RRI Dialogue - Published by the International Institute for Sustainable Development (IISD) in collaboration with the Rights and Resources Initiative (RRI)
The Fifteenth Rights and Resources Initiative (RRI) Dialogue on Forests, Governance, and Climate Change convened at the Newseum in Washington, DC, US, on 19 March 2014, under the theme of “Challenges of Carbon Rights and Implementing the New Warsaw Agreement on REDD+.” Approximately 100 participants attended the event, with over 500 more (from 65 countries) engaging virtually through a live webcast.
During the Dialogue, presentations and discussions focused on four topics: what happened in Warsaw and the implications for carbon rights and safeguards; the status of forest carbon rights today; the World Bank Methodological Framework; and the way forward on carbon rights, safeguards and REDD. Speakers discussed the challenges of establishing carbon rights and their linkages with land tenure. The adequacy of safeguards and when such safeguards should come into force was also discussed. Speakers also noted that the REDD+ preparation process has introduced changes in policymaking in some countries, while others noted that, in other countries, forest rights were threatened before the REDD+ agreement and questioned whether too much is being asked from the preparation process. Speakers also noted that work remains to create the investor confidence needed for carbon trade to occur, and that, in order for carbon trade to occur, it must be very clear who the seller is, who the owner is and what exactly the commodity being sold is.
A BRIEF HISTORY OF THE RRI DIALOGUES
RRI is a coalition of 13 Partners and over 140 collaborator organizations who are working to advance forest tenure, policy and market reforms. The initiative aims to promote greater global action on pro-poor forest policy and market reforms to increase household and community ownership, control and benefits from forests and land. The Rights and Resources Group (RRG), a non-profit organization based in Washington, D.C. (US), is the secretariat of this global initiative. The series of RRI Dialogues on Forests, Governance and Climate Change is designed to foster critical reflection and learning on forest governance, the rights of forest communities and Indigenous Peoples, and forest tenure in the context of global action to combat climate change, including REDD+. This series builds on the discussions of the International Conference on Rights, Forests and Climate Change, convened by RRI and Rainforest Foundation-Norway in October 2008.
Previous dialogues have focused on topics such as: the role of forest governance in achieving reduced emissions from deforestation; the status of forests in the global negotiations on climate change; the implications of the 15th session of the Conference of the Parties to the UN Framework Convention on Climate Change (UNFCCC COP 15) in December 2009 in Copenhagen and of the 16th session of the Conference of the Parties to the UNFCCC in November 2010 in Cancun (UNFCCC COP 16) for forest communities and Indigenous Peoples; common approaches to dealing with the challenges of food security and climate change in forests and agriculture; and scaling-up strategies to reduce emissions and advance development in forest areas. For more information on all of these events, visit: http://www.rightsandresources.org/
WARSAW REDD+ FRAMEWORK: The “Warsaw REDD+ framework” was adopted at the close of the Warsaw Climate Change Conference, which took place from 11-23 November 2013, in Poland. Delegates also adopted seven decisions on REDD+ finance, institutional arrangements and methodological issues.
CARBON FUND METHODOLOGICAL FRAMEWORK: The Methodological Framework is a set of 37 criteria and related indicators associated with five major aspects of Emission Reductions Programs: level of ambition, carbon accounting, safeguards, sustainable program design and implementation, and Emission Reductions Program transactions. It was developed over a twelve-month period, and was approved by Carbon Fund participants at the eighth meeting of the Carbon Fund, on 9 December 2013.
REPORT OF RRI 15
Arvind Khare, Executive Director, RRI, opened the Fifteenth Dialogue on Forest, Governance and Climate Change, on 19 March 2014. He recounted two recent developments: the agreement on REDD+, and the finalization of Methodological Framework of the World Bank’s Carbon Fund, which enables the purchase of titles to emission reductions from REDD+ countries. He characterized the Warsaw Framework for REDD+ and the finalization of the Methodological Framework as both extremely difficult and contentious, noting that they intersect human rights, intellectual property rights (IPRs), property rights, tenure rights and resource rights, and said there is apprehension that any centralized REDD agency may not respect the rights of communities.
Khare announced the RRI release of a map of Latin America’s Pacific Rim corridor, covering 29 million hectares, which shows that community rights in forests areas are endangered by mining, hydrocarbon, forestry, agro-industry and hydropower projects. He said the map provides quantifiable evidence that overlapping land claims are “rampant,” and highlighted the urgent need to create and implement more robust safeguards and legal mechanisms that protect community land rights. He added that the map will be used as one of the main planks in civil society talks leading up to the next Conference of the Parties to the UN Framework Convention on Climate Change (UNFCCC COP), scheduled to convened in Lima, Peru, in December 2014. He also announced the release of a report, titled “Status of Forest Carbon Rights and Implications for Communities, the Carbon Trade, and REDD+ Investments,” which surveyed 23 low- and middle-income countries in Africa, Asia and Latin America and found no laws governing how Indigenous Peoples and local communities could profit from the carbon in forests in which they live and depend on.
WHAT HAPPENED IN WARSAW AND WHAT ARE THE IMPLICATIONS FOR CARBON RIGHTS AND SAFEGUARDS?
Session Chair Andrew Steer, President and CEO, World Resources Institute (WRI), remarked that the global community now recognizes that carbon has value, but must grapple with the rights and safeguards implications involved in carbon rights. He noted that, when a new property right such as carbon rights is “brought to table,” there will be a scramble for ownership of the resource.
Daniela Rey, Founding Director, Climate Law and Policy, UK, discussed the implementation of REDD+ safeguards agreed at UNFCCC COP 19, which convened in Warsaw, Poland, in November 2013. She explained that the Warsaw Framework for REDD+ includes a “REDD+ Rulebook,” which aims to ensure a consistent set of rules are applied. She outlined the Rulebook’s key three requirements: all REDD+ activities are to be consistent with the seven safeguards adopted at COP 16, which convened in Cancun, Mexico (the “Cancun safeguards”), regardless of the source and types of funding; to access results-based payments, developing countries must develop and put into place a safeguards information system (SIS); and to access result-based payments, developing countries must provide a summary of how all Cancun safeguards are being addressed. She pointed out that the Cancun agreement calls for implementation according to relevant and applicable international obligations, but that this will depend on how countries interpret which international obligations are relevant and applicable. She also highlighted that there is little detail about what the SIS and summary must contain and that no process exists yet to assess them.
Rey stressed that proper implementation of the Cancun safeguards will require technical and financial assistance to ensure developing countries can fulfill the implementation and reporting obligations. She emphasized the importance of ensuring that not only developing countries apply the REDD+ Rulebook, but that donors are also applying the same set of rules.
Alexandre Corriveau-Bourque, RRI, discussed the challenges of establishing carbon rights based on the preliminary results of forthcoming research on the “Status of Forest Carbon Rights and Implications for Communities, the Carbon Trade, and REDD+ Investments.” He said the research reviewed the status of communities’ rights to carbon in 23 low- and middle-income countries, and found that only two have passed national legislation defining tenure rights over carbon while none have a national legal framework establishing rules and institutions to determine how carbon from REDD+ should be traded. He noted that contract laws are in place in 17 countries, which would assist with carbon trade, although they lack the necessary safeguards. He also noted that natural resource management laws do not clarify if communities can trade carbon, if government can trade carbon on their lands, or if rights to either or neither exist. He stressed that opaque legal systems do not favor local communities.
On the duration of tenure, he said the study found that 26 of the 60 legal instruments for land tenure are time-bound, which has implications for “permanence,” or guarantees for investors that carbon will remain stored. He highlighted that limited duration of tenure may serve as a deterrent for investment or limit autonomy, unless reforms are passed to extend rights. He noted that the lack of secure tenure was identified in many countries as a driver of deforestation, and underscored the need to clarify the rights and tenure to land and forests.
Evan Notman, Program Manager, Forests and Climate Change, US Agency for International Development, noted that clarity of what is expected for those engaging with REDD is important. He said a first step is to improve transparency around land tenure, planning processes and access to information about resources, which he said will provide the information needed for SIS.
Niranjali Amerasinghe, Director of the Climate Change Program, Center for International Environmental Law, asked participants to consider whether carbon is a property right and whether it is severable from other property rights. She asked if carbon can be separated from the land, and the tree from the community that it supports, and said carbon rights should not be separated from land rights. She also stressed the importance of SIS assessments, and questioned if they could be tied to biennial assessments at the international level.
During the ensuing discussion, one participant expressed concern that ongoing negotiations could be set back if the process needs to wait for the development of national policy. Another noted that there are overlapping rights in many cases, and questioned if the issue to be addressed is land rights, or the complexity of rights and unclear governance. Corriveau-Bourque said governments are moving in the direction of separate rights. Another participant asked about the implications of international obligations. Khare recalled that the Carbon Fund’s Methodological Framework (MF) requires that, to purchase emission reductions, the person transferring them must have the authority to transfer them. Amerasinghe noted that there is an assumption that carbon rights are separate, and highlighted the need to take into account the hierarchy of rights at both the national and international levels. A participant said there is a need to distinguish between rights and benefits, asked if the question regarding carbon rights is the right question, and suggested unpacking the rights that are associated with emissions reductions and how they would be treated in different jurisdictions. Another participant suggested considering incentives and developing different levels of incentives for different land owners. A third participant said the private sector is needed, together with a shift of capital markets toward preservation, adding that carbon rights need to be recognized in this regard.
STATUS OF FOREST CARBON RIGHTS TODAY
Session Chair David Hunter, Professor, American University Washington College of Law, emphasized that the goal of the session was to explore lessons from different countries and carbon trading regimes regarding how to safeguard the land tenure and security of communities and Indigenous Peoples.
Martijn Wilder, Partner, Baker & McKenzie, Australia, discussed national legal frameworks on REDD+. He urged caution with key terminology, such as “carbon rights,” and with assuming having tenure equates to having a permanent right to the carbon involved. He suggested that global agreements currently under negotiation may not be adopted and implemented by all countries. He observed that many concepts in REDD+ are quite new and do not fit easily into existing legal regimes and may require the establishment of new ones. He said among the issues to be addressed include determining: how best to secure community rights; clarifying what rights come with buying carbon credits and how to account for them; outlining the specific benefits are created; and defining how to minimize the risk of reversal.
Andrew Hedges, REDD+ Vice-Chair, Climate Markets & Investment Association, UK, commended the Climate, Community and Biodiversity Alliance (CCBA) Standards, which he characterized as having clear indicators on community rights, and suggested that CCBA validated projects provide a useful practical guide to understanding some of the issues involved in bringing communities into a project. He underscored that the lack of a real international regime governing carbon rights is a key investor concern. He also cautioned that some national regimes currently being developed may not fit well with the final version of the eventual international regime. He noted that “finding a path” to clear carbon rights necessitates clear agreement on benefit sharing. He stressed that clarity of carbon rights will be all the more important as the world moves away from project-based REDD+ schemes, to jurisdictional-scale schemes.
Sergio Madrid Zubirán, Executive Director, Mexican Civil Council for Sustainable Silviculture, discussed the experience of forest carbon markets in Mexico. He explained that social and community lands make up about 52% of the territory in Mexico, and said that communities have legal standing and have had input in creating the existing strategy, which recognizes them as the owner of shared lands. He said the owners of forest resources are recognized to be the owners of the land and therefore of the carbon resources. He said the strategy defines two types of rights: the right of avoided carbon emissions, and the right to forest resources. He said the REDD strategy is a forest management strategy and does not seek to leave the forests alone, but to manage them. He also highlighted examples, including a memorandum of understanding developed by two Mexican states and the US state of California regarding carbon trading; and emphasized the need to create a platform for dialogue to ensure that contracts are fair.
During the discussion, a participant asked if there are mechanisms to aggregate rights, and whether this would be possible. Another asked if it is only a question of the need for certainty of rights, noting that the private sector likes certainty but markets also like some risk. Other speakers: said it is a country-by-country issue of whether to land rights need to be overhauled; noted that these are new concepts and they often require a new legal system; said jurisdictional systems will need to get clarity and getting there is the tough part; and said that the debate on carbon rights is not only about land tenure.
Participants also highlighted the need to incorporate mechanisms to respect the rights of Indigenous Peoples and women. One speaker said 15 rights had been mentioned and asked if all rights are equal. A presenter noted that, although difficult, the process of putting together REDD preparation plans had led to the identification of best practices, and highlighted that the inclusion of a public vetting process pressures decision makers to reach the “right” results. Another participant asked if some jurisdictions have more onerous rules than others, if we are still talking about the same commodity, and who bears the cost of the risk of reversal? Another participant asked what the incentive structure is to keep the forests standing. A speaker concluded that the REDD discussion has created a policy space to revisit issues of community rights.
THE WORLD BANK METHODOLOGICAL FRAMEWORK: STATUS, CHALLENGES, AND OPPORTUNITIES
Session Chair Dan Zarin, Climate and Land Use Alliance, asked panelists to address whether the content of the Carbon Fund’s Methodological Framework (MF) successfully address the rights concerns of local communities and Indigenous Peoples.
Charles Di Leva, Chief Counsel, Environmental and International Law Unit, World Bank, said the MF “places meat on the bones” of the Cancun safeguards, providing legitimate criteria for REDD to take place. He explained that any Emissions Reduction Program Agreement (ERPA) accepted into the Carbon Fund portfolio must comply with applicable World Bank operational policies and procedures, including safeguard policies, as well as the Cancun safeguards. He emphasized the MF ensures that consultations with local communities and Indigenous People are meaningful, and REDD activities should not take place without the support of local communities or Indigenous Peoples, something omitted from the Cancun safeguards. He stressed that the MF is only final for the current five pilot countries, and can be adjusted in light of lessons learned from environmental and social assessments. He also underscored that the MF was developed with extensive input from many parties, including civil society. He said that the type of disclosure, participation, supervision and monitoring procedures should be seen as an opportunity for success for local communities and Indigenous Peoples looking to become involved in REDD.
Kate Horner, Director, Forest Campaigns, Environmental Investigation Agency, said despite the lengthy design process for the MF, it lacks sufficient guidance on safeguarding community rights. She mentioned several particular concerns including: the lack of a requirement for regimes to provide clear and equitable tenure, which may provide an incentive to nationalize the title to carbon rights; lack of clarity about the ability to transfer title; and the provision on subcontracting rights, which holds risks for Indigenous Peoples, who traditionally have difficulties in asserting their rights. She closed by noting that once an ERPA is signed, that country is not subject to subsequent MF revision, emphasizing the urgency to address the MF’s shortfalls.
Tom Griffiths, Forest Peoples Programme, UK, shared concerns emerging from his organization’s upcoming analysis of the Emissions Reduction Program Idea Note (ER-PIN) of the Democratic Republic of the Congo (DRC). He noted that the DRC has committed to the principle of free, prior and informed consent of communities in line with UN-REDD Programme guidelines, but that it is yet to be implemented on the ground. He noted several issues with the ER-PIN including: the lack of clarity regarding customary rights and community benefits; the analysis of local deforestation is flawed; the lack of social risk analysis and poverty impact analysis; and the lack of a means for ensuring adherence to safeguards. He said the ER-PIN falls short of the MF’s standards on at least six counts, and that the FCPF Participants Committee should request the government to redo the proposal and return to “REDD+ readiness” preparation before proceeding to design an ERPA under the Carbon Fund.
During the discussion on this issue, one participant noted that it is easy to criticize the Forest Carbon Partnership Facility (FCPF), but said some of these problems are related to REDD, and added that the tenure and rights issue is part of the broader picture. Another asked how to protect forests, conserve the environment and feed people at the same time, noting that it is not about maize, as annual crops eventually create deserts. Another participant called attention to the case of the DRC, where forests rights were threatened before REDD, cautioning that despite pressure to move forward with REDD, some countries are not ready.
Zarin highlighted questions of whether too much is being asked of the MF. Di Leva said the framework spells out a grievance mechanism, so there is a process to address project concerns. Griffiths said assumptions are being made without engaging actors at the local level. Khare noted that REDD has been set up in a manner that requires excellent underlying governing conditions, and noted that many countries with tropical forests have poor governance. Another participant said the FCPF is the result of many stakeholder participants and perspectives, and added that it is playing a role in bringing more participation into policy making processes in the countries in which it is active. He highlighted the need to consider the opportunities created, as well as the challenges.
Griffiths concluded that the lesson from the DRC is that if safeguard work is delayed, it will result in future grievances, and cautioned that, in the case of the DRC, without a rethink, we are facing a humanitarian catastrophe. Horner said the rights and tenure situation is complicated and there has not been sufficient time to address potential risks. Di Leva said there are enough safeguards that, if they are applied, the “right” outcome will be reached. Zarin noted that speakers had stressed the need to recognize that there are both risks and opportunities, as well as urgency in the situation, and that risks existed since before REDD.
WAY FORWARD ON CARBON RIGHTS, SAFEGUARDS AND REDD+
Session chair Jenny Springer, Director of Global Programs, RRI, summarized some of the key points from earlier sessions. She then posed three questions to the panelists: where do we see assurances for the communities that their rights and benefits will be respected? What kind of modifications can be made to existing safeguards and emission reduction policies to make the process credible to Indigenous Peoples and truly safeguard their rights? Can non-market schemes provide better win-win solutions?
Edwin Vásquez Campos, General Coordinator, Coordinator of Indigenous Organizations of the Amazon River Basin, pointed out that Indigenous Peoples in the Amazon River Basin do not have the carbon rights that their indigenous brothers do in Mexico, and Indigenous Peoples are often are excluded from consultations on major projects proposed for their lands. He pointed out that, throughout the Amazon Basin, any government that decides it has a priority national interest can pass a law or decree removing Indigenous Peoples from their lands and allow oil or mining projects. He said Indigenous Peoples usually have little recourse, explaining that is why Indigenous Peoples prioritize: legal protection for lands; protection against “carbon pirates;” as well as help in getting the training, information and preparation to participate effectively in REDD. He called for a new type of REDD program for the Amazon Basin, “REDD+ Amazonia,” which would include a framework protecting Indigenous Peoples.
Samuel Nguiffo, Secretary-General, Center for Environment and Development, Cameroon, said that REDD just adds another layer to an already complex set of commercial and community rights and that the track record of protecting community rights from other types of rights is not good. He suggested that, as currently designed, REDD processes will make it difficult to get the best protection for community rights. He said the broad nature of the Cancun safeguards was common in international agreements and not in itself a problem, as long as clear objectives are agreed, together with a clear, compulsory process that can be applied at the national level to ensure that community rights are protected. He called for clear rules on governments reporting their REDD+ progress, in both process and content, and a mechanism to allow communities to report on their own assessment of the government’s REDD+ performance.
As for the rights themselves, Nguiffo commented that since communities tend to see all resources as one, REDD+ rules are too complex, with the practical impact of excluding communities from the process. He also remarked that many perceive the market as the only option for REDD+, which he called “a false solution.” He declared that REDD+ cannot be built without the state, since it must set the rules and monitor and enforce, so the state needs to be strengthened so it can play its role properly.
Alexander Lotsch, Senior Carbon Specialist, World Bank, said the Methodological Framework offers a framework of broad principles and starts operationalizing the principles of REDD+, but it is not a blueprint or cookbook, and there is a need to learn through the implementation of the framework. He said it is an iterative, rather than a linear, process, and that REDD+ needs to be part of development, as it is not viable on its own as a financing program. He emphasized the need for a broad stakeholder base to ensure it becomes an integral part of the development process.
Penny Davies, Program Officer, Ford Foundation, said the risks associated with the Methodological Framework include encouraging proposing countries to create state entities or monopolies over forest carbon rights, and its potential to reduce or prohibit competition, which she said could lead to a “coercive” monopoly. She also highlighted the next steps for the Forest Carbon Partnership Facility Carbon Fund, including the need to include national level milestones and the development of a time-bound action plan, and called attention to the example of Forest Law Enforcement, Governance and Trade (FLEGT) agreements. She said greater clarity over rights is necessary before an emissions reduction program (ERP) is signed and before emissions reductions certificates are transferred to the Carbon Fund, and legal evidence on free, prior and informed consent agreements and independent auditing are necessary, although she cautioned against the moral hazard if only clean agreements are allowed, as countries may lose the incentive to sort out rights issues. In closing, she reiterated that a recognised and agreed system of independent monitoring should be required as part of any emissions reduction deal, thus satisfying public donors and the market that the Carbon Fund is not purchasing “conflict carbon” or externalizing conflict carbon as a liability held by others.
During the discussion, Nguiffo said a clear framework describing the legal requirements for moving forward could be added, including international commitments, to ensure that the rights of communities will be reflected. He also said any new project should be monitored by an independent body and not just the government, and there should be clear rules for access to justice.
A participant said the tenure language needs to be clarified, and stated that REDD is another program like land-for-nature-swaps and GEF projects, and is resulting in land grabbing to take Indigenous Peoples’ land. Another participant said the most important challenges to ensuring that REDD could work in the future are concerns with land rights and tenure security issues. Another speaker said any rush to implement REDD would lead to the risk of serious rights violations. Lotsch noted that the submissions from countries have improved in quality and are meeting a higher standard as the preparation process has progressed. Davies noted that FLEGT was not afraid to negotiate for over seven years with Malaysia, and still has not signed an agreement. She also highlighted that some private sector actors have been making commitments for zero deforestation and conflict-free products and are including these requirements into their contracts, and suggested that these provide lessons for carbon or emission reduction deals.
One participant expressed concern that the process of ensuring that safeguards are met, to the exclusion of every other element of a successful REDD mechanism is an example of thinking in silos, and said a multidimensional conversations were required to identify common ground. He added that we are in a crisis mode and need to move, and the forests will not wait for us to create the perfect mechanism. Khare cautioned that it is possible to create more damage by taking inappropriate action, and emphasized understanding the point of view of all stakeholders before moving forward.
Arvind Khare recounted the lessons he had drawn from the day’s discussions including that: legal systems in developing countries where REDD is being implemented are extremely weak, and are currently not equipped to handle new concepts such as carbon credit and carbon trade; significant work remains to be done to create the investor confidence needed for carbon trade to occur; in order for carbon trade to occur, clarification is required over who is the seller, who is the owner and what exactly is the commodity being sold; UNFCCC safeguards and World Bank policies alone will not change the underlying governance conditions in developing countries affecting carbon trade, and therefore greater investment is needed to help governments get their forest governance right and to prepare communities to effectively participate in processes affecting them, and to protect their rights. Khare closed the meeting at 5:00 pm.
For more Information, please consult the following website: HERE