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)