, atmosphere? (open access)
Res Publicae
Things belonging to the public and open to the public by law
(sub-soil C; forest C?)
Roads, navigable rivers
(public property)
Res (Terra) Nullius
Things belonging to no-one
Unclaimed land, fish or game
Res Universitatis
Property belonging to a private or public group in its corporate capacity
(forest C in communities)
Private university, condominium (community property)
Res in Patrominium
Things that could be privately owned by an individual
(forest C on private land)
Land under private ownership
Open Access
State
Communal
Private

14. Web of Interests
… a set of interconnections among persons, groups, and entities each with some stake in an identifiable (but either tangible or intangible) object, which is at the center of the web. All of the interest holders are connected both to the object and to one another (Arnold 2002: 333).
Property Object

15. Property Regimes Carbon Pools
Global Commons
‘Right to pollute’
Carbon Dioxide
Carbon Monoxide
Methane
ATMOSPHERE
Blue Carbon
Gaseous Phase
(770G T)
NATURAL
RESOURCES
(FORESTS)
Timber, Extraction, Conservation Rights (concession)
Forest Carbon, Plants, Litter, Roots
Green Carbon
Biosphere
( G T)
LAND
Land Rights (title)
Soil (1.5 to 1.6 K T)
Mining/Mineral, Oil Rights (concessions)
Fossil Fuels
Sedimentary Rock
SUB-SOIL
Lithosphere
(66-100M T)
Gray Carbon
Territorial Sea
High Seas
OCEAN
Dissolved CO2
Calcium Carbonate
(38-40K T) [

16. Layer of Rights and Interests - Madre de Dios (Peru)
INDIGENOUS
COMMUNITIES
STATE
PRIVATE
Intangible Area
Conservation Concessions
Eco-Tourism Concessions
Reforestation Concessions
60 %
3-5 %
35-37 %
Buffer Zone
Forest Concessions
NATURAL
RESOURCES
Brazilnut Concessions
Communal Reserves
National
Parks
National
Reserves
Titled
Untitled
Certified
Titled
Recognized
Isolated
LAND
Mining Concessions (gold)
SUB-SOIL
Lotes Petroleros
Layer of Rights and Interests - Madre de Dios (Peru)

17. Tenure Situation in Communities - MAP Region
Pando - Bolivia N
Brazil
Peru
Bolivia
M(adre de Dios) – A(cre) – P(ando)

18. Pictures from the Amazon (2006)
moooooo…….
Spot the Forest Carbon?

19. Pando - Bolivia Land Tenure Spectrum Community Title Conditions
State (Parks/Fiscal)
State (forest concess)
Peasant Communities
Indigenous Communities
Private individual
Community Title Conditions
Inalienable
Indivisible
Imprescriptible
unattachable
irreversible
collective
+- 37% of Forest Carbon is on Communal Land

20. Land vs Resource Rights – Community in Pando (Bolivia)
Family Tree Tenure
Nucleated settlement – unity of title - individual and collective tree tenure -
[Source: Cronkleton and Albornoz 2007]

21. New Constitution – Bolivia (ratified in Jan 09)
Art. 348: “natural resources” = “minerals in any form, hydrocarbons, water, air, soil and sub-soil, forests, biodiversity, the electromagnetic spectrum and all of those elements and physical forces susceptible to use (aprovechamiento).”
These natural resources are regarded as “strategic in character and of public interest for the development of the country.”
Art. 349 further qualifies these natural resources as the “indivisible, imprescriptible, direct property and dominion of the Bolivian people, with the administration of the collective interest being the responsibility of the state.”
The state “will recognize, respect and authorize individual and collective property rights to the land, as well as use and improvement rights to other natural resources.”
Art Natural forests and forest soils have a strategic character for the development of the Bolivian people. The state will recognize use rights to the forest in favor of communities and private operators. It will also promote conservation and sustainable use, the generation of gross value to its products, and the rehabilitation and reforestation of degraded areas.
Public interest - state ownership on behalf of the nation -
C changes the scale as Public Interest could apply to international community [

22. Extractive Reserve -Brazil
Family house
Rubber Trail
Rubber Tree
Brazil nut Tree
State owns land
20/30 year usufruct concession
Unity of concession – family trails – individual tree tenure – spatial extent varies by resource

23. Extractive Reserve - Brazil
Family house
Brazil nut Trail
Rubber Trail
Rubber Tree
Brazil nut Tree
Unity of concession – family trails – family tree tenure – spatial extent varies on resource

24. Formalization of rights and transactions
A cadastre and registry is a land information system that provides legal security, public notice and a current, comprehensive record of property rights within a jurisdiction. It answers the following specific questions with respect to property rights:
WHAT is the nature of these rights?
WHO holds them?
WHEN were they acquired and duration?
HOW were they acquired?
WHERE are they located and what are their dimensions?
Could a ‘carbon cadastre’ be applied to C property rights ?
Could this be operated at a decentralized level?

25. Campesino Communities (Bolivia) Extractive Reserves (Brazil)
Summary of Property Rights Attributes
Campesino Communities (Bolivia)
Extractive Reserves (Brazil)
What Rights?
Titled to the community with restrictions of inalienable, indivisible, not attachable (no mortgages), irreversible, immune from prescription (adverse possession), and must be held collectively.
Community holds usufruct rights which are transferable via inheritance. The state or federal government continues to own the land under the extractive reserve and controls the use through a utilization plan.
Whose Rights?
Community with de facto division of forest resources to household in some instances. State regulates use of forest resources for commercial purposes.
Government holds the land rights, while community has usufruct rights over land resources.
Time and Duration?
Initiated on registration of title and no restriction on duration.
Usufruct concession usually stipulates 20 or 30 years
How Acquired?
Communal Title from government.
Federal or state government grant a usufruct concession. No title issued.
Spatial Dimensions?
Field adjudicated rectilinear boundaries with physical monumentation. Cadastral plan shows dimensions of outside boundary.
Family-level use rights are tied to location of rubber trails and trails that link them.

26. Land Administration Projects – Latin America
CARIBBEAN
Jamaica (BID)
Trinidad & Tobago (BID)
Bahamas (BID)
Republica Dominican (BID)
Antigua & OECS Countries (OAS)
Turks and Caicos (DFID)
Mexico (BM & BID)
SOUTH AMERICA
Guyana (BID, DFID)
Colombia (BID)
Ecuador (BID, BM)
Peru (BID, BM, USAID)
Brazil (BID)
Bolivia (BM, USAID, Ned, Nordic)
Paraguay (BID)
Surinam (Ned, BID)
CENTRAL AMERICA
Belize (BID)
Guatemala (BM)
Honduras (BM, UE, BID)
El Salvador (USAID, BM)
Nicaragua (BM, MCC)
Costa Rica (BID)
Panama (BM, BID)
Over $1 Billion invested in LAC on Property Formalization Projects (since 1996)

27. Lessons from Land Cadastre Initiatives
Tenure dynamics
inheritances
sales
rentals
subdivisions
Rapid De-formalization following titling (no buy in)
Narrow focus on individual, marketable property
Poor baseline data
Too much focus on land as opposed to key resources
“Ladder” of formal rights not just ‘title’
Tenure pluralism (indigenous vs colonial)
Conventional cadastres treat community-based tenure as a homogeneous polygon that assumes all internal rights are shared equally … (Ankersen & Barnes 2004)

28. Conclusions
Carbon flows across all property regimes
Weak government capacity and enforcement may change government
property into open access
Communities become key stakeholders in CC mitigation
CC hastens need to look beyond just land to key natural resources
How can we design programs that address CC and poverty alleviation
Thanks to Rights and Resources Initiative (RRI) for Support of this work..