Consulting Study 10: Overview of existing regulatory mechanisms and relevant actors
A. Institutional framework governing the palm oil sector in Cameroon: A report on laws, regulations and practices B. Community rights and environmental protection in the laws and regulations of Indonesia
December 2015 Authors Consulting Study 10: Overview of existing regulatory mechanisms and relevant actors
Surin Suksuwan, David Hoyle, Pavithra Ramani, Mike Senior and Rebecca Smalley
Proforest Sdn Bhd Southeast Asia Regional Office Suite#303 MBE Desa Sri Hartamas No. 30G, Jalan 25/70A 50490 Kuala Lumpur, Malaysia. Tel: +60 (0) 3628 1114 Email: [email protected]
Consulting Study 10 A: Consulting Study 10 B: Institutional framework governing the palm Community rights and environmental protection oil sector in Cameroon: A report on laws, in the laws and regulations of Indonesia regulations and practices Bernadinus Steny, Yance Arizona and Gita Syahrani Anouska Perram (consultant lawyers)
Forest Peoples Programme Forest Peoples Programme 1c Fosseway Business Centre, Stratford Road, 1c Fosseway Business Centre, Stratford Road, Moreton-in-Marsh GL56 9NQ, United Kingdom. Moreton-in-Marsh GL56 9NQ, United Kingdom. Tel: +44 (0)1608 652893 Tel: +44 (0)1608 652893 Fax: +44 (0)1608 652878 [email protected] Fax: +44 (0)1608 652878 [email protected] www.forestpeoples.org www.forestpeoples.org
© The High Carbon Stock Science Study 2015
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This report has been independently prepared by the authors for the High Carbon Stock (HCS) Science Study. It is part of a series of consulting studies on high carbon stock, in the areas of biomass estimation, soil carbon dynamics, remote sensing, and socio-economics. Together, these consulting studies provide background information for the HCS Science Study’s synthesis report, but also they constitute stand-alone research that aims to shed light on this critical area of enquiry. Contents
Consulting Report 10: Overview of existing regulatory mechanisms and relevant actors
Acronyms and Abbreviations 05
Executive Summary 07
Section 1: Introduction 09 1.1 The sustainable palm oil manifesto and the HCS study 1.2 Objective of this study 10 Section 2: Methods 11 2.1 Identification of regulatory mechanisms 12 2.2 Review of international and regional regulatory mechanisms 2.3 National and local case studies 2.4 Analysis of socioeconomic benefits Section 3: Results 13 3.1 Key findings of the review of international and regional regulatory mechanisms 3.1.1 Relevance of regulatory mechanisms in strengthening of socio-economic benefits 3.1.2 Adoption of treaties 14 3.1.3 Issues Related to Compliance 15 3.2 Issues with operationalisation or interpretation 16 3.3 Assesment of the overall effectiveness of regulatory mechanisms 3.4 Key findings of FPP’s national and local case studies 18 3.4.1 Cameroon regulatory environment case study 3.4.2 Indonesia regulatory environment case study 20 3.4.2.1 The communal and individual subject 21 3.4.2.2 Procedure for recognition of rights 22 3.4.2.3 Recognition institutional support 3.4.2.4 The protection and empowerment of 23 rights Section 4: Synthesis and Recommendations 26 4.1 Best practice guidance 4.2 Mechanisms for implementing socio-economic safeguards 27 Annex 1: Outputs from the Review of Relevant Regulatory Mechanisms 28 Consulting Report 10A: Institutional framework governing the palm oil sector in Cameroon: A report on laws, regulations and practices
Introduction 126 Section 1: Overview of Cameroon’s Political and Administrative Context 127
Section 2: Climate Change Obligations and Practice in Cameroon 128
Section 3: The Palm Oil Sector in Cameroon and RSPO Standards 129
Section 4: Land Ownership and Planning Laws in Cameroon 130
Section 5: Forest Governance 135
Section 6: Environmental and Social Impact Assessment 137
Section 7: Effects of (Lack of) Participation of Communities in Plantations 139 (Including HCS/HCV Identification) Section 8: International Law Standards and their Status in Cameroon 140
Section 9: Assessment and Conclusion 143
Consulting Report 10B: Community rights and environmental protection in the laws and regulations of Indonesia
Foreword 146 Scope of Analysis 148 Executive Summary 149 Section 1: Regulations Regarding Rights and Carbon Stock 154 1.1 Human rights
1.2 Constitutional basis for community rights 157 1.3 Constitutional court rulings 159 1.4 Agrarian affairs 162 1.5 Land administration 165 1.6 Spatial planning 167 1.7 Environment 173 1.8 Conservation 180 1.9 Forestry 184 1.10 Plantations 190 1.11 Village 195 1.12 Local government regulation 199 1.13 Indigenous peoples draft bill 201 References 204 Consulting Study 10 Overview of existing regulatory mechanisms and relevant actors
Acronyms and Abbreviations
ACHP African Charter on Human and Peoples’ ESIA Environmental & Social Impact Rights Assessment ACRWC African Charter on the Rights and ESMP Environmental and social management Welfare of the Child plan ACWC ASEAN Commission for the Protection of FAO UN Food and Agriculture Organisation the Rights of Women and Children FCPF Forest Carbon Partnership Facility AMDAL Analisis Mengenai Dampak Lingkungan Hidup (Environmental Impact FFB Fresh fruit bunch Assessment) FPIC Free, prior and informed consent APL Areal Penggunaan Lain (Other Usage FPP Forest Peoples Programme Areas) FSC Forest Stewardship Council ALS Assessor Licensing Scheme GHG Greenhouse gas ASEAN Association of Southeast Asian Nations FIP Forest Investment Program AU African Union HCS High Carbon Stock BEI Banking Environment Initiative HCV High Conservation Value BPN Badan Pertanahan Negara (National Land Agency) HCVRN HCV Resource Network CAO Compliance Advisor Ombudsman HoB Heart of Borneo CBD Convention on Biological Diversity ICCPR UN Covenant of Civil and Political Rights CBO Community-based organisations ICERD International Convention on the Elimination of All Forms of Racial CCBA Climate, Community and Biodiversity Discrimination Alliance ICESCR UN Covenant on Economic, Social and CDM Clean Development Mechanism Cultural Rights CEACR Committee of Experts on the Application IFC International Finance Corporation of Conventions and Recommendations ILO International Labour Organisation CEDAW UN Convention on the Elimination of all forms of Discrimination against Women ISPO Indonesian Sustainable Palm Oil CGF Consumer Goods Forum KATR Kementerian Agraria dan Tata Ruang (Ministry of Agraria and Spatial Planning) COP Conference of Parties KLHK Kementerian Lingkungan Hidup dan CRC UN Convention on the Rights of the Kehutanan (Ministry of Environment and Child Forestry) EP Equator Principle KLHS Kajian Lingkungan Hidup Strategis EPF Equator Principles Financial Institution (Strategic Environmental Analysis)
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Acronyms and Abbreviations
KDPDTT Kementerian Desa dan Pembangunan UUPLH Undang-Undang Perlindungan dan Daerah Tertinggal dan Transmigrasi Pengelolaan Lingkungan Hidup (Law (Ministry of Villages, Development on Environmental Protection and of Underprivileged Regions and Management) Transmigration) WRI World Resources Institute LUCF Land use change and forestry MDG Millennium Development Goal NBSAP National Biodiversity Strategies and Action Plans NGO Non-governmental organisations PNG Papua New Guinea PS Performance Standard REDD Reduced Emission from Deforestation and (Forest) Degradation RSPO Roundtable on Sustainable Palm Oil SC Steering Committee SES Social and Environmental Standards TC Technical Committee TFA Tropical Forest Alliance TSC The Sustainability Consortium UDHR UN Declaration on Human Rights UKL-UPL Upaya Pengelolaan Lingkungan-Upaya Pemantauan Lingkungan (Environmental Management Efforts-Environmental Monitoring Efforts Reports) UN United Nations UNDRIP UN Declaration of the Rights of Indigenous Peoples UNFCCC UN Framework Convention on Climate Change UNHRC UN Human Rights Committee UUPA Undang-Undang Pokok Agraria (Basic Agrarian Law)
06 High Carbon Stock Science Study Consulting Study 10 Overview of existing regulatory mechanisms and relevant actors
Executive Summary
Proforest and FPP were engaged by the Technical The outputs from the review of regulatory mechanisms Committee of the High Carbon Stock (HCS) Study were analysed to identify commonalities; relative to undertake an overview of existing regulatory effectiveness based on an assessment of the content mechanisms and relevant actors, for the socio- relevance and degree of implementation; and key economic component of the HCS Study. attributes that affect their effectiveness.
The HCS socio-economic component’s core objectives The effectiveness of the identified international are as follows: and regional mechanisms was assessed on two key considerations, i.e. (a) the relevance of the content of • To generate suggested threshold values for the mechanism in strengthening the socio-economic greenhouse gas (GHG) emissions from HCS forests benefits of oil palm development; and (b) the degree that take account of the regional socio-economic to which the mechanism has been implemented at context in Southeast Asian and African countries the global, regional or national level. A simple scoring where new oil palm developments are planned. system based on these two criteria was developed with the overall effectiveness categorised as low, medium or • To provide guidance on how to accommodate the high. rights and livelihoods of local communities and indigenous peoples when implementing a future Based on the analysis, recommendations were HCS methodology for land-use planning. formulated on mechanisms for strengthening the socio- economic benefits of future oil palm development This report is specifically aimed at providing a (within the context of HCS implementation); and on comprehensive picture of existing regulatory how to ensure these measures accommodate the rights mechanisms and relevant actors at the international and livelihoods of local communities and indigenous level, and developing selected case studies to provide peoples. greater insights into regulatory mechanisms and actors at national and local levels. Increased understanding of On the whole regulatory mechanisms have not been the effectiveness of these various mechanisms gained very effective – none of the regulatory mechanisms through this study allowed for the identification of achieved a maximum score of 9 based on the scoring key implementation challenges and recommendations system developed. The highest score of 6 was achieved for improving the effectiveness of these mechanisms. by 11 regulatory mechanisms in total, namely ICESCR, Recommendations also provide guidance on which ILO, UDHR, UN Global Compact, IFC Principles, HCV mechanisms can best safeguard rights and livelihoods in Approach, RSPO, TFA, CCBA and CGF. Of the 11, only practice, and on the potential consequences of higher the first three are legally binding mechanisms while the or lower carbon thresholds in the context of relevant rest are voluntary mechanisms. regulatory mechanisms. Although international treaties contain many safeguards The main methods used for the study were desktop to protect the interests and rights of local communities, reviews and case study preparation. For the two they have generally not been very effective on their national-level case studies, two FPP lawyers carried out own, due to weak implementation. On the other hand, detailed reviews of the legal frameworks in Cameroon voluntary mechanisms, such as the RSPO and the CCB and Indonesia, which included taking into account how Standards (CCBA), have provided a more effective laws and procedures are applied in practice. means of implementation in some cases. It should be pointed out that the relatively better performance of A total number of 31 international, regional and voluntary mechanisms is to a large extent underpinned national regulatory mechanisms were selected for by the existence of the legally binding mechanisms. the review encompassing both legal instruments and Most of the voluntary standards assessed require voluntary mechanisms relevant to oil palm development companies to comply with international frameworks, and the rights and livelihoods of local communities. such as ILO Conventions, and so retain much of the
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strong content of these international frameworks. In cases where international binding mechanisms have not been translated into national laws, voluntary mechanisms can provide a much-needed “push” factor to motivate relevant actors, particularly those from the private sector, to adopt and implement practices that comply with international laws.
The effectiveness of legally binding international and regional mechanisms are, in turn, dependent on the respective national legal framework. This is well- illustrated by the two case studies developed by FPP.
Verification of compliance to regulatory mechanisms is still far from satisfactory, with key weaknesses being the heavy reliance on self-assessment or reporting by treaty parties in the case of legally binding treaties. For voluntary mechanisms key weaknesses are the sometimes variable quality of third party verifiers (where applicable) or of the verification methods used.
By committing to voluntary regulatory mechanisms such as the RSPO, Tropical Forest Alliance, etc. oil palm companies are more likely to deliver socio-economic benefits. Increased levels of transparency, accountability and public scrutiny, common features of these voluntary regulatory mechanisms, are key drivers that motivate positive actions by the companies.
The improvement and efficacy of regulatory frameworks, including voluntary mechanisms, has been strongly driven by civil society including NGOs and CBOs, particularly through advocacy efforts on company performances. In order to minimise reputational risks, it is beneficial for companies to engage in a dialogue with civil society, with the aim of making positive changes in response to these advocacy efforts. Increasingly, many NGOs have taken the approach of providing positive reinforcements publicly in recognition of efforts made by companies to meet requirements of regulatory frameworks, which is a further incentive for constructive engagement with civil society. It is critical that indigenous and tribal peoples are included in such dialogues as they are currently not adequately consulted with in the formulation and implementation of regulatory mechanisms.
Mechanisms to improve auditing and enforcement of voluntary standards, particularly on the implementation of FPIC and knowledge of requirements under international mechanisms (especially ILO) can further strengthen the role of voluntary standards in safeguarding socio-economic rights.
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Section 1: Introduction
1.1 The sustainable palm oil manifesto • Above and below ground biomass and the HCS study • Soil carbon The High Carbon Stock (HCS) study originates from the Sustainable Palm Oil Manifesto which is a commitment • Remote-sensing to achieve common objectives held by a group of key stakeholders in the palm oil industry: growers, traders, • Socio-economics and sustainable development processors, and end-users, to set higher standards for sustainability. • The global oil palm industry
Signatories of the Manifesto aim to enhance the work • Sustainability assessment of the Roundtable on Sustainable Palm Oil (RSPO) in three key areas: The TC work closely with a group of Research Consultants, and their work will be reported as a set i. Building traceable and transparent supply chains; of independent and publicly available reports. An independent and publicly available Synthesis report, ii. Accelerating the journey to “no deforestation” prepared by the TC, will recommend thresholds for through the conservation of HCS forests and the acceptable levels of GHG emissions, taking into account protection of peat areas regardless of depth; and environmental concerns, regional socio-economic contexts, and the practical considerations in developing iii. Increasing the focus on driving beneficial economic and managing economically viable oil palm plantations. change, ensuring a positive social impact on people The final report will be subject to transparent peer and communities. reviews and will be made public.
A key commitment in the Manifesto is the funding of The study aims to clearly define what constitutes HCS a scientific study to define HCS forests, determining forest, and establish HCS thresholds that takes into thresholds that take account of regional variations in account not only environmental concerns but also socio-economic conditions. socio-economic and political factors in developing and emerging economies. The study will take a wide-ranging A Steering Committee (SC), has been established to and practical approach, using robust scientific methods oversee the HCS Study. Members of the Steering to examine four key areas: Committee represent key players in the palm oil value chain which includes the signatories of the Manifesto, i. Biomass Wilmar International and an independent economic advisor for the agribusiness sector. ii. Soil carbon
A Technical Committee (TC) has been established iii. Remote sensing to guide and contribute to the HCS study. The TC comprise seven highly experienced scientists with iv. Socio-economics expertise in the following areas:
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1.2 Objective of this study This report is specifically on Study 1 which is aimed at providing a comprehensive picture of existing regulatory Proforest and FPP were invited by the Technical mechanisms and relevant actors at the international Committee of the High Carbon Stock (HCS) Study level, and developing selected case studies to provide to undertake an overview of existing regulatory greater insights into regulatory mechanisms and actors mechanisms and relevant actors, for the socio- at national and local levels. Increased understanding of economic component of the HCS Study. the effectiveness of these various mechanisms gained through this study allowed for the identification of The HCS socio-economic component’s core objective key implementation challenges and recommendations are as follows: for improving the effectiveness of these mechanisms. Recommendations also provide guidance on which • To generate suggested threshold values for GHG mechanisms can best safeguard rights and livelihoods in emissions from HCS forests that take account of practice, and on the potential consequences of higher the regional socio-economic context in Southeast or lower carbon thresholds in the context of relevant Asian and African countries where new oil palm regulatory mechanisms. developments are planned. The main methods used for the study were desktop • To provide guidance on how to accommodate the reviews and case study preparation. For the two rights and livelihoods of local communities and national-level case studies, two FPP lawyers carried out indigenous peoples when implementing a future HCS detailed reviews of the legal frameworks in Cameroon methodology for land-use planning. and Indonesia, which included taking into account how laws and procedures are applied in practice. The socio-economic studies will help develop greater understanding of the socio-economic impacts of oil In carrying out this study, the project team was guided palm development, both positive and negative. Possible by the following key questions: impacts of oil palm expansion due to the imposition of differing GHG emissions thresholds (as part of an HCS • Which institutional features and mechanisms are methodology) can then be inferred. This would in turn the most effective at governing the palm oil industry allow for a more informed approach in the definition to ensure the best possible outcomes for affected of appropriate HCS thresholds based on a sound communities, particularly in the context of the understanding of the trade-offs between emissions and introduction of new HCS requirements? socio-economic impacts. • What are the key constraints to their An analysis of the existing institutional framework implementation? governing the palm oil sector, to be carried out under the second objective, is aimed at improving knowledge of the effectiveness of these various mechanisms and the key implementation challenges. This would then be used to help provide guidance on how concerned companies can effectively accommodate the rights and livelihoods of affected communities within a HCS methodology.
There are altogether four Studies under the socio- economic component of the HCS Study:
• Study 1: Overview of existing regulatory mechanisms and relevant actors
• Study 2: Comparative studies of socio-economic impacts
• Study 3: Role of small-holders
• Study 4: Survey of stake-holder views on industry commitments to strengthening the rights and livelihoods of local communities
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Section 2: Methods
2.1 Identification of Regulatory International Convention on the Elimination of All 11. Mechanisms Forms of Racial Discrimination (ICERD) UN Declaration of the Rights of Indigenous Peoples An initial list of 30 international and national regulatory 12. mechanisms were selected for the review encompassing (UNDRIP) both legal instruments and voluntary mechanisms 13. New York Declaration on Forests relevant to oil palm development and the rights and livelihoods of local communities. Based on feedback 14. UN Millennium Development Goals received during the Synthesis Meeting of the HCS 15. UN Guiding Principles on Business and Human Rights Study’s Technical Committee on 27-28 April 2015, the list of regulatory mechanisms was revised to include UN Global Compact (incl. Food & Agricultural Business 16. more voluntary mechanisms and while several of the Principles) earlier-identified legally binding treaties/agreements (particularly those specific to ASEAN) were removed. 17. IFC Principles This was in order to provide a more balanced and 18. Equator Principles comprehensive picture of the existing regulatory Voluntary Guidelines on the Tenure of Land, Fisheries environment. 19. and Forests in the context of National Food Security
The final list of 31 regulatory mechanisms selected for 20. High Conservation Value (HCV) Approach review is as shown in Table 1. 21. Roundtable for Sustainable Palm Oil (RSPO) Table 1: List of regulatory mechanisms identified and review status. 22. Climate Community and Biodiversity Alliance 23. Tropical Forest Alliance Regulatory Mechanism 24. Consumer Goods Forum United Nations (UN) Convention on Biological 1. Diversity (CBD) & decision of parties 25. Indonesian Sustainable Palm Oil (ISPO)
2. Ramsar Convention Declaration on the Elimination of Violence Against 26. Women in the ASEAN Region UN Framework Convention on Climate Change 3. (UNFCCC) 27. ASEAN Agreement on Transboundary Haze Pollution UN Covenant on Economic, Social and Cultural Rights 4. ASEAN Agreement on the Conservation of Nature and (ICESCR) 28. Natural Resources 5. UN Covenant of Civil and Political Rights (ICCPR) Declaration on the Heart of Borneo Initiative (Brunei- 29. International Labour Organisation (ILO) Convention Indonesia-Malaysia) 6. 29: Forced Labour Convention (Convention Concerning Forced or Compulsory Labour) 30. African Charter on Human & Peoples’ Rights
ILO 105 (supplements ILO 29): Abolition of Forced 31. African Charter on the Rights and Welfare of the Child 7. Labour Convention
ILO 111: Discrimination in Respect of Employment 8. and Occupation or (Discrimination (Employment and Occupation) Convention
ILO 169: Indigenous and Tribal Peoples in Independent 9. Countries
10. UN Universal Declaration on Human Rights (UDHR)
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2.2 Review of international and regional regulatory mechanisms
In reviewing the regulatory mechanisms, a standard framework was adopted to ensure a more consistent approach in summarising our findings. This framework consists of the following elements:
• Summary (what it is about)
• Relevant weblinks
• Date of establishment
• Recent/expected developments
• Ratification
• Implementation – strengths & weaknesses
• Country level details
• Impacts on palm oil production
• Key actors
• Measures to promote compliance
2.3 National and local case studies
Two national-level case studies were prepared by FPP i.e. one each for Cameroon and Indonesia. In developing these case studies, FPP lawyers carried out detailed reviews of the legal frameworks in Cameroon and Indonesia, which took into account how laws and procedures are applied in practice.
2.4 Analysis of socio-economic benefits
The outputs from the review of regulatory mechanisms were analysed to identify commonalities; relative effectiveness based on an assessment of the content relevance and degree of implementation; and key attributes that affect their effectiveness.
Based on the analysis, we formulated recommendations on mechanisms for strengthening the socio-economic benefits of future oil palm development (within the context of HCS implementation); and on how to ensure these measures accommodate the rights and livelihoods of local communities and indigenous peoples.
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Section 3: Results
3.1 Key findings of the review of are expected to put in place national legislation to international and regional regulatory safeguard these rights, although the timeline for this is mechanisms not specified. The covenant provides a useful summary, along with the ILO conventions, of the minimum human The detailed outputs of the review of regulatory rights that should be secured in an HCS mechanism. mechanisms are as presented in Annex 1 below while this section presents the key findings of the review. The Millennium Development Goals (MDGs) were acknowledged to have been instrumental in inducing governments to take concrete actions and improve coordination in support of poverty reduction efforts, 3.1.1 Relevance of regulatory mechanisms in but a major gap identified is that agriculture was not strengthening of socio-economic benefits specifically mentioned in the MDGs even though most of the world’s poor are farmers. As most of the MDGs One of the targets of the New York Declaration on have a 2015 target, there are on-going efforts to Forests places emphasis on the rights and livelihoods formulate the post-2015 UN development agenda. This of local communities, i.e. “Strengthen forest presents an opportunity to highlight the contributions governance, transparency and the rule of law, while also of agriculture (including oil palm) in reducing poverty empowering communities and recognising the rights and hunger, and developing more specific targets of indigenous peoples, especially those pertaining to related to biodiversity impacts, food security and GHG their lands and resources.” Overall, this mechanism may emissions. lead to less deforestation due to oil palm expansion but with the safeguard that the rights and livelihoods of The ASEAN Agreement on Transboundary Haze indigenous peoples are taken into consideration. The Pollution can bring about socio-economic benefits action plans have more details on how to slow down for local communities including oil palm smallholders and eliminate deforestation but very vague on how local through community development projects implemented community needs would be addressed. as part of member state commitments under the Agreement. The long-awaited ratification of the The UNFCCC’s CDM and REDD+ mechanisms are Agreement by Indonesia and its on-going efforts to aimed to mitigate climate change through projects in restructure governance of natural resources present developing countries that are funded by developed opportunities for a renewed interest in implementing nations. Amongst CDM projects already funded more of such projects that could help reduce forest and include oil palm biofuel projects, some of which have peat fires, while improving the socio-economic status of been accused of human rights breaches. However, local communities. the UNFCCC has more recently developed social and environmental safeguards (the Cancun Safeguards) Many indigenous and local communities rely on to help address these risks and for use when REDD+ wetlands for their livelihoods (and of other non- gets going. These safeguards include land rights and provisioning ecosystem services). The Ramsar compensation. REDD+ could potentially provide Convention is one of the longest-standing funding to support companies setting-aside HCS areas environmental conventions that seeks to protect from conversion and so it will be important to align wetlands for people and wildlife. Often managed social safeguards under HCS methodologies with the collaboratively with communities, the presence Cancun safeguards. of Ramsar Sites can be a good indication of vital community use sites. However, not all important Numerous key UN human rights treaties, including wetlands are designated as Ramsar sites. ICERD, ICESCR and ICCPR, outline core human rights that should be respected. Of particular relevance to The CCB and REDD+ SES Standards are the only the palm oil sector are freedom of association, to self- voluntary standards that deal explicitly with carbon, determination, from discrimination and the right to an biodiversity and social benefits. The primary focus adequate standard of living. of the CCBA is to mitigate carbon emissions from deforestation whilst safeguarding biodiversity and The UN ICESCR outlines the human rights to work, fair community rights, including through sustainable conditions of employment, health, social security and agriculture projects. These three components the formation of trade unions. Parties to the Covenant makes them well aligned with a High Carbon Stock
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methodology. The scope of the CCB Standards covers Some international treaties have not been signed by ‘sustainable agriculture’ making it arguably the most palm oil-producing countries (see Table 2), for example, relevant of the mechanisms reviewed here. Malaysia is non-party to ICESCR or ICERD, while Indonesia and Malaysia are non-party to ICCPR. As outlined above, numerous UN human rights treaties are relevant to community and indigenous rights, but the UNDRIP specifically puts this issues into the Table 2: Ratification status of major international treaties (and context of indigenous groups. It is a non-binding relevant associated protocols in brackets) in major oil palm Declaration, but outlines the rights of indigenous producer countries. For non-binding treaties a ‘tick’ represents groups to participate in decision making, to self- a vote in favour/endorsement of the treaty. determine, the rights to compensation if deprived of subsistence and to be free from discrimination. UNDRIP can be considered more binding if a party has ratified International other UN treaties such as ICESCR, ICCPR and ICERD. treaty Ghana Nigeria Thailand Malaysia Indonesia ILO is a specialised agency of the UN which develops Cameroon international agreements/ mechanisms related to labour CBD (Nagoya and rights of indigenous and tribal people (e.g. ILO 169). Protocol) • • •(•) • • • Agreements are generally binding obligations on the states that have ratified the conventions. Ramsar • • • • • •
The primary purpose of ILO 169 is to ‘recognise the UNFCCC • • • • • • principle of respect for the identity and wishes of ICESCR the [indigenous peoples] concerned and to provide (Optional • • (•) • • • for the increased consultation with, and participation Protocol) by, these populations in decisions affecting them’. ICCPR Thus this convention aims to protect the rights of (Optional • •(•) • • • the peoples mentioned above, to guarantee respect Protocol) (•) for their integrity, and to empower their rights for decision-making and representation. In addition ILO 29 • • • • • • to this it aims to (1) ensure non-discrimination; ILO 105 • • • • • (2) requires special measures by Government to safeguard persons, institutions, property, labour, ILO 111 • • • • cultures and environment of these people; (3) requires ILO 169 • • • consultation and participation of these peoples in relation to development projects and other questions ICERD • • • • • of governance, etc.; and (4) respect their customary and traditional customs and ensuring equal benefits UNDRIP* • • • • Abstained • and rights like the other members of the national community.
It is said that the ILO 169 is the only international law Some international treaties have been signed but are that recognises the land ownership rights of indigenous still not ratified by palm oil-producing countries. For peoples. However, despite this, it is reported that the example Indonesia, Malaysia and Thailand have not ILO 169 convention has weak provisions on lands, ratified ILO 169 on rights of indigenous and tribal territories, resources and relocation. peoples and the latter two have also not ratified ILO 111. The CBD’s Nagoya Protocol specifically covers benefit sharing, but amongst major oil palm growers has 3.1.2 Adoption of treaties only been ratified by Indonesia.
At least one of the legally-binding mechanisms Some palm oil-producing countries take a long time reviewed is not in force as there are not enough to ratify international/regional treaties, for example ratifications e.g. 1985 ASEAN Agreement on the Indonesia took 12 years to ratify the ASEAN Agreement Conservation of Nature and Natural Resources. on Transboundary Haze Pollution. In the context of regional environmental and social governance, the “ASEAN Way” is generally typified by soft laws rather than hard laws. ASEAN’s style of regional engagement favours the protection of national sovereignty and the
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policy of non-interference, rather than acting for the conventions could lead to redundant reporting collective regional interest. Therefore, a single country’s requirements on countries already struggling to action or inaction can become a stumbling block. meet their current obligations under international conventions. Conventions/ treaties are sometimes ratified for political reasons e.g. to demonstrate a state’s As a minimum, ratification of the different frameworks commitment and progress on certain topics. It can be an provides international oversight and a measure of important step forward for certain states on particular transparency. However, weaknesses do lie in the topics, such as on human rights and rights of indigenous implementation and enforcement of these treaties and tribal people. However, while meant in good at the national level, because the enforcement intentions, states are not always well-prepared to put heavily relies on a country’s legal system. Thus the adequate provisions in place for implementation. Thus effectiveness of the treaty implementations is as strong ratification does not necessarily mean safeguarding of as the legal system it relies on. the treaties. Voluntary standards, such as the IFC and RSPO, while not able to achieve impact at scale, may have fewer and less complex issues related to compliance as 3.1.3 Issues related to compliance compared to multi-lateral treaties. In the case of many of these voluntary standards, verification of company Even for the ratified mechanisms, compliance or performance is required prior to receiving formal implementation remains an issue. For example, there approval. This can be a certificate in the case of RSPO, are reports on non-compliance in the implementation of or receiving investments, in the case of IFC. ILO 29 by Malaysia including concerns on treatment of migrant workers and trafficking of persons. Malaysia is In comparison to the international treaties, compliance one of a handful of countries which have not sent any auditing of voluntary standards (such as the RSPO) is reports for the past two or more years. typically stronger. However, one weakness of voluntary standards is the competency or effectiveness of third Many of the UN mechanisms do not have the direct party verifiers (which is not always required). Many authority to sanction states for non-compliances, voluntary standards make references to international which in turn contributes to weaknesses in the treaties and conventions without explicitly describing i m p l e m e n t a ti o n o f t r e a ti e s a t t h e n a ti o n a l l e v e l . what these requirements should look like in practice. Despite various mechanisms and treaties, violations of As a result, it has been observed that verification of human rights and the rights of indigenous and tribal compliance to these treaties has not been effectively peoples, are reported to be all too common. Oil palm done. This situation is exacerbated by capacity gaps plantations have frequently been accused of violating amongst the verifiers themselves as they do not always land rights, rights to benefits, rights to association and understand the content and aims of the international rights to fair and non-discriminatory work and benefits. treaties.
Human rights and the rights of indigenous and tribal Voluntary standards which are not specific to palm oil, peoples, whilst well represented in international law such as the Equator Principles, remain fairly weak in through the various mechanisms and treaties, are comparison to the RSPO which provides stronger and reported by rights’ advocates to be commonly violated more verifiable criteria targeted to the palm oil sector. in practice. Indeed, oil palm plantations have frequently However, it should be noted that this same weakness been accused of violating numerous human rights in verification also applies to most of the UN treaties covered in the central UN HR treaties and particular and covenants, but in a different form. Some of the ILO conventions, including land rights, rights to UN HR Covenants have Special Rapporteurs, but benefits, rights to association and rights to fair and non- much reporting and verification relies on parties’ discriminatory work and benefits. These issues have own communications that can only be verified by UN particularly restricted the rights of indigenous groups. Rapporteurs if agreed by the party itself. The same also Another weakness of the UN frameworks is that applies to many of the complaints mechanisms of UN many of these mechanisms do not have the direct treaties (e.g. ICERD), which allows individuals to raise authority to sanction states for non-compliances. This is complaints to a UN Committee if they feel the state has particularly the case on human rights issues. violated human rights, but only if the party recognises the competence of the committee (of major oil palm In the Southeast Asian context, it has been suggested growers, only Brazil has done this). that introducing regional ASEAN declarations and
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ICCPR and ICESCR include optional protocols allowing Development of national policies and implementation individuals to raise complaints against States for human at all levels requires expertise on all relevant socio- rights violations. There are independent commissions economic issues. This is not always available, and thus tasked with ruling on any complaints, providing a governmental implementers often lack the background theoretical means of sanctioning states for non- and expertise on these topics, which subsequently compliance. However, in practice of major oil palm adds to the challenges in the implementation of these producer countries, only Ghana and Cameroon have requirements. ratified the ICCPR optional protocol, and only Ghana the ICESCR optional protocol. Particularly for issues related to rights of indigenous and tribal peoples – it is critical for these groups to Generally, international frameworks such as the ILO be part of the interpretation of the convention at the conventions, are directed at the government and individual state levels. Wording of the provisions in not the private sector. Therefore frameworks for the some conventions (e.g. ILO 169) can allow for flexibility implementation of ILO conventions needs to exist at in interpretation, thus consultation and involvement the government level in order for the palm oil sector to of affected parties is key for effective implementation. benefit from it. In situations where national mechanisms There are criticisms by rights’ advocates that the have not been effective, it has led to project delays continuing violations of indigenous peoples’ rights is (e.g. IFC funded projects). Voluntary standards such also attributable to the fact that indigenous peoples are as the RSPO and IFC can play an important role in not adequately consulted with during interpretation of the implementation of certain ILO conventions as the conventions. it provides one mechanism for the private sector to implement some of the provisions within relevant ILO The 3rd edition of the CCB Standards in 2013 addresses conventions at the concession/site level. many of the criticisms levied in the past regarding what constitutes an adequate FPIC process and community The voluntary CCB Standards provide a fairly strong participation. In principle, the CCB Standards provide mechanism for safeguarding carbon, biodiversity and a mechanism that could allow oil palm development social benefits that requires third party verification. whilst safeguarding forest carbon stores, and areas However, the standard sets a high and costly bar to important for biodiversity and community use. This attain verification and only 20 projects have been could enable access to carbon financing that could fund verified globally, none of which incorporate commercial the missed opportunity and management costs of HCS agricultural production. set asides.
3.2 Issues with operationalisation or 3.3 Assessment of the overall interpretation effectiveness of regulatory mechanisms Socioeconomic issues are highly dynamic and in constant flux. Despite decades’ worth of treaties, The effectiveness of the identified international and requirements and safeguards on socio-economic regional was assessed on two key considerations, i.e. issues such as the protection of human, indigenous (a) the relevance of the content of the mechanism peoples and labour rights, challenges remain on the in strengthening the socio-economic benefits of oil interpretation and application of the safeguards. There palm development; and (b) the degree to which the is currently a lack of guidance on how many of these mechanism has been implemented at the global or requirements, both from the international/ regional regional level. A simple scoring system based on conventions standpoint and voluntary standards, these two criteria was developed with the overall can be implemented. The context varies significantly effectiveness categorised as low, medium or high. The from one country to another, let alone one village to results of this analysis is presented in Table 3 below. another. Thus providing a prescriptive approach on safeguarding many of the socio-economic issues is extremely challenging and near impossible. Guidance that is developed at a high level for regional or global application provides an extremely useful framework to operate within, however remains challenging in terms of implementation due to the lack of guidance on actually what to do in individual cases.
16 High Carbon Stock Science Study Consulting Study 10 Overview of existing regulatory mechanisms and relevant actors
Table 3: Effectiveness of regulatory mechanisms in strengthening socio-economic benefits of oil palm development.
Relevance of Degree of Overall Regulatory Mechanism Contents Implementation Effectiveness Legally Binding Multilateral Treaties United Nations (UN) Convention on Biological Diversity (CBD) & 1 decision of parties 1 2 2 2 Ramsar Convention 2 2 4 3 UN Framework Convention on Climate Change (UNFCCC) 2 1 2 4 UN Covenant on Economic, Social and Cultural Rights (ICESCR) 3 2 6 5 UN Covenant of Civil and Political Rights (ICCPR) 2 2 4 International Labour Organisation (ILO) Convention 29: Forced Labour Convention (Convention Concerning Forced or 6 & 7 Compulsory Labour) & 2 2 4 ILO 105 (supplements ILO 29): Abolition of Forced Labour Convention ILO 111: Discrimination in Respect of Employment and 8 Occupation or Discrimination (Employment and Occupation) 2 2 4 Convention. 9 ILO 169: Indigenous and Tribal Peoples in Independent Countries 3 2 6 10 UN Universal Declaration on Human Rights (UDHR) 3 2 6 International Convention on the Elimination of All Forms of Racial 11 Discrimination (ICERD) 2 2 4 12 UN Declaration of the Rights of Indigenous Peoples (UNDRIP) 3 1 3 Non-Binding Multilateral Declarations/Goals 13 New York Declaration on Forests 2 1 2 14 UN Millennium Development Goals 1 2 2 15 UN Guiding Principles on Business and Human Rights 2 2 4 16 UN Global Compact (incl. Food & Agricultural Business Principles) 3 2 6 Voluntary Standards 17 IFC Principles 3 2 6 18 Equator Principle 2 2 4 3 19 Voluntary Guidelines on the Tenure of Land, Fisheries and Forests 3 1 in the context of National Food Security 20. High Conservation Value (HCV) Approach 3 2 6 21 Roundtable for Sustainable Palm Oil (RSPO) 3 2 6
22 Climate Community and Biodiversity Alliance (CCBA) 3 2* 6 23. Tropical Forest Alliance 3 2 6 24 Consumer Goods Forum 3 2 6 25 Indonesian Sustainable Palm Oil (ISPO) 2 2 4 Regional Mechanisms 1 26 Declaration on the Elimination of Violence Against Women in the 1 1 ASEAN Region 27 ASEAN Agreement on Transboundary Haze Pollution 2 2 4 1 28 ASEAN Agreement on the Conservation of Nature and Natural 1 1 Resources Declaration on the Heart of Borneo Initiative (Brunei-Indonesia- 29 Malaysia) 2 2 4 3 30 African Charter on Human& Peoples’ Rights 3 1
31 African Charter on the Rights and Welfare of the Child 2 2 4
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Notes: engagement, Cameroon has no national interpretation of the RSPO principles and criteria, either existing or in Relevance of contents: 1 = marginally relevant; development. The reasons for this lack of engagement 2 = partly relevant; 3 = mostly relevant. with RSPO standards is unknown, but may be related to the continued important role of the (highly centralised Degree of implementation: and directive) State in the sector. Alternatively, it A. For legally binding treaties: 1 = Signed but not may reflect the difficulty of complying with RSPO ratified by most palm oil-producing countries; 2 = requirements in view of current national legislation. Ratified by most palm oil-producing countries and not fully implemented; 3 = Ratified by most or all palm oil- Successful implementation of HCS requires both the producing countries and mostly/fully implemented; creation of genuine, permanent set-asides, and the respect of community rights in relation to FPIC. The B. For non-binding mechanisms: 1 = poorly implementation of these elements is dependent on implemented; 2 = moderately implemented; 3 = well the national context. As we describe below, in relation implemented. to both areas the legislative context in Cameroon is challenging. Effectiveness in strengthening socio-economic benefits: product of (i) and (ii); 1-3 = Low; 4-6 = Cameroon has some, but a relatively limited, Medium; 9 = High. commitment under international climate change agreements (which is reflected in limited mitigation * CCB has yet to be used in an oil palm context, but actions at the national level). While it has ratified both implementation of projects is generally considered fair. the UNFCCC and the Kyoto Protocol, and has agreed to the (non-binding) Copenhagen Accord, as a non-Annex I country it is not bound by any specific targets, but 3.4 Key findings of FPP’s national and rather adopts Nationally Appropriate Mitigation Actions local case studies (NAMAs) developed by it. In respect of land use change, the NAMAs presently outlined by Cameroon are linked 1 The outputs of the two national and local case studies exclusively to REDD projects. on Cameroon and Indonesia by FPP (presented as stand-alone outputs) are summarised in the respective This approach is in fact broadly consistent with the sub-sections (3.41 and 3.4.2) below. approach of differential responsibilities for developing countries, which is adopted in the climate change conventions. Cameroon shows a degree of concern 3.4.1 Cameroon regulatory environment case study with climate change, but firmly places its overriding priority on national development and poverty While oil palm has been grown artisanally for centuries alleviation. in Cameroon, oil palm plantations, however, have been only a twentieth-century phenomenon. Initially State- This perspective is reflected in the national-level owned (under colonial rule and subsequently under the legal framework. While under its existing forestry early independence governments), following structural laws, Cameroon is required to maintain 30% forest adjustment policies of the 1980s and 1990s, most cover,2 the remainder of its forested areas (estimated plantations in Cameroon have been privatised, although at a further 30% of its total land area) are slated for the State remains a minority shareholder in a number of conversion to other uses. important oil palm companies. The focus on national development is echoed in the Despite this history, the role of voluntary standards approach to land management and property rights in the sector in Cameroon has been minimal to date. under Cameroon national laws. Although local peoples The owners of most of the major plantations are not and communities continue de facto to own and use members of the RSPO, and the only complaint which land in accordance with customary laws, national laws has ever been made under the RSPO mechanism was provided extremely limited recognition of customary withdrawn after the company involved withdrew from land ownership, with the result that the vast majority membership. Of the various companies presently of communities and peoples have no formal legal operating in Cameroon, we are aware of only one which title to their customary lands (which lands the State is an RSPO member. No doubt as a result of this limited considers belong to it). In relation to forested areas in
1 We note a new National Mitigation Strategy is under development which may provide greater opportunities in this regard; however, based on previous communications to the UNFCCC, it seems likely that the strategy will focus more on reductions from industry and certain specific types of agriculture, rather than land use change.
2 This figure includes not only fully protected areas, but also forests in production. It will include both primary and secondary forests, as community use is generally permitted to continue within permanent forest areas.
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particular, neither communities nor individuals have • Unless companies are prepared to include such any mechanism to obtain property rights based on territories within their own concessions (and customary use, and their customary (sustainable) usage therefore pay taxes / rent in relation to them) – and of forested areas is therefore highly insecure. even potentially where they are prepared to do so – the imposition of HCS requirements over and Concessions granted over community lands are above national regulations may well be seen by generally negotiated with companies at a high level, the government as interference with its national with cursory or no community involvement. Because sovereignty and development plans. their ownership is not recognised, communities have limited or no ability to prevent a plantation from • In addition, oil palm is by no means the only proceeding on their customary lands, and moreover plantation crop being grown (or the only potential are not entitled to compensation for loss of land. The conversion use of lands) in Cameroon. Where HCS limited compensation which is payable is insufficient (by set-asides are outside concession areas, government some margin) to replace the loss of their lands, and the buy-in to the HCS concept (and agreement to complete loss of livelihood which this generally entails. protect such areas) will be essential, if the areas are genuinely to be protected for carbon storage, and These provisions of national law fall well below not simply developed for other uses. The exercise international and regional human rights standards, will be futile if the area avoided by an HCS-conscious which recognise the property rights of customary palm oil company can simply be used for a rubber communities on an equal basis with formal individual plantation instead. property rights, protected by an obligation to seek the free, prior and informed consent of such communities • Current legal frameworks in relation to local before undertaking activities which affect their lands. communities’ and indigenous peoples’ rights are vastly below the standards required to meet both The practical result of this approach to the granting of international law norms, and the HCS requirement concessions is that, when a plantation is developed, of FPIC. Companies may of course seek to improve affected communities are often forced, out of economic on these standards in their actions, and we necessity, to begin using other lands (including would recommend that they do so. However, the potentially both lands belonging to other communities, existing national system provides limited room for which risks land conflict, as well as lands that have been manoeuvre in this respect: the procedures in place set aside for conservation). Because of the increased are not designed to facilitate FPIC. This would population pressure on community lands caused by therefore likely require at least the acquiescence the encroachment of plantations (and other uses), of government. For example, if a company wished traditional land use will often intensify and become to consult with communities before signing an unsustainable, leading to increased deforestation on agreement with government, or wished to provide community lands. Where livelihoods cannot be replaced a copy of its (usually confidential) agreement with by encroaching upon neighbouring lands, individuals government – both of which would be required may also seek to undertake higher risk/reward activities, in a normal FPIC process – this would need to be such as poaching, in an effort to sustain themselves. negotiated with the government itself, and could not be instituted unilaterally by the company. It should be noted that a number of relevant laws, including the forestry law and mining law, are • Moreover, any companies seeking to respect presently under revision in Cameroon. However, while communities’ FPIC may be seen as a threat to amendments may include some additional community government’s assertion of ownership of land (as the participation, it is not presently anticipated that these requirement for protection of set aside areas may new laws will provide significantly greater recognition of be seen as a threat to development). At present customary land rights. there appear to be multiple actors in the palm oil sector prepared to act without such scruples (as is Successful implementation of HCS requires protection evidenced by the general lack of RSPO member palm of set asides as well as respect for community rights oil companies operating in Cameroon and indeed (which are not unrelated). The most significant the withdrawal by one member company when a impediment to HCS implementation in Cameroon is RSPO complaint was made against it). This may make the lack of genuine political will on both these issues, unilateral company demands for higher standards in as evidenced by both the existing legal framework and order to comply with HCS difficult: where companies the practices of the administration. In the absence of make uncomfortable demands, the government engagement to generate political support for an HCS may choose simply to cease dealing with those methodology, there are likely to be insurmountable companies. obstacles to the successful implementation of the policy. In particular:
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• In the absence of adequate compensation or communities and the environment. The most prominent alternative livelihood options for communities, being those in human rights, Constitutional Court creation of oil palm plantations will increase the Rulings and the latest amendments to the laws on pressure on land resources. This will either result in Forestry and Villages. One of the amendments to the failure of real protection of HCS areas (because the Law on Forestry is the Constitutional Court communities are forced to use them for their Ruling Putusan MK 35/PUU-X/2012 which changed livelihoods) or the intensification of land use in other the paradigm of forest tenure (penguasaan hutan) areas to which communities have been displaced. in Indonesia. Forest tenure was previously solely (It may also involve significant additional human controlled by the State. Now, indigenous communities rights violations against community members whose have the tenurial rights and the right to control their activities are criminalised as a result of HCS offset customary forest. protection.) Other regulations which have had significant influence In summary, the HCS methodology appears to have on the constellation of land rights in Indonesia is little chance of success in Cameroon without efforts the establishment of the Law in Villages. In this to enlist genuine government support, and change Law, Customary Villages (Desa Adat) has the right to the national institutional framework, which does customary territory which is a village asset. One of not currently support either a land-use change- these assets is the customary forest (Hutan Adat). The based greenhouse gas emission reduction strategy implementation of the Law on Villages will influence or local community land rights. This difficulty arises the composition of territorial and forest area tenure in specifically because of the substitutable nature of Indonesia. carbon emissions, which means avoiding them in one location may not achieve any net result if it causes an Furthermore, environmental protection has been increase in another area (‘leakage’). Without changes formulated in a more decisive and robust manner to the national legal framework, application of HCS in in Law number 32 of 2009. Despite not specifically Cameroon risks becoming a green-washing activity, governing carbon issues, this Law has paved the way which benefits palm oil companies who themselves for more comprehensive environmental protection. avoid HCS areas, while not in fact creating overall The instruments provided to prevent environmental reduction in emissions or protection of high carbon destruction such as Strategic Environmental Analysis stock forests and which places an increased burden on (Kajian Lingkungan Hidup Strategis - KLHS) and local communities and indigenous peoples by restricting Environmental Permits (Izin Lingkungan) are new their rights. breakthroughs in the constellation of environmental law in Indonesia. The Environmental Impact Assessment (Analisis Mengenai Dampak Lingkungan Hidup - AMDAL) 3.4.2 Indonesia regulatory environment case study is also more stringently governed compared to the previous environmental law regime especially regarding This legal analysis studies laws and regulations public participation. regarding the rights of the indigenous communities and local communities and environmental protection. The Nevertheless, macro challenges remain equally present specific areas of analysis are rights to land, areas and in all areas. The greatest challenge is in Plantation and other natural resources and environmental provisions Conservation. There has been almost no significant which touch on carbon stock maintenance. The laws change in the plantation regime. The Constitutional and regulations analysed encompass Human Rights, Court Ruling Putusan MK 35 as well as the Law the 1945 Constitution, Constitutional Court Rulings, on Villages has changed nothing in the partially Agraria, Land Administration, Spatial Planning, the repressive nature of the plantation regime which is still Environment, Conservation, Forestry, Plantation, accelerating massively. Even the Constitutional Court Villages and sub-national legal products which govern Ruling Putusan MK 55 which has attempted to change the rights of Indigenous Peoples. No less important, the repressive nature of the Law on Plantations has not an analysis of the latest developments on the Draft been of much practical use. The Law on Plantations Bill on the Protection and Recognition of the Rights of remains in effect with regards to plantation expansions Indigenous Peoples (Masyarakat Hukum Adat). with the support of coercive State instruments.
The general findings regarding regulations in these On the other hand, Forestry appears to have initiated various areas demonstrate that many laws and a transformation towards becoming more open to regulations have been established in order to protect change. The relentless targeting of forestry from the rights of the Indigenous communities and local various levels has generated some breakthroughs such
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as the registration of land rights in forest areas. This have no familial ties to them. After the Constitutional new development allows the National Land Agency Court Ruling Putusan MK 35, individual land registration (Badan Pertanahan Nasional - BPN) to begin identifying may be done in forest areas. The 4 Ministers’ Joint and reinforcing the rights of indigenous communities. Regulation of 2014 provided a foundation for teams However, this provision does not come without at the District/Municipality level, as coordinated by challenges. The challenges in implementation come first the National Land Agency (BPN), to receive individual of all from the lack of readiness and funding support at rights claims in the forest area. The identification and the sub-national level. Without these, it would difficult verification outcome from these teams provide input for for the endeavours on recognising community rights in the Head of the BPN Office to propose the boundaries forested areas to operate effectively. and release of the forest area to the Ministry of Environment and Forestry (Kementerian Lingkungan With regards to plantation investment, this analysis Hidup dan Kehutanan - KLHK). The Decree on change specifically demonstrates the steps and pre-requisites of boundaries from the KLHK Minister can become the for the recognition and protection of rights in various legal foundation for the BPN to register and provide a laws and regulations. However, before summarising land ownership certificate. these options, the basic principle which must be underlined is that the compulsory regulations such as The following option is to utilise the Constitutional compliance to environmental standards and respect of Court Ruling Putusan MK No 35/PUU-X/2012. One of human rights are non-negotiable. The right to land and the basic issues in this ruling is recognising the claim a healthy environment is indivisible from each person. that Indigenous Peoples are legal subjects possessing Therefore, the compulsory nature of these regulations rights and responsibilities. The Constitutional Court are inherent in each State agency, business practitioner defines this as “constitutional rights”. Based on this and each person dealing with these rights. ruling, communal indigenous rights in forest areas can be recognised. The subject is the community, not the The steps and pre-requisites for the recognition individual. Previously, claiming rights to communal and protection of indigenous and local communities (ulayat) could not be done in the forest area as it is in various laws and regulations which govern the considered to be State forest area. After this Ruling, communal and individual subject’s right to claim their the Ministry of Forestry issued the Minister of Forestry rights to land, the procedures of recognition, the Regulation number 62 of 2013 which stipulated that support of government agencies towards recognition of the Regional Regulation will become the basis for the rights and the protection and empowerment of rights. Ministry of Environment and Forestry to release the The governance of each category is summarised briefly State forest area status. as follows: The third option is utilising the Law on Villages. According to this Law, the Village or Customary Village are entities or legal subjects possessing rights and 3.4.2.1 The communal and individual subject responsibilities. One of customary village’s rights is the Currently, there are at least three options which can original hereditary rights (hak asal-usul). The original be employed for claiming land rights. The first option is hereditary rights scope encompasses traditional employing the Basic Agrarian Law (UU Pokok Agraria - rights, management of customary village land asset UUPA) and regulations on land. There are two pathways and management of the communal land (ulayat). for the recognition of indigenous rights which are However, the Law on Villages does not possess a communal rights and individual rights. The stages for legal scenario should the village’s claim on the ulayat communal rights begins by claiming to be an Indigenous land be in a forest area. In this case, the scenario for People. This claim would be examined by a team of designating the village ulayat land must be related to experts established at the sub-national level charged the implementation of the Constitutional Court Ruling with the duty of investigating the validity of the claim. Putusan MK 35 in order for the claim to be legally The research findings would inform deliberations processed. towards establishing a Regional Government Regulation recognising the Indigenous Peoples.
The individual claim pathway follows the steps of land registration as stated in the land registration regulations (please refer to the exposition on land administration). The individual or applicant making the claim including for individual customary land must be able to show written proof of their tenure. If written proof is not available, the applicant may provide witnesses who
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3.4.2.2 Procedure for recognition of rights the Province of Central Kalimantan Regulation number 16 of 2008 regarding the Customary Dayak Institutions The recognition of communal as well as individual land in Central Kalimantan, Central Kalimantan Governor follows several stages. The regulations in the areas Regulation number 13 of 2009 regarding Customary of agraria, land, forestry, Joint Regulation of the Four Land and Customary Rights to Land, Malinau District Ministers, Regulations of the Minister of Home Affairs Regulation number 10 of 2012 regarding the regulated the procedures for recognition of land rights Recognition and Protection of Indigenous Community claimed by the indigenous and local communities. Rights, Lebak District Regulation number 32 of 2001 regarding the Protection of the Communal Ulayat Rights • Identification of the Baduy Community, the Sigi District Regulation This stage is for claiming the rights. A team or experts number 15 of 2014 regarding the Indigenous Peoples assembled by the Head of the District (Bupati)/ Empowerment and Protection and the Jayapura Mayor will conduct an identification encompassing District Regulation number 8 of 2012 regarding the the history of the Indigenous Peoples, customary Kampung (equivalent to village elsewhere). The majority territory, customary laws, the wealth or other of these regional government regulations (Peraturan properties, the institutions/system of customary Daerah - Perda) were generated by the regional political government. process, not through the legal stages as requested by the Law on Villages, the Constitutional Court Ruling • Verification Putusan MK 35 and its implementative regulations. The This stage is for further checking into the validity emergence of these regional government regulations of the claim detailed in the identification stage. were not initiated by the identification and verification The team may conduct a field inspection to ensure of rights process therefore the tangible object of the the consistency of physical facts as necessary. rights in the form of land and territorial rights are The verification or the territory or land includes not specifically stated. The only regional government an inspection of the claims made by other parties regulation to explicitly state the territory is the Lebak including overlaps with government tenure. In the District Regulation number 32 of 2001. This regional Ministry of Home Affairs Regulation Permendagri 52 government regulation directly states that the subject of 2014 this stage is followed by a statement on the being recognised, i.e. the Baduy Community and their validity or otherwise of the claim proposed. territory of 5.101 hectares.
• Stipulation Regions with regulations recognising the land and If the status as an Indigenous People has been territorial rights as well as the existence of Indigenous validated, the Regional Government issues a communities should be further supported by the stipulation designating the indigenous community National Government in identifying and verifying the as well as their claims to rights. However several claims of the Indigenous communities. The outcome types of rights cannot be immediately exercised as it of this process would become an annex to the existing remains within the forest area. regulation.
• Release from the forest area In cases where the claim is within the forest area, the District Government submits the Regional 3.4.2.3 Recognition institutional support Government Regulation recognising the Indigenous Peoples to the Ministry of Environment and Forestry Based on the laws and regulations, there are four (KLKH). Based on the Joint Regulation of the Four agencies responsible for the matters of Indigenous Ministers, the Directorate General of Spatial Design Peoples affairs which are the Ministry of Home Affairs at the Ministry will make the amendments to the (Kementerian Dalam Negeri - Kemendagri), Ministry of boundaries within 14 days. The amendments to Villages, Development of Underprivileged Regions and the boundaries is sufficient as a legal basis for the Transmigration (Kementerian Desa dan Pembangunan claimants to formalise the land rights status including Daerah Tertinggal dan Transmigrasi - KDPDTT), Ministry registration to the BPN. For individual land, the of Environment and Forestry (Kementerian Lingkungan applicant can request a certificate. Hidup dan Kehutanan - KLHK) and the Ministry of Agraria and Spatial Planning (Kementerian Agraria dan Tata Ruang Neither the National Government nor the Regional - KATR). Government have fully conducted these four stages. Several regions have legal products recognising The MoHA is responsible for the administration of all the rights of indigenous communities. This analysis villages and customary villages in Indonesia. Macro selected several examples such as the Province of West level village planning and policies are the mandate Sumatera Regulation number 16 of 2008 regarding of the Ministry. KDPDTT plays the operational role Communal Customary (Ulayat) Land and its Utilisation, in supporting development and village programmes directly in the field. Therefore, the management of
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concrete activities including village relationships with NGOs. These maps can already become instruments investors as well as other parties should be under for accelerating the identification and verification the mandate of the KDPDTT. The customary village process for customary territories. However, various identification and verification process is also part of this other areas where these initiatives have not developed Ministry’s scope of work. are in need of community facilitators. It is difficult to lave the identification and verification process to the The MEF and KATR have mandates as stipulated in the communities themselves because in addition to the Joint Regulation of Four Ministers and their respective lack of capacity, territory mapping is also related to internal provisions with regards to their dealings with overlapping claims. The presence of a third party as customary land and territories. If the claims of the facilitators is crucial in ensuring balanced negotiations Indigenous communities or the customary villages lie between the Indigenous communities and other on forest areas the MEF has the authority to respond involved parties. to those claims via boundaries and amendments to the forest areas. The MEF’s boundary determinations may become the legal foundation for KATR to immediately designate land rights through registration as well as 3.4.2.4 The protection and empowerment of rights certification. At a practical level, the BPN offices at the District/Municipality level and at the Provincial Various other laws and regulations provide legal level have the mandate to respond to customary land foundation for protection and reinforcing the rights claims in the forest area, conduct mapping and submit of Indigenous communities. The forms of protection the outcome to the MEF. After the MEF issues the include legal protection of Indigenous communities’ boundary amendments, BPN again plays their role territories through particular legal procedures. in registration and if the community proposes, may Empowerment of rights are manifested through continue the process to certification. programmes, activities and investments which support the rights of Indigenous communities. In general, these The current provisions stipulate that the costs for various regulations require clear recognition of rights or the identification, verification and determination status of rights. There are two macro level provisions of customary land is borne by the State budget at which are spatial planning and the environment. the national and sub-national level. The Law on Furthermore, there are sectoral provisions. In this Villages obligates the government to provide a exposition, the specific sectors are plantations and budget for supporting the identification, verification forestry. and determination of customary villages. The same obligation is also stated in the Joint Regulation of the Four Ministers in implementing MK 35. Funding for • The protection and empowerment of rights by the process of identification through to registration of spatial planning regime individual land in the forest area is supported by the The Law on Spatial Planning classifies two functions State budget. Communal land recognition is also part of space which are cultivation and protection. The of government obligations including funding and other protective function is not just aimed at forest areas necessary resources. but also non-forest areas including Other Usage The Regional Government is responsible for Areas (Areal Penggunaan Lain - APL) according to its calculating and determining an estimated cost for the ecological services. For example water catchment implementation of MK 35 according to the conditions areas or High Conservation Value are in APL areas of their respective regions. The Regional Government and not just in areas designated as forest areas. calculations are a basis for the National Government Therefore, spatial utilisation must take these to determine their allocations in the State Revenue functions into consideration. and Expenditures Budget (Anggaran Pendapatan dan In order to strengthen spatial function, regulations Belanja Negara - APBN). Regions deemed self-sufficient in spatial planning recognises the public’s right make allocations in their own Regional Revenue and to participate in the three main stages of spatial Expenditure Budget (Anggaran Pendapatan dan Belanja planning which are spatial planning, spatial utilisation Daerah - APBD). and spatial control. In the matter of spatial control, In addition to expenses, another form of support for the public has the right to provide input regarding the process of recognising both the communal and the direction and/or regulation of zoning, permits, individual Indigenous communities rights are facilitators. provision of incentives and disincentives as well In various areas, mapping of customary territories have as sanctions; monitoring and overseeing the been done for a long time. The approach is through implementation of established spatial plans; reporting participatory mapping which s generally facilitated by to the authorities and/or officials if suspicions
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regarding deviations and or violations against spatial Lingkungan - UKL-UPL) and in the issuance of the plans are arise; and submit objections against environmental permit. Beyond these instruments, decisions made by authorised officials if deemed at the public has the right to submit their proposals, odds with spatial planning. objections and even lawsuits regarding the environment. If it is decided that a space is to be utilised for cultivation, the spatial planning regime also In the context of rights empowerment, UUPLH recognises each person’s right to benefit from the and derived regulations provide space for the added value of the space as a consequence of spatial implementation of natural resources management planning. The added value can be from an economic, models based on customs and traditions. These social, environmental quality perspective which may models are classified as traditional wisdom. directly have a positive impact on the community’s UUPLH states that in order to protect and manage economic, social, environmental development. The the environment, the National and Provincial implication of this recognition is that Indigenous Government has the duty and authority to establish Peoples have the right to benefit from spatial policies regarding the protocols for recognising the utilisation which impacts directly on their lives. For existence of Indigenous communities, local wisdom example, spatial allocation for plantations, mining as and the rights of these Indigenous communities well as other investments must provide economic, associated with the environmental protection and social, environmental quality benefits for the management. These policies are implemented at the community. The spatial planning regime specifically District/Municipality level. protects rice paddies as well as dry lands which are the source of the community’s food from being Investment activities in the form of plantations, converted for other purposes. This is an important mining and other utilisation of natural resources must step in maintaining the availability of land for farming. also observe provisions regarding the protection and empowerment of the communities within each of these Laws. • The Protection and Empowerment of Rights by the Environmental Regime • The Protection and Empowerment of Rights in the The Law on Environmental Protection and Law on Plantations Management (UU Perlindungan dan Pengelolaan Lingkungan Hidup - UUPLH) is a legal regime which The Law on Plantations reiterates the protection of specifically provides environmental protection for Indigenous communities’ rights to land and territories each person including Indigenous communities. by recognising communal land (ulayat) rights and There are two forms of regulation which protects and establishing a compensation procedure if plantation empowers the rights of Indigenous communities. investments involve ulayat rights.
With regards to protection, UUPLH recognises the If a plantation investment involves ulayat land rights, public’s right to be involved in the formulation of the Law on Plantations and its implementation key instruments for the prevention of environmental regulations govern the obligations of the business damage and pollution. For example, the right to practitioner to negotiate for the land. If both parties submit proposals and/or objections against business agree, the business practitioner will pay or take plans and/or activities which may potentially other action according to the agreement. However impact on the environment and the right to submit the Plantation Law also allows for the community to complaints regarding suspicions of environmental reject negotiations thus their land would not have its pollution and/or damage. UUPLH also recognises function converted to plantation. the public’s right to play a role in the form of social supervision; provide advice; provide opinions, With regards to empowerment, the Plantation Law proposals, objections, complaints; and/or submit recognises customary rights through compensation information and/or reports. These rights may be and benefits of a plantation. The scope of benefits manifested in the formulation of the Strategic from a plantation encompasses scheme plantations Environmental Assessment (Kajian Lingkungan (kemitraan) to specific service programmes. With Hidup Strategis - KLHS), the Environmental Impact regards to land rights, the Plantation Law is flexible in Assessment (Analisis Mengenai Dampak Lingkungan allowing the possibility for the plantation enterprise Hidup - AMDAL), Environmental Management to be engaged in facilitating the recognition of Efforts-Environmental Monitoring Efforts Reports customary rights, from identification to registration. (Upaya Pengelolaan Lingkungan-Upaya Pemantauan
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It should also be noted that plantation investment The Ministry of Forestry has responded to the does not just deal with the implementation of Constitutional Court Ruling MK 35 through the the Plantation Law and the derived regulations Ministerial Regulation number 62 of 2013 and a thereof. Plantation investments also deal with Ministerial Circular. Both require the issuance of other laws and regulations such as spatial planning, Regional Government Regulations regarding the environment, agraria and land, forestry and human status of Indigenous communities as the basis for rights. Therefore, the protection of customary for Ministry of Forestry to designate customary rights to land and the environment does not only forest areas. Furthermore, the Ministry of Forestry refer to Plantation Law but also observes the has also designed schemes for the community provisions of other laws and regulations which to access forest areas such as village forest, regulate land and the environment. community forests and partnerships.
With regards to land, plantation investments comply with the land rights regime as regulated in the UUPA and its derivative regulations. This includes recognition of customary rights to land both inside and outside forest areas. The detailed procedures for recognition of rights and compensation essentially refers to the regulations on land. The stages for recognition of ulayat rights and individual customary rights can be observed in the exposition regarding agraria and land administration.
Plantations must also adhere to the pre-requisites of environmental regulations. In addition to regulations derived from the Law on Plantations, the provisions of preventive instruments in the environment field such as KLHS, AMDAL, UKL- UPL and environmental permit also applies to plantation development investments. Therefore the public’s right to be involved in the process of formulating these preventive instruments must be accommodated in plantation development activities. The stages and scope of engagement can be referred to in detail as part of the analysis on the environment.
• Protection and empowerment of rights in the Forestry Law
The Forestry Law recognises customary law and engages community participation in forest management. In recent development, the Forestry Law has been revised several times by Constitutional Court Rulings to accommodate the right of the community to participate and even more fundamentally, the right of the community to customary territories and land.
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Section 4: Synthesis and Recommendations
On the whole, regulatory mechanisms have not been of transparency, accountability and public scrutiny very effective – none of the regulatory mechanisms – common features of these voluntary regulatory achieved a maximum score of 9 based on the mechanisms – are key drivers that motivate positive assessment system described in Section 3.3 above. actions by the companies. The highest score of 6 was achieved by 10 regulatory mechanisms in total, namely ICESCR, ILO, UDHR, UN The improvement and efficacy of regulatory Global Compact, IFC Principles, HCV Approach, RSPO, frameworks, including voluntary mechanisms, has TFA, CGF and CCBA. Of the 10, only the first three are been strongly driven by civil society including NGOs legally binding mechanisms while the rest are voluntary and CBOs, particularly through advocacy efforts mechanisms. on company performances. In order to minimise reputational risks, it is beneficial for companies to Although international treaties contain many safeguards engage in a dialogue with civil society, with the aim of to protect the interests and rights of local communities, making positive changes in response to these advocacy they have generally not been very effective on their efforts. Increasingly, many NGOs have taken the own, due to weak implementation. On the other hand, approach of providing positive reinforcements publicly voluntary mechanisms, such as the RSPO and the CCB in recognition of efforts made by companies to meet Standards, may appear to have been more effective in requirements of regulatory frameworks, which is a some cases. It should be pointed out that the relatively further incentive for constructive engagement with civil better performance of voluntary mechanisms is to society. It is critical that indigenous and tribal peoples a large extent underpinned by the existence of the are included in such dialogues as they are currently legally binding mechanisms. Most of the voluntary not adequately consulted with in the formulation and standards assessed require companies to comply with implementation of regulatory mechanisms. international frameworks, such as ILO Conventions, and so retain much of the strong content of these international frameworks. 4.1 Best practice guidance The effectiveness of legally binding international In general, the higher level, internationally binding and regional mechanisms are, in turn, dependent on treaties provide comprehensive guidance on the the respective national legal framework. This is well- human rights that will require safeguarding under the illustrated by the two case studies developed by FPP HCS methodology. For example, a potentially useful (see Section 3.4 above). In cases where international output of the CBD process is the voluntary Akwé: Kon binding mechanisms have not been translated into Guidelines on social impact assessments which could be national laws, voluntary mechanisms can provide a looked into further as a means of improving safeguards much-needed “push” factor to motivate relevant actors, for the rights and livelihoods of local communities. particularly those from the private sector, to adopt practices that comply with international laws. The UN MDGs, although not legally binding, have resulted in many countries formulating national Verification of compliance to regulatory mechanisms is development strategies explicitly oriented towards still far from satisfactory, with key weaknesses being the poverty reduction efforts. One of the key strengths heavy reliance on self-assessment or reporting by treaty of the MDGs is its relative simplicity which allows for parties in the case of legally binding treaties, and the effective communication and advocacy. This could sometimes questionable quality of third party verifiers be built upon further so as to deliver socio-economic (where applicable), or of the verification methods used, benefits to local communities, including oil palm in the case of voluntary mechanisms. smallholders. By committing to voluntary regulatory mechanisms The New York Declaration on Forests has action such as the RSPO, Tropical Forest Alliance, etc. oil palm plans with details on how to slow down and eliminate companies are more likely to pay more attention to deforestation, but it is very vague on how local delivering socio-economic benefits. Increased levels community needs would be addressed. It is one of the
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newest regulatory mechanisms to be launched, but ILO 169 is reported to be one of the few international given its broad support and appeal, it has the potential laws that recognises the land ownership rights of to bring about much positive change. Agriculture was indigenous peoples. However, there is room for not specifically mentioned in the MDGs even though improvement with regard to provisions on lands, most of the world’s poor are farmers and closing this territories, resources and relocation. gap is a key recommendation that could lead to positive significant effects. Whilst the international treaties reviewed in this study outline in detail the rights to be safeguarded The Equator Principles enables investors to monitor and safeguards needed to protect them, their the social and environmental impacts of their clients’ implementation and enforcement limits their projects, e.g., requiring FPIC in any projects with the practical value, as described above. In comparison, potential to impact indigenous communities, and free, voluntary standards such as the RSPO and the CCB culturally appropriate and informed consultation for all Standards, show stronger enforcement and hence projects. Affected communities also have the right to implementation. At the same time, many of the participate in decision-making. However, circumstances voluntary standards assessed require companies to under which FPIC is required are currently not clearly comply with international frameworks, such as ILO defined and this an area where improvement is needed. Conventions, and so retain much of the strong content of these international frameworks. Finally, these voluntary standards are well suited to support an HCS methodology because they were developed specifically 4.2 Mechanisms for implementing socio- to be implemented in site-level, private-sector projects. economic safeguards The RSPO published revised P&Cs in 2013. These UN/ ILO frameworks and conventions are extremely are considered to provide reasonably strong socio- powerful in safeguarding socio-economic interests. At economic safeguards, including on compliance with the international level, several measures are indeed put core ILO Conventions. Some socio-economic issues, in place to monitor the implementation by the different particularly FPIC and living wage, are not always member State parties. In fact, each treaty should have fully safeguarded under the RSPO, with a number an established committee of experts to monitor the of allegations against RSPO members. However, the implementation by the member State parties. ILO’s RSPO’s dispute resolution mechanism means that reporting and monitoring procedures are said to be affected communities can raise complaints, which are an extremely good example of an effective monitoring addressed more comprehensively and directly than system. State parties to the conventions must report on complaints to UN committees. a regular basis to the ILO committee of experts on the application of the conventions and recommendations The CCB Standard is particularly well aligned with – however in practice, this is not always the case. the HCS methodology, because it was developed Countries may be denounced from the status of specifically to safeguard socio-economic rights (and ‘ratification’, if reporting is not done continuously for biodiversity) in the context of LUC emissions reductions several successive years. These reports are done by projects, including sustainable agriculture projects. individual member States themselves, and focuses on CCBA verification could provide added value as a what systems and measures have been put in place and mechanism that links HCS conservation to carbon what results have been achieved. However, given the financing. This could fund management of HCS set complexities surrounding social issues, there continues asides whilst safeguarding key socio-economic rights to be challenges in monitoring the effectiveness of law and values. enforcement and the enforcement of measures that have been put in place by member states to safeguard Mechanisms to improve auditing and enforcement of against these issues. voluntary standards, particularly on the implementation of FPIC and knowledge of requirements under ILO 111 is a widely ratified convention with few international mechanisms (especially ILO) can observations of non-compliance or violation reported further strengthen the role of voluntary standards in in monitoring reports (with exceptions of Cameroon, safeguarding socio-economic rights. Honduras and PNG). However it is reported that there remains an absence in national legislation providing equality of treatment and equal remuneration for agriculture workers, particularly for women and other disadvantaged groups. Closing these legislative gaps could be seen as opportunities for strengthening the effectiveness of this regulatory mechanism.
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Annex 1: Outputs from the Review of Relevant Regulatory Mechanisms
Regulatory framework 1 Convention on Biological Diversity (CBD) & decisions of parties
Relevant website links The Convention on Biological Diversity: www.cbd.int Nagoya Protocol: https://www.cbd.int/abs/ Cartagena Protocol: http://bch.cbd.int/protocol/background/ 2010 Biodiversity Targets: https://www.cbd.int/2010-target/ Akwé: Kon Guidelines: https://www.cbd.int/traditional/guidelines.shtml Strategic Plan for Biodiversity 2011-2020: https://www.cbd.int/sp/ The Aichi Biodiversity Targets: https://www.cbd.int/sp/targets/
Summary (what it is The CBD is a legally binding treaty that has been signed and ratified by 194 states (i.e. parties to the about) convention). The convention marked the first time that the conservation of biological diversity was enshrined in international law and recognised as a “common concern of humankind”, but one that countries have a sovereign right to manage. It is centred around three core principles: 1. The conservation of biological diversity, 2. The sustainable use of its components, and 3. The fair and equitable sharing of benefits arising from the use of genetic resources. Other guiding principles of the CBD are the need to raise investment to conserve biodiversity, the application of the Ecosystem Approach and the precautionary principle. Rather than being required to comply with specific targets, the CBD requires parties to agree with overall goals and a flexible framework for action intended to ensure biodiversity is conserved overtime. This framework is flexible to account for different parties’ capacities, but focuses broadly on identifying biodiversity and developing National Biodiversity Strategies and Action Plans (NBSAPs) to manage and monitor national biodiversity. Strategies may include lists of threatened species, establishment of protected areas and national implementation agencies and associated legislative changes. Each party, in line with their capacity, has a sovereign right to defining specific national strategies and action plans that fall within the CBD’s framework. Developing countries should receive technical and financial support from developed nations in implementing their national strategies. Parties are expected to monitor their progress in implementing NBSAPs, and are obliged to send National Reports on progress to the COP (Article 26). 3 By 2015, Aichi Biodiversity Target 17 (see below for more on Aichi targets) also requires all parties to have developed and implemented an ‘effective, participatory and updated’ NBSAP. In addition to National Reports, the Secretariat publishes periodically the Global Biodiversity Outlook, which provide a summary of global trends in biodiversity and hence seek to assess whether CBD commitments and targets are being met at a global level.
Agencies and governance Day-to-day running of the CBD is the responsibility of the Secretariat, which also publishes the periodical Global Biodiversity Outlook reports. The CBD is governed by the Conference of the Parties (COP), which meets every two years and is the ultimate authority of all Parties that have ratified the treaty. The COP’s function is to review progress, set priorities and commit to work plans. 4 The COP is also responsible for implementing the convention’s text, and has created several other bodies to oversee different aspects of implementation: • The Clearing-House Mechanism (CHM) was formed as a data and information exchange platform to encourage technical collaboration and knowledge sharing. • The Subsidiary Body on Scientific Technical and Technological Advice (SBSTTA) that ensures the convention remains up-to-date with the latest research and technologies. • The Global Environment Facility (GEF) is the designated body for disseminating and organising financial mechanisms.
3 http://archive.ias.unu.edu/resource_centre/The%20Convention%20on%20Biological%20Diversity_Understanding%20and%20Influencing%20the%20Process.pdf 4 http://www.cbd.int/iyb/doc/prints/factsheets/iyb-cbd-factsheet-cbd-en.pdf
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Summary (what it is Key instruments of the CBD about) The original CBD has been supplemented by various other instruments since its enactment, including additional protocols and binding targets, and more minor text amendments and annexes. Parties are automatically bound to the targets listed below having ratifying the CBD, but have to ratify the protocols independently of the CBD. The key instruments are listed here:
Nagoya Protocol on Access and Benefit-Sharing An international regime designed to ensure the implementation of the third, overarching CBD principle. It was adopted by the COP on 29/10/2010. In particular, the Nagoya Protocol (NP) aims to strengthen implementation of articles 15, to strengthen the legal conditions for protection and equitable sharing of benefits from genetic resources, and 8j, to strengthen the ability of indigenous and local peoples to benefit from their knowledge and practices. Key components of the NP are requirements to develop legislation to ensure prior informed consent of indigenous and local peoples, and sovereign rights to genetic resources. Also key is the development of national focal points to conduct research and provide transparent information on benefit sharing, monitor legislative compliance, and oversee management of genetic resources.
Cartagena Protocol on Biosafety An international treaty governing the movement of living modified organisms (LMOs) between countries. It is a supplementary agreement to the CBD. In Nagoya in 2010, the CBD adopted a supplementary Protocol regarding liability and redress for damage to biodiversity resulting from LMOs, entitled The Nagoya – Kuala Lumpur Supplementary Protocol.5
2010 Biodiversity Targets In 2002, at COP 6 in the Netherlands, the parties to the CBD committed to a Strategic Plan for Biodiversity 2002-2010 (Decision VI/26) and a 2010 Biodiversity Target of achieving ‘by 2010 a significant reduction of the current rate of biodiversity loss at the global, regional and national level as a contribution to poverty alleviation and to the benefit of all life on Earth’. An additional 21 sub-targets were also agreed as part of the 2010 commitment. In the third Global Biodiversity Outlook published in 2010 it was announced that the targets had not been met.6
Akwé: Kon Guidelines In 2004, the CBD published the Akwé: Kon Guidelines. They are described as ‘Voluntary guidelines for the conduct of cultural, environmental and social impact assessments regarding developments proposed to take place on, or which are likely to impact on, sacred sites and on lands and waters traditionally occupied or used by indigenous and local communities.’
Strategic Plan for Biodiversity 2011-2020, including the Aichi Biodiversity Targets At COP 10 in Nagoya in 2010, the parties to the CBD adopted the Strategic Plan for Biodiversity 2011-2020, the decade was also declared as UN’s Decade on Biodiversity. The Strategic Plan is designed to be a ‘flexible framework’ to ensure that ‘by 2020 ecosystems are resilient and continue to provide essential services, thereby securing the planet’s variety of life, and contributing to human well- being, and poverty eradication…’ Within the Strategic Plan individual parties are required to establish national (and regional) targets that address the CBD’s three objectives, and a new set of targets named the Aichi Biodiversity Targets, which cover five strategic goals and 20 more specific targets. The five strategic goals are:
5 https://bch.cbd.int/protocol/supplementary/ 6 http://www.cbd.int/doc/publications/gbo/gbo3-final-en.pdf
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A. Address the underlying causes of biodiversity loss by mainstreaming biodiversity across government and society, B. Reduce the direct pressures on biodiversity and promote sustainable use, C. Improve the status of biodiversity by safeguarding ecosystems, species and genetic diversity, D. Enhance the benefits to all from biodiversity and ecosystem services, and E. Enhance implementation through participatory planning, knowledge management and capacity building.
Mid-way through the decade (late 2014) analyses of progress indicated that the Aichi Targets are unlikely to be met, based on current trajectories.7,8
Date of establishment, CBD: Adopted: 5/6/1992, Enacted: 29/12/1993. Recent/ expected developments Nagoya Protocol on Access and Benefit-Sharing: Adopted: 29/10/2010, Enacted: 12/10/2014.
Cartagena Protocol on Biosafety: Adopted: 29/1/2000, Enacted: 11/9/2003.
2010 Biodiversity Target: Decision VI/26 adopted during COP 6 in April 2002.
Strategic Plan for Biodiversity 2011-2020, including Aichi Biodiversity Targets: Result of COP 10 decision X/2 in October 2010. Target 17 requires parties to have started implementing NBSAPs by 2015; this is expected to be met by most parties.5
Ratification Indonesia: CBD ratified: 23/8/1994. Cartagena ratified: 3/12/2004. Nagoya ratified: 24/9/2013. Nagoya – Kuala Lumpur Protocol: Non Party.
Cameroon: CBD ratified: 19/10/1994. Cartagena ratified: 20/2/2003. Nagoya: Non Party. Nagoya – Kuala Lumpur Protocol: Non Party.
Malaysia: CBD ratified: 24/6/1994. Cartagena ratified: 3/9/2003. Nagoya:Non Party. Nagoya – Kuala Lumpur Protocol: Non Party.
Thailand: CBD ratified: 31/10/2003. Cartagena ratified: 10/11/2005. Nagoya: Non Party. Nagoya – Kuala Lumpur Protocol: Non Party.
Ghana: CBD ratified: 29/8/1994. Cartagena ratified: 30/5/2003. Nagoya:Non Party. Nagoya – Kuala Lumpur Protocol: Non Party.
Nigeria: CBD ratified: 29/8/1994. Cartagena ratified: 15/7/2003. Nagoya: Non Party. Nagoya – Kuala Lumpur Protocol: Non Party.
Brazil: CBD ratified: 28/2/1992. Cartagena ratified: 24/11/2003. Nagoya: Non Party. Nagoya – Kuala Lumpur Protocol: Non Party.
Colombia: CBD ratified (28/11/1994). Cartagena ratified: 20/5/2003. Nagoya: Non Party. Nagoya – Kuala Lumpur Protocol: Non Party.
7 http://www.sciencemag.org/content/346/6206/241.abstract 8 http://www.cbd.int/gbo/gbo4/gbo4-summary-en.pdf
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Implementation – Strengths Strengths & Weaknesses • Binding. The CBD is in theory binding, making it the only internationally binding treaty that specifically targets biodiversity conservation.
• International/multilateral. The grand majority of the world’s nations have ratified the CBD and its instruments, giving it global buy-in.
• Improvement. The 1992 text of the CBD drew widespread criticism for being soft, and whilst the implementation of the CBD and its instruments continues to struggle somewhat, there has been continued improvement. For example, the Aichi Biodiversity Targets represent more tangible and enforceable commitments than anything in the original 1992 convention text.
Weaknesses • Soft commitments: Questions were raised regarding the binding nature of the original 1992 CBD, and with stakeholders viewing the CBD as packed with ‘soft’ commitments that are not legally enforceable or contain too many loopholes to be obligatory. For example, most commitments in the text were caveated with the term “as far as possible and as appropriate”.9 This criticism lifted somewhat when in 2002 Parties committed to the 2010 Biodiversity Target, which many considered more tangible and enforceable.10
• Lack of progress: In 1999, there was substantial criticism from observers and parties during COPs that implementation of the CBD was poor. This has continued with failure to meet the 2010 Biodiversity Target (and all 21 sub-targets) at the global level.11 The 2014 Global Biodiversity Outlook revealed mixed progress towards meeting the Aichi Targets, with current trajectories suggesting that few targets will be met by 2020 and calling urgently for greater action to correct this.4,5 The Nagoya Protocol entered into force in October 2014 and so it is too early to assess progress in implementation.
• Forests: A particularly relevant criticism levied at the CBD is that it does not sufficiently protect forests (especially tropical forests). It has been stated that specific mention of tropical forest in early convention drafts was knowingly removed, and the COP frequently struggled to reach any consensus on the topic. Since 2000, there has been a concerted push to ensure stronger protection for forests and they are specifically mentioned in the Aichi Biodiversity Targets.
• Sustainable development: An early criticism of the CBD was that it did not explicitly call for ‘sustainable development’, rather sought to promote conservation only where it did not hinder economic development. For example, the CBD states that ‘economic and social development and poverty eradication are the first and overriding priorities of developing countries’, suggesting that environmental protection is a secondary consideration. It was argued that a focus on sustainable development would have enabled better reconciliation of development and conservation. More recently, sustainable development has been more clearly incorporated into the Aichi Biodiversity Targets.
• Amendments and additions: Parties can opt out of ratifying major protocols, but the process is less clear for more minor text amendments and annexes. Concerns have also been raised about whether text amendments/annexes are as binding as the core convention/protocols. For example, it is not clear how commitments are effected if parties don’t vote in favour of amendments and a vote is passed based on a 2/3 majority, or whether inaction in the context of annex amendments means parties are committed or not.12
9 Guruswamy, L.D. The Convention on Biological Diversity: exposing the flawed foundations. Environmental Conservation 26 (2): 79–82. 1999. 10 Balmford A, et al. The Convention on Biological Diversity’s 2010 target. Himalayan Journal of Sciences. 3 (5). 2005. 11 http://www.cbd.int/gbo3/?pub=6667§ion=6690 12 http://naturaljustice.org/wp-content/uploads/pdf/AnalyzingTheBindingNatureofCOPDecisions.pdf
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Country level details Indonesia: Only country of the eight major producers to have ratified the Nagoya Protocol. Released the Indonesian BSAP (IBSAP) in 2003, but has yet to publish an updated IBSAP in line with the Aichi Targets.13The 5th National Biodiversity Report released in 2014 assessed progress towards the Aichi Targets, stating in particular positive progress towards targets 2, 9, 10, 12, 13 & 16. Progress to meeting target 16, implementation of the Nagoya Protocol, marks Indonesia apart from other major oil palm producing countries. In 2014, it was widely reported that Indonesia has the world’s highest deforestation rate (overtaking Brazil), suggesting poor progress towards target 5 in particular.14 Expansion of oil palm plantations is a major driver of land-use change. The 5th National Report highlights the government’s introduction of the mandatory Indonesian Sustainable Palm Oil (ISPO) system as a mechanism towards sustainable agricultural production in the sector.
Cameroon: Only major grower country (along with Colombia) to have published an updated NBSAP in line with the Aichi Targets. Published in 2012, it is to be implemented through to 2020 and contains 4 strategic goals, 20 national-level targets and 10 ecosystem-specific targets. Cameroon has one of the highest rates of deforestation among Congo-basin countries. However, Cameroon has ambitious plans to increase coverage of protected areas, which currently cover ~19% of Cameroon with target 11 specifying that this should increase to 30% by 2020. 301 new community forests (covering ~1 million ha) were established in Cameroon from 2004-2011, but commitments on community conservation and benefit sharing in the NBSAP are weaker than commitments on biodiversity and Cameroon has not ratified the Nagoya Protocol.15 The 2012 Aichi Passport also suggests that bush meat prices are becoming increasingly unaffordable in Cameroon, representing a risk to food security amongst rural populations.16 The NBSAP identifies expansion of oil palm plantations as a major driver of land-use change and hence threat to biodiversity.
Malaysia: A revised NBSAP, in line with the Aichi Targets, was due to be finalised in late 2014 so should be published soon. Although the details of the revised NBSAP are not available, Malaysia’s 5th National Report17 released in 2014 outlines some plans of pertinence to the Aichi Targets, such as, plans for a National Sustainable Consumption and Production Framework. This framework seeks to build necessary institutional and policy changes in collaboration between government, consumers and the private sector. Of particular relevance to HCS developments is Malaysia’s commitment from the 1992 Rio summit to retain 50% of its land area under ‘forest and tree cover’ in perpetuity. However, questions have been raised about Malaysia’s definition of ‘forest and tree cover’, and how it plans to continue growing the palm oil sector whilst retaining 50% forest and tree cover.18 The 5th National Report reports that the state of Sarawak has the largest Permanent Forest Reserve (6 million hectares) and yet detailed data for the state are lacking (e.g. there is no break-down forest cover by reserve types). Social aspects of CBD commitments are again unclear and Malaysia has not ratified the Nagoya Protocol.
Thailand: Thailand has developed 3 NBSAPs, with the latest published in line with the Aichi Targets. Thailand was one of few countries to meet its 2010 Biodiversity targets and the Aichi Biodiversity Targets have been integrated into Thailand’s 11th National Economic and Social Development Plan (2012-2016). Evidence from late 2014 also scored Thailand very high for the quality of its monitoring of CBD commitments.19 The 5th National Report20 published in 2014 reviews current progress towards the targets, citing for example, progress towards target 5 as shown through an increase in Thailand’s forest cover from 30.9% in 2006 to 31.6% in 2013 as a result of restoration and forest rehabilitation activities. Thailand’s draft NBSAP for 2015-2016 states a plan to increase ‘forestlands’ cover to >40% by as soon as 2016; this appears unlikely given the 2013 cover but represents a rare upward trajectory. Clarity on the definition of ‘forestlands’ can confirm the robustness of this trend.
13 https://www.cbd.int/countries/profile/default.shtml?country=id#measures 14 Margono et al. 2014. Primary forest cover loss in Indonesia over 2000–2012. Nature Climate Change 4, 730–735. 15 https://www.cbd.int/doc/world/cm/cm-nbsap-v2-en.pdf 16 http://www.bipindicators.net/LinkClick.aspx?fileticket=d81FvlFQ%2FrE%3D&tabid=38 17 https://www.cbd.int/doc/world/my/my-nr-05-en.pdf 18 Forest People’s Programme. September 2014. Deforestation Drivers and Human Rights in Malaysia. A national overview and two sub-regional case studies. Carol Yong, SACCESS and JKOASM. 19 Han X, et al. 2014. A Biodiversity Indicators Dashboard: Addressing Challenges to Monitoring Progress towards the Aichi Biodiversity Targets Using Disaggregated Global Data. PLoS ONE 9(11): e112046. 20 https://www.cbd.int/doc/world/th/th-nr-05-en.pdf
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Thailand’s 5th National Report acknowledges the role of oil palm in driving deforestation and mentions the Roundtable on Sustainable Palm Oil as important. Thailand has not ratified the Nagoya Protocol.
Ghana: Ghana has yet to publish its 5th National Report, develop targets and indicators as part of an NBSAP or update its NBSAP in line with the Aichi Targets. The most recent NBSAP is from 2002 and the 4th National Report was published in 2009. The CBD notes that “the current NBSAP has been found to be inadequate to address the threats to biodiversity in Ghana.”21 Additionally, Ghana has not ratified the Nagoya Protocol. More recently Ghana developed a Shared Growth Development Agenda (GSGDA) for the period 2010-2013, which stated biodiversity loss was proceeding rapidly and identified the following as major challenges to biodiversity conservation in Ghana: • Weak integration of biodiversity issues at the local level, • Inadequate biodiversity assessment and financing of conservation, and • Encroachment into biodiversity hotspots. One of the proposed solutions of relevance was to develop biodiversity policies for relevant sectors.22
Nigeria: Nigeria’s first NBSAP was published in 2006, this is being revised and updated in line with the Aichi Targets but this updated NBSAP has yet to be published due to a lack of funds. The 5th National Report was published in March 2014 but does not include national targets or review progress towards Aichi targets. Nigeria has not ratified the Nagoya Protocol. Poor implementation of the 2006 NBSAP has been linked to a weak legislative framework and implementing institutions and inadequate monitoring amongst other issues. Nigeria has particularly struggled to combine rural and social development with conservation, a particular challenge given its very high population density. For example, some conservation areas have excluded communities from traditional hunting grounds and many other forest reserves have been de-gazetted due to overexploitation. The new NBSAP currently being developed is said to include sectoral development policies that incorporate biodiversity and measures to engage local communities in conservation efforts. Urgent measures and finances are required to reverse rapidly declining biodiversity in Nigeria.23
Brazil: Brazil adopted an initial NBSAP in 2006 and identified 51 national indicators for implementation by 2010. In September 2013, Brazil’s 2020 biodiversity targets were adopted and are aligned with the Aichi Biodiversity Targets. In 2015, Brazil’s 5th National Report identified significant progress towards Targets 5, 7, 11, 15 and 19, with particularly advances made in the Amazon biome. As part of its CBD commitments Brazil has sought to value its biodiversity through TEEB initiatives, including pilots conducted by Conservation International with palm oil companies that provided compelling evidence for protection of Brazil’s ‘natural capital’. Brazil’s network of PAs expanded more than any other country’s between 2006 and 2010, and Brazil has also developed extensive domestic legislative on environmental protection, such as the Forest Code and Ecological and Economic Zoning that place tight controls on agricultural expansion. Although Brazil has not ratified the Nagoya Protocol, indigenous knowledge holders already have several national mechanisms to participate in decision making, such as the Genetic Heritage Management Council, the National Biodiversity Commission and the National Environmental Council. The National Biodiversity Strategy Project has also made progress in inventorying indigenous knowledge, but at present only 106/206 indigenous nations have had their traditional knowledge studied.24
21 https://www.cbd.int/countries/profile/default.shtml?country=gh#measures 22 http://ghana.um.dk/en/~/media/Ghana/Documents/2013%20APR%20Final%20Version%20December%202014.pdf 23 https://www.cbd.int/countries/profile/default.shtml?country=ng#measures 24 https://www.cbd.int/countries/profile/default.shtml?country=br#measures
High Carbon Stock Science Study 33 Consulting Study 10 Overview of existing regulatory mechanisms and relevant actors
Colombia: With Cameroon, the only other country to have already updated its NBSAP in line with the Aichi Targets; Colombia’s updated NBSAP was launched in 2012.25 As part of the NBSAP, a GEF funded project in collaboration with WWF and Fedepalma (National Federation for Palm Oil Growers), Colombia has produced a palm oil suitability map that considers socio-environmental and economic factors. Colombia has made substantial progress in establishing necessary mechanisms for implementation of its CBD commitments, including PA management plans and sustainable production policies. Evidence from late 2014 also scored Colombia highest globally for the quality of its monitoring of CBD commitments.17 Plans for benefit-sharing and social policy, including supporting rural incomes through agriculture policy, are covered to some extent in the NBSAP, although Colombia has not ratified the Nagoya Protocol.
Impacts on palm oil The eight largest oil palm producing countries have all ratified the CBD and the Cartagena protocol, production but only Indonesia has ratified the Nagoya protocol. This means that all of the main producing countries are committed to the Aichi Biodiversity Targets, but not to commitments on fair and equitable benefit sharing outlined in the Nagoya protocol. This could cover distribution of agricultural and timber revenues on community lands, or potential impacts of HCS set-asides on community lands. Overall, all parties to the CBD have been required to establish national strategies and implementing agencies for biodiversity conservation that can provide some guidance on, and help to mitigate, potential environmental and social risks associated with oil palm expansion. Furthermore, several countries have developed strategies for sustainable agricultural or palm expansion. However, of the individual countries analysed, commitments and progress to the CBD and its instruments varied hugely. The majority of countries showed poor progress and thus are unlikely to provide extensive support to the implementation of the HCS methodology, and particularly to measures that may mitigate against adverse social impacts. Ghana and Nigeria have particularly weak implementing frameworks for the CBD, whereas Colombia and Brazil (and to a lesser extent Thailand) have guidance and monitoring capabilities that could greatly assist in HCS implementation. The two Aichi targets of highest relevance to the palm oil sector and potential HCS commitments are 5 and 15: • 5: By 2020, the rate of loss of all natural habitats, including forests, is at least halved and where feasible brought close to zero, and degradation and fragmentation is significantly reduced. • 15: By 2020, ecosystem resilience and the contribution of biodiversity to carbon stocks has been enhanced, through conservation and restoration, including restoration of at least 15 per cent of degraded ecosystems, thereby contributing to climate change mitigation and adaptation and to combating desertification. In summary, parties to the CBD are required to both halve loss of natural habitats and restore 15% of degraded ecosystems. This will restrict areas available for oil palm expansion, but may enable incentives for companies looking to protect, or potentially even restore, areas of HCS.
Key actors CBD Secretariat, Aichi Targets Passport (http://www.bipindicators.net/resource/aichipassport) REDD-monitor, Greenpeace etc and other watch-dog NGOs
Measures to promote Compliance across countries is highly variable, with poor compliance generally the result of a lack compliance of funding and low prioritisation of the CBD. If well implemented the CBD and its instruments can support development of sustainable agriculture through national sectoral policies and legislation. Any mechanisms to scale up funding in countries lagging on CBD commitments, could promote these benefits and help to safeguard against environmental and social impacts (especially equitable benefit sharing). The CBD’s CHM, including National CHMs, can provide a useful point of contact for private growers and support information exchange on national policies and legislation relevant to the palm oil sector.
25 https://www.cbd.int/doc/world/co/co-nbsap-v2-en.pdf
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Regulatory framework 2 Ramsar Convention
Relevant website links The Ramsar Convention http://www.ramsar.org/about/the-ramsar-convention-and-its-mission Ramsar Sites Information Service https://rsis.ramsar.org/
Summary (what it is Adopted in 1971, the Ramsar Convention is global, intergovernmental treaty with the mission about) of “conservation and wise use of all wetlands through local and national actions and international cooperation, as a contribution towards achieving sustainable development throughout the world”.26 Although initially motivated by conservation of migratory and wetland birds, the convention now focuses on wetlands due their importance for human survival through provision of countless ecosystem services, including provisioning of fresh water, food and timber, flood control and groundwater recharge, along with their high biodiversity and productivity. As of March 2015, 167 countries are members of (/Contracting Parties to) the Ramsar Convention, and more than 2100 sites covering over 195 million hectares have been designated as Ramsar Sites. Members must designate at least one wetland site on accession to the treaty and are committed to the 12 articles of the convention and the following three overarching ‘pillars’: • “Work towards the wise use of all their wetlands; • Designate suitable wetlands for the list of Wetlands of International Importance (the “Ramsar List”) and ensure their effective management; • Cooperate internationally on transboundary wetlands, shared wetland systems and shared species.” • Specifically, Contracting Parties are required to: • Identify and designate suitable wetlands within its territory for inclusion as Ramsar Sites, • Formulate and implement planning to promote conservation and wise use of wetlands, • Consult and coordinate with other Contracting Parties on implementing obligations under the convention. However, the specific means of implementing commitments to the convention is subject to the discretion and capacity of individual Contracting Parties. In order to support and strengthen parties’ implementation and progress, the Convention has provided guidance on wise use of wetlands, developing national wetlands policies and reforming legislation.27 Furthermore, since 1997 the COP has adopted subsequent Strategic Plans to promote progress in meeting Ramsar’s mission. Currently, the 3rd Strategic Plan 2009-2015 is in force, covering 5 goals and 28 strategies. These include targets for growth of the convention itself and for individual Contracting Parties. Governance In their territories, Contracting Parties implement the convention through an Administrative Authority and collaborate with other members on shared projects. Government representatives of Contracting Parties meet every three years as the Conference of the Contracting Parties (COP) to review progress and develop a work plan for coming years. Members of the Standing Committee, who are elected by Contracting Parties, meet every year and oversee the Convention’s work programme between COPs. Day-to-day implementation and support of the Convention and Contracting Parties is carried out by the Ramsar Secretariat. Since 1993, the Scientific and Technical Review Panel (STRP) has provided technical guidance to the COP, Standing Committee and Secretariat. Partnerships The Ramsar Convention seeks to engage with a range of public and private sector representatives through advisory, research and communication partnerships. For example, by working with the Sustainable Agriculture Initiative, private companies like Danone and advising governments. The Ramsar Strategic Plan 2009-2015 states the importance of working more closely with other environmental conventions such as the CBD, CMS, UNCCD and UNFCCC, in terms of on- the-ground implementation. It also outlines how the Ramsar Convention can contribute to the achievement of the Millennium Development Goals and Aichi Biodiversity Targets. Date of establishment Adopted: 3/2/1971, into force: 1/12/1975.
26 http://www.ramsar.org/about/the-ramsar-convention-and-its-mission. Ramsar define wetlands as “all lakes and rivers, underground aquifers, swamps and marshes, wet grasslands, peatlands, oases, estuaries, deltas and tidal flats, mangroves and other coastal areas, coral reefs, and all human-made sites such as fish ponds, rice paddies, reservoirs and salt pans.” 27 http://www.ramsar.org/about/the-wise-use-of-wetlands
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Ratification Indonesia: Enacted: 8/8/1992, 7 Ramsar Sites Cameroon: Enacted: 20/7/2006, 7 Ramsar Sites Malaysia: Enacted: 10/3/1995, 6 Ramsar Sites Thailand: Enacted: 13/9/1998, 13 Ramsar Sites Ghana: Enacted: 22/6/1988, 6 Ramsar Sites Nigeria: Enacted: 2/2/2001, 11 Ramsar Sites Brazil: Enacted: 24/9/1993, 12 Ramsar Sites Colombia: Enacted: 18/10/1998, 6 Ramsar Sites
Implementation – Strengths Strengths & Weaknesses • Well-established: The first international environmental treaty, the Ramsar Convention is now well-established and has had time to grow and make considerable progress in its 40 years since first entering into force.28 Ramsar’s longevity means that capacity has been built gradually in many party countries and that Strategic Plans have promoted continued improvements over time. • Multilateral and collaborative: Although many international treaties are multilateral, Ramsar is one of the few where neighbouring countries have implemented truly collaborative programmes.
Weaknesses • ‘Soft law’: As for the CBD, parties to Ramsar are able to determine their own framework for implementing convention commitments resulting in huge variation among countries’ progress. • Funding: Unlike treaties like the CBD, Ramsar does not incorporate specific requirements for wealthier parties to finance the less wealthy. Whilst commitments can be aligned with other funding sources (e.g. from the CBD), the financing of Ramsar commitments has limited progress in many countries.
28 http://www.newsecuritybeat.org/2012/02/the-ramsar-convention-a-new-window-for-environmental-diplomacy/
36 High Carbon Stock Science Study Consulting Study 10 Overview of existing regulatory mechanisms and relevant actors
Country level details Indonesia: As stated in its 2015 National Report, Indonesia has ‘revitalised’ its National Wetlands Committee and finalised government policies for both peatland and swamp management (RPP Gambut, PP Rawa). However, conflicts of interest between stakeholders, conversion of wetlands into plantations (inc. oil palm) and inadequate awareness amongst authorities of wetlands conservation have hindered progress. The report identifies the RSPO as a mechanism for the private sector to improve management of wetland areas, along with schemes whereby banks incentivise oil palm growers that implement wetland-friendly management. Indonesia has completed its National Inventory of 298 wetland sites.29 Cameroon: In its 2015 National Report, Cameroon states that it has initiated a public awareness raising campaign on wetlands and made progress on developing legal, technical and policy tools for implementation of Ramsar commitments. However, a national wetlands policy is not yet in place, nor are participatory management/engagement processes and human population pressure remains a major challenge to wetland conservation. Cameroon plans to prioritise the incorporation of wetland conservation and wise use into land use planning decisions. Cameroon’s National Wetland Inventory was initiated in 2012 and a National Wetland Policy is in preparation.30 Malaysia: Malaysia published a compendium (inventory) of wetlands in 2009 that is due to be updated. The 2004 National Wetland Policy is also being updated. Malaysia’s 2015 National Report states growing public support of and awareness for wetlands conservation and the identification of sustainable financing through its National Resources Conservation Trust Fund that was established in 2013. Awareness-raising programmes have been conducted, including with the palm oil sector in Sabah. Illegal land clearance remains a threat to wetland areas and Malaysia is looking to ‘mainstream’ wetland conservation as part of multi-sectoral planning and development processes.31 Thailand: Thailand has in place a National Wetlands Policy and has completed a National Inventory of Wetlands, however, wetland ecosystems are not protected by hard law and there is no agency responsible for wetland conservation. Expansion of oil palm agriculture, often with government issued land certificates, into wetlands is cited as a threat to wetland conservation. There is limited awareness of the importance of wetlands conservation amongst government, the public and private actors in Thailand and concerted efforts are proposed to formulate a necessary wetlands law.32 Ghana: Ghana has a National Wetland Conservation Strategy and Action Plan for the 2007- 2016 period that has engaged communities and NGOs around wetlands conservation, but the effectiveness of this policy has been limited by funding shortfalls and weak government enforcement of legislation. The National Wetlands Inventory has not been started, also due to lack of funding.33 Nigeria: In its 2015 National Report, Nigeria cites good progress in Communication, Education, Participation and Awareness (CEPA) programmes, and in knowledge sharing with neighbouring countries. However, implementation, for example of a National Wetlands Policy, has been stalled by funding shortfalls and Nigeria has not conducted a National Wetlands Inventory.34 Brazil: Brazil does not have a specific National Wetland Policy but has extensive environmental legislative regarding protection of watersheds and waterways. According to the 2015 National Report for COP 12, Brazil has established a National Committee on Wetlands (CNZU), begun preparing its National Wetland Inventory and conducted research on wetlands’ ecosystem services to support policy. As illustrated through its commitment to the CBD, Brazil has a high quality domestic research base and technical monitoring capacity. However, further implementation of the convention was limited by funds and human capacity and Brazil plans to further imbed obligations for wetland conservation and wise use into productive sectoral policies.35 Colombia: In the 2015 National Report, Colombia cites considerable progress in incorporating Ramsar commitments as part of its Land Management Plan, Development Plan and the structuring of an Economic and Social Policy. Colombia also states good progress in engaging communities regarding traditional knowledge and cultural aspects of wetlands. However, Colombia has stated that greater financial resources, inter-ministry collaboration and cross-sectoral engagement is needed. Colombia has in place a National Wetland Policy that was established in 2002 and a National Wetlands Inventory is in progress.36
29 http://www.ramsar.org/sites/default/files/documents/2014/national-reports/COP12/cop12_nr_indonesia.pdf 30 http://www.ramsar.org/sites/default/files/documents/2014/national-reports/COP12/cop12_nr_cameroun.pdf 31 http://www.ramsar.org/sites/default/files/documents/2014/national-reports/COP12/cop12_nr_malaysia.pdf 32 http://www.ramsar.org/sites/default/files/documents/2014/national-reports/COP12/cop12_nr_thailand.pdf 33 http://www.ramsar.org/sites/default/files/documents/2014/national-reports/COP12/cop12_nr_ghana.pdf 34 http://www.ramsar.org/sites/default/files/documents/2014/national-reports/COP12/cop12_nr_nigeria.pdf 35 http://www.ramsar.org/sites/default/files/documents/2014/national-reports/COP12/cop12_nr_brazil.pdf 36 http://www.ramsar.org/sites/default/files/documents/2014/national-reports/COP12/cop12_nr_colombia.pdf
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Impacts on palm oil Oil palm growers will need to comply with established legislation on water and wetland production management, in countries where this is in place. When legislation is lacking, compliance with RSPO best practice for water protection and peat management could ensure wetlands are protected. Many Ramsar sites are designated either partially or completely for the social or cultural services they provide, and hence provide a strong safeguard for the protection of socio-cultural and socio- economic values. Oil palm growers operating in or near Ramsar sites should develop strong wetland and water management policies and may be able to coordinate management plans with Ramsar managers. However, the Ramsar Convention does not protect all important wetlands and so growers will need additional safeguards to ensure protection of environmental and social values stemming from wetlands, especially in countries where implementation of Ramsar commitments is poor. Key actors Wetlands International, Ramsar, Birdlife International, Ramsar COP observers Measures to promote Given the relatively soft commitments required of Contracting Parties, compliance with Ramsar compliance could be considered high. However, there is large variation in individual countries’ commitments and progress. A lack of funding or misuse of available funds appears to be a major factor where parties’ progress is limited, therefore, mobilisation and targeted distribution of additional funds could help to address this. In countries performing highly regarding Ramsar obligations, the convention can act as a strong safeguard for the protection of environmental and social values derived from wetlands.
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Regulatory framework 3 UN Framework Convention on Climate Change (UNFCCC)
Relevant website links http://unfccc.int/2860.php
Summary (what it is An international treaty that was initiated in 1992 following the Rio de Janeiro ‘Earth Summit, with about) the broad objective to “stabilise greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system”. In 2010, Parties agreed to the Cancun agreements which stated that future global warming should be limited to less than 2°C above pre-industrial levels.37 The UNFCCC identifies the following as crucial to its success financing, technology development and transfer and capacity building. 195 countries are party to the UNFCCC and these are divided into three main groups depending on their commitments: Annex 1 countries (industrialised countries that were OECD members in 1992 and some other ‘economies in transition’ (EIT)), Annex II countries (Annex 1 excluding EIT), and Non- Annex 1 countries (developing countries). Amongst Non-Annex 1 countries, 49 least developed countries (LDCs) are given special status due to their limited capacity to respond to climate change. All of the eight major oil palm producing countries considered in this analysis are Non-Annex 1 countries (none are LDCs).
The key provisions covered in the UNFCCC text are as follows38: • Recognition that anthropogenic climate change posed a threat to human safety, • Annex 1 countries are expected to do more to cut greenhouse gas emissions than Non-Annex 1 countries. Legally-binding provisions for this were established through the Kyoto Protocol, which was adopted in 1997 and entered into force in 2005, • Annex 1 countries should provide financial and technological support to Non-Annex 1 countries to assist climate change mitigation and adaptation activities, • Economic development is crucial for Non-Annex 1 countries, but where possible should be done by means to limit emissions (see the Clean Development Mechanism39), • All countries are vulnerable to the impacts of climate change, especially developing countries. Parties have now agreed to develop means to fund adaptation (see the Adaptation Committee40 and the Cancun Adaptation Framework41).
The Kyoto Protocol marked the first legally-binding and quantitative commitment of the UNFCCC process. The first implementation period of Kyoto ran from 2008 to 2012, followed by its extension into a second commitment period from 2013-2020 covered by the Doha Amendment from 2012. The first period required Annex 1 countries (excluding the USA) to cut emissions to 1990 levels, and under the second commitment period a smaller subset of Annex 1 countries have committed to further emissions reductions. The Clean Development Mechanism is a key instrument that allows Annex 1 countries to support emissions reductions projects in Non-Annex 1 countries, such as energy, transport and forestry projects.
To date the UNFCCC has not required Non-Annex 1 countries to make binding commitments to reduce emissions. For example, the Copenhagen Accord from 2009 allowed countries to submit non- binding emission reduction or mitigation pledges. The UNFCC intends to adopt a universal climate change agreement at COP20 in Paris in 2015, and a number of decisions at COP19 in Warsaw in 2013 that can help maintain progress towards a 2015 agreement. The following are the key Warsaw Outcomes:
Under requirements for transparency of action and support Parties to the UNFCCC are required to prepare and submit national communications every 4-5 years (plus biennial update reports) to report on progress in meeting obligations under the convention. These include reports on GHG emissions, mitigation and adaptation programmes, capacity building and capacity gaps. Reporting expectations are higher for developed countries.
37 http://unfccc.int/essential_background/items/6031.php 38 http://unfccc.int/essential_background/convention/items/6036.php 39 http://unfccc.int/kyoto_protocol/mechanisms/clean_development_mechanism/items/2718.php 40 http://unfccc.int/adaptation/groups_committees/adaptation_committee/items/6053.php 41 http://unfccc.int/documentation/documents/advanced_search/items/3594.php?rec=j&priref=600006173#beg
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• Governments agree to communicate contributions to the universal agreement before the 2015 Paris COP, • Agreement on the Warsaw Framework for REDD-plus (Reduced Emissions from Deforestation and forest Degradation), essentially a rulebook for the implementation of REDD-PLUS, • The 2014 mobilisation of the Green Climate Fund as the financial mechanism of the UNFCCC to support developing countries in sustainable development and emissions reductions. Over $10 billion had been pledged as of April 2015, • Warsaw International Mechanism for Loss and Damage embeds into the UNFCCC the importance of compensation to developing countries for loss and damage resulting from climate change. The specific means of compensation are to be developed over time , • Submission of a formal draft text for the 2015 agreement by May 2015.
The Warsaw Framework for REDD-plus includes the following core decisions: • Adequate and predictable results-based finance may come from a range of public and private sources, ideally channelled through the Green Climate Fund, • Ensure respect of and biennial reporting on environmental and social safeguards as covered in decision 1/CP.16, appendix 1, including, in particular, points 2c) for the respect for the knowledge and rights of indigenous and local communities in line with relevant international obligations including the UNDRIP, and 2d): “The full and effective participation of relevant stakeholders, in particular indigenous peoples and local communities”, • Methods for monitoring, reporting and verifying anthropogenic forest-related emissions by sources and removals by sinks.
Although not directly linked to REDD-plus, the UN-REDD Programme was established in 2008 to help developing countries develop the capacity to implement REDD-plus, once the UNFCCC mechanism becomes legally binding the UN-REDD Programme supports national-led REDD-plus processes and promote stakeholder involvement, particularly of indigenous and forest-dependent communities.42 The Forest Investment Program43 (FIP) and Forest Carbon Partnership Facility44 (FCPF) are other multilateral REDD-plus initiatives looking to develop capacity for its implementation. The Nairobi Work Programme aims to assist Parties, particularly more vulnerable developing countries to understand the potential impacts of climate change and hence to take appropriate adaptation decisions/actions. It was established in 2005 (COP11) and it is not a binding convention, but a mechanism for information exchange and to support adaptation policy development. Under requirements for transparency of action and support Parties to the UNFCCC are required to prepare and submit national communications every 4-5 years (plus biennial update reports) to report on progress in meeting obligations under the convention. These include reports on GHG emissions, mitigation and adaptation programmes, capacity building and capacity gaps. Reporting expectations are higher for developed countries.
Date of establishment, UNFCCC: adopted 9/5/1992, enacted: 21/3/1994. Recent/ expected developments Kyoto Protocol: adopted: 11/12/1997, enacted: 16/2/2005
Ratification Indonesia: UNFCCC ratification: 23/8/1994, Kyoto ratification: 3/12/2004 Cameroon: UNFCCC ratification: 19/10/1994, Kyoto ratification: 28/8/2002 Malaysia: UNFCCC ratification: 13/7/1994, Kyoto ratification: 4/9/2002 Thailand: UNFCCC ratification: 28/12/1994, Kyoto ratification: 28/8/2002 Ghana: UNFCCC ratification: 6/9/1995, Kyoto ratification: 30/5/2003 Nigeria: UNFCCC ratification: 29/8/1994, Kyoto ratification: 10/12/2004 Brazil: UNFCCC ratification: 28/2/1994, Kyoto ratification: 23/8/2002 Colombia: UNFCCC ratification: 22/3/1995, Kyoto ratification: 30/11/2001
42 http://www.un-redd.org/AboutUN-REDDProgramme/tabid/102613/Default.aspx 43 http://www.climateinvestmentfunds.org/cif/node/5 44 http://www.forestcarbonpartnership.org/
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Implementation – Strengths Strengths & Weaknesses • International. Although there has yet to be a universally binding agreement, the UNFCCC is the only global convention on climate change.
• Flexibility. It can be argued that the flexibility of the UNFCCC is both a strength and a weakness, but this flexibility is essential to gaining global buy-in, allowing parties to act according to their capacity and develop nationally appropriate mitigation and adaptation actions.
• Finance and technology transfer. Embedded in the UNFCCC is that developed countries should provide both financial and technical support to developing countries to help them develop sustainability and mitigate GHG emissions. Instruments such as the Clean Development Mechanism have not been without criticism but the CDM has paid for projects in 81 countries and has driven investment in a market worth $20 billion in 2010.45
• REDD-plus. Considered by many as one of the few positives to come out of the UNFCCC process. It is seen as one of the most effective and affordable means of cutting GHG emissions and the Cancun Safeguards should ensure it protects social and environmental values. Countries such as Brazil and Colombia have already made substantial progress in preparation of REDD-plus implementation.
Weaknesses • Slow progress. Many observers consider the UNFCCC processes unduly wieldy and slow, as evidenced by the fact that there is still not a universal climate change agreement.
• Weak/modest commitments. Some observers consider past commitments made by Annex 1 countries under Kyoto as modest, and have criticised Kyoto as ineffective given the large number of parties that did not make commitments during the second period.46
• Differentiated responsibility. Annex 1 countries were committed to emissions reductions under the Kyoto Protocol. However, until now, developing (Non-Annex 1) countries have not had to commit to binding emissions reductions.
• Inadequate safeguards. Whilst REDD-plus is now supported by the Cancun Safeguards, some CDM funded projects (including for palm oil biogas) have been accused of violating human rights.45
45 http://www.theguardian.com/environment/2011/jul/26/clean-development-mechanism 46 http://www.ipcc.ch/publications_and_data/ar4/wg3/en/ch13s13-es.html 47 http://www.biofuelwatch.org.uk/2011/palm-oil-in-the-aguan-valley-honduras-cdm-biodiesel-and-murders/
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Country level details Indonesia: In 2007, Indonesia was the world’s 3rd highest emitter country with ~85% of emissions coming from LUCF and the bulk of these emissions from peat fires. Indonesia plans a 26% reduction in emissions (up to 41% with financial support) by 2020 through sustainable peatland management, REDD and carbon sequestration in forestry and agriculture.48 Mitigation actions aim to not hinder economic growth and should prioritise people’s welfare (especially food security and energy resilience). One proposed means of reducing LU emissions is through the agriculture spatial plan program to redirect agricultural expansion to grassland and abandoned land. Deforestation is to be reduced in part by “empowering the economy of the community within and surrounding the forest area”. In terms of adaptation, the increased intensity of El Nino events risk increasing drought severity in Indonesia that could in turn increase forest fire risk (Indonesia Second National Communication 2012).49 Indonesia has a UN-REDD National Programme and is a participant country of the FCPF and FIP. Indonesia has received several grants from FIP focussed specifically on community-based approaches to address deforestation and forest-degradation.50 Cameroon: Cameroon has not published up-to-date data on GHG emissions, but their Initial National Communication in 2005 stated that LUCF accounted for 50% of emissions in 1994 and that Cameroon was the 3rd highest emitter in Africa at the time.51 Mitigation and adaptation plans for Cameroon are at very early stages, with only vague plans to undertake mitigation actions in part through REDD-plus and reforestation activities (Cameroon Initial National Communication 2005).9,10 Cameroon is a partner country of UN-REDD, FCPF and FIP, but as yet has no high profile REDD-plus related projects. Malaysia: In 2000, 14% of Malaysia’s emissions were from LUCF. Malaysia has a voluntary indicator of up to 40% reduction in GHG emissions intensity by 2020 compared to 2005, and a long-standing commitment to retain 50% of the land area as forest. Mitigation actions proposed by Malaysia do not explicitly address either community-based approaches or indigenous rights, although the Second National Communication (2011) argues that valuation of indigenous livelihoods could promote the value of forest conservation.10 Malaysia is a partner country of UN-REDD, FCPF and FIP, but as yet has no high profile REDD-plus related projects. Thailand: According to Thailand’s Second National Communication (2011), LUCF resulted was a net sink of GHG emissions in 2000 due to forest conservation (inc. community forests), reforestation and rehabilitation of degraded lands. It is noted that about half of reforestation up to 2000 was privately funded. Thailand plans to reduce emissions by 7-20% by 2020 in energy and transportation sectors, and also to continue efforts to improve forest conservation, rehabilitation and restoration efforts. However, the need for local community participation in forest conservation is cited as a problem in Thailand, due to ongoing human pressure on forested areas.9,10 Thailand is a participant country of FCPF. Ghana: Ghana’s economy has grown rapidly over the past few decades and this has been accompanied by increasing carbon emissions (173% increase from 1990-2000). The contribution of LUCF to emissions has increased, with land use acting as an emissions sink in 2000 but LUCF causing 25% of Ghana’s GHG emissions in 2006. Although Ghana has made no specific pledges/ commitments to reduce GHG emissions, their Second National Communication cites plans for “massive afforestation and reforestation projects to rehabilitate degraded lands” and states that REDD- plus “features strongly” in mitigation plans.9,10 Ghana is involved in REDD ‘readiness’ projects to support future realisation of these plans, as a partner country to UN-REDD, FCPF and FIP. Several projects have been funded by FIP to support REDD-plus and reforestation in Ghana, including to engage local communities in enhancement of carbon stocks through projects to develop alternative rural livelihoods that take the pressure off forests.52
48 http://unfccc.int/focus/mitigation/pre_2020_ambition/items/8167.php 49 http://unfccc.int/national_reports/non-annex_i_natcom/submitted_natcom/items/653.php 50 http://www.climatefundsupdate.org/listing/forest-investment-program 51 http://unfccc.int/resource/docs/2005/sbi/eng/18a02.pdf 52 https://www.climateinvestmentfunds.org/cifnet/?q=country/ghana
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Nigeria: As the most populous country in Africa and with a still growing population, Nigeria’s emissions in 2000 marked a 135% increase from 1990. In 2000, 40% of GHG emissions resulted from LUCF, resulting from Nigeria’s very high deforestation and degradation rate (highest in Africa). Human pressure on forests remains high in Nigeria and fuelwood remains the main source of domestic energy. Nigeria states plans to increase afforestation, agro-forestry and forest conservation, but has struggled to enforce forest protection in national reserves over recent decades with an extremely high rate of de-gazettement of forest reserves. Nigeria has no specific policies for climate change mitigation and it is a low priority for the national budget. International funding supports Nigeria’s UN-REDD National Programme, as well as FCPF and FIP projects seeking to reduce emissions from LUCF (Nigeria Second National Communication 2014).10
Brazil: Despite rapid economic growth over the past two decades, Brazil halved CO2 emissions between 2000 and 2010 almost exclusively through massive reductions in Amazonian deforestation (~70%). This means that Brazil has made unprecedented progress in exceeding the requirements of the current REDD-plus Framework, for instance through the development of a national forest monitoring system in line with the Framework and clear evidence of emissions reductions from deforestation that can be technically assessed in the context of results-based payment. In 2009 Brazil committed to voluntary mitigation actions predicted to lead to a 36-39% reduction in emissions in 2020 compared to projected emissions, again resulting largely from reduced deforestation (First Biennial Update Report of Brazil, 2014).9,53 Brazil has also established through participatory engagement Social and Environmental Principles Criteria (SEPC) to safeguard social and environmental values potentially at risk from REDD-plus projects. SEPC builds on Brazil’s already strong laws on indigenous rights and requires FPIC in any REDD-plus project.54 Numerous projects on REDD-plus readiness are running in Brazil, including projects funded by FIP focussed mostly on intensifying agricultural production and reducing deforestation in the Cerrado.55 Colombia: According to Colombia’s 2004 GHG inventory, LUCF was responsible for more emissions than any other sector (42%). Colombia currently has no commitments to reduce emissions under the UNFCCC, but has proposed some preliminary mitigation targets, including to reduce deforestation in the Colombian Amazon to zero by 2020. Subject to financial support Colombia plans to grow biofuel production to cover 20% of national fuel consumption by 2020 and without endangering forests or food security of Colombians. REDD-plus is cited as crucial to reducing emissions from deforestation in Colombia.9 Indeed, Colombia has begun developing national procedures for monitoring deforestation and intends to develop numerous mitigation forestry projects (Colombia’s Second National Communication).10 Colombia has substantial indigenous and black populations andis working collaboratively with these groups to develop social safeguards in line with the Cancun Safeguards.56 Colombia has a UN-REDD National Programme and is a participant country to FCPF and FIP.
Impacts on palm oil • CDM projects include some palm oil projects for biofuels or biogas. There may be potential for production synergy or co-funding if such projects seek to further minimise emissions by targeting expansion to degraded (LCS) areas. However, CDM biofuels projects are accused of serious human rights abuses suggesting social safeguards are inadequate. • The objectives of REDD-plus correlate closely with ambitions to protect areas of HCS. Indeed some countries are developing national policies including on land use that support reduced emissions from deforestation, for example, through targeting agricultural expansion to non- forested areas. This stands to support company actions to implement HCS methodologies. Furthermore, the Cancun Safeguards and use of existing UN conventions such as UNDRIP, provide guidance and mechanisms for protection of social rights. However, individual countries commitments under the UNFCCC and progress on REDD-plus vary greatly and these mechanisms are not yet incorporated into national legislation in most palm oil producer countries. Key actors Global Environment Facility, Intergovernmental Panel on Climate Change, Organisation for Economic Co-operation and Development, International Energy Agency and over 1500 observer NGOs and IGOs (see http://maindb.unfccc.int/public/ngo.pl?mode=wim&search=A), REDD-monitor
Measures to promote • Many people are hopeful of a universal, legally binding climate agreement this year from COP 21 compliance in Paris that, if successful, could commit all countries to GHG reductions. This would mark a huge increase in ambition for many developing countries, whose current obligations stretch only as far as voluntary reporting of GHG emissions. • The UNFCCC Compliance Committee was formed in 2006 as an independent body to facilitate, promote and enforce compliance with the Kyoto Protocol.57 The role of the Committee would presumably be extended to cover any new agreements reached by the UNFCCC.
53 http://unfccc.int/national_reports/non-annex_i_natcom/reporting_on_climate_change/items/8722.php 54 http://reddplussafeguards.com/?p=307 55 https://www.climateinvestmentfunds.org/cifnet/?q=country/brazil 56 http://unfccc.int/resource/docs/2014/smsn/ngo/465.pdf 57 http://unfccc.int/kyoto_protocol/compliance/items/2875.php
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Regulatory framework 4 UN Covenant on Economic, Social and Cultural Rights (ICESCR)
Relevant website links ICESCR: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx
Summary (what it is about) A part of the International Bill of Human Rights, the ICESCR was adopted alongside the ICCPR and UDHR. Along with the ICCPR, ICESCR is the legally binding component of the UDHR. Whilst the ICCPR is focused on avoidance of negative civil and political rights, the ICESCR refers primarily to positive economic, social and cultural rights. 164 countries were party to the ICESCR in early 2015. There is some overlap between the ICCPR and ICESCR, with part 1 (Article 1) of both Covenants containing the same text on the right to self-determination, and part 2 (Articles 2-5) the need for parties to legislate with discrimination to implement to Covenant. As for the ICCPR, parts 4 and 5 of the ICESCR cover reporting and monitoring of the Covenant and ratification and amendments respectively. The core text of the ICESCR is covered in part 3 (Articles 6-15), where the core rights requiring protection are set out, covering broadly, the rights to58 • Work, • Fair conditions of employment (including “equal remuneration for work of equal value” and safe and healthy working conditions), • Join and form trade unions, • Social security, • Protection of the family, • An adequate standard of living, including the right to food, clothing, and housing, • Health, • Education, and • Culture. Compliance with the ICESCR is monitored by the UN Committee on Economic, Social and Cultural Rights (UN CESCR). Parties are expected to submit their first report two years after ratification and then subsequently every five years. There is an Optional Protocol to the ICESCR that was adopted in 2008 whereby parties agree to let the CESCR consider complaints from individuals. It is currently ratified by 20 countries.
Date of establishment, ICESCR: Adopted: 16/12//1966; Entered into force: 3/1/1976 Recent/ expected developments
Ratification Indonesia: ICESCR: 23/2/2006; Optional Protocol: Non-party Cameroon: ICESCR: 27/6/1984; Optional Protocol: Non-party Malaysia: ICESCR: Non-party; Optional Protocol: Non-party Thailand: ICESCR: 5/9/1999; Optional Protocol: Non-party Ghana: ICESCR: 7/9/2000; Optional Protocol: Signed: 24/9/2009 Nigeria: ICESCR: 29/7/1993; Optional Protocol: Non-party Brazil: ICESCR: 24/1/1992; Optional Protocol: Non-party Colombia: ICESCR: 29/10/1969; Optional Protocol: Non-party
58 http://www1.umn.edu/humanrts/edumat/IHRIP/circle/modules/module3.htm
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Implementation – Strengths Strengths Implementation – Strengths & Weaknesses & Weaknesses • Social and cultural rights (e.g. rights to food, housing, health and cultural life) are not covered as clearly in any other convention or mechanism. • Individual complaints: The 2009 Optional Protocol to ICESCR means that ratifying parties will allow individual complaints. Due to its recent adoption, the Optional Protocol has yet to be ratified by any major oil palm grower countries.
Weaknesses
• Broad language: It has been argued that many of the complex, multi-faceted issues covered in the Covenant are not covered in sufficiently specific language. However, this was in part intentional to avoid conflicting with specific ILO standards, it also allows the text to evolve over time. The Covenant also includes language on the principle of “progressive realisation”, acknowledging that implementation of the ICESCR may be challenging in practice. • Vulnerable groups: ICESCR does not identify vulnerable groups in need of special protection, with the exception of specific mention of women and children. • Monitoring and enforcement: Similarly to the ICCPR, monitoring of compliance with the ICESCR is done by an independent body, called UN CESCR. The presence of this independent body is broadly positive, but effectiveness of monitoring is limited by the need for cooperation by parties (e.g. many parties submit national reports late). There is also limited scope for individuals to lodge complaints to the CESCR, unless an NGO lobbies on their behalf or if parties have ratified the Optional Protocol. • Aspects of labour rights are covered in less detail than many of the ILO Conventions, which would hence provide a stronger and more comprehensive safeguard. • See UDHR and ICCPR reviews.
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Country level details Indonesia: Indonesia has ratified the ICESCR but with the reservation that the right of self- determination does not apply in cases that may “dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states”. 59 This could be interpreted as allowing the Indonesian government to clamp down on any independence protests, even if peaceful, as has reputedly been the case in West Papua and Maluku over recent decades in Indonesia.60
Cameroon: In its 2012 consideration of Cameroon’s 2nd and 3rd national reports the UN CESCR raised concerns regarding the rights of indigenous peoples. It stated that despite some projects to support indigenous groups, many do not have equal rights to the remainder of the population and are vulnerable to land grabs or have even been relocated; Cameroon needs to develop a comprehensive policy on indigenous rights, and raise awareness amongst indigenous groups of their rights. There are also concerns regarding women’s rights, child labour and Cameroon’s land tenure system.61
Malaysia: Has not ratified the ICESCR and has recently passed legislation that allows the government to clamp down on political protest and freedom of speech. Vulnerable groups including women, migrants and religious minorities are considered poorly protected by national legislation.
Thailand: In late 2014, the CESCR reviewed Thailand’s 2013 National Report and raised concerns about the degree to which indigenous and local peoples lands are recognised and protected and whether prior, informed consent in decision-making processes. The Thai government responded to say that cabinet and government decisions are made public but specific, targeted engagement policies and land demarcation is not well defined.62 See ICCPR review for more details.
Ghana: Ghana has yet to submit any national reports on the ICESCR, and research suggests Ghana will struggle to meet its ICESCR obligations due in part to inequality for women and minority groups, and the relatively high incidence of rural poverty.63,64 However, Ghana is currently the only major oil palm producing country to have ratified the ICESCR Optional Protocol allowing individuals to submit complaints to the UN CESCR.65
Nigeria: The only National Report on the ICESCR to be submitted by Nigeria was in 1998. The UN CESCR’s review of this identified major challenges in implementation of the Covenant. It praised the formation of the Nigerian Human Rights Commission but stated that many of the Commission’s recommendations had gone unheeded. Since 1998, enforcement of human rights obligations in Nigeria remains low.66
Brazil: On submission of its most recent report in 2009, Brazil had begun initiating public policies on employment for disadvantaged groups although inequality remains stark between social groups (Afro-Brazilians and indigenous groups worse affected), but has ongoing problems of violence against human rights defenders (individuals/communities) often commissioned by private and public actors. Demarcation of indigenous lands and associated land reforms were identified as proceeding too slowly.67
Colombia: Submitted 5th National Report to the CESCR in 2009, and the CESCR praised Colombia for decisions in the Constitutional Court that defined criteria for determining the legal minimum wage and the right to fair remuneration, and a decision to support positive discrimination for vulnerable groups. However, indigenous and Afro-Colombian communities continue to suffer discrimination, for example, through inadequate consultation (no FPIC) on the impacts of development projects and employment discrimination.68
59 https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV‐3&chapter=4&lang=en#EndDec 60 https://www.amnesty.org/en/documents/pol10/0001/2015/en/ 61 http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=E%2fC.12%2fCMR%2fCO%2f2-3&Lang=en 62 http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/countries.aspx?CountryCode=THA&Lang=EN 63 https://www.duo.uio.no/bitstream/handle/10852/37187/THESISxx8002x.pdf?sequence=1 64 https://books.google.co.uk/books? id=zfJ17WQcV9IC&pg=PA25&lpg=PA25&dq=ghana+icescr+compliance&source=bl&ots=WwRV‐ N0ZpE&sig=f241N4v‐ nPxVAYrMTNXCrqZl TAA&hl=en&sa=X&ei=CT4uVeaVI4L9aNPGgLgH&ved=0CCwQ6AEwAzgK#v=onepage&q=ghana%20icescr%20compliance&f=false 65 http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Countries.aspx?CountryCode=GHA&Lang=EN 66 http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/countries.aspx?CountryCode=NGA&Lang=EN 67 http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/countries.aspx?CountryCode=BRA&Lang=EN 68 http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/countries.aspx?CountryCode=COL&Lang=EN
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Impacts on palm oil Impacts relate to both treatment of workers and staff in established plantations, and potential production social impacts (i.e. on communities in the area of influence) of plantation establishment. Establishment of plantations could alter the cultural and social rights of impacted communities, by resulting in changes to traditional/existing lifestyles or hindrances to livelihood realisation. Furthermore, ICESCR requires that realisation of social and cultural rights should be free from discrimination, and hence should ensure local and indigenous communities are able to enter into the work force. Evidence suggests that many of the major oil palm grower countries do not have adequate protections in place for human rights and land grabs/absence of FPIC is commonplace for development projects. See text for ICCPR and UDHR regarding the RSPO and compliance with ICESCR, and the role of human rights watchdog organisations.
Key actors UN CESCR, Amnesty International, Human Rights Watch, Sawit Watch, and other watchdog organisations.
Measures to promote Compliance with sustainability standards such as the RSPO can promote compliance with the compliance ICESCR in the absence of adequate national legislation to enforce social, cultural and economic rights. Note that the ICESCR is one of the broadest Covenants on international human rights, so reference should be made to countries’ compliance with more specific UN HR conventions and ILO conventions for more information. See also ICCPR and UDHR for more details.
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Regulatory framework 5 UN Covenant of Civil and Political Rights (ICCPR)
Relevant website links Text of the ICCPR: http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx UN Human Rights Committee: http://www.ohchr.org/EN/HRBodies/CCPR/Pages/CCPRIndex.aspx Ratification of all UN Human Rights Treaties: http://indicators.ohchr.org/ Summary (what it is A multilateral treaty committing parties to respect citizens civil and political rights including the right about) to life, freedom of religion, freedom of speech, freedom of movement, freedom of assembly, electoral rights, self-determination and legal rights to due process and a fair trial. As of It was adopted at the same time as the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Universal Declaration of Human Rights (UDHR), which together comprise the International Bill of Human Rights. ICCPR and ICESCR are binding covenants that form part of customary international law and were developed from the non-binding UDHR. 168 countries are party to the ICCPR. The Covenant is divided into 6 parts containing a total of 53 articles. Part one (Article 1) covers the right to self-determination. Part 2 (Articles 2-5) requires parties to legislate in a way that recognises rights covered by the ICCPR without any discrimination, and implement legal remedies to any violation of rights listed in the ICCPR. Part 3 (Article 6-27) lists all of the rights covered by the Covenant. Part 4 (Articles 28-45) covers the establishment of the UN Human Rights Committee and part 5 (Articles 46-47) of the Covenant states that the Covenant should not interfere with peoples’ rights to “enjoy and utilise fully and freely their natural wealth and resources”. Part 6 (Articles 48-53) covers ratification and amendment of the Covenant.69 The core rights covered by the ICCPR are: • Freedom from torture and other cruel, inhuman or degrading treatment or punishment, • Freedom from slavery and forced labour, • Arrest, detention and imprisonment, • Movement into, within and out of a State, • Treatment by the judicial process, • Privacy, home and family life, • Freedom of thought, religion and expression, • Peaceful assembly, • Freedom of association, including through trade unions, • Marriage and the rights of children, • Political participation, and • Equality and non-discrimination. The ICCPR also recognises the negative right of a people not to be deprived of means of subsistence, and guarantees people the right to practice, enjoy and maintain their culture. There are 2 optional protocols to the Covenant that cover respectively the establishment of an individual complaints mechanism and abolition of the death penalty (except in extreme circumstances for war crimes).70 ICCPR is monitored by the UN Human Rights Committee which is tasked with reviewing regular reports of party states on their implementation of the treaty.
Date of establishment, Adopted: 16/12/1966, entered into force: 23/3/76 Recent/ expected developments
69 https://treaties.un.org/doc/Publication/UNTS/Volume%20999/volume-999-I-14668-English.pdf 70 http://indicators.ohchr.org/
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Ratification Indonesia: ICCPR: 23/2/2006; Optional Protocol: Non-party; Second Optional Protocol: Non-party. Cameroon: ICCPR: 27/6/1984; Optional Protocol: 27/6/1984; Second Optional Protocol: Non- party. Malaysia: Non-party to the ICCPR. Thailand: ICCPR: 29/10/1996; Optional Protocol: Non-party; Second Optional Protocol: Non-party. Ghana: ICCPR: 7/9/2000; Optional Protocol: 7/9/2000; Second Optional Protocol: Non-party. Nigeria: ICCPR: 29/7/1993; Optional Protocol: Non-party; Second Optional Protocol: Non-party. Brazil: ICCPR: 24/1/1992; Optional Protocol: 25/9/2009; Second Optional Protocol: 25/9/2009. Colombia: ICCPR: 29/10/1969; Optional Protocol: 29/10/1969; Second Optional Protocol: 5/8/1997.
Implementation – Strengths Strengths & Weaknesses The ICCPR is one of two legally binding covenants of the UDHR. There is a body in place (UN HRC) that is responsible for monitoring compliance and that is able to review parties’ progress in implementing the covenant’s requirements. In general, most parties are showing positive trends in its implementation and are beginning to put in place relevant national legislation. In comparison to international environmental legislation, human rights covenants such as the ICCPR are better monitored and hence can be considered more legally binding. Weaknesses • Although legally binding, the ICCPR requires parties to establish domestic legislation for the implementation of the ICCPR. Therefore, it is these national laws that are strictly binding, but these are implemented at the discretion of individual parties and such legislation is embryonic in many party states. • Continued HR breaches: many parties to the ICCPR continue to violate human rights, as exemplified in the following section. The UN HRC is tasked with monitoring compliance with the ICCPR. The HRC’s main means of assessing compliance is by reviewing national reports submitted by parties. There is the option of UN Special Rapporteurs conducting independent visits to countries to verify claims but some countries are resistant to such visits. Furthermore, the HRC can request parties to address issues but ultimately can only make recommendations and cannot enforce actions. There is also limited scope for individuals to lodge complaints to the CESCR, unless an NGO lobbies on their behalf.71 • See UDHR and ICESCR reviews.
71 http://www.euij-waseda.jp/common/pdf/101104O’FlahertyScript.pdf
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Country level details Indonesia: The UN Human Rights Committee (HRC) In concluding observations on its initial report submitted 4/3/2015, the Indonesian government committed to “legal reform aimed at strong, reliable, consistent, and indiscriminative enforcement”. Furthermore, the Ministry of Religious Affairs is in the process of drawing up a Bill on the Protection of Religious Communities, to protect freedom of religion. However, Amnesty International has ongoing concerns about human rights violations by security services and against peaceful political activists and religious minorities. Furthermore, the HRC has questioned whether Indonesian law has in place mechanisms by which individuals can seek remedy for rights violations.72,73 Cameroon: Cameroon has begun strengthening its national legislation to ensure better protection of human rights and freedoms, however, considerable problems remain especially regarding women’s rights and violence against women. Freedom of association and assembly are also widely restricted.5,74 Malaysia: Malaysia is the only major oil palm producer country not to have ratified the ICCPR. Serious restrictions on freedom of expression, allegations of continued election fraud, intimidation against religious minorities and human rights violations by police are particular issues.5 See UDHR review for more details. Thailand: Thailand has established a National Human Rights Commission and has a National Plan of Action on Human Rights, but has yet to fully incorporate all aspects of the Covenant into national law. Political freedoms, freedom of expression, freedom of association and freedom of assembly are heavily restricted in Thailand, in part due to ongoing political tensions and following a military coup in May 2014. Community leaders and human rights defenders are regularly the subject of intimidation or worse, and child labour remains widespread.5,75 Ghana: Ghana’s reporting on implementation of the ICCPR has been limited with only one national report submitted. Violence against women is widespread in Ghana despite being illegal. Victims receive insufficient support. School enrolment rates have increased but child labour remains a concern.5,76 Nigeria: Despite the high number of ratified treaties, enforcement is extremely low due to high levels of violence that continue to take place. Corporate accountability (previously of oil companies), freedom of expression and accountability are also reported to be low.5 Brazil: In its 2005 report, the HRC praised Brazil for introducing a ‘Plan against Violence in the Countryside’, but expressed concern about the slow rate of demarcation of indigenous lands, evidence of forced evictions and lack of legal remedies for victims of eviction. As a result of its federal system, some states were said to be especially poor at addressing HR violations. Brazil’s most recent report was due in 2009, but has yet to be submitted. Amnesty International report continued violations of indigenous peoples’ human rights.5,77 Colombia: In 2010, the HRC praised the jurisprudence of the Constitutional Court in applying international human rights standards, however, expressed serious concerns about sexual violence against women, high rates of forced displacement and stigmatisation and minimal land rights of indigenous and Afro-Colombian people, in particular by guerrillas and paramilitaries.5
Impacts on palm oil The majority of large oil palm grower countries have ratified the ICCPR, except for Malaysia, production although national implementation and legislation governing the ICCPR varies greatly. RSPO certified companies are also required to comply with the ICCPR, and hence the RSPO acts as a useful basis of enforcement through its complaints procedure. The same logic could also apply to companies complying with responsible investment standards, such as the IFCs Performance Standards. Outside certification contexts the implementation of ICCPR is not guaranteed and there will be differences depending on national legislation. Indeed, most of the large oil palm producing countries have seen complaints of human rights violations against oil palm companies outside of certification contexts, for example accusations of land grabs, inadequate compensation and displacement of local and indigenous communities.78 Advocacy and watchdog organisations remain crucial for identifying these potential human rights violations.
Key actors The UN Human Rights Committee, Amnesty International, Human Rights Watch, Sawit Watch, and other watchdog organisations.
72 http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2fIND%2fCO%2f1%2fAdd.1&Lang=en 73 https://www.amnesty.org/en/documents/pol10/0001/2015/en/ 74 http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/countries.aspx?CountryCode=CMR&Lang=EN 75 http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/countries.aspx?CountryCode=THA&Lang=EN 76 http://www.ohchr.org/EN/HRBodies/UPR/Pages/Highlights23October2012pm.aspx 77 http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR/C/BRA/CO/2&Lang=En 78 http://www.bloomberg.com/bw/articles/2013-07-18/indonesias-palm-oil-industry-rife-with-human-rights-abuses
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Measures to promote The UN Human Rights Committee is already in place to monitor compliance with the ICCPR, and compliance could be first port of call for identifying the effectiveness of ICCPR as a social safeguard in different countries. However, the UN HRC has a limited role and national capacity to implement the Covenant varies greatly, hence additional measures to promote compliance could include the promotion of RSPO certification or other sustainability standards/policies (e.g. IFC PSs and individual company policies or SOPs). Many of these are likely to exceed national legislation and provide stronger safeguards if well monitored and enforced. Any targeted and inclusive efforts to engage communities in decision making and due diligence processes can ensure compliance with the ICCPR. Such engagement can be supported by local social NGOs and potential risks garnered by communication with advocacy/watchdog NGOs.
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Regulatory frameworks ILO 29 - Forced Labour Convention (Convention Concerning Forced or Compulsory Labour) 6 & 7 ILO 105 (supplements ILO 29) – Abolition of Forced Labour Convention
Relevant website links Summary for 29: http://www.ilo.org/dyn/normlex/en/f?p=1000:12100:0::NO::P12100_ILO_ CODE:C029 Summary for 105: http://www.ilo.org/dyn/normlex/en/f?p=1000:12100:0::NO::P12100_ILO_ CODE:C105 Protocol to Convention 29: http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/ documents/meetingdocument/wcms_248900.pdf Protocol background: http://www.ilo.org/global/about-the-ilo/media-centre/press-releases/ WCMS_246549/lang--en/index.htm Application of ILO standards 2015 review: http://www.ilo.org/wcmsp5/groups/public/---ed_norm/--- relconf/documents/meetingdocument/wcms_343022.pdf Implementation: http://www.ioe-emp.org/fileadmin/ioe_documents/publications/ILO_ILC/2015/ EN/_2015-02-09__C-027_ILO_CEACR_2015_General_Report_and_observations_concerning_particular_ countries.pdf http://humanityunited.org/pdfs/Modern_Slavery_in_the_Palm_Oil_Industry.pdf Guatemala: http://www.verite.org/sites/default/files/images/RiskAnalysisGuatemalanPalmOilSector_0.pdf
Summary (what it is ILO 29: Prohibits the use of force labour in all forms irrespective of the nature of the work or the about) sector of activity within the shortest possible period. Protocol for ILO 29: This recently developed protocol is legally binding designed to strengthen global efforts to eliminate forced labour. Essentially the protocol creates new obligations to prevent forced labour, to protect victims and to provide access to remedy such as compensation. The protocol also provides detailed measures that Governments need to take to protect workers, including labourers. ILO 105. Supplemented ILO 2. This convention cancelled a number of exceptions to abolishment – such as punishment for strikes. Thus this convention adopted further proposals with regards to abolition of certain forms of forced or compulsory labour constituting a violation of the rights of man. The convention specified that forms of forced labour includes: (1) as a means of political coercion; (2) as a means of labour discipline; (3) punishment for having participated in strikes; (4) as a means of racial, social, national or religious discrimination. Date of establishment, ILO 29: Initially adopted in 1930, and came into force in May 1932. Recent/ expected Protocol of 2014: Adopted in 2014. developments ILO 105: Initially adopted in 1957, and came into force January 1959. Ratification (if relevant) Key palm oil producing countries which have ratified the convention include: ILO 29: Brazil, Cameroon, Colombia, CIV, Ecuador, Gabon, Guatemala, Ghana, Guinea, Honduras, Indonesia, Malaysia, Mexico, Nigeria, PNG, Thailand, Protocol to ILO 29: Currently no countries have ratified this protocol. ILO 105: Brazil, Cameroon, Colombia, CIV, Ecuador, Gabon, Guatemala, Ghana, Guinea, Honduras, Indonesia, Mexico, Nigeria, PNG, Thailand Note: Malaysia was denounced in 1990 for ILO 105.
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Implementation: does Peninsular Malaysia: According to the ILO 2015 implementation review, Malaysia is one of a handful it provide any safeguard of countries which have not sent any reports (ratification has reporting obligations) for the past 2 or related to the socio- more years. economic impacts of oil palm plantations on affected communities?
Implementation – Strengths: Strengths & Weaknesses • The CEACR annual reports is an effective mechanism for providing summaries of observations and comments on the different States that have ratified the different ILO conventions. The publicly available report provides information on where there are concerns and in relation to which issues – this level of transparency is extremely useful as it puts State’s accountable for any gaps and contradictions. • ILO, with its national partners, can work to strengthen the capacity of national agencies to deal with issues related to forced labour. • Sharing of experiences - an ILO report on Brazil stated that Brazil has made significant progress in combating forced labour, that it is promoting the exchange of experiences on these issues with other Latin American countries79.
Weaknesses: • Forced labour more prevalent in situations where migrant work is used. • Labour abuses are reported to be common in the palm oil sector - while voluntary standards have been put in place to provide some level of safeguard, incidents of forced labour still remain. This may be because certification assessments only look at a small sample of a company’s operations, and/or that forced labour likely to take place at smallholder settings, which are criticised sometimes for not being as rigorously assessed as larger companies. • Reportedly big violations by Malaysia for complying with ILO 29. Violations on treatment of migrant workers, including forced labour and criminalising undocumented migrant workers for deportation without adequate investigation into their cases. • Violations for other palm oil producing countries as well including Brazil, Colombia, Guatemala, Indonesia. • Convention wording is very general and high level - Lack of details in the Convention with regards to how abolishment can be done. Perhaps a reason behind poor implementation of the provisions.
79 http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---declaration/documents/publication/wcms_111297.pdf
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Country level details The following reports are found in the Reports of the CEACR (2015). Findings for both C29 and C105. Cameroon: Certain measures taken on C29 has been positively noted. However recent comments by the ILO Committee state that Cameroon need to put additional measures in place that requires prisoners to give consent to work for private entities. Colombia: Tracking in persons, especially women and children, remains a major problem in Colombia despite the Government’s commitment to combat this issue. Thailand: Reported to have penal sanctions involving compulsory labour as a punishment for holding or expressing political views. Malaysia: Has not sent the country report to ILO. Major issues with regards to: (1) treatment of migrant workers and (2) trafficking in persons. Treatment of migrant workers has further deteriorated, exposing more migrant workers to abuse and forced labour according to the Committee report. In some situations, it has been reported that workers who willingly enter Malaysia encounter forced labour conditions at the hands of employers or labour recruiters. Examples of this are in plantation environments. Committee urge the Government to take immediate and effective measures to ensure perpetrators were prosecuted. Malaysia are trying to put things in place to safeguard migrant workers, including development of a Special Enforcement Team and developing of MOU with eight countries (including Indonesia). In terms of trafficking – Malaysia reported to be a transit country for trafficking of men, women and children particularly for forced prostitution and forced labour. Other reports have found: Indonesia: Examples of forced labour are linked more to child labour and also use of migrant workers. Guatemala: Number of examples of forced labour in the palm oil sector related to vulnerable migrant workers in the Sayaxche region. Situations of lack of consent including from induced indebtedness, deception or false promises about types and terms of work, withholding and non-payment of wages, and retention of identify documents or other valuable personal possessions. Brazil80: Existence of forced labour through coerced recruitment and employment practices - often related to debt bondage still exists. In the agriculture sector – it has been linked largely to the cattle industry.
Impacts on palm oil Currently – several sustainability voluntary standards provides measures on forced labour – requiring production that no form of forced labour exists. These voluntary standards have been effective in ensuring that these issues are indeed safeguarded in a plantation setting. Malaysia, Guatemala, Ecuador, Brazil – provide some examples of palm oil producing countries were issues related to forced labour still exists. Please also refer to text under section ‘implementation’.
Key actors Government labour department Local/national workers’ unions Social NGOs
Measures to promote Please also refer to recommendations for ILO 169. compliance • Pro-active measures to raise awareness on topics • Strengthening employer organisations, promoting worker unions, putting in place better community & worker engagement mechanisms.
80 http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---declaration/documents/publication/wcms_111297.pdf
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ILO 111 – Discrimination in Respect of Employment and Occupation or Discrimination Regulatory framework 8 (Employment and Occupation) convention
Relevant website links Summary of convention: http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO:121 00:P12100_INSTRUMENT_ID:312256:NO Guidance: http://www.unrol.org/files/wcms_100510.pdf Implementation: http://ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/ genericdocument/wcms_152771.pdf http://www.ioe-emp.org/fileadmin/ioe_documents/publications/ILO_ILC/2015/EN/_2015-02- 09__C-027_ILO_CEACR_2015_General_Report_and_observations_concerning_particular_countries. pdf
Summary (what it is about) Considered one of the 8 fundamental ILO conventions. Main scope is with regards to discrimination in the field of employment and occupation. Discrimination is also seen as a violation of rights as stated by the Universal Declaration of Human Rights (UDHR). Requires states to enable legislation (e.g. put in place a national policy) which prohibits all discrimination and exclusion on any basis including race, colour, sex, religion, political opinion, national/ social origin that is not based on equal opportunities. Intent is to not nullify or impair equality of opportunity or treatment in employment or occupation. C111 provides an important framework for promoting the rights of indigenous women and men to equality and decent work in line with C169.
Date of establishment, Adopted in June 1958 and came into force in 15 June 1960. Recent/ expected developments
Ratification (if relevant) 172 countries have ratified the convention. Of the major palm oil producing countries, the following have ratified: • Colombia, • Cameroon, • Brazil, CIV, Gabon, Ghana, Guatemala, Guinea, Honduras, Indonesia, Mexico, PNG Malaysia & Thailand have not ratified this convention.
Implementation: does • According to an ILO standard review81: there seems to be a general acceptance of the it provide any safeguard principles of non-discrimination and equal remuneration, including for rural workers. However related to the socio- the Committee of Experts on the Application of Conventions and Recommendations (CEACR) have stressed in several comments about the fact that there remains an absence in legislation economic impacts of oil providing equality of treatment and equal remuneration for agriculture workers, with palm plantations on affected particularly adverse effects for women and workers belonging to disadvantage groups. communities? • In 2007, 18.4% more women are in the work force than in 199782.
81 http://ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/genericdocument/wcms_152771.pdf 82 http://www.ilo.org/wcmsp5/groups/public/@dgreports/@gender/documents/publication/wcms_098059.pdf
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Implementation – Strengths Strengths: & Weaknesses • C111 has stronger provisions in terms of what the Government needs to do or have in place in order to meet the provisions of the convention. Therefore in some ways provides more guidance on what this would mean in practice. • Aligns itself closely with the UDHR and also ILO convention on indigenous peoples. It provides a framework for promoting indigenous and tribal peoples’ right to engage in traditional occupations and ensuring no discrimination in employment and occupation based onsocial ‘ origin’. • Potential employment benefits related to palm oil production – particularly for those from particular ‘social origins’ i.e. indigenous peoples and tribes. • Generally – implementation of C111 is reportedly done well. Major implementation issues have not been identified for major palm oil producing countries who have ratified C111, however there are some notable exceptions: Cameroon, Honduras, and PNG.
Weaknesses: • Weakness in addressing sexual harassment83. Women often fail to report sexual harassment incidents to employers due to being unaware of their rights. Currently ILO seen to be silent on this issue. • Reported absence in legislation on providing equality of treatment and equal remuneration for agriculture workers. Situation further challenged for disadvantaged groups (e.g. Women) • Even if legislation exists – CEACR reports that agriculture workers may still face discrimination (particularly women, indigenous workers, migrant workers and lower cast workers), abusive working conditions, and are often paid lower wages. • Literature review gives a sense that agriculture related discrimination may still exist in several palm oil producing countries – however not reported & monitored fully. Therefore while international level reviews of ILO is not detailed on specific sectors like agriculture – implementation issues is likely to still exist, particularly for women and indigenous peoples’.
Country level details Recent report on the implementation of ILO Conventions for 2015. Cameroon: Process for revising labour code is still under way – currently labour code does not take into account several provisions of convention with regards to equality and non- discrimination. Current legislation wording restricts women equality in occupation – as husband has the right to objective to his wife working by invoking interests of household. Committee urging government for several years on removing provisions in national legislation that has effect of nullifying equality of opportunity/ treatment for women in employment and occupation. Honduras: Reported that wide gender wage gap exists between women and men – and more pronounced in agriculture. Nigeria: Nigeria has not sent report on C111 & observations/ comments raised previously on provisions that are not in line with ILO 111. PNG: PNG not sent report. Several comments on lack of legislative provisions to address non- discrimination. Reports that increase in violence against Asian workers and entrepreneurs who are blamed for taking away employment opportunities. No laws prohibiting discrimination against persons living with HICV and AIDS.
Impacts on palm oil Currently – several sustainability voluntary standards provides measures on non-discrimination in production the workforce. While this explicitly includes indigenous and local people, and women – provisions are not in depth compared to what is found in the convention itself. Please also refer to text under section ‘’implementation’.
Key actors Government labour department Local/national workers’ unions Social NGOs
Measures to promote Please also refer to recommendations for ILO 169. compliance • Pro-active measures to raise awareness on topics • Strengthening employer organisations, promoting worker unions, putting in place better community & worker engagement mechanisms.
83http://www.laborrights.org/publications/international-labor-organization-ilo-convention-no-111
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Convention 169: Indigenous and Tribal Peoples in Independent Countries Regulatory framework 9 (superseded & replaced ILO 107)
Relevant website links Summary: http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ INSTRUMENT_ID:312314 http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/publication/wcms_205225. pdf Review of convention: Mackay, F. A guide to Indigenous Peoples’ Rights in the ILO. Implementation of ILO: http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/meetingdocument/ wcms_343022.pdf http://www.ifc.org/wps/wcm/connect/cba33980488556edbafcfa6a6515bb18/ILO_169. pdf?MOD=AJPERES Colchester, M. 2011. Palm oil and indigenous peoples in southeast Asia. (http://www.forestpeoples. org/sites/fpp/files/publication/2010/08/palmoilindigenouspeoplesoutheastasiafinalmceng_0.pdf) Ratified countries: http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11300:0::NO:11300 :P11300_INSTRUMENT_ID:312314:NO Indonesia: http://news.mongabay.com/2013/0613-yan-man-shing-indigenous.html
Summary (what it is A major binding international convention concerning indigenous peoples – a convention which led to about) the Declaration on the Rights of Indigenous Peoples. Primary purpose is to‘recognise the principle of respect for the identity and wishes of the [indigenous peoples] concerned and to provide for the increased consultation with, and participation by, these populations in decisions affecting them’. In summary, the convention protects the rights of indigenous and tribal people, including (1) ensuring non-discrimination; (2) requiring special measures by Government to safeguard persons, institutions, property, labour, cultures and environment of these people; (3) requiring consultation and participation of these peoples in relation to development projects and other questions of governance, etc.; (4) respecting their customary and traditional customs and ensuring equal benefits and rights like the other members of the national community. Convention applies to (1) tribal peoples in independent countries who are distinguishable (social, culturally and economically) from other national communities, and whose status is regulated wholly or partially by their own customs/ traditions or by specific laws/ regulations; and (2) indigenous peoples who are descendants from populations which inhabited the country or a geographical region to which the country belongs at the time of conquest or colonisation, etc. Such groups can be self- identified. The purpose of this convention is to protect the rights of the peoples mentioned above, to guarantee respect for their integrity, and to empower their rights for decision-making & representation. This includes requiring Governments to have responsibility for: (1) equal benefit to other members of populations from rights and opportunities from national law and regulations; (2) promoting social, economic & cultural rights of these peoples with respect to their identify, customs and traditions; (3) assisting in eliminating socio-economic gaps that may exist between indigenous peoples and other members of the national community. Another key component of this ILO convention is that it allows indigenous and tribal people to represent themselves through their own representative institutions; consultations with objective of achieving agreement or consent; rights to decide their own priorities, retain their own customs and resolve offences according to customary law (compatible with international human rights) (Article 6-9). Date of establishment, ILO 169 was established in 1989, and came into force: 5 September 1991. While this convention Recent/ expected replaced ILO 107, the convention remains in force for those countries which ratified it but NOT developments ratified ILO 169.
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Ratification (if relevant) Relevant countries (to palm oil production) that have ratified this convention includes: Ratification of ILO 169: Brazil (2002), Colombia (1991), Ecuador (1998), Guatemala (1996), Honduras (1995), Mexico (1990) Ratification of ILO 107: Ghana (Dec 1958) Major palm oil producing countries of Indonesia, Malaysia, Thailand have not ratified either conventions.
Implementation: does In terms of implementation – it should be noted that ILO conventions require Governments to it provide any safeguard implement action plans. Thus it does not explicitly require the private sector to implement the related to the socio- provisions – however, they clearly play an important role. States that ratify conventions are required economic impacts of to develop and submit an Action Plan on the Implementation for approval by the Cabinet. oil palm plantations on Safeguards provided by convention on socio-economic impacts of oil palm plantations requires the affected communities? Government to ‘recognise the principle of respect for the identity and wishes of the [indigenous peoples] concerned and to provide for the increased consultation with, and participation by, these populations in decisions affecting them’. Therefore within the palm oil sector, this would apply to both existing and in particular new developments. The company would need to ensure that the company has identified indigenous and tribal peoples, ensure their participation and consultation on decisions affecting them, respect their rights to land, to finding their own representative, and to equal benefits. As mentioned, ILO is required to be implemented at the government level, therefore frameworks for the palm oil sector is not necessarily present. Thus having voluntary standards such as the RSPO plays an important role as it provides a mechanism for implementing the provisions within relevant ILO conventions.
Implementation – Strengths: Strengths & Weaknesses • Reporting obligations – every year states which have ratified the convention must report on plans/ progress. Compliance to these reporting obligations are reported by ILO on an annual basis. • As a minimum – provides international oversight and a measure of transparency to indigenous- state relations, consultations and negotiations (previously they would have been entirely within the jurisdiction of the state). • Safeguards indigenous persons and their institutions, property, labour, cultures and environment • Removes discrimination and provides equal rights of citizenship to indigenous peoples (i.e. they have the same rights) • Monitoring system in place: which allows indigenous persons to complain should there be any violations against the obligations/ should the obligations not be fulfilled • The ILO 169 is said to be the only international law that recognises the land ownership rights of indigenous peoples
Weakness: • Reportedly – many indigenous peoples have ‘severely’ criticised the convention due to the lack of self-determination language, weak provisions on land, territories, resources and relocation; lack of consent standard and the absence of meaningful indigenous participation in the revision process (McKay) • Not all major palm oil producing countries have ratified this convention, therefore implying that indigenous peoples’ rights are not adequately safeguarded by this international convention. It will thus be more important for relevant countries to have other measures in place to safeguard these rights. • Particularly for issues related to rights of indigenous and tribal peoples – it is critical for these groups to be part of the interpretation of the convention at the individual state levels. Wording of the provisions in some conventions (e.g. 169) can allow for flexibility in interpretation – thus for effective implementation, consultation/ involvement of affected parties is key. There are criticisms by rights’ advocates that the continuing violations of indigenous peoples’ rights is also attributable to the fact that indigenous peoples are not adequately consulted with during interpretation of the conventions. • Weakness in implementation of provisions at a national level. Access to justice not strong in all palm oil producing countries.
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Country level details ILO Report: • Of the oil palm producing countries, Guinea, Peninsular Malaysia have not provided reports between 2013 and 2015. Colombia: Concerns over the violation of the Raizal peoples’ ancestral rights (San Andres, Santa Catalina and Providencia archipelago). Indonesia: has not ratified this C169 and it was reported that in a response to the United Nations Periodic Review in 2012, a four-year human rights check-up for all countries, Indonesia said it does not recognise the application of the indigenous peoples concept84. The constitution of the country is meant to protect customary rights, however severely limited under the Forestry Law and Basic Agrarian Law. Land conflicts, abuse of human rights, requiring land rights to be given up to private sector is reported to be extremely common and widespread. Malaysia: Has not ratified C169 and reported to provide little protection of indigenous peoples’ rights as recognised in international and customary laws. Land conflicts, abuse of human rights is reported to be widespread. In Sarawak, Government is said to have tightened restrictions instead of recognising indigenous peoples’ rights to land. Violations of human rights reported in other Latin American countries as well, including Colombia, Honduras.
Impacts on palm oil • If governments are found not to be putting adequate measures in place for the implementation production of provisions within the convention they have ratified, this would likely affect palm oil operations from meeting the requirements as well. Examples of this has been found in relation to several IFC-financed projects in Latin America. This has resulted in projects being delayed due to troubled community relations. • Technically, private sectors operating in countries which have not ratified the convention (e.g. Indonesia) can violate the rights under the convention – as long as it does not violate the any of the national regulations.
Key actors ILO, Forest Peoples’ Programme, national advocacy organisations
Measures to promote Recommendations: compliance • Promote use and implementation of voluntary standards such as RSPO, IFC, etc.: forms good framework for implementation of provisions within convention • Engage with Government to better understand enforcement mechanisms for ratified treaties at the palm oil sector level • Involve watch dogs, such as Amnesty International and other local organisations, to assist in enforcement at national levels • Development of guidance for companies on how to ensure components of provisions are implemented well (e.g. ensuring companies are dealing with correct representatives of indigenous and tribal peoples, ensuring that companies adequately consult indigenous peoples, etc.)
84http://news.mongabay.com/2013/0613-yan-man-shing-indigenous.html
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UN Universal Declaration on Human Rights (UNDHR) Regulatory framework 10 (is not a treaty, so does not directly create legal obligations for countries)
Relevant website links UDHR: http://www.un.org/en/documents/udhr/ UDHR: https://www.humanrights.gov.au/publications/what-universal-declaration-human-rights Int’l Bill on Human rights: http://www.ohchr.org/Documents/Publications/FactSheet2Rev.1en.pdf List of Human Right Treaties: https://treaties.un.org/pages/Treaties.aspx?id=4 Monitoring of int’l human right treaties: http://www.ohchr.org/EN/HRBodies/Pages/TreatyBodies.aspx 2014/15 state of the world’s human rights: http://www.amnesty.org/en/documents/ pol10/0001/2015/en Human Rights Indicators: http://indicators.ohchr.org/
Summary (what it is about) An international document, consisting of 30 articles, and which states that the basic rights and fundamental freedoms to which all human beings are entitled. Key articles include (art 1) being born free and equal in dignity and rights; (art 2) being entitled to all rights and freedoms without discrimination; (art 4) being free of slavery or servitude; (art 10) being entitled in full equality to a fair and public hearing; (art 23) has the right to form and join trade unions. This declaration is not a treaty, therefore it does not directly create legal obligations for countries. Having said that, over the past 5-6 decades the Declaration fundamentally influenced the development of international human right’s law: (1) the International Covenant on Civil and Political Rights (ICCPR) and (2) the International Covenant on Economic, Social and Cultural Rights (ICESCR), both of which came into force as international law in 1976. Countries’ frequent referral and inclusion of the Declaration has made it not only one of the ‘most important and far reaching of all UN declarations’ but also due to the development of subsequent Covenants, binding by member States as part of customary international law. There are currently 18 International Human Rights Treaties There exists enforcement mechanisms at the international levels, including the (1) complaint mechanism (often requires exhaustion of domestic mechanisms first) and the (2) reporting/ monitoring mechanism – does not result in a legally binding decision. Date of establishment, This Declaration was adopted by the General Assembly of the UN on 10 December 1948. The Recent/ expected Declaration gave rise to a number of subsequent treaties/ Bills, including (1) The International Bill developments of Human Rights; (2) International Covenant on Economic, Social and Cultural Rights (ICESCR); (3) International Covenant on Civil and Political Rights (ICCPR); (4) 2 additional ‘Optional Protocols’. The Covenants essentially developed most of the rights in the UDHR, making them effectively binding on States that have ratified them. Therefore together with the UDHR, the Covenants comprise the International Bill of Human Rights.
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Ratification Key palm oil producing countries with ratification of international human rights treaties include: Indonesia: Ratified 10 treaties: International convention on the elimination of all forms of racial discrimination, International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, Convention on the Elimination of all forms of Discrimination Against Women, Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Convention on the Rights of the Child, International convention on the protection of the rights of all migrant workers and members of their families, Convention on the Rights of Persons with Disabilities. Cameroon: Ratified 9 treaties: International Convention on the Elimination of All Forms of Racial Discrimination, International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural Rights, Convention on the Elimination of all forms of Discrimination Against Women, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Convention on the Rights of the Child. Malaysia: Ratified 5 treaties: Convention on the Elimination of all forms of Discrimination Against women, Convention on the Rights of the Child, Convention on the Rights of Persons with Disabilities. Thailand: Ratified 11 treaties – including all core treaties, aside from the Convention on the Protection of Migrant Workers and Members of their Families. Ghana: Ratified 12 treaties – including all core treaties. Nigeria: Ratified 14 treaties – including all core treaties. Brazil: Ratified 15 treaties – including all core treaties, aside from the Convention on the Protection of Migrant Workers and Members of their Families. Colombia: Ratified 14 treaties – including all core treaties
Implementation – Parties to international treaties assume obligations and duties under international law – which is Strengths & Weaknesses to respect, to protect and to fulfil human rights. By ratifying treaties, Governments are required to put in place domestic measures in order to be compatible with the applicable treaty obligations. Therefore the domestic legal systems and measures that are put in place form theprinciple platform for the protection of human rights. Strengths: At the international level, there are several measures put in place to monitor the implementation of treaties by member State parties, which in theory holds member states accountable to their obligations. At the international level, each treaty has established a committee of experts to monitor implementation by member State parties. Additionally where domestic measures do not adequately protect/ enforce the rights of humans, mechanisms for raising disputes/ grievances at the regional and international levels are in available – with the ultimate aim of ensuring enforcement improves at the local level. In terms of international regimes, it is considered that international norms such as those represented by the human rights treaties, have the strongest implementation and enforcement mechanisms in place85. Weaknesses: Despite these international laws, there continues to be abuse of human rights by state parties, as was reported by the recent Amnesty International Report. The strength of the national legal system to enforce the law, directly impacts the degree of implementation and enforcement of the articles within this Declaration. Thus if a country’s legal system is weak – it is very likely that the enforcement of relevant treaties are weak as well. Additionally, while there exists a reporting & monitoring mechanism at the UN level – there have been concerns by human rights advocates that these reporting mechanisms do not provide direct relief for victims86. This may be because such mechanisms do not have direct authority to sanction states for non-compliances.
85 http://ilia.humanrightshouse.org/pluginfile.php/2142/mod_resource/content/1/010_ru_MoR_C3.pdf 86 http://nyujilp.org/wp-content/uploads/2013/04/45.1-Saunders.pdf
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Country level details87 Below are headlines only – please read the Amnesty International Report for more details: Indonesia: New President, Joko Widodo, promises to improve human rights. However, security forces continue to face allegations of human rights’ violations and attacks against religious minorities continues. Malaysia: Legislation in existence to investigate, charge and imprison human rights defenders, opposition politicians has come into place. Reports of human rights violations by police persists, including deaths in custody. Religion minorities and LGBTI face harassment and intimidation. Thailand: Recent coup (May 2014) led to imposition of martial law – legislation used to restrict freedom of expression. Colombia: reported increased attacks on human rights’ defenders. Continued armed conflict. Violations against indigenous peoples, women, youth, activities, trade unions, afro-descendants over the past 50 years. Nigeria: Serious human rights violation and conflicts between Government forces and Boko Haram – violations at both sides. Therefore despite high number of ratified treaties, enforcement is extremely low due to high levels of violence that continues to take place and freedom of expression also low. Low levels of accountability is also reported.
Impacts on palm oil The majority of the core palm oil producing countries appear to have ratified core Human production Rights’ treaties with the exception of Malaysia. While there are debates on the effectiveness of the implementation of these international treaties by member States’ it should be noted that implementation of these requirements are necessary as part of the RSPO certification process. Therefore by requiring RSPO certification by palm oil producing companies, this forms an important basis for the implementation and enforcement of relevant treaties and conventions. However, for companies that are not following RSPO certification and where legal mechanisms are weak, there is risk that the enforcement of the articles within relevant human rights’ treaties will not be effectively implemented. Enforcement will therefore rely on advocacy organisations, such as Amnesty International, to voice these issues and report them to the available UN mechanisms.
Key actors Amnesty International – a watch dog on Human Rights Violations
Measures to promote Recommendations: compliance - Promote implementation of RSPO: forms good basis - Engage with Government to better understand enforcement mechanisms for ratified treaties - Involve watchdogs, such as Amnesty International and other local organisations, to assist in enforcement at national levels - Support efforts for empowering communities
87 Amnesty international 2014/15 report
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Regulatory framework 11 International Conventions on the Elimination of All Forms of Racial Discrimination (ICERD)
Relevant website links ICERD: http://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx Committee on the Elimination of Racial Discrimination (CERD): http://www.ohchr.org/EN/ HRBodies/CERD/Pages/CERDIndex.aspx Summary (what it is about) ICERD was adopted by the UN General Assembly in 1965 and commits members to eliminating racial discrimination and the promotion of understanding amongst all races. 177 countries were Party to ICERD in April 2015.88 The structure of ICERD follows that of the UDHR, with three parts made up of 25 articles. Part 1 (consisting of Articles 1-7) commits parties to eliminating racial discrimination, eradicating racial segregation, not sponsoring or defending racism and reforming any laws that could lead to discrimination on the basis of race. Parties are also required to implement public education to promote tolerance and understanding of different races. Part 2 covers monitoring and implementation (including a dispute resolution and individual complaints mechanism) and Part 3 the ratification and amendment of the Convention. The Convention is legally binding and incorporates both a dispute resolution mechanism and an individual complaints mechanism, meaning that parties can be held accountable for not meeting their obligations. This means a party is able to complain if they believe another party has not adequately implemented the Convention and that individuals can submit complaints if they consider that their rights have been violated by their state. These complaints are submitted to the Committee on the Elimination of Racial Discrimination (CERD), the body responsible for evaluating complaints and enforcing the Convention. Individual parties are able to recognise the competence of CERD to consider complaints submitted by individuals (See “Ratification” section for information on oil palm grower parties’ recognition). Parties are expected to submit national reports to CERD a year after ratification and then biennially thereafter, although this rarely happens in practice. Date of establishment, Adopted: 21/12/1965, Enacted: 4/1/1969 Recent/ expected developments Ratification Indonesia: Acceded: 25/6/1999 Cameroon: Ratified: 24/6/1971 Malaysia: Non-party Thailand: Acceded: 28/1/2003 Ghana: Ratified: 8/9/1966 Nigeria: Acceded: 16/10/1967 Brazil: Ratified: 27/3/1968, Recognised CERD competence: 17/6/2002 Colombia: Ratified: 2/9/1981 Implementation – Strengths Strengths & Weaknesses • Widely accepted and ratified by a large number of nations. • Aligns/overlaps with the UDHR, other HR conventions and a number of ILO conventions. Weaknesses • Poor enforcement of reporting, with few parties meeting biennial reporting requirements. • The Convention has been poorly implemented and adopted into national legislation in most developing countries, including most of the world’s largest oil palm producers. • Very few oil palm producer countries have recognised the competence of CERD to evaluate individual complaints, meaning that citizens of these countries have little power to complain about rights violations.
88 https://treaties.un.org/Pages/ViewDetails.aspx?src=treaty&mtdsg_no=iv-2&chapter=4&lang=en
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Country level details87 Indonesia: Last submitted a national report in 2007, since when a national anti-discrimination law was enacted in October 2008. However, the CERD review of Indonesia’s 2007 report highlighted the large number of conflicts between local communities and oil palm companies, the lack of FPIC and the inadequacy of national legislation to ensure the rights of these local communities. These conflicts are confounded by the fact that Indonesia has explicitly not recognised the competence of CERD, which means that individuals cannot complain to the International Court of Justice unless accepted by Indonesia.90 Cameroon: Cameroon submitted its most recent national report in 2014, and CERD recognised some progress in reforming national legislation on discrimination but noted that prohibition of racial discrimination and segregation have yet to be officially incorporated into national legislation. Concerns were also raised that indigenous and minority groups in Cameroon are not equal in law or practice, for example, certain companies pay unequally depending on ethnic origin, FPIC processes are rarely in place, access to education is limited for many minority groups and Cameroonian law does not recognise customary land rights.91 Malaysia: Has not ratified ICERD, nor any of the other major UN Human Rights Conventions. Thailand: Submitted first and latest national report in 2012, however, little of the Convention has been incorporated into national law, nor has racial discrimination been officially defined. It is also noted that many ethnic groups (including those living in forests) have very limited knowledge of their rights, and that Thailand’s environmental protection legislation. Discrimination against migrant workers is also identified as an issue. Raised a reservation against article 22, not recognising the competence of CERD and stating that Thailand will decide whether individual disputes can be raised to the International Court of Justice.92 Ghana: Has not submitted a national report to CERD since 2003. In reviewing this report CERD state that high illiteracy rates in parts of rural Ghana impede implementation of the Convention. Violent ethnic conflicts remain relatively common and acts of racial discrimination have yet to be criminalised in Ghana.93 Nigeria: Last submitted a national report to CERD in 2004, the same year as establishing a National Plan of Action on the promotion and protection of human rights. However, as of 2004 Nigeria had not officially defined racial discrimination and much of the Convention has not been incorporated into national law. Inter-ethnic/inter-communal/inter-religious remains commonplace in Nigeria and Osu peoples are widely persecuted. Private company and government engagement of local communities is typically poor in the development of land concessions.94 Brazil: Has not submitted a national report to CERD since 2003. On review of this report, CERD recognised some progress in establishing national institutions to combat racial discrimination, but identified ongoing concerns about the unequal opportunities and lack of support for indigenous, mestizo and black communities. Note that Brazil is the only major oil palm producing country to have recognised the competence of CERD to review individual complaints.95 Colombia: In 2011 Colombia adopted the Discrimination Act which is designed to protect people against acts of racism or discrimination. However, major human rights issues remain for indigenous groups in Colombia (see UNDRIP review).96 Impacts on palm oil Virtually all of the major oil palm producers analysed have incorporated very little of the production Convention into the national legislation and major issues have been identified by CERD, including: • A lack of FPIC for indigenous and rural communities for the development of oil palm plantations, • Discrimination against migrant workers, • Other forms of discrimination amongst indigenous groups including: inadequate recognition of customary land rights and limited awareness of their human rights.
89 Amnesty international 2014/15 report 90 http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=dtYoAzPhJ4NMy4Lu1TOebBHVOpdciO2EGHqWKI8pHWV%2fPnZIYc5Fq9nY0fnFvJ3x3rAigWw0vFdU%2fEcR43Q %2fpQ%2fSNHgYAedY%2fgnTA8Akd4Q%3d 91 http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2fPPRiCAqhKb7yhslRVyS5AGu2FqTxJwapSoxGsIAVgF4nj2oTfCJ1Y4YWIOIriH77Jfs2vyiGLyPRopTzEIiEJR 5sR%2f8AC3bcobBZ8BADM12RArNsn8Stv%2fv4pVFJGNmXtZXowz895IhI1VQ%3d%3d 92 http://docstore.ohchr.org/SelfServices/FilesHandler.ashx? enc=6QkG1d%2fPPRiCAqhKb7yhsgLiCJ2mefI3CDJnlaognF25OFZV1wJUaYBX%2fVdP%2bK73vVgtZyes%2bbee2OV tuZ1DfjwX7VfIquzN%2bxK%2fP9VxvAPaAsO8eZrbyG9wqmYcbP4l 93 http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2fPPRiCAqhKb7yhspqM7cAoWBySteFOuKcRpLxl6BgmOQy%2b%2bKL8vYIWpFkgW3ORe%2frjcAvoi7xJ rZorA3J4gyqL6u9NCzhbvE9NsiigQBy8eyfExfO1fb%2f1Mwvn 94 http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2fPPRiCAqhKb7yhsumufXSgB2Dy1XsY4Q491K9lWpf2Xcu89TnrnjSxrL4jWLmS%2b0Vjm0W3LiH8%2fjT d8DWVinARZt9o%2fTyyhqPOBguSjZBhd%2fnVunB6CkTNG6Lw 95 http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2fPPRiCAqhKb7yhsohLRIU9d15RhG%2bIHTPFU4u%2b1NouAihbPSdNEk0S%2bQw4qOYU3BcM1iNNq Tg9U4Ow5DrOiqqjPCoGr9%2byaqrTigro5Y5UAOF%2f9A3BWyUqO2v8 96 http://daccess-ods.un.org/access.nsf/Get?Open&DS=CERD/C/COL/15-16&Lang=E
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Key actors Amnesty International – a watch dog on Human Rights Violations Measures to promote Compliance with CERD is extremely limited in most oil palm grower countries analysed, so the compliance mechanism does not adequately safeguard the rights of many marginalised groups (e.g. indigenous peoples) in these countries. Furthermore, refusal of most of these parties to recognise the competence of CERD to evaluate individual complaints restricts the ability of citizens to seek compensation for racial discrimination. The overlap of ICERD with the more strongly implemented ILO 169 means that compliance with ILO169 could provide a stronger safeguard. Voluntary mechanisms such as the RSPO may also provide a means of assessing compliance.
Regulatory framework 12 United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP)
Relevant website links UNDRIP: http://undesadspd.org/IndigenousPeoples/DeclarationontheRightsofIndigenousPeoples.aspx UN Permanent Forum on Indigenous Issues: http://undesadspd.org/IndigenousPeoples/ AboutUsMembers.aspx Expert Mechanism on the Rights of Indigenous Peoples: http://www2.ohchr.org/english/issues/ indigenous/ExpertMechanism/index.htm Special Rapporteur Communications on alleged HR violations: http://www.ohchr.org/EN/Issues/ IPeoples/SRIndigenousPeoples/Pages/Communications.aspx
Summary (what it is about) The UNDRIP was adopted in 2007 by the UN General Assembly. It is a non-binding declaration that lists the individual and collective rights of indigenous peoples, including cultural rights and identity, self-determination and rights to education, health, employment and language (amongst others). In short, the Declaration states that indigenous peoples have the same human rights as all other groups as recognised in the UDHR.97 The Declaration took over 20 years to develop and was the subject of great debate. The UNDRIP text contains 23 pre-ambular clauses and 46 articles that cover both individual and collective rights as well as state obligations to fulfil these rights. Key text in the UNDRIP include: • Recognising the rights of indigenous peoples to participate in decision-making, and for allocation of resources to support this, • Right to self-determination, subsistence rights and land rights, • Right of indigenous peoples to compensation (“redress”) if deprived of subsistence and development, • Outlawing discrimination against indigenous peoples and sets out the Declaration as “the minimum standards for the survival, dignity and well-being of indigenous peoples of the world”. The UN states that whilst “UN Declarations are generally not legally binding”, UNDRIP provides greater detail and interpretation of human rights enshrined in other more binding, international human rights instruments as applied to indigenous peoples. Hence, UNDRIP has a somewhat binding impact by requiring states to meet obligations of other binding UN Human Rights instruments when applied to indigenous groups. Three UN bodies are mandated to address indigenous peoples’ issues. These are the UN Permanent Forum on Indigenous Issues (PFII), the Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) and the Special Rapporteur Rights of Indigenous Peoples (SRRIP). The PFII is formed of 16 independent experts that serve as members for three years and are nominated by either governments or indigenous organisations from the world’s seven socio-cultural regions. The PFII is mandated to provide expert advice to the UN Economic and Social Council and raise awareness/disseminate information about indigenous issues.98 EMRIP is a subsidiary of the Human Rights Council (HRC) composed of five experts, tasked with advising the HRC on issues regarding indigenous rights. This advice should be research-based and EMRIP is also able to suggest proposals to the HRC for their approval.99 The SRRIP is mandated with promoting good practice, agreements and legislation between indigenous peoples and states, including implementation of international standards. It also reports on the overall human rights of indigenous peoples in selected countries and seeks to address alleged violations of indigenous peoples’ rights.100
97 http://www.un.org/esa/socdev/unpfii/documents/faq_drips_en.pdf 98 http://undesadspd.org/IndigenousPeoples/AboutUsMembers.aspx 99 http://www2.ohchr.org/english/issues/indigenous/ExpertMechanism/index.htm 100 http://www.ohchr.org/EN/Issues/IPeoples/SRIndigenousPeoples/Pages/SRIPeoplesIndex.aspx
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Date of establishment, Adopted by the Human Rights Council on 29/6/2006 and by the UN General Assembly on Recent/ expected 13/9/2007 developments
Ratification Indonesia: Voted in favour of the Declaration. Cameroon: Voted in favour of the Declaration. Malaysia: Voted in favour of the Declaration. Thailand: Voted in favour of the Declaration. Ghana: Voted in favour of the Declaration. Nigeria: Abstained from the vote. Brazil: Voted in favour of the Declaration. Colombia: Initially abstained, but has since endorsed the Declaration.
Implementation – Strengths Strengths & Weaknesses • UNDRIP is not legally binding in itself, however, it provides details on applying other UN Human Rights instruments to the rights of indigenous peoples and individuals. Therefore, it is seen by many as a vital recognition of the rights of ~370 million indigenous people worldwide, and as having some mechanisms of implementation through its links to other instruments. • UNDRIP was developed through collaboration with indigenous leaders and representatives and is now monitored and supported by two bodies (PFII and EMRIP) that are formed of indigenous representatives. • UN Special Rapporteur Rights of Indigenous Peoples provides third party monitoring on violations of indigenous rights. Individuals are able to submit complaints on violations to the Special Rapporteur, although investigation of such complaints relies on compliance of the state involved.
Weaknesses
• Some actors were frustrated with the weakening of language in the Declaration compared to earlier drafts.101 • UNDRIP is not legally binding in itself, leaving room for different interpretations by individual states. Indeed, many major oil palm producer countries have very poor records on recognising and protecting the rights of indigenous peoples.
101 https://intercontinentalcry.org/breaking-un-declaration-rights-indigenous-peoples/
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Country level details Indonesia: A 2013 report from the UN Special Rapporteur: Rights of Indigenous Peoples highlighted major concerns regarding the rights of indigenous peoples across Asia, including in relation to establishment of oil palm plantations. The report recommended that more be done to implement the UNDRIP and other core human rights conventions and hence improve the socio- economic, cultural and political rights of indigenous peoples.102 Indonesia has ratified ICESCR and ICCPR, and hence is bound to implement obligations under these, including as applied to indigenous groups. However, see ICESCR and ICCPR reviews for issues regarding indigenous rights in Indonesia, including poor recognition and registration of land rights. Cameroon: The UN Special Rapporteur has not published any national reports focussed on Cameroon but a number of specific complaints have been lodged of human rights violations in the country. Furthermore, as stated in the ICESCR review, Cameroon does not have a comprehensive policy of indigenous rights and hence indigenous populations face major ongoing challenges to realisation of their rights. Malaysia: See text above under Indonesia.7 However, Malaysia has ratified very few binding UN Conventions on human rights and respect for the rights of indigenous peoples remains a serious concern (see ICESCR and ICCPR reviews). Thailand: See text above under Indonesia.7 According to Thailand’s government, Thailand does not have indigenous peoples as defined by the UN. Thailand has nonetheless ratified all core treaties under the UDHR. However, see reviews of ICESCR and ICCPR for some issues regarding human rights in the country. Ghana: The UN Special Rapporteur has not published any national reports addressing indigenous rights in Ghana. It is reported elsewhere that Ghana has made progress in improving human development, but that rural and socially/culturally marginalised groups continue to suffer discrimination. There are few disaggregated data on which social groups in Ghana are most marginalised, which hinders development of targeted responses.103 Nigeria: Nigeria was the only major oil palm producing country to abstain from the vote on UNDRIP. However, as stated in the ICESCR and ICCPR reviews, enforcement and implementation of human rights obligations and land rights in Nigeria remains poor. Particular concerns remain regarding damages to community lands by private sector actors (particularly oil companies) in the Niger Delta states. Furthermore, the complex ethnic and indigenous composition of Nigeria’s population has hindered rights recognition, with many groups lacking a strong voice.104 Brazil: 2009 report of the UN Special Rapporteur states that “Brazil has developed a number of significant programmes in areas of indigenous land rights, development, health and education,” however, also stating that indigenous peoples of Brazil still face numerous barriers to full enjoyment of their human rights. Brazil has an “exemplary model for securing indigenous land rights” but many lands are yet to be officially demarcated and recognised, particularly in areas where large non-indigenous settlements occur in the vicinity of indigenous areas.105 Colombia: A 2009 report of the UN Special Rapporteur stated that “the human rights situation of indigenous peoples in Colombia is serious, critical and profoundly worrying”. It is noted that the government has begun initiating vital health and education programmes for indigenous peoples but that implementation needs to be consolidated. A persistent demand of indigenous peoples has been for the right to land and territory and there are still many unresolved land claims.106 Impacts on palm oil Comprehensive implementation of UNDRIP could be used to safeguard indigenous rights in production contexts of oil palm expansion, but this implementation is rarely in place. The language of the Declaration, nonetheless, can provide guidance on measures needed by companies to ensure protection of indigenous rights. Virtually all of the major oil palm producing countries have relatively weak domestic legislation on the protection of indigenous peoples’ rights, particularly in Africa. Recognition of customary and indigenous land rights is especially poor, with many of the major growers in the process of reforming land registration and title laws.
102 http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session24/Documents/A-HRC-24-41-Add3_en.pdf 103 http://www.un.org/esa/socdev/unpfii/documents/HDR_desk_review_en.pdf 104 http://www.chr.up.ac.za/chr_old/indigenous/country_reports/Country_reports_Nigeria.pdf 105 http://daccess-ods.un.org/access.nsf/Get?Open&DS=A/HRC/12/34/Add.2&Lang=E 106 http://www.ohchr.org/Documents/Issues/IPeoples/SR/A-HRC-12-34-Add-9_sp.pdf
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Key actors Amnesty International – a watch dog on Human Rights Violations
Measures to promote UNDRIP itself is not strictly legally binding and given often poor national legislation on the compliance protection of indigenous rights voluntary certification standards and individual company policies are likely to provide more robust means of ensuring that indigenous rights are adequately safeguarded: • Compliance with provisions listed in UNDRIP is a requirement of RSPO certification, making RSPO certification a useful means of assessing implementation of the Declaration’s provisions. • ILO Convention 169 overlaps substantially with UNDRIP, making it another means of assessing compliance. • Given poor domestic legislation for the protection of indigenous peoples’ rights in palm oil producer countries, adherence to voluntary certification schemes (such as the RSPO) provide stronger safeguards.
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Regulatory framework 13 New York Declaration on Forests
Type Non-legally binding political declaration
Relevant website links Action Statements and Action Plans Provisional copy: http://www.un.org/climatechange/summit/wp- content/uploads/sites/2/2014/09/FORESTS-New-York-Declaration-on-Forests.pdf
Summary (what it is about) The New York Declaration on Forests grew out of a dialogue among governments, companies and civil society, spurred by the Secretary-General’s Climate Summit. For the first time, world leaders endorsed a global timeline to cut natural forest loss in half by 2020, and strived to end it by 2030. This declaration was endorsed by more than 130 entities including dozens of governments from the developed and developing world; 30 multinationals from the food, paper, finance and other industries companies; and more than 50 influential civil society and indigenous organisations. It also calls for the restoration of more than 350 million hectares of forests and croplands (an area larger than India) which would bring significant climate benefits and take pressure off primary forests. Meeting these goals would cut between 4.5 and 8.8 billion tons of carbon pollution every year – about as much as the current emissions of the United States. The Declaration, a non-legally binding political declaration, aims to change the politics heading into 2015’s Paris climate talks and accelerate action by companies to eliminate deforestation from their supply chains. The entities endorsing the NY Declaration announced dozens of concrete actions and partnerships to demonstrate their commitment to implement the New York Declaration and Action Agenda. The voluntary Action Agenda serves as a guide to governments, companies, and organisations regarding the diverse set of actions that can achieve these transformational goals but is not meant to be comprehensive. Some of these highly specific supplemental commitments demonstrate the new political will building for forest conservation and restoration. This includes commodity traders calling for public policies to eliminate deforestation, a pledge byindigenous peoples to protect hundreds of millions of hectares of tropical forests, new commitments from forest country governments to reduce deforestation or to restore degraded lands, new bilateral and multilateral programs to pay countries for reduced deforestation over the next six years andnew procurement policies for several of the largest forest commodity importer governments.
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Summary (what it is about) The declaration came about due to the realisation that more than 1.6 billion people depend on forests for food, water, fuel, medicines, traditional cultures and livelihoods and yet each year an average of 13 million hectares of forest disappear, often with devastating impacts on communities and indigenous peoples. The declaration noted that production of commodities (soy, palm oil, beef and paper were specifically mentioned) accounts for roughly half of global deforestation. The signatories of the Declaration collectively commit to doing their part (with varying mandates, capabilities, and circumstances), to achieve the following outcomes in partnership: • At least halve the rate of loss of natural forests globally by 2020 and strive to end natural forest loss by 2030. • Support and help meet the private-sector goal of eliminating deforestation from the production of agricultural commodities such as palm oil, soy, paper and beef products by no later than 2020, recognising that many companies have even more ambitious targets. • Significantly reduce deforestation derived from other economic sectors by 2020. • Support alternatives to deforestation driven by basic needs (such as subsistence farming and reliance on fuel wood for energy) in ways that alleviate poverty and promote sustainable and equitable development. • Restore 150 million hectares of degraded landscapes and forestlands by 2020 and significantly increase the rate of global restoration thereafter, which would restore at least an additional 200 million hectares by 2030. • Include ambitious, quantitative forest conservation and restoration targets for 2030 in the post-2015 global development framework, as part of new international sustainable development goals. • Agree in 2015 to reduce emissions from deforestation and forest degradation as part of a post- 2020 global climate agreement, in accordance with internationally agreed rules and consistent with the goal of not exceeding 2°C warming. • Provide support for the development and implementation of strategies to reduce forest emissions. • Reward countries and jurisdictions that, by taking action, reduce forest emissions—particularly through public policies to scale-up payments for verified emission reductions and private-sector sourcing of commodities. • Strengthen forest governance, transparency and the rule of law, while also empowering communities and recognising the rights of indigenous peoples, especially those pertaining to their lands and resources.
Date of establishment, This Declaration was adopted at the UN Climate Change Summit on 23 September 2014 in New Recent/ expected York. As the declaration is relatively recent, there is not much information available on what has developments transpired since then.
Ratification As this is a non-binding declaration, there is no ratification process. However, the following national governments of oil palm growing countries have endorsed the declaration: Colombia, Cote d’Ivoire, Democratic Republic of the Congo, Indonesia, Liberia, Mexico, the Philippines, Peru and Togo. Companies who have endorsed the declaration and are involved in the production of palm oil or are part of its supply chain include: Cargill, Danone, Delhaize, Golden Agri-Resources, General Mills, Grupo Bimbo, Johnson & Johnson, Kao, Kelogg’s, L’Oreal, Marks & Spencer, McDonalds, Mondelez, Nestle, Procter & Gamble, Royal Ahold, SC Johnson, Sobeys, Unilever, Walmart, Wilmar International and Yves Rocher Group.
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Implementation – It builds upon existing commitments and progress in forest conservation, including the drafting Strengths & Weaknesses or implementing of comprehensive national strategies and action plans on forest conservation related to initiatives such as the UNFCCC and the UN Forum on Forests; REDD+ funding e.g. Norway’s bilateral deals (including the USD 1 billion partnerships with Brazil and Indonesia); the Governors’ Climate and Forest Task Force; the Aichi Targets of the CBD; the Bonn Challenge target to restore 150 million hectares by 2020; the Consumer Goods Forum (CGF) pledge to eliminate deforestation from consumer goods supply chains by 2020; The Tropical Forest Alliance 202; and the Banking Environment Initiative. Strengths: • Managed to bring together a diverse range of actors including national governments, large corporations, NGOs and indigenous people groups • Target of ending deforestation is ambitious and visionary.
Weaknesses: • As a voluntary declaration, there does not appear to be a detailed action plan (with country- or sector-specific targets and indicators) • The “action plans” that have been drawn up can be described as a long list of recommendations/possible actions by specific sectors • May end up to be a “PR platform” for reporting progress against other existing commitments with little additionality. Country level details107 The following achievements by oil palm-growing countries were highlighted in the declaration: • By 2013, Brazil had reduced deforestation by 71% compared to the 1996-2005 annual average, while at the same time increasing agricultural production and rural incomes. In terms of the size of emissions avoided, this may well be the largest climate success to date globally in any sector. • Indonesia has embarked on comprehensive reforms to land use policies, customary land rights, regulations and law enforcement to meet its pledge to reduce greenhouse gas emissions 26% by 2020 (41% subject to international support). • Congo Basin countries have made important advances in sustainable forest management, including through adoption of management plans and certification, and in ecosystem conservation through the creation of protected areas and the use of conservation concessions. • Colombia is making progress on its Amazon Vision – an ambitious plan towards meeting the zero net deforestation goal in its Amazon region by 2020. • Mexico has adopted a law on climate change that incorporates the goal of reaching zero net deforestation. Impacts on palm oil One of the targets is directly linked to palm oil production i.e. Support and help meet the private- production sector goal of eliminating deforestation from the production of agricultural commodities such as palm oil, soy, paper and beef products by no later than 2020, recognising that many companies have even more ambitious targets. Another target places emphasis on the rights and livelihoods of local communities: Strengthen forest governance, transparency and the rule of law, while also empowering communities and recognising the rights of indigenous peoples, especially those pertaining to their lands and resources. Overall, this mechanism may lead to less deforestation due to oil palm expansion but with the safeguard that the rights and livelihoods of indigenous peoples are taken into consideration. The action plans have more details on how to slow down and eliminate deforestation but very vague on how local community needs would be addressed. Key actors • Signatories of the declaration • UNFCCC (assuming that they are the secretariat for the declaration) • Civil society Measures to promote As the Declaration is a relatively new initiative, the mechanisms for monitoring compliance and compliance reporting are still unclear.
107 Amnesty international 2014/15 report
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Regulatory framework 14 UN Millennium Development Goals (MDGs)
Type The MDGs are a non-legally binding political declaration. However, all signatory countries have agreed to report to the United Nations and the public on their progress in implementing the MDGs. At the 2005 United Nations World Summit, developing countries signed up to producing medium- term national development plans focused on the MDGs in 2006. Relevant website links Resource materials including media releases and factsheets on each of the eight MDGs available at: http://www.un.org/millenniumgoals/news.shtml The Millennium Development Goals Report 2014 can be downloaded from http://www.undp.org/ content/undp/en/home/librarypage/mdg/the-millennium-development-goals-report-2014.html Summary (what it is about) The MDGs were established following the Millennium Summit of the United Nations in 2000, after the adoption of the United Nations Millennium Declaration. All 189 United Nations member states at the time, and at least 23 international organisations, committed to help achieve the following Millennium Development Goals. The eight MDGs and targets are: MDG1: Eradicate poverty and extreme hunger 1. Halve, between 1990 and 2015, the proportion of people whose income is less than $1 a day* 2. Achieve full and productive employment and decent work for all, including women and young people 3. Halve, between 1990 and 2015, the proportion of people who suffer from hunger
MDG2: Achieve universal primary education: Ensure that, by 2015, children everywhere, boys and girls alike, will be able to complete a full course of primary schooling
MDG3: Promoted gender equality and empower women: Eliminate gender disparity in primary and secondary education, preferably by 2005, and in all levels of education, no later than 2015
MDG4: Reduce child mortality: Reduce by two-thirds, between 1990 and 2015, the mortality rate of children under five
MDG5: Improve maternal health: 1. Reduce by three-quarters, between 1990 and 2015, the maternal mortality ratio 2. Achieve, by 2015, universal access to reproductive health
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Summary (what it is about) MDG6: Combat HIV/AIDS, malaria and other diseases 1. Halt and begin to reverse, by 2015, the spread of HIV/AIDS 2. Achieve universal access to treatment for HIV/AIDS for all those who need it 3. Halt and begin to reverse, by 2015, the incidence of malaria and other major diseases
MDG7: Ensure environmental sustainability 1. Integrate the principles of sustainable development into country policies and programmes and reverse the loss of environmental resources 2. Reduce biodiversity loss, achieving, by 2010, a significant reduction in the rate of loss 3. Halve, by 2015, the proportion of the population without sustainable access to safe drinking water and basic sanitation 4. Achieve, by 2020, a significant improvement in the lives of at least 100 million slum dwellers
MDG8: Develop a global partnership for development: 1. Develop further an open, rules-based, predictable, non-discriminatory trading and financial system 2. Address the special needs of least developed countries, landlocked countries and small island developing states 3. Deal comprehensively with developing countries’ debt 4. In cooperation with pharmaceutical companies, provide access to affordable, essential drugs in developing countries 5. In cooperation with the private sector, make available benefits of new technologies, especially ICTs Date of establishment, The MDGs came into effect when the Millennium Declaration was signed by 189 world leaders at Recent/ expected the United Nations Millennium Summit in New York in 2000. developments Recent developments with MDGs that are relevant to the socio-economic impacts of oil palm development include the following: MDG1108: Extreme poverty rates have fallen in every developing region. Globally, the MDG target on the proportion of people living in extreme poverty has been met five years ahead of the target date. About 700 million fewer people lived in extreme poverty conditions in 2010 than in 1990. Despite this impressive achievement at the global level, 1.2 billion people are still living in extreme poverty. Southeastern Asia is the first developing region to reach the hunger reduction target ahead of 2015. MDG7109: Although more land and marine areas are under protection, many species of birds, mammals and others are heading for extinction at a fast pace. Significant progress has been made in increasing the coverage of protected areas dedicated to safeguarding and maintaining biological diversity and natural resources. Forests are disappearing at a rapid pace, despite the establishment of forest policies and laws supporting sustainable forest management in many countries. The largest net loss of forests has occurred in South America —around 3.6 million hectares per year from 2005 to 2010. Deforestation is not only a serious threat to achieving sustainability, but also to progress towards hunger and poverty reduction and sustainable livelihoods, as forests provide food, water, wood, fuel and other services used by millions of the world’s poorest people. Ratification As this is a non-binding declaration, there is no ratification process.
108 http://www.un.org/millenniumgoals/pdf/Goal_1_fs.pdf 109 http://www.un.org/millenniumgoals/pdf/Goal_7_fs.pdf
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Implementation – Progress towards the eight Millennium Development Goals is measured through 21 targets and 60 Strengths & Weaknesses official indicators. Most of the MDG targets have a deadline of 2015, using 1990 as the baseline against which progress is gauged. In the Millennium Development Goals Report 2014, compiled by members of the United Nations Inter-Agency and Expert Group on MDG Indicators (IAEG), country data were aggregated at the subregional and regional levels to show overall advances over time.
Strengths: Unlike most other UN development agenda that are often very complicated, the MDGs are worded in relatively simple and clear terms, and have the following positive features: • Influential framework in driving the allocation of resources towards key global development priorities and improving policy monitoring • Simple, transparent and easy to communicate and therefore provides a basis for advocacy • Clear goals, targets and indicators for monitoring and accountability • Agenda setting, but not prescriptive A review of the MDGs conducted by a UN taskforce noted that the MGDs have been “instrumental in building a common agenda of broad priorities and have induced governments to take concrete actions and improve coordination in support of poverty reduction efforts. As a result, many developing countries have designed national development strategies explicitly oriented at achieving the MDGs and have aligned these objectives with other national priorities.”110
Weaknesses: Critics of the MDGs have pointed out the following weaknesses: • Lack of consultation at its conception led to the perception of a donor-centric agenda • Lack of analysis and justification behind the chosen objectives • Important issues where left out or not adequately incorporated, e.g. environmental sustainability, governance, human rights, etc. • Agriculture was not specifically mentioned in the MDGs even though most of the world’s poor are farmers • Not focused on addressing root causes of poverty and other development challenges • Overemphasis on outcomes and not enough on processes Country level details111 • Regional progress reports available for Africa, Asia and the Pacific, and Latin America and the Caribbean, amongst others. Country progress reports available for the following oil palm-growing countries: Brazil, Cambodia, Cameroon, Colombia, Cote D’Ivoire, Ecuador, Gabon, Ghana, Honduras, Indonesia, Liberia, Malaysia, Nigeria, Papua New Guinea, Peru, Philippines, Thailand. Progress has been uneven across countries and regions. Success in poverty reduction was concentrated in Eastern and South-Eastern Asia but more modest progress was reported in other parts of the world, including sub-Saharan Africa, and in countries in conflict or emerging from conflict. Impacts on palm oil Of the eight MDGs, the most relevant to oil palm development is MDG1 and MDG7. However, as production the targets were quite broad and reporting matrices are not standardised across different countries, it is not clear to what extent the MDGs have influenced palm oil production and if the palm oil sector has contributed towards progress in any of the MDGs. It has also been pointed out that the lack of recognition for agriculture within the MDG framework is one of its weaknesses. As most of the MDGs have a 2015 target, there are on-going efforts to formulate the post-2015 UN development agenda. This presents an opportunity to highlight the contributions of agriculture (including palm oil) in reducing poverty and hunger, and develop more specific targets related to limiting the impacts of palm oil on biodiversity loss and GHG emissions.
Key actors • Governments of member states • Civil society • UN secretariat
110 UN System Task Team on the Post-2015 UN Development Agenda. 2012. Review of the contributions of the MDG Agenda to foster development: Lessons for the post-2015 UN development agenda. A discussion note. 111 http://www.un.org/millenniumgoals/pdf/mdg_assessment_Aug.pdf
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Measures to promote As this is not a legally binding treaty, “compliance” is mainly promoted or encouraged via diplomacy compliance and advocacy. The format of the MDGs with clear goals, targets and indicators facilitates the use of advocacy but critics have pointed out that there is too much flexibility for the member states to tailor their goals and targets to suit national and sub-national priorities. In the context of the post-2015 UN development agenda, there are recommendations for a long- term timeframe (25 years was suggested) with intermediate targets (e.g. five-year intervals) for enhanced policy accountability and transparency112. It was also suggested that there should be more emphasis on the means (process) for achieving the MDGs rather than just focusing on the end results.
112 UN System Task Team on the Post-2015 UN Development Agenda. 2012. Op. cit.
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Regulatory framework 15 United Nations Guiding Principles on Business and Human Rights
Relevant website links UN Guiding Principles: http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_ EN.pdf Homepage: http://business-humanrights.org/en/un-guiding-principles Information on the UN Working Group on Business and Human Rights: http://business-humanrights. org/en/working-group Report on implementation by The Economist: http://www.economistinsights.com/business-strategy/ analysis/road-principles-practice UN Office of the High Commissioner for Human Rights: http://www.ohchr.org/EN/Issues/Business/ Pages/WGCountryVisits.aspx Principles and Implementation Guidance for Free and Fair Labor in Palm Oil Production: http:// www.humanityunited.org/new-principles-and-guidance-for-responsible-palm-oil-production-2/
Summary (what it is about) Overview The Principles were created as a means of implementing the “Protect, Respect and Remedy” Framework of 2008.113 The Principles are not legally binding. There are 31 Principles, grouped into three areas: (1) the duty of states to protect human rights; (2) the responsibility of business enterprises to respect human rights; and (3) access to remedy for human rights abuses that occur. The rights framework used as reference point is the International Bill of Human Rights and principles of the International Labour Organisation. The Principles are published in a single document and each one is accompanied by a commentary which explains what the Principle involves. They apply to businesses of all sizes.
Principles for states “The state duty to protect human rights.” Through the principles set out in the first part of the document, it is expected that states should take steps to avoid and punish human rights abuses. This should be through law enforcement but also by providing guidance to business enterprises on how to respect human rights throughout their operations.
113 http://business-humanrights.org/en/un-secretary-generals-special-representative-on-business-human-rights/un-protect-respect-and-remedy-framework-and-guiding-principles
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Summary (what it is about) Principles for businesses “The corporate responsibility to respect human rights.” The principles set out in part two of the document are that businesses should: • Respect human rights in compliance with applicable laws; • Avoid causing human rights “impacts” either through their own activities or that occur through a business relationship; • Establish a human rights policy commitment and processes to protect human rights and remedy instances of human rights abuses; • Conduct human rights impact assessments as due diligence; • Act on findings of adverse impacts; • Track the effectiveness of their policies and actions taken in response to impact assessment findings; • Communicate externally on adverse impacts and their responses to them; • Establish grievance mechanisms or other processes of remediation. Note that the Principles apply not only to a company’s own activities but also activities of other businesses that it has a relationship with. Clearly this would cover suppliers in a supply chain. Avoiding and remediating human rights impacts may require collaboration with its suppliers. The advisory organisation Social Accountability International114 summarises the steps involved for a business as: 1. Committing to a human rights policy; 2. Assessing human rights impact; 3. Integrating human rights in policies, procedures and responsibilities; 4. Tracking human rights implementation; 5. Communicating human rights impact; and 6. Remediating human rights impact.
Principles on remediation The remaining Principles cover recommended practices and processes for remediation.
Governance and implementation The UN set up a Working Group on business and human rights to promote implementation of the Principles. One of the five members of the Working Group is Puvan Selvanathan, who is Head of Food and Agriculture for the UN Global Compact. Each year a multi-stakeholder United Nations Forum on Business and Human Rights is held.
Date of establishment, The Guiding Principles were proposed to the UN Human Rights Council as part of the 2011 report Recent/ expected to the Council by then-UN Special Representative on business and human rights, John Ruggie. developments In June 2011, the Guiding Principles were endorsed by the UN Human Rights Council. In June 2014, the UN Human Rights Council called on member states to develop National Action Plans on business and human rights, for promoting implementation of the Guiding Principles in their countries. National governments have begun to submit these. Preliminary discussions are under way for a legally binding international treaty on business and human rights.
Ratification Not applicable. See above.
114 http://sa-intl.org/index.cfm?fuseaction=Page.ViewPage&PageID=1316
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Implementation – Strengths Strengths & Weaknesses • Institutionalising human rights. The UN’s endorsement of the Principles helped to standardise and institutionalise business approaches to human rights. In April 2015, the Working Group reported that standards and initiatives at global or regional level relating to business and human rights are beginning to converge around the Principles. • Translation into policy. The Working Group also reported that, according to discussions and survey evidence, a growing number of companies are becoming aware of, and taking steps to, implement the Principles in policies and company procedures. • Guidance and tools. There are signs that the architecture of the Guiding Principles – that is, the means of implementation for businesses set out in the Principles and the supporting tools and guidance that have subsequently been developed – provide a useful resource for companies to address human rights issues, particularly in due diligence. For example, the dairy group Arla Foods committed to undertaking human rights impact assessments in Côte d’Ivoire and Nigeria, in line with the Guiding Principles.115
Weaknesses • Voluntary. The Principles provide guidance but not a legal obligation. • Lack of capacity and speed. In comparison with other international initiatives, the Guiding Principles are a recent development. Analysts have suggested that the adoption of the Principles in 2011 has not (yet) triggered widespread development of human rights policies in the private sector.116 A study by The Economist suggests that only a minority of companies have publicly available policy commitments on human rights, as recommended in the Principles. Obstacles to implementation identified by The Economist include: a lack of understanding on human rights; a lack of skills; the need for sector-specific guidance; and challenges in distilling disparate efforts into a company-wide policy. • Remedy measures. According to the Working Group, business efforts are particularly slow when it comes to remediation for victims. • Public-facing pressure. The companies with the most progressive and transparent human rights policies are often large, transnational, consumer-facing businesses. There may be less action on human rights, or at least less publicly reported action on human rights, among smaller, less publicly visible and/or national companies such as palm oil producers and processors. • Insufficient government support. Analysts have suggested that, with the Guiding Principles being a hybrid instrument that involves national governments as well as businesses, governments should do more to inform companies of the Principles and to encourage or enforce their adoption.117 The analysts argue that companies are less likely to acknowledge their human rights responsibilities if they are in countries that have not made human rights a public priority.
Country level details Colombia Colombia is the only key country reported to have engaged in the National Action Plan process. It included a chapter on business and human rights in its national human rights plan in July 2014. Colombia has worked with the UK government, which is a champion of the Principles and NAP approach. Indonesia, Malaysia and Singapore have not ratified any parts of the International Bill of Human Rights, which analysts have argued means that the national context will be less conducive to companies implementing the Guiding Principles.
115 http://business-humanrights.org/en/danish-dairy-firm-commits-to-undertake-human-rights-due-diligence-in-line-with-un-guiding-principles 116 http://www2.gwu.edu/~iiep/assets/docs/papers/2014WP/AaronsonHingham201406.pdf 117 http://www2.gwu.edu/~iiep/assets/docs/papers/2014WP/AaronsonHingham201406.pdf
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Impacts on palm oil In December 2014, the non-profit Business and Human Rights Resource Centre sent a production questionnaire to 180 global companies to ask about their human rights policies. This included the 32 largest companies in the food, beverage and agriculture sector. Note that, apart from Cargill and Monsanto, these were mostly consumer-facing manufacturers and retailers, so they are not representative of all actors in the palm oil supply chain. Among the companies that responded to the survey and submitted information to the centre’s “Action Platform” are the following with a known or likely role in palm oil: Archer Daniels Midland (disclosed its human rights policy and described other initiatives); Associated British Foods (human rights commitment, other policies); Cargill (supplier code of conduct, other initiatives); Carrefour (human rights policy); General Mills (supplier code of conduct, other initiatives); Johnson & Johnson (statement on human rights, stakeholder engagement); Mars (human rights policy, other initiatives); Mondeléz (human rights policy); Nestlé (human rights policies and a working group); and Unilever (human rights policy, other initiatives). These companies, and several others, have incorporated human rights principles into supplier codes of conduct and/or policy commitments on responsible palm oil sourcing. However, progress still needs to be made in implementation and reporting, including in relation to the palm oil sector, as is indicated by such watchdogs as the Business and Human Rights Resource Centre118 and the SPOTT tool.119 Among palm oil producers and processors, Sime Darby has expressed support for the Principles. Respect for human rights is among Sime Darby’s business principles.120 As for industry-wide action, the Guiding Principles are referred to in the RSPO’s Principles and Criteria. In March 2015, a coalition of human rights and environmental organisations launched principles for free and fair labour in the palm oil industry, drawing on the Guiding Principles.121
Key actors UNHRC; the Working Group; Business and Human Rights Resource Centre; early adopters such as Nestlé and Unilever; human rights advocacy groups.
Measures to promote The initiation of National Action Plans was an attempt to improve implementation of the Guiding compliance Principles. A Corporate Human Rights Benchmark is in development. This is will rank approximately 500 companies, including those in the agriculture sector, on their human rights performance.122 It could add pressure on companies to comply with the Principles, although it will focus on “global” companies.
118 http://business-humanrights.org/ 119 http://www.sustainablepalmoil.org/spott/ 120 http://www.simedarby.com/Business_Principles.aspx 121 http://www.humanityunited.org/new-principles-and-guidance-for-responsible-palm-oil-production-2/ 122 http://ga-institute.com/Sustainability-Update/2014/12/03/corporate-human-rights-performance-benchmarking-and-ranking-of-global-companies/
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Regulatory framework 16 United Nations Global Compact (incl. Food and Agriculture Business Principles)
Relevant website links The UN Global Compact: www.unglobalcompact.org Database of participants and their progress reports: https://www.unglobalcompact.org/participants/ search The UN Global Compact Food and Agriculture Business Principles: https://www.unglobalcompact.org/ Issues/Environment/food_agriculture_business_principles.html Global Compact work on supply chain sustainability: http://supply-chain.unglobalcompact.org/ Global Compact LEAD: https://www.unglobalcompact.org/HowToParticipate/Lead/index.html Global Compact Critics: www.globalcompactcritics.net
Overview The United Nations Global Compact is a voluntary initiative that seeks to advance universal principles on human rights, labour, environment and anti-corruption through the engagement of corporations, in cooperation with civil society and representatives of organised labour. The Global Compact is a voluntary corporate responsibility initiative. It is not a regulatory instrument. As is stated on its website, “Focused on learning, dialogue and partnerships, the UN Global Compact is more like a guide dog than a watch dog.” Participants in the Global Compact make a public commitment to incorporate in their business practices the following 10 principles in four areas: Human Rights • Principle 1: Businesses should support and respect the protection of internationally proclaimed human rights; and • Principle 2: make sure that they are not complicit in human rights abuses. Labour • Principle 3: Businesses should uphold the freedom of association and the effective recognition of the right to collective bargaining; • Principle 4: the elimination of all forms of forced and compulsory labour; • Principle 5: the effective abolition of child labour; and • Principle 6: the elimination of discrimination in respect of employment and occupation. Environment • Principle 7: Businesses should support a precautionary approach to environmental challenges; • Principle 8: undertake initiatives to promote greater environmental responsibility; and • Principle 9: encourage the development and diffusion of environmentally friendly technologies. Anti-Corruption • Principle 10: Businesses should work against corruption in all its forms, including extortion and bribery. The principles are derived from UN and ILO multilateral agreements. As well as the framework (the 10 principles), the Global Compact includes events, working groups and publications.
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Summary (what it is Participation about) The Global Compact is aimed at businesses, although it has been widened to include cities also. They are known as participants. As of 8 May 2015, there were 8,320 business participants and 101 city participants.123 Any company with 10+ employees is eligible to participate, unless it makes or sells antipersonnel landmines or cluster bombs. Companies are screened to see if they have received any sanctions or suspensions from the UN or an international financial institution. All companies participating in the UN Global Compact are asked to make an annual contribution. The suggested fee ranges from USD 250 to USD 15,000, depending on company size. Participation in the Global Compact is not a certification that a company has achieved a certain level of environmental, social or governance performance. But companies can use their involvement to gain public recognition of their CSR commitments. The initiative is not designed to monitor or measure participants’ performance. However, participants are asked to post each year a Communication on Progress (COP). Measures on compliance are described under the section on Compliance below.
Reporting The Communication on Progress (COP) can be a standalone document or part of another report, such as a company’s annual report or sustainability report. It should include: 1. A statement by the chief executive expressing continued support for the Global Compact and renewing the participant’s ongoing commitment to the initiative and its principles. 2. A description of practical actions (i.e., disclosure of any relevant policies, procedures, activities) that the company has taken (or plans to undertake) to implement the Global Compact principles in each of the four issue areas (human rights, labour, environment, anti-corruption). 3. A measurement of outcomes (i.e., the degree to which targets/performance indicators were met, or other qualitative or quantitative measurements of results). A link to the company’s COP is given on the Global Compact website and it is assigned icons to show which elements are present or missing. Beyond this, the content of participants’ reports (and how much progress they are making) is not reviewed as part of the Global Compact.
Governance The Global Compact has a governance framework. This comprises: a summit for participants and other stakeholders every three years; self-governing local networks of participants based in a particular country or region; a Global Compact Board of 31 members representing business, civil society, labour and the United Nations, which meets annually; and a Global Compact Office which manages the initiative. The Global Compact Office is funded by national governments. Funds are raised by the Global Compact Foundation.124
The Food and Agriculture Business Principles In September 2014, the Global Compact Food and Agriculture Business (FAB) Principles were launched. They are six voluntary business principles for the food and agriculture sector. The principles were developed by corporate participants, UN agencies such as FAO and UNDP, and other stakeholders including RSPO during a two-year consultation process. They were developed within the context of calls for “sustainable intensification”. • Principle 1: Aim for Food Security, Health and Nutrition Businesses should support food and agriculture systems that optimise production and minimise wastage, to provide nutrition and promote health for every person on the planet. • Principle 2: Be Environmentally Responsible Businesses should support sustainable intensification of food systems to meet global needs by managing agriculture, livestock, fisheries and forestry responsibly. They should protect and enhance the environment and use natural resources efficiently and optimally. • Principle 3: Ensure Economic Viability and Share Value Businesses should create, deliver and share value across the entire food and agriculture chain from farmers to consumers.
123 https://www.unglobalcompact.org/participants/search?utf8=%E2%9C%93&commit=Search&keyword=&joined_after=&joined_before=&business_type=2§or_id=&listing_ status_id=all&cop_status=all&organization_type_id=&commit=Search. 124 http://www.globalcompactfoundation.org/
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• Principle 4: Respect Human Rights, Create Decent Work and Help Communities to Thrive Businesses should respect the rights of farmers, workers and consumers. They should improve livelihoods, promote and provide equal opportunities, so communities are attractive to live, work and invest in. • Principle 5: Encourage Good Governance and Accountability Businesses should behave legally and responsibly by respecting land and natural resource rights, avoiding corruption, being transparent about activities and recognising their impacts. • Principle 6: Promote Access and Transfer of Knowledge, Skills and Technology Businesses should promote access to information, knowledge and skills for more sustainable food and agricultural systems. They should invest in developing capacities of smallholders and small- and medium-sized enterprises (SMEs), as well as more effective practices and new technologies.
It is hoped that businesses will use the Food and Agriculture Business Principles as a structure for their Global Compact reporting to show progress towards sustainability in the domains of food and agriculture.
Other initiatives as part of the Global Compact The Global Compact has working groups and platforms, including: 1. Labour Working Group 2. Human Rights Working Group 3. Child Labour Platform 4. Anti-corruption Working Group
Of interest is its work on supply chain sustainability. Outputs so far include guidance documents, webinars and an online portal for companies to share experiences and resources. In 2010 an Advisory Group on supply chain sustainability was formed, and it has met eight times. 48 Global Compact participants were invited to participate in an initiative called Global Compact LEAD, for which they pay a fee. LEAD is aimed at developing new approaches to corporate sustainability. The LEAD companies were observed to have performed particularly strongly under the Global Compact. Date of establishment, Global Compact launched in 2000. First participating companies joined in July 2000. Participants Recent/ expected may join at any time. developments September 2014: Food and Agriculture Business Principles launched. January 2015: minimum requirements introduced to strengthen local Global Compact networks and address the problem of inactivity. June 2015: forthcoming Global Compact +15 event to discuss United Nations global agenda for sustainable development.
Ratification The Global Compact has been recognised by the United Nations General Assembly. No ratification as such.
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Implementation – Strengths Strengths & Weaknesses • Universalising values. The Global Compact’s global reach and large number of participants help to standardise and make internationally accepted a set of core sustainability goals which cover social as well as environmental issues. Similarly, the Food and Agriculture Business Principles draw attention to land rights and smallholder farmers • Proof of commitment. The Global Compact can be used by large companies to demonstrate sustainable practices in countries overseas where there is inadequate regulation.125 • Collaboration. Global Compact local networks provide a forum for companies and other stakeholders to share experience and develop best practice within an accepted sustainability framework; while events organised by Global Compact and the participation of Global Compact in multi-stakeholder discussions contribute to setting the sustainability agenda.
Weaknesses • Unproven value. For companies that are not under scrutiny in their home countries or that operate in countries where a different set of sustainability goals are valued, it has been argued that the cost of compliance (i.e. reporting) is not worth the effort, which explains the large number of participants being de-listed.3 • Unsupported SMEs. It has also been argued that small and medium-sized companies lack the resources and power over suppliers needed for implementation of the principles.3 • Unenforced. The Global Compact has been criticised as weak because: it is voluntary; the principles are not legally binding; and there are insufficient requirements or mechanisms for monitoring and enforcement. Critics have suggested that participation can be used by corporations as a form of greenwash or, owing to the UN association, “bluewash”. In 2012, the Executive Director acknowledged that some participants were ‘free-riding’.126 • Inactivity. Manifestations of the voluntary nature of Global Compact include: > A high percentage (20%) of business participants listed as “non-communicating” because they have failed to submit their annual Communication on Progress (see Compliance section below). > During 2014, 657 companies were expelled for failing to submit COP reports for two years in a row.127 > Inactivity of some local networks, prompting the reforms taken in January 2015. • Superseded? Since the Global Compact was launched, companies have developed more sophisticated policies and reporting systems to demonstrate progress in sustainability to increasingly demanding customers. • Lack of specificity. The FAB Principles are very general, and some of the principles could be implemented in a way that carries socio-economic risks (e.g. emphasis on optimising production). Global Compact acknowledges that trade-offs may be required between each principle depending on context and circumstance.
125 Knudsen, J.S. 2011. Which companies benefit most from UN Global Compact membership? http://www.europeanbusinessreview.com/?p=3167 126 http://www.theguardian.com/sustainable-business/cleaning-up-un-global-compact-green-wash; http://www.globalcompactcritics.net/ 127 https://www.unglobalcompact.org/news/1621-01-14-2015
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Country level details Indonesia 44 business participants in Indonesia; of relevance to palm oil production are PT Sinar Mas (https:// www.unglobalcompact.org/participant/7725-PT-Sinar-Mas-Agro-Resources-and-Technology-Tbk-) and Unilever Indonesia (https://www.unglobalcompact.org/participant/7766-PT-Unilever-Indonesia- Tbk-). There is a Global Compact Local Network (GCLN) Indonesia. Its website is http://www. indonesiagcn.org/. Relevant members of the Global Compact Board: (Appointed in May 2015) Yaya W. Junardy, President, Indonesia Global Compact Network, Indonesia, and executive from PT Rajawali Corporation. • Martha Tilaar, Chairperson, Marthar Tilaar Group, Indonesia. Malaysia 38 business participants in Malaysia; of relevance to palm oil production is Sime Darby. There is a Malaysian local network. Thailand 26 business participants in Thailand, none of which have immediately obvious relevance to palm oil production. Colombia 322 business participants in Colombia; of relevance to palm oil production include Daabon and Nutresa. There is a Colombian local network. Its website is http://www.pactoglobal-colombia.org/. Relevant members of the Global Compact Board: Monica de Greiff, President, Chamber of Commerce of Bogota, Colombia Nigeria 34 business participants in Nigeria, none of which have immediately obvious relevance to palm oil production. There is a Nigerian local network. Singapore 64 business participants in Singapore; of relevance to palm oil production are Wilmar and Noble Agri. Impacts on palm oil Some prominent buyers of palm oil such as AAK, Nestlé and Unilever, and financial institutions such production as Commerzbank, report that they incorporate Global Compact principles in their sustainability policy development.128 Palm oil producers also refer to the Global Compact in their policies and websites, including participants such as Wilmar129 but also companies that do not appear to be participants, such as SMART (GAR).130 RSPO has been an NGO participant of the Global Compact since 2012, and was one of many organisations consulted in the development of the Food and Agriculture Business (FAB) Principles. Other palm oil organisations that participated in FAB advisory group meetings include Wilmar and Sime Darby.131 It may be too early to assess if the Food and Agriculture Business Principles have had an impact on palm oil production. The FAB Principles were ‘reverse-engineered’ from existing standards that are more specific to the palm oil sector, such as the RSPO principles. Therefore it is not clear to what extent they meet a demand that was not already being met. Perhaps the FAC Principles could be a frame of reference for companies that source palm oil to develop new responsible sourcing policies: it offers principles for protecting land rights and supporting smallholders, although arguably the Global Compact principles are stronger than the FAB Principles when it comes to labour. The Advisory Group on supply chain sustainability has little representation from the food and agribusiness sectors.132
128 http://www.aak.com/Global/Documentation/AAK%20Group%20Policy%20Sustainable%20Palm%20Oil%20June%202014.pdf; http://www.nestle.com/asset-library/ documents/library/documents/corporate_social_responsibility/nestle-csv-full-report-2014-en.pdf; http://www.unilever.co.uk/Images/USLP-Progress-Report-2012-FI_tcm28- 352007.pdf; and https://www.commerzbank.com/en/nachhaltigkeit/daten___fakten/mitgliedschaften_und_initiativen/un_global_compact/un_global_compact_1.html. 129 http://www.wilmar-international.com/sustainability/approach-strategy/standards-benchmarks/united-nations-global-compact-ungc/ 130 http://www.smart-tbk.com/sustainable_UNGC.php 131 https://www.unglobalcompact.org/docs/issues_doc/agriculture_and_food/SABP_White_Paper_July13.pdf 132 See members at https://www.unglobalcompact.org/docs/issues_doc/supply_chain/supply_chain_advisory_group_members.pdf
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Key actors Global Compact representatives (such as Puvan Selvanathan, Head of Food and Agriculture); United Nations agencies;133 corporate participants that are part of the LEAD initiative and/or members of the Global Compact governance structure, such as Fuji Xerox, Nestlé and Unilever.
Measures to promote The Global Compact is not a compliance-based initiative.134 compliance There are some measures in place to encourage progress and protect the integrity of the Global Compact: 1. If a participant fails to post its annual progress report, it is listed on the website as “non- communicating”. If a participant fails to report an annual progress report two years in a row, it is expelled. As of 8 May 2015, there are 1,664 business participants (20% of the 8,320 total) with a non-communicating COP status. They include 59 food producers. 2. If a body misuses the UN or Global Compact names and logos, the Global Compact Office will take measures to revoke partnership status or take legal action. 3. If there are allegations of systematic or egregious abuse of the Global Compact’s overall aims and principles, the Global Compact Office will investigate. Possible sanctions include the participant being de-listed and the Office referring the matter to a relevant UN body for action. Examples include substantiated allegations of company involvement in: a. murder, torture, deprivation of liberty, forced labour, the worst forms of child labour and other child exploitation b. serious violations of individuals’ rights in situations of war or conflict c. severe environmental damage d. gross corruption e. other particularly serious violations of fundamental ethical norms.
133 https://www.unglobalcompact.org/ParticipantsAndStakeholders/un_agencies/index.html 134 https://www.unglobalcompact.org/AboutTheGC/IntegrityMeasures/index.html
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Regulatory framework 17 International Finance Corporation (IFC) Performance Standard (PS)
Relevant website links IFC PS: http://www.ifc.org/wps/wcm/connect/topics_ext_content/ifc_external_corporate_site/ ifc+sustainability/our+approach/risk+management/performance+standards/environmental+and+social+ performance+standards+and+guidance+notes IFC palm oil strategy: http://www.ifc.org/wps/wcm/connect/159dce004ea3bd0fb359f71dc0e8434d/ WBG+Framework+and+IFC+Strategy_FINAL_FOR+WEB.pdf?MOD=AJPERES Evolution of IFC PS: http://www.cbd.int/business/GP%20meeting%20doc/3_Third%20meeting%20 of%20the%20GPBB/PPts/Standards_Lori%20Anna%20Conzo.pdf Review of IFC (CAO-Obudsman): htp://www.cao-ombudsman.org/documents/ CAOAdvisoryNoteforIFCPolicyReview_May2010.pdf Review of IFC (WRI): http://www.wri.org/blog/2009/11/review-ifc-performance-standards-and- sustainability-policy-overview-key-issues Review of IFC (Oxfam): http://www.oxfamamerica.org/explore/research-publications/review-of-ifc- performance-standards-and-sustainability-policy/
Summary (what it is about) IFC is the private sector lending arm of the World Bank Group. The IFC PS is an international framework for understanding and managing environmental and social risks sector-wide projects – companies are expected to comply with the requirements (or develop a correction action plan for addressing the issues within a reasonable timeframe) as a condition for the financial transaction. Many organisations have also adopted this standard as a component of their environmental and social risk management. According to IFC’s 2011 palm oil strategy, it outlines that IFC is likely to invest in palm oil, centred in Southeast Asia. The IFC PS are composed of 8 standards: (1) Assessment & management of environmental and social risks and impacts; (2) labour and working conditions; (3) resource efficiency and pollution prevention; (4) community health, safety and security; (5) land acquisition and involuntary resettlement; (6) biodiversity conservation and sustainable management of living natural resources; (7) indigenous peoples; (8) cultural heritage. All standards, perhaps with the exception of PS 2, are all applicable and relevant for the effective implementation of HCS. The implementation of these standards in its entirety is thought to provide a solid framework upon which implementation
Date of establishment, In 2006, the PS were developed to provide safeguards for private sector projects. The standards Recent/ expected emphasised continual progress and were outcome oriented. In 2012, the standards were updated developments following a three-year consultation and review process135. Several key organisations took part in this consultation and review process, seeking clarity and improvements on certain topics such as community engagement, transparency, human rights, protection of indigenous communities’ rights, climate change and environmental & social impact assessments (Oxfam International, WRI).
Ratification (if relevant) Not relevant
135 http://www.cbd.int/business/GP%20meeting%20doc/3_Third%20meeting%20of%20the%20GPBB/PPts/Standards_Lori%20Anna%20Conzo.pdf
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Implementation: does In fact all of the IFC PS provide socio-economic safeguards on affected communities. Key elements it provide any safeguard of the PS include: related to the socio- 1. Identification of all risks and impacts of project and those affected by such risks and impacts, economic impacts of including those relevant to IFC PS 2-8. oil palm plantations on affected communities? 2. Ensuring competency – requires personnel within the company directly responsible for project’s E+S performance to have knowledge, skills and experience necessary. 3. Monitoring & review of the Environmental and social management system (ESMS) is a key component of the IFC PS. 4. Ongoing reporting to affected communities: transparency and informing of progress with project’s action plans related to risk or impacts is key. 5. Minimising adverse impacts on human health & environment: by minimising pollution, reducing GHGs, sustainable use of resources 6. Management and mitigation measures for ecosystem services important for health and safety of affected communities (e.g. Loss of natural buffer areas such as wetland, degradation of natural resources, availability of freshwater) 7. Avoidance of forced eviction. Avoidance or when not possible, minimise (a) displacement of communities & indigenous peoples, and (b) adverse social an economic impacts from land acquisition or restrictions of land use; (c) impacts on communities of indigenous peoples – compensation and due process must be followed. 8. To improve or restore livelihoods and standards of living of physical & economical displaced persons, which should include adequate compensation. 9. Assess natural resource use and management of indigenous peoples, especially considering role of women 10. Community engagement with affected communities related to resettlement and livelihood restoration & disclosure of information 11. Establish and maintain relationship based on informed consultation & participation with the indigenous peoples affected by project 12. Full respect for human rights of indigenous peoples 13. To promote development and mitigation of affected communities of indigenous communities. 14. To ensure FPIC of the affected communities of indigenous peoples particularly in situations where there are impacts on lands and natural resources. Respects traditionally and customary lands.
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Implementation – Strengths: Strengths & Weaknesses • Not only applicable for companies seeking to obtain IFC funding. Other companies, sustainability initiatives and company-own policies are also embracing the IFC PS. • The IFC PS covers all essential socio-economic factors – and despite a few weaknesses (highlighted below), remains a strong framework for safeguarding socio-economic values. • The CAO mechanism further strengthens the IFC PS framework. CAO (Compliance Advisor Ombudsman) is an independent recourse mechanism for the IFC, which responds to complaints from project-affected communities with the goal of enhancing social & environmental outcomes on the ground) further strengthens the implementation of the IFC PS. • IFC have in 2011 developed a strategy solely for engagement in the palm oil sector136 – due to pressure, IFC have now taken a stricter approach to palm oil investments, requiring more in depth due-diligence and risk assessments prior to investments. As such, likely lead to stronger implementation of the IFC PS. • The IFC palm oil strategy requires certification, and in its absence, will invest in and provide advice to multi-stakeholder led development of industry-wide voluntary standards (rush as the RSPO National Interpretations), among others.
Weaknesses: • Not required to follow by all companies. Mandatory only for companies to comply with the requirements if they wish to successfully obtain IFC investment – thus scale of good practice may not be adequate in many countries. • Additionally, according to IFC’s palm oil strategy, investment likely to be centred in Southeast Asia in the near future, therefore implementation on the core issues outlined in the IFC PS will likely not be safeguarded as well as in Southeast Asia. • Guidance for respecting human rights remains low – in fact there is no reference to the UNDHR. • Protection of indigenous peoples and communities remains explicitly absent – IFC requires respect of human rights, engaging with communities & indigenous peoples, providing information to allow for informed decision making, and avoidance/ minimise impacts on land – thus if indigenous peoples/ communities wish to give their land, they can do so. The NGO community has previously criticised the IFC for not providing adequate provisions for protecting communities’ rights.
Country level details According to the CAO’s 2014 cases – existing conflicts in relation to IFC investment & palm producing companies are: Colombia: 2 cases with Dinant, a palm oil company based in Honduras. Case currently being assessed. Indonesia: Wilmar international in Jambi. Case currently being investigated. Honduras: Dinant. Case currently being monitored.
Impacts on palm oil The IFC has good leverage for influencing good practice by palm oil companies by requiring production compliance to their standards in order to obtain IFC investment. However, according to IFC’s palm oil strategy, as investment is likely to be centred in Southeast Asia in the near future, implementation on the core issues outlined in the IFC PS will likely not be safeguarded as well in other palm oil producing regions. Having said that, investment in other regions will continue but at a lower scale. Countries of interest and/or current investment include Ghana, Liberia, Nigeria and some Latin American countries. Smallholders is an active area of support and consideration for all palm oil investments.
Key actors IFC, CAO Ombudsman, WRI, Oxfam
Measures to promote It appears that compliance levels with IFC PS is relatively high – and for any shortfalls, these are compliance reported and dealt with by the CAO. Further mechanisms for scaling up efforts can be explored – which could include requiring other investment companies to adopt similar approaches and/or promoting/ encouraging palm oil companies themselves to adopt the IFC PS framework as part of their risk management system.
136 http://www.ifc.org/wps/wcm/connect/159dce004ea3bd0fb359f71dc0e8434d/WBG+Framework+and+IFC+Strategy_FINAL_FOR+WEB.pdf?MOD=AJPERES
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Regulatory framework 18 Equator Principles
Relevant website links http://www.equator-principles.com/
Summary (what it is about) A voluntary risk assessment framework for managing environmental and social risks associated with any infrastructure and industry investments. The Equator Principles (EPs) aim to provide a minimum due diligence standard for responsible investment and are designed to apply globally and to any sector. As of April 2015, 80 financial institutions had voluntarily adopted the EPs (‘Equator Principles Financial Institutions’ (EPFI). These institutions require that all their financed projects follow the EPs, and so clients must communicate their intentions to comply with the Principles. The EPs should always be applied from the start of a project (i.e. not retroactively) but can apply to expansion/upgrading of an existing project. The EPs apply to four types of financial product: Project Finance Advisory Services (total project costs >$10 million), Project Finance (total project costs >$10 million), Project-Related Corporate Loans (total aggregate loan >$100 million) and Bridge Loans (with tenure <2 years). In the 3rd version of the Equator Principles that have been in place since January 2014 there are 10 principles that cover, in brief, the following137: 1. Review and categorise according to potential environmental and social risks, based on the IFC’s env/social categorisation process. Category A: potentially significant adverse impacts/ risks that are diverse, irreversible or unprecedented. This includes projects that are likely to impact critical natural habitat, indigenous territories, and/or cultural sites of spiritual, historical or archaeological significance, Category B: limited environmental/social risks that are few in number, site-specific, largely reversible or readily mitigated, andCategory C: minimal or no adverse impacts. 2. Environmental and social assessment. Clients are required to conduct an assessment of social and environmental risks to satisfy the EPFI. The assessment should propose measures for offsetting and mitigating adverse impacts. For Category A and ‘as appropriate’ Category B a formal Environmental and Social Risk Assessment must be conducted. Specific social or environmental requirements will depend on the context, e.g. supplementary and specific human rights documentation or GHG alternatives analysis if annual emissions >100,000
t of CO2 (NB-this arguably high threshold could easily apply to an oil palm plantation: e.g. the carbon stored in just 600 ha of very degraded forest (50 tC/ha) is equivalent to over
100,000 tCO2. 3. Applicable environmental and social legislation/standards. In Designated Countries deemed to have robust social and environmental protection legislation, projects must demonstrate compliance with the relevant laws. In Non-Designated Countries the projects must comply, as a minimum, with IFC Performance Standards on Environmental and Social Sustainability. 4. Environmental and social management plan (ESMP) must be ‘developed or maintained’ for Category A and B projects. Must also address any issues/gaps identified during assessment process or by the EPFI. 5. Stakeholder engagement. For Category A and B projects the client must demonstrate an effective and ongoing stakeholder engagement process with affected communities and other stakeholders (if necessary). This should include “informed consultation and participation” that is “free from manipulation, coercion and intimidation”, covering at least: risks and impacts of the project, the phase of development, locally appropriate languages and decision- making processes and vulnerable groups. The consultation/disclosure must occur before construction begins, and “projects with adverse impacts on indigenous peoples will require their FPIC”. Clients must demonstrate compliance with national and international obligations on the rights of indigenous peoples. 6. Covenants. Clients must include covenants on compliance with the EPs and ESMPs and on provision of periodic reports. The client is expected to implement remedial measures if found not to be in compliance and if these measures are not successful in an agreed remedial period the EPFI can exercise remedial measures as appropriate.
137 http://www.equator-principles.com/resources/equator_principles_iii.pdf
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7. Independent monitoring and reporting. All Category A and some Category B projects, as appropriate, require an independent consultant to conduct ongoing monitoring of and reporting on the information being reported to the EPFI on compliance with the EPs. 8. Reporting and transparency. Category A and, as appropriate, Category B projects must make summary ESIA reports available online (and for high-emitting projects also report on GHG levels). EPFIs are also required to report at least annually on projects reaching financial close and on the EP implementation processes and experience. Annex B in the EPs lists specific reporting requirements. The EPs also has a number of Working Groups to discuss and provide guidance on key issues. Of particular relevance to this study are the Social Risk, the Asia Regional and the Middle East and Africa Working Groups.
Date of establishment, First generation of the EPs was launched in 2003, the second in 2006 and the third in 2013. Recent/ expected developments
Ratification Not applicable. Implementation – Strengths Strengths & Weaknesses • The strength of the EPs has improved over time. For example, the EPs III now require FPIC in certain circumstances. For example, both the EPs and the IFC PS were strengthened concurrently in 2006. • It has been argued that the EPs are thought to support more environmentally and socially responsible project investment, especially in developing countries where national legislation in these areas is weak.2 • Glossary of terms provides clarity on key issues. Weaknesses • Overall, the language of the EPs is fairly broad with a lack of concrete, verifiable performance metrics, allowing flexibility in implementation. The EPs also rely heavily on ESIAs, which have been criticised as ineffective and highly variable, and the IFC’s environmental and social categorisation process. Under certain circumstances the EPs also rely on other aspects of the IFC’s voluntary PSs. • The EPs are voluntary, so only a selection of investors are bound by them. Indeed, a major concern of the EPs is that few BRIC Countries’ Banks are members of the EP Association, and indeed amongst the 8 major oil palm growers considered in this review only seven banks in three countries are members.138 • Weak enforcement. Each EPFI is responsible for monitoring the compliance of its clients with the EPs, and so can in theory decide how to interpret independent assessments (see Principle 7). A 2012 study suggested that EPFIs are well placed to monitor clients’ compliance, given that they are already monitoring other financial values, but that they should take a more active role in conducting site level monitoring. It is suggested that this could be supplemented by investors support governments to develop technical capacity to improve enforcement.139
Country level details It should be noted that none of the oil palm grower countries considered in this review are listed as EP “Designated Countries”. This means that the EP Secretariat considers that national legislation in these countries is not sufficiently robust to protect environmental and social values. Hence compliance with the IFC’s PS is required for projects financed in these countries. Of the 80 EPFIs a number are registered in some of the focal oil palm grower countries, as follows: four banks in Brazil, one in Colombia and two in Nigeria. The controversial Belo Monte Dam received funding from an EP founding member.
138Wörsdörfer, M. 2013 10 Years ‘Equator Principles’: A Critical Economic-Ethical Analysis. Research Paper No. 54/2013. OSGOODE HALL LAW SCHOOL. 139Sarro, D. 2012. Do Lenders Make Effective Regulators? An assessment of the Equator Principles on project finance. German Law Journal. Volume 13, Number 12: 1522-1558.
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Impacts on palm oil Project finance is of little relevance to the palm oil sector, but a number of EPFIs, including production from non-grower countries, have investment portfolios that include oil palm, and some have specifically identified palm as a focal sector for sustainability (e.g. the Norwegian DNB Group). Therefore, the EPs have the potential to provide an extrajudicial means of protecting social values. The EPs can provide environmental and social safeguards in oil palm grower countries where there is often a vacuum of adequate national environmental and social legislation. In terms of social safeguards, the EPs require FPIC in any projects with the potential to impact indigenous communities, and free, culturally appropriate and informed consultation for all projects. Affected communities also have the right to participate in decision-making. However, the EPs are not specific to palm oil and remain fairly general and weak in comparison to other voluntary mechanism, most notably the RSPO which provides stronger and more verifiable safeguards. For example, the reality of implementing FPIC has been questioned.2
Key actors BankTrack, Bankwatch, Friends of the Earth, Greenpeace, Human Rights Watch, International Rivers Network, Rainforest Action Network, and World Wide Fund for Nature.
Measures to promote • The EP Association includes NGOs which has helped to strengthen the EPs over recent years. compliance • One suggestion to promote compliance is the introduction of “third-party beneficiary rights for project-affected communities” to improve implementation and make companies directly accountable and liable for any breaches of the EPs.2 Such a strategy could greatly enhance the enforcement of communities’ rights. • Need for an independent ombudsman/auditor. • Combine with other standards such as RSPO and HCV, which include more specific metrics/ mechanisms for protecting human rights and social values.
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Voluntary guidelines on the Tenure of Land, Fisheries, and Forests in the context of food Regulatory framework 19 security
Relevant website links FAO website: http://www.fao.org/nr/tenure/voluntary-guidelines/en/ Full Guidelines: http://www.fao.org/docrep/016/i2801e/i2801e.pdf
Summary (what it is about) The Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security promote secure tenure rights and equitable access to land, fisheries and forests as a means of eradicating hunger and poverty, supporting sustainable development and enhancing the environment. It is an internationally negotiated document. The negotiations, chaired by the United States, occurred over a nine month period and involved 96 member countries and over 30 civil society organisations. The guidelines are the first comprehensive, global instrument on tenure and its administration to be prepared through intergovernmental negotiations. The Guidelines serve as a reference and set out principles and internationally accepted standards for practices for the responsible governance of tenure. They allow governments, civil society, the private sector and citizens to judge whether their proposed actions and the actions of others constitute acceptable practices. They provide a framework that States can use when developing their own strategies, policies, legislation, programmes and activities; for enhancing the transparency and administration of tenure systems; and for strengthening the capacities and operations of public bodies, private sector enterprises, civil society organisations and people concerned with tenure and its governance. The guidelines place the governance of tenure within the context of national food security, and are intended to contribute to the progressive realisation of the right to adequate food, poverty eradication, environmental protection and sustainable social and economic development. The objectives of the guidelines: 1. Improve tenure governance by providing guidance and information on internationally accepted practices for systems that deal with the rights to use, manage and control land, fisheries and forests. 2. Contribute to the improvement and development of the policy, legal and organisational frameworks regulating the range of tenure rights that exist over these resources. 3. Enhance the transparency and improve the functioning of tenure systems. 4. Strengthen the capacities and operations of implementing agencies; judicial authorities; local governments; organisations of farmers and small-scale producers, of fishers, and of forest users; pastoralists; indigenous peoples and other communities; civil society; private sector; academia; and all persons concerned with tenure governance as well as to promote the cooperation between the actors mentioned.
Date of establishment, They were officially endorsed by the Committee on World Food Security on 11 May 2012. Recent/ expected Since then implementation has been encouraged by G20, Rio+ 20, developments The Guidelines have now received global recognition, including by the G8, G20 and Rio +20 meetings, United Nations General Assembly and Francophone Assembly of Parliamentarians. Initiatives have been launched by governments and international organisations to support their implementation, including commitments by the World Bank, a four-year support program developed by the FAO, the G8 countries though land partnerships with developing countries and the New Alliance for Food Security and Nutrition. Even the private sector, which until recently had shown relatively little interest in the Guidelines, has started to act on them – e.g. recent commitments of Coca-Cola and Pepsi-Co (Oxfam).
Ratification (if relevant) Not applicable, as a voluntary guideline only. The Guidelines are voluntary. They are not legally binding. They do not replace existing national or international laws, commitments, treaties or agreements. At the same time, they do not limit or undermine any legal obligations which States may have under international law.
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Implementation: does In itself it provides no safeguards, being a voluntary non-binding guidance. However if used to it provide any safeguard establish national (or other) policies and legislations then safeguards related to socio-economic related to the socio- impacts of oil palm plantations on affected communities, include: economic impacts of • Recognising and respecting all legitimate tenure right holders and their rights, including oil palm plantations on informal tenure; affected communities? • Providing access to justice to deal with the infringements of legitimate tenure rights; • Setting out provisions for policy, legal and institutional frameworks; • Putting in place safeguards to avoid infringing on tenure rights; • Acknowledging that land, fisheries and forests have social, cultural, spiritual economic, environmental and political values to indigenous peoples; • Preventing forced evictions; • Recognising that business actors have a responsibility to respect human rights and legitimate tenure rights; • Recognising that public and private investment are essential for food security; • Recognising the role and tenure needs of smallholders; • Putting in place safeguards to protect tenure rights from risks arising from long term transactions in tenure rights; • Setting out the need for restitution and compensation with respect to tenure issues; • Highlighting the need for tenure systems that prevents and responds to the effects of climate change.
Implementation –Strengths Strengths: & Weaknesses • The go-to standard on tenure of land fisheries and forests • Many countries involved in its creation • Adopted by several fora • Strong in promoting the rights of women and also of IPs
Weaknesses: • Voluntary • Exclusion of water tenure rights from the guidelines • Voluntary Guidelines accept the transfer of tenure rights through market transactions which in the absence of appropriate state regulatory framework can fail to benefit; • The right to return in post-conflict situations was not reaffirmed; • The need for a strong monitoring mechanism to ensure accountability of governments and international organisations and their policies having impact on tenure. • Unfortunately, the principle of Free Prior and Informed Consent has been recognised only for the indigenous peoples and has not been extended to other communities vulnerable to losing land rights. For all other affected communities the principle of consultation and participation will apply. Country level details Not clear how many countries have used these guidelines since 2012 to develop national strategies, policies or legislation. Largest producer countries (according to Impacts report 2014): • Indonesia • Malaysia • Thailand • Colombia • Nigeria • Others Impacts on palm oil Impacts are not clear at this point. How many countries have used these guidelines since 2012 to production develop national strategies, policies or legislation?
Key actors FAO; US Government; FIAN International Measures to promote None. compliance
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Regulatory framework 20 High Conservation Value (HCV) Approach
Relevant website links Websites: HCV Resource Network: https://www.hcvnetwork.org/ HCV Forests site: http://hcvf.net/eng/about/ FSC & HCV: https://ic.fsc.org/high-conservation-values-and-biodiversity.213.htm
Summary (what it is about) High Conservation Values (HCVs) are biological, ecological, social or cultural values which are considered outstandingly significant or critically important, at the national, regional or global level. All natural habitats possess some inherent conservation values, including the presence of rare or endemic species, provision of ecosystem services, sacred sites, or resources harvested by local residents. However, some values are more significant or critical than others, and it is the HCV approach which offers an objective way of identifying those values to be maintained or enhanced. The six High Conservation Values cover a broad array of conservation priorities shared by a wide range of stakeholder groups. In any management plan, from forest management to agricultural plantation site selection and design or freshwater resources management, it is these values that need to be maintained or enhanced. HCV 1 Species Diversity: Concentrations of biological diversity including endemic species, and rare, threatened or endangered (RTE) species that are significant at global, regional or national levels. HCV 2 Landscapes level ecosystems and mosaics: Large landscape-level ecosystems and ecosystem mosaics that are significant at global, regional or national levels, and that contain viable populations of the great majority of the naturally occurring species in natural patterns of distribution and abundance. HCV 3 Ecosystems and habitats: Rare, threatened, or endangered ecosystems, habitats or refugia. HCV 4 Ecosystem services: Basic ecosystem services in critical situations including protection of water catchments and control of erosion of vulnerable soils and slopes. HCV 5 Community needs: Sites and resources fundamental for satisfying the basic necessities of local communities or indigenous peoples (for example for livelihoods, health, nutrition, water), identified through engagement with these communities or indigenous peoples. HCV 6 Cultural values: Sites, resources, habitats and landscapes of global or national cultural, archaeological or historical significance, and/or of critical cultural, ecological, economic or religious/sacred importance for the traditional cultures of local communities or indigenous peoples, identified through engagement with these local communities or indigenous peoples.
Date of establishment, High Conservation Value (HCV) definitions were first set forth by the Forest Stewardship Council Recent/ expected (FSC) in 1999 in version 4.0 of its Principles and Criteria (P&C). The formalisation of the six developments categories of the HCV approach and guidance for interpretation and application was elaborated in 2003 by Proforest in its HCV global toolkits. In 2005, the newly established HCV Resource Network (HCVRN) adopted a simplified version of the HCV toolkit formulations in its founding Charter and widened their scope from “HCV Forest” to “HCV Areas” i.e. both forest and non- forest ecosystems. Between 2009 and 2011, the HCVRN and FSC worked together to revise the HCV definitions, involving experts and stakeholders from other sustainability schemes. This process, resulting in the FSC P&C version 5.0, brought a focus on values in all ecosystems, not only forests and now includes the six HCV definitions in the Principle 9 text. In 2013 a new Common Guidance for the Identification of HCVs and in 2014 Common Guidance for the management and monitoring of HCVs were launched by the HCVRN.
Ratification (if relevant) HCV approach is voluntary. Although has been adopted by some standards such as RSPO, FSC, Bonsucro, RTRS, etc. Some countries have also adopted National Interpretations (see below).
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Implementation: does HCVs 4, 5 and 6 provide safeguards with respect to socio-economic and socio-cultural impacts it provide any safeguard of oil palm development under RSPO. HCV is mandatory component of the New Planting related to the socio- Procedures (NPP) under the RSPO certification standard. economic impacts of Under HCV 4 ecosystem services in critical situations that benefits people need to be maintained oil palm plantations on and enhanced. The different types of such beneficial ecosystem services are include: provisioning affected communities? services such as food and water; regulating services such as regulation of floods, drought, land degradation, and disease; cultural services such as recreational, spiritual, religious and other nonmaterial benefits; and supporting services such as soil formation and nutrient cycling; and cultural services such as recreational, spiritual, religious and other nonmaterial benefits. Carbon storage is not considered under HCV 4. HCV 5 refers to sites and resources that are fundamental for satisfying the basic necessities of local people, such as fishing, hunting, NTFP, wild food resources, fuel, medicines, building materials etc. The role of the HCV assessment is to characterise the level of dependence on the resource and to provide management recommendations for how to mitigate negative any impacts on local people’s livelihoods. HCV 6 aims to maintain the following: Sites, resources, habitats and landscapes of global or national cultural, archaeological or historical significance, and/or of critical cultural, ecological, economic or religious/sacred importance for the traditional cultures of local communities or indigenous peoples, identified through engagement with these local communities or indigenous peoples.
Implementation –Strengths Strengths: & Weaknesses • HCVs 4,5,6 do provide safeguards for socio-economic aspects of oil palm development • Several standards have adopted it • Many companies have included HCVs in their sustainability policies
Weaknesses: • Voluntary approach • HCVs 4,5,6 are often undervalued in HCV assessments (at least prior to the new ALS) • The full and informed participation of local communities in the HCV identification process is sometimes minimal
Country level details Some countries have adopted National Interpretations, including Gabon, Ghana, Indonesia, Liberia, Malaysia and PNG
Impacts on palm oil Large areas of land of socio-economic importance to local communities have been set aside for production their HCV values that would have been converted to palm oil production. Precise figures are not known, but surely running into millions of hectares.
Key actors HCVRN, Proforest, WWF, FSC, Greenpeace, FPP.
Measures to promote A new HCV RN assessor licensing scheme (ALS) to improve the quality of the HCV assessment compliance process has recently been launched (2014). Compliance of HCV management is done through certification standards, such as RSPO, FSC etc.
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Regulatory framework 21 The Roundtable on Sustainable Palm Oil (RSPO)
Relevant website links RSPO website: www.rspo.org RSPO Impacts report: http://www.rspo.org/about/impacts
Summary (what it is about) Is a global, multi-stakeholder initiative on sustainable palm oil not-for-profit organisation with a vision to ‘transform markets to make sustainable palm oil the norm”. RSPO is an association with a mission:- 1. To advance the production, procurement, finance and use of sustainable palm oil products; 2. To develop, implement, verify, assure and periodically review credible global standards for the entire supply chain of sustainable palm oil; 3. To monitor and evaluate the economic, environmental and social impacts of the uptake of sustainable palm oil in the market; 4. To engage and commit all stakeholders throughout the supply chain, including governments and consumers.
Date of establishment, RSPO began as an informal cooperation between several multinational companies and the WWF. Recent/ expected In 2003, the organising committee was first created and the organisation was formally established developments in 2004. In 2007 the first RSPO P&C standard was approved with the first certification achieved in 2008 by United Plantations. In 2013, the standard was revised. Key notable changes include requirements on: (1) human rights; (2) ethical code of conduct; (3) estimation of High Carbon Stock areas. In terms of current developments – RSPO is continuously trying to make sure it stays current and keeps up with other sustainability initiatives. As such, there are several groups, working groups and task forces which are trying to further understand in order to establish a position for RSPO. These include on; (1) FFB Legality – developing a mechanism for ensuring FFB is sourced from legal sources; (2) Innovation Lab – prioritising key issues for RSPO to establish a mechanism for (e.g. High Carbon Stocks, Traceability for uncertified materials, etc).
Ratification (if relevant) Not applicable
Implementation: does 1. Labour issues: Review by Verite Southeast Asia has indicated that RSPO companies are in a better it provide any safeguard position when it comes to labour standards due to the RSPO P&C and certification process. A vast related to the socio- difference on this issue is observed between RSPO and non-RSPO members. Other reviews indicate economic impacts of that companies have voluntarily phased out use of Paraquat chemical in their operations. oil palm plantations on Safeguards for the following issues: affected communities? • Rights of workers: no discrimination based on race, caste, national origin, etc. Workers have right to collectively bargain • Free from bonded labour: no forms of forced or trafficked labour. • Decent living conditions: Pay and conditions for all workers need to meet legal or industry minimum standards. Wages must be sufficient to provide a decent living wage (although for this – RSPO remains weak on providing guidance for meeting this, as such, not always implemented by companies) • Health and safety: adequate training and safety measures • Social impact assessment: requiring all social impacts to workers, communities and other stakeholders to be identified and managed. • Human rights: respecting human rights across all operations.
2. Community: Safeguards for the following issues • Demonstrable rights: customary and traditional rights of communities and indigenous peoples’ must be respected by companies. • FPIC: Principle must be respected and followed by companies in order for identifying land for commercial production. The cultivation of oil palm must not diminish the legal, customary or user rights of other users.
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Implementation –Strengths Strengths: & Weaknesses • The go-to standard and current global baseline for sustainable palm oil. RSPO frequently quoted in sustainable palm oil policies by different actors along the palm oil supply chain (e.g. producers, traders, retailers, manufacturers). Several parallel initiatives have spun-off from this platform that go beyond the requirements in the standard. • Considered relatively strong on socio-economic requirements (however issues with regards to implementation). • The RSPO Grievance Mechanism and Complaints Panel further strengthens the RSPO certification scheme. Complaints and grievances can be publicly raised through this mechanism for further scrutiny by the RSPO Secretariat and Panel. Independent verifications can also be part of this resolution process. • Partnerships and collaborations – RSPO is often the linchpin behind collaborations and partnerships between parallel initiatives. RSPO is actively collaborating with research institutions on socio-economic issues, such as with: SEARPP, Universiti Putra Malaysia. Weaknesses: • Not required to be followed by all companies. Mandatory only for companies to comply with the requirements if they wish to successfully obtain RSPO certification – thus scale of good practice may not be enough to impact global change. • Process of certification often criticised – Certification Bodies are not consistent in their assessments and do not always deliver quality services. Some companies that have received certification are under scrutiny by advocacy NGOs for violations against RSPO requirements (e.g. IOI). • In terms of socio-economic issues – areas of continuous implementation challenges are: (1) decent living wages and (2) implementation of FPIC. Strong guidance on these issues is required. • Since the establishment of the RSPO complains panel, 46 cases have been filed against RSPO members – the majority of these issues are with regards to lack of FPIC and cases where land use has been changed without proper HCV assessment. • Human Rights and Ethical Conduct are new requirements in the 2013 standard – requirements for compliance are to develop and communicate the policy, which some stakeholders view as not adequate. Country level details Largest producer countries (according to Impacts report 2014): • Indonesia: 53% • Malaysia: 33% • Thailand: 4% • Colombia: 2% • Nigeria: 1% • Others: 7% Largest importers of palm oil (2013): • India: 20% • China, EU: 15% • Pakistan: 6% • US, Egypt, Bangladesh: 3% • Singapore, Iran, Russia: 2% • Others: 29% Scheme smallholder certification: Indonesia (40%), PNG (34%), Malaysia (14%), CIV (10%), Solomon Islands (1%), Colombia (1%) Independent smallholder certification: Malaysia (75%), Thailand (20%), Indonesia (5%) Impacts on palm oil As of March 2015 production • Global certification: 12.14 million tonnes certified (~18% of global palm oil) • Production certified area: 3.18 million ha certified (296 mills, 58 growers) • Supply chain certificate: 1,146 companies, 2,052 facilities • RSPO members: 2,166 members Key actors RSPO Secretariat, RSPO Members, IDH Traceability Group, Global Forest Watch (WRI), Measures to promote Accelerated progress in addressing the challenges which is currently affecting the integrity of the compliance RSPO standard. These issues include: (1) providing more guidance on FPIC; (2) improving quality of auditors. Improving capacity of the Secretariat is also essential.
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Regulatory framework 22 The Climate, Community and Biodiversity Alliance (CCBA)
Relevant website links CCBA: http://www.climate-standards.org/ CCB Standards: http://www.climate-standards.org/ccb-standards/
Summary (what it is about) Established in 2003, the CCBA is a partnership body of international NGOs (CARE, CI, TNC, Rainforest Alliance and WCS) that promotes land management activities that jointly mitigate climate change, alleviate poverty and conserve biodiversity. CCBA is funded primarily by corporate and foundation donations. CCBA works mainly through standard developed in a transparent and participatory manner way with multiple stakeholders. Revision and field-testing of the standards is supported by advisory institutions ICRAF, CIFOR and CATIE. CCBA’s two main standards are: 1. Climate, Community and Biodiversity (CCB) Standards for site-based projects (3rd edition published 2013), 2. REDD+ Social and Environmental Standards (REDD+ SES) for government-led programmes (2nd version published in 2012). CCB Standards The CCB standards are designed with the primary aim of promoting environmental and social benefits of site-based carbon offset or carbon trading projects. This includes REDD+, afforestation, reforestation and improved forest management projects. The CCB standards do not deliver quantified emissions reductions certificates, but they can be combined with dedicated carbon accounting standards like the Clean Development Mechanism or Verified Carbon Standard. As such, the CCB standards provide assurances to companies investing in carbon offsets or carbon trading that projects provide social and biodiversity benefits in addition to carbon benefits. The CCB Standards are fully aligned with the UNFCCC’s seven Cancun Safeguards on biodiversity and social protection. There are similarities between the CCB Standards and the REDD+ Social and Environmental Standards (SES) which is used for government-led REDD+ programmes; CCB Standards can be used for internal quality control within jurisdictional REDD+ programmes. The standards provide rules and guidance from project development through to implementation, and compliance with the standard requires: • Validation of initial project design (that can build investor and stakeholder support), and • Subsequent independent verification of project implementation and delivery of multiple benefits and emissions reductions. Verification must take place at least every 5 years. In early 2015, over 100 projects worldwide have applied for or achieved CCB Validation, of which 26 have already been verified. Projects can either be ‘Approved’ as meeting the CCB Standard or as meeting the optional and additional ‘Gold Level’, showing even higher performance. The CCB Standards consists of 14 criteria divided into four categories: 3. General section: covering project goals, design & viability, additionality, stakeholder engagement, legality and property rights (includes requirement for FPIC and recognition of community rights in line with the UNDRIP); 4. Climate section; 5. Community section; 6. Biodiversity section.
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Summary (what it is about) For each of the climate, community and biodiversity sections the criteria cover ‘without-project’ scenarios, net positive impacts, offsite impacts (‘Leakage’) and impact monitoring. The following ‘Gold Level’ criteria are also included: • climate change adaptation benefits, • exceptional community benefits: including net positive benefits for women and marginalised groups, implementation of a benefit sharing mechanism, and • exceptional biodiversity benefits. Each CCB criteria also contains numerous, detailed indicators. For example, projects must maintain or enhance social or environmental HCVs AND no HCVs are to be negatively impacted by the project. The same criteria and indicators are applied to all projects globally. REDD+ Social and Environmental Standards (REDD+ SES) It is recognised that REDD+ projects could pose risks to local and indigenous communities and biodiversity if developed without suitable safeguards. REDD+ SES is designed to be a mechanism for assessing, promoting and monitoring social and biodiversity safeguards for country-led REDD+ programmes. REDD+ SES was developed through multiple rounds of consultation and stakeholder workshops, specifically in target countries including Liberia, Tanzania and Ecuador. With its focus on larger, country-led programmes, REDD+ SES differs from the CCB standard in that it includes higher level and broader criteria on good governance, sustainable development, national conservation priorities and social justice at the jurisdictional scale. The REDD+ SES indicators are adapted to different national contexts following a transparent and inclusive multi- stakeholder process of governance, interpretation and assessment. REDD+ SES includes three types of indicators: 1. Policy indicators – assessing REDD+ relevant policies, legal frameworks and institutions expected to be in place, 2. Process indicators – assessing planning and implementation of REDD+ processes, and 3. Outcome indicators – assessing impacts of the REDD+ programme.
REDD+ SES consists of seven principles (each with policy, process and outcome indicators), as follows: 1. The REDD+ program recognises and respects rights to lands, territories and resources, 2. The benefits of the REDD+ program are shared equitably among all relevant rights holders and stakeholders, 3. The REDD+ program improves long-term livelihood security and well-being of Indigenous Peoples and local communities with special attention to women and the most marginalised and/ or vulnerable people, 4. The REDD+ program contributes to good governance, to broader sustainable development and to social justice, 5. The REDD+ program maintains and enhances biodiversity and ecosystem services, 6. All relevant rights holders and stakeholders participate fully and effectively in the REDD+ program, 7. The REDD+ program complies with applicable local and national laws and international treaties, conventions and other instruments.
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Date of establishment, 2003: CCBA established Recent/ expected CCB Standards developments • 2005: 1st edition of CCB Standards published, • 2008: 2nd edition of CCB Standards published, • 2013: 3rd edition of CCB Standards published. REDD+ SES • 2009: REDD+ SES initiated during a multi-stakeholder workshop in Copenhagen, Denmark, • 2010: Version 1 of standards published, • 2012: Version 2 of standards published. Ratification NA Implementation – Strengths Strengths & Weaknesses • REDD+ SES tied closely to other frameworks/treaties including CBD (benefit sharing) and UNDRIP and other human rights treaties. Also to other established voluntary schemes, for example, requiring the protection of HCVs. • One of the few carbon standards that requires and quantifies social and biodiversity benefits.140 • Continuous improvement. The 3rd edition of the CCB standards released in 2013 addressed many previous criticisms of the older standards. It includes stronger requirements on management and monitoring of social and biodiversity benefits.
Weaknesses • Voluntary. Uptake is limited with only 26 verified projects globally. • A 2013 review of the community monitoring of REDD+ suggested that there was a ‘gap between policy and practice’ in CCB validated REDD+ schemes, particularly in the weak participation of local communities in monitoring. It stated that community involvement was increasing but that the level of involvement did not match policy text of the UNFCCC on REDD+.141 • Criticisms of the 2nd edition of the CCB standards included: inadequate FPIC in CCB projects and a lack of clear benefit-sharing mechanisms. It is claimed that there was insufficient guidance on what constitutes an acceptable FPIC process. However, the 3rd edition of the standard goes some way to addressing these comments by providing further guidance and clearer criteria. • Reliant on other standards and mechanisms (including the CDM) for dealing with carbon accounting and permanence. Country level details Indonesia: There are 2 active CCB projects in peat swamp forests in Central Kalimantan, Indonesia: Rimba Raya REDD+ project and Rewetting of tropical peat swamp forest in Sebangau National Park. Central Kalimantan Province is also using the REDD+ SES standard to develop REDD+ activities, and is the pilot province for the Indonesia-Norway Partnership on REDD+. The proposed Ulu Masen project in Aceh, Sumatra was the first CCB project to be verified but was never implemented in part due to a lack of governmental support, and has drawn substantial criticism.142 Cameroon: No CCBA projects. Malaysia: No CCBA projects. Thailand: No CCBA projects. Ghana: No CCBA projects. Nigeria: No CCBA projects. Brazil: The states of Amazonas and Acre in Brazil have started using REDD+ SES. Colombia: There are 6 CCBA projects in Colombia, 1 of which has been verified.
140 https://reducecarbon.wordpress.com/v-review-of-climate-community-and-biodiversity-standard-ccbs/ 141 Danielsen, F., et al. 2013. Community monitoring for REDD+: international promises and field realities. Ecology and Society 18(3): 41. http://dx.doi.org/10.5751/ES-05464- 180341 142 http://www.redd-monitor.org/2013/02/21/redd-plus-or-redd-light-biodiversity-communities-and-forest-carbon-certification/
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Impacts on palm oil CCBA projects could potentially include some oil palm production in degraded areas as long as production all of the social and biodiversity safeguards are met, i.e. FPIC of communities, benefit sharing, maintenance of HCVs and no conversion of natural forest. This could make such projects eligible for carbon financing as a means of funding HCS set-asides or forest conservation generally. Similar projects have been trialled with community ownership of oil palm holdings and protection of community forests.143 Indonesia’s national forestry department has developed a REDD framework that allows communities to apply for permits to establish REDD sites, but currently without safeguards that protect customary rights of indigenous groups.144 Voluntary safeguards like CCBA could fill this gap in national legislation whilst specifically promoting carbon, social and biodiversity benefits.
Key actors REDD-monitor, Global Witness, WRI, Chatham House
Measures to promote • Establish stronger ties with other mechanisms including the HCV approach (through the compliance HCVRN) to ensure stronger monitoring and protection of HCVs. • CCBA is the only widespread standard that incorporates carbon, social and biodiversity benefits, which naturally aligns it with the HCS methodologies (albeit framed in different production/ development contexts). Use of similar thresholds and criteria in the HCS context could provide similar social and biodiversity safeguards.
143 http://www.redd-monitor.org/2012/04/19/interview-with-frank-momberg-fauna-and-flora-international/ 144 Pye & Bhattacharya. 2013. The Palm Oil Controversy in Southeast Asia: A Transnational Perspective. Institute of Southeast Asian Studies.
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Regulatory framework 23 Tropical Forest Alliance 2020
Relevant website links http://www.tfa2020.com/
Summary (what it is about) TFA 2020 is a public-private partnership in which Partners take voluntary actions, individually and in combination, to reduce the tropical deforestation associated with the sourcing of commodities such as palm oil, soy, beef, paper and pulp and does so by tackling the drivers of tropical deforestation using a range of market, policy and communications approaches. TFA 2020 will contribute to mobilising and coordinating actions by governments, the private sector and civil society to reduce tropical deforestation related to key agricultural commodities by 2020. TFA 2020 and its Partner countries, companies and civil society organisations work together to: • Improve planning and management related to tropical forest conservation, agricultural land use and land tenure. • Share best practices for tropical forest and ecosystem conservation and commodity production, including working with smallholder farmers and other producers on sustainable agricultural intensification, promoting the use of degraded lands and reforestation. • Provide expertise and knowledge in order to assist with the development of commodity and processed-commodity markets that promote the conservation of tropical forests. • Improve monitoring of tropical deforestation and forest degradation to measure progress. TFA2020 is currently pursuing its vision in three regions: Latin America, Southeast Asia and Africa. In Africa TFA2020 has a signature Initiative – Africa Palm Oil Initiative – which aims to build public-private partnerships to decouple deforestation from palm oil supply chains in some initial focal countries – Cameroon, Cote D’Ivoire, Gabon, Ghana, Liberia and Nigeria. The vision is a prosperous palm oil industry which brings jobs and wealth to local communities but which is environmentally and socially sustainable and protects the rich tropical forests of the region. The goal of the initiative is to develop a framework that takes account of the ambitious development plans of countries in Africa, while addressing both environmental targets for deforestation, land use and greenhouse gases, and also social indicators on issues such as land tenure and the rights of indigenous peoples. In the short term the Initiative aims to develop and agree a regional set of guiding principles for responsible palm oil production, building upon a series of national positions. Thereafter the Initiative will move to an implementation phase, using public-private partnerships to support the implementation of responsible palm oil in these countries.
Date of establishment, The founding Partners of TFA 2020 were the Government of the United States and The Recent/ expected Consumer Goods Forum (CGF). TFA 2020 was born out of discussions between these two developments entities before, and during, the Rio+ 20 Conference in June 2012. Since then many other partners – public, private and civil society - have joined.
Ratification (if relevant) Voluntary
Implementation: does The TFA2020 partnership is still in its infancy, so such safeguards have yet to be build. However, it provide any safeguard the Africa POI does have the aspiration to build safeguards related to the socio-economic impacts related to the socio- of oil palm plantations on affected communities. economic impacts of oil palm plantations on affected communities?
Implementation –Strengths Strengths: & Weaknesses • Powerful partnership of Public and Private sector actors. • Global in nature. • Donor supported
Weaknesses: As yet to reach the implementation phase
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Country level details • Latin America – Brazil, Peru • Southeast Asia – Indonesia • Africa – Cameroon, Cote D’Ivoire, Gabon, Ghana, Liberia and Nigeria.
Impacts on palm oil As yet to achieve any significant impact due to its infancy. production
Key actors • Consumer Goods Forum (notably Unilever, Nestle) • Governments of Liberia and Indonesia • Governments of UK, USA, Norway, Netherlands • A wealth of NGOs – WWF, WCS, CI, FFI, WRI etc.
Measures to promote N/A as yet compliance
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Regulatory framework 24 The Consumer Goods Forum
Relevant website links Main website: http://www.theconsumergoodsforum.com/ Partnership with The Sustainability Consortium (TSC): http://www.sustainabilityconsortium.org/ consortium-news/the-consumer-goods-forum-and-the-sustainability-consortium-announce-global- partnership-to-harmonize-sustainability-measurement/ The CGF Sustainability Action Toolkit: http://www.theconsumergoodsforum.com/download- sustainability-activation-toolkit
Summary (what it is about) The Consumer Goods Forum (CGF) is a global, parity-based industry network, driven by its members. It brings together the CEOs and senior management of over 400 retailers, manufacturers, service providers and other stakeholders across 70 countries and reflects the diversity of the industry in geography, size, product category and format. Forum member companies have combined sales of EUR 2.5 trillion. Their retailer and manufacturer members directly employ nearly 10 million people with a further 90 million related jobs estimated along the value chain. The Consumer Goods Forum is governed by its Board of Directors, which includes 50 manufacturer and retailer CEOs and Chairpersons. The Forum provides a unique global platform for knowledge exchange and initiatives around five strategic priorities – Emerging Trends, Sustainability, Safety & Health, Operational Excellence and Knowledge Sharing & People Development – which are central to the advancement of today’s consumer goods industry. The Forum’s vision is: “Better lives through better business”. To fulfil this, its members have given the Forum a mandate to develop common positions on key strategic and operational issues affecting the consumer goods business, with a strong focus on non-competitively sensitive process improvement. The Forum’s success is driven by the active participation of the key players in the sector, who together develop and lead the implementation of best practices along the value chain. The CGF has its headquarters in Paris and regional offices in Washington DC, and Tokyo.
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Date of establishment, The Consumer Goods Forum was formed in 2009. Recent/ expected In 2010, the CGF Board approved a resolution to achieve zero net deforestation by 2020 through developments the responsible sourcing of key commodities such as soy, beef, palm oil and paper, so that the sourcing of these key commodities will not deplete tropical rainforests. The Forum endorses the WWF definition of zero net deforestation. Guidance on achieving this commitment is provided to the CGF members through the publication of sourcing guidelines and the CGF Activation Toolkit, as well as regular workshops and webinars. Specific to the responsible sourcing of palm oil, the CGF member companies commit to increase their support for the use of certified sustainable palm oil, whether in the form of Green Palm certificates or segregated, identity preserved supplies. Towards this end, the CGF is working on its Sustainable Palm Oil Sourcing Guidelines which is supposed to have been finalised in early 2015. In collaboration with the US Government, the CGF created the Tropical Forest Alliance 2020 (see separate review sheet on the TFA2020) to help address deforestation and the sourcing of key commodities, bringing together industry, national governments and NGOs in the largest public- private initiative of this type. At the end of 2012, the CGF formed a partnership with The Sustainability Consortium (TSC), an independent organisation of global participants developing science and integrated tools to support informed decision making for product sustainability across the consumer goods industry. The partnership between TSC and CGF is focused on Product Life Cycle Impacts, which will benefit from a single global framework to share information between companies, regulators, consumers, and CSOs. This framework enables value chain participants to improve sustainability performance by gaining transparency and better understanding into the environmental impacts of individual consumer products and their life cycles. In 2013, CGF helped launch the Soft Commodities Compact with the Banking Environment Initiative (BEI). The BEI is an initiative that comprises global banking institutions stretching across Asia, Europe, the United States and Latin America. The BEI has looked into determining how banks might best align with the CGF’s deforestation commitment. Its overriding mission is to lead the banking industry in collectively directing capital towards environmentally and socially sustainable economic development. The CGF Board has also called for a binding climate change deal ahead of the UNFCCC Conference of Parties in Paris in December 2015.
Ratification Not applicable.
Implementation –Strengths Strengths & Weaknesses • The CGF’s ability to draw upon the collective will of its members (many of which are consumer goods giants) is a key strength • It has led to several spin-off initiatives such as the TFA2020 and BEI which are beginning to make an impact Weaknesses • All tracking of member companies’ KPIs are reported within the CGF in an anonymised and aggregated format, which may not allow for effective monitoring and assurance of compliance • There does not appear to have been a critical review of CGF’s performance by a third party and therefore it is difficult to gauge the impact it has made
Country level details Not applicable as the CGF has no country level commitments
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Impacts on palm oil The CGF recommends its members to source sustainable palm oil certified by the Roundtable on production Sustainable Palm Oil (RSPO) or an equivalent standard. According to the CGF’s Sustainability Action Toolkit, the CGF is to measure the following KPIs on palm oil: • number of relevant CGF members with public commitments on palm oil • percentage of certified palm oil purchases (RSPO or equivalent standard when available) To support the tracking of the above KPIs and beyond, CGF member companies are encouraged to report: • if they are sourcing products containing palm (kernel) oil • if they have made a public commitment on certified palm oil sourcing (RSPO or equivalent) • if they have joined RSPO • their best estimate of volume of purchased palm oil (including what is used by suppliers) • % of certified palm oil (with a split between traceable, mass balance, book and claim) • their total revenues All tracking is reported within the CGF in an anonymised and aggregated format, in compliance with the CGF Antitrust Guideline. Therefore it is difficult to gauge individual members’ performance and the collective impacts they have made in making sustainable palm oil production more sustainable.
Key actors • CGF members • Consumers in general • NGOs and CBOs
Measures to promote • Consumer groups and other NGOs have a role to play in demanding for greater accountability compliance and transparency in the delivery of CGF’s commitments, including on progress in rolling out its Sustainable Palm Oil Sourcing Guidelines. • As reporting within CGF is aggregated, an individual member’s performance, specifically with regard to responsible palm oil sourcing policy, is perhaps best tracked through the RSPO’s Annual Communication of Progress (ACOP) reports. However, this is only applicable in cases where CGF members are also RSPO members.
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Regulatory framework 25 Indonesian Sustainable Palm Oil (ISPO) system
Relevant website links ISPO: www.ispo-org.or.id/index.php?lang=en Regulation: http://www.ispo-org.or.id/images/sk1.pdf and http://www.ispo-org.or.id/images/lamp_ sk19.pdf ISPO principles and criteria: http://www.ispo-org.or.id/images/pearturan/LAMPIRAN%20II%20 PC%20Terintegrasi.pdf
Summary (what it is about) ISPO is a policy and certification scheme established by the Indonesian Ministry of Agriculture (Kementrian Pertanian). It is a mandatory process for all palm oil plantation producers in Indonesia. Every business must obtain a business licence (e.g. Izin Usaha Perkebunan, IUP; or Izin Usaha Perkebunan untuk Pengolahan, IUP-P) and undergo regular assessments every one or three years. The government initially aimed for more than 2,000 companies to have achieved certification by the end of 2014.145 Companies submit a certification request and undergo assessment, including a field audit, by a certification body. Those whose operations are assessed as medium, good or excellent receive ISPO certification via the ISPO Commission. Companies that receive a poor assessment must make improvements or they will lose their licence. ISPO certification is undertaken by a third party certification body approved by the ISPO Commission, of which there are seven at the time of writing.146 ISPO principles ISPO involves a set of seven principles and 26 criteria relating to the legally compliant and environmentally and socially sustainable management of plantations and mills. The seven principles are: 1. Plantation licensing and management system. 2. Application of technical guidelines for the cultivation and processing of oil palm. 3. Environmental management and monitoring. 4. Responsibility for workers. 5. Social responsibility and community. 6. Empowerment of community economic activities. 7. Sustainable enterprise. Companies must meet all criteria or publish a time-bound plan for meeting minor criteria. ISPO’s environmental criteria are less strict than RSPO criteria (e.g. they do not specify protection of High Conservation Values or rule out peatland conversion) and its social criteria are also less comprehensive than other palm oil standards, with the principle of Free, Prior and Informed Consent (FPIC) notably absent.147 Smallholder producers The ISPO contains provisions for plasma outgrowers and independent smallholders. Supply chain certification ISPO-certified companies can work towards supply chain certification (Sertifikasi Supply Chain Sistem), but this is voluntary. Date of establishment, Development of ISPO began in 2009. Recent/ expected ISPO certification became regulation through ministerial decree in March 2011. developments November 2011: Indonesian Palm Oil Association (Gapki) left RSPO to concentrate on ISPO. The development of ISPO has been described as the result of a “power struggle” between Indonesian producers and authorities, and international companies and NGOs.148 The first company to achieve ISPO certification was Musim Mas in Riau (Pangkalan Lesung).
145 Harsono, D. et al. 2012. Analysis of Indonesian Sustainable Palm Oil (ISPO): a qualitative assessment on the success factors for ISPO. Jurnal Manajeman & Agribusnis, 9. 146 http://www.ispo-org.or.id/index.php?option=com_content&view=article&id=54&Itemid=234&lang=en 147 Paoli, G., for Daemeter. 2013. ‘A comparison of leading palm oil certification standards applied in Indonesia’. http://daemeter.org/en/news/detail/16/a-comparison-of-leading- palm-oil-certification-standards-applied-in-indonesia#.VVnUgvlViko. 148 Hospes, O. and Kentin, A. 2014. Tensions between global-scale and national-scale governance. In: P. Opdam et al. (eds). Scale-Senstive Governance of the Environment. http://www.researchgate.net/profile/Otto_Hospes/publication/263333409_Tensions_between_global-scale_and_national-scale_governance_the_strategic_use_of_scale_frames_ to_promote_sustainable_palm_oil_production_in_Indonesia/links/549171890cf222ada85908dd.pdf
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Ratification See above. Implementation – Strengths Strengths & Weaknesses • Mandatory. All producers in Indonesia are required to go through the ISPO process. • Coherence and national ownership. ISPO is aligned with national laws and regulations and is supported by government bodies. • Regional potential. In 2013 there were discussions on the use of ISPO as a regional governance KPI (key performance indicator).
Weaknesses • Slow progress. As of May 2015, the ISPO website lists 63 companies with one or more certified production sites (mills, estates and gardens). The website also lists notices of forthcoming audits and companies that are in audit stage I or II. The government has missed its target of 100% certification by the end of 2014. • A lower benchmark. The criteria are less stringent than RSPO equivalents. The introduction of ISPO is part of a national discourse that emphasises the contribution of palm oil to Indonesia’s economic development as opposed to environmental conservation goals. There is also less emphasis on the use of reporting as a transparency and accountability mechanism.149 • Land disputes. The process can be disrupted by unclear or disputed land boundaries and land ownership in Indonesia. • Lack of capacity and clarity. A study from 2014 in East Kalimantan found that companies were struggling to meet criteria for environmental management and monitoring and for community and social responsibility. The companies lacked understanding and capacity.150 • Need for partnerships, scrutiny and stakeholder involvement. The ISPO was a government initiative based on the regulatory framework and ministerial meetings rather than a multi- stakeholder process, and the lack of stakeholder input may hinder implementation; for example, the guidance for working with indigenous peoples is unclear and it is reported that stakeholders lack confidence in the integrity of the system.151
Country level details Only applied in Indonesia.
Impacts on palm oil If Indonesian companies en masse follow ISPO rather than RSPO principles and criteria, it may production weaken attempts to institutionalise principles such as zero deforestation, HCV conservation and FPIC in the palm oil industry. However, since ISPO is mandatory, the level of sustainability in palm oil production in Indonesia could rise, given that RSPO is voluntary and thus far, the majority of palm oil producers in Indonesia are still not certified under any system.
Key actors Ministry of Agriculture; other government bodies such as the State Ministry for the Environment and the National Land Agency; GAPKI; RSPO (which has had to respond to the development of ISPO).
Measures to promote compliance
149 Hopses, O. 2014. Marking the success or end of global multi-stakeholder governmance? The rise of national sustainability standards in Indonesia and Brazil for palm oil and soy. Agric. Hum. Values. http://www.researchgate.net/profile/Otto_Hospes/publication/263332882_Marking_the_success_or_failure_of_multistakeholder_governance_the_rise_of_ national_sustainability_standards_in_Indonesia_and_Brazil_for_palm_oil_and_soy/links/0f31753aaebdc38135000000.pdf 150 Anwar, R. et al. 2014. Achievement of Indonesian Sustainable Palm Oil standards of palm oil plantation management in East Borneo, Indonesia. Journal of Biology, Agriculture and Healthcare, 4 (9). http://www.iiste.org/Journals/index.php/JBAH/article/viewFile/12640/12942 151Brandi, C. Paper not for citation.
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Declaration on the Elimination of Violence Against Women and Violence Against Children in Regulatory framework 26 the ASEAN region (2013) & 2004 Declaration on the Elimination of Violence against Women in the ASEAN Region Type Non-legally binding political declaration
Relevant website links The text of the 2004 declaration is available at: http://www.asean.org/communities/asean-political-security-community/item/declaration-on-the- elimination-of-violence-against-women-in-the-asean-region-4 A pdf copy of the 2013 declaration is available at: http://www.ohchr.org/Documents/Issues/Women/WG/ASEANdeclarationVaW_violenceagainstchildren. pdf
Summary (what it is about): As it is recognised that the 2013 declaration “…broadens and strengthens the substance of similar declarations in the past”152, this review will focus mainly on the 2013 declaration unless stated otherwise. Through this declaration, ASEAN Member States, individually and/or collectively, expressed a common resolve to eliminate violence against women and violence against children in the region through the following measures: 1. Strengthen and, where necessary, enact or amend national legislations for the elimination of violence against women and violence against children, and to enhance the protection, services, rehabilitation, education and training, recovery and reintegration of victims/survivors; 2. Integrate legislations, policies and measures to prevent and eliminate violence against women and violence against children and to protect and assist the victims/survivors in the national development plans and programmes with time-bound targets, adequate resources, and gender responsive planning and budgeting; 3. Strengthen a holistic, multi-disciplinary approach to promote the rights of women and children and adopt a gender responsive, child sensitive, and age-responsive approach to eliminate violence against women and violence against children in the region which includes effective laws, legislations, policies and relevant measures; 4. Strengthen the existing national mechanisms, with the assistance, where necessary, of the ASEAN Commission for the Protection of the Rights of Women and Children (ACWC) and other related stakeholders, in implementing, monitoring and reporting the implementation of the Concluding Observations and Recommendations of the UN Convention on the Elimination of all forms of Discrimination against Women (CEDAW), UN Convention on the Rights of the Child (CRC) and other Treaty Bodies as well as the accepted recommendations under the Universal Periodic Review Process of the United Nations Human Rights Council related to the elimination of all forms of violence against women and violence against children; 5. Strengthen the capacity of law enforcement officers, policy makers, social workers, health personnel, and other stakeholders to develop, implement, monitor and evaluate gender responsive and child friendly legislations, policies and measures for women and children victims of violence; 6. Encourage research and data collection and analysis concerning all forms of violence against women and violence against children to support the formulation and effective implementation of laws, policies and programmes to eliminate violence against women and violence against children for better protection of the victims/survivors in the region; 7. Strengthen the provision of support social welfare services to women and children victims/ survivors of violence and their families in ASEAN through the establishment of an ACWC network of social services to facilitate the promotion of good practices, sharing of information, exchange of experts, social workers and service providers, including NGOs; 8. Strengthen partnerships with external parties at international, regional, national and local levels, including ASEAN Dialogue Partners, UN Agencies, civil society, community-based organisations, academia, philanthropists and private entities, in the work for the elimination of violence against women and violence against children in ASEAN and to mobilise resources to assist the victims/survivors;
152 http://www.forum-asia.org/uploads/publications/2014/November/@s-Isi%20Forum%20Asia%20Revisi.pdf
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Date of establishment, The Declaration on the Elimination of Violence against Women in the ASEAN Region was adopted Recent/ expected in June 2004, while the Declaration on the Elimination of Violence Against Women and Violence developments Against Children in the ASEAN region was adopted in October 2013. Civil society organisations in Southeast Asia raised concerns about having one instrument for both women and children’s rights, pointing out that while the rights of women and children are often interrelated, the specific characteristics, vulnerabilities and protection needs that women and children face must be genuinely and distinctively addressed.”153 The ACWC was established to oversee the implementation of the 2013 Declaration and it stuck to its original plan of having a single declaration for women and children as having two declarations would have required two processes, thus taking up more time and resources. The decision to draft the 2013 Declaration also raised questions among the civil society given that ASEAN already had two prior instruments – the Declaration on the Commitments for Children in ASEAN (2001) and a Declaration on the Elimination of Violence Against Women (2004). ACWC reasoned that this Declaration adds value to existing declarations, and that it is more potent than previous ones. Although ACWC shared an early “zero draft” of the Declaration with civil society, it did not hold any regional consultations nor dialogues at the sidelines of its meetings.
Ratification N/A
Implementation –Strengths Strengths: & Weaknesses • Includes a long list of specific forms of violence and vulnerable groups to be addressed by member states • Calls for the “elimination of prejudices and customary and all other practices which are based on the idea of inferiority or the superiority of either of the sexes or on stereotyped roles for men and women,” thus eliminating any “context” that may be used to justify any type of violence.154 Weaknesses: • Appears to be held back by ASEAN’s brand of human rights which does not meet international human rights standard • Does not include explicit provisions to address sexual harassment and protection for sexual minorities. • Women who face violence due to land grabbing or forced eviction, or as a result of environmental degradation, are not recognised. • Fails to recognise the due diligence framework, necessary if ASEAN is to respond to the multiple forms of violence against women. • Attempts to address both violence against women and violence against children in the same declaration, even though the two issues are very different. • Introducing regional declarations and conventions could also lead to redundant reporting requirements on countries already struggling to meet their current obligations under international conventions like CEDAW, which all ASEAN countries have ratified.
Country level details No information found regarding country level implementation.
Impacts on palm oil It has been estimated that 200,000-250,000 women and children in the region are trafficked production every year for the purpose of exploitation and forced labour155. While it is not clear how many women and children are involved in forced labour in the palm oil industry, it would be expected that stronger provisions for their protection against violence would help to reduce such instances.
Key actors • ASEAN member states • Civil society
153 Recommendations during the 2nd Regional Civil Society Forum to the 5th Meeting of the ASEAN Commission on the Promotion and Protection of the Rights of Women and Children (ACWC) in Jakarta, 2-3 July 2012 as quoted in: FORUM-ASIA. 2014. Four Years On and Still Treading Water: A Report on the Performance of the ASEAN Human Rights Mechanism in 2013. Asian Forum for Human Rights and Development (FORUM-ASIA), Bangkok, Thailand. Downloadable from: http://www.forum-asia.org/uploads/ publications/2014/November/@s-Isi%20Forum%20Asia%20Revisi.pdf 154 R FORUM-ASIA. 2014 (ibid.) 155 Op. cit.
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Measures to promote • Formulation of stronger national laws, policies and action plans to prevent violence against compliance women and children, as well as their effective implementation. • Appointment of a member or a group of members within ASEAN Intergovernmental Commission on Human Rights (AICHR) (possibly also including a Secretariat representative) that would act as focal point and facilitator for AICHR‘s relations with human rights organisations, and would among other things be responsible for communications between the AICHR and civil society organisation156.
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Regulatory framework 27 ASEAN Agreement on Transboundary Haze Pollution
Type Legally-binding regional agreement
Relevant website links Background on the agreement can be found at: http://haze.asean.org/?page_id=185 A pdf copy of the agreement can be downloaded from: http://haze.asean.org/?wpfb_dl=32
Summary (what it is about)s The Agreement binds member states to tackle transboundary haze pollution resulting from land and forest fires. The agreement is a reaction to the serious environmental issue that affected parts of Southeast Asia in the late 1990s, mainly caused by land clearing for agricultural expansion in various areas of Indonesia and Malaysia. The southeast Asian transboundary haze is a recurring problem with associated environmental, economic and health risks including biodiversity loss, release of greenhouse gases (especially from long-burning peat fires), respiratory health, and reduced economic activity. Many of the fires are blamed on companies and smallholders that are opening up new lands for agricultural crops (mainly palm oil and rubber) as well as pulp and paper production. However, it can be difficult to determine if the fires are caused by smallholders acting for their own commercial interests, or if they are hired to work on behalf of larger companies. The objective of this Agreement is to prevent and monitor transboundary haze pollution as a result of land and/or forest fires which should be mitigated, through concerted national efforts and intensified regional and international co-operation. The Agreement requires the Parties to the Agreement to: i. cooperate in developing and implementing measures to prevent, monitor, and mitigate transboundary haze pollution by controlling sources of land and/or forest fires, development of monitoring, assessment and early warning systems, exchange of information and technology, and the provision of mutual assistance; ii. respond promptly to a request for relevant information sought by a State or States that are or may be affected by such transboundary haze pollution, with a view to minimising the consequence of the transboundary haze pollution; and iii. take legal, administrative and/ or other measures to implement their obligations under the Agreement. The Agreement establishes an ASEAN Coordinating Centre for Transboundary Haze Pollution Control to facilitate cooperation and coordination in managing the impact of land and forest fires in particular haze pollution arising from such fires. Pending the establishment of the Centre, the ASEAN Secretariat and ASEAN Specialised Meteorological Centre (ASMC) co-performed the interim functions of the Centre.
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Date of establishment, The Governments of the ten ASEAN Member Countries signed the ASEAN Agreement on Recent/ expected Transboundary Haze Pollution on 10 June 2002 in Kuala Lumpur, Malaysia. developments At the 5th Informal ASEAN Ministerial Meeting on the Environment and 10th Meeting of the Conference of the Parties to the ASEAN Agreement on Transboundary Haze Pollution in Vientiane, Laos, on 31st October 2014, the ministers issued a media statement157 which, amongst other things, noted the significant progress in the implementation of the Work Programme of the ASEAN Agreement on Transboundary Haze Pollution, including: • implementation of the ASEAN Peatland Management Strategy (2006-2020) • adoption of the Terms of Reference of the ASEAN Task Force on Peatlands by the Committee under the Conference of the Parties to the ASEAN Agreement on Transboundary Haze Pollution • adoption of the Alert Levels, Trigger Points and Actions on Fire Suppression, to complement and enhance the existing Standard Operating Procedure for Monitoring, Assessment and Joint Emergency Response • the initiative by Thailand to develop the Air4ASEAN application for smart phone and tablet, aimed at making air quality information available to the public, including pollution indices in the ASEAN region • the contribution of several ASEAN Member States to the ASEAN Transboundary Haze Pollution Control Fund towards realising the pledge of providing an initial seed contribution of US$500,000 for the Fund • the completion of activities under the 5-year ASEAN Peatland Forests Project (APFP) funded by Global Environment Facility (2009-2014) • good progress made under the EU-supported SEApeat Project, which aim to promote the sustainable management of peatlands in ASEAN to sustain local livelihoods, reduce the risk of fires and associated haze and contribute to global environmental management • the ASEAN Programme on Sustainable Management of Peatland Ecosystems (2014-2020) which was endorsed by the 9th Meeting of the Conference of the Parties (COP-9) to the ASEAN Agreement on Transboundary Haze Pollution in 2013 • the initiatives by Sub-regional Ministerial Steering Committee on Transboundary Haze Pollution (MSC) countries to take the necessary actions in order to operationalise the ASEAN Sub- regional Haze Monitoring System (HMS) • progress in the implementation of the ASEAN Action Plan on Joint Response to Climate Change. Ratification The Agreement entered into force on 25 November 2003. To date, all of the ten member states of ASEAN have ratified the Agreement although there was a long gap between the ratification by first nine member states and the tenth country i.e. Indonesia. The Indonesian government finally ratified the Agreement on 16 September 2014.
Implementation – Strengths: The Agreement is apparently the first regional arrangement in the world that binds a Strengths & Weaknesses group of contiguous states to tackle transboundary haze pollution resulting from land and forest fires, and has also been considered as a global role model for the tackling of transboundary issues158. Unlike many other ASEAN mechanisms, the Agreement is a legally binding treaty. However, while it has remained high on the ASEAN policy agenda (as demonstrated by the increasing number of related initiatives launched – see above), is not clear to what extent it has led to positive impacts on the ground in terms of a measurable decrease in forest and peat fires. Weaknesses: There are many criticisms especially by civil society and the general public regarding the effectiveness of the Agreement (see e.g., Forsyth, 2014)159. Among the key weaknesses identified are: • The treaty failed to prevent the annual return of the haze between 2004 and 2014 and Indonesia continues to be one of the world’s largest greenhouse gas emitters (with much of its emissions stemming from deforestation) • There is a lack of enforcement mechanisms or strong instruments for dispute-resolution • ASEAN’s style of regional engagement favours the protection of national sovereignty and the policy of non-interference, rather than acting for the collective regional interest. Therefore, a single country’s action or inaction can become a stumbling block as can be seen from Indonesia’s more than 10 year-long non-ratification of the Agreement • Implementation is difficult because of close relationships between investing companies and local governments (Forsyth, 2014; Varkkey, 2012)160
157 http://environment.asean.org/media-release-15th-informal-asean-ministerial-meeting-on-the-environment-and-10th-meeting-of-the-conference-of-the-parties-to-the-asean- agreement-on-transboundary-haze-pollution/ 158 http://haze.asean.org/?page_id=185 158 Forsyth, T. 2014. Public concerns about transboundary haze: a comparison of Indonesia, Singapore, and Malaysia. Global Environmental Change 25:76-86. ISSN 0959-3780. 160 Varkkey, H. 2012. Patronage politics as a driver of economic regionalisation: the Indonesian oil palm sector and transboundary haze. Asia Pacific Viewpoints 53(3):314-329. doi: 10.1111/j.1467-8373.2012.01493.x
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Country level details Information on country-level implementation is scattered as there doesn’t appear to be country- specific progress reports (or any progress report for that matter). An example of implementation at country level is the “adoption” of fire-prone districts in Indonesia by other member states, which is aimed at strengthening haze prevention and monitoring capacities and to implement measures to prevent and suppress land and forest fires161. Malaysia committed to assist Riau through a Memorandum of Understanding (which was in force between June 2008 and June 2013), while Singapore “adopted” Jambi. In both cases, the key elements of the MoU include canal blocking and water storage wells for fire prevention and control, enhancing community outreach and partnership development, community training and socialisation for peatland management, development of awareness material for the community, and establishing community patrol teams for fire prevention and control (GEC, 2010162). The Malaysia-Riau MoU involved six villages in the small regency of Rokan Hilir in Riau. However, two of the activities under the MoU, i.e. a training workshop on zero burning techniques and community fire-fighting training were not well-received by the villagers due to the perception that they were being unfairly targeted by Malaysia for causing the haze. The Malaysian plantation companies operating in Riau were also reluctant to be involved in these projects to avoid being implicated in the forest fires. Despite these setbacks, the other projects did produce some significant achievements. These include the introduction of canal blocking to villagers, and the translation of awareness material into the Indonesian language. It was also reported that there was a significant change of attitudes at the community level towards adopting zero burning practices and alternative livelihoods, especially towards pineapple farming in lieu of small-scale oil palm cultivation. After just one year of implementation, the Malaysian government decided not to run additional projects under the MOU, apparently due to budget cutbacks resulting from the financial crisis of 2008. The Indonesian representatives felt that they had learnt sufficiently from Malaysia during the initial phase of the MoU, and thus requested for additional resources to be channelled directly to the Indonesian central government. A similar outcome was observed for the Singapore-Jambi collaboration. As a whole, both the Malaysia-Riau and Singapore-Jambi MoUs resulted in a substantial reduction in the number of hotspots and fires in these respective areas, but this could also have been due to the El Niño cycle that did not bring severe drought to the region during the project implementation period. Impacts on palm oil Considering that the Agreement is seen as a model for regional cooperation, there is much production potential for it to have a positive influence on reducing deforestation and the use of fire associated with oil palm planting, by plantation companies as well as smallholders. Links could be made between the HCS methodology and regional efforts to prevent fires in high carbon areas, but there is likely to be major bureaucratic hurdles in getting acceptance of the HCS methodology within the ASEAN framework. As illustrated by the case study above (on the Malaysia-Riau and Singapore-Jambi MoUs), the Agreement can also bring about socio-economic benefits for local communities including oil palm smallholders through community development projects implemented as part of member state commitments under the Agreement. The long-awaited ratification of the Agreement by Indonesia and its on-going efforts to restructure governance of natural resources present opportunities for a renewed interest in implementing more such projects that could help reduce forest and peat fires while improving the socio-economy of local communities.
Key actors • ASEAN member states • Civil society Measures to promote In a study by Forsyth (2014) on concerns by the Indonesia, Singaporean and Malaysia public on compliance the transboundary haze, the following suggestions were put forward as possible measures to improve member state compliance with the Agreement: • Civil society pressure • Improved regulation and enforcement of laws by governments, either in Indonesia or in Malaysia and Singapore for companies investing in land clearance • Use of (bilateral) diplomacy or negotiations between one country and Indonesia in order to assist in addressing fires • Use of technology e.g. remote sensing.
161 Quah, E. & H. Varkkey. 2013. The political economy of transboundary pollution: mitigation of forest fires and haze in Southeast Asia. In: S. Hayashihana (ed.). The Asian Community: Its Concepts and Prospects. pp. 323-358. Soso Sha, Tokyo, Japan. 162 GEC. 2010. Technical Workshop on the Development of the ASEAN Peatland Fire Prediction and Warning System. A workshop report prepared by the Global Environment Centre (GEC). ASEAN Peatlands Forest project, Kuala Lumpur.
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Regulatory framework 28 ASEAN Agreement on the Conservation of Nature and Natural Resources
Type Legally binding agreement
Relevant website links A pdf copy of the declaration can be found at the following website: http://cil.nus.edu.sg/rp/pdf/1985%20Agreement%20on%20the%20Conservation%20of%20 Nature%20and%20Natural%20Resources-pdf.pdf The scan of the original signed copy can be found at: http://agreement.asean.org/media/download/20140119153602.pdf
Summary (what it is about): This agreement is the first of only two ASEAN “hard” laws on natural resources (the other is the 2002 Agreement on Transboundary Haze Pollution – see above). Under this agreement, signatory member states undertake individual and joint action for the conservation and management of nature and natural resources. The main object of the agreement is the conservation of wild flora, fauna and renewable resources through the protection of ecosystems, habitats and endangered species, and by ensuring sustainable use of harvested ones163. Among the key actions agreed upon are: • Develop national conservation strategies • Take all necessary measures, within the framework of their respective national laws, to ensure that conservation and management of natural resources are treated as an integral part of development planning at all stages and at all levels • Give as full consideration to ecological factors as to economic and social ones in the formulation of all development plans.
Date of establishment, The agreement was adopted by the Foreign Ministers of ASEAN member states at the 18th Recent/ expected ASEAN Ministerial Meeting in Kuala Lumpur, Malaysia on 9 July 1985. developments In the context of environmental governance, the “ASEAN Way” is generally typified by soft laws rather than hard laws and this is the only direct hard law agreement relating to natural resources164. However, until present, this agreement has not been implemented fully165.
Ratification The agreement was signed on 9 July 1985 by Brunei, Indonesia, Malaysia, the Philippines, Singapore and Thailand. According to the Centre for International Law of the National University of Singapore166, this Agreement shall enter into force on the 30th day after the deposit of the sixth Instruments of Ratification. However, to date, only three of the original six signatory member states (i.e. Indonesia, the Philippines, and Thailand) have ratified it and therefore the agreement has yet to be enforced167.
Implementation – Possible reasons for the lack of implementation/non-ratification: Strengths & Weaknesses • Across the Southeast Asian region, environmental issues are not given the highest priority168 • The scope is very wide and was perhaps too forward-looking at that period of time for member states to implement169 • Lack of technical knowledge and expertise for implementation170.
Country level details Not applicable as this agreement has yet to be in force.
163 Koh, 2003. ASEAN Agreement on the Conservation of Nature and Natural Resources, 1985: A Study in Environmental Governance. World Parks Congress 2003. Available at: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0CB0QFjAA&url=http%3A%2F%2Flaw.nus.edu.sg%2Fapcel%2Fpublications%2Fp ub%2Fkohkhenglian%2Faseanagreement.doc&ei=W6c7VYi3K8m_uATtkoGAAg&usg=AFQjCNEj1soXW3kZbf__PvESsQ89xrtzUA&sig2=G5xOCDHIiQya7OLnJH4Ivw 164 Koh, K-L. 2007. ASEAN Environmental protection in natural resources and sustainable development: Convergence versus divergence? Macquarie Journal of International and Comparative Environmental Law Vol. 4(1): 43-70. Available at: http://www.mq.edu.au/about/about‐the‐university/faculties‐and‐departments/faculty‐of‐ arts/departments‐and‐ centres/macquarie‐law‐school?id=15000 165 Macarayan, E., M. Curley & M. Western. 2013. The Southeast Asian Politics of Natural Resource Use: Impacts on Food and Health Inequalities. Presented at the 2013 APSA Conference in Murdoch University, Perth, Australia. Available at: http://www.auspsa.org.au/sites/default/files/the_southeast_asian_politics_of_natural_resource_use_erlyn_ macarayan.pdf 166 http://cil.nus.edu.sg/1985/1985-agreement-on-the-conservation-of-nature-and-natural-resources-signed-on-9-july-1985-in-kuala-lumpur-malaysia-by-the-foreign-ministers/ 167 Koh (2003). Ibid. 168 Koh (2007). Ibid. 169 Koh (2007). Ibid. 170 Koh (2003). Ibid.
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Impacts on palm oil Although the agreement has yet to be in force, it has many provisions that have relevance to the production palm oil industry in terms of regulating environmental impacts. The effective implementation of this agreement would be expected to result in a more controlled expansion of oil palm plantings and improved agricultural practices in order to reduce impacts on soil and water. Among the more relevant contents of the agreement are: • Article 6 on vegetation cover and forest resources which describes necessary measures to ensure the conservation of the vegetation cover particularly the controlled clearance of vegetation; prevention of bush and forest fires; and prevention of overgrazing. • Article 7 on soils which requires contracting parties to take steps to prevent soil erosion and other forms of degradation, and promote measures which safeguard the processes of organic decomposition, particularly by establishing appropriate land use policies • Article 10 on environmental degradation which is aimed at maintaining the proper functioning of ecological processes through the promotion of environmentally sound agricultural practices and by ensuring that agricultural development schemes pay due regard to the need to protect critical habitats and economically important species. Key actors • Governments of ASEAN member states • Civil society Measures to promote As the agreement has yet to be in force, the key issue is implementation or ratification of the compliance agreement, rather than compliance to the agreement.
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Regulatory framework 29 Declaration on the Heart of Borneo Initiative (Brunei-Indonesia-Malaysia)
Relevant website links Heart of Borneo website: www.heartofborneo.org
Summary (what it is about) The Heart of Borneo Initiative is a unique government-led and NGO-supported programme that was initiated through the Heart of Borneo Declaration by the Governments of Brunei, Indonesia and Malaysia. Heart of Borneo (HoB) is a part of the island where biodiversity values are concentrated, covering 22 million hectares (roughly the size of England and Scotland combined). The aim of the HoB initiative is to conserve the biodiversity of the Heart of Borneo for the benefit of the people who rely upon it through a network of protected areas, sustainable management of forests and other sustainable land uses. Borneo island (comprising Brunei, Indonesian Kalimantan and the Malaysian States of Sabah and Sarawak) is the only place left where the Indo-Malayan forests of Southeast Asia could be conserved on a large scale171. The island is home to orang-utans, gibbons, clouded leopards, “pygmy” elephants and hornbills. Forty-four of the more than 210 mammal species found in Borneo are endemic to the island. At least 361 new species were discovered between 1994 and 2004. The Declaration was followed with the development of a trilateral strategic plan of action focusing on five programmes of work: 1. Protected Areas 2. Transboundary cooperation 3. Sustainable resource management 4. Ecotourism 5. Capacity building Each country has produced its own strategic plan and set up national and local management structures.
Date of establishment, The HoB Declaration was signed by the governments of Brunei, Indonesia and Malaysia in Recent/ expected 2007. The countries’ commitment to the Initiative was renewed in 2013, with the signing of developments an additional declaration reaffirming their commitment to the 2007 vision and highlighting an encouragement of a ‘green economy’ in Borneo. An external review of the HoB Initiative was commissioned by the three governments in 2014 to identify lessons learned from the first five years and outline recommendations for the future. However, it is not clear if the report of the review has been completed or available to the public.
Ratification Heart of Borneo is a non-binding political declaration by the governments of Brunei, Indonesia and Malaysia.
171 Rautner, M., M. Hardiano & R.J. Albert. 2005. Borneo:Treasure Island at Risk: Status of Forest, Wildlife and related Threats on the Island of Borneo. WWF Germany, Frankfurt am Main
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Implementation – Strengths Strengths: & Weaknesses • The HoB Initiative has led to much attention on the biodiversity values of the HoB area and Borneo island as a whole and at the same time adopted a people-centric approach, with sustainable development and “green economy” as key elements of its agenda. The key message is that biodiversity conservation should also be for the provision of ecosystem services and economic opportunities to local community, through sustainable use. • Although it is difficult to determine to what extent the HoB Initiative has influenced policies for economic development in the HoB area, a major oil palm development in the mountainous region in Kalimantan bordering Sarawak was cancelled in 2005 due to civil society pressure. The project would have led to the development of what would have been the world’s largest oil palm plantation in a 5-10 km band along the border. The proposed project involved a total area of 1.8 million ha oil palm including primary forests in three national parks, areas of rugged slopes and mountains unsuitable for oil palm cultivation and customary rights land of the indigenous Dayak communities in the border area172. • According to WWF, businesses operating in the HoB have already taken steps to locate and manage their operations more sustainably with 651,000 ha (8%) of 8.6 million ha allocated in concessions within the HoB, having received Forest Stewardship Council (FSC) or Roundtable for Sustainable Palm Oil (RSPO) standards173. • The HoB Initiative could provide benefits to indigenous communities such as the Punan and Penan who have tanah adat (territorial land rights) within the HoB area in East Kalimantan, West Kalimantan, Brunei, and Sarawak. Transboundary cooperation among the relevant HoB governments could potentially provide greater recognition to the extended family ties that exist between the Punan and Penan groups across the frontiers presently dividing peoples who lived in a single continuous forest area. Like most other people, the Punan want a fair share of the benefits that come from developing the land, which is balanced with the needs for the protection of their environment and maintenance of their ethnic identity174.
Weaknesses: • Despite efforts by WWF, there are still numerous challenges in realising the vision of the HoB Declaration, particularly around governance mechanisms, funding and political drive. It appears that the three national governments have yet to take full ownership of the HoB Initiative and that WWF continues to play a crucial role in driving the agenda. • Since the Declaration a further 2 million ha of forest have been lost from the region and deforestation rates have actually risen in recent years175.
Country level details The three countries have each recorded various successes within the Initiative: • In Brunei over half of the country has been designated as part of the HoB, a new Wildlife Division has been set up and various expeditions have been conducted. • In Indonesia the HoB area is in the process of being designated an ‘Area of Strategic National Importance’ (KSN) whilst green development plans have been developed at the national and local level. • In Malaysia the HoB has been formally recognised in both the 9th and 10th National Malaysia Development Plans which allocated national funds to the HoB. Sabah is actively embracing green economy approaches and has developed a State REDD+ Strategy.
172Wakker, E. 2006. The Kalimantan Border Oil Palm Mega-project. Commissioned by Milieudefensie – Friends of the Earth Netherlands and the Swedish Society for Nature Conservation (SSNC). Available for download from: http://www.foe.co.uk/sites/default/files/downloads/palm_oil_mega_project.pdf 173WWF. 2011. Business Solution: Delivering the Heart of Borneo Declaration. Focus on Forestry, Palm Oil and Mining. 174Boedhihartono, A.K. 2008. Punan hunter-gatherers and the Heart of Borneo Initiative. In: Peerson, G.A. & M. Osseweijer (eds.). 2008. Reflections on the Heart of Borneo (Tropenbos Series 24). Tropenbos International, Wageningen, the Netherlands. Available for download from: http://www.tropenbos.org/file.php/226/tbi_series_24-low.pdf 175WWF. Undated. WWF in Borneo and How it Supports the Heart of Borneo Initiative. Available for download at: http://d2ouvy59p0dg6k.cloudfront.net/downloads/wwf_in_ borneo.pdf
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Impacts on palm oil The HoB Initiative provides political leverage for mitigating the impacts of oil palm development production in the HoB area – a case in point being the cancellation of the Oil Palm Mega Project along the Indonesia-Malaysia border (see above). Sustainable oil palm development particularly through the RSPO palm oil certification is a key strategy of the HoB Initiative, with the aim of ensuring there is equitable sharing of benefits and that impacts on local community well-being and livelihoods are minimised. Under the “Green Economy” scenario176 envisaged by WWF, oil palm development is to supposed to conform to the following parameters: • Oil palm plantations do not expand in any area of natural forest. Land swaps for permits granted within natural forest, to ensure expansion on degraded land only. • RSPO ensures that management practices are improved, including improved fertiliser and pesticide application management. The Green Economy scenario is predicted to lead to a potential slight reduction in profitability of the palm oil sector due to lower yields on degraded land but this would be offset by improved ecosystems (leading to reduced costs for businesses, households and the government).
Key actors • Civil society including conservation NG0s and CBOs. • Donor agencies. • Politicians/policy makers in the three member states of HoB
Measures to promote • The role of civil society and effective public-private partnerships are crucial to the success of compliance HoB Inititiave. • The commitments made by the three national governments need to be translated into policies and legal measures, e.g. with regard to land use planning and community rights within the HoB area.
176 Cosslett, C.E. & A. van Paddenburg (eds.). 2012. Heart of Borneo: Investing in Nature for a Green Economy. A Synthesis Report. WWF Heard of Borneo Global Initiative, Jakarta Indonesia. Available for download from: http://www.hobgreeneconomy.org/en/main-report
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Regulatory framework 30 African Charter on Human Rights and Peoples Rights
Relevant website links African Commission website: http://www.achpr.org/instruments/achpr/ Full Charter: http://www.humanrights.se/wp-content/uploads/2012/01/African-Charter-on-Human- and-Peoples-Rights.pdf
Summary (what it is about) The African Charter on Human and Peoples’ Rights (ACHP, also known as the Banjul Charter) is an international human rights instrument that is intended to promote and protect human rights and basic freedoms in the African continent. Oversight and interpretation of the Charter is the task of the African Commission on Human and Peoples’ Rights, which was set up in 1987 and is now headquartered in Banjul, Gambia. A protocol to the Charter was subsequently adopted in 1998 whereby an African Court on Human and Peoples’ Rights was to be created. The protocol came into effect on 25 January 2005. In July 2004, the African Union Assembly decided that the ACHP would be incorporated into the African Court of Justice. In July 2005, the AU Assembly then decided that the ACHP should be operationalised despite the fact that the protocol establishing the African Court of Justice had not yet come into effect. Accordingly, the Eighth Ordinary Session of the Executive Council of the AU meeting in Khartoum, Sudan, on 22 January 2006, elected the first judges of the African Court on Human and Peoples’ Rights. The relationship between the newly created Court and the Commission is yet to be determined.
Date of establishment, Charter Adopted 27 June 1981 Recent/ expected Charter Entered into force 21 October 1986 developments
Ratification (if relevant) As of 2013, 53 states have ratified the Charter. It has been ratified by every AU member state with the exception of South Sudan.
Implementation: does The Charter, as a legal instrument, does provide human rights safeguards. The Charter it provide any safeguard establishes a Commission on Human and People’s rights. This Commission is mandated to related to the socio- promote and ensure the protection of human and people’s rights. economic impacts of oil The Charter establishes safeguards relevant to socio-economic impacts of oil palm plantations on palm plantations on affected affected communities, including: communities? • Respect for human life and integrity of the person; • Respect of the dignity inherent in a human being; • Right to liberty and to the security of the person; • Right to have his cause heard; • Freedom of conscience, the profession and free practice of religion; • Right to receive information; • Right to express and disseminate opinions; • Right to free association and right to assembly freely with others; • Freedom of movement and residence; • Right to asylum; • Equal access to public services; • The right to property is guaranteed; • Right to work, health, education; • Traditional values are recognised; • Right to their economic social and cultural development; • Right to a general satisfactory environment favourable to their development.
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Implementation – Strengths Strengths: & Weaknesses • Judged to place considerable emphasis on the economics, social and cultural rights of people • The Charter not only awards rights to individuals and peoples, but also includes duties incumbent upon them.
Weaknesses: • Some human rights scholars consider the Charter’s coverage of other civil and political rights to be inadequate. For example, the right to privacy or a right against forced or compulsory labour are not explicitly recognised. The provisions concerning fair trial and political participation are considered incomplete by international standards (Heyns, 2005) • The need for the Charter has been questioned in light of the already universal application of United Nations instruments for upholding human rights, its creation follows in footsteps of other regional bodies in the creation of their own unique regional human rights systems, notably the European Convention on Human Rights (ECHR). • Since its creation, the Charter has had significant normative impact on the status of human rights on the African continent.
Country level details 53 (out of 54) African states have ratified the Charter.
Impacts on palm oil Impacts are not clear at this point, but clearly the charter protects the rights of local communities production and workers in the sector.
Key actors AU, AU Commission of Human and Peoples Rights
Measures to promote The African Court on Human Rights established to address compliance issues. compliance
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Regulatory framework 31 African Charter on the Rights and Welfare of the Child
Relevant website links http://acerwc.org/the-african-charter-on-the-rights-and-welfare-of-the-child-acrwc/ http://www.au.int/en/sites/default/files/Charter_En_African_Charter_on_the_Rights_and_Wlefare_of_ the_Child_AddisAbaba_July1990.pdf
Summary (what it is about) The African Charter on the Rights and Welfare of the Child (also called the ACRWC or Children’s Charter) was adopted by the Organisation of African Unity (OAU) in 1990 (in 2001, the OAU legally became the African Union) and was entered into force in 1999. Africa is the only continent with a region-specific child rights instrument. The African Charter on the Rights and Welfare of the Child (ACRWC) is an important tool for advancing children’s rights. While building on the same basic principles as the UN Convention on the Rights of the Child, the AU Children’s Charter highlights issues of special importance in the African context. Like the United Nations Convention on the Rights of the Child (CRC), the Children’s Charter is a comprehensive instrument that sets out rights and defines universal principles and norms for the status of children. The ACRWC and the CRC are the only international and regional human rights treaties that cover the whole spectrum of civil, political, economic, social and cultural rights. It calls for the creation of an African Committee of Experts on the Rights and Welfare of the Child (Committee of Experts). Its mission is to promote and protect the rights established by the ACRWC, to practice applying these rights, and to interpret the disposition of the ACRWC as required of party states, African Union (AU) institutions, or all other institutions recognised by AU or by a member state. The fundamental principles guiding implementation of these rights include: • Non-discrimination; • The best interests of the child; • The life, survival and development of the child; • Child participation; • Providing for the responsibilities that every child has with regard to their and society, the state and the international community.
Date of establishment, Adapted 1990 and came into force 1999 Recent/ expected developments
Ratification (if relevant) As of January 2014, all member states of the AU have signed the Children’s Charter and all save for 7 have ratified it. The 7 member states which have signed but not yet ratified the Charter are: Central African Republic, Democratic Republic of Congo, Sahrawi Arab Democratic Republic, Somalia, Sao Tome and Principe, South Sudan and Tunisia.
Implementation: does The Charter provides a high level of safeguard for the rights of children. In the context of the it provide any safeguard palm oil sector this Charter is important in protecting children from “child labour”. related to the socio- The text states: economic impacts of oil palm plantations on affected Every child shall be protected from all forms of economic exploitation and from performing any work communities? that is likely to be hazardous or to interfere with the child’s physical, mental, spiritual, moral, or social development.
122 High Carbon Stock Science Study Consulting Study 10 Overview of existing regulatory mechanisms and relevant actors
Implementation –Strengths It is not clear how well the AU and the Committee of experts are monitoring the implementation & Weaknesses of enforcing the Charter. Strengths: • Ratified by almost all African states. • Provides clear and strong protection to children, especially in the African cultural context • Members expect to report every three years
Weaknesses (according to Wikipedia): • It doesn’t protect children from life imprisonment without the possibility of release; • When dealing with criminal activities, there is no provision for alternative measures such as community rehabilitation; • No mention of the rights such as to remain silent, to be protected from retroactive legislation, to challenge detention, or to be compensated for miscarriages of justice; • Article 20 can be construed as supporting physical punishment by parents as it is unclear regarding the meaning of “domestic discipline;” • There is some confusion regarding Article 31 that deals with children’s responsibilities. Children are required to respect parents, superiors and elders at all times which could conflict with the child’s right to participate in decisions that affect them; • The omission of a provision which requires countries to fully commit and use their resources means that the Children’s Charter has no way to ensure or force states to provide resources to ensure the realisation of children’s rights; • Although the Children’s Charter makes provision for special protection measures for the disabled, it fails to expressly include disability as a prohibited ground of discrimination; • Unlike the CRC, which specifically ascribes rights to children of minorities, there is no similar provision in the African Charter, despite many countries in the region having significant populations of minority and indigenous groups.
Country level details All AU countries a have ratified (except Central African Republic, Democratic Republic of Congo, Sahrawi Arab Democratic Republic, Somalia, Sao Tome and Principe, South Sudan and Tunisia). No further details on country level implementation readily available.
Impacts on palm oil Not clear. production
Key actors African Union Measures to promote Not clear. compliance
High Carbon Stock Science Study 123 Consulting Study 10A: Institutional framework governing the palm oil sector in Cameroon: A report on laws, regulations and practices Consulting Study 10A Institutional framework governing the palm oil sector in Cameroon: A report on laws, regulations and practices
Introduction
This report considers the regulatory framework in Cameroon in particular as it is pertinent to the palm oil sector, with a particular focus on the implications of current regulations in relation to climate change and to access to land (including respect for the rights of indigenous peoples and local communities, as required by the HCV/HCS framework). The main areas of focus for the regulatory assessment are:
• Laws and policies related to climate change;
• Current forms of operation of the palm oil sector (including adherence to voluntary standards);
• Laws and regulations governing land ownership and allocation;
• Laws and regulations related to forestry governance; and
• Laws and regulations related to environmental protection, including the preparation of environmental impact assessments.
This report also briefly outlines Cameroon’s obligations under some international human rights agreements (and their incorporation at national level), and assesses the current regulatory framework against these standards.
Before considering these areas, we set out as background a brief overview of the governmental and administrative structure of Cameroon.
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Section 1: Overview of Cameroon’s Political and Administrative Contex
Cameroon has a bicameral parliamentary system (National Assembly and Senate). The head of government is officially the Prime Minister, but the Cameroonian system grants significant power to the President, who acts as head of State (and indeed the position of prime minister has been unfilled over periods of several years in past decades).
Administratively, Cameroon is divided into 10 regions, which are subdivided into 58 departments. Departments, in turn, are divided into arrondissements, municipalities and chiefdoms (or “villages”1). Each Region has a governor, and each department a prefect (under the authority of the governor), all of whom are appointed by the President and act as representatives of Presidential authority within their respective jurisdictions.
In addition to the Presidency (which retains control over some key decisions including the grant of large- scale concessions), there are five main ministries whose competencies are linked to the palm oil sector (although other ministries may also have roles to play) :
• Ministry of the Economy, Planning and Land Management (MINEPAT, by its French acronym);
• Ministry of Forests and Fauna (MINFOF);
• Ministry of Environment, Protection of Nature and Sustainable Development (MINEPDED);
• Ministry of State Lands, Land Registration and Property Affairs (MINDCAF); and
• Ministry for Agriculture and Rural Development (MINADER).
Each of these Ministries has a local delegate, and local office, at departmental level, charged with administering and undertaking the responsibilities of the Ministry in their locality. In recent years, there have been attempts to decentralise the administration in Cameroon by giving more decision-making power to authorities at the departmental level. However, the system remains significantly centralised in terms of policy.
1 In addition to its colloquial meaning, the term “village” has an administrative meaning in Cameroon, being the smallest administrative unit, presided over by a chief.
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Section 2: Climate Change Obligations and Practice in Cameroon
Cameroon has ratified both the United Nations has indicated it will undertake NAMAs “through REDD Framework Convention on Climate Change2 and CDM projects, reforestation and sector-specific (“UNFCCC”) and the Kyoto Protocol.3 Subsequent to mitigation actions developed as part of its National the 2009 COP15 in Copenhagen (although not at the Mitigation Strategy”.8 The National Mitigation Strategy time of the COP itself), Cameroon also communicated is, as noted above, currently under development. to the UNFCCC its agreement to the (non-legally- binding) Copenhagen Accord.4 For the purposes of the At the national level, as yet climate change mitigation UNFCCC, Cameroon is a non-Annex I country, but has only been incorporated to a limited extent is not within the “least developed country” group (to in the national legal framework. The Framework whom lesser obligations apply). Environmental Law of 19969 (the “1996 Environmental Law”) (which is referred to by Cameroon in its initial To date, Cameroon has, it appears, made only its initial national communication as part of its mitigation efforts) national communication under the UNFCC in 2005.5 makes only one reference to greenhouse gas emissions, We understand the second national communication in article 76, which grants preferential customs (and the accompanying national mitigation strategy) treatment to industrial enterprises which import are under development, and may be submitted to the equipment to eliminate their production of greenhouse UNFCCC this year. gas emissions. This law also permits the State to create ecologically protected areas on any national In the first national communication (dated 2005), lands10(although this forms part of the biodiversity Cameroon presented an analysis of its current protection provisions of the Act, rather than being greenhouse gas emissions by sector, and projected linked to climate change mitigation). emissions into the future. According to the report, in 1994 more than half of emissions (50.44%) came from In terms of mitigating effects from land use change, land use change, and a further 37.83% from agriculture. Cameroon has committed (under its 1994 forestry The energy sector, at 7.36%, was the third biggest legislation – see further below) to maintain forests emitter.6 The response strategy set out in the first across 30% of the country’s surface area. As the current national communication did not propose any significant total forested area is significantly greater than this,11 this measures in relation to land use change (and indeed the target does imply continuing significant emissions from measures proposed generally were relatively limited).7 conversion of forest areas to other uses.
Under the Copenhagen Accord, non-Annex I countries agree to “implement mitigation actions” consistent with the Kyoto Protocol and in accordance with sustainable development. These are known as “Nationally Appropriate Mitigation Actions” or NAMAs. Cameroon
2 Cameroon ratified the UNFCCC on 19 October 1994, and it came into force on 17 January 1995. 3 Cameroon ratified the Kyoto Protocol on 28 August 2002. The Protocol came into force on 16 February 2005. 4 http://unfccc.int/meetings/copenhagen_dec_2009/items/5262.php (accessed 11 May 2015). 5Communication nationale initiale de Cameroun sur les changements climatiques, 31 January 2005, http://unfccc.int/resource/docs/natc/cmrnc1f.pdf (accessed 11 May 2015). 6 Communication nationale initiale de Cameroun sur les changements climatiques, 31 January 2005, http://unfccc.int/resource/docs/natc/cmrnc1f.pdf (accessed 11 May 2015), page 6. 7 Cameroon’s response strategy included general unspecified institutional changes to reduce greenhouse gas emissions, as well as sector strategies in waste disposal (collection of biogases), agriculture (primarily technological advances in relation to rice, animal husbandry, fertiliser and burnoffs), energy (the adoption of energy-saving devices to reduce demand and rules of industrial energy efficiency) and industry (specific measures to reduce emissions in certain industries): ibid, pages 8-9. 8 Compilation of information on nationally appropriate mitigation actions to be implemented by developing country Parties, 19 January 2015, UN Doc: FCCC/ SBI/2013/INF.12/Rev.3, available at http://unfccc.int/resource/docs/2013/sbi/eng/inf12r03.pdf (accessed 11 May 2015), para 55. The complete version of Cameroon’s proposed NAMAs, submitted in 2010, is available for download from http://web.law.columbia.edu/climate-change/resources/climate-change-laws- world/climate-change-laws-cameroon (accessed 12 May 2015). 9 Law No. 96/12 of 5 August 1996 creating a framework law on the management of the environment. 10 Art 64(3), 1996 Environmental Law. 11 The World Resource Institute estimates that approximately 60% of Cameroon is presently forested: see Bertrand Tessa, “New, Interactive Atlas Can Improve Cameroon’s Forest Management”, 11 October 2012, at http://www.wri.org/blog/2012/10/new-interactive-atlas-can-improve-cameroon’s-forest-management (accessed 11 May 2015).
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Section 3: The Palm Oil Sector in Cameroon and RSPO Standards
The local cultivation of oil palms in an artisanal or small scale manner has a long history, spreading over centuries, in Cameroon. The development of plantations, however, has been more recent, commencing only at the outset of the 20th century, with a more intensive, privatised model arriving following the structural adjustment policies implemented during the 1980s and 1990s.12
The development of oil palm plantations in Cameroon in the past had a strong State-led component. Although many of the former State enterprises have now been privatised, the State frequently remains a minority shareholder in a number of palm oil companies operating in the country (for example, Socapalm13 and Palmol14).
Voluntary standards - RSPO
There has been very limited use of RSPO standards in practice in Cameroon. The reasons for this are unclear, but may relate to the traditional involvement of government in the sector (which may have led to a resistance to or lack of interest in standards above and beyond those already incorporated in national law). Most of the significant palm oil companies operating in Cameroon are not members of RSPO. Only one complaint has been brought under the RSPO’s complaints mechanism, which was closed when the company involved, Herakles Farms Cooperatief U.A., withdrew from RSPO membership after the complaint was made. Despite the numerous oil palm plantations proceeding or proposed currently in Cameroon, the authors are only aware of one company currently operating in Cameroon which is an RSPO member.
No doubt because of this lack of engagement with RSPO within the Cameroon context, there is not currently a national interpretation of the RSPO principles and criteria for Cameroon (either existing or in development).
12 Ndjogui T E et al, Historique du secteur palmier à huile au Cameroun, 2014, CIFOR, Occasional Paper No. 109, available at: http://www.cifor.org/library/4789/ historique-du-secteur-palmier-a-huile-au-cameroun/ (accessed 11 May 2015), at page viii. 13 See the details on the ownership of Socapalm post-privatisation at page 8 of the 2010 report by MISEREOR, CED, SHERPA and FOCARFE, The Impact of the Privatisation of SOCAPALM on Communities and the Environment in Cameroon, available at: http://www.corporatejustice.org/IMG/pdf/briefing_paper_-_socapalm. pdf (accessed 11 May 2015). 14 See the website of Palmol, at http://pamol-plantations.com (accessed 11 May 2015).
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Section 4: Land Ownership and Planning Laws in Cameroon
Cameroon, like many countries in Africa, is made up of Categories of land in Cameroon a number of different peoples and local communities who have traditionally owned and used lands and The principal land law in Cameroon is Ordinance territories throughout the country, in accordance 74-1 of 6 July 1974 governing land tenure (“1974 with local, recognised customary laws and traditions. Land Law”). Under the 1974 Land Law, three broad Traditionally-owned territories include both lands in categories of land are established: use for agriculture (frequently rotational ‘slash-and- burn’ agriculture), as well as forested areas that are Private property. Private property comprises used for hunting and gathering activities (and which registered lands, freehold lands, lands acquired also provide a reserve for future agricultural rotation under the transcription system, lands covered and/or expansion in future generations). Forest-based by a final concession, and lands entered into the indigenous peoples (such as the Baka and Bagyeli) Grundbuch (a German colonial register).16 It also have traditionally been and continue to be particularly includes private property of the State.17 Less than dependent on forest areas (as they live predominantly 10% of the national land is presently held as private from hunting and gathering) compared to neighbouring property, and a significant amount of this is within communities, who are more sedentary and rely in urban areas. greater measure on small-scale agriculture to meet their needs (through both subsistence and small-scale National lands. This category covers the majority commerce). However, as a general rule, all rural local of Cameroon’s surface area. It comprises all land communities in Cameroon rely on a mix of agriculture that is not registered as private property, and and forest-based activities for their livelihoods. not public land (as defined below).18 They are effectively considered “without an owner” and are Superimposed on this de facto system of ownership administered and distributed by the State.19 Most and management of land is the formal legal system local peoples and communities, having no registered of land ownership in Cameroon. The formal system is title (see below), live on lands that are classified as the heir of Cameroon’s colonial past,15 and recognises “national lands”. little of the reality by which local peoples and local communities live. Broadly, under the national legal Public lands. Public lands are lands owned and system (most of which dates from the 1970s), land administered by the State as “public property” for ownership is centralised in the hands of the State. specific public purposes. A list of the purposes for which public property is held is set out in Ordinance It should be noted at the outset that the Government No. 74-2 of 6 July 1974 governing State Lands of Cameroon is in the process of undertaking a (“1974 State Lands Law”).20 Public lands include comprehensive revision of a number of laws related both “natural” public property (such as coastlands, to property, including its land law, its forestry law and waterways, sub-soil and airspace) and “artificial” its mining code. While there has been significant civil public property (such as roads, railways, ports, society mobilisation seeking greater recognition of telecommunications lines, public monuments etc). customary land ownership and use in the new laws They are the public property of the State and are under development, to date there is limited information not subject to expropriation. available about the extent to which these revisions will embrace such an approach, as drafts have not been released.
15 For a more detailed explanation of the colonial system of land ownership in Cameroon, and its legacy in modern day land laws, see Liz Alden Wily, Whose land is it?: The status of customary land tenure in Cameroon, Centre for Environment and Development/ FERN / Rainforest Foundation UK, 2010, pp 60-68. 16 1974 Land Law, article 2. 17 Ibid, article 14. See also Ordinance No. 74-2 of 6 July 1974 to establish rules governing State Lands, article 10. 18 Ibid, article 14. 19 Ibid, article 16 and 17. 20 State lands comprise both public property, as well as private property held by the State: ibid, article 1.
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Recognition of customary land ownership grant of new (and also different and generally more limited) rights by the State. It is also not equivalent The majority of local peoples and communities live to a property right, and communities adopting this on national lands, and own and use their lands in process remain vulnerable to allocation of land for other accordance with customary laws and traditions. As purposes. The process by which a community forest is explained below, there is some, but limited (and created is explained further below. insecure), recognition of the traditional ownership and use of local peoples and communities under national laws. Application for certificates of title in relation to traditional lands Under article 15 of the 1974 Land Law, national lands are divided into two categories: Communities or individuals can apply for certificates of title, as envisaged in article 17 of the 1974 Land Law, “(1) Lands occupied with houses, farms and plantations through a process set out in Decree No. 76/165 of 27 and grazing lands manifesting human presence and April 1976 (“1976 Registration Decree”).24 That process development; is relatively long and costly, with the result that very few communities or individuals have taken advantage (2) Lands free of any effective occupation.” of it (consequently, after 40 years in operation, most communities have limited or no certificates in relation Under certain conditions (explained in more detail to even those parts of their customarily-occupied below), customary communities or individuals with land territories which are eligible for registration as freehold falling into the first category (i.e. lands which have been land). developed (“mise en valeur”) may apply for and obtain a certificate of title as freehold land (which therefore The difficulties with accessing registration have means that the land in question becomes their private been aggravated by the passage of time, as under property).21 Unless and until they obtain a certificate the provisions of the 1974 Land Law and the 1976 of title, however, while communities have continued Registration Decree, the customary use on which rights of use, their ownership rights are vulnerable registration is based must be established as having to extinguishment by the designation by the State of occurred before 5 August 1974, the date on which the another use for the land by grant, lease or assignment22 1974 Land Law was published.25 In practice, this means (the process for which is set out further below). that it is increasingly difficult to register community land in use, for several reasons: Furthermore, in relation to lands in the second category, i.e. those which have not been developed (or had not • for communities who engage in rotational agriculture, been developed prior to 1974, when the law came the fields which were in use in 1974 may not be the into effect), which includes all forest lands used by the same as those currently in use. So where there is community, there is no possibility under the land laws evidence of use, that use did not pre-date 1974 and for individuals or the community to obtain a certificate cannot form the basis of an application; of title reflecting their traditional rights. (In theory – although rarely if ever in practice – communities are • traditionally, younger generations will create new equally able to apply to the State for a concession, the fields and/or houses to support their families. process for which is set out below, but this is a grant of However, the prescriptions of the law mean that this new rights rather than recognition of their customary customary use by younger generations which post- ownership). Communities retain traditional hunting and dates 1974 cannot be registered; fruit picking rights in relation to areas in the second category, but only until such time as the State assigns • even in relation to parcels of land which were the lands for another purpose.23 developed in accordance with customary traditions, with the passage of time it is increasingly difficult to There is another mechanism, under the forestry law, by provide evidence of use from that time. which communities can obtain a form of access and/ or control of forested areas, through the creation of a “community forest”. Once again, this process does not involve recognition of communities’ or peoples’ traditional or customary use, but rather involves the
21 Ibid, article 17(1). 22 Ibid, article 17(1). 23 Ibid, article 17(3). 24 The original decree has been amended by a further decree, Decree No. 2005/481 of 16 December 2005. All references in this document are to the decree as amended. 25 Article 9(a), 1976 Registration Decree.
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Of course, because of the shifting nature of much There are two categories of concessions: customary agricultural production (by which areas are used for a period of time before being left fallow for (a) those under 50 hectares, which are granted by the forest to regenerate), the use of a fixed date is also order of the Minister responsible for national ill-adapted to the reality of customary usage, and means lands (currently the Minister for State Lands, Land that new fields which are planted cannot benefit from Registration and Property Affairs); registration. (b) those over 50 hectares, which are granted by a In addition to these drawbacks, the process for Presidential decree. registration itself is cumbersome and expensive, as well as unknown for many communities, which has inhibited In both cases, the grant is accompanied by a cahier de access to it. charges (a contract between the concessionaire and the State), which sets out the obligations of both parties.
State-granted concessions Prior to a (provisional or final) concession being granted, the State takes the advice of a consultative board As noted above, under current laws the majority of land convened in accordance with chapter 4 of the 1976 in Cameroon falls into the category of “national lands” National Lands Decree, whose role includes (inter alia) formally owned by the State (on which local peoples to provide a recommendation in relation to requests for and communities continue to live). This is the category concession that have been lodged.29 That Consultative of land in which large-scale oil palm plantations are Board comprises 4-5 local administrative officials as most likely to be developed within Cameroon. well as the chief and two notables from the village or community/local government where the land proposed National lands are administered in accordance with for the project is located (ensuring that community Decree No 76/166 of 27 April 1976 governing the interests are always a minority in the Board as a management of national lands (the “National Lands whole).30 The Consultative Board meets at least once Decree”). Under that decree, the State may grant every four months, and notice of a meeting (which must concessions over national lands which are not occupied include details of location and approximate size of the and not exploited.26 project(s) under consideration) is posted in the offices of the prefect and the sub-prefecture or district involved.31 Concessions may be granted (only) for development In addition, each member of the Consultative Board projects of either an economic, social or cultural must be notified individually at least 10 days in character.27 In practice, the State will generally demand advance.32 a certain level of investment in return for the grant of a concession. While in theory communities or individual While this appears to provide some “consultation” Cameroonian citizens can also apply for concessions, with affected communities in advance of the grant of a in practice this is very rarely done outside the elite concession, the reality is quite different. There is a lack level. Local peoples and communities are unaware of of clear regulation on the obligations of the consultative these laws, and in addition rarely have the means to board (including no clear requirement for a site visit), offer investment in the concession, nor the technical with the result that this process is murky and frequently skills or financial resources necessary to negotiate the appears to involve limited or no provision of information process of a grant of a concession. In addition, because or public participation. The involvement of the chief in they require a “development project”,28 concessions the Consultative Board (many of whom in modern times will frequently imply land use which is different from live in towns or cities, rather than in their village, and customary use, and so do not offer an opportunity to do not always represent community interests) provides protect customary land. no guarantee of participation or consultation, or even notification, of the local community concerned.
26 Nationals Lands Decree, Art 1. It appears that this precludes the grant of unregistered lands in use, but in practice registration appears to be a critical factor as to whether occupation and use are recognised. 27 Ibid, Art 2. 28 In addition to the requirement in Art 2, Art 5 (which sets out the requirements for an application) requires that the application must be accompanied by a programme for the development (“mise en valeur”) of the land, setting out the stages in which this will be carried out. 29 National Lands Decree, Art 14. 30 Ibid, Art 12. 31 Ibid, Art 13. 32 Ibid, Art 13.
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In addition, the requirement that the consultative renewal).40 If the provisional concession is not renewed, board include the chief and two notables from the and a definitive concession not granted, the provisional affected village or local community/area is ambiguous. concession ends on expiry of its term.41 Frequently, for large-scale projects, multiple villages are affected, but the consultative board may only include There are also certain conditions which must be fulfilled representatives from one village.33 Where multiple before a definitive concession or long term lease can villages are affected in this way, the chief selected to be granted. The same consultative board which gave participate in the Consultative Board is likely to be recommendations in relation to the request for the one who is known to be sympathetic to the project concession42 assesses the development of the land at and/or the local administration and the notables who the end of the provisional concession. The prefect can are invited (usually at his behest) may well be his only recommend a definitive concession if the land family members. There are thus various ways in which has been developed in conformity with the conditions dissemination of information at community level may in imposed on the concessionaire.43 However, it appears practice be inhibited. that the decision-maker (the president or the minister, as appropriate) is not bound by the recommendations As a result of these ambiguous and limited provisions, of the prefect and may grant the definitive concession many communities only find out that their land has even if the requirements have not been met. been granted after the decree or order has already been issued, and a cahier de charges signed by the State and the company. Classification of national lands as State private property
This cahier de charges will usually require that the In addition to granting lands by way of concession, company enter into additional agreements with the the State may incorporate national lands as private communities (which will, when agreed, form part of the property by means of a process of “incorporation” cahier de charges).34 However, in practice, communities or “classification”.44 The procedure for incorporating have no negotiating power when dealing with the national lands within the private property of the State companies after the grant of a concession, nor any follows the same procedure as for expropriation (set ability to stop the project from proceeding.35 out below).45 Pursuant to the 1974 State Lands Law, once classified, the private property of the State may be The grant of a concession under the National Lands allocated to departments or public bodies, allotted to Decree has two phases.36 The first is the grant of individuals or companies, allocated as a contribution to a provisional concession, lasting up to five years.37 the capital of companies, and allocated to international Following the expiry of that concession (or during its bodies or diplomatic missions.46 term, if all of the obligations have been met within the term),38 the concessionaire can seek either a definitive concession (i.e. a permanent grant of the lands) or a long-term lease (of between 18 and 99 years).39 The concessionaire can also seek renewal of the provisional concession (although the State may require additional investments to be undertaken in order to obtain the
33 A position which it appears may be permitted under the ambiguous terms of Art 12. 34 For an example of this practice, see Order No. 0222/A/MINEF/25 May 2001 setting out procedure for the preparation, approval and monitoring of plans and management for State production forests. Article 11 of the Order notes that where necessary, partnership agreement entered into between the concessionaire and other actors, such as NGOs, local populations or the local administration, to carry out certain works, are to be annexed to the plan of management and mentioned in the cahier des charges for the definitive concession. 35 There are some prospects to challenge the grant of a concession on administrative grounds, but these are relatively limited and generally inaccessible to communities. 36 National Lands Decree, Art 1. 37 Ibid, Art 3. This period can be extended in exceptional circumstances, upon the reasoned request of the concessionaire. While the provisional concession is in force, the land remains “national land”, only becoming private land upon the grant of a final concession. 38 Ibid, Art 8. 39 Ibid, Arts 8 and 10. Foreigners (or foreign companies) can only be granted a long term lease, not a definitive concession. However, many foreign companies act through a local subsidiary, and so would in theory be able to obtain a definitive concession. 40 Ibid, Art 11. 41 Ibid, Arts 8 and 11. 42 Constituted under ibid, Art 12. 43 Ibid, Arts 9 and 10. 44 1974 Land Law, Art 18. 45 Instruction No. 000005-Y.2.5-MINDAF-D220 of 29 December 2005 setting out a reminder on the ground rules for carrying out an expropriation for a public purpose. 46 1974 State Lands Law, Art 12.
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The procedure for allotment of State private property to a right to compensation (or supply of alternative to companies (or allotment of land as a contribution lands), which includes a compensation for bare land to the capital of, for example, a joint venture with cost, cultivated areas, constructions and any other State participation) is set out in Decree No. 76/167 development of value on the land.53 The rate of of 27 April 1976 governing the management of State compensation for each of these items is limited (even private property (the “Private Property Decree”). where bare land is compensated), and does not reflect Non-allocated State private property (i.e. property the replacement value. not already allocated to a department or public body) can be allotted to private owners by sale by tender, In cases where local communities do not hold (any or private sale, or exchange.47 They can also be allotted all of) their customary lands with a certificate of title for use under an ordinary48 or long-term lease.49 Once (but they are dispossessed for example because of again, there is no obligation that local peoples or local the allocation of national lands for another purpose), communities in occupation of the land are notified or they are not compensated in the same manner. In consulted on the allotment of private property under general, in these circumstances, communities will the Private Property Decree. receive compensation for lost cultivated areas and constructions, but not for any land.54 (However, where a declaration of public purpose includes both private Expropriation and compensation property and national lands, communities or individuals may still apply for certificates of title in respect of their The State is the guardian of all lands in Cameroon – customarily held lands within the national lands portion, whether national lands, public property, or private and therefore benefit from compensation for their property – and under the 1974 Land Law, has “the right land.55) to intervene to ensure the rational use of land or in the imperative interest of defence or the economic policies of the nation”.50
Accordingly, the State has certain powers to use and acquire not only public property, national lands, or State private property: it also has certain powers to expropriate private property owned by others, namely where this property is considered necessary for a public purpose. The State’s powers of expropriation are set down primarily in Law 85-9 of 4 July 1985 relating to expropriation for public purposes and methods of compensation (the “1985 Expropriation Law”) and its implementing decree, Decree 87/1872 of 16 December 1987 (“1987 Expropriation Decree”) (which sets out the procedure for expropriation). Notably, the expropriation law and procedure only applies to private property (e.g. those benefitting from a certificate of title), not to national lands held under customary ownership.51
After a declaration of public purpose is made (a precursor to expropriation), the assessment and evaluation board52 visits the land in question to record and assess the value of all property (land and other property) to be expropriated. Expropriation gives right
47 Private Property Decree, arts 5-10, 13. 48 An ordinary lease may last no longer than 18 years: ibid, Art 20. A long term lease lasts between 18 and 99 years: ibid, Art 23. 49 Ibid, arts 16 and 17. 50 1974 Land Law, Art 1(2). 51 1985 Expropriation Law, Art 2. 52 Constituted in accordance with ibid, Art 6. 53 Ibid, arts 3 and 7. 54 See ibid, Art 9, which specifies in general terms the principles for compensation for land the subject of a certificate title derived from customary law, and for other types of land titles. Implicitly (and confirmed in practice), where there is no title, no compensation is payable. 55 Ibid, Art 14.
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Section 5: Forest Governance
A large portion of Cameroon’s surface area is forested, (and declassified64) by prime ministerial decree,65 and and is governed under a forest governance regime of every classified forest is subject to a management which the key instrument is Law 94/01 of 20 January plan.66 1994 governing forests, fauna and fishing (the “1994 Forest Law”). The totality of these forested lands, The Permanent Forest Domain is required to contain at together called the “national forest estate”, cut across least 30% of the total surface area of Cameroon, and the different categories of property outlined above: the must also reflect the ecological diversity of the State.67 national forest domain thus contains national lands, As a result, no forest area can be declassified from the private property and public property. permanent forest domain unless another forest of the same category, of an equivalent size and in the same The national forest estate is divided into two broad ecological zone, has been classified to replace it.68 categories of forests: the permanent forest domain and Moreover, a forest can only be declassified for a public the non-permanent forest domain.56 The permanent purpose (i.e. by way of an administrative declaration forest domain consists of areas allocated permanently of a public purpose and after an environmental impact as forest57 or wildlife habitat.58 In contrast, the non- assessment has taken place).69 permanent forest domain consists of areas that are currently forested, but may be allocated for uses other Broadly, State forests and municipal forests can be than forestry.59 designated as protected areas (national parks, botanical gardens, wildlife reserves etc.) as well as production A prior environmental impact assessment must be forests, i.e. areas where sustainable forestry activities conducted for any project which is likely to affect may take place).70 the national forest estate.60 However, the word “prior” here (see the section on environmental impact Indigenous peoples maintain their customary usage assessment below) appears to indicate before works rights within State forests, although these rights can are started, rather than before land is allocated for the be limited if necessary to achieve the objectives of the project, which significantly undermines the role of the forest (in which case the indigenous peoples in question environmental impact assessment in decision-making. are entitled to be compensated in accordance with the applicable decree).71
The permanent forest domain Clearing (which does not include sustainable forestry in a production forest) of a State forest is prohibited: it The forests making up the permanent forest domain are can only occur after all or part of the forest has been called permanent forests or “classified” forests. There declassified.72 A proposal to clear an area of State forest are two types of classified forests: 61 State forests (forêts (which necessarily requires declassification of the forest domaniales) (which form part of the private property area, therefore also requiring the declaration of a public of the State62) or municipal forests (forêts communales) purpose and an environmental impact assessment73) (which form part of the private property of the can only take place where clearing is not likely to municipality63). State and municipal forests are classified prevent the needs of local peoples and communities from being satisfied, threaten the survival of those living
56 1994 Forestry Law, Art 20(1). 57 Decree 95/531/PM of 23 August 2005 (“Forestry Decree 2005”), Art 2(1). 58 1994 Forestry Law, Art 20(2). 59 Ibid, Art 20(3). 60 Ibid, Art 16(2). 61 Ibid, Art 21. 62 Ibid, Art 25(1). 63 Ibid, Art 30(3). 64 2005 Forestry Decree, Art 24. 65 Ibid, Art 17. 66 1994 Forestry Law, Art 22. 67 Ibid, Art 22. 68 Ibid, Art 28(2). 69 2005 Forestry Decree, Art 22(2). 70 Art 24(1) of the 1994 Forestry Law sets out in full the uses/objectives which a State forest may have. Under Art 30(1), the uses of a municipal forest are the same. The management objectives of a municipal forest also expressly state that they may include the exercise of usage rights by indigenous peoples. 71 Ibid, Art 26. 72 Ibid, Art 16(1). 73 2005 Forestry Decree, Art 9(1).
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on the forest edge, upset the ecological balance or “Community forests” are forests managed by one hinder national defence.74 While this requirement on its or more villages (i.e. chiefdoms), on the basis of a face provides strong protections to local communities simple management plan agreed by the authorities.80 relying on resources in classified forests, in practice, it The creation of a community forest permits the is implemented minimally if at all. Consultations (if they village(s) concerned to exploit the forest (including take place at all) frequently do not merit the name: in potentially commercially or in ways which are different many cases communities are not aware that they are from customary usage) and retain the benefits of being consulted, or for what purpose, are provided with that exploitation, in accordance with the agreed limited information, and are not aware (nor made aware) management plan.81 However, the creation of a of the provisions of the law designed to protect them. community forest does not grant the community any rights to obtain a certificate of title in respect of the community forest area, and the area may still be The Non-Permanent Forest Domain allocated by the State for other uses. The success of community forests has been dubious in practice. The non-permanent forest domain comprises all parts of the national forest estate which have not been classified as permanent forest domain. There are Conversion forestry three types of non-permanent forest: forests on State lands (forêts du domaine national), community forests As a general rule, forestry activities in any of the above (forêts communautaires), and private forests (forêts des categories of forests can only be undertaken with particuliers).75 authorisation from the Ministry of Forests.82 However, the position is different in relation to conversion “Forests on State lands” (also called “national forests”) clearing, i.e. where forest land is allocated for an is effectively a residual category for forest areas not alternative use which requires clearing (in full or in part) falling into any other category.76 These forests may be of the area. This is the regime generally applicable to on national lands, State private property, or State public large-scale palm oil projects. property. Within these forest areas, local communities retain their usage rights. However, these rights may Conversion forestry is covered by article 73 of the be subject to restriction by the Minister of Forests for 1994 Forestry Law, which states that in cases where reasons of conservation or protection.77 the realisation of a development project is likely to cause destruction of part of the national forest estate, “Private forests” are forests that have been planted by the Department of Forests should proceed to extract an individual (or a company etc.) on their own private forestry resources prior to the development.83 property.78 In general, private property owners may make use of their forests as they wish, although prior Where a project is proposed, the developer must to any exploitation they must notify local officials, who undertake an environmental and social impact may suspend the use where it is likely to damage the assessment in order to determine the steps necessary environment.79 to ensure the conservation, development or recovery of natural resources.84 Where the project is approved for development and requires clearing of the area, the benefits from forest products harvested accrue to the State, and are recovered either under State control or by public auction, following an inventory.85 Aside from the environmental and social impact assessment (and the additional requirements where declassification is involved, specified above), there is no need for separate forestry authorisation by the developer for clearing in this case.
74 Ibid, Art 9(3). 75 1994 Forestry Law, Art 34. 76 Ibid, Art 35(1). 77 Ibid, Art 36. 78 Ibid, Art 39. 79 2005 Forestry Decree, Art 97. 80 1994 Forestry Law, Arts 37 and 38. 81 Ibid, Art 37(3). 82 Ibid, Art 41. 83 See also Art 25(3) of the 2005 Forestry Decree. 84 Ibid, Art 110. 85 Ibid, Art 110(2).
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Section 6: Environmental and Social Impact Assessment
The Environmental and Social Impact Assessment (ESIA) The 1996 Environmental Law also envisages the regime in Cameroon is governed, at its highest level, participation of local communities in environmental by the 1996 Environmental Law. Chapter 2 of that law management, through (inter alia) free access to sets out a number of key principles relating to ESIA, environmental information, and consultative which are supplemented by more detailed provisions in mechanisms aimed at collecting and recording subsequent subsidiary legislation. community views,88 both of which are set out in more detail in the relevant implementing decree. The key features of the regime under the 1996 Law are as follows: Decree 2013/0171 of 14 February 2013 (“2013 ESIA Decree”) sets out the procedure for an ESIA. It provides • The developer of any project which may affect the for two types of ESIA – a summary ESIA, or a detailed environment is required to undertake, in accordance ESIA.89 In relation to agricultural production, a detailed with the prescriptions of the cahier de charges ESIA is required for agricultural exploitation of a size agreed for the project, an environmental impact greater than 100 hectares,90 which captures most large- study evaluating the effects of the project on the scale oil palm plantations. ecological balance, on the way of life and quality of life of affected populations, and on the environment A project may not commence until the ESIA has been in general.86 (Although the cahier de charges is completed.91 However, an ESIA is generally undertaken generally not made public, there is some opportunity after a provisional concession (or other form of to comment on the terms of reference for the ESIA agreement in relation to land) has already been agreed (which after agreement form part of the cahier de between the State and the company. As a result, there charges). It is unclear whether the final agreed version is already an impetus towards commencing the project, is publicly available.) which is likely to influence the ESIA process (which will focus primarily on the measures need to mitigate • The ESIA should be considered by the relevant damage, rather than whether the project should in fact administration (the Department of the Environment), go ahead). and (after preliminary advice of an Interministerial Committee87) should give rise to a reasoned decision Article 10 of the 2013 ESIA Decree specifies the on whether to proceed with the project. However, elements that must be contained in a detailed if no decision proceeds from the Ministry within 4 environmental and social impact assessment, which months from the submission of the ESIA, the project include (among others): is deemed to be approved and the developer may commence activities. As discussed below, this type of • The description and analysis of the site and its deeming provision (which prioritises proceeding with physical, biological, socio-economic and human the development over assurance that the risks have environment; been assessed and mitigated) leaves communities vulnerable where government bodies do not exercise • Description and analysis of all the natural and socio- proper oversight over planned activities. cultural elements likely to be affected by the project;
• Identification and evaluation of the possible effects of the project on the natural and human environment;
86 1996 Environmental Law, Art 17. 87 The Inter-Ministerial Committee is headed by a representative of the Ministry of the Environment, and also comprises representatives from various other ministries, including MINEPAT, MINDCAF, MINADER and others: for a full list see Decree 2001-718-PM governing the organisation and functioning of the Inter-Ministerial Committee on the Environment, as amended by Decree 2006-1577-PM. 88 1996 Environmental Law, Art 72. 89 2013 ESIA Decree, Art 3. 90 Art 4, Order 0070/MINEP of 22 April 2005 setting out the different categories of activities for which an environment and social impact assessment must be completed. Note that where irrigation is envisaged, this may require an ESIA even if the surface area is smaller. 91 2013 ESIA Decree, Art 3(3).
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• The programme of awareness-raising and information We have received multiple reports of community (the word “consultation” is not used) undertaken members being asked to sign “attendance sheets”, in the course of the ESIA, including minutes of which are then used as evidence of their approval of meetings held with local communities, NGOs, the project and/or the official version of the minutes unions, opinion leaders and other organised groups (even though these were not shown to the attendees). concerned by the project. Generally, very little written information is provided (which would enable community members more Article 20 of the 2013 ESIA Decree requires that easily to consider further after the meeting or seek the ESIA process must include the participation of advice), and often technical information is explained in affected ‘populations’, through consultations and public inaccessible terms. hearings.92 Consultations involve public meetings while the study is being carried out, and must take place in Once the ESIA has been completed, it is lodged with the affected local communities themselves.93 A public the Ministry in charge of the project and the Ministry of hearing takes place after the report has been submitted, the Environment97, which has a limited time to decide and is designed to publicise the study, to record any whether to require more information or accept the objections and to permit affected communities to report. When the report has been accepted (or deemed express their views on the conclusions of the study.94 to be accepted), a public hearing is undertaken.98 On The calendar of consultations must be set out in the basis of this hearing, an ad hoc committee (the advance, and notified to the affected communities at members of whom are unclear) prepares a report least 30 days prior to the first meeting, together with assessing the consultations and public hearings, which a description and justification of the project.95 Minutes is transmitted together with the completed ESIA (and of meetings must be kept and signed by the developer the ministry’s evaluation of it) to the Interministerial as well as the representative of the local populations Committee on the Environment,99 which has a period of (usually the chief).96 20 days to make recommendations about the project.100
In practice, the public consultations conducted in The Minister of the Environment has 20 days from the the course of EIAs frequently fall well short of these date on which the Interministerial Committee on the proposals. Communities are often not given 30 Environment provides its recommendations to decide days’ notice as required, nor are they provided with upon the project.101 The Minister may either approve adequate (if any) information about the project. Those the project entirely, approve it with conditions, or reject involved in the consultations are often reluctant to the project (which means it cannot be undertaken).102 In divulge significant information about the project, accordance with article 20 of the 1996 Environmental and in some cases the purpose of the meeting is not Law, if the Minister does not take a decision within 4 explained. It is also not uncommon for consultations months, the project is deemed approved. to be accompanied by offers of food and/or alcohol. The mechanisms for notification of the consultation Throughout the process, the timeframes for meeting are also not specified, meaning it is possible government and community consideration are limited, that information may be provided for example only to and the deeming provisions mean there are significant the chief (or limited others) and not to other members risks of ineffective oversight. of the community (it is frequently the case that, where there are both Bantu and for example Bagyeli people in a given village, only the Bantu participate in consultations). There is no clarity over the community “representative” who is required to sign the minutes of consultation, and this procedure is open to abuse.
92 Ibid, Art 20(1). 93 Ibid, Art 20(2). 94 Ibid, Art 20(3). 95 Ibid, Art 21(1). 96 Ibid, Art 21(2). 97 Ibid, Art 18(1). 98 Ibid, Art 22. 99 Ibid, Art 24(1). 100 Ibid, Art 24(2). It is not entirely unclear whether, if the Interministerial Committee fails to make recommendations within this period, it is deemed not to make any recommendations and the process continues. It is possible (in view in particular of Art 20 and the lack of a deeming provision), that recommendations of the Interministerial Committee are an essential element of the process, without which the Minister of the Environment cannot take (or be deemed to have taken) a decision. 101 Ibid, Art 26(1), 2013. 102 Ibid, Art 26(2), (3) and (4).
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Section 7: Effects of (Lack of) Participation of Communities in Plantations (Including HCS/HCV Identification)
The manner in which communities are integrated into of a community-company cahier de charges are, as noted the concession and ESIA process, as set out above, above, negotiated in circumstances of significant power means that they would have a limited role in identifying imbalance, often with limited information on the part or selecting areas appropriate for conservation set- of the community, and sometimes under pressure from asides (whether HCS/HCV or otherwise), nor are local authorities. they actively engaged as conservation actors (despite the fact that, as demonstrated by the fact that their In this respect, it is also worth noting that local forests remain suitable for conservation activities, their authorities, taking their lead from the legal system traditional use of forested areas is generally sustainable). and the centralised political system, frequently do In many cases, communities may not be aware (or fully not consider the consultation or support of the local aware) of the plans for or role of conservation set-aside population as an important element of the development areas, and do not generally have any role in maintaining of an oil palm plantation (or other project). Rather, or policing them. they tend to see themselves as being charged with implementing of the national government decision Moreover, when faced with a loss of forested lands (in favour of the project), and to see their role as to on which they base their livelihood, communities’ key “manage” the affected local communities (including by concern is (understandably) how to maintain their own limiting the information available to them) to ensure the livelihoods. Where communities lose large portions project goes ahead smoothly. Broadly we encounter a of their traditional lands (as is frequently the case view within government that local communities need to where development of large-scale oil palm plantation “adapt” and “modernise” (in one specific form) in order is envisaged), and in circumstances where they receive for Cameroon to achieve “development”, with those at inadequate compensation, are not provided with national level understanding and directing this process livelihood alternatives and have not given free, prior and (often from a very paternalistic viewpoint). This culture informed consent to the project, they are unlikely to within national and local administration (which of support (or de facto, respect) conservation areas which course has some exceptions) contributes to ineffective further restrict their land use and livelihood activities.103 participation and engagement by communities in It is unrealistic and impractical in these circumstances economic projects such as oil palm plantations. to expect communities to respect areas of set-asides which constrain their activities on the limited portions of their traditional lands which they retain.
In this respect, we note that our experience in practice has been that the social and economic benefits of a project rarely compensate the affected communities for the loss of their lands. The number of permanent jobs generated by a plantation is not sufficient to employ the number of community members whose livelihood activities have been affected, and moreover in practice, jobs frequently go to better-qualified individuals from other parts of the country, rather than members of rural communities who will usually have relatively limited formal education.104 Social benefits that are the subject
103 We have also observed instances where communities have initially supported projects, but without having received adequate information or having been consulted fully. These communities will often find that in practice the benefits are not as significant as they have foreseen, and may therefore no longer support the project when it is up and running. 104 This has also been noted by others, see for example Misereor et al, The Impact of Privatization of SOCAPALM on Communities and the Environment in Cameroon: Briefing Paper, 2010, page 8.
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Section 8: International Law Standards and their Status in Cameroon
The above sections have focussed on existing national The African Commission is of the view that the laws, which are (as mentioned) currently under first step in the protection of traditional African revision. However, overlaid on the current national communities is the acknowledgement that the rights, legal standards are several international human rights interests and benefits of such communities in their standards which also have a bearing (including within traditional lands constitute ‘property’ under the the national legal system) on the applicable norms Charter and that special measures may have to be within Cameroon.105 taken to secure such ‘property rights’.
The starting point for this consideration is the Thus, under the African Charter, customarily-held Constitution of Cameroon, which governs the role property is protected, even where this is not explicitly which international law has within the national legal or formally recognised under national law. Moreover, system. Article 45 of the Constitution provides that such property rights, which may also be communal,108 “duly approved or ratified treaties”, following their should be accorded equal weight with other types publication, override national laws.106 As a result, of property rights. Accordingly, local communities in international standards, including international human Cameroon have, at regional level, a prima facie right rights standards, which have been ratified by Cameroon, to own and occupy their traditional lands. Those have direct national application. As set out below, there property rights (which include rights of customary are several respects in which these standards contradict use, both for agriculture as well as customary use of the existing national laws in relation to, in particular, natural ecosystems) may in some circumstances also local communities’ and indigenous peoples’ rights. encompass rights to natural resources (such as minerals) found within the property.109 The following section explains relevant provisions of some key binding international standards which have The right to property under the African Charter is been ratified in Cameroon, and are therefore directly not absolute – it is recognised that there are some applicable under national law. circumstances in which, in view of other rights, it can be encroached upon. Article 14 states the circumstances in which the right to property may be encroached upon, African Charter on Human and Peoples’ Rights which are:
The African Charter on Human and Peoples’ Rights • for purposes that are in the interest of public need or (“African Charter”) was ratified by Cameroon in 1989. It in the general interest of the community; and contains several provisions which are pertinent to the manner in which oil palm plantation projects should be • in accordance with the provisions of appropriate carried out. laws.
The first relevant provision is Article 14, which The African Commission has also given guidance on guarantees the right to property (subject to certain these limitations. First of all, both of these conditions restrictions). In its landmark Endorois decision,107 the must be met to justify encroachment on property African Commission on Human and Peoples’ Rights rights, and it is the State, and not the right-holder, that (“African Commission”) opined that the guarantee of must demonstrate compliance.110 property rights was not confined to property formally recognised by the State. Rather, it affirmed:
105 In theory this is equally applicable to international standards in relation to climate change under the UNFCCC and the Kyoto Protocol. However, the lack of any specific targets on Cameroon makes it more difficult to enforce these in national law, both because of the lack of targets and because the treaty as a whole may accordingly be considered non-self-executing. 106 The full text of Art 45 of the Constitution is as follows: “Duly approved or ratified treaties and international agreements shall, following their publication override national laws, provided the other party implements the said treaty or agreement.” 107 Case No.276/2003, Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya, African Commission of Human and Peoples’ Rights, 25 November 2009 (“Endorois”). 108 See also Communication 328/06, Front for the Liberation of the State of Cabinda v Angola, 5 November 2013, para 105 (“Cabinda”). 109 Cabinda, para 105. 110 Endorois para 211.
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In addition, the determination of public need or in International Convention on the Elimination of All Forms of the general interest of the community is not within Racial Discrimination (“ICERD”). the sole discretion of the State: it is subject to an objective assessment, which demonstrates that the The collective property rights of indigenous encroachment is both proportionate and necessary peoples, and likely the collective property rights of (i.e. the least restrictive measures possible).111 Forced other customary communities of a distinct ethnic evictions (as that term is understood in international character,120 are also protected by provisions law112) are prima facie incompatible with a proportionate prohibiting discrimination in ICERD. In its General approach. Recommendation No. XXIII on the rights of indigenous peoples, the Committee on the Elimination of All Forms In addition, the measures must comply not only of Racial Discrimination (“CERD”), noted that: with national laws but also international laws.113 The African Commission has confirmed that this … in many regions of the world indigenous peoples requires, at a minimum, consultation and (prompt and have been, and are still being, discriminated against adequate) compensation,114 and, in the case of (at and deprived of their human rights and fundamental least) indigenous peoples, consent is also required.115 freedoms and in particular that they have lost their Moreover, in the case of (at least) “indigenous land” land and resources to colonists, commercial companies as opposed to private property, the Commission has and State enterprises. Consequently, the preservation also observed that the public interest has a particularly of their culture and their historical identity has been high threshold, because of the serious human rights and still is jeopardized.121 consequences of depriving such peoples of their ancestral land rights.116 Although this argument was The Committee called on State parties to “to recognize made specifically in respect of indigenous peoples and protect the rights of indigenous peoples to own, and is therefore at present confined to them in the develop, control and use their communal lands, territories jurisprudence on this point, the argument would appear and resources and, where they have been deprived of to be equally applicable to other local communities who their lands and territories traditionally owned or otherwise hold their land communally on the basis of ancestral, inhabited or used without their free and informed consent, customary usage.117 to take steps to return those lands and territories.”122
In its 2010 Concluding Observations on Cameroon, More recently, in its Concluding Observations the African Commission on Human and Peoples’ Rights on Cameroon published in 2014, the Committee noted the lack of any legislative or regulatory measures commented in relation to land rights: to protect the rights of indigenous ‘populations’118 and recommended that Cameroon:
… harmonize the land laws and adopt special measures allowing the indigenous populations to fully enjoy all their rights, in particular their right to land, and to work towards the consideration of their cultural peculiarities including nomadism so as to prevent this factor from restricting the enjoyment of their rights. 119
111 Endorois para 214. 112 For an explanation of this concept in international law, see Committee on Economic, Social and Cultural Rights, General Recommendation No. 7,The right to adequate housing (art 11(1) of the Covenant): Forced Evictions, 20 May 1997. 113 Endorois para 219. 114 Endorois para 225. 115 Endorois para 226. 116 Endorois, para 212. 117 In this respect we note the comments of the Commission in Cabinda (where it found on the facts that the people of Cabinda were not specially protected under Art 14), which imply that collective customary land-owning in general is protected: “… The Commission does not believe that distinct pre-colonial history on its own currently suffices to sustain a claim for special protection of a distinctive overriding communal right to property under the Charter … In the absence of evidence that land in Cabinda is communally owned in a traditional context and that the people of Cabinda had and continue to hold on to strong attachment to their land as part of a distinct culture which requires dependence on land and its resources for the survival of the people of Cabinda, the right to property can be validly limited by the State in the overall public interest of the entire state and in accordance with appropriate laws”: Cabinda paras 106-107 (emphasis added). 118 ACHPR, Concluding Observations and Recommendations of the Second Periodic Report of the Republic of Cameroon, 2010, accessed from http://www.achpr.org/ files/sessions/47th/conc-obs/2nd-2003-2005/achpr47_conc_staterep2_cameroon_2010_eng.pdf at para 18. 119 Ibid, para 37. 120 Fergus Mackay, The Rights of Non-Indigenous ‘Forest Peoples’ with a focus on Land and Related Rights: Existing Legal Mechanisms and Strategic Options, Forest Peoples Programme, 2013, pages 13-14. 121 CERD Committee, A/52/18, annex V, para 3. 122 CERD Committee, A/52/18, annex V, para 5.
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While noting the steps taken by the State party in favour of indigenous peoples, the Committee is concerned by the attacks on their land rights. It also finds it regrettable that current land ownership legislation does not take into account the traditions, customs and land tenure systems of indigenous peoples, or their way of life, particularly as it makes the recognition of land ownership and compensation conditional on land development. The Committee is concerned at reports that the right to consultation as provided in legislation and the right to prior, free and informed consent to projects and initiatives concerning indigenous peoples are not fully applied by the State party. It is also concerned that indigenous peoples are not always consulted about projects conducted on their lands or which affect their rights (art. 5).
The Committee recommends that the State party take urgent and adequate measures to protect and strengthen the rights of indigenous peoples to land. In particular, it requests that Cameroon continue to ensure the active involvement of indigenous populations in the ongoing review of its law on land tenure (ordinance of 1974) and its forestry law of 1994, allowing them to make recommendations to the committee responsible for the review of land legislation.
In the light of its general recommendation No. 23 (1997) on the rights of indigenous peoples, the Committee recommends that the State party, in consultation with indigenous peoples:
(a) Establish in domestic legislation the right of indigenous peoples to own, use, develop and control their lands, territories and resources;
(b) Consult the indigenous peoples concerned and cooperate with them to obtain their free and informed consent before approving any project that affects their lands, territories or other resources, in particular with regard to the development, use or exploitation of mineral, water or other resources;
(c) Guarantee indigenous peoples just and fair compensation for lands, territories and natural resources that they have traditionally owned or otherwise occupied and used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent; and
(d) Ensure that the legal land registry procedure in force duly respects the customs, traditions and land tenure systems of the indigenous peoples concerned, without discrimination.123
123 CERD, Concluding Observations on the nineteenth to twenty-first periodic reports of Cameroon, 26 September 2014, UN Doc. CERD/C/CMR/CO/19-21,
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Section 9: Assessment and Conclusions
The most significant hindrance to implementing a • Any companies seeking to respect communities’ FPIC HCS approach in oil palm plantations in Cameroon is may, however, be seen as a threat to government’s the lack of political engagement on the issues both of assertion of ownership of land (as the requirement climate change and of the rights of local communities for protection of set aside areas may be seen as a and peoples, as evidenced by both the existing legal threat to development). At present there appear to framework and the practices of the administration. In be multiple actors in the palm oil sector prepared the absence of political engagement with these issues, to act without such scruples (as is evidenced by the there are likely to be insurmountable obstacles to the general lack of RSPO member palm oil companies successful implementation of the policy. In particular: operating in Cameroon and indeed the withdrawal by Herakles Farms when a RSPO complaint was • Unless companies are prepared to include such made against it). This may make unilateral company territories within their own concessions (and demands for higher standards in order to comply with therefore pay taxes / rent in relation to them) – and HCS difficult: where companies make uncomfortable even potentially where they are prepared to do demands, the government may choose simply to so – the imposition of HCS requirements over and cease dealing with those companies. above national regulations may well be seen by the government as interference with its national • In the absence of adequate compensation or sovereignty and development plans. alternative livelihood options for communities, creation of oil palm plantations will increase the • In addition, oil palm is by no means the only pressure on land resources. This will either result in plantation crop being grown (or the only potential the failure of real protection of HCS areas (because conversion use of lands) in Cameroon. Where HCS communities are forced to use them in their set-asides are outside concession areas, government livelihoods) or the intensification of land use in other buy-in to the HCS concept (and agreement to areas to which communities have been displaced. protect such areas) will be essential, if the areas are (This may also involve significant additional human genuinely to be protected for carbon storage, and rights violations against community members whose not simply developed for other uses. The exercise activities are criminalized as a result of HCS set-aside will be futile if the area avoided by an HCS-conscious protection.) palm oil company can simply be used for a rubber plantation instead. In sum, the HCS methodology appears to have little chance of success in Cameroon without efforts to enlist • Current legal frameworks in relation to local genuine government support, and change the national communities’ and indigenous peoples’ rights are institutional framework, which does not currently vastly below the standards required to meet both support either a strong land-use-change-based international law norms, and the HCS requirement greenhouse gas emission reduction strategy or local of free, prior and informed consent. Companies may community land rights. This difficulty arises specifically of course seek to improve on these standards, and because of the substitutable nature of carbon we would recommend that they do so. However, emissions, which means avoiding them in one location the existing national system provides limited room may not achieve any net result if it causes an increase in for manoeuvre in this respect: the procedure another area (‘leakage’). Absent changes to the national is not designed to facilitate FPIC. This would legal framework, application of HCS in Cameroon risks therefore likely require at least the acquiescence becoming a green-washing activity, which benefits of government. For example, if a company wished palm oil companies who themselves avoid HCS areas, to consult with communities before signing an while not in fact creating overall reduction in emissions agreement with government, or wished to provide or protection of high carbon stock forests and which a copy of its (usually confidential) agreement with places an increased burden on local communities and government – both of which would be required indigenous peoples by restricting their rights. in a normal FPIC process – this would need to be negotiated with the government itself, and could not be instituted unilaterally by the company.
High Carbon Stock Science Study 143 Consulting Study 10B: Community rights and environmental protection in the laws and regulations of Indonesia Consulting Study 10B Community rights and environmental protection in the laws and regulations of Indonesia
Foreword
The conceptual aspect of regulation development in interests of those with the most power and influence. Indonesia refers to the concept of laws in the Law For example, in conservation cases, the main objective Number 12 of 2011. This provision is an amendment commonly emerging in the various regulations is of the Law Number 10 of 2004. This governs the certainty regarding the area, not justice. process and principles of law formulation and should be adhered to in the development of various regulations In the laws regarding management of natural resources, issued after 2004. Regulations developed before part of the legal content does reflect the concept of these two Laws were enacted refers to the concept of law formation based on structured content according regulation as governed by the Resolution of Temporary to the hierarchy of laws and regulations. A regulation People’s Consultative Assembly (TAP MPRS) Number automatically adjusts to the regulation above and XX/MPRS/1966 in conjunction with the Resolution of this regulation adjusts to the higher regulation. And People’s Consultative Assembly (TAP MPR) Number V/ so on until it reaches the basic principles of the MPR/1973. State. However, the reality clearly demonstrates that other regulations represent political interests.4 The Essentially, the principles of law development has establishment of law does not purely originate from the existed since the Montesquieu concept in the middle internal harmonisation of law as the formalists would of the 18th century. Indonesian legal minds have known ideally believe. The old thesis is that law is a product of and utilised this concept in the formulation of the law. politics. (Nonet and Selznick, 2003). One of the Montesquieu principles is the law must be developed with thorough deliberations, must have The following legal analysis is an analysis of the practical use and should not disrupt the basic elements extent to which legal products regarding the regime in the instinct for justice and natural laws and values. of rights, the environment and natural resources has Weak, uneccessary and unjust laws will cause people to accommodated the rights of indigenous communities disrespect laws and regulation and destroy the authority to the land and areas as well as the right to the of the State.1 environment. The basis for this analysis is the normative analysis which has neatly been provided by the Several principles on the substance of laws and Law Number 12 of 2011. Here the legal product is regulations as developed in the Montesquieu theory is examined under the lens of norms related to justice, included in the Law Number 12 of 2011. Such as the benefits, certainty and the principles of legal content principles of justice which means that the content of which has been stipulated in the principles of legal laws and regulation must reflect proportional justice governance as contained in the Law Number 12 of for each citizen.2 Other principles include such as legal 2011 in conjunction with Law No 10 of 2004. certainty, utilisation and equality before the law was also adopted in this Law. However, the point must be raised that a study of normative law for a country in transition towards However, the resulting legal products are not always democracy such as Indonesia is not sufficient. Firstly, in accordance with the expected content as stated the process and the content of regulations do not in the Law Number 12 of 2011 as well as other always abide by the guidelines for the formulation of regulation since 1966. The formalists believe that the laws and regulations. The process of law formulation is law represents formal requirements which has been not always participative but rather represented by the establish only through the legal process and content House of Representatives (DPR). Public consultations as prescribed in the normative manner. The formation are often convened in order to discuss the content of law, in reality, is not so.3 Formation of law is a of a draft regulation. However, the attendees do not complex process. The final objective of law ultimately represent the interests of all elements of society. is not always dedicated to justice. However, it may Furthermore, members of the public who will be directly guarantee legal certainty. Or may even be ambiguous impacted by the regulation are not consulted. For thus allowing the articles to be dragged towards the example, the Law regarding Plantations. The process for this law only involved a public consultation process in
1 Baron de Montesquieu, 1914, The Spirit of Laws 2 Article 6 clause 1 letter g, Law No 12of2011 3 Rahardjo, Satjipto, Hukum dalam Jagad Ketertiban (Law and the Universe of Order), Jakarta: UKI Press, 2006, pp 149-161, also refer to Rahardjo, Satjipto, Hukum dan Perilaku (Law and Behaviour), Jakarta: Kompas, 2009, pp 19-29, 75-82 4 See lengthy explanation by Mahfud MD (2012) regarding the nature of legal products in Indonesia, especially regarding the General Election, Local Government and Agraria in MD, Mahfud, 2012, Politik Hukum di Indonesia (Legal Politics in Indonesia), 5th printing, Jakarta: Raja Grafindo Persada, pp 362-364
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Jakarta and several cities. The rural communities who deal with plantations were never invited to express their thoughts on this Law. The same occurred with the Law regarding Forestry where there were hardly any participants were invited from communities living within and in close proximity to forests.
In addition, the National Parliament or DPR are representatives of their political party, not the People. Often the interests of the party dictates the political orientation of the Parliament therefore their selection of issues relevant to the debates which formulate the laws are determined by the orientation of the political parties. Laws are often formulated through debates held from one hotel to the next in Jakarta. Not an accumulation of lengthy and thorough examinations of the interests of the citizens on the various islands.
The same holds for implementation level regulations. Field bureaucracy officials who are far removed from information and have poor knowledge of legislation would not necessarily be cognisant let alone understand the burden of regulations placed upon them. Regulations which have been established are left to languish due to lack of support for its implementation especially with regards to adequate organisational capacity and funding. Often, many regulations are implemented half-heartedly because of severely limited funding for supervision.
Therefore, understanding a regulation and the challenges and opportunities in its implementation must begin with a broad understanding, not one limited to the normative aspect. Although a reading of regulations from a normative perspective remains necessary, it is imperative to touch upon other aspects which often have a larger role in determining law enforcement rather than the cloak of norms. Therefore, this analysis also paints a portrait of the dynamic challenges and potential in the implementation of the law and does not merely examine norms. These two points do not just speak to norms. This analysis will position explanations on issues beyond the law including the economy, politics, capacities and other judicial non- normative factors. The expectation is that the analysis will provide an overview which is not piecemeal and tattered regarding the law in Indonesia. This analysis will provide a more comprehensive description of the law as to how it governs rights and the environment, and the challenges in its implementation. However, this analysis remains a legal analysis and does not have an ambition to provide an explanation the length and breadth of a legal political analysis. Therefore the scope of this analysis remains focused on legal norms.
High Carbon Stock Science Study 147 Consulting Study 10B Community rights and environmental protection in the laws and regulations of Indonesia
Scope of Analysis
This legal analysis reviews laws and regulations as ratification of international laws or even national associated with community rights especially regarding laws. However, this analysis is not focusing on these the right to land and natural resources and the laws because its content does not play an influential protection of the environment specifically maintenance role on the establishment of implementation regulations of carbon stocks. A total of 74 laws and regulations and institutions. Furthermore, this legal analysis was were analysed. Beyond this, the constitution, 4 written under a time constraint. In order to ensure Constitutional Court Rulings and the draft bill for efficient analysis, the brief is focused on regulations the Law regarding the Recognition and Protection of with significant impact on implementation. Indigenous Peoples and other regulation as stated in the analysis of each respective area. The areas of Specifically regarding High Carbon Stock (HCS), the analysis are shown as follows: laws and regulations do not currently specifically stipulate HCS as a nomenclature requiring separate Number of governance. However, the provisions on the Area Regulations environment provides various elements related to carbon protection. Therefore, the following analysis Human Rights 10 does not specifically demonstrate articles which Constitutional Court Rulings regarding explicitly mentions HCS bur rather shows elements 4 indigenous communities of environmental governance which is relevant to the endeavours towards maintaining and protecting Agrarian Affairs 6 carbon stocks in order to prevent its release into the Land administration 8 atmosphere. A linear logic is employed whereby the protection of the environment at a macro level and Spatial planning 4 its governance at a micro level are also endeavours Environment 6 towards the protection of carbon stocks. Conservation 8 Forestry 13 Plantations 5 Villages 3 Regional Government Regulation 7 Total 74
These are the dominant regulations in each area, therefore this analysis begins with the assumption that these regulations have significant and direct impact on the issue of indigenous community rights to land and the area, as well as environmental issues. These influences include the establishment of derivative laws and institutional structures at the national and sub-national level. For example, Law number 41 of 1999 on Forestry is plays a very influential role in all forestry governance in Indonesia. Hundreds of derived laws and forestry institutional structures from the national level to the local level have come from this Law. Therefore, the legal brief on forestry will focus on Law number 41 of 1999. Another example is Law number 32 of 2009 regarding the Protection and Management of the Environment. This Law is the main reference for environmental issues in Indonesia. Therefore, the analysis on the environment governance will concentrate on Law number 32 of 2009 and legal products derived thereof. There are many other legal products regarding forestry and the environment such
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Executive Summary
This legal analysis studies laws and regulations is also more stringently governed compared to the regarding the rights of the indigenous communities and previous environmental law regime especially regarding local communities and environmental protection. The public participation. specific areas of analysis are rights to land, areas and other natural resources and environmental provisions Nevertheless, macro challenges remains equally which touch on carbon stock maintenance. The laws present in all areas. The greatest challenge is in and regulations analysed encompass Human Rights, Plantation and Conservation. There has been almost the 1945 Constitution, Constitutional Court Rulings, no significant change in the plantation regime. The Agraria, Land Administration, Spatial Planning, the Constitutional Court Ruling Putusan MK 35 as well as Environment, Conservation, Forestry, Plantation, the Law on Villages has changed nothing in the partially Villages and sub-national legal products which govern repressive nature of the plantation regime which is still the rights of Indigenous Peoples. No less important, accelerating massively. Even the Constitutional Court an analysis of the latest developments on the Draft Ruling Putusan MK 55 which has attempted to change Bill on the Protection and Recognition of the Rights of the repressive nature of the Law on Plantations has not Indigenous Peoples (Masyarakat Hukum Adat). been of much practical use. The Law on Plantations remains in effect with regards to plantation expansions The general findings regarding regulations in these with the support of coercive State instruments. various areas demonstrate that many laws and regulations have been established in order to protect On the other hand, Forestry appears to have initiated the rights of the Indigenous communities and local a transformation towards becoming more open to communities and the environment. The most prominent change. The relentless targeting of forestry from being those in human rights, Constitutional Court various levels has generated some breakthroughs such Rulings and the latest amendments to the laws on as the registration of land rights in forest areas. This Forestry and Villages. One of the amendments to new development allows the National Land Agency the Law on Forestry is the Constitutional Court (Badan Pertanahan Nasional - BPN) to begin identifying Ruling Putusan MK 35/PUU-X/2012 which changed and reinforcing the rights of indigenous communities. the paradigm of forest tenure (penguasaan hutan) However, this provision does not come without in Indonesia. Forest tenure was previously solely challenges. The challenges in implementation come first controlled by the State. Now, indigenous communities of all from the lack of readiness and funding support at have the tenurial rights and the right to control their the sub-national level. Without these, it would difficult customary forest. for the endeavours towards recognition of community rights in the forest area to operate effectively. Other regulations which has had a significant influence on the constellation of land rights in Indonesia is With regards to plantation investment, this analysis the establishment of the Law in Villages. In this specifically demonstrates the steps and pre-requisites Law, Customary Villages (Desa Adat) has the right to for the recognition and protection of rights in various customary territory which is a village asset. One of laws and regulations. However, before summarising these assets is the customary forest (Hutan Adat). The these options, the basic principle which must be implementation of the Law on Villages will influence underlined is that the compulsory regulations such as the composition of territorial and forest area tenure in compliance to environmental standards and respect of Indonesia. human rights are non-negotiable. The right to land and a healthy environment is indivisible from each person. Furthermore, environmental protection has been Therefore, the compulsory nature of these regulations formulated in a more decisive and robust manner are inherent in each State agency, business practitioner in Law number 32 of 2009. Despite not specifically and each person dealing with these rights. governing carbon issues, this Law has paved the way for more comprehensive environmental protection. The steps and pre-requisites for the recognition The instruments provided to prevent environmental and protection of indigenous and local communities destruction such as Strategic Environmental Analysis in various laws and regulations which govern the (Kajian Lingkungan Hidup Strategis - KLHS) and communal and individual subject’s right to claim their Environmental Permits (Izin Lingkungan) are new rights to land, the procedures of recognition, the breakthroughs in the constellation of environmental law support of government agencies towards recognition of in Indonesia. The Environmental Impact Assessment rights and the protection and empowerment of rights. (Analisis Mengenai Dampak Lingkungan Hidup - AMDAL) The governance of each category is summarised briefly as follows:
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The communal and individual subject The third option is utilising the Law on Villages. According to this Law, the Village or Customary Village Currently, there are at least three options which can are entities or legal subjects possessing rights and be employed for claiming land rights. The first option is responsibilities. One of customary village’s rights is the employing the Basic Agrarian Law (UU Pokok Agraria - original hereditary rights (hak asal-usul). The original UUPA) and regulations on land. There are two pathways hereditary rights scope encompasses traditional rights, for the recognition of indigenous rights which are management of customary village land asset and communal rights and individual rights. The stages for management of the communal land (ulayat). However, communal rights begins by claiming to be an Indigenous the Law on Villages does not possess a legal scenario People. This claim would be examined by a team of should the village claim on the ulayat land be in a forest experts established at the sub-national level charged area. In this case, the scenario for designating the village with the duty of investigating the validity of the claim. ulayat land must be related to the implementation of The research findings would inform deliberations the Constitutional Court Ruling Putusan MK 35 in order towards establishing a Regional Government Regulation for the claim to be legally processed. recognising the Indigenous Peoples.
The individual claim pathway follows the steps of land Procedure for recognition of rights registration as stated in the land registration regulations (please refer to the exposition on land administration). The recognition of communal as well as individual land The individual or applicant making the claim including follows several stages. The regulations in the areas for individual customary land must be able to show of agraria, land, forestry, Joint Regulation of the Four written proof of their tenure. If written proof is not Ministers, Regulations of the Minister of Home Affairs available, the applicant may provide witnesses who regulated the procedures for recognition of land rights have no familial ties to them. After the Constitutional claimed by the indigenous and local communities. Court Ruling Putusan MK 35, individual land registration may be done in forest areas. The 4 Ministers’ Joint 1. Identification Regulation of 2014 provided a foundation for teams This stage is for claiming the rights. A team or at the District/Municipality level as coordinated by experts assembled by the Head of the District the National Land Agency (BPN) to receive individual (Bupati)/Mayor will conduct an identification rights claims in the forest area. The identification and encompassing the history of the Indigenous verification outcome from these teams provide input for Peoples, customary territory, customary laws, the the Head of the BPN Office to propose the boundaries wealth or other properties, the institutions/system and release of the forest area to the Ministry of of customary government. Environment and Forestry (Kementerian Lingkungan Hidup dan Kehutanan - KLHK). The Decree on change 2. Verification of boundaries from the KLHK Minister can become the legal foundation for the BPN to register and provide a This stage is for further checking into the validity land ownership certificate. of the claim detailed in the identification stage. The team may conduct a field inspection to ensure The following option is to utilise the Constitutional the consistency of physical facts as necessary. Court Ruling Putusan MK No 35/PUU-X/2012. One of The verification or the territory or land includes the basic issues in this ruling is recognising the claim an inspection of the claims made by other parties that Indigenous Peoples are legal subjects possessing including overlaps with government tenure. In the rights and responsibilities. The Constitutional Court Ministry of Home Affairs Regulation Permendagri 52 defines this as “constitutional rights”. Based on this of 2014 this stage is followed by a statement on ruling, communal indigenous rights in forest areas can the validity or otherwise of the claim proposed. be recognised. The subject is the community, not the individual. Previously, claiming rights to communal 3. Stipulation (ulayat) could not be done in the forest area as it is If the status as an Indigenous People has been considered to be State forest area. After this Ruling, validated, the Regional Government issues a the Ministry of Forestry issued the Minister of Forestry stipulation designating the indigenous community Regulation number 62 of 2013 which stipulated that as well as their claims to rights. However several the Regional Regulation will become the basis for the types of rights cannot be immediately exercised as Ministry of Environment and Forestry to release the it remains within the forest area. State forest area status.
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4. Release from the forest area Recognition institutional support In cases where the claim is within the forest area, Based on the laws and regulations, there are four the District Government submits the Regional agencies responsible for the matters of Indigenous Government Regulation recognising the Indigenous Peoples affairs which are the Ministry of Home Affairs Peoples to the Ministry of Environment and (Kementerian Dalam Negeri - Kemendagri), Ministry of Forestry (KLKH). Based on the Joint Regulation Villages, Development of Underprivileged Regions and of the Four Ministers, the Directorate General Transmigration (Kementerian Desa dan Pembangunan of Spatial Design at the Ministry will make the Daerah Tertinggal dan Transmigrasi - KDPDTT), Ministry amendments to the boundaries within 14 days. of Environment and Forestry (Kementerian Lingkungan The amendments to the boundaries is sufficient Hidup dan Kehutanan - KLHK) and the Ministry of as a legal basis for the claimants to formalise the Agraria and Spatial Planning (Kementerian Agraria dan land rights status including registration to the BPN. Tata Ruang - KATR). For individual land, the applicant can request a certificate. The MoHA is responsible for the administration of all villages and customary villages in Indonesia. Macro Neither the National Government nor the Regional level village planning and policies are the mandate Government have fully conducted these four stages. of the Ministry. KDPDTT plays the operational role Several regions have legal products recognising in supporting development and village programmes the rights of indigenous communities. This analysis directly in the field. Therefore, the management of selected several examples such as the Province of West concrete activities including village relationships with Sumatera Regulation number 16 of 2008 regarding investors as well as other parties should be under Communal Customary (Ulayat) Land and its Utilisation, the mandate of the KDPDTT. The customary village the Province of Central Kalimantan Regulation number identification and verification process is also part of this 16 of 2008 regarding the Customary Dayak Institutions Ministry’s scope of work. in Central Kalimantan, Central Kalimantan Governor Regulation number 13 of 2009 regarding Customary The MEF and KATR have mandates as stipulated in the Land and Customary Rights to Land, Malinau District Joint Regulation of Four Ministers and their respective Regulation number 10 of 2012 regarding the internal provisions with regards to their dealings with Recognition and Protection of Indigenous Community customary land and territories. If the claims of the Rights, Lebak District Regulation number 32 of 2001 Indigenous communities or the customary villages lie regarding the Protection of the Communal Ulayat Rights on forest areas the MEF has the authority to respond of the Baduy Community, the Sigi District Regulation to those claims via boundaries and amendments to the number 15 of 2014 regarding the Indigenous Peoples forest areas. The MEF’s boundary determinations may Empowerment and Protection and the Jayapura become the legal foundation for KATR to immediately District Regulation number 8 of 2012 regarding the designate land rights through registration as well as Kampung (equivalent to village elsewhere). The majority certification. At a practical level, the BPN offices at of these regional government regulations (Peraturan the District/Municipality level and at the Provincial Daerah - Perda) were generated by the regional political level have the mandate to respond to customary land process, not through the legal stages as requested by claims in the forest area, conduct mapping and submit the Law on Villages, the Constitutional Court Ruling the outcome to the MEF. After the MEF issues the Putusan MK 35 and its implementative regulations. The boundary amendments, BPN again plays their role emergence of these regional government regulations in registration, and if the community proposes, may were not initiated by the identification and verification continue the process to certification. of rights process therefore the tangible object of the rights in the form of land and territorial rights are The current provisions stipulate that the costs for not specifically stated. The only regional government the identification, verification and determination regulation to explicitly state the territory is the Lebak of customary land is borne by the State budget at District Regulation number 32 of 2001. This regional the national and sub-national level. The Law on government regulation directly states that the subject Villages obligates the government to provide a being recognised, i.e. the Baduy Community and their budget for supporting the identification, verification territory of 5.101 hectares. and determination of customary villages. The same obligation is also stated in the Joint Regulation of the Regions with regulations recognising the land and Four Ministers in implementing MK 35. Funding for territorial rights as well as the existence of Indigenous the process of identification through to registration of communities should be further supported by the individual land in the forest area is supported by the National Government in identifying and verifying the State budget. Communal land recognition is also part claims of the Indigenous communities. The outcome of government obligations including funding and other of this process would become an annex to the existing necessary resources. regulation.
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The Regional Government is responsible for In order to strengthen spatial function, regulations calculating and determining an estimated cost for the in spatial planning recognises the public’s right to implementation of MK 35 according to the conditions participate in the three main stages of spatial planning of their respective regions. The Regional Government which are spatial planning, spatial utilisation and spatial calculations are a basis for the National Government control. In the matter of spatial control, the public has to determine their allocations in the State Revenue the right to provide input regarding the direction and/ and Expenditures Budget (Anggaran Pendapatan dan or regulation of zoning, permits, provision of incentives Belanja Negara - APBN). Regions deemed self-sufficient and disincentives as well as sanctions; monitoring and make allocations in their own Regional Revenue and overseeing the implementation of established spatial Expenditure Budget (Anggaran Pendapatan dan Belanja plans; reporting to the authorities and/or officials if Daerah - APBD). suspicions regarding deviations and or violations against spatial plans are arise; and submit objections against In addition to expenses, another form of support decisions made by authorised officials if deemed at for the process of recognising both the communal odds with spatial planning. and individual Indigenous communities’ rights are facilitators. In various areas, mapping of customary If it is decided that a space is to be utilised for territories have been done for a long time. The cultivation, the spatial planning regime also recognises approach is through participatory mapping which s each person’s right to benefit from the added value generally facilitated by NGOs. These maps can already of the space as a consequence of spatial planning. become instruments for accelerating the identification The added value can be from an economic, social, and verification process for customary territories. environmental quality perspective which may directly However, various other areas where these initiatives have a positive impact on the community’s economic, have not developed are in need of community social, environmental development. The implication of facilitators. It is difficult to leave the identification and this recognition is that the Indigenous Peoples have the verification process to the communities themselves right to benefit from spatial utilisation which impacts because in addition to the lack of capacity, territory directly on their lives. For example, spatial allocation mapping is also related to overlapping claims. The for plantations, mining as well as other investments presence of a third party as facilitators is crucial in must provide economic, social, environmental quality ensuring balanced negotiations between the Indigenous benefits for the community. The spatial planning communities and other involved parties. regime specifically protects rice paddies as well as dry lands which are the source of the community’s food from being converted for other purposes. This is an The protection and empowerment of rights important step in maintaining the availability of land for farming. Various other laws and regulations provide legal foundation for protection and reinforcing the rights The protection and empowerment of rights by the of Indigenous communities. The forms of protection environmental regime include legal protection of Indigenous communities’ The Law on Environmental Protection and Management territories through particular legal procedures. (UU Perlindungan dan Pengelolaan Lingkungan Hidup - Empowerment of rights are manifested through UUPLH) is a legal regime which specifically provides programmes, activities and investments which support environmental protection for each person including the rights of Indigenous communities. In general, these Indigenous communities. There are two forms of various regulations require clear recognition of rights or regulation which protects and empowers the rights of status of rights. There are two macro level provisions Indigenous communities. which are spatial planning and the environment. Furthermore, there are sectoral provisions. In this With regards to protection, UUPLH recognises the exposition, the specific sectors are plantations and public’s right to be involved in the formulation of forestry. key instruments for the prevention of environmental
damage and pollution. For example, the right to submit The protection and empowerment of rights by spatial proposals and/or objections against business plans planning regime and/or activities which may potentially impact on The Law on Spatial Planning classifies two functions the environment and the right to submit complaints of space which are cultivation and protection. The regarding suspicions of environmental pollution and/ protective function is not just aimed at forest areas or damage. UUPLH also recognises the public’s but also non-forest areas including Other Usage Areas right to play a role in the form of social supervision; (Areal Penggunaan Lain - APL) according to its ecological provide advice; provide opinions, proposals, services. For example water catchment areas or High objections, complaints; and/or submit information Conservation Value are in APL areas and not just in and/or reports. These rights may be manifested in the areas designated as forest areas. Therefore, spatial formulation of the Strategic Environmental Assessment utilisation must take these functions into consideration.
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(Kajian Lingkungan Hidup Strategis - KLHS), the It should also be noted that plantation investment does Environmental Impact Assessment (Analisis Mengenai not just deal with the implementation of the Plantation Dampak Lingkungan Hidup - AMDAL), Environmental Law and the derived regulations thereof. Plantation Management Efforts-Environmental Monitoring investments also deals with other laws and regulations Efforts Reports (Upaya Pengelolaan Lingkungan- such as spatial planning, environment, agraria and land, Upaya Pemantauan Lingkungan - UKL-UPL) and in the forestry and human rights. Therefore, the protection issuance of the environmental permit. Beyond these of customary rights to land and the environment does instruments, the public has the right to submit their not only refer to Plantation Law but also observes the proposals, objections and even lawsuits regarding the provisions of other laws and regulations which regulate environment. land and the environment.
In the context of rights empowerment, UUPLH With regards to land, plantation investments comply and derived regulations provide space for the with the land rights regime as regulated in the UUPA implementation of natural resources management and its derivative regulations. This includes recognition models based on customs and traditions. These models of customary rights to land both inside and outside are classified as traditional wisdom. UUPLH states forest areas. The detailed procedures for recognition that in order to protect and manage the environment, of rights and compensation essentially refers to the the National and Provincial Government has the regulations on land. The stages for recognition of duty and authority to establish policies regarding ulayat rights and individual customary rights can be the protocols for recognising the existence of observed in the exposition regarding agraria and land Indigenous communities, local wisdom and the rights administration. of these Indigenous communities associated with the environmental protection and management. These Plantations must also adhere to the pre-requisites of policies are implemented at the District/Municipality environmental regulations. In addition to regulations level. derived from the Law on Plantations, the provisions of preventive instruments in the environment field such Investment activities in the form of plantations, mining as KLHS, AMDAL, UKL-UPL and environmental permit and other utilisation of natural resources must also also applies to plantation development investments. observe provisions regarding the protection and Therefore the public’s right to be involved in the empowerment of the communities within each of these process of formulating these preventive instruments Laws. must be accommodated in plantation development activities. The stages and scope of engagement can The protection and empowerment of rights in the law on be referred to in detail as part of the analysis on the plantations environment. The Law on Plantations reiterates the protection of Protection and empowerment of rights in the Forestry Law Indigenous communities’ rights to land and territories by recognising communal land (ulayat) rights, and The Forestry Law recognises customary law and establishing a compensation procedure if plantation engages community participation in forest management. investments involve ulayat rights. In recent development, the Forestry Law has been revised several times by Constitutional Court Rulings to If a plantation investment involves ulayat land rights, accommodate the right of the community to participate the Law on Plantations and its implementation and even more fundamentally, the right of the regulations govern the obligations of the business community to customary territories and land. practitioner to negotiate for the land. If both parties agree, the business practitioner will pay or take other The Ministry of Forestry has responded to the action according to the agreement. However the Constitutional Court Ruling MK 35 through the Plantation Law also allows for the community to reject Ministerial Regulation number 62 of 2013 and a negotiations thus their land would not have its function Ministerial Circular. Both require the issuance of converted to plantation. Regional Government Regulations regarding the status of Indigenous communities as the basis for for Ministry With regards to empowerment, the Plantation Law of Forestry to designate customary forest areas. recognises customary rights through compensation Furthermore, the Ministry of Forestry has also designed and benefits of plantation. The scope of benefits from schemes for the community to access forest areas such plantation encompasses scheme plantations (kemitraan) as village forest, community forests and partnerships. to specific service programmes. With regards to land rights, the Plantation Law is flexible in allowing the possibility for the plantation enterprise to be engaged in facilitating the recognition of customary rights from identification to registration.
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Section 1: Regulations Regarding the Indigenous Peoples Rights to Land and the Environment
1.1 Human rights Opportunities and challenges regarding the implementation of human rights Legal foundation Indonesia’s ratification of international human rights • Law number 5 of 1994 regarding the Ratification of conventions have been relatively complete. Almost United Nations Convention on Biological Diversity all international human rights agreements have been ratified. Indonesia has also recently been active • Law number 6 of 1994 regarding the Ratification in several international conventions such as the of the United Nations Framework Convention on Convention on Climate Change and the Convention on Climate Change Biodiversity. The rights recognised in these conventions are quite broad, encompassing civil and political rights • Law Number 19 of 1999 regarding the Ratification as well as economic, social and cultural. Several of of ILO Convention No 105 Regarding Elimination of these rights are specifically for Indigenous communities. Forced Labour; For example, the right of Indigenous People to FPIC is recognised in UNDRIP and the Convention on • Law Number 21 of 1999 regarding the Ratification of Biodiversity. Please refer to Table 1.1. ILO Convention No. 111 Regarding Employment and Occupation Table 1.1: Human rights in international and national laws. • Law Number 29 of 1999 regarding the Ratification Category or Rights Legal Foundation of the 1965 International Convention regarding the Elimination of all Forms of Racial Discrimination The right to Article 15 Law Number 39 of 1999 participate Article 19 and 25 Law Number 11 • Law Number 39 of 1999 regarding Human Rights of 2005 • Law Number 11 of 2005 regarding the Ratification of Article 5 Law Number 29 of 1999 the International Covenant on Economic, Social and The right to land Article 1 and Article 25 Law Cultural Rights or ICESCR and territory Number 11 of 2005 • Law Number 12 of 2005 regarding the Ratification Article 2, 3, 4, and 26 in UNDRIP of the International Covenant on Civil and Political Article 36 Law Number 39 of 1999 Rights or ICCPR The right to the Article 3 in Law Number 6 of 1994 environment • The 2007 United Nations Declaration on the Rights Article 9 clause 3 in Law Number of Indigenous Peoples (UNDRIP) endorsed by the 39 of 1999 Government of Indonesia in September 2007 Article 5 in Law Number 29 of 1999 • Law Number 11 of 2013 regarding the Ratification of the 1998 Rotterdam Convention on Prior Informed The right to Free Article 15 clause 5 in Law Number Consent Prior Informed 5 of 1994 Consent Article 10, 11 clause (2), 28 clause (1), 29 clause (2), Article 32 clause 2 in UNDRIP Article 14 and 15 in Law Number 11 of 2013
The right to not Articles 1, 2, 4, 5 and 65 in Law be discriminated Number 29 of 1999 against Article 3 clause (3), 17, 26 clause (2) in Law Number 39 of 1999
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In Indonesia’s legal history, international conventions on human rights and the environment opened new horizons in the discourse on human rights and environmental protection in Indonesia. Some of these conventions have been adopted into laws and regulations, programmes and even sub-national regulations (Pramudianto, 2014). This is apparent in the legal considerations involved in the formulation of these regulations, some of which are listed in Table 1.2 below.
Table 1.2: Laws and regulations which refer to international laws.
International Law Referenced National Law Referenced
Law Number 5 of 1994 regarding the Law Number 29 of 2000 regarding Protection of Plant Varieties Ratification of the United Nations Convention on Biological Diversity Government Regulation No. 4 of 2001 regarding Management of Damage and/or Pollution of the Environment related to Forest and Land Fire
Government Regulation No. 21 of 2005 regarding Biological Safety of Genetically Engineered Products
Minister of the Environment Regulation No. 03 of 2006 regarding Towards Green Indonesia Program
Minister of the Environment Regulation No. 29 of 2009 regarding Guidelines to Conservation of Biological Diversity in the Regions
Minister of Marine Affairs and Fisheries Regulation No. PER 03/MEN/2010 regarding Procedures for Fish Protection
Minister of Marine Affairs and Fisheries Regulation No. PER 04/MEN/2010 regarding Procedures for Utilisation of Types of Fish and Fish Genetics
West Tanjung Jabung District Government Regulation No. 44 of 2001 regarding the Management of Swallows’ Bird Nests
Bima District Government Regulation No. 12 of 2008 regarding the Management of Coral Reefs
Law No 6 of 1994 regarding the Government Regulation No. 4 of 2001 regarding the Management of Damage and/or Ratification of the United Nations Pollution of the Environment related to Forest and Land Fire Framework Convention on Climate Change Minister of Forestry Regulation No P. 68/Menhut-II/2008 regarding Procedure for Implementation of the Reduction of Carbon Emissions from Deforestation and Forest Degradation
Jambi Municipal Government Regulation No. 06 of 2009 regarding Urban Forests
Head of Berau District Decree No 114 of 2011 regarding the Establishment of the Forest Carbon Program Steering Committee in the Berau District
Source: Pramudianto, 2014
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The content of international conventions have also At the implementation level, there is some been utilised as reference material in Court Rulings. misunderstanding regarding the fulfilment of human For example, the concept and impact of climate change rights, whether the ratified international human rights or has been stated in the Singkawang Court Verdict No. the human rights as determined through the domestic 51/Pid.B/2007/PN.SKW dated 16 August 2007. political process such as Law Number 39 of 1999. The defendant on trial was Ir*. Basuki Rahmat Joyo This misunderstanding occurs in the implementation Jali as the operational head of PT Buluh Cawang of ECOSOC rights, for example, in a minimum of three who was accused of forest fires. Another case was ways.5 the Constitutional Court Ruling regarding the suit for judicial review of the Law Number 27 of 2007 regarding 1. Lack of funding the management of coastal areas and small islands. The government lacks the budget to implement all The Constitutional Court judge used the Convention human rights simultaneously. On some level, this on Biological Diversity as one of the deliberation arguments makes sense, for example a policy for references in determining the ruling (Pramudianto, access to affordable housing must be available to 2014). guarantee the right to housing. This means a budget must be allocated for this purpose. The mistake Positive law in Indonesia has indeed begun to is the assumption that the fulfilment of human utilise international conventions in establishing laws rights is only possible with the support of funding. and regulations as well as the foundation for its Human rights is also related to enabling conditions implementation. Nevertheless, almost all sectoral laws in which the society has the ability to fulfil their associated with the management of natural resources rights. For example, the right to housing will never and those with the power for operational enforcement be met if spatial planning is only focused on have not yet referred to the ratification of conventions developing investment, malls, highways and other on human rights and the environment. These include investments. The right to decent livelihoods would the Law Number 18 of 2004 on Plantations, Law also be difficult to achieve if land and the wealth Number 41 of 1999 on Forestry, Law Number 27 of of natural resources are prioritised for large scale 2007 regarding the Management of Coastal Areas and economy players while the masses are allocated a Small Islands, Law Number 22 of 2001 on Oil and Gas, paltry amount. This imbalance inherently creates an Law Number 31 of 2004 on Fisheries, Law Number 2 inequality in rights. of 2012 regarding Provision of Land for Public Interest Development, Law Number 26 of 2007 on Spatial Planning and Law Number 25 of 2007 on Investments. 2. Awaiting prosperity The 1945 Constitution and the Law Number 24 of These two arguments are closely related, that the 2000 on International Agreements only stipulates the State’s economic situation is not adequate for the President’s authority with the approval of the National simultaneous and equitable fulfilment of human House of Representatives (Dewan Perwakilan Rakyat rights. This argument is similar to the lack of funding - DPR) to ratify international agreements through argument. The issue of fulfilment of human rights several stages. This does not provide an explanation is not one of economic prosperity levels but rather regarding Indonesia’s commitment to the ratification of about the efforts to enable society, individuals and international agreements, nor does this determine the groups to have the ability to ensure the fulfilment status of international law in national law. The character of their rights. For example, it is not possible to of the national regulations ratifying the international have the right to housing fulfilled if evictions are agreement also tends towards an agreement rather not accompanied by replacement housing solutions. than an implementation of the agreement, therefore Yet, it is blatantly obvious that many real estates there is no transformation from the international law are being developed with all its blinding luxuries into the national context. The nature of the ratification despite clearly violating spatial planning regulations. regulation does not produce a legal obligation to These conditions do not require a particular level of translate the international law into the structure of economic prosperity. This requires the commitment prevailing laws and regulations, from Law, Government of the government to assert the agreement on Regulation, Presidential Regulation to Regional equitable rights and also control from the public Government Regulations (Agusman, 2014). itself to have their rights expressed in such a way that it does not directly or indirectly violate the
*Ir denoting Engineering degree 5 Misunderstanding in the implementation of ECOSOC rights can be observed in the writings of A. Patra M. Zen and Andik Hardiyanto, 2007, Bukan Sekedar Menandatangani: Obligasi Negara Berdasarkan Konvenan EKOSOB ( More Than Merely Signing: State Obligations based on the ECOSOC Covenant), Jurnal HAM (Human Rights Journal), Vol. 4, pp 22-37
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rights of others. A funding and prosperity approach 1.2 Constitutional foundation for in the effort to fulfil human rights would leave community rights human rights to the mercy of economic conditions. Human rights does not require anything, because a Legal foundation person’s dignity is not dictated by how high or low their economic capacity may be, and this does not • 1945 Indonesian Constitution make them higher or lower than anyone else.
3. To be fulfilled in stages Normative analysis Human rights are interrelated. By saying that human rights will be fulfilled in stages, this signifies our The 1945 Constitution contains several provisions agreement with the mindset that one right must be supporting the protection of the environment and the postponed to make room for another. This approach rights of Indigenous communities, especially since the makes the fulfilment of some rights meaningless four amendments to the Constitution between 1999 to because human rights would no longer be about 2002. One of the missions of the 1945 Constitutional humanity, rather it would be achieved under a set amendments was to reorganise the State’s obligation of required conditions. This means that under this and responsibilities with regards to natural resources approach, human rights has essentially disappeared, and the environment, and respecting the rights of its to be replaced by a set of requirements. people.
4. Domestic context State control and prosperity for the people A reason often repeated ad nauseam is that the The foundation for the relationship between the State government adjusts the international human rights and natural resources and the environment is Article context to the domestic situation. This argument 33 clause (3) UUD 1945 which stipulates that the land, is rather dangerous because it is like an “excuse” water and natural resources contained therein shall or justification to excuse human rights violations, be controlled by the state, and shall be used for the both intentionally and unintentionally by various greatest prosperity of the People. This provision does parties including government agencies. The varied not only reiterate the State’s dominion over natural domestic situation with no clear measurements and resources and the environment but also provides biased opinions of its proponents could be the first justification that the objective of State control is for the imprisonment for human rights before facing the prosperity of the People. real political and social context. The community’s right to fight for their rights These four reasons are often presented by government In order for the community to be able to gain officials in various forums. In the context of the prosperity as intended in Article 33 clause (3) of the protection and recognition of the rights of Indigenous 1945 Constitution, the provisions regarding how communities, the often used reason is the lack of the community may pursue their rights before the funding and fulfilment in stages. Therefore, the main State must also be contained therein.6 the State must challenge in the implementation of human rights guarantee just and equitable treatment for communities conventions in the national context is the lack of fighting for their rights both as individuals and as political support in internalising human rights norms groups.7 Each person should even be enabled and into the national regulations and policies. Another given special treatment in order to have the same challenge is overcoming the bureaucratic perspective of opportunity to achieve equality and justice.8 These viewing human rights as a project. This perspective can various provisions are the bases for the community as be changed through a process of long term education. well as Indigenous communities to defend and fight for their human rights.
6 Article 28C clause (2) Every person shall have the right to improve him/herself in the collective pursuit of their rights for the development of their society, nation and state. 7 Article 28D clause (1) Every person shall have the right to the recognition, guarantee, protection and legal certainty of just laws as well as equal treatment before the law. Also in Article 28E clause (3) Every person shall have the right to the freedom of association, assembly and expression of their opinion. 8 Article 28H clause (2) Every person shall have the right to obtain facilities and special treatment in obtaining equal opportunities and benefits for achieving equality and justice.
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The 1945 Constitution guarantees the respect Opportunities and challenges in implementation afforded to community and Indigenous Peoples rights to property,9 to have a home and to have a good and Despite the existence of various founding provisions healthy environment,10 land, territory and other natural as a basis for the recognition and protection of resources. Each citizen also has personal ownership community rights, including the rights of Indigenous which may not be arbitrarily seized by anyone.11 communities and environmental protection in the 1945 Constitution, implementation is not a simple matter. Recognition of indigenous peoples rights The opportunities as well as challenges faced are: The recognition and respect afforded to the existence Firstly, constitutional norms are the highest form of law and rights of Indigenous communities has a special and is abstract in nature. Therefore, it is positioned as place in the 1945 Constitution. At least two provisions the foundation of all laws and regulations. However, its for the constitutional foundation for the rights of abstract nature renders it flexible to interpretation for Indigenous communities which recognise and respect its implementation. Furthermore, its abstract nature also the existence and traditional rights of Indigenous distances these norms from answering the reality of Peoples units,12 as well as respect for the cultural the concrete situations faced by the communities such identity of traditional communities.13 However, the as land grabbing, destruction of the environment and recognition of the existence and rights of Indigenous various other violations. communities in the 1945 constitution comes with a number of conditions such as: (a) insofar as the Other issues related to the recognition and respect for Indigenous People (masyarakat hukum adat) remain the existence and rights of Indigenous communities are in existence; (b) conforms to the development of the set of requirements which further inhibit the ability society; (c) is in accordance with the principles of the of Indigenous communities to access their traditional Unitary State of the Republic of Indonesia. All other rights as their existence should first be legalised through further issues regarding the existence and the rights the fulfilment of several requirements established by of Indigenous communities are regulated in laws and the State laws. Placing conditions on the recognition regulations. of the existence of Indigenous communities and their traditional rights in the provisions of the constitution Environmental protection creates a cage for all other laws and regulations, forcing There are several provisions which form the basis these to maintain conditional recognition. for the regulation of the environment in the 1945 Constitution. On the one hand are the provisions Secondly, there are other issues regarding arranging which give citizens the right to live in prosperity both constitutional norms into laws and regulations mentally and physically, to have a home and a good especially in the form of Law. Often, the provisions in and healthy environment, and to receive healthcare the Law does not align with the norms and the spirit of services.14 However, on the other hand there are the provisions as stipulated in the 1945 Constitution. the State’s obligations to provide a good and healthy Therefore, many laws are then reviewed and nullified environment which includes economic activities. by the Constitutional Court. This is due to the less than Therefore, the one of the pillars of a democratic satisfactory capacity of the House of Representatives economy as the foundation for the national and the conflict of interest in formulating laws in economy includes the principle of sustainability and alignment with the spirit of the Constitution. environmental awareness.15 Thirdly, the presence of the Constitutional Court as the guardian of the constitution is an opportunity to defend and fight for the rights of the communities and the environment as contained in the constitution. The Constitutional Court is a body which ensures that the laws developed by the government together with the
9 Article 28G clause (1) Every person shall have the right to protect their self, family, honour, dignity and property under their control, and shall have the right to feel secure and be protected from the threat of fear to do, or not to do something which constitutes a human right. 10 Article 28H clause (1) Every person shall have the right to lead a physically and mentally prosperous life, to have a home, and to obtain a proper and healthy living environment as well as to obtain health services. 11 Article 28H clause (4) Every person shall have the right to possess personal property rights and such property rights shall not be taken over arbitrarily by anybody. 12 Article 18B clause 2 The state shall recognise and respect customary law (hukum adat) community units along with their traditional rights insofar as they are still in existence and are in conformity with the development of society and the principle of the Unitary State of the Republic of Indonesia, as regulated by law. 13 Article 28I clause 3 The cultural identity and the rights of traditional communities shall be respected in conformity with the development of time and civilisation. 14 Article 28H clause (1) Every person shall have the right to lead a physically and mentally prosperous life, to have residence, and to obtain a proper and healthy living environment as well as to obtain health services. 15Article 33 clause (4) 1945 Constitution: The national economy shall be organised based on economic democracy with the principles of togetherness, efficiency, with justice, sustainable and environmental perspective, independence, as well as by maintaining balance between progress and unity of the national economy.
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House of Representatives is not in conflict with the on Forestry (Constitutional Court Ruling Putusan MK norms of the constitution. The public is the stakeholder 45), Constitutional Court Ruling Case No. 34/PUU— which has utilised the Constitutional Court the most IX/2011 regarding the boundaries of State dominion compared to corporations and state agencies with over forests in relation to rights to land, in this case of regards to judicial reviews of laws against the 1945 Land Use Title (Hak Guna Usaha) which is designated as Constitution. However, the issue remains that despite forest area in Law No. 41 of 1999 regarding Forestry the many corrections made by the Constitutional Court, (Constitutional Court Ruling Putusan MK 34) and the implementation of the law is not progressing as Constitutional Court Ruling Case No. 35/PUU-X/2012 it should. This is also due to a lack of implementation regarding the constitutionality of customary forests and oversight mechanism for the rulings of the (hutan adat) and the conditional recognition of the Constitutional Court. existence of Indigenous Peoples (masyarakat hukum adat) in the Law No. 41 of 1999 regarding Forestry (Constitutional Court Ruling Putusan MK 35). 1.3 Constitutional court rulings The gazettement of forest area observes community rights List of rulings In the case number 45/PUU-IX/2011 regarding the • Constitutional Court Ruling Case No. 45/PUU- judicial review of Law 41 of 1999 regarding Forestry, IX/2011 regarding the constitutionality of the the Constitutional Court cancelled the phrase definition of forest areas in the Law No. 41 of 1999 “designated and/or” (“ditunjuk dan atau”) in Article 1 pint on Forestry (Constitutional Court Ruling Putusan MK number 3 of the Forestry Law thus the provision now 45), reads “Forest area is a specific area which has been ditunjuk dan atau gazetted by the Government to be • Constitutional Court Ruling Case No. 34/PUU— maintained as a permanent forest.” The consequence IX/2011 regarding the boundaries of State dominion is that an area will only gain its legal status as a forest over forests in relation to rights to land, in this area after the government stipulates the areas as such case of Land Use Title (Hak Guna Usaha) which is in order to retain its status as a permanent forest (hutan designated as forest area in Law No. 41 of 1999 tetap). regarding Forestry (Constitutional Court Ruling Putusan MK 34), The granting of this suit gave new meaning to the forest area. There has been legal ambiguity regarding • Constitutional Court Ruling Case No. 35/ the process for stipulating that a particular area is a PUU-X/2012 regarding the constitutionality of forest area due to the conflict between Article 1 point customary forests (hutan adat) and the conditional number 3 of the Forestry Law which stipulates that the recognition of the existence of Indigenous Peoples designation as well as the stipulation of a forest area (masyarakat hukum adat) in the Law No. 41 of 1999 is the basis for gazetting a forest area and Article 15 regarding Forestry (Constitutional Court Ruling of the Forestry Law which positions the designation Putusan MK 35). (penunjukan) of a forest area as an initial step in the gazettement (pengukuhan) of a forest area. The • Constitutional Court Ruling Case No. 53/PUU- Constitutional Court made a correction by determining VI/2008 regarding the judicial review of the that the correct process of gazetting a forest area constitutionality of Corporate Social Responsibility in follows the process contained in Article 15 which the Law No. 40 of 2007 (Constitutional Court Ruling encompasses four stages which are (a) designation Putusan MK 53). (penunjukan); (b) boundary demarcation (penatabatasan) (c) mapping; and (d) gazetting (penetapan). Therefore all forest areas designated by the Ministry of Forestry Analysis of rulings cannot be considered as legitimate forest areas until the forest areas has been gazetted by the Government. Of these rulings, several are relevant to the issue of forestry tenure reforms which will be discussed in this The Constitution Court Ruling case No. 34/PUU- paper. The three most relevant Constitutional Court IX/2011 which reviewed the Forestry Law, whereby Rulings include: Constitutional Court Ruling Case No. the Constitutional Court reiterated that the process of 45/PUU-IX/2011 regarding the constitutionality of the forest area gazettement must observe the existence definition of forest areas in the Law No. 41 of 1999 and the rights of Indigenous Peoples including the rights of individuals and legal entities. Therefore in gazetting the forest area, the Government is obligated16
16 In this case, the Constitutional Court referred to the Constitutional Court Ruling No. 32/PUUVIII/2010, dated 4 June 2012 to explain the meaning of the word “memperhatikan” (be mindful of, observe ). The Constitutional Court Ruling No. 32/PUUVIII/2010 stated that: “… the word “memperhatikan” in Article 4 clause (3) of the Forestry Law must also be given the imperative connotation of asserting that the Government, in gazetting a forest area, is obligated to include the opinions of the community prior to gazettement as a form of control against the Government in ensuring that the constitutional rights of their citizens regarding mental and physical welfare, having a home and having a good and healthy environment, having personal property and those rights cannot be arbitrarily taken by anyone [Article 28H clause (1) and clause (4) of the 1945 Constitution].”
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to observe and include the opinions of the community The implication is that Indigenous Peoples have the prior to gazetting as a form of control against the authority to govern the zoning, function and utilisation Government. This ensures the fulfilment of the of ulayat land and customary forests in their territory. constitutional rights of citizens to own propertythrough Therefore, the authority of the Ministry of Forestry communal customary rights (hak ulayat) as well as other to govern, determine the function and monitor the rights in accordance with laws and regulations such as distribution of products from the can only be performed Cultivation Rights (Company leasehold on State land if the customary forest has been gazetted. However, for agricultural use - HGU), Building Rights on Land customary forests which have been gazetted based on (Company leasehold on State land for buildings- Hak Head of District Decrees (Surat Keputusan Bupati) such Guna Bangunan/HGB) and Utilisation Right (Hak Guna). as the Merangin Head of District Decree number 287 of 2003 regarding the Gazzettement of the Tapanggang Customary forest is no longer state forest Hill Area as the Guguk Village Indigenous Peoples In case No. 35/PUU-X/2012 regarding the Review Customary Forest can be accepted as a customary of the Forestry Law with AMAN (THE INDIGENOUS forest. ALLIANCE OF THE ARCHIPELAGO), the Indigenous Corporate social responsibility People of Kuntu (Masyarakat Adat Kenegerian Kuntu) and the Indigenous People of Cisitu (Masyarakat Adat Companies working in natural resources are obligated Kasepuhan Cisitu) as its petitioners, raised the issue of to perform Social and Environmental Corporate the constitutionality of the existence of the customary Responsibility (Tanggungjawab Sosial and Lingkungan - forest (hutan adat). The prevailing provision which states TJSL). In case number 53/PUU-VI/2008 regarding the that the customary forest is part of the State forest has review of Law Number 40 of 2007 regarding Limited lead to the denial of the existence of the customary Liability Companies, the petitioners who consisted of forest. Furthermore, the Government has shown a lack businesspeople wished for the Constitutional Court of seriousness in producing operational policies which to nullify the provision concerning TJSL because it would enable the Indigenous Peoples to enjoy their contradicts a similar global concept known as Corporate rights to the customary forest. Social Responsibility (CSR) which is ethical, moral and voluntary in nature.17 The petitioners initially postulated that the customary forest should be made into a special category, separate The Constitutional Court rejected the petitioners’ from State Forest and Rights Forest (Hutan Hak). request and explained that TJSL is a State policy which However the Constitutional Court had a different is a matter of mutual cooperation between the State, opinion from the construction of the Forestry Law business practitioners, the companies and the public. and also from the petitioners’ wishes. In essence, TJSL is an affirmative regulation which according to the through this ruling, the Constitutional Court excised natural law argument does not just demand compliance, customary forest from State forest, yet did not but also cooperation between stakeholders. The categorise customary forest as a separate category and Constitutional Court is of the opinion that TJSL as a differentiating it from rights forest, but rather included norm becoming a legal obligation, is a legal policy which the existence of the customary forest as one of the forms laws and regulation. This legal policy is based on types of rights forest. Therefore, in addition to rights damaged social and environmental conditions which is forest being forests which are on land belonging to detrimental to the community and to the environment. individuals/legal entities, rights forests also include Furthermore, the moral and ethical relationship with forest on Indigenous People’s territory. the law is gradual whereby the law is a formalisation or legalisation of moral values. In this relationship, the Land rights holder is the forest rights holder moral and ethical norms which have been accepted voluntarily and are considered to be important may be In the Case No. 35/PUU-X/2012 Ruling, the gradually changed into law or regulations thus more Constitutional Court stated that the land rights holder binding as an obligatory norm. is also the forest rights holder. This can be understood to mean that in addition to holding the rights to the The Constitutional Court is of the opinion that TJSL communal customary land (tanah ulayat), the Indigenous conforms to the Indonesian economic system which Peoples (masyarakat hukum adat) also hold the rights is stipulated in Article 33 of the 1945 Constitution to the customary forest. Individual/legal entity land UUD 1945 as an economic system organised based rights holders also hold the rights to the Rights Forest. on economic democracy with the principles of Therefore, the existence of customary forests must togetherness, efficiency with justice, sustainable and be preceded by ulayat land from Indigenous Peoples environmental perspective, independence, as well as because customary forests exist on ulayat land.
17 The provisions which the petitioner requested should be nullified by the Constitutional Court included: Article 74 clause (1), clause (2) and clause (3) UU No. 40 of 2007 regarding Limited Liability corporation and its explanation regarding the obligations of corporations conducting their business activities in the field of and/or related to natural resources to conduct social and environmental corporate responsibility activities using corporate funds. Article 74 clause (3) of Law 40 of 2007 regulates the sanctions for corporations who do not perform their social and environmental responsibilities (TJSL).
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by maintaining balance between progress and unity Government must take into consideration (seek the of the national economy. As an economy arranged on consent of) the community. The Constitutional Court the basis on the principles of family, the Indonesian did more than position the existence and rights of the economic system is not an individual liberal economic community as an accessory to forest management. system. The earth/soil, water and riches contained The Constitutional Court asserted that the customary therein is for the prosperity of the People, therefore forest is a special category which must be separated the State has full control of the earth, water and natural from State forest, in order for Indigenous communities wealth not just having the authority to merely impose to enjoy their constitutional rights as guaranteed by the and gather taxes but also must be given the authority Constitution. to govern the corporate sector in caring for the environment. Subsequent to the issuance of Constitutional Court Ruling Putusan MK45 and Constitutional Court Ruling Putusan MK35, the Government accelerated the Opportunities and challenges in implementation gazettement of forest areas, achieving almost 60% compared to the previous 11% prior to the rulings. The Constitutional Court has played a key role in However, there is no transparent control mechanism efforts towards forest tenure reform and correcting to guide the forest area gazettement as intended in natural resources management in the broader sense. the Constitutional Court Ruling. Furthermore, there There are several notes regarding the opportunities are also challenges in demonstrating the existence of and challenges with regards to the Constitutional Court Indigenous Peoples, which must be proven through a Rulings such as: Local Government Regulation (Peraturan Daerah).
Firstly, limiting State domination was the most Thirdly, the government has not been taking active important element in the framework of realising the rule measures to respond to the Constitutional Court (MK) of law in Indonesia. Through the Constitutional Court Rulings. On the contrary, several policies designed to Ruling Putusan MK45, the Constitutional Court wished respond to the Constitutional Court rulings deviated to end the authoritarian practices of the government from the spirit of the MK rulings. For example, the by having designation (penunjukan) as the basis for Government in cooperation with the House of determining the definitive forest area. Through this Representatives (DPR) issued the Law number 18 of decision, the Constitutional Court returned the position 2013 regarding the Prevention and Eradication of of designation as the initial stage of the gazettement Forest Destruction (UU P3H). This law revived the process of forest areas as intended by Article 15 of norms nullified by the MK, thus a forest area recently the Forestry Law. However, thus far none of these designated as a forest area can become the legal practices have been conducted differently by the basis for a definitive forest area18. Similar deviations Ministry of Environment and Forestry in conducting can also exist in the Minister of Forestry Regulation the gazetting process of forest areas. Furthermore, due Permenhut No. P.62/Menhut-II/2013 whereby any to the prospective nature or the fact that this ruling is proven customary areas as well as customary forests effective for future processes, the ruling is powerless in which have been gazetted through a Local Government correcting administrative and arbitrary decisions from Regulation will be excised from the forest area whereas the past. the Constitutional Court Ruling Putusan MK35 does not stipulate for the customary forest to be excised from Secondly, the Constitutional Court plays a key role as the forest area, only from state forests. the protector of constitutional rights by prioritising the existence and rights of Indigenous communities (masyarakat adat) as well as individual rights in the gazettement of forest areas and in the broader scope of forest management. The Constitutional Court has made prioritising the rights of citizens a main principle, therefore the government must take into consideration more than just Spatial Plans. The existence of community rights which have been held from one generation to the next must also be considered in the designation of forest areas. The same holds for further gazettement of forest areas, where the existence and rights of Indigenous communities are discovered, the
18 See Article 6 clause (1) letter d of Law No. 18 of 2013 which states: “the map displaying the forest area and.or the geographic coordinates as the legal basis for the forest boundaries”.
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1.4 Agrarian affairs to avoid over-dominance in land tenure, maximum and minimum thresholds in land tenure are also regulated,23 Legal foundation as well as endeavours to prevent private sector dominance in land tenure.24 UUPA also regulates the • Law No. 5 of 1960 regarding Basic Agrarian Law role of the State, which is central in governing land (UUPA) ownership such that land is optimised for the prosperity of the People, both individually and cooperatively • Law No. 41 of 2009 regarding Sustainable Food Crop (gotong-royong i.e. a principle of mutual cooperation for Agriculture Land the greater good).25
• Law No. 19 of 2013 regarding Empowerment and In addition to providing limitations against monopolies Protection of Farmers and concentrated land tenure, UUPA also provides regulations for community empowerment to foster • Government Regulation PP No. 16 of 2004 regarding active participation as actors in the agrarian enterprises Land Use in the form of cooperatives as well as other forms of mutual cooperation.26 This pro-People orientation is • Minister of Agrarian Affairs/Head of National Land also apparent in the provision of social security for Agency No. 5 of 1999 regarding Guidelines for enterprises as well as labour. Resolving Communal Customary (Ulayat) Land Issues Recognition of ulayat rights and customary law • Joint Ministerial Regulations 2014 (hukum adat) More specifically, the UUPA provides recognition and Normative analysis protection for the right Indigenous communities to land known as ulayat rights. Ulayat rights may occur Agrarian Law provides the foundation for the protection through the State’s recognition of Indigenous Peoples of community rights and the environment. Several (masyarakat hukum adat) to land which has existed 27 provisions in the UUPA contain the basic stipulations on for a long time or by delegation of the State’s rights 28 environmental protection, although they do not directly to be implemented by the Indigenous Peoples. refer to high carbon stock (HCS). The existence of ulayat rights is limited by several requirements such as: (a) the Indigenous Peoples are Equity in land allocation still in existence; (b) is not contrary to national and State interests; (c) must be based on national unity; UUPA provides the foundation stipulating that land and (d) must not contradict higher levels of laws and tenure (penguasaan) and land ownership (kepemilikan) regulations. must adhere to the aspects of justice and benefits of 19 the land, because all land has a social function. This is UUPA also recognises the existence of customary intended to foster equitable access amongst men and law as a foundation for national agrarian affairs’ legal 20 women , as well as between economic groups that are development.29 Similar to the limitation on ulayat rights, 21 strong and weak . In principle, each land right holder, the enforceability/validity of customary law in the whether as individuals or corporations, must actively agrarian field is also limited by the same requirements utilise the land self-sufficiently, and prevent acts of such as: (a) is not contradictory to national and State labour exploitation in utilisation of the land.22 In order
19Article 6 All land rights have a social function. 20 Article 9 clause (2) Every Indonesian citizen, both men and women, has an equal opportunity to acquire a land right and to obtain the benefits and yields thereof for themselves or for their family. 21 Article 11 clause (2) Differences in social conditions and the legal needs of groups in society shall, wherever necessary, be taken into account by providing guaranteed protection for the interests of the economically weaker groups, provided that this is not contrary to the national interest. 22 Article 10 clause (1) Every individual and legal entity which holds a right to agricultural land is in principle obliged to actively till the land or work on it themselves while avoiding any methods of human exploitation. 23 Article 17 clause (1) In view of the provisions contained in Article 7, the objective referred to in paragraph 3 of Article 2 shall be achieved by regulating the maximum and/or minimum limits on the area of land which can be held by a family or a legal entities under one of the rights mentioned in Article 16. Also refer to Article 11 clause (1) Legal relationships between people, including bodies corporate, and the earth, water, and airspace and the authorities derived from these legal relationships are to be regulated so as to achieve the purpose referred to in paragraph (3) of Article 2 and that excessive control of other people’s lives and occupations is prevented. Furthermore, refer to Article 7 which stipulates that ‘To prevent the public interest from being harmed, excessive land ownership and possession is forbidden’. 24 Article 13 clause (2) The Government shall prevent any enterprises of private-monopolistic nature by organisations and individuals in the area of agrarian affairs. 25 Opinion section of the UUPA 26 Article 12 clause (1) All joint enterprises in the area of agrarian affairs are to be based on the common interest within the framework of the national interest and are to be undertaken in the form of cooperatives or other methods of gotong royong (mutual cooperation). 27 Article 3 In view of the provisions contained in Articles 1 and 2, the implementation of the ulayat rights and other similar rights of adat-law communities --as long as such communities in reality still exist-- must be such that it is consistent with the national interest and the State’s interest and shall not contradict the laws and regulations of higher levels. 28 Article 2 clause (4) The authority to implement the State’s right of control referred to above can be delegated, as required, and provided that it is not contrary to the national interest, to Autonomous Regions and to adat-law communities by way of a Government Regulation. 29Article 5 The agrarian law applicable to the earth, water, and airspace is adat provided that it is not contrary to the national interest and the interest of the State, which are based on national unity, to Indonesian socialism, to the provisions stipulated in this Act, nor to other legislation, all with due regard to elements which are based on religious law.
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interests, (b) is based on national unity, (c) is not This permit is granted in the form of allowing access to contradictory to socialism in Indonesia; (d) does not farmers as well as controlling the sustainability of food contravene laws and regulations; and (e) adheres to crops agricultural land. elements which come from religious laws.
Environmental protection Opportunities and challenges in implementation The provision on environmental protection in the UUPA Agrarian laws and regulations provide a strong obligates each land rights holder to maintain the fertility foundation for the recognition of land rights which of the soil ad prevent damages from occurring to the indirectly also supports protection for the environment. soil in their possession.30 Furthermore, Government The provision of a strong legal foundation for Regulation No. 16 of 2004 regarding Land Use details community rights and the rights of indigenous the aspect of land protection. Land use is performed communities in UUPA is also enabling the efforts based on the district/municipality spatial planning.31 towards the protection of carbon stocks. However, Land use, in general, is divided into two areas which are there are challenges in leveraging these opportunities protected areas and cultivation areas. The utilisation as follows: and usage of protected areas must not disrupt natural services, must not change natural landscapes and Firstly, UUPA which should be a foundation for the natural ecosystems.32 Meanwhile, cultivation areas establishment of sectoral laws in agrarian affairs is not must not be neglected, and must be maintained and being referred to in the formation of sectoral laws. protected against damage.33 This has lead to sectoralism in the management natural resources. The existence of various sectoral laws Whereas in the utilisation and usage of small islands has caused a lack of integration in land and natural and plots of land on the coastal, lake, reservoir buffer resources management, such as the dualism in land zones and/or river embankments, attention must be administration with the promulgation of the Forestry paid to public interest, limitations in environmental Law (Law No. 5 of 1967 replaced by Law No. 41 of carrying capacity, sustainable development, the 1999) as well as not all enterprises involving land being relationship between the ecosystem, bio-diversity and obligated to have the right to land as with Law No. conservation of environmental functions.34 39 of 2014 in conjunction with Law No. 18 of 2004 regarding Plantations. There are also sectoral laws In addition to the UUPA and its implementation which undermine the rights of Indigenous communities regulations, other relevant provisions for environmental to land because FPIC principles were not adopted in the protection and the access for the community are usage of community land. This sectoralism is a challenge present in Law No. 41 of 2009 regarding Sustainable in taking integrated measures to recognise Indigenous Food Crop Agriculture Land and Law No. 19 of 2013 Peoples rights and protecting the environment. regarding Farmer Empowerment and Protection. These two laws determined that sustainable food crop agricultural land must not be converted for other purposes other than agricultural land such as housing and other amenities.35 This is a crucial step in protecting the availability of agricultural land and the environment. These laws provide a scheme for farmer access in the form of business permits, management permits or usage permits.36 These permits are granted to every person who has had land tenure for five years with the proper intentions in conducting agricultural activities.
30 Article 15 It is the duty of every individual, corporate body, or institution which has a legal relationship with land to take care of the land, to improve its fertility, and to prevent it from damage by taking into consideration the interests of the economically weak. 31 Article 4 clause (3) PP No. 16 of 2004 on Land Use: Land use as referred to in clause (1) is performed based on District/Municipality Spatial Plans. Also refer to Article 13 clause (1) which states: The utilisation and usage of land in protected or cultivation areas must accord with the area functions in the Regional Spatial Plans. 32 Article 13 clause (2) states: The utilisation and usage of land in protected areas such as referred to in clause (1) must not disrupt the natural functions, natural landscapes and ecosystem. 33 Article 13 clause (2) states: The utilisation of land in cultivation areas as referred to in clause (1) must not be neglected, must be maintained and protected against damage. 34 See Article 15 PP No. 16 of 2004 regarding Land Use. 35 Article 63 clause (1) the Law on the Empowerment and Protection of Farmers: Farmers are forbidden from converting the function of agricultural land obtained as referred to in Article 58 clause (3) into non-Agriculture land. Article 63 clause (2) Farmers are forbidden from converting Agricultural Land as referred to in Article 58 clause (3) to other parties as a whole or in parts except with the permission of the Government or Local Government. 36 Article 59 UU the Law on the Empowerment and Protection of Farmers: Facilities are provided for Farmers to obtain Agricultural Land as referred to in Article 58 clause (3) point a, provided in the form of rental rights, enterprise rights, management rights or utilisation rights.
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Table 1.3: Dualism of UUPA (Basic Agrarian Law) and Sectoral Law.
No Laws Remarks
Causing dualism in land administration. UUPA became invalid to 1 UU No. 41 of 1999 regarding Forestry forest areas.
Does not regulate FPIC if community land is to be developed as an 2 UU No. 22 of 2001 regarding Oil and Gas oil and gas activity area.
UU No. 4 of 2009 regarding Mineral and Coal Does not regulate FPIC if community land is to be developed as a 3 Mining mining area. Allows plantation companies to utilise land for plantation 4 UU No. 39 of 2014 regarding Plantations estates without rights to the land.
Secondly, the lack of effective implementation in carbon stocks. The main issue is due to the provision land monitoring and maintenance by state agencies regarding conditional recognition as stipulated by responsible for agrarian affairs. Agrarian issues are UUPA. Furthermore, the operational regulations in currently being managed by the Agrarian Ministry/ the Agrarian Ministerial Regulation No. 5 of 1999 National Land Agency. However, this agency is still regarding Guidelines for Resolving Ulayat Land Issues is bound by the characteristics of the National Land insufficient because ulayat rights cannot be recognised Agency which played a more substantial role in land if there are other Government awarded rights upon that administration rather than the allocation and protection land. of land as well as controlling the equitable allocation of land despite the fact that BPN has been established Fourthly, the lack of an operational mechanism for since the New Order era to implement the four pillars allowing community access for managing sustainable of orderly land administration which includes law and food crops agricultural lands within a scheme of order, orderly administration, orderly utilisation and enterprise permits, management permits or utilisation orderly maintenance and environment. permits. The Farmer Empowerment and Protection Law creates a new access scheme in the form of permits The proper administration of land is related to the issued to farmers who have had tenure and have social function principle of land, the alignment utilised land for 5 years. A clear designated government between development planning and land use planning. agency responsible for issuing these permits is also Meanwhile, the orderliness in maintenance and the lacking, whether it is the Agrarian and Spatial Planning environment with regards to preventing damage to Ministry/National Land Agency, Ministry of Agriculture land due to landslides, flooding or loss of soil fertility, or the Local Government. the imbalance in population growth and land use as well as the pollution occurring due to large industries. Therefore lack of organisational capacity is one of the challenges as it is the foundation for proper usage of land.
Thirdly, the regulations on customary territories is still inadequate for allowing easy access to land and natural resources for Indigenous communities. Although UUPA has provided the basis for recognition of Indigenous Peoples’ ulayat rights, this is insufficient for expanding the recognition of the existence of ulayat rights and the involvement of the community in protecting
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1.5 Land administration This SKT/SPT can subsequently be used to arrange for evidence of land ownership rights in the form of Land Legal foundation Ownership Title (Sertifikat Hak Milik - SHM).37
• Law Number 2 of 2012 regarding Procurement of The communities can also claim communal rights Land for Public Interest Developments beyond the forest area by utilising the Agrarian Ministerial Decree scheme No 5 of 1999. According • Government Regulation No. 24 of 1997 to this provision, Indigenous communities can submit a claim for ulayat land rights beyond the forest area. • PP No. 40 of 1996 regarding HGU, HGB and HP An expert team is established to verify the Indigenous Peoples’ claim and to provide the Local Government • Government Regulation No.13 of 2010 regarding with their recommendation. If the presence of the Types and Tarriffs on Non-Tax State Revenue Indigenous Peoples is supported by evidence, the Local Applicable to the National Land Agency Government issues a Local Government Regulation to recognise the Indigenous Peoples. • Agrarian Ministerial Regulation No. 3 of 1997 regarding Provisions for the Implementation of After the Constitutional Court Ruling Government Regulation No 24 of 1997 MK 35/PUU-X/2012, people can claim land in the forest area. The Government has established several • Head of National Land Agency Regulation No. 1 operational regulations for MK 35 such as the 4 of 2010 regarding Standards of Services and Land Ministers’ Joint Regulation38 of 2014. Based on this Administration Regulation, the Local Government forms an IP4T team (Inventory, Tenure, Ownership, Usage and Utilisation • Head of National Land Agency Regulation No. 6 of of Land). This team consists of representatives from 2013 regarding Public Information Services within six government institutions which are the Head of the the Republic of Indonesia National Land Agency Regional Office/Land Administration Office, Forestry Office, Centre for Forest Area Management (BPKH), • Agrarian Ministerial Regulation No. 5 of 1999 Regional Development Planning Agency (Bappeda) or regarding the Guidelines for the Resolution of those responsible for coordinating spatial planning, Indigenous Peoples Ulayat Rights Issues the Head of the Sub-District and the Urban Village/ Village Chief. Their task is to record individual claims, perform verification, collect data including maps and Normative analysis give their recommendations to the District/Municipality BPN regarding that claim. The individual submitting Provisions regarding right to land their claim must possess evidence as stipulated in the One of the indicators of the strength of tenure from Agrarian Minister/Head of BPN Regulation No. 3/1997. an administrative perspective is formal recognition If there is no written evidence, the petitioner may ask of rights. The key requirement to the formalisation of two neighbours who are not family members to provide rights is sufficient formal evidence such as letters and testimony. The claim will be reported by the Province documents. However, land administration provisions as well as District/Municipality BPN to the Forestry allow greater space for protection of Indigenous Ministry. Subsequently, the Ministry of Forestry issues communities who rarely possess written evidence a Boundary Decree which can become the legal of tenure (penguasaan) through land registration foundation for the petitioner to apply for a land title. regulations which recognise rights holders with no written evidence. Land owners wishing to register their With regards to collective land or ulayat the stages land for the first time who have no written evidence are somewhat different. Communal claims will be may use non-document evidence. This may be in the recognised in the form of Local Government Regulation. form of testimonials from neighbouring land owners If the territory is a forest area, after recognition the and proof of tenure spanning more than 20 years Local Government would propose the release of the such as existence of physical structures (permanent/ forest area to the Forestry Ministry. non-permanent, ditches, bridges, plants etc). These unwritten proofs may be used to obtain a Land transfer letter issued by village head (Surat Keterangan Tanah - SKT) or atau Land Ownership Letter Surat( Pernyataan Pemilikan Tanah - SPT) from the Urban Village/Village.
37 Article 24 t PP No. 24 of 1997 38 Forestry Ministry, National Land Agency, Ministry of Home Affairs and the Ministry of Public Works
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The other requirement is the cost. The initial Government Regulation PP 40 of 1996 also reiterates registration cost is approximately 2 percent of the land several HGU holder responsibilities related to the value. The transfer of land ownership is set at 1 percent environment as follows: of the land value.39 However, the cost of the verification of rights in the forest area evidence as processed by the • Develop and maintain environmental facilities and IP4T team is borne by the State. land facilities within the Concession area (HGU);
If the customary land is needed for public interest, the • Maintain soil fertility, prevent damage to natural Indigenous community is entitled to compensation. resources and conserve the carrying capacity of the The explanation of Law Number 2 of 2012 regarding environment according to the prevailing laws and the party entitled to compensation states that regulations; compensation for ulayat land rights is provided in the form of land, resettlement or another form as agreed • Submit a written annual report regarding utilisation with the associated Indigenous Peoples.40 of the Concession (HGU) to the Land Administration Office or local office in accordance with their Environmental protection respective authority. To prevent excessive control of land which damages the environment, agrarian provisions limits the size Opportunities and challenges in implementation of land titles. The Law No. 5 of 1960 (Basic Agrarian Law/BAL - UUPA) limits ownership and tenure of Institutional opportunities and challenges land, therefore the Law UU No. 56 of 1960 regarding Establishing the Size of Agricultural Land. Based on this BPN and currently, the Agrarian and Spatial Planning Law, an individual or family may only have a maximum Ministry have a vertical organisation structure which of 20 hectares whether rice paddies or dry land. The reaches the sub-national levels. Thus their control of maximum approved size extension is 5 hectares under land administration policy implementation is more very special regional conditions. The Law No. 56 of coordinated from the central to regional government. 1960 stipulates the maximum land ownership by taking As a central government official in the regions, the into account the population, area size and other factors District/Municipal BPN official refers to the laws and as shown in Table 1.4 as follows: regulations issued by the Head of BPN. This poses a unique challenge as land issues are not the same in the different regions. The dynamics of land administration Table 1.4: Area of land allowed by BAL. at the sub-national level requires a more robust legal scenario which is able to respond to the challenges on Population Rice Paddies Dry Lands the ground. For example, in the context of communal Density (Hectares) (Hectares) rights, BPN lacks an institutional model for registration of communal land. As a consequence, BPN is unable Not dense 15,0 20,0 to recognise and register communal land. There is Dense currently only one example of the registration of Less dense 10,0 12,0 recognition of communal land at BPN, which is the Baduy people’s land case in Lebak Banten. Relatively dense 7,5 9,0 Very dense 5,0 6,0 BPN will be playing a more decisive role in the registration of individual land in forest areas. The 4 Ministerial Joint Regulation grants BPN the An individual or family with more than the 20 hectare authority to coordinate the land rights in forest limit must report to BPN. The transfer of land areas’ claim processes. This new opportunity must ownership must be approved by the local BPN and be institutionalised by BPN in their current structure must not exceed 20 hectares. If there are criminal acts to eliminate any hesitations to enter the forest area, involved in the transfer, by the provisions in Article 10 as was the case previously. In the future, registration clause (3) and (4) UU No. 56 of 1960, the transfer is of rights to land in forest areas can be immediately void by law. The sanction is that the land then belongs coordinated with the Forestry institution. to the State.
39 Government Regulation PP No.13 of 2010regarding the Types and Tariffs for Non-Tax State Revenue Applicable to the National land Agency and Head of BPN Regulation No. 1 of 2010 regarding Service Standards and Land Administration 40 Article 40 Law Number 2 of 2012
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The challenge is that the BPN-developed system is not Another challenge in legal framework is related to fully compatible with the customary (adat) system as development in the name of public interest. The recognised by the Law on Local Governments as well Law number 2 of 2012 does not recognise rejection as the Village Law. In several cases of land registration, or compensation. Parties who do not agree to the BPN only received a statement letter regarding the compensation amount must still relinquish their land. land signed by the Village/Urban Village Chief. There BPN would place the compensation in the hands of were not statements from the customary institutions. the local court. Afterwards the land is automatically In a Central Kalimantan case, BPN did not consider transferred to the Government and the development the Customary Land Transfer letter (Surat Keterangan in the name of public interest is immediately Tanah Adat or SKT-A) as the correct formal procedure implemented.41 for the basis of increasing the land status to becoming titled (certification indicating ownership). According to Environmental protection opportunities and challenges the Head of BPN Circular Memo No. 9/SE/VI/2013 The relationship between the administration of regarding the Formerly Customary Owned Land Letter, rights and environmental responsibilities is not much the SKT-A cannot be used as a basis for obtaining regulated. Monitoring of HGU operations only involves a Land Title because BPN only accepts information neglected land, work plans and concession limits. There regarding land as signed by the Village/Urban Village are no obligations for HGU holders to maintain HCVs. Chief and not by Damang or Mantir. The BPN template There is no incentive provided either. In fact, HGU only allows Village/Urban Village chiefs to sign the holders who do not clear HCVs are given a disincentive letters, not customary leaders. in the form of tax payment equal to the entire concession size. Meanwhile, information regarding land Opportunities and challenges in protecting and realising rights is not readily disclosed to the public. According to rights to land the Head of BPN Regulation No. 6 of 2013, information The recognition of rights to land is a new breakthrough regarding the land log (buku tanah), location and subsequent to the Constitutional Court Ruling MK measurement document (surat ukur) a is categorised 35 of 2015. This breakthrough unfortunately still as confidential information i.e. must not be disclosed positions BPN as a passive institution which awaits the to the public. Therefore it is difficult to determine and community’s claims in areas which remain categorised demand public accountability from the HGU holder as forest areas. The potential conflict in claiming which damages the environment in their operations. rights will occur if particular Indigenous communities/ individuals submit their claims while at the same time another legal entity also submits a request for their rights. BPN should be playing an active role to prevent 1.6 Spatial planning claims which places the weak and the strong against each other. Legal foundation:
The reality is, despite having recognition and • Law Number 26 of 2007 regarding Spatial Planning procedures for fulfilling rights in the forest area, both individual and communal, the conflict for tenure • Government Regulation PP No. 26 of 2008 regarding security will not diminish in the future. Many forest National Spatial Planning areas have been divided into plots in the form of concession recommendations, active permission or • Government Regulation PP No. 15 of 2010 regarding particular types of rights. There are no scenarios Implementation of Spatial Planning offered by the law should conflicting claims occur or areas in an area based on two or more conflicting • Government Regulation PP No. 68 of 2010 regarding laws. For example, the Indigenous communities use the Forms and Procedures for Public Engagement in Constitutional Court Ruling MK 35 and the Joint Spatial Planning regulations as their legal foundation. Meanwhile, on the other hand, the companies use the Mining or Plantation Laws as their legal basis.
41 Article 42 Law Number 2 of 2012
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Normative analysis development in order to produce staple foodstuffs for national food independence, resilience and Spatial planning and community rights to land and sovereignty. The community may propose the land territories for mutual consideration and deliberations with the Village, Sub-District and District/Municipality Spatial planning provisions regulate the recognition governments.45 of community rights to land, benefits of spatial planning and the public involvement in spatial planing. Spatial planning provisions also strengthen the Participation is not directly related to land rights but zoning system in the forest areas even with stricter rather determining spatial allocation which directly administration. In the protected forest areas impacts on land rights. for example, cultivation activities on fixed sized areas are allowed for the native residents without Land rights diminishing the protection function of the area and The delivery of spatial planning by the Government under strict supervision. For peatland areas, zoning and Local Government is implemented whilst does not mention cultivation activities by native respecting the people’s rights according to the residents at all. Regulation of conservation areas provisions of laws and regulations.42 Any reviews such as nature reserves, wildlife reserves and nature of spatial planning produces a recommendation parks have clear designations only for research, which is used to revise the spatial plans, and is education and tourism. Traditional zones are not implemented whilst respecting all rights afforded to recognised at all in these areas. 46 individuals according to the provision of laws and regulations.43 National strategic areas and rural areas do not explicitly recognise the rights of Indigenous With regards to customary rights as well as other Peoples to land and territories. However, both traditional rights, the provisions of spatial planning include conservation and development areas defines a spatial category known as national and agricultural lands in perpetuity which can strategic areas and rural areas. National strategic be considered as the territories and lands where areas is divided into six categories from a social and Indigenous communities stay and live. cultural interest perspective, which are: (a) venue for conservation and development of customary Right to spatial utilisation traditions or national culture; (b) prioritised for Spatial planning provisions reiterate the right of the enhancing social and cultural quality and every person to enjoy the added value of space national identity; (c) protection and conservation as the outcome of spatial planning. Spatial added of national or international assets; (d) protected value can be from an economic, socio-cultural and national heritage; (e) protection of cultural diversity; environmental perspective which can be in the form or (f) potentially vulnerable to national scale of direct impact on the community’s economic, social conflict.44 Meanwhile there are six targets socio-cultural and environmental situation.47 for the rural areas which are: (a) rural community empowerment; (b) maintaining the quality of Right to participation the local environment and the area it supports; (c) conserving natural resources; (d) conserving The public has the right to participate in the three local cultural heritage; (e) maintaining food crop key stages in spatial planning which is the planning agricultural land area in perpetuity for food stage, utilisation and control of spatial plans.48 resilience; and (f) maintaining the balance between rural-urban development. Further provisions There are two forms of public participation in regarding the protection of food crop agricultural spatial planning: (a) input regarding: preparations land area in perpetuity is regulated by Law Number for spatial planning; determination of direction of 41 of 2009. This Law stipulated that sustainable territory or area development; identification of food crop agriculture land is a plot of agricultural the potential and issues in the territory or areas’ land gazetted for protection and consistent development; formulation of the spatial planning concept; and/or e/establishment of spatial plans; and (b) cooperating with the Government, local government and/or with other elements in society on spatial planning.49
42 Article 7 clause 3 Law Number 26 of 2007 43 Article 16 clause 3 Law Number 26of 2007 and Article 87 clause 3 PP 15 of 2010 44 Article 78 PP 26 of 2008 and Article 49 PP 15 of 2010 45 Article 48 clause 1 and 2 Law 26 of 2007 46 Article 99, 100 and 101 PP 26 of 2008 47 Article 60 Law Number 26 of 2007 48Article 1 point 9, Article 6, Article 8 and Article 9 PP 68 of 2010 49 Article 6 PP 68 of 2010
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Public participation in spatial utilisation may be in Conservation regime the form of: (a) input for spatial utilisation policy; Conservation provisions in spatial planning (b) cooperating with the Government, Local follows the provisions in conservation law. In Government and/or other elements in society the regulations for nature reserves and marine regarding spatial utilisation; (c) spatial utilisation parks zoning, spatial planning provisions define: activities according to local wisdom and established (a) limitations in natural resources utilisation spatial plans; (d) increasing efficiency, effectiveness activities; (b) provisions prohibiting activities which and alignment in utilisation of land space, marine may diminish the carrying capacity and support space, air space and within the Earth while capacity of the environment; and (c) provisions observing local wisdom and provisions of prevailing for prohibiting activities which may change the laws and regulations; (e) activities which maintain landscape and the ecosystem.53 environmental defence and security as well as increasing the conservation of natural resources In zoning regulations for wildlife reserves, marine and environmental functions; and (f) investment biota reserves, nature parks and marine parks, the activities in spatial utilisation in accordance with the spatial planning provisions define the focus issues provisions of prevailing laws and regulations.50 such as utilisation of the area only for research, education and eco-tourism and prohibiting Public participation in spatial planning control may activities other than these.54 be in the form of: (a) input regarding the direction and/or zoning regulations, permits, provision of The zoning regulations for national parks and incentives and disincentives as well as enforcement national marine parks exactly follows the Law of sanctions; (b) participation in monitoring and Number 5 of 1990 which are: (a) utilisation of supervision of implementation of established spatial the space for eco-tourism without changing the planning; (c) reporting to the authorised agencies landscape; (b) utilisation of the space for cultivation and/or officials responsible for spatial utilisation is only allowed for natives in the buffer zones and activities in violation of the established spatial with a fixed area, does not diminish the protective plans; and (e) filing grievances regarding authorised function of the area and under strict supervision; officials’ decisions which are deemed to contravene (c) the provisions prohibiting cultivation activities spatial plans.51 in the core zones; and (d) provisions prohibiting cultivation activities which may potentially reduce Spatial plans and environmental protection plant coverage or coral reefs in the buffer zones.55 Spatial planning provisions do not specifically regulate carbon stock protection. However, applying pressure to Integration of strategic environmental assessment several aspects of the environment is a pre-requirement In spatial planning, whether national, provincial to guarantee the sustainability of carbon stocks. These or in the Districts/Municipalities, there are aspects are included in the regime for strengthening several stages to be undertaken such as the data national parks, nature reserves and so on, the processing and analysis stage and the formulating methods for planning and controlling spatial planning the concept for the spatial plans. In at least two of which is oriented towards a strategic environmental these stages, spatial planning must include strategic assessment, permit and sanction instruments. These environmental assessment as a foundation for four issues have been regulated in a more detailed determining the pattern of spatial planning i.e. the manner in environment, conservation and forestry distribution of spatial allocations in an area which law. Its integration in spatial planning is part of the includes both protective and cultivation functions.56 Government’s efforts towards controlling spatial planning to maintain its objectives and the foundation for spatial planning delivery.52
50 Article 8 PP 68 of 2010 51 Article 9 PP 68 of 2010 52Article 3 Law Number 26 of 2007 53 Article 101 clause 1 PP No 26 of 2008 54 Article 101 clause 2 PP No 26 of 2008 55 Article 101 clause 4 PP No 26 of 2008 56 Article 25, 27, 32, and 35 in the Law Number 26 of 2007
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Spatial utilisation permits On the other hand, spatial plans potentially place one-sided limits on customary rights and traditional In order to prevent spatial planning above the rights to land and territories. This is apparent in threshold, spatial planning law introduced a control spatial planning for conservation. Spatial planning instrument known as spatial utilisation permit. Each completely “rewrote” the concept of conservation person intending to utilise space must have a spatial space in the Law Number 5 of 1990 which has utilisation permit and must fulfil every provision been the bane of customary rights and local rights. of the permit in implementing spatial utilisation. 57 The provisions for spatial planning especially in In this case, spatial utilisation permits are granted Government Regulation PP 26 of 2008 has an even in order to achieve the following: (a) to guarantee stronger concept for the limitation and exceptions that spatial planning is in accordance with spatial for Indigenous communities rights compared to the plans, zoning regulations and minimum standards implementation regulations for the conservation of services in spatial planning; (b) to prevent the regime regulation. One of the operational negative impacts of spatial utilisation and (c) to regulations for conservation is the Ministry of protect the interest of the public and the broader Forestry Regulation No 56 of 2006 regarding population. the Guidelines for National Parks Zoning. This regulation still allows the community to conduct Sanctions spatial utilisation activities in the traditional zones Violations of the spatial utilisation permit will and special zones in the National Park. This differs lead to an administrative sanction which is the from spatial planning provisions which only allows revocation of the permit. Spatial planning provisions cultivation for native residents in the buffer zone. define three categories of violations which lead This possibly positive limitation is to guarantee to the revocation of permits, which are: (a) Spatial the increase in carbon stocks. However, at the utilisation permits which are not aligned with the same time, this may in fact threaten the rights of area’s spatial plans are nullified by the Government Indigenous communities which have utilised this and the Local Government according to their space for generations. respective authority by the provisions of laws and regulations, (b) Spatial utilisation permits which are Opportunities and challenges in implementation obtained and/or issued using incorrect procedures According to Dardak (2006), the legal and empirical are nullified by law. This means, those permits are issues in spatial planning is related to boundaries automatically void. (c) Spatial planning permits and jurisdiction, a question of who is doing what, obtained through correct procedures but are and it is related to the conflict between authorities, subsequently proven to be contrary to the area’s the question of authority over the land which is the spatial plans are nullified by the Government and relationship between the authority which administers the Local Government according to their authority.58 the land and those with the authority to submit the Furthermore, criminal sanctions will be applied to area for development, planning framework related to perpetrators if the violations impact on changes the obligation to follow procedure - specifically in the in spatial function, causes losses and the spatial urban area this is related to housing requirements and utilisation is not according to the permit issued.59 its enforcement, contracts and agreements with spatial planning consultants. The decisions made on legal The majority of spatial planning provisions already issues in spatial planning affects the interests of various recognise the community’s right to land as well parties in many ways and is a reflection of political, as other traditional rights, the right to participate social and economic power (Moeliono, 2011) and the right to benefit from spatial planning. The right to participate is complimented by the right If examined further, these issues are related to to submit grievances against Officials’ Decisions community rights to land and territories as well as considered to contravene spatial plans. carbon stock issues thus the legal and empirical aspects can be viewed through the issues of institution and the State obligation to fulfil and protect the community’s right to land and territories and protection of carbon stock.
57Article 160 PP 15 of 2010 58 Article 37 Law Number 26 of 2007 59 Article 69 and 70 Law Number 26 of 2007
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Institutions In various areas, the Regional Development Planning Agency (Badan Perencanaan Pembangunan The establishment of the Agrarian and Spatial Daerah - BAPPEDA) has the authority to coordinate Planning Ministery (Kementerian Agraria dan Tata spatial planning. This function differs from the Ruang - KATR) under President Joko Widodo has National Development Planning Agency which is given fresh hope for the synchronisation of spatial the functional headquarters of Bappeda. Spatial planning and the community’s rights to land and planning issues are positioned in Bappeda with the territories. Thus far, the formulation of spatial plans objective of synchronising planning between all has not fully integrated the community’s rights to government agencies. The District/Municipality and land and territories because the formulation of Province Bappeda are expected to bring together spatial planning has a top down orientation which various spatial utilisation initiatives including begins at the national level then provincial, followed proposals form the public and foster multi-party by districts and municipalities. Rural spatial planning, agreement on these proposals whilst synchronising although acknowledged as as one of the spatial spatial plans at a higher level. categories has not been further governed through operational provisions. Meanwhile the rights to However, Bappeda is not a spatial planning land and territories can only be identified through monitoring body. Various provisions do state that a bottom-up approach through participatory the public has the right to monitor and submit their processes and instruments such as participatory grievances regarding spatial planning practices. mapping of territories. Therefore, spatial planning However, there are no agencies for consolidating provisions has not provided certainty in the scope these grievances and the outcomes of spatial of Indigenous communities’ rights to land and planning monitoring in order to have an impact territory although the majority live in the rural on spatial planning in accordance with the correct areas. The integration of agrarian affairs and and proper processes as regulated in laws and spatial planning in KATR should bring these two regulations. As a consequence, the public has no approaches together in order to minimise the legal guarantee that their complaints against spatial conflict between the rights to land and territories planning violations will be followed up by any and spatial planning. Spatial allocation should take institution. Meanwhile, overlaps of spatial plans into consideration the dynamics of rights to land and customary rights are not lessening whatsoever. and territories and if necessary integrate the scope In the next round, spatial utilisation conflict will of rights into spatial planning. continue (Gustian et al, 2014). However, the authority of the KATR institution is Fulfilment and protection of rights not completely solid. Forestry which has thus far dominated more than 70 % of Indonesian land has Spatial planning has yet to fully accommodate the not been integrated into a single organisation with demands to fulfil and protect community rights to spatial planning. Since the Government established land and territories. Many suggestions for spatial the National process for classifying forest areas planning are in conflict with territories claimed by (Tata Guna Hutan Kesepakatan - TGHK) in the Indigenous communities as customary lands. The 1980s, the Forestry sector has had a tradition main trigger is that spatial planning is not used of creating their own spatial plans and separate as reference material by various natural resource from the national spatial planning. After the spatial sectors in determining spatial allocations. In Riau, planning policy came into effect in 1992, the the District/Municipality Forestry Office ignores national spatial planning began to operate yet the Regional Spatial Plans in providing technical forestry sector zoning remained independent. The considerations for proposed spatial utilisation unquestioned accepted practice to date is that (Raflis, 2011). spatial plans adjusts to forestry plans. Therefore, the authority to determine spatial plans remains Since 2010 there have been 25 unresolved large essentially controlled by Forestry. In this case, scale inter-sectoral spatial planning conflict cases. synchronisation between community rights and All these conflicts are being handled by the National spatial planning must initially begin with the Spatial Plans Coordinator (Koordinasi Perencanaan Forestry sector. This is where serious difficulties Ruang Nasional - BKPRN).60 Associated sectors such occur. Forestry is still reluctant to recognise as mining, forestry and plantations have their own customary rights. Forestry regulations offer strict respective targets which often collide with spatial procedures thus presents difficulties for Indigenous plans. Spatial plans are helpless and besieged by communities to claim and register their rights land conversions for large scale expansions which (Simarmata, 2006, Arizona, 2010, Moniaga, 2010). sacrifices community rights. In the recent 2013
60 Hilda B. Alexander, 2014, Since 2010, 25 Large Conflict in Spatial Plans have not been Resolved! (Sejak 2010, 25 Konflik Besar Tata Ruang Belum Diselesaikan!), See http://properti.kompas.com/read/2014/11/11/093620321/Sejak.2010.25.Konflik.Besar.Tata.Ruang.Belum.Diselesaikan.
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agricultural survey which was just launched in Environmental protection early 2015, the allocation of land for small-scale Substantively, spatial planning norms contains farmers have narrowed and tended to disappear. strong control for environmental interests. However, Ironically, customary and local communities in in practice, the provisions for spatial limitations is several places where the population has not yet effectively for the small folk and has no power in increased greatly such as Papua and West Papua the face of political and economic influences. This should still have adequate access to land. However, is apparent in regional spatial planning formulations in the central islands the agricultural census shows which are often ambiguous in determining environment that the number of smallholder farmers with 0.5 quality targets, for example, in biodiversity and forest hectares of land or less has expanded, for example protection. Almost all provinces have completed their like in Banten and Bali (Agusta, 2013). A similar Provincial Territory Spatial Plans (Rencana Tata Ruang process of first increasing numbers occurred in Wilayah Provinsi - RTRWP). Provinces generally identify Java but the landpoor population has subsequently bio-diversity as potential, issues and challenges to be started to decline. as small-scale land owners faced. Therefore, spatial utilisation control also takes have subsequently begun to lose almost all their into consideration the protection of high biodiversity lands to numerous malls and other infrastructure value areas, for example are for protection, wildlife which are converting agricultural land. Outside conservation and for rare, threatened and endangered Java, agricultural land is being taken over from small species. scale to large scale agriculture. The overall trend is one of increasing allocation of land for large scale From a quantitative perspective, various RTRWP have permits at the expense of small scale farmers and defined the areas protected for bio-diversity purposes. communities maintaining customary tenures. However the spatial allocation does not clearly establish the qualitative target for strengthening the ecosystem It is difficult for the public to be actively involved function for bio-diversity. The concept of environmental from planning to monitoring of spatial plans. In carrying capacity and support capacity is still translated general, there are limited funds for spatial planning. into the size and number of areas to be protected and This has apparently impacted on spatial planning not using sufficient quality measurements to support deliberations which does not include consultations biodiversity. Strategic environmental assessments in various places. There are limited invitations have not been used effectively as a foundation for for public representatives. This means that determining space, and is instead used to justify the community groups with no access have difficulties quantitative allocation of space.62 The tangible impact in participating in spatial planning suggestions. This of such planning is the inconsistencies between the is followed by the minimal level of creativity from norms and practices on the ground. Critical land which the officials in charge to find models and methods have been degraded are still identified as forest area for motivating participation in order to have for the purpose of maintaining the size and quantitative efficient spatial planning. The general approach is to indicators of spatial planning. Forested areas are instead convene formal meetings and seminars in luxurious allocated as Other Purpose Areas (Areal Penggunaan hotels. It is commonplace for remote districts to Lain). have consultations in Jakarta.61 The consequence is a participation process with imbalances between There is currently more than 27 million hectares of the large budgetary allocation yet minimal level of critical land, 20 million of those extremely critical.63 public participation and low intensity meetings. Part of these are in forest areas.
61 The case of a draft Regional Spatial Planning (RTRW) consultation being held in Bogor occurred for the West Papua Province. Please see PUSAKA Team and the Civil Society for Papua Customary Space, 2014, Peace in Papua: Protect the Living Space of the Papua Indigenous Communities (Papua Damai: Lindungi Ruang Hidup Masyarakat Adat Papua), Briefing Paper, PUSAKA 62Ministry of the Environment, 2014, Input for Improving the Organisation and Strategic Plans for the Ministry of the Environment using Logic Model Approach, Danida and ESP3 63 Sapariah Saturi, 2014, Government Involved the Business Community and Communities to Overcome Critical Land , http://www.mongabay.co.id/2014/06/17/atasi- lahan-kritis-pemerintah-libatkan-dunia-usaha-dan-masyarakat/
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1.7 Environment of Indigenous Peoples (masyarakat hukum adat)64, local wisdom,65 and the rights of Indigenous Legal foundation Peoples related to environment protection and management. These policies are implemented at the • Law No. 32 of 2009 regarding the Protection and District/Municipalities.66 Management of the Environment Participation in environmental planning and • Government Regulation No. 27 of 2012 regarding management Environmental Permits The public and individuals have the right to be involved in environmental planning and • Presidential Regulation No. 71 of 2011 regarding management. It is stipulated that each person National Inventory of Greenhouse Gases has the right to participate in the protection and management of the environment according to the • Minister of the Environment Regulation No. 9 of laws and regulations. These rights include the right 2011 regarding General Guidelines for Strategic to submit suggestions and/or objections against Environment Assessment planned enterprises and/or activities which may • Minister of the Environment Regulation No. 5 of impact on the environment and the right to file 2012 regarding the Types of Enterprises and/or grievances due to suspicions of pollution and/or 67 Activities Which Must Have an Environmental Impact damage to the environment. Analysis From perspective of environment protection and • Minister of the Environment Regulation No. 13 of management activity plans, the public and all related 2010 regarding the Efforts towards Management institutions are stakeholders to be considered of the Environment and Efforts towards Monitoring in creating an inventory of the environment, of the Environment and Statement of Readiness to determining the eco-regions and formulating the Manage and Monitor the Environment Environment Protection and Management Plans (Rencana Perlindungan dan Pengelolaan Lingkungan Hidup - RPPLH)68. Public aspirations especially with Normative analysis regards to safety, quality of life and welfare must exist before the RPPLH is established.69 Community rights in the protection and management of the environment UU 32 of 2009 also recognises the community’s right to participate in the form of: social supervision, The Law UU 32 of 2009 recognises several categories providing advice, opinions, suggestions, objections, of protection for customary rights such as protection grievances and/or submitting information and/ for their existence as an Indigenous community and or reports. One of the objectives of community the right to environmental management based on engagement according to this Law is to develop and traditional wisdom, and acknowledgement regarding maintain the culture and local wisdom in order to participation in planning and management of the conserve environmental functions.70 environment.
Recognition of the existence of Indigenous communities Those fighting for the environment are also and traditional wisdom protected by this Law through the right to It is stipulated in this Law that with regards to immunity. It stipulates that every person fighting environment protection and management, the for the right to a proper and healthy environment Central and Province Governments have the duty cannot be prosecuted in a criminal court, nor sued 71 and authority to establish policies regarding the in a civil court. procedures for the recognition of the existence
64 Indigenous Peoples shall be a group of communities living traditionally in a specific geographic area because of a bond to their ancestors’ origins, a strong relationship with the environment as well as a system of values determining economic, political, social and legal structures. Article 1 point 31 in Law number 32 of 2009 65 Local Wisdom shall be noble values prevailing in the lives of the community which amongst others protect and manage the environment in a sustainable manner. Article 1 point 30 in Law Number 32 of 2009 66 Article 63 clause (1) letter t, clause (2) letter n, clause (3) letter k, Law Number 32 of 2009 67 Article 65 clause (3, (4) and (5) 68 Article 5, 10 and 12, UU 32 of 2009 69 Ibid. 70 Article 70 clause (2) and (3) 71 Article 66 Law Number 32 of 2009
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Carbon stock in environmental protection Framework Convention on Climate Change. Specifically for Forestry issues, KLH coordinated with the REDD+ The Law number 32 of 2009 governs several issued Management Body (Badan Pengelola Reducing Emission directly related to the nomenclature for carbon stock from Deforestation and Forest Degradation - BP REDD+) and emissions release. Furthermore, the majority which was given the authority to ensure a reduction in of these provisions are focused on explaining the forestry emissions. Currently, these three institutions various mechanisms, instruments and other policies - KLH, DNPI and BP REDD+ are merged with the for protecting the environment and reducing damages. Forestry Ministry. These mechanisms and instruments are methods for protecting carbon stocks. The instrument for preventing emission release and maintaining carbon stocks Regulations related to carbon stock protection The Law number 32 of 2009 introduced a new In the current regulations, emissions is one of the permit known as the environmental permit, which new indicators of environmental quality which is an is issued by each person conducting an enterprise instrument for preventing pollution and damage to and/or activities for which an Environmental Impact the environment.72 Violations of emission quality Assessment (known in Indonesian by its acronym standards will receive an administrative sanction. ‘AMDAL’) or UKL-UPL (Environmental Management If this sanction is not met or complied with or the and Monitoring Programs) in order to protect and violation occurs more than once, the perpetrator manage the environment. An environmental permit may be prosecuted and imprisoned for a maximum is a pre-requisite in obtaining enterprise and/or sentence of three years and a fine of IDR activities permits. Furthermore, an environmental 3,000,000,000.73 Emissions are also an incentive permit is issued based on an environmental instrument and incentives in the form of emissions feasibility assessment obtained from the AMDAL trading. The Government is responsible for the document. Therefore AMDAL plays a key role as a Greenhouse Gases inventory.74 pre-requisite in obtaining an environmental permit. Please refer to te chart below. Subsequent to Indonesia’s commitment to a 26% emission reduction which is being continued by the Jokowi Administration75, the Government established the Presidential Regulation Number 71 AMDAL Penyusunan of 2011. This regulation gave the Minister of the Document Dokumen Environment (Kementerian Lingkungan Hidup - KLH) development AMDAL as the institution for the monitoring, research and verification of GHGs in Indonesia. This mandate encompasses three issues: Submit Pengajuan Establish the guidelines for GHG inventory request for Permohonan Izin Environmental • Coordinate the implementation of GHG and trends Lingkungan & Permit & AMDAL Penilaian AMDAL in GHG emission and absorption changes including Assessment carbon stocks at the national level.
• Conduct monitoring and evaluation of GHG processes and inventory outcomes. Decision Keputusan regarding Kelayakan In the international relationship context, the Environmental Lingkungan Environment Minister also became the coordinator Feasibility Hidup for the development of the National Communication report to the UNFCCC. KLH collected all GHG data both from the regions and sectors nationwide as part Issuance of of this role. The consolidation outcomes of this report Penerbitan Izin Environmental Lingkungan was submitted to the National Council for Climate Permit Change (Dewan Nasional Perubahan Iklim - DNPI) as the National Focal Point for the United Nations Source: REDD+ Taskforce, 2013
72 Article 20 clause (2) Law Number 32 of 2009 73 Article 100 clause (1) and (2) Law Number 32 of 2009 74 Article 63 clause 1 letter f Law Number 32 of 2009 75 Please refer to National Medium Term Development Plans 2015-2019
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Analysis of environmental impact assessment In the agricultural sector, the types of businesses/ activities which must have AMDAL consist of food AMDAL is an assessment regarding the key impacts crop agriculture with or without its processing of a planned business and/or activity on the unit, the cultivation of horticultural plants with environment which is necessary for decision making or without its processing unit and the cultivation regarding the operation of the business and/or on plantation crops. The size and scientific activity76. Every enterprise and/or activity which has justifications of why these businesses and activities a substantial impact on the environment must have are categorised as requiring AMDAL is regulated in an AMDAL document as the basis for determining detail by the Minister of Environment Regulation environmental feasibility77. Permen LH 5 of 2012. Please refer to Annex 4 for complete details. The AMDAL document contains several items such as: (a) study on impact of planned business and/ AMDAL is not merely an instrument to prevent or activity; (b) evaluation of activities around the risks against the environment. It is also a tool for location of planned business and/or activity; (c) the government to monitor the implementation of public input and opinion regarding the planned the business and activities. Even violations against business and/or activity; (d) estimate of the impact AMDAL have criminal consequences. AMDAL is coverage if the planned business and/or activity therefore one of the most concrete environmental should be implemented; (e) holistic evaluation of commitments in the permit process. the occurring impact to determine environmental feasibility or unfeasibility; and (f) environmental Activities which do not require AMDAL fall management and monitoring plan. into the category of activities which must have Environmental Management Efforts-Environmental The Minister of the Environment Regulation No 5 Monitoring Efforts Reports (Upaya Pengelolaan of 2012 stipulates in detail the types or businesses Lingkungan-Upaya Pemantauan Lingkungan or UKL- as well as activities which must have AMDAL in UPL). The activities in this category do not arrange each sector, from multi-sector businesses/activities, for environmental permits but will be given a the defence sector, the agriculture, fisheries and Statement of Readiness to Manage and Monitor marine sector, forestry, transportation, satellite the Environment (Surat Pernyataan Kesanggupan technology, industry, public works, housing and Pengelolaan dan Pemantauan Lingkungan Hidup - settlement areas, energy and mineral resources, SPPL). However, SPPL remains the practitioners’ tourism, nuclear energy, toxic and hazardous commitment to focus on the environment in waste management. Furthermore, this Regulation utilising the permit78. specifically emphasises that businesses and/ or activities conducted in protected areas and/ Public involvement in developing the AMDAL or directly adjacent to protected areas must have document must be based on the principle of AMDAL. This obligation only has an exception for transparent, complete and prior information mining, oil and gas and geothermal exploration, provision before the commencement of the scientific research and development, businesses activity79 by its initiators. The public in this and/or activities which support environmental case include (a) the affected community, (b) conservation, activities related to defence and environmental activists and/or (c) parties affected the State with no substantial impact on the by all types of decisions in the AMDAL process. environment, cultivation which clearly has no The engagement of he public is conducted by the substantial impact on the environment and initiators through an announcement of the planned cultivation allowed for native residents at a fixed business and/or activity and public consultation size which does not diminish the protective process in order to obtain advice and responses function of the area and is done under strict from the community prior to the development of supervision. These exceptions are allowed based on the Terms of Reference80. Within ten (10) working legal considerations and empirical facts that these days since the announcement, the public has the activities do not have a significant impact on the right to tender their advice, opinions and response environment. to the planned business and/or activities being proposed81.
76 Article 1, clause (11), UU 32 of 2009 77 Article 24, UU 32 of 2009 and Article 2, Min of Env Regulation 5 of 2012 78 Minister of the Environment Regulation No 13 of 2010 regarding the Efforts towards Management of the Environment and Efforts towards Monitoring of the Environment and Statement of Readiness to Manage and Monitor the Environment 79Article 26, clause (1) and clause (2), UU 32 of 2009 80 Explanation of Article 26, clause (1), UU 32 of 2009 81 Article 9, clause (3) and (4), PP 27 of 2012
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If the public, particularly those lacking the economic AMDAL-compulsory, the announcement is made means, have the initiative to conduct activities at least five (5) working days since the ANDAL with significant impact on the environment, the document, Environment Management Plan (RKL) government including the village government and Environment Monitoring Plan (RPL) is declared must assist the AMDAL development process to be administratively complete whilst for UKL- by providing facilitation, funds and/or the UPL compulsory businesses and/or activities, AMDAL process itself82. Representatives from the announcement is at most 2 (two) working communities who may be affected will become days since the UKL-UPL forms were declared to one of the members of the AMDAL Appraisal be administratively complete85. The public has Commission which will provide their assessment the right to tender their advice, opinions and and recommendation to the Minister/Governor or responses to the planned business and/or activity Head of District/Mayor regarding the feasibility or which is AMDAL compulsory for ten (10) working unfeasibility of an activity from am environmental days since the announcement whilst for UKL-UPL perspective. compulsory businesses and/or activities, the time period allowed is only 3 (three) days after the Efforts towards Management of the Environment announcement. and Efforts towards Monitoring of the Environment (UKL-UPL) The public’s involvement allowed in each instrument provides a public space in the process of UKL-UPL, is the management and monitoring of decision-making regarding activities which have an the business and/or activity which does not have impact on the environment. a significant impact on the environment which is necessary for decision making regarding its Strategic Environmental Assessement implementation. Every business and/or activity which does not fall into the compulsory AMDAL In addition, the UULH provides two important category must have UKL-UPL according to the type breakthroughs in the process of spatial planning of business/activity as established by the Governor establishment i.e.: (a) each regional spatial planning or Head of District/Mayor. must be based on the Strategic Environmental Assessment (Kajian Lingkungan Hidup Strategis - Environmental Permit KLHS), (b) Spatial planning is established by taking into consideration the carrying capacity and support Environmental permit is the permit issued to every capacity of the environment86. person conducting a business and/or activity which is AMDAL-compulsory or UKL-UPL as part of the KLHS is a systematic, comprehensive and effort to protect and manage the environment as participatory series of analyses to ensure that a pre-requisite for obtaining the business and/ the principles of sustainable development is the or activity permit83. Every business and/or activity foundation of development and has been integrated which is AMDAL or UKL-UPL compulsory must into the development of a region and/or policy, plan have an environmental permit. The environmental and/or programme87. The Government and Local permit is obtained through a series of activities Governments must develop KLHS to ensure the which include (a) development of AMDAL and proper integration of sustainable development88. UKL-UPL, (b) AMDAL appraisal and UKL-UPL In The Government and Local Government inspection and (c) application and issuance of the must involve the public and stakeholders in the Environmental Permit84. development process of KLHS89. Upon receiving the application for the Strategic Environmental Assessment (SEA, Kajian Environmental Permit, the Minister, Governor Lingkungan Hidup Strategis - KLHS) is an instrument or Head of the District/Mayor must announce with a three interlinked stage process in its the application through multimedia and bulletin implementation mechanism i.e. (a) analysing the boards in the proposed business and/or activity impact of policies, plans and/or programmes on the location. For businesses and/or activities which are environmental condition of a region; (b) formulating
82 Article 32, clause (1) and clause (2), UU 32 of 2009 83 Article 1, clause (35), UU 32 of 2009, Article 1, clause (1) PP 27 of 2012 84 Article 44, PP 27 of 2012 85 Article 46 clause (2) and (3), PP 27 of 2012 86 Article 19 Law Number 32 of 2009 87 Article 1, clause (10), UU 32 of 2009 88 Article 15, clause (1), UU 32 of 2009 89 Article 18, clause (1), UU 32 of 2009
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alternatives to refine the policies, plans and/or to burn land with a maximum size of 2 hectares for programmes; and (c) provide recommendations for each household for planting local varieties and the improving how policies, plans and/or programmes area is surrounded by fire buffers to prevent the fire are determined which integrate sustainable from spreading to surrounding areas92. development principles90.
As a comprehensive analysis of development Opportunities and challenges in implementation plans in a region, KLHS is very much related to the preventive efforts against deforestation. KLHS Institutions provides a portrait regarding the environmental Two environmental standards i.e. AMDAL and impact of a policy, plan and/or programme. UKL-UPL have become reference materials for all Furthermore, KLHS offers an alternative for sectors. Both have strategic value in influencing preventing environmental risks which should be the behaviour of business practitioners because suggestions which the Government can integrate both are instruments directly involved in permit into development plans as well as spatial plans. applications. Strengthening the AMDAL and UKL- UPL instruments have strategic opportunity value KLHS is essentially a scientific instrument which in accommodating the emissions and carbon issues attempts to utilise scientific objectivity as a basis with concrete measures. for informing policy. Scientific considerations are critical for establishing a foundation in the The challenge is creating other cross-sectoral development of a plan, programme as well as a environmental standards which are binding policy which will have a platform which is not only and which can apply pressure. Other standards rational but also specifically grounded in scientific must also be reflected in the sectoral policies on truth. the environment. For example, the Ministerial Regulation No. 15 of 2012 regarding Economic KLHS contains six analysis components including:91 Assessment Forestry Guidelinesshould be applied by the Ministry of Forestry yet is not taken into 1. Carrying capacity and supporting capacity of the consideration at all in forestry legal products as environment for development; a basis for regulating taxes on forestry and costs. 2. Estimates on the impact and risk to the As an example, the Forestry Ministry refers to environment; Regulation Number No. 14 of 2011 in conjunction with number 20 of 2013 regarding Logging Permits 3. Performance of ecosystem services; in issuing logging permits. This Regulation does not 4. Efficiency of natural resources utilisation; take into account Regulation 15 of 2012 provisions 5. Level of vulnerability and adaptive capacity at all as requirements to assess the wood. towards climate change; and With regards to the implementation of Law Number 6. Level of resilience and potential for biodiversity. 32 of 2009, the Environment and Forestry Ministry (KLHK) has not established its implementation With reference to this provision, all proposed regulations. Of the 20 provisions requesting the spatial plans as well as its amendments must take establishment of Government Regulations, only KLHS into consideration. two have been established through Government Regulation PP 27/2012. The other does not accord Local Wisdom with the mandate of the Law No. 32 of 2009. Therefore the implementation of Law number 32 With regards to Indigenous communities, the Law of 2009 is difficult to conduct effectively if the number UU 32 of 2009 recognises local wisdom in KLHK institutionally has not completed the overdue maintaining and managing land. This is manifested establishment of operational level laws including in exceptions for communities burning land which pushing Local Governments to refer to Law number uses local wisdom. The local wisdom referenced is 32 of 2009.
90 Article 15 clause 32 of 2009 91 Article 16 Law Number 32 of 2009 92 Article 69 clause 2 Law Number 32 of 2009.
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Community rights Guaranteeing carbon stock Almost all provisions in environmental laws should The Law number 32 of 2009 regime has prepared a be protecting the rights of the community. Law comprehensive legal framework for supporting the number 32 of 2009 is a very powerful legal protection and management of the environment. instrument and has the potential to afford complete The main pre-requisite for this Law to work is protection for community territories and rights, to the establishment of several laws and regulations avoid contamination through the destruction and derived thereof. Some of these are critically pollution of the environment. The recognition of fundamental, yet have not been established such local wisdom is an opportunity for the Indigenous as the Plans for Environment Protection and communities to promote their own management Management, environmental inventory, designation models. The implication of this recognition is of eco-regions, carrying capacity and supporting that Indigenous communities do not have to capacity of the environment and provisions become an extension of the State’s version of regarding standard qualities. environmental protection such as conservation. These conservation methods have all but ignored Environmental provisions are also yet to be properly Indigenous communities’ way of environmental linked with natural resource utilisation regimes. management. Furthermore, the community has Many permits do not comply with prohibitions the right to full and truthful information regarding against utilisation in certain regions. For example, development plans and also to tender objections location permits in peatland areas continue to against development plans which may potentially be issued despite environmental regulations damage the environment. making it compulsory for specific and sustainable management for peat land areas (Minister of the However, in some cases, the community’s right Environment Regulation Permen LH No. 4 of 2012). to participate in environmental planning has not In addition, in spatial plan categories, peatlands of been fully recognised. Involvement in AMDAL, a depth of 3 meters or more must be designated for example which refers to the principle of full as national protected areas (Article 55 PP No. 26 and transparent information being provided of 2008). Even peatland zoning must take into prior to the implementation of the activities, is consideration all the activities prohibited which commonly perfunctory. Such required information have the potential to change the water conditions sharing provide a building block for the Free, Prior and unique ecosystems. The Presidential Instruction and Informed Consent concept. However the moratorium number 10 pf 2011 also prohibits the administration has not yet adopted the principle issuance of new permits on peatlands. However, of consent. The Law number 32 of 2009 only new permits are still being granted because recognises the community’s right to tender Local Governments do not perform technical objections. considerations which refer to environmental requirements. Regulations related to location Furthermore, the Law number 32 of 2009 has permits94 do not assertively regulate specific arranged for environmental dispute resolution ecosystem protection such as peatlands and HCV. mechanisms both through the courts and out of In consequence, the officials providing technical court. The problem is that the mechanism is not consideration only refer to the land use categories comprehensive enough as it only regulates the which do not specifically stipulate prohibitions for parties who have legal standing to be present in peatlands and HCV. court. Other parties negatively impacted are not part of the considerations in resolving the dispute. With regards to instruments for preventing environmental damage such as AMDAL and As it developed, other institutions were also Environmental Permits, Government Regulation mandated to mediate or even resolve environmental PP No 27 of 2012 has stated that all businesses disputes such as the National Commission for and/or activities which must have AMDAL or UKL Human Rights (KOMNASHAM). In practice, the -UPL must have an Environmental Permit. This is recommendations or advice from an institution of obtained through a series of steps which include: the KOMNASHAM calibre were ignored and has (a) development of AMDAL and UKL-UPL; (b) no legal power93. Implementation becomes even AMDAL appraisal and UKL-UPL examination; and harder considering that there are no clauses in the (c) application and issuance of the Environmental Law number 39 of 1999 regarding legal sanctions Permit. In several situations such as an incident in against those involved for not performing the Papua, it was described how the government as well recommendations from KOMNASHAM. as the project initiators performed the stages in the
93 http://www.cnnindonesia.com/nasional/20150324181700-20-41533/imbauan-komnas-ham-ihwal-pabrik-semen-di-rembang-tak-digubris/ - dated 24 March 2015 94 Agrarian Minister/Head of BPN Regulation No 2 of 1999 and Head of BPN Regulation No 2 of 2011
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issuance of the environmental permit simply to fulfil This opinion raised further concerns regarding the procedures as regulated in the Government issues such as (a) the central institution in charge Regulation PP 27 of 2012, whereby the content of the implementation of AMDAL and designating of the significant impact analysis of the proposed the implementation duties, (b) mechanism for business and/or activity was not properly studied designating the institution implementing AMDAL, and was based on a fleeting academic review. The (c) the need to amend the Law Number 32 of 2009 affected public’s knowledge, participation was which strongly states in Article 26 clause 1 that neglected and tended to be limited95. recruiting the AMDAL researchers is under the authority of the company (initiator). Limitation of Indigenous community participation and marginalisation of Indigenous community The AMDAL terms of reference falls into knowledge had been done since the AMDAL the category of immediately disclosed public and UKL-UPL development stage, AMDAL information,99 therefore AMDAL information should appraisal and UKL-UPL inspection through to the be available to the public. However considering that Environmental Permit issuance. For example in the AMDAL document is difficult to understand, the AMDAL development stage, the Government an executive summary should be prepared in a provides a public participation mechanism more reader-friendly format. The objective is to through (a) announcement of planned business draw more active and intensive public participation. and (b) public consultation, the public has the Furthermore, more thorough and detailed review right to tender advice, opinions and responses into permits is required. For example, environmental to the proposed business for ten (10) working permits as a requirement for business licenses, days since the announcement which is to be as well as interlocking permits, should be publicly submitted in writing to the project initiators, the available.100 Minister, the Governor or Head of District/Mayor although the communities in Papua tend to live in the hinterlands thus with very limited access to information media and the luxury of communication equipment. On the other hand, the public also needs a relatively long time to study and consult regarding the proposed business, but are severely limited with a narrow window of opportunity by the local government.96 Therefore, it is necessary to change the timing of the announcement of the proposed business plans which will impact on the environment by taking into consideration the project location, the limitations in information media as well as the existence of community based organisations which can assist in the consultation process.
There have been opinions that AMDAL should be the responsibility of the government, and should be done by a competent and independent party. This is important to ensure that AMDAL is pro- community and environmental conservation.97 This issue emerged because the researchers are selected by the company, thus there are concerns that the research outcomes would be subjective in support of the company.98
95 http://pusaka.or.id/kontroversi-mekanisme-izin-lingkungan-menggembosi-partisipasi-masyarakat/ - dated 2 September 2014 96 Ibid. 97 http://sains.kompas.com/read/2015/03/24/20361041/Polemik.Tambang.di.Karst.Rembang.Amdal.Jangan.Dilakukan.Tukang. - dated 24 March 2015 98 http://www.cnnindonesia.com/nasional/20150324202600-20-41567/peneliti-amdal-semestinya-ditunjuk-pemerintah/ - dated 24 March 2015 2015 99 Article 7 clause 2 Minister of Environment Regulation No 6 of 2011 regarding Public Information Services 100 http://ekonomi.metrotvnews.com/read/2015/03/11/369515/bkpm-bakal-pangkas-perizinan-listrik-jadi-8-bulan - dated 11 March 2015
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1.8 Conservation Several conservation activities which may be implemented include (a) the protection of live Legal foundation: supporting systems, (b) preservation of plant and animal biodiversity and their ecosystems as well as (c) the • Law number 5 of 1990 regarding the Conservation sustainable utilisation of biological natural resources of Biological Natural Resources and its Ecosystem and its ecosystem103. From an environmental protection (“UU 5 of 1990”) and management perspective, the activities conducted include (a) planning, (b) utilisation, (c) control, (d) • Law number 32 of 2009 regarding Environmental maintenance, (e) supervision and (f) law enforcement.104 Protection and Management There are several provision regulating the public’s right • Government Regulation No. 28 of 2011 regarding to participate and access to planning and utilisation of the Management of Nature Reserves and Nature conservation areas. Conservation Areas Public participation • Minister of Forestry Regulation No. P.29/Menhut- Conservation efforts are broad and involve the II/2004 regarding Collaboration on the Management interest of many parties especially the public. of Nature Reserves and Nature Conservation Areas Therefore the public is also responsible for supporting and implementing conservation • Minister of Forestry Regulation No. P.56/Menhut- activities.105 Essentially, every person holding the II/2006 regarding National Park Zoning Guidelines. right to land and business licenses for waterways • Minister of the Environment Regulation No. 29 in areas designated as a life supporting systems of 2009 regarding the Guidelines for Biodiversity are responsible to maintain the continuation of the 106 Conservation at the Regional Level (“Permenlh 29 of protective function of the area. The utilisation of 2009”) biological natural resources and its ecosystems must be done sustainably according to the function of • Minister of the Environment Regulation No. 13 of the area, its potential, the supporting capacity and 107 2011 regarding Compensation due to Pollution and/ biodiversity of plants and wildlife. or Damage to the Environment (“Permenlh 13 of 2011”) The public may participate in conservation activities as individuals or as groups, both organised and not 108 • Minister of the Environment Decree No. 15 of 2012 organised. The government’s role is to direct and regarding Economic Valuation Guide for the Forest mobilise the public to actively participate in the Ecosystem (“Kepmenlh 15 of 2012”) conservation of biological natural resources and its ecosystems.109
Normative analysis The government may use education and extension work mechanisms through the schools and outside Conservation law legal framework and community rights schools in order to build public awareness and understanding regarding conservation.110 These The basic concept of conservation is endeavouring to mechanisms will also enhance the motivation to be realise biodiversity sustainability as well as a balanced directly involved in conservation activities. ecosystem thus able to support the efforts towards improving public welfare and quality of life.101This is aligned with the concepts of environmental protection and management which also takes into consideration local wisdom which are noble values in the lives of the community for the protection and management of the environment in a sustainable manner.102
101 Article 3, UU 5 of 1990 102 Article 2, UU 32 of 2009 103 Article 5, UU 5 of 1990 104 Article 4, UU 32 of 2009 105 Article 4 UU 5 of 1990 106 Article 9, clause (1), UU 5/1990 107 Article 26, 27 dan 28, UU 5/1990 108 Elucidation Article 37, clause (1) and (2), UU 5/1990 109 Ibid. 110 Ibid.
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Community access to conservation areas management.118 The minister/head of institutions from each of those sectors implemented RAN-GRK according Conservation laws recognise the public’s right to to their duties and function, and reported to the limited access of a National Park. There are two Coordinating Minister for Economic Affairs. The public zones accessible to the public. First is the traditional also refers to RAN-GRK in planning and implementing zone. The community can utilise the potential and GHG emission reduction activities. condition of the natural resources according to prevailing agreements and provisions.111 The other is Presidential Regulation 71 of 2011 requires the a special zone which may be utilised to support the National GHG inventory by the Ministry of the lives of community members.112 Another provision Environment to make available (a) information allows for collaborative management between regarding the level, status and trends in emission the public and the nature parks management and changes and GHG sequestration including carbon conservation as well as other stakeholders to sequestration at the national, provincial and district/ improve community welfare.113 municipality levels, and (b) information regarding the achievements in reducing GHG emissions from national Conservation law legal framework and carbon stocks climate mitigation activities,.119 GHG inventory is Conservation in Indonesia is conducted essentially defined as an activity to obtain data and information through three key activities which are (a) the protection regarding the level, status and trends in emission of live supporting systems, (b) preservation of plant changes periodically from various sources of emissions and animal biodiversity and their ecosystems as well and its sinks including carbon stocks.120 In this case, as (c) the sustainable utilisation of biological natural conservation is a main component in the RAN-GRK resources and its ecosystem.114 The current resonance scenario in Indonesia. of climate change issues has lead to conservation regaining its momentum as one of the key components In alignment with RAN-GRK, the GHG inventory is in the reducing emissions from deforestation and forest being implemented in strategic sectors identified as degradation (REDD+) scheme.115 emission sources and sinks (including carbon stocks), which includes (a) agriculture, forestry, peat lands and After the announcement of the 26% and 41% reduction other land uses, (b) energy provision and usage, in emission targets in 2009, carbon stock became a (c) the processing industry and product usage, and priority issue. This was followed up with the Presidential (d) waste management121. The process of GHG Regulation No. 61 of 2011 which regulates the National inventory is conducted by the relevant Ministry and/or Action Plan for Greenhouse Gas Emissions (Rencana Head of non-Ministry State Body, the Head of District Aksi Nasional Penurunan Emisi Gas Rumah Kaca - RAN- and Mayor annually and the reported to the Ministry GRK). The RAN-GRK presents Indonesia’s working coordinating this inventory process [in this case the plans for implementing various activities to reduce Ministry of the Environment and Forestry].122 All greenhouse gas emissions both directly and indirectly business practitioners with activities potentially causing according to the national development targets.116,117 emissions and/or sequestering GHGs are obligated to report data relevant to the GHG inventory process to The RAN-GRK activities encompass several key sectors the Governor and Head of District/Mayor according to considered able to contribute to the efforts towards their authority annually.123 achieving emission reduction targets: (a) agriculture, (b) forestry and peat lands, (c) energy and transportation, (d) industry and (e) waste
111 Article 7 clause 4 letter e, Minister of Forestry Regulation Permenhut P.56/Menhut-II/2006 112 Article 7 clause 6 letter b, Minister of Forestry Regulation Permenhut P.56/Menhut-II/2006 113 Article 2 and Annex letter I Minister of Forestry Regulation Permenhut 19/Menhut-II/2004 114 Article 5 Law Number 5/1990 115 Please refer to paragraph 70 Decision 1/CP.16 The Cancun Agreements: Outcome of the work of the Ad Hoc Working Group on Long-term Cooperative Action under the Convention, UNFCCC 15 March 2011 116 Article 1, clause (1), Presidential Regulation Perpres 61/2011 117Annex I, Presidential Regulation 61/2011 118 Article 2 and Annex I, Presidential Regulation Perpres 61/2011 119 Article 2, Presidential Regulation Perpres 71/2011 120 Article 1, clause (3), Presidential Regulation Perpres 71/2011 121 Article 3, clause (3), Presidential Regulation Perpres 71/2011 122 Article 11, 12 and 13, Presidential Regulation Perpres 71/2011 123 Article 15, Presidential Regulation Perpres 71/2011
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Opportunities and challenges in implementation experts, environment organisations, laboratories, public representatives and other relevant technical agencies. Institutional challenges and opportunities This team is tasked with facilitating the effective and efficient management of environmental grievances The institutional analysis will have similar issues’ focus through integrated and coordinative handling with as the forestry legal framework since the integration the relevant cross-sectoral agencies and across other of the two relevant ministries based on the new districts/municipalities in West Sumatera. The formation government administration structure (the Ministry of this team is a form of fulfilling the ‘minimum standard of the Environment and the Ministry of Forestry has of services’ within the West Sumatera Bapedalda.128 become the Ministry of the Environment and Forestry [KLHK]). The mandate given ensures that KLHK is There is an emerging opinion stating the need to responsible for delivering the governmental duties of form an Anti-Mafia Environmental Task Force. This both fields.124 Furthermore, the new KLHK structure is considered to important because it is expected to also integrated two other agencies which are the simplify trapping environmental mafia actors which National Council for Climate Change (DNPI) and the require inter-agency coordination. Environmental issues REDD+ Management Body (BP REDD+).125 To date, are complex and these issues cannot be managed using the transitional process between the Ministries and conventional approaches.129 the Institutions are still ongoing and has been of great concern especially regarding the implementation of Challenges in the fulfilment and protection of rights ongoing programmes, as well as the nomenclature to be used.126 Limited community rights and access Conservation provisions have the strictest Several provisions regarding public participation and limitations against community access to natural the community’s rights to forest management according resources. The Law No. 5 of 1990 possesses a very to the provisions of the Forestry Legal Framework dominant government control spirit which leaves involves the Ministry of Forestry and the provincial and/ no provisions for cooperation on the utilisation or district level agencies under its coordination. Under and public participation. Regulations derived the new structure employed by KLHK there must be from the Law No. 5 of 1990 which allows some some adjustments made before KLHK, the respective narrow space for public access is due to latter organs and relevant agencies to be able to fully function developments effected through public and NGO including the HCS methodology to development and political pressure against the repressive nature of community rights.127 conservation against the community. Coordination issues is also a trigger for the lack of Despite the continuous spotlight and barrage of effectiveness in the implementation of the legal complaints, the size of conservation areas has even framework on the ground. The lack of coordination grown larger. Data from Forest Watch Indonesia between agencies also places barriere to the handling of (FWI 2014) shows that during 2008-2012, the environmental issues. Often, government agencies must size of the conservation areas has increased to then form new coordination teams to handle specific 1.8 million hectares. To date the Directorate issues. For example the Environmental Impact Control General of PHKA stated that the government Body (Badan Pengendalian Dampak Lingkungan Hidup - has established 27,190,992.91 hectares of land Bapedalda) in West Sumatera finally formed a team to and waterway conservation areas (the forest area facilitate environmental complaints handling. The team of Indonesia covers an area of 136,88 million is directly chaired by the Head of the West Sumatera hectares) with a total of 527 units, divided into Bapedalda and consists of academics, the Centre 449 land conservation areas and 28 units of for Environmental Studies (Pusat Studi Lingkungan waterway conservation areas which includes 50 Hidup - PSLH), practitioners, legal and environmental National Parks (7 of those Marine Parks), 118 units of Natural Recreation Parks (14 of those Marine Recreation Parks), 22 Great Forest Parks (Taman Hutan Raya - Tahura), 14 Hunting Parks (Taman Buru - TB), 248 units of Nature Reserves (5 of those are Marine Reserves) and 75 Wildlife
124 Article 2, Presidential Regulation Perpres 16/2015 125 Article 59, Presidential Regulation 16/2015 126 ‘Nomenklatur Kementerian (Habis): Jangan Sampai Ada Pihak Yang Marah’, Republika Online, http://www.republika.co.id/berita/koran/halaman-1/14/11/25/nfkzcm57- nomenklatur-kementerian-habis-jangan-sampai-ada-pihak-yang-marah. Also see : ‘Kritik Terhadap Rencana Penggabungan Kementerian Lingkungan Hidup dan Kehutanan, National Geographic Indonesia, http://nationalgeographic.co.id/berita/2014/10/kritik-terhadap-rencana-penggabungan-kementerian-lingkungan-hidup-dan-kehutanan 127 ‘Struktur Kementerian Lingkungan Hidup dan Kehutanan Gemuk’, Kompas News, http://sains.kompas.com/read/2015/01/28/18221221/Struktur.Kementerian.Lingkungan. Hidup.dan.Kehutanan.Gemuk 128 ‘Bapedalda Sumbar Bentuk Tim Penanganan Lingkungan Hidup : Apa Kerjanya?’, Mongabay News, http://www.mongabay.co.id/2015/03/13/bapedalda-sumbar-bentuk- tim-penanganan-pengaduan-lingkungan-hidup-apa-kerjanya/ dated 12 Marhet 2015 129 http://www.hukumonline.com/berita/baca/lt549aa2cd2f6d4/maksimalkan-uu-tipikor-dan-uu-tppu-untuk-jerat-mafia-lingkungan-hidup - dated 24 December 2014
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Parks (2 units are Marine Wildlife Parks).130 Many On the other hand, if carbon stock is categorised as one customary communities have lived for generations of the variables in calculating environmental losses, the in these vast areas. Some remain threatened by the data on carbon stock must be calculated, verified and boundaries of the conservation areas thus may be validated by the government before any carbon stock dragged into prison at any given time. claim can be considered.
The application of guidelines for biodiversity It is also necessary to provide a more comprehensive conservation at the regional level understanding regarding the importance of carbon stock and the impact of diminishing carbon stock to the Regulations in existence since 2009 regulated the sustainability of the environment, and changes in the various responsibilities of the Province and District/ environment in the Types of Losses due to Pollution Municipality Government to protect biodiversity and/or Damages to the Environment in this Minister of in their regions through various means such as Environment Regulation. It should also be noted that developing a biodiversity profile of the region there are references to greenhouse gas emissions in this which will become the basis for developing The part: “burning logged forest can add to greenhouse gas Biodiversity Management Masterplan (Rencana emissions (CO )” - page 11 Annex 1 of the Minister of Induk Pengelolaan Keanekaragaman Hayati - 2 Environment Regulation. Furthermore, the formula for RIP Kehati) as the platform for the integrated calculating the costs to be paid due to losses in carbon management of biodiversity at the province or stocks must be agreed upon before the amendments district/municipality levels131. The Local Government can be made to this regulation or perhaps this formula will determine the areas with high biodiversity has already been included in the carbon release cost. conservation value based on the profile and RIP Kehati. Incorporating carbon stocks as one of the instruments of the forest ecosystem economy can also utilise the By using this Regulation as a basis, the Local instrument which has currently been accommodated Government has a strong foundation for through the Minister of Environment Regulation implementing environmental conservation and No. 15 of 2012. The forest ecosystem economy is even to request funds from various donors in defined as a guideline for procedures for appraising the order to implement their responsibilities based on economic value of the forest ecosystem, in order for this regulation. Such as developing a biodiversity the protectors and managers of the forest ecosystem profile and database which requires specific skills can obtain the key values of the forest ecosystem and knowledge as well as funding. If the Local functions. The guidelines are expected to be able to Government takes their responsibilities seriously, (a) control the means of forest ecosystem utilisation the biodiversity database can be used as a basis for in order to maintain the sustainability of its ecological regional planning in the future and for determining functions and (b) provide a guide and understanding for strategic areas in their regions. the decision makers particularly in matters of planning activities in the development/utilisation of forest Challenges in the environmental and carbon protection ecosystems based on a direct economic or indirect Indonesia currently has several regulations which economic approach132. It is also becoming critical to specifically mentions carbon such as the Minister of ensure that the activities are conducted according Environment Regulation No. 13 of 2011 regarding to methodologies developed for the inventory of Compensation due to Pollution and/or Damage to GHGs. This instrument can also be used as a guide for the Environment. However, several amendments are developing an HCS methodology will ultimately be able considered to be necessary such as an amendment to provide a recommendation on the valuation of the which accommodates carbon stock being lowered into area’s ecosystem. the category of permanent losses. Therefore if there are parties (such as business practitioners) whose business activities are affecting carbon stocks, this can be categorised as environmental losses thus the relevant party can be charged with compensation by the affected party or the party suffering losses.
130 Directorate General for the Protection of Forests and Nature Conservation, Strategic Plans 2010-2014 131 Ministry of Environment Regulation 29/2009 132 Annex, Ministry of Environment Regulation no 15 of 2012
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MP3EI vs. RAN-GRK • Minister of Forestry Regulation Number: P.14/ Menhut-II/2004 regarding the Procedures for The Masterplan for the Acceleration and Expansion of Aforestation and Reforestation as part of the Clean the Economic Development of Indonesia (Masterplan Development Mechanism Framework (“Permenhut Percepatan dan Perluasan Pembangunan Ekonomi 14/2004”); Indonesia - MP3EI) 2011-2025 was a policy during the era of Susilo Bambang Yudhoyono, considered to be • Minister of Forestry Regulation Number: P.68/ contrary to other policies in the same era which was Menhut-II/2008 regarding the Implementation a commitment to reducing GHG emissions.133 Several of Demonstration Activities for Reducing Carbon contradictions include reducing emissions and focusing Emission from Deforestation and Forest Degradation MP3EI developments on the exploitation of forests, (“Permenhut 68/2008”) mountains and conservation areas. MP3EI is considered to be the president’s initiative which lacked broad public • Minister of Forestry Regulation Number: P.30/ participation despite the public goods object involved Menhut-II/2009 regarding the Procedures for i.e. natural resources which also encompass ecological Reducing Carbon Emission from Deforestation and issues due to a lack of conservation efforts. Forest Degradation (REDD) (“Permenhut 30/2009”) Several recommendations regarding MP3EI include the • Minister of Forestry Regulation Number: P.36/ revocation of Presidential Regulation No. 48 of 2014 Menhut-II/2009 regarding Procedures Procedures regarding Changes to Presidential Regulation No. 32 of for Licensing of Commercial Utilisation of Carbon 2011 regarding MP3EI. There should also be concerted Sequestration And/Or Storage In Production and measures to halt MP3EI projects which have been Protected Forests. (“Permenhut 36/2009”) indicated as increasing emissions and environmental supporting capacity in the mitigation and adaptation to • Minister of Forestry Regulation Number: P.16/ climate change. Menhut-II/2014 Guidelines to Borrow and Utilize Forest Areas (“Permenhut 16/2014”)
• Minister of Forestry Regulation Number: P.37/ 1.9 Forestry Menhut-II/2014 regarding the Procedures for the Application, Collection and Submission of Non-Tax Legal foundation State Revenue for Forest Protection and Nature Conservation (“Permenhut 37/2014”) • Law number 41 of 1999 regarding Forestry (“Law number 41 of 1999”) • Minister of Environment and Forestry of the Republic of Indonesia Number P.101/Menhut-II/2014 • Republic of Indonesia Law number 18 of 2013 regarding Guidelines for the Implementation of regarding the Prevention and Eradication of Forest Delegation of Government Authority Destruction (“UU 18/2013”) (De-concentration) in Forestry in 2015 Delegated to the Governor as a Representative of the Government • Government Regulation No. 6 of 2007 regarding (“Permenhut 101/2014”) Forestry and Development of Forest Management and Utilisation Plans in conjunction with Government • President of the Republic of Indonesia Regulation Regulations No. 3 of 2008 (“PP 6/2007 jo. PP Number 16 of 2015 regarding the Ministry of the 3/2008”) Environment and Forestry (“Permenhut 16/2015”) • Republic of Indonesia Government Regulation No. 12 of 2014 regarding the Types and Tariffs for non-Tax State Revenue Applicable in the Forestry Ministry (“PP 12/2014”)
• Minister of Forestry Regulation Minister of Forestry Regulation Number P.20/Menhut-II/2012 of 2012 regarding Forest Carbon Implementation (“Permenhut 20/2012”)
133 http://www.mongabay.co.id/2015/03/15/pemerintah-denpasar-tetap-tolak-reklamasi-teluk-benoa/ - dated 15 March 2015
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Normative analysis external changes139. On of the fundamental provisions related to this objective is the obligation Forestry legal framework and community rights to maintain a minimum 30% of forest area in the rivershed areas and/or islands with a proportional Forestry regulations define forests using the following distribution, with the aim of guaranteeing the elements: (a) an ecosystem unit, (b) in a plot of optimal environmental, social and economic land, (c) contains bio-natural resources as well as benefits for the local communities140. its environment as an integrated unit and (d) able to provide benefits in a sustainable manner134. In From a utilisation standpoint, the prosperity of the general, a forest has three main functions which are (a) People is also the main objective. Forest utilisation conservation, (b) protection and (c) production. These can be conducted through (a) area utilisation, (b) three function are the basis for determining the forest utilisation of environmental services, (c)utilisation category135. of timber and non-timber forest products, and (d) foraging of timber and non-timber products. The forest area is defined as a particular area All utilisation activities are conducted based determined or designated by the government to be on forest utilisation permits141. Specifically for a permanent forest136. In 2012, the Constitutional Indigenous Peoples, forest control by the State Court Ruling number 45/PUU-IX/2011 regarding the must take into account the rights of indigenous law review of Article 1 point 3 of the Law number 41 of communities142. 1999. In this Ruling, the Constitutional Court agreed to remove the phrase “determined and/or” (ditunjuk Forest management rights dan atau) in Article 1 point 3 of the Forestry Law thus the new article reads “Forestry Area is a particular area The participation and rights of the community to stipulated by the Government to become a permanent manage the forest is clearly regulated in various forest”. The implication of this ruling was that the forest laws and regulations within the forestry framework. determination process must be continued until the The community has the right to (a) utilise the forest end of the forest area stipulation process. This ruling and forest products according to the prevailing provides an opportunity for Indigenous Indigenous legislation, (b) know forest designation plans, forest Peoples so that at the designation stage their territorial product utilisation, and information on forestry, area does not immediately become a State Forest area. (c) provide information, suggestion, as well as consideration in forestry development and (d) Law number 41 of 1999 emphatically regulates that supervise implementation of forestry development, the government has the authority to (a) maintain and both directly and indirectly143. manage all forestry issues, forest areas and forest products, (b) stipulate particular area status to forest From a management perspective there are several area or forest area to non-forest areas; and (c) maintain key mechanisms which guarantee the role of the and stipulate the legal relationships between peoples to community in forest management which are (a) forests and to manage legal acts on forestry137. community forests (hutan kemasyarakatan) and (b) village forest144. Community Forest is defined as Prosperity of the people as the main objective part of the State forest which is mainly utilised for the empowerment of the community, whilst The ambition of the forestry framework is for the the village forest is State forest which has not prosperity of the people to be the main obcjective been encumbered with permits/rights under the of forestry management138. Forestry management management of the village, and is utilised for is expected to develop community capacity and the prosperity of the village145. Another category empower the community to realise social and mentioned in the Law number 41 of 1999 is the economic resilience, as well as resilience against
134 Article 1, clause (1), Law number 41 of 1999. Please refer to similar definition in derivative regulations such as Government Regulation such as PP 45/2004, PP 6/2007 135 Article 6, clause (1) dan (2), Law number 41 of 1999 136 Article 1, clause (3), Law number 41 of 1999 137 Article 4, clause (2) letters b and c, Law number 41 of 1999 138 Article 4, clause (2) letter a, Article 18, Law number 41 of 1999, Article 3 clause (5) 139 Article 3 clause (d), Law number 41 of 1999 140 Article 18 clause (1) and (2), Law number 41 of 1999 141 Article 17 and Article 19, PP 6/2007 in conjunction with Government Regulation PP 3/2008 142 Article 4, clause (3), Law number 41 of 1999 143 Article 68, Law number 41 of 1999 144 Article 1, clause (23) and (24), PP 6/2007 jo. PP 3/2008 145 Elucidation Article 5, Law number 41 of 1999, Article 1, clause (23) and (24), Government Regulation PP 6/2007 in conjunction with Government Regulation PP 3/2008
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Hutan Rakyat (a type of community managed Forestry legal framework and carbon stocks forest) which is a forest subject to rights on land One of the forms of environmental services utilisation encumbered with rights146. However, Hutan Rakyat in production and protected forests is carbon is not further regulated in other legislation.147. sequestration and/or carbon storage.153. This is further regulated with the obligation of the activity holder Through the Community Forest mechanism, local to obtain a License to Utilise Environmental Services community empowerment is performed by issuing (Izin Usaha Pemanfaatan Jasa Lingkungan - IUPJL)154. community forest utilisation enterprise permits The specific license is the License to Utilise Carbon which is granted for a term of thirty five (35) years Sequestering and the License for Utilisation of and may be extended148. This business permit may Carbon Storage (IUP RAP-KARBON and/or IUP PAN- be issued for (a) protected forests for area utilisation KARBON)155. Activities which can be done include activities, utilisation of environmental services and planting, maintenance, production enhancement, foraging for non-timber forest products and (b) extension or postponement of the logging cycle and production forests for for area utilisation activities, expansion of the protected and conservation area utilisation of environmental services, utilisation of within the utilisation license area. timber and non-timber forest products and foraging for timber and non-timber forest products149. It The generated outcomes in carbon sequestering and is specifically regulated that the Business License storage is a carbon commodity which can be marketed for Utilization of Timber Products (IUPHHK) in the through the voluntary domestic and international community forest is granted to the local community markets in the form of certified carbon credits156. in the form of a cooperative for IUPHHK grated The revenue from trading the carbon credits are by the Minister150. In providing the utilisation Environmental Services Trading Value (Nilai Jual permit for the community forest, according to Jasa Lingkungan - NJ2L) which must be distributed their respective authority, the Government, the to the government (in the form of Non-Tax State Provincial, District/Municipality Governments Revenue (Penerimaan Negara Bukan Pajak – PNBP) in provide facilities including institutional proportional divisions for the Central Government 40%, development, coaching and control151. Provincial Government 20% and District Government 40%, developers and the community. Although the Another community empowerment modality arrangement of the N2JL distribution clearly stipulates is through a partnership pattern which can be the community’s rights to the revenue from the carbon performed in a forest area already assigned a forest commodity trading, many questions have arisen utilisation license or forest management rights152. especially from the prospective proponent of carbon Through government facilities (i.e minister, governor related activities with regards to the percentages for or mayor/head of the district) the local communities each stakeholder as stated in the N2JL Table.157. may form partnerships with the holder of the forest utilisation license or forest management rights The Forestry Minister Regulation Permenhut 20 of under the principles of equality and mutual benefits. 2012158 is considered to provide the legal umbrella regarding regulations on carbon stocks. Forest Carbon In addition to the specific modalities already is defined as carbon from forest management which mentioned, each forest utilisation enterprise applied carbon stock activities, carbon sequestration license holder must work together with the activities and forest carbon emission reductions159. It local Cooperative in conducting their activities must be emphasised that the implementation of carbon within one year of receiving the license. This also forest activities is intended to also deliver sustainable guarantees the rights of the local community to be community forest management which is just and involved in forest utilisation.
146 Article 80, clause (3) and (4), Article 100, clause (1), Law number 41 of 1999 147 ‘Hutan Rakyat : Aspek Produksi, Ekologi dan Kelembagaan’, Edi Suprapto, Lembaga ARuPA Yogyakarta, http://arupa.or.id/sources/uploads/2010/08/Hutan-Rakyat-Aspek- Produksi-Ekologi-dan-Kelembagaan.pdf 148 Article 96, clause (6), Government Regulation PP 6/2007 in conjunction with Government Regulation PP 3/2008 149Article 94, Government Regulation PP 6/2007 in conjunction with Government Regulation PP 3/2008 150 Article 96, Government Regulation PP 6/2007 in conjunction with Government Regulation PP 3/2008 151 Article 95, clause (1), Government Regulation PP 6/2007 in conjunction with Government Regulation PP 3/2008 152 Article 84 and Article 99, Government Regulation PP 6/2007 in conjunction with Government Regulation PP 3/2008 153 Article 33, clause (1), Government Regulation PP 6/2007 in conjunction with Govt Regulation PP 3/2008 154 Article 19, letter (b), PP 6/2007 in conjunction with Govt Regulation PP 3/2008 155 Article 2, Min of Forestry Regulation Permenhut 30/2009 156 Article 14 dan Article 15, Min of Forestry Regulation 36/2009 157 Lampiran III, Min of Forestry Regulation 36/2009 158 Min of Forestry Regulation 20 of 2012 plays a key role in managing carbon forests because as this regulation comes into effect, the provisions related to the organisation carbon forests in the Min of Forestry Regulation Nomor P.14/Menhut-II/2004 on the Procedures for Aforestation and Reforestation as part of the Mechanisms of Clean Development, Min of Forestry Regulation P.68/Menhut-II/2008 on the Implementation of Demonstration Activities in the Reduction of Emissions from Deforestation and Degradation and Min of Forestry Regulation No P.30/Menhut-II/2009 on the Procedures for Emission Reduction from Deforestation and Degradation (REDD) are declared to be invalid. 159 Article 1, clause (1), Min of Forestry Regulation 20/2012
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generates community prosperity160 and is prioritised to separate Ministerial Regulation. The Regulation provides promote community empowerment inside and outside a platform for the Carbon Forest Organisers to receive the forest area161. training, extension services and human resources capacity building from the relevant Ministry as part of Activities which may be conducted relating to carbon the Government’s role165. forests are seeding, planting, maintenance of the forest and land, as well as harvesting using the principles of Government Regulation PP 12/2014 states that the sustainable forestry. The extension of the logging cycle PNBP earned by the government is covered by the on planted trees, enhancing the timber forest product PNBP applicable to the Ministry of Forestry, for the utilisation license as well as protecting and safeguarding revenue from sequestration and/or carbon storage in the timber forest product utilisation license area are the forest area166 with a rate of 10% x selling price per also part of the carbon forest activity implementation162. ton of carbon167. The provisions regarding the method of application, collection and submission of the PNBP Carbon Forest management may be performed by (a) revenue will be arranged through the Minister of the government, (b) National State Owned Enterprises/ Forestry Regulation Permenhut 37 of 2014. It must be Regional Government Owned Enterprises/Private emphasises in the General Elucidation that the PNBP Sector, (c) Cooperatives as well as the Community is intended for supporting national development and (“Carbon Forest Organiser”)163 through the License for improving public service delivery168. Carbon Forest Organising submitted to the relevant Ministry (in this case the Minister of the Environment As one of the efforts to protect the forests of and Forestry). The license is integrated with the Indonesia and to ensure appropriate functions of license associated with the utilisation on forests/ the forest, the Government of Indonesia has placed forest products164. Upon receiving the License for a moratorium on new licenses for the utilisation of Implementing Carbon Forests the carbon organisers natural primary forests and peatlands through the have the right to manage the carbon related activities issuance of the Presidential Instruction Number 10 throughout their management period and to trade of 2011 regarding the Moratorium on the Issuance and/or not trade carbon from the carbon forest they of New Licenses and Refinement of Primary Natural manage. In order to enhance the potential additions to Forests and Peatlands which was extended through the carbon forest, the license holder must maintain the the Presidential Instruction Number 6 of 2013 (“Inpres potential of the forest in their work area by preventing Moratorium”). The Ministry of Forestry devised an forest damage, forest fires, illegal logging and must not Indicative Map of the Moratorium on New Licenses over-harvest the forest and must practice sustainable (Peta Indikatif Penundaan Izin Baru - PIPIB) based on forest management. the Inpres Moratorium which is updated every six months169. Upon the end of the moratorium, several The Minister of Forestry Regulation Permenhut evaluations were published by various stakeholders 20/2012 further elucidates the details of carbon which demonstrated that the moratorium policy was forest trading. The carbon forest being traded is the unsuccessful in providing the ‘breathing space’ needed difference between the carbon forest potential in a to revitalise management and the licensing system. particular year compared to the baseline carbon forest This conclusion was drawn from the number of forestry potential and the efforts to maintain and safeguard the function conversions which continued to be provided forest’s carbon stock. It is further regulated that the to companies, the overlaps with management areas forest carbon purchaser from another country receives of local communities and Indigenous Peoples with the a maximum carbon emission reduction of 49% in order moratorium scope, and the increased number of forest to still achieve Indonesia’s emission reduction target. fires170. The government also receives Non-Tax State Revenue (PNBP) from the actual carbon forest trading. The procedures for trading will be further regulated in a
160 Article 2, clause (2), Min of Forestry Regulation 20/2012 161 Article 3, clause (5), Min of Forestry Regulation 20/2012 162 Article 3, clause (2), Min of Forestry Regulation 20/2012 163 Article 1, clause (6) jo Article 3, clause (4), Min of Forestry Regulation 20/2012 164 Article 11, Min of Forestry Regulation 20/2012. License according to provisions in Law number 41 of 1999 165 In this case, the Ministry of the Environment and Forestry and the agencies under the Ministry (in this case the Secretary General, the Directorate General for Forestry Enterprises, the Directorate General for River Watershed Areas and Social Forestry and the Director General for Forest Protection and Nature Conservation, the Forestry Research and Development Agency and the Extension Services Agency and the Forestry Human Resources Development Agency 166 Article 1, clause (l), Government Regulation PP 12/2014; 167 Annex : Types and Tariffs for Non-Tax State Revenues applicable to the Ministry of Forestry clause (XII), PP 12/2014; 168 Annex : General Elucidations, Government Regulation PP 12/2014; 169 Presidential Instruction No 10 of 2011 on the Moratorium on Issuing New Licenses and Refinement of Primary Natural Forests and Peatlands, Presidential Instruction Number 6 of 2013 regarding the Moratorium on Issuing New Licenses and Refinement of Primary Natural Forests and Peatlands, 170 Koalisi Masyarakat Sipil untuk Penyelamatan Hutan dan Iklim Global, Briefing Paper Evaluasi Tiga Tahun Kebijakan Moratorium dan Perlindunan Ekosistem Gambut Indonesia, ‘Tugas Utama Pemimpin Indonesia Baru, http://www.mongabay.co.id/wp-content/uploads/2014/05/Evaluasi-Tiga-Tahun-Moratorium.pdf Baca juga: ‘Moratorium hutan gagal tekan deforestasi’, Antara News, http://www.antaranews.com/berita/312533/moratorium-hutan-gagal-tekan-deforestasi
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Opportunities and challenges in implementation Opportunities and challenges in the fulfilment and protection of rights Peluang dan tantangan kelembagaan From a normative standpoint, part of the rights of The institutional analysis will have a similar issues focus Indigenous Peoples and local communities have been as the forestry legal framework since the integration of guaranteed by law. However, uncertainties in tenurial the two relevant ministries. rights remain a key factor in halting the effectiveness of forestry management in Indonesia as well as triggering Based on the new government administration structure, various land based (tenurial) conflict. The land claims the Ministry of the Environment and the Ministry of by Indigenous Peoples in the forest areas are in fact Forestry have been integarted as the Ministry of the occurring in areas which the Government consider Environment and Forestry (KLHK). The mandate given to the forest areas with clear legal status such as the ensures that KLHK is responsible for delivering the National Parks. governmental duties of both fields.171 Furthermore, the new KLHK structure also integrated two other Several main typologies of conflict have emerged: (a) agencies which are the National Council for Climate Conflict between Indigenous Peoples and the Forestry Change (DNPI) and the REDD+ Management Body (BP Ministry, (b) Conflict between the community vs REDD+).172 To date, the transitional process between Forestry Ministry vs National Land Agency (c) Conflict the Ministries and the Institutions are still ongoing between transmigration community vs (indigenous/local and has been of great concern especially regarding the ) community vs Forestry Ministry vs Local Government implementation of ongoing programmes, as well as the vs National Land Agency, (d) Conflict between nomenclature to be used.173 newcomer farmer community vs Forestry Ministry vs Local Government, (e) Conflict between village Another issue to focus on is the de-concentration community vs Forestry Ministry, (f) Conflict between occurring in forestry last year which means that part land brokers vs political elite vs farmer community vs of the authority of the Minister of Environment and Forestry Ministry vs National Land Agency, (g) Conflict Forestry has been delegated to the Governor as the between local (indigenous) community vs license holder, representative of the Government according to the Law (h) Conflict between forest license holders and other number 23 of 2014 regarding Local Governments174. licenses such as mining and plantation and (i) Conflict One of the components regulated in the delegation due to a combination of various actors from (a) to (h). of authority was the protection of forests and nature As demonstrated by the conflict typology mapping, the conservation specifically for non-physical activities issue of uncertainties in boundaries ultimately prevents such as synchronisation and coordination of planning, local and indigenous communities from exercising facilitation, technical assistance, training and extension their rights to manage and utilise the land and natural services, supervision, research and surveys, tutelage and resources in the forest areas176. monitoring as well as control of forestry development programmes. Specifically regarding indigennous communities, the Constitutional Court issued their Ruling number 35/ Several provisions regarding public participation and PUU-X/2012 regarding Hutan Adat (Customary Forest) the community’s rights to forest management according which was read on 16 May 2013 (Constitutional to the provisions of the Forestry Legal Framework Court Ruling Putusan MK 35). This ruling emphatically involves the Ministry of Forestry and the provincial and/ decided that the rights of Indigenous PeoplePeoples or district level agencies under its coordination. Under (hak masyarakat adat) to indigenous territories include the new structure employed by KLHK there must be the customary forest, therefore customary forest is no some adjustments made before KLHK, the respective longer considered to be State Forest as regulated in organs and relevant agencies are able to fully function Law number 41 of 1999177. This ruling is considered including the HCS methodology to development and to have returned the citizens’ constitutional right to community rights.175 indigenous territories to the Indigenous Peoples of Indonesia. However, there has been no follow up to the Constitutional Court Ruling MK 35.
171 Article 2, Perpres 16/2015 172 Article 59, Perpres 16/2015 173 ‘Nomenklatur Kementerian (Habis): Jangan Sampai Ada Pihak Yang Marah’, Republika Online, http://www.republika.co.id/berita/koran/halaman-1/14/11/25/nfkzcm57- nomenklatur-kementerian-habis-jangan-sampai-ada-pihak-yang-marah. Baca juga : ‘Kritik Terhadap Rencana Penggabungan Kementerian Lingkungan Hidup dan Kehutanan, National Geographic Indonesia, http://nationalgeographic.co.id/berita/2014/10/kritik-terhadap-rencana-penggabungan-kementerian-lingkungan-hidup-dan-kehutanan 174 Article 1 dan Article 2, Permenhut 101/2014 175 ‘Struktur Kementerian Lingkungan Hidup dan Kehutanan Gemuk’, Kompas News, http://sains.kompas.com/read/2015/01/28/18221221/Struktur.Kementerian.Lingkungan. Hidup.dan.Kehutanan.Gemuk 176 M.A. Safitri, M.A. Muhshi, M. Muhajir, M. Shohibuddin, Y. Arizona, M. Sirait, G. Nagara, Andiko, S. Moniaga, H. Berliani, E. Widawati, S.R. Mary, G. Galudra, Suwito, A. Santosa, H. Santoso. 2011. Menuju Kepastian dan Keadilan Tenurial (edisi revisi 7 November 2011). Kelompok Masyarakat Sipil untuk Reformasi Tenurial. 177 Masyarakat Adat Tuntut Pelaksanaan Constitutional Court Ruling Putusan MK Tentang Hak Atas Hutan, Ekuatorial.com, http://ekuatorial.com/forests/indonesian- masyarakat-adat-menuntut-hak-atas-hutan#!/story=post-7411&loc=0.24196379999998174,101.29095109999997,7 Baca juga: http://www.aman.or.id/petisi-mk-35- bahasa-indonesia/
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Various criticisms and even petitions have been Opportunities and challenges for environment and carbon tendered by stakeholders especially Civil Society issues fulfilment and protection Organisations (CSOs)178. Several months after the When the Forestry Minister Regulation Permenhut Constitutional Court Ruling Putusan MK 35, the Ministry 20 of 2012 was issued, many felt that finally there of Forestry issued the Minister of Forestry Circular No will be clarity and legal certainty for the initiators and SE 1/Menhut-II/2013 regarding the Constitutional partners of the REDD+ activity implementation181. Court Ruling No 35/PUU-X/2012 dated 16 May 2013 Through the Permenhut 20 of 2012, those conducting addressed to Governors, Head of Districts/Mayors carbon-related activities are given clear licenses for and Heads of Forestry Agencies across all of Indonesia the utilisation activities, including the right to trade which reiterated that the stipulation of customary certified carbon in their respective areas182. This has forests remains within the authority of the Ministry of been relevant for the implementation of an HCS Forestry.179 The Circular required the issuance of a Local methodology, as the regulation defines Carbon Forest Government Regulation as the basis for the stipulation and the implementation of forest carbon activities, of customary forests by the Ministry of Forestry. This which is one of the methods for the conservation and means that the gazettement of customary forests and protection of carbon stocks. the guarantee of protecton for Indigenous Peoples to manage the customary forest still requires a lengthy Other emerging concerns are that the size of the process. Non-Tax State Revenue established would burden the organisers of carbon forest activities, especially those In 2014, the Minister of Home Affairs, the Forestry from the public. For a relatively new initiative and Ministry, the Ministry of Public Works and the Head one without high investment competition, regulations of the National Land Agency signed a Joint Regulation which place more burdens would be considered more on the Procedures for Resolving Land Tenure in the of a hindrance rather than a Government endeavour Forest Area. This Joint Regulation was the follow up to to engage and protect these organisers. The issuance the Joint Memorandum (Nota Kesepakatan Bersama - of this regulation is considered to be premature, and it NKB) regarding the Acceleration of the Gazettement of eliminates the potential ‘incentive’ from carbon forest Forests Areas in Indonesia by the 12 Ministries/State trading for businesspeople183. Agencies, which was signed in order to resolve and ensure the recognition and protection of community With regards to the implementation of HCS, particularly rights in forest areas. Based on this Joint Regulation, in relation to the protection of carbon stocks, the Head of Districts/Mayors will form a Team for the Government Regulation PP 12/2014 demonstrated that Inventory Taking of Tenure, Ownership, Usage and the transaction of carbon sequestering and/or carbon Utilisation (Tim Inventarisasi Penguasaan, Pemilikan, storage from forest areas has a regulatory framework Penggunaan dan Pemanfaatan - IP4T) to ensure the which functions as a legal umbrella. The provisional availability of maps and relevant information regarding articles show that the transactions are expected to land tenure required by applicants, especially regarding provide a significant contribution to State revenue yet land rights and tenusre in the forest areas in districts/ how the collected funds will be utilised to support municipalities180. However this Regulation which was conservation is not regulated. In the development initiated to identify, verify and recognise ulayat lands of of a HCS concept implementation, one of the indigenous communities was finally narrowed to only recommendations which must be submitted is regarding individual rights. The recognition ofulayat rights remains the utilisation of the PNBP received from the carbon scattered between the Ministry of the Environment and trading transaction for supporting efforts towards the Forestry and the Agrarian Affairs and Spatial Planning protection of carbon stocks and conservation. Ministry (formerly National Land Agency). Therefore, the process for the recognition of communal rights remain Although a series of regulations on carbon stocks unclear. Furthermore, the restructuring of institutions have been issued regarding forest carbon stocks and currently occuring is influencing all ministries/agencies its utilisation, in actuality, the definition of carbon, involved in this Joint Regulation. the legal status and ownership rights of carbon have
178 ‘Setahun Putusan MK 35 AMAN Desak Pemerintah Segera Akui Hutan Adat’, AMAN, http://www.aman.or.id/setahun-putusan-mk-35-aman-desak-pemerintah-segera-akui- hutan-adat/ Baca juga : Petisi Kepada Pemerintah Indonesia: Segera Laksanakan Putusan MK No.35/PUU-X/2012 dan Sahkan RUU Masyarakat Adat, https://www.change. org/p/kepada-pemerintah-indonesia-segera-laksanakan-putusan-mk-no-35-puu-x-2012-dan-sahkan-ruu-masyarakat-adat 179 Surat Edaran Menteri Kehutanan Nomor SE 1/Menhut-II/2013 tentang Putusan Mahkamah Konstitusi Nomor 35/PUU-X/2012 dated 16 Mei 2013 ditujukan kepada Gubernur, Bupati/Walikota dan Kepala Dinas kehutanan seluruh Indonesia, http://inkuiriadat.org/wp-content/uploads/2014/05/Surat-Edaran-Menteri-Kehutanan-2013- Tentang-Putusan-Mahkamah-Konstitusi.pdf 180 Peraturan Bersama Menteri Dalam Negeri Republik Indonesia, Menteri Kehutanan Republik Indonesia, Menteri Pekerjaan Umum Republik Indonesia dan Kepala Badan Pertanahan Nasional Republik Indonesia Nomor 79 Tahun 2014 tentang Tata Cara Penyelesaian Penguasaan Tanah yang Berada di dalam Kawasan Hutan 181 Permenhut 20/2012 dianggap dapat meluruskan perbedaan aturan (gap policy) yang termuat dalam Permenhut 14/2004, Permenhut 68/2008, Permenhut 30/2009 dan Permenhut 36/2009. 182‘Pengelolaan Kabon Hutan Indonesia Miliki Patung Hukum’, Budhy Kristinty, CIFOR, http://blog.cifor.org/8925/pengelolaan-karbon-hutan-indonesia-miliki-payung-hukum#. VRcqsIdbvFI 183 ‘Perdagangan Karbon: Pemerintah Akan Kenakan Tarif Pungut’, Bisnis Online, http://industri.bisnis.com/read/20120709/99/85235/perdagangan-karbon-pemerintah-akan- kenakan-tarif-pungut
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not been clearly legislated. The current series of Normative analysis regulations place more emphasis on regulating the forest carbon trade transactions and its implications. Plantation estates and community rights to land and One of the consequences is the misunderstandings territories especially at the provincial level where there is a race The Plantation Laws and derived regulations to declare carbon related programmes184. It must be have several provisions in the form of obligations, remembered that in order to be able to lucratively trade requirements and performances from plantation estate in forest carbon for the benefit of all stakeholders, the practitioners with regards to community rights. This government must have a clear definition of carbon, normative analysis will only review the provisions a baseline or reference level for the emissions which governing the protection of Indigenous Peoples is nationally recognised, and an adequate MRV rights, the social benefits of plantations in the form of mechanism.185 community plantations and partnership schemes and the monitoring and assessment of the performance of plantation rights with regards to community 1.10 Plantations rights. Plantation business practitioners are those holders of Plantation Business License (Izin Usaha Legal foundation Perkebunan - IUP), Plantation Cultivation License (Izin Usaha Perkebunan Budidaya - IUP-B), Nucleus Estate • Law Number 39 of 2014 in conjunction with Law Smallholder Scheme - Plantation (Perkebunan Inti Rakyat- No. 18 of 2004 regarding Plantations Perkebunan or PIR-BUN), Nucleus Estate Smallholder • Constitutional Court Ruling Putusan MK Nomor 55/ Scheme in Government Sponsored Transmigration PUU-VIII/2010 regarding the Review of Law Number Areas (Perusahaan Inti Rakyat-Transmigrasi or PIR- 18 of 20014 on Plantations TRANS), Nucleus Estate Smallholder Scheme - Primary Cooperatives Credit for Members (Perusahaan Inti • Minister of Agriculture Regulation No 7/Permentan/ Rakyat-Kredit Koperasi Primer untuk Anggota or PIR- OT.140/2/2009 regarding Guidelines for Assessing KKPA). Plantation Estates Protection of community rights • Minister of Agriculture Regulation No. 19/ The Plantation Law regulates the plantation Permentan/OT.140/3/2011 regarding Guidelines for estate’s land needs. In reality the de jure land Sustainable Palm Oil Plantations in Indonesia tenure is different to de facto. De jure land for plantations should be land controlled by the State. • Minister of Agriculture Regulation No. 98/ However, the reality is that many territories are Permentan/OT.140/9/2013 regarding Guidelines for part of indigenous territories. The government Plantation Estate Permits must be present to bridge this problem. Therefore plantation regulations stipulate that acquiring land from Indigenous Peoples must abide by several requirements.
Firstly, the Plantation Law stipulates that if the required land is ulayat land of masyarakat hukum adat, before the rights to the land is given, the party needing the land must hold consultations with the Indigenous Peoples and those holding the land rights, in order to reach an agreement regarding the relinquishment of the land and compensation.186 In its explanation section, the Plantation Law added a clause that the consultations with the Indigenous Peoples as holders of the ulayat land rights, and the land rights holders will not always be followed by a relinquishment of their land rights.187
184 ‘Aceh Mimpi Uang Karbon’, Serambi Indonesia – Tribun Network, http://aceh.tribunnews.com/2015/01/30/aceh-mimpi-uang-karbon?page=4. Baca juga : ‘Bengkulu Siapkan 472.664 Hs Hutan untuk Perdagangan Karbon, Kompas News, http://bisniskeuangan.kompas.com/read/2014/02/06/1323104/Bengkulu.Siapkan.472.664.Ha.Hutan. untuk.Perdagangan.Karbon 185 http://www.forda-mof.org//files/bagaimana_menyikapi_ketidakpastian_pasar_karbon-wv.pdf, Rumusan Konsultasi Publik 2012 186 The Plantation Law places limitations on the existence of masyarakat hukum adat by stipulating requirements demonstrating their presence. The elements proving their presence: (1) the community is still in the form of an association (rechtsgememschaft); (2) a customary governance structure; (3) clear customary law territory (wilayah hukum adat);(4) order and customary justice instruments in particular justice instruments which are still adhered to; and (5) official establishment through Local Government Regulation. Please refer to explanation in Article 9 clause 2 Law Number 18/2004 187 Article 9 clause 2 Law Number 18 of 2004 and the explanation, Article 12 Law Number 39 of 2014
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The outcome of the consultation is written as Secondly, with respect to the community being an agreement to relinquish the land and its facilitated, the community must be those residing in compensation with the knowledge of the Governor areas surrounding the IUP location and must meet the or the Head of the District/Mayor, according to following criteria: (a) their land is being utilised for the their authority.188 plantation development and have low incomes. The categories defining low incomes are regulated by laws The development of community plantations and and regulations; (b) must reside in the areas surrounding partnership schemes the IUP-B or IUP location; (c) capable of managing the The Plantation Law does not obligate plantation plantation; and (d) the community’s eligibility will be business operators to have a land use permit prior determined by the Head of the District/Mayor based to obtaining the business license and operating the on the recommendations of the local Head of the Sub- plantation business. The regulation has the implication District (Camat). that the Plantation Business License (Izin Usaha Thirdly, assistance and guidance. The Governor or Head Perkebunan - IUP) may cut across or even be within the of District (Bupati)/Mayor in accordance with their Indigenous Peoples territories or individual land. At this respective authority will supervise the implementation point, the businessperson has not undergone the legal of the community plantation development facilitation process of transferring the rights status of the land by the IUP-B or IUP permit holder company which including buying or selling, indemnity for losses (ganti encompasses planning, fulfilment of obligations and rugi) or to borrow the terminology from the Plantation business sustainability. Furthermore, the Governor or Law “imbalan” (compensation in return for services Head of District (Bupati)/Mayor and the Plantation or goods tendered). In order to bridge this issue, the company will provide guidance for the community in Ministry of Agriculture issued a Minister of Agriculture good practices in cultivation, harvesting and post- Regulation Nomor 98/Permentan/OT.140/9/2013 harvest handling.190 whereby one of its objectives was for IUP holders without rights to land to be required to facilitate the Another scheme being developed is partnerships.191 development of community plantations. This scheme is conducted between the plantation company and the growers192, employees and There are three key elements in regulating the communities around the plantation. The partnership obligation to develop community partnership scheme implementation is conducted in writing in plantations. Firstly, the size, location and executor. the form of an agreement according to the format According to the Ministerial Regulation above, the attached in Annex 4 of the Minister of Agriculture business applying for the IUP-B or IUP with plantation Regulation Permentan 98/Permentan/OT.140/9/2013. area of two hundred fifty (250) hectares or more to The shortest term is four (4) years.193 The partnership facilitate the development of community gardens/ pattern is the provision of means of production, plantations. The holder shall allocate at least twenty facilities for production, processing and marketing, percent (20%) of the plantation area granted for the transportation, operations, share ownership and/ holder of IUP-B or IUP. The facilitated community or other supporting services.194 The partnership plantations will be outside the IUP-B or IUP area. In scheme does not free the IUP holder from facilitating addition, the executor of this obligation will take into the development of gardens/plantations for the consideration the requirements of land availability, the community.195 number of eligible families in the surrounding area and the agreement between the plantation business and the surrounding communities, with the knowledge of the Head of the Government Agency at the Provincial or District/Municipality level. This obligation does not apply to legal entities which are cooperatives, and plantation businesses which obtained their plantation business license before 28 February 2007 and has applied the PIR-BUN, PIR-TRANS, PIR-KKPA patterns or other nucleus-plasma partnership schemes.189
188 Article 24 Minister of Agriculture Regulation No 98/Permentan/OT.140/9/2013 189 Article 15 clause 1 dand 3, Article 40 dan Article 60 Minister of Agriculture Regulation 98/Permentan/OT.140/9/2013 190 Article 15 clause 2, 4, 5, 6 and 7 Minister of Agriculture Regulation 98/Permentan/OT.140/9/2013 191 Article 22 Law Number 18/2004, Article 57-59 Law Number 39/2014 192 Grower (Pekebun) is a concept in the Minister of Agriculture Regulation Permentan 98/Permentan/OT.140/9/2013 to define individual Indonesian citizens who are operating a plantation business which does not reach a specific scale. This concept differs from the plantation business which is defined as a legal entity which was established by Indonesia law and is domiciled in Indonesia for managing a plantation business of a specific scale. See Article 1 point 6 & 7 193 Article 29 Minister of Agriculture Regulation 98/Permentan/OT.140/9/2013 194 Article 31Minister of Agriculture Regulation 98/Permentan/OT.140/9/2013 195 Article 30 clause 3 Minister of Agriculture Regulation 98/Permentan/OT.140/9/2013
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Monitoring and Assessment of Plantation Performance Protection of the environment and carbon stocks The laws and regulations in the Plantation sector Plantation provisions do not specifically govern efforts regulates the monitoring mechanism for the IUP towards guaranteeing carbon stocks. However, one of performance. The monitoring and assessment the plantation functions stipulated by the Plantation component is also related to the community’s rights Law relevant to carbon stocks, is the ecological function to land. The institutions with the authority to do of plantations. This function is detailed further as the so are the Head of the District/Mayor/Governor/ increased conservation of land and water, carbon Directorate General of Plantations in the Ministry sequestration and protected area buffer zones.201 The of Agriculture according to their respective scope carbon sequestration function is directly related to of authority. The plantation business companies the protection of carbon stocks. However, there are being monitored and assessed are companies no other provisions in the Plantation Law, nor in its holding Plantation Business Licenses, including derivative regulations which specifically govern the Plantation Business Registration (Surat Pendaftaran carbon sequestration function. Usaha Perkebunan - SPUP), IUP, IUP-B or IUP-P. The scope of monitoring and assessment includes There is a brief mention of efforts towards the the interrelation between all sub-systems of the protection of carbon stocks and maintaining emissions business beginning with the provision of the in the Minister of Agriculture Regulation No. 9/ means of production, facilities for production, Permentan/OT.140/3/2011 regarding Guidelines processing and marketing of the products as well as for Sustainable Palm Oil Plantations. In Annex 2 of other supportive services. In short, assessment is this Regulation, the principles, criteria, indicators and performed for all units in the plantation business.196 guidelines for sustainable palm oil are further detailed. This assessment is performed at the development One of the principles and criteria regulated is planting and operational stages.197 on peatlands. One of the guidelines for planting on peat land is the management of water levels between The assessment of the development phase is 50-60 cm to prevent carbon emissions from peat soil. conducted during the plantation development stage The other principles relevant to carbon stocks are the and the plantation processing unit development technical guidelines for cultivation and processing stage which includes: legality, management, of palm oil, which takes environmental issues into resolution of rights to land, actual development consideration. of plantation and/or plantation processing unit, ownership of facilities and infrastructure and the On a macro level, the Plantation Law and its derivative system for the prevention and control of fires and regulations have governed the legality of palm oil Pest Management System, the application of the from an environmental aspect. The following tables AMDAL outcomes or UKL and UPL, growth and further detail the main illegalities in the palm oil sector empowerment of local communities/cooperatives , starting with before the license is obtained to land as well as reporting. This assessment is conducted clearing operations and marketing. This summary is at least annually.198 a brief version of the provisions in various plantation regulations.202 The assessment at the operational stage encompasses legality, management, plantation, produce processing, social aspects, regional economy, the environment and reporting. The operational assessment schedule differs from the development stage; it must be conducted at least every three (3) years.199
After the assessment, the assessor will give the business a rating. Warnings will be issued for companies awarded a D, E, IV and V rating. If they fail to implement the follow-up recommendations of the assessors, their business license will be revoked.200
196 Article 9 Minister of Agriculture Regulation No 7/Permentan/OT.140/2/2009 197 Article 4Minister of Agriculture Regulation No 7/Permentan/OT.140/2/2009 198 Article 5 Minister of Agriculture Regulation No 7/Permentan/OT.140/2/2009 199 Article 6 Minister of Agriculture Regulation No 7/Permentan/OT.140/2/2009 200 Article 20-26 Minister of Agriculture Regulation Permentan No 7/2009 201 Article 4 Law Number 18/2004 202 Article 25, 50, 51 and 52 Law Number 18/2004, Article 21, 22, 23, 33, 34, 35 40 Minister of Agriculture Regulation 98/Permentan/OT.140/9/2013. Most of the Minister of Agriculture Regulation No 9/Permentan/OT.140/3/2011 has adopted environmental principles.
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Table 1.5: Legality of Oil Palm according to laws and regulations.
Oil Palm Legality
Category Provisions
Must perform an environmental impact assessment (AMDAL) or efforts to manage the environment and monitor the environment; Pre-license Must have an has analysis and risk management for those employing genetically modified materials Must make a statement of the ability to provide facilities, infrastructure, and adequate emergency response systems cope with fires during the clearing of land and/or land processes.
Must have a permit for upstream business or management. Must clear land WITHOUT use of fires. Land Clearing Must have clear foundation of rights. Must implement AMDAL.
Has a letter stating quality and/or packaging for plantation products ; Yield processing Has a letter allowing the use of auxiliary materials for plantation crops processing industries from the Minister of Agriculture; and or Has a letter stating the the materials mixed with plantation products IS NOT hazardous to human health and safety, DOES NOT destroy environmental functions and/or cause unfair business competition
Advertising plantation crop products according to the consumer protection standards Marketing Does not originate from plantation crops obtained by looting and/or theft
The Plantation Law also emphasises the consequences No. 9/Permentan/OT.140/3/2011, the mechanism of non-compliances to principles of environmental for release of land is not regulated further to protect conservation. It is stipulated that the government has the communities or individuals who are socially more the authority to reject business license applications vulnerable than the large capital owners. from any plantation business which does not meet the pre-license environmental pre-requisites. Furthermore, the Plantation Law also states that every plantation Opportunities and challenges in implementation business which has obtained their plantation business permit but does not apply AMDAL or UKL and UPL will Institutional aspect 203 have the license revoked. There are several issues requiring further attention with regards to the institution. First is the plantation Therefore it can be stated that in general the plantation business monitoring system. Various regions have provision does regulate community rights as well as monitoring such as Central Kalimantan and East environmental aspects. However, the provisions on Kalimantan. The Plantation Agency at the Provincial and community rights have serious legal problems. The District levels are performing their duties by conducting first issue is the concept of compensation (imbalan) annual monitoring of IUPs. However the transparency to replace ulayat land. This concept is unknown in the of the monitoring findings is very minimal. The public regulations on “indemnity” (ganti rugi) let alone in buying often has no information whatsoever regarding the or selling. In everyday Indonesian language, “imbalan” is performance of the business with regards to their the recompense for services or acts. The legal concept location and their operational methods. Even affected known in the transfer of ownership of land is “ganti communities have no knowledge of the status, rugi” if the activity causing the transfer/release of rights let alone the quality of the plantation company is in the interest of the public. Another concept is “jual- especially regarding the environment. Several beli” (buying and selling) which is a civil concept for a challenges such as complex terminologies, low level legal relationship which is private. In addition, of understanding regarding the public’s right to the plantation provisions do not have further information and other factors also affect the issue of mechanisms for ensuring that customary rights or monitoring. This issue is not yet accommodated fully as individual rights are protected adequately according to a legal aspect (Paoli G.D., P. et al. 2013). the provisions of laws and regulations. In the further provisions in the Minister of Agriculture Regulation
203 Article 25 clause 4 & 5 Law Number 18/2004
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Another issue highlighted is the lack of independent the consequences, for example the hunt for more land monitoring. Plantations and other land-based by the company in order to fulfil the target of 20% businesses build their own “kingdoms” which are hard community gardens. The company would find a way for others to access. The presence of a third party to obtain new land, and the community may possibly selected and even accompanied by a representative find land and request for the company’s assistance to from the Plantation Agency. The role of an independent develop their gardens. Both methods have the potential monitoring body must be formalised and supported by risk of causing conflict with other landowners. the government. One reason is that the government lacks adequate resources to supervise all aspects in the The other consideration regarding the number of performance of plantation companies. The presence families is also ambiguous. The company may seek of a third party would assist the government (State) to to justify the fact that there are too many or too few perform their constitutional mandate in ensuring that company to suit their profitability considerations. There natural resources are being utilised for the maximum is no clear thresholds thus making this provision hard to prosperity of the People. apply.
Even if the palm oil business practitioners had the There are also problems with the schemes for goodwill to promote a business system according communities around the IUP. Firstly, the plasma to good management principles, the system at the mechanism, partnerships and plantation development District/Municipality/Provincial levels cannot support is not understood by the community. The company positive initiatives. Extra levies and the complications initiative to promote the implementation of this of the bureaucracy system halt the company’s intention mechanism differs in different regions. In Morowali, the to promote management systems, which abide by community lacks an understanding of the partnership environmental principles and respect of community’s or plasma mechanism because from the outset there rights. was no detailed and clear information presented by the company or by the government.204 In several places, these mechanisms are considered to be a company Community protection aspect strategy to expand their lands, and a means of co- opting the procedures by borrowing the community’s The provisions of the Plantation Law regarding the consent as a solution. recognition of ulayat rights of Indigenous Peoples do not regulate the process of land transfer or release, Above all, the Plantation Law is rife with repressive including the community’s right to information or approaches to the community as well as individuals the option for the Indigenous community to refuse disagreeing with palm oil, and those demanding their should they disapprove of the plantation investment. rights to land and the environment. The Constitutional The recognition of customary rights has instead Court Ruling MK Number 55/PUU-VIII/2010 produced the strong impression that consultations has reduced two Articles which were laden with on the land begin with the assumption that the land criminalisation of the community i.e. Article 21 and will be released. Therefore, the final objective of the 47. However, the Constitutional Court Ruling has not consultation is for the relinquishment of rights and nullified Article 20 which enhances the repressive spirit recompense. The concept of recompense demonstrates of the plantation management system which reads as that the plantation law still underestimates customary follows: rights. Meaning that these rights are not fully recognised as equal and formal rights as stipulated in Plantation business practitioners may safeguard BAL. their plantation estate in coordination with security apparatus and may involve the assistance of The allocation of land for communities outside the surrounding communities. IUP is the next issue for discussion in addition to the considerations for land availability and the number This Article is the platform for plantation companies of eligible families. The Ministry of Agriculture is fully to request and even hire State apparatus to safeguard cognisant that ensuring the availability of twenty plantation locations where perhaps they are in tenurial percent (20%) of land for community gardens is a conflict with surrounding communities. Unsurprisingly, problem. However, the same provision also demands for records abound of violence against local residents. expansion beyond the IUP for community plantations. SawitWatch (2011) recorded 660 plantation conflicts in The scarcity of land is not being considered by the 16 Provinces. The highest number of victims are those Ministry as a reason to think more projectively regarding demanding their rights.
204 Christopel Paino, 30 Maret 2015, Permasalahan Perkebunan Sawit di Morowali Tak Kunjung Usai, Ini Penyebabnya, lihat http://www.mongabay.co.id/2015/03/30/ permasalahan-perkebunan-sawit-di-morowali-tak-kunjung-usai-ini-penyebabnya/
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Environmental protection aspect 1.11 Village The carbon stock issue is also part of the responsibilities Legal basis of the environmental authorities. The issue is that the plantation standards are not yet fully connected to • Law No. 6 of 2014 on Villages environmental standards. The recent cases of forest and land fires are mostly caused by the Government rarely • Government Regulation No. 43/2014 concerning employing environmental standards. AMDAL is often the Implementing Regulation for Law No 6/2014 on developed after the issuance of the business license. Villages In some cases, AMDAL was even developed in a ring of corrupt practices with rampant systemic bribery • Minister of Home Affairs Regulation No. 52 of 2014 (Transparansi Internasional Indonesia, 2011). concerning Guidelines for the Recognition and Protection of Indigenous People The monitoring and supervision of Strategic Environmental Assessment (KLHS), AMDAL and even UKL-UPL has not been specifically regulated within the Normative analysis plantation authorities. The Minister of Agriculture No. 7/Permentan/OT.140/2/2009 regarding the Villages and public rights Guidelines for Plantation Business Assessment mostly employs the principles and criteria which are the In the Village Law, village authority is expanded standard plantation monitoring conducted by the according to customary rights and Village-scale local Plantation Agency or the Directorate General for authority. The “customary rights” referred to here Plantations. Meanwhile, KLHS, AMDAL and UKL- are inherited rights which are maintained, and Village UPL which are part of the environmental regime is initiatives or the initiative of the Village community not directly connected to the plantation bureaucratic according to the development in community life, system. including the organisational system of Indigenous People, institutions, customary law, Village lands (tanah Therefore the main challenge in carbon stock protection kas Desa), as well as consensus in the Village community is environmental law enforcement. The current life. Meanwhile, “Village-scale local authority” refers to conditions show a lack of effective efforts towards the power to coordinate and regulate Village community promoting the environmental standards employed in the interests as implemented by the Village, which may plantation sector also a lack of space for environmental effectively be accomplished by the Village, or which authorities such as the Environmental Body to monitor arises as a result of Village developments and Village and evaluate AMDAL practices and other environmental community initiatives, including for boat moorings, plans. Village markets, public bath houses, irrigation canals, public sanitation, community health posts (posyandu), arts and learning centers, as well as Village libraries, retention basins, and roads.
Two of these responsibilities demonstrate Village autonomy not associated with administrative delegation of affairs from the district (kabupaten) government or the implementation of applicable regulations. Villages determine the scope and load of its authority according to customary rights and local needs. Furthermore, PP No. 43/2014 elaborates on the two types of authority mentioned, seen in Table 1.6 as follows:
Table 1.6: Customary authority and local authority.
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Category of village authority Scope of authority
Authority according to customary rights Indigenous People organisation system; Development of community institutions; Development of customary laws and institutions; Management of Village lands; and Expansion the role of the Village community.
Village-scale local authority Management of boat moorings; Management of Village markets; Management of public bath houses; Management of irrigation canals; Management of the Village community settlement environs; Development of public health and community health posts; Expansion and development of arts and learning centers; Management of Village libraries and reading rooms; Management of Village retention basins; Management of Village-level drinking water; and Constructing Village roads between settlements to agricultural regions.
Traditional Village Authorities have thus far differed Environmental protection depending on the decisions of the Provincial The Village Law and its byproducts do not specifically Government. This issue was addressed by PP 43/2014, regulate environmental affairs at the village level. which further elaborated upon the eight minimum However, a number of policies for environmental authorities of Traditional Villages which must be conservation and management have already become effected according to customary rights: village authority. One of these policies is spatial planning at the village level (Steni, 2014). Structuring and organisational system and institutions for Indigenous People; The scope and limitation of Village Spatial Planning is not specifically detailed in the Village Law. Despite this, Customary law institutions; the spatial planning regime has legally defined spatial Ownership of traditional rights; planning as the realisation of infrastructure and land use plans. Infrastructure plan is the collection of settlement Management of traditional village lands; centers and facility network systems which function to support public socio-economic activities, which Management of communal land (tanah ulayat); hierarchically possess a functional relationship. In other words, the infrastructure plan starts with the identifying Agreements in traditional village community life; and inventorying of daily utilisation of spaces for various types, kinds and scales of uses. For example, Appointing a traditional village chief and traditional land for roads, housing, plantations, irrigation, and the village apparatus; and like. Meanwhile, the land use plan is the distribution of land within a region, which encompasses the Terms for traditional village chiefs. designation of land to be protected and the designation of land for cultivation. In its formation, the land use plan These eight authorities are the minimum authorities is a design of the land utilisation agreement between possessed by Traditional Villages. This means that various parties, both by regulating as well as limiting the the government cannot reduce the Traditional existing structures as well as expanding and increasing Village authorities from these eight stipulated in this new types of land utilisation (Steni, 2014). Government Regulation (PP). Furthermore, the village authority is also supported by the legal basis stated by According to the definition provided by the Spatial the Village Law, which is MK 35/PUU–X/2012. The Planning Law, the Village Spatial Planning authority is application of the Constitutional Court (MK) Decision the authority to determine the infrastructure and land as a legal basis in formulating a Law is an important use plan at the Village level. As a result, Villages have breakthrough in the Village Law (Simarmata, 2014). the authority to identify, regulate, and determine the
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types and activities of spatial utilisation in the scope of Customary rights the Village. This authority is binding for residents of the Customary rights are an important breakthrough in the Village. However, these authorities should also apply to effort to strengthen Indigenous Peoples in Indonesia. external parties, who must also comply with the Village This right is acknowledged in the Constitution. In the Spatial Planning (Steni, 2014). Village Law, support for the identification of these rights comprises part of the task of the Provincial Government. There is greater opportunity for this Challenges and opportunities in implementation with Constitutional Court Decision 35 acknowledging customary forests as the right of indigenous Institutional aspect communities, allowing for the previously prohibited Part of the Ministry of Villages, Underdeveloped identification of customary rights within forest areas. Regions and Transmigration (PDTT) mandate is to In addition, the Ministry of Home Affairs has issued ensure that Village Institutions function. This ministry Minister of Home Affairs Regulation No 52/2014, was recently formed and does not yet have a track which specifically regulates the states of recognition for record for resolution strategies concerning rights and customary law communities: identification, verification the environment at the village level. The scope of its and validation. authority even now remains in contention with the Ministry of Home Affairs (Kemendagri), which is reluctant The Provincial Government is able to map customary to relinquish all of the authorities related to villages to land claims in forest areas. The legal measures to be the Ministry of PDTT (Agusta, 2015). One of the main taken can be developed by referring to the Village issues for both concerns funding. The Ministry of Home Law, Minister of Home Affairs Regulation 52/2014 Affairs insists on maintaining control over funding for and regulation related to forestry as an extension of villages. Constitutional Court Decision 35. The model developed follows six stages as shown below. The authority over customary rights has not been formalised under any particular institution with operational duties. In fact, there is yet to be any process which is intended specifically to design institutions to address customary rights. The role of the Village with regards to licenses is also very limited. Village level spatial planning (RTRWDes) does not encompass license exceptions or veto to reject spatial planning arrangements determined at the Kabupaten and Province level. The Village Authority is limited to rights over village lands. A legal solution has not been found for cases in which these lands have been allocated or appropriated by third parties. In actuality, much of the customary land owned by the village has been transferred to other parties due to prior designation of said land as forest area.
The implementation of the Village Law at this time is problematic without an institution empowered to protect properties and the environment at the village level. Perhaps a transition period should be designated where the government or related institution comprehensively maps the factual conditions at the village level. Based on this, the relevant agencies can generate more operational village policies. This includes a division of responsibilities between the Ministry of PDTT and the Ministry of Home Affairs that is better founded upon the village needs.
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1
Pembentukan tim pengakuan 1: Form a customary land recognition team tanah adat 2: Identify customary land 2 3 4 3: Verify UU No 6/2014 4: Provincial Regulation recognising the Identifikasi Perda Pengakuan Verifikasi PP No 43/2014 indigenous community Tanah Adat masyarakat adat 5: Relinquish forest area status 6: Registration by BPN 6 5
Registrasi oleh Pelepasan Permenhut No Permenhut = Minister of Forestry Regulation BPN kawasan hutan 62/2013
Stage 1 Environmental protection and carbon stocks The Provincial Government forms a team for the Village spatial planning is an opportunity to control land recognition of customary lands, whereby this team is use at the village level. Villages should be equipped with then authorised to identify claims to customary areas the authority to control and monitor the use of village and verify relevant evidence as well as conduct field areas. At this time, the Village only has the authority verifications. The team need not always start with to report village land use, including suspicions of identifying claims; it may immediately verify claims inconsistencies between policies towards the protection actively submitted by the community. of areas allocated to sustainable food purposes for the village and other policies which decrease these Stage 2 allocations. The team identifies claims to customary lands. Currently there are no specific provisions regulating Identification is the act of checking whether there is the spatial planning process at the Village level and the sufficient evidence, or additional evidence is required. minimum outcomes which should be obtained in this process. The Village Law only states that the Village Stage 3 Regulation (Perdes) regarding Village Spatial Plans must The team verifies by checking that the evidence be evaluated by the Head of the District. In addition, is consistent. Field visits may be conducted if the the process for developing Perdes must be done in evidence provided is insufficient. a participatory manner. Government Regulation PP No. 43/2014 is no less ambiguous than the Village Stage 4 Law. This Government regulation only describes that The Provincial Government recognises the claim planning, utilisation and application of Village assets to customary land that has been verified through a and spatial plans in the development of the rural areas Provincial Regulation. should be done based on the outcome of Village deliberations which would subsequently be established Stage 5 by Village regulation. If the area that is recognised is located within a state forest, the Provincial Regulation becomes an instrument to request the change of status from a state forest to a customary forest area.
Stage 6 BPN registers the communal customary land (tanah ulayat) of the indigenous community. To this aim, BPN must establish institutional and bureaucratic structures for the registration of land in order to provide a special administrative system for collective lands.
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1.12 Local government regulation Recognition of Indigenous Peoples rights Several Local Government regulations issued by local List of local government regulations governments regulate various masyarakat adat rights. From the right to utilise ulayat land205, the protection • West Sumatera Province Regulation No. 16 of 2008 of indigenous territories206, recognition of customary regarding Ulayat Land and its Utilisation institutions207 as well as the more comprehensive regulations such as the Malinau District Regulation • Central Kalimantan Province Regulation No. 16 regarding the Recognition and Protection of Indigenous of 2008 regarding Dayak Customary Structures in Communities (Masyarakat Adat) which stipulates the Central Kalimantan guarantee of recognition of the right to land, territories and natural resources, the right to development, • Central Kalimantan Governor Regulation No. 13 of the right to spirituality and culture, the right to the 2009 regarding Customary Land and Customary environment, the right to self determination as well as Rights to Land the right to practice customary laws and justice. • Malinau District Regulation No. 10 of 2012 regarding The various Perda on the recognition of customary the Recognition and Protection of Indigenous rights do not regulate the same fundamental principles Peoples due to the lack of a standard guide in the development • Lebak District Regulation No. 32 of 2001 regarding of the Local Government Regulation regarding the Protection of the Baduy People Ulayat Rights Indigenous Peoples from the Central Government. Furthermore, the varying situations and needs • Sigi District Regulation No. 15 of 2014 regarding the from one region to the next make these differences Empowerment and Protection of Indigenous Peoples inevitable. A noticeable difference is the recognition of the Indigenous Peoples rights to customary land. • Jayapure District Regulation No. 8 of 2012 regarding Several Perda regulate the recognition and protection Villages of communal rights within the scope of community territories. An example is the Lebak District Regulation on Protection of the Baduy Peoples, or the communal Regulation analysis rights within the scope of the tribe and clans of the Minangkabau People based on the West Sumatra The involvement of local governments in the Province Regulation regarding Ulayat Land and its recognition of indigenous community rights and their Utilisation. There are also regulations recognising the territories began as decentralisation commenced not right to individually and communal owned land such long after the New Order regime changed in 1998. as the Central Kalimantan Province No. 16 of 2008 on The Agrarian Minister Regulation No. 5 of 1999 Dayak Customary Institutions in Central Kalimantan regarding the Guidelines for Resolving Ulayat Land and the Governor Regulation No. 13 of 2008 regarding Issues was the first legal platform which stipulated Customary Land and Rights to Land208. that the establishment of ulayat rights or customary territories is by Local Governments in the form of Local Government regulations (Peraturan Daerah - Perda). Subsequently, many other laws and regulations gave Local Governments the authority to perform this. The following is an analysis of these existing local government regulations.
205 West Sumatera Province Regulation on Ulayat Land and its Utilisation. 206 Lebak District Regulation No. 32 of 2001 on Protection of the Baduy Peoples Ulayat Rights 207 Jayapura District Regulation No. 8 of 2014 on Villages. Also refer to Central Kalimantan Province Regulation No. 16 of 2008 on Dayak Customary Institutions in Central Kalimantan 208 Central Kalimantan Governor Regulation No. 13 of 2009 regarding Customary Land and Customary Rights to Land stipulates in Article 1 point 13: Communal adat land is the land inherited from one generation to the next managed and utilised together by the heirs as a community and this can be defined in equal terms as Ulayat Rights. Meanwhile Article 1 point 14 states: Individual adat land is personal property obtained from clearing forest or planting a field, buying or selling, grant or inherited through customary means, may be in the form of a planted field or empty land.
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Procedures for establishing Indigenous Peoples and Utilisation of land and environmental protection indigenous territories Several Local Governments have issued regulations to Several Perda do not just contain the provisions for recognise the existence and territories of Indigenous the recognition of customary rights and territories, but Peoples. Several of these regulations are oriented also provisions which are operational and procedural in towards increasing the utilisation of indigenous order for Indigenous Peoples to enjoy the benefits of territories such as the West Sumatera Province their rights as guaranteed by the laws and regulations. Regulation on Ulayat Land and its Utilisation.212 On the In this regard, the West Sumatera Regulation regarding other hand there are regulations which are oriented Ulayat land and its Utilisation regulates the ulayat nagari towards supporting conservation activities conducted rights (nagari/Minangkabau village territory over which by Indigenous Peoples, such as the Lebak District a village/clan association holds socio-political rights), Regulation No. 32 of 2001 on Protection of the Baduy ulayat suku rights (territory over which a clan association Peoples Ulayat Rights.213 There are even some criminal holds socio-political rights), ulayat kaum rights (territory provisions in the Baduy Peoples regulation which can controlled by lineage, similar to harato pusako or tangible be applied to outsiders who are disturbing, damaging inherited property), and ulayat rajo rights (possible and using the Baduy Peoples indigenous territories.214 meaning is no man’s land between adjacent nagari not for cultivation or use, related to Minangkabau King) existing among the Minangkabau people which may be Opportunities and challenges registered with the Government.209 In the past fifteen years, the sub-national regions Meanwhile the Local Government Regulation and the have become the arena for changes in regulations and Governor Regulation regarding Indigenous Land in policies which support the rights of Indigenous Peoples Central Kalimantan authorises the Damang (colonial and environmental protection. There are opportunities district head) who is considered to represent the and challenges in using regional law products for these Indigenous community leadership within the scope of purposes. the district to issue the Indigenous Land Letter (Surat Keterangan Tanah Adat - SKTA) for individual customary Firstly, the capacity of local governments to present land as well as communal customary land.210 The regulations and policies to suit the issues faced by Malinau District Regulation on the Recognition and Indigenous Peoples and for these to be properly Protection of Indigenous Peoples Rights regulate the implemented. Comprehensive contextual social and procedures on establishing Indigenous Peoples and tenurial research is required to achieve this and must Indigenous Territories in a different way. An Indigenous avoid the trap of outdated literature especially in the Peoples Management Body (Badan Pengelola Urusan study of customary law (hukum adat) in order to define Masyarakat Adat - BPUMA) which is tasked with the current existence of Indigenous Peoples. identifying and verifying the presence of Indigenous Peoples then submitting their recommendation for Secondly, the economic and political competition at the Head of the District to issue a Decree regarding the local elite level. At a time when Indigenous Peoples the establishment of a particular Indigenous Peoples movement is gaining strength, the adat issue becomes a community.211 strategic political issue for the local political elite to use as a platform in the regional election battlegrounds for
209 Article 8 West Sumatera Province Regulation on Ulayat Land and its Utilisation, reads: To guarantee legal certainty and the need to provide land data/information, ulayat land as referred to in Article 5 may be registered with the District/Municipality Land Office with the following provisions: a. Ulayat Nagari land can be registered, the rights holder being village customary elders (ninik mamak KAN) with the knowledge of the nagari/village administration with a cultivation right (HGU), utilisation right (hak pakai) or management right (hak pengelolaan). b. Ulayat Suku Land can registered with the rights holder being the clan/lineage heads (penghulu-penghulu suku) with a status of ownership (hak milik). c. Ulayat Kaum Land can be registered with the rights holder being the members of the members of lineage and head of heirs (kaum dan mamak kepala waris) with a status of ownership. d. Ulayat Rajo Land can be registered with the rights holder being the lineage members and a third party, with the knowledge of the eldest male heir to the King with a status of use rights and management rights. 210 Article 1 point 12 Central Government Regulation No. 13 of 2008 on Indigenous Land and Indigenous Rights to Land reads: Tanah adat is the land as well as its content in the Kadamangan territory and/or in the village/urban village area based on customary law (hukum adat) whether forest or non-forest of a clear area and boundaries whether owned individually or communally whose existence is recognised by the Damang Head Adat Leader. Also refer to Article 10 clause (3): The Damang Adat Head Leader issues the Adat Land Letter (Surat Keterangan Tanah (SKT) Adat) 211 Article 17 Malinau District Regulation No. 10 of 2012 regarding the Recognition and Protection of Indigenous Peoples reads: The Local Government forms an Indigenous Peoples Affairs Management Body with the following main duties and functions: Ensuring the recognition and protection of Indigenous Peoples rights are delivered in accordance with the procedures as regulated in the Local Government Regulation. Accepting registrations and verifying the presence of Indigenous Peoples. Communicating the aspirations of Indigenous Peoples to the District Government in each planning, management and monitoring of development programmes in order to ensure the availability of funds and the protection and fulfilment of Indigenous Peoples rights. 212 Article 4 West Sumatera Province Regulation on Ulayat Land and its Utilisation, states: The objective of management of ulayat lands and its utilisation is to protect the existence of ulayat lands according to the customary laws of Minangkabau as well as benefiting from land including natural resources for the survival and continued survival through the generations and continuation between the masyarakat hukum adat and the territory. 213 Article 1 point 3 Lebak District Regulation No. 32 of 2001 regarding the Protection of the Baduy People Ulayat Rights states: Protection is a series of activities conducted by the Local Government and the community to protect the Baduy Peoples from external efforts to destroy/damage the Baduy people. 214 Article 9 Lebak District Regulation No. 32 of 2001 on Protection of the Baduy Peoples Ulayat Rights, state: (1) Each person outside the Baduy People who are disturbing, damaging and using Baduy Peoples ulayat land rights will be penalised with a maximum of 6 (six) months of imprisonment or a maximum fine of IDR 5.000.000,- (five million rupiahs). (2) The criminal charges as referred to in (1) are violations.
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Regional House of Representatives and Head of Local 1.13 Indigenous Peoples draft bill Government. On the one hand, this is an opportunity because the local political elites are raising Indigenous Legal foundation Peoples issues and all the associated issues in a public forum to seek solutions to the problems in the form of • Draft Bill regarding the Recognition and Protection of local government regulations and policies. Yet on the the Rights of Indigenous Peoples other hand, this becomes a challenge if the victor in the local political battle is someone who does not support the Indigenous Peoples movement. In addition, there Content analysis are many conflicts of interest amongst the local elite with their ambition to exploit the natural resources of The 2009-2014 House of Representatives prepared the region for local government coffers, to fund political the Draft Bill regarding the Recognition and Protection parties, and for personal purposes, versus the interests of the Rights of Indigenous Peoples (RUU Pengakuan in protecting natural resources and providing benefits to dan Perlindungan Hak Masyarakat Hukum Adat - RUU the community. PPHMHA). The emergence of this draft bill is due to the policy advocacy efforts by the Indigenous People’s Thirdly, institutional issues due to the lack of a special Alliance of the Archipelago (Aliansi Masyarakat Adat body or Local Government Implementation Unit (Satuan Nusantara - AMAN) and various other CSOs. The Kerja Perangkat Daerah - SKPD) to manage the affairs government and the Parliament have discussed this of Indigenous Peoples and indigenous territories. The draft bill together. The government representatives Malinau District formed an Indigenous Peoples Affairs in the draft bill discussions were coordinated by the Management Body which has the limited authority to Forestry Ministry. However until the end of the 2009- identify and verify the presence of Indigenous Peoples 2014 Parliamentary members’ plenary sessions, the and their territories. The challenge in the future is RUU PPHMHA was not approved and promulgated clarifying the scope of duties for organisations in the into law. The draft bill is part of the 2014-2019 local government which will be responsible for the national legislation programme, yet is not included in recognition and protection of Indigenous Peoples rights the priority agenda for discussion in 2015. Reflecting and the environment. on RUU PPHMHA, there are several key issues which must be understood with regards to the recognition Fourthly, the current legal framework provides the of Indigenous Peoples and natural resources and option for Indigenous Peoples to push for the issuance environmental management issues. of a Local Government Regulation or Head of District Decree, to recognise the indigenous territory where Definition of Indigenous Peoples they live. However, the other side of this option leads The usage of the term masyarakat hukum adat instead of to legal uncertainties because of its impact on how the term masyarakat adat in the draft bill demonstrates the Central Government agencies will receive the that the lawmakers are still trapped by the old concepts legal format according to its regulatory scope. For in understanding the traditional communities in example, the Forestry Law stipulates that the official Indonesia. The term masyarakat hukum adat is translated establishment of Masyarakat Hukum Adat is through a from the Dutch Adatrechts Gemenschappen, which Local Government Regulation, while the Minister of came from the colonial constructs of understanding the Home Affairs Regulation No. 52 of 2004 regarding natives in Dutch colonial times. Meanwhile the term the Guidelines for the Recognition and Protection of masyarakat adat used by the social movement of the Indigenous Peoples state that this is done in the form of rural communities which use tradition as the platform a Head of Local Government Decree. for their struggle. Despite this, the draft bill adopted the definition of masyarakat adat proposed by AMAN, which had previously also been adopted into the Law number 27 of 2007 regarding the Management of Coastal Areas and Small Islands.215
215 Article 1 point 1 Indigenous Peoples is a group of communities living traditionally in a specific geographic area in the State of Indonesia because of a bond to their ancestors’ origins, a strong relationship with the environment as well as a system of values determining economic, political, social and legal structures in their customary territory.
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Procedure for recognition of Indigenous Peoples to conserve an develop their traditions and cultures and the right to protection and promotion of their RUU PPHMA interpreted the recognition of Indigenous intellectual wealth; (d) the right to the environment; and Peoples into three stages which are identification, (e) the right to practice traditional laws and customary verification and designation of the masyarakat hukum justice. adat. Identification is performed by the Indigenous Peoples, the Local Government or jointly between Regulation of the various types of rights in this draft bill the masyarakat adat and the Local Government. Five adopts the provisions of other laws and also interprets items of identification include: (a) the history of the the rights of Indigenous Peoples in the United Nation Masyarakat Hukum Adat; (b) Indigenous territories; (c) Declaration on the Rights of Indigenous Peoples Customary Law; (d) treasured wealth and/or customary (UNDRIP). However this draft bill does not more artefacts; and (e) customary governance/structures. comprehensively regulate the right to self determination The outcome of this identification is submitted to the because this is also regulated in the Law number 6 of District Indigenous Peoples Committee, the Province 2014 on Villages. Indigenous Peoples Committee or the National Indigenous Peoples Committee. Opportunities and challenges in implementation The second stage of the recognition process is the verification process. Verification is conducted on the Although the Draft Bill PPHMHA has been more outcome of the Indigenous Peoples identification thorough in regulating the various aspects of Indigenous by the Indigenous Peoples Committee at each level. Peoples compared to other laws and regulations, there The verification outcome is submitted to the Head are several notes on opportunities as follows. of District, the Governor or the President for the issuance of the official establishment. The third stage Firstly, the Draft Bill PPHMHA has not regulated the is the official establishment of the Indigenous Peoples procedures for the administration of the rights of performed in stages. If the Indigenous Peoples are Indigenous Peoples. Furthermore the majority of the present in one district, the Head of the District will administration of rights involve other government perform the official establishment, if across districts by agencies such as customary forests with the Forestry the Governor and if across provinces by the President. Ministry, the right to customary land with the National The community is allowed time to file complaints Land Agency, social empowerment with the Ministry of against the official designation. Social Affairs and various other rights.
The stages for recognition as introduced through the Secondly, one of the institutional weaknesses leads draft bill is very complex. The procedure for recognition to the rights of Indigenous Peoples not being fully of the presence of Indigenous Peoples has become fulfilled because there is not dedicated government very lengthy, and it involves many parties. This model is agency responsible for arranging and ensuring the even more complicated that the operational provisions fulfilment of Indigenous Peoples rights. The indigenous introduced in the Agrarian Minister Regulation communities have been dealing with many sectoral number 5 of 1999. Another issue with this model is its agencies which have their respective and different reduction of the principle of self-determination because perspectives and interests regarding indigenous determining the presence of the masyarakat hukum adat communities. This has been a very significant constraint. is heavily determined by the Head of District, Governor RUU PPHMA includes the existence of an Indigenous or President’s political decision. Peoples Commission (Panitia Masyarakat Hukum Adat) which is tiered from the District, Provincial Rights of masyarakat adat and National levels. This Commission is temporary RUU PPHMHA regulates the rights and responsibilities as their duties are only related to verification of the of Indigenous Peoples. The types of rights regulated indigenous communities’ identification findings. After in the draft bill include: (a) right to land, indigenous the verification process is completed, the Commission territories and natural resources; (b) right to is disbanded. However, this institutional structure is not development which also regulates the Indigenous sufficient for guaranteeing and respecting indigenous Peoples’ right to accept or refuse development agenda communities. A permanent institution with a broader planned by other parties from entering indigenous scope of duties than verification such as the authority territories as well as the indigenous communities’ to to conduct supervision, empowerment and protection propose the types of development they desire; (c) the of indigenous communities as well as resolving conflict right to spirituality and cultures which include the right in customary territories. to practice their customary faith systems, the right
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Thirdly, the lack of strong commitment from the Government to promulgate the PPHMHA Law is a barrier. This is the reason the draft bill is not a priority for deliberations in 2015 whereas the development of the Indigenous Peoples Law was part of the strategic agenda in the vision and missions of the President and Vice President elect during their Presidential Election campaign in 2014.
Fourthly, there is a tendency for the feudal traditional elite group to co-opt the discussions of the draft bill. This group aspires to resurrect the kingdom and sultanate groups which existed prior to Indonesia’s independence. They have lobbied and communicated with the Speaker of the House and the Regional Representatives (DPD) to promote a law which could be leveraged to strengthen their traditional position. This group is not against the indigenous communities’ movement, and in fact also voices the interests of the indigenous communities. The basis of their claim to regain the kingdom and sultanate lands is also customary based, although their definitions differ from the traditions of the village communities. The fact that there are no clearly defined differences between the customary traditions of a king and the villagers, demonstrating that customary based claims have a very wide spectrum, and can be utilised for different interests.
High Carbon Stock Science Study 203 Consulting Study 10B Community rights and environmental protection in the laws and regulations of Indonesia
References
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