Downtoearth-indonesia.org – Indonesian CSOs are calling for the country’s REDD+ National Strategy, published in June last year, to be fully implemented to respect the rights of indigenous peoples and local communities. In a January statement, the Coalition for Saving Indonesian Forests and Global Climate, which includes the indigenous peoples’ alliance AMAN, Forests Watch Indonesia, HuMA, ICEL, KPSHK, Sawit Watch and Greenpeace, stated that the National Strategy:
…was prepared with an aim to improve Indonesian forest governance fundamentally and comprehensively. The preparation process was relatively transparent and has involved relevant stakeholders. It acknowledges that currently Indonesian forest governance is facing acute problems, which require extraordinary solutions, aside from ‘business as usual’ measures…
Along with the moratorium on clearing primary forests and peatland signed in May 2011, the REDD+ National Strategy is one of the agreed outcomes set out in the Letter of Intent (LoI) that Indonesia signed with Norway in May 2010 as part of a USD 1 billion REDD+ deal. In addition to the moratorium, the first ‘preparatory phase’ of the agreement, included:
- setting up a National REDD+ Agency (to be prepared by a REDD+ Task Force) to be fully operational by the end of 2011
- setting up an independent Monitoring, Reporting and Verification (MRV) Institution
- setting up an interim financing instrument to handle the preparatory phase
- developing a REDD+ National Strategy, into a national action plan, and which “proposes methods for implementing FPIC and equitable benefit-sharing”
- selecting a pilot province for REDD+.
The deadline for setting up the National REDD+ Agency has now been missed by more than one year. The long delay plus the apparent deprioritising of the REDD+ National Strategy (Stranas REDD+), published in June last year, is now causing concern among CSOs in the Coalition.
CSOs involved in consultations to develop the REDD+ National Strategy have pushed to ensure that it contains much of the language of reform they would like to see adopted in the forestry and other natural resource sectors. They are alarmed that the hard-won gains in the REDD+ National Strategy could be lost if it is deprioritised. One indication that this is happening, they say, is the fact that the Strategy has been afforded only weak legal status, through a decree issued by the head of the REDD+ Task Force whereas it should have been issued as a Presidential Regulation at the very least. Another indication is the fact that the National Strategy can’t be implemented because the President has not yet signed a draft regulation to establish the National REDD+ Agency, despite having received it in October 2012. The life of the Task Force has now been extended until the Agency has been established, with a new deadline of June 2013.
Land tenure reform, FPIC and human rights protections in the REDD+ strategy
Indonesia’s REDD+ National Strategy is a 40 page document prepared by the Indonesian REDD+ Task Force and published in June 2012. It has the long term goal of ensuring that Indonesia’s forests become a net carbon sink by 2030. The medium term goal is to achieve the 26-41% reduction in the country’s emissions over projected business as usual levels by 2020. The short term goal (2012-2014) is to improve institutions, governance, spatial plans, and the investment climate to fulfil Indonesia’s commitment to reduce greenhouse gas emissions while maintaining economic growth.
The Strategy sets out its human rights agenda as early as page five, under one of the five principles, where, under the principle of fairness, it states that:
“REDD+ is implemented on the basis of the principles of equality for all and human rights protection in forest management, including for women and communities vulnerable to socio-economic and environmental change.”(p.5)
It also provides for participation by civil society in the REDD+ Agency, whose members will include community groups, indigenous peoples’ organisations and CSOs as well as industry, academic institutions and representatives of government ministries and institutions (p.11).
Under the heading ‘Land Tenure Reform’, the Strategy states that people have a constitutional right to certainty over boundaries and management rights for natural resources. “Land tenure reform is an important prerequisite to create the conditions required for successful implementation of REDD+.” It then sets out that this will be pursued through:
1. Instruction by the Government to the Home Affairs Ministry and the National Land Agency to implement a survey of land occupied by indigenous peoples and other communities.
2. Support the National Land Agency to resolve land tenure disputes using existing statutory out-of-court settlement mechanisms.
3. Harmonization and revision of natural resources management regulations and policies to ensure the principle and processes of Free, Prior, and Informed Consent (FPIC) are internalized in the issuance of all permits for the exploitation of natural resources (p.18).
Under the ‘Conflict Resolution’ heading in a section on the Moratorium, there are more commitments on human rights. The steps to be taken on conflict resolution are:
a. Involve local communities in all processes, from planning to implementation and evaluation, throughout the new permit moratorium period;
b. Formulate alternative models for natural resource related conflict resolution based on the fulfilment of human rights as stipulated in international human rights conventions and national legal instruments that have adopted human rights principles;
c. Effectively take advantage of every opportunity to resolve conflicts through the application of local customs and practices, along with establishing a conflict resolution team with representatives from various sectors and independent parties;
d. Formulate regulations that require non-government institutions (including Forest Management Units run by State-Owned Enterprises) to formulate standard operational procedures which incorporate principles of inclusiveness through FPIC and other human rights standards. (p.20-21)
There is also encouraging text on sustainability under the ‘Strategic Programs’ section. Implicitly this challenges land use policies as currently practised and which promote mega-projects like MIFEE in Papua. Under a heading, ‘Implementation of an Economy Based on Sustainable Natural Resources Management’ the REDD+ Strategy states it is:
“based on best practices in the management of land for farming, plantations, silviculture and mining. The application of best practice principles is meant to increase the productivity of land without increasing emissions or the risk of other environmental damage, while ensuring adequate benefits from the exploitation of natural resources without expanding the size of cultivated areas.” (p.22)
There is also some attention to gender perspectives in the Strategy, included in a section about changing work paradigms and culture. Here, gender sensitivity is listed as one of five principles to be addressed (p.25).
A substantial section on safeguards (financial, social and environmental), states that social safeguards need to be designed specifically to protect and benefit vulnerable groups including indigenous peoples, local communities and women (p.29).
Free, Prior and Informed Consent (FPIC)
Under the ‘Stakeholder Participation’ section, there are several paragraphs under on implementing FPIC principles.
“The National REDD+ Agency is to implement and apply in all REDD+ programs and projects. The purpose of this approach is to ensure fairness and accountability for indigenous peoples and local communities whose lives and rights will be affected by REDD+ activities.” (p27).
The section sets out seven principles for implementing FPIC as follows:
1. The application of this protocol involves consultation with the relevant indigenous peoples, local communities, and other members of the public affected by the implementation of REDD+ programs/projects/activities;
2. Consultation is carried out without force, intimidation, manipulation, or pressure in any form to seek the consent of indigenous peoples and local communities who are potentially affected by REDD+ programs/projects/ activities;
3. Effective and fully participative consultation involves indigenous and local communities in every step and process that affects them either directly or indirectly. The participation of indigenous peoples can be done through their traditional authorities, or through representative organizations selected on the basis of traditional systems adhered to by the given indigenous community.
4. Consultation aims to achieve broad consensus or the specific agreement of the indigenous and local communities potentially affected. There are various forms of agreement: tentative agreement, temporary agreement, partial agreement, agreement with specific stipulations, agreement with other options, and full agreement; all of which are decided upon by the concerned public through legal mechanisms, indigenous law practices, or local traditions and habits;
5. Consultation is based on complete, balanced, honest, unbiased, and easily understood information concerning the alternatives and choices existing for the public within the implementation of REDD+ activities, along with the consequences of each alternative choice. This information is meant to create leeway for broad consensus, with all parties having access to existing opportunities;
6. Consultation with the public must be done within an adequate frame of time before permits are legalized or activities commenced, and must be done respectfully with adherence to all stipulations and time considerations required within the consultation process;
7. The FPIC consultation process is the beginning of ongoing or regular communication between members of the community and the would-be implementers of REDD+ activities. There must be agreement on the manner of public consultations, its protocols and mechanisms, including those for complaints and conflict resolution relating to each stage of REDD+ activities.
There is, however, no mention of the right to withhold consent as an option for indigenous peoples or communities.
Legal reforms required for REDD+ and the TAP MPR IX, 2001
Another potential strength of the Strategy is its reference to a key piece of legislation passed by Indonesia’s highest legislative body, the People’s Consultative Assembly (MPR), in 2001. The Assembly’s decree (TAP MPR IX, 2001, on Agrarian Renewal and Natural Resources) was intended to prepare the ground for the reform of all sectoral laws affecting land and natural resources management. Over a decade later, this decree has still not been implemented, but recently TAP MPR IX/2001 has been brought back onto the table in government discussions about land and land reform.
TAP MPR IX, 2001 is highlighted twice in the REDD+ National Strategy document, once under a section about reviewing and strengthening policies and regulations. Here, the Strategy sets out the REDD+ Agency’s mandate to establish a ‘climate-friendly’ legal framework. This, it says, will function as a more detailed manifestation of TAP MPR IX, 2001.
“The legal framework thus formulated will then function as the basis for evaluation, harmonization, and implementation of the various strategies for policy strengthening. These steps toward the review and perfecting of policies and regulations include, but are not limited to, the revision of regulations on Forestry and Spatial Planning. In this way, the implementation of REDD+ and overall improvements to forest and land use governance will have a solid legal basis.” (p17)
Second, under the ‘Legal Basis’ heading of a chapter about directing the implementation of the REDD+ National Strategy, the documents states:
“The National Strategy has been formulated to function as an integral part of the existing legal framework. However, to ensure its implementation, it is necessary to undertake reform of the existing legal framework so that it becomes stronger, clearer, and harmonized with forest and peatland resource management. Such a sustainable legal framework for the handling of climate change issues may be based on an interpretation of People’s Consultative Assembly Decree concerning the Reform of Agricultural and Natural Resource Management (No. IX/MPR/2001). The REDD+ Agency will coordinate within the scope of this legal framework.” (p.39)
A continuing debate
The call to implement the REDD+ National Strategy by the Coalition for Saving Indonesian Forests and Global Climate is a reflection of a strategic approach that many CSOs have adopted toward the question of REDD+. They fully recognise that REDD+ is accompanied by huge risks both in terms of impacts on people and forests as well as on the broader level of climate justice. They are clear too that the REDD+ National Strategy is far from perfect. As highlighted in a forthcoming analysis by HuMa, the obstacles to achieving the much-needed reforms identified in the Strategy are formidable. On top of the question of legal hierarchy, or lack of legal clout, the Strategy shifts the task of initiating the legal reforms to the yet-to-be-created REDD+ Agency, thus delaying any progress until that agency is created. While waiting for this to happen, says HuMa, conflicts over land and resources are growing in number, including in those areas which may be included under REDD+ schemes in future.
Another problem identified by HuMa is the fact that the Strategy draws its authority from laws – including the 1999 Forestry Law – that it has identified as in need of reform, which in turn makes the strategy’s own legal basis shaky. Also, the Strategy has failed to take on board last year’s decision by the Constitutional Court to restrict the application of the Forestry Law. The change requires the forestry ministry to go through four stages when determining an area as part of the state forest zone, whereas previously it merely had to ‘designate’ an area as forest. The new ruling means that forests could be at even greater risk of being grabbed by developers than they were before, but it also provides an opportunity to introduce the reforms that the National REDD+ Strategy says are needed. Either way, the Strategy should be based on current law, not the previous version.
Civil society involvement in the preparations to introduce REDD+ policies and programmes in Indonesia has at the very least succeeded in underlining the urgent need for thoroughgoing reform in the way the country’s natural resources are governed and managed. This need for reform, and the need make the recognition of human rights part of the policy framework for REDD+ is now being acknowledged in an official government strategy.
Meanwhile the effectiveness of REDD+ pilot schemes themselves is also increasingly in doubt. Although some significant areas of forest have been allocated to such schemes, their effectiveness has been widely questioned. There is little evidence that deforestation has slowed inside these set-asides. There is even less evidence that such schemes have slowed deforestation outside of them. REDD+ pilots have yet to lead to local communities securing tenurial rights and control of their lands and forests.
Furthermore, in view of the stalemate at the UNFCCC and the unlikelihood of the emergence of a cap-and-trade global market in ‘forest carbon’, international donors are increasingly worried that whatever forest set-asides are achieved under the national REDD+ programme are unlikely to be sustained without a continuing stream of financial rewards to investors and scheme operators. ‘We are concerned that REDD+ pilots schemes are just unsustainable enclaves that have little connection to, or influence on, wider land use plans. Without urgent action to secure local peoples’ control of such areas, these schemes will just fizzle out when the donors leave’ says Marcus Colchester of the UK-based Forest Peoples Programme.
 The National REDD+ Strategy is available in English athttp://www.satgasreddplus.org/download/150612.REDD+.National.Strategy.Indonesia.pdf and in Indonesian at http://www.satgasreddplus.org/download/180612.Strategi.Nasional.REDD+.pdf.
 See ‘Saving Indonesia’s Remaining Forests Can No Longer be Delayed’ by the Coalition for Saving Indonesian Forests and Global Climate, 28/Jan/2013.
 Draft 3 of the National Action Plan is available in Indonesian athttp://www.satgasreddplus.org/download/Draft_3_RAN_REDD+_12Des2012.pdf.
 SK Ketua Satgas REDD+ No. 02/SATGAS REDD PLUS/09/2012 tentang Strategi Nasional REDD+
 See statements made by representatives of Greenpeace Indonesia and HuMA at a press conference in Jakarta 28 January 2013, reported in Kompas 29/Jan/2013,http://nasional.kompas.com/read/2013/01/29/03045698/stranas.redd.terancam.sia-sia
 For fuller information on and discussion on FPIC principles and their application see Forest Peoples Programme at http://www.forestpeoples.org/guiding-principles/free-prior-and-informed-consent-fpic.
 See DTE 93-94, ‘Policies and practice: favouring big business over communities’ December 2012, for more background.
 Nasib Tenure dalam STRANAS REDD+, Perkumpulan HuMa, forthcoming.
 See Daemeter Consulting: ‘Constitutional Court Decision on Indonesia’s Forest Zone Could Lay Groundwork for Sustainable Low Emissions Development’ athttp://www.daemeter.org/news/constitutional-court-decision-on-indonesias-forest-zone-could-lay-groundwork-for-sustainable-low-emissions-development/and also ‘Indonesian CSOs call to save Indonesia’s remaining forests’, DTE 95, March 2013, for more background on the Constitutional Court’s decision and its implications.