Forest-Related Regulatory Initiatives
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Institute for Global Environmental Strategies CRITICAL REVIEW OF SELECTED FOREST-RELATED REGULATORY INITIATIVES: APPLYING A RIGHTS PERSPECTIVE INSTITUTE FOR GLOBAL ENVIRONMENTAL STRATEGIES Editor: Henry Scheyvens CRITICAL REVIEW OF SELECTED FOREST-RELATED REGULATORY INITIATIVES: APPLYING A RIGHTS PERSPECTIVE January 2011 Institute for Global Environmental Strategies (IGES) Forest Conservation Project 2108-11 Kamiyamaguchi, Hayama, Kanagawa 240-0115 Japan Phone: +81-46-855-3830 • Facsimile: +81-46-855-3809 E-mail: [email protected] Copyright © 2011 by Institute for Global Environmental Strategies (IGES), Japan All rights reserved. Inquiries regarding this publication copyright should be addressed to IGES in writing. No parts of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage and retrieval system, without the prior permission in writing from IGES. Although every effort is made to ensure objectivity and balance, the printing of a paper or translation does not imply IGES endorsement or acquiescence with its conclusions or the endorsement of IGES financers. IGES maintains a position of neutrality at all times on issues concerning public policy. Hence conclusions that are reached in IGES publications should be understood to be those of authors and not attributed to staff-members, officers, directors, trustees, funders, or to IGES itself. Cover Photo: Community consultation, Rajiji National Park, India (copyright, Henry Scheyvens). ISBN: 978-4-88788-072-6 Printed and bound by WPS, tel: +977-01-5550289, eMail: [email protected] FOREWORD This report brings together four studies that implement, especially in contexts where evaluate regulatory initiatives with implications indigenous people’s traditional institutions for forest-dependent communities from a have been eroded. Proper implementation of rights perspective. Since its establishment in the principle of free prior informed consent in 1998, the Institute for Global Environmental localities experiencing high rates of unplanned Strategies (IGES) has highlighted the rights and deforestation and degradation will require wellbeing of forest-dependent people in the in-depth analysis of local institutions and in Asia Pacific region in its research on forest many cases a long-term commitment to policy. IGES research has attempted to draw institution building. Such issues should be at attention to the processes and consequences of the forefront of the REDD+ negotiations. the marginalisation of forest-dependent people, as well as the value of their traditional I congratulate the authors for their rich analysis knowledge on forest resources and that highlights the complexities of the issues management. and provides practical recommendations for moving forward, and for the IGES Forest Another important focus of IGES research is Conservation Project, under the Natural climate change. The studies presented in this Resources Management Group, for organising report hold important messages for initiatives and producing this report. to link forests with climate change mitigation and adaptation. The current version of the text The Editor is grateful to Mr. Teodoro Licarte, to assist the negotiations under the United Dr. Enrique Ibarra Gene and Dr. Federico Nations Framework Convention on Climate Lopez-Casero for reviewing parts of this report, Change mentions local communities and and to Ms. Emma Fushimi for proofreading indigenous peoples as one of the safeguards several of the chapters. Dr. Kimihiko for implementing REDD+ (reducing emissions Hyakumura and Dr. Kazuhiro Harada from deforestation and forest degradation, as contributed to the analytical framework and well as activities to conserve and enhance forest the organisation of the study. Needless to say, carbon stocks). The four studies indicate that the responsibility for any errors in fact or this will be a challenging safeguard to omissions is with the authors. Hideyuki Mori President Institute for Global Environmental Strategies iv Critical Review of Selected Forest-Related Regulatory Initiatives: Applying a Rights Perspective ABBREVIATIONS AND ACRONYMS A and D Alienable and Disposable ADMP Ancestral Domain Management Plan ADO Ancestral Domains Office ADSDPP Ancestral Domain Sustainable Development and Protection Plan Anor Another AO Administrative Order ARMM Autonomous Region of Muslim Mindanao Art Article BITO Bakun Indigenous Tribes Organisation BJE Bangsamoro Juridical Entity CADC Certificate of Ancestral Domain Claim CADT Certificate of Ancestral Domain Title CAFGU Civilian Armed Forces Geographical Unit CALT Certificate of Ancestral Land Title Cap Chapter CBFM Community Based Forest Management CBFMA Community-Based Forest Management Agreement CENRO Community Environment and Natural Resources Officer CIPRAD Coalition for Indigenous People’s Rights and Ancestral Domains CLOA Certificate of Land Ownership Award CLUP Comprehensive Land Use Plans CPA Cordillera People’s Alliance CSD Campaign for Survival and Dignity DAR Department of Agrarian Reform DBM Department of Budget and Management DENR Department of Environment and Natural Resources DOJ Department of Justice ECTF Ecumenical Commission for Tribal Filipinos Ed Edition En Enactment ENR environment and natural resource ESSC Environmental Science for Social Change FAO Food and Agriculture Organisation of the United Nations FELCRA Federal Land Consolidation and Rehabilitation Authority FLUP Forest Land Use Plans FMS Federated Malay States FMU forest management unit FPC Forest Protection Committee FPIC Free Prior Informed Consent FRA Forest Rights Act FSC Forest Stewardship Council GNS & Swk. L.N. These letters are used in respect of Legal Notifications published in Part II of the Sarawak Government Gazette. The abbreviations “GNS” have since 1964 been replaced by the vi abbreviations “Swk. L.N.”. ha hectare IFAD International Fund for Agricultural Development IFMA Industrial Forest Management Agreement IGES Institute for Global Environmental Strategies IKSP Indigenous Knowledge and Systems and Practices Critical Review of Selected Forest-Related Regulatory Initiatives: Applying a Rights Perspective Applying a Rights Perspective Regulatory Initiatives: Review of Selected Forest-Related Critical ILO International Labour Organisation IP Indigenous people IPRA Indigenous Peoples Rights Act 1997, Philippines IRA Internal Revenue Allocation IRDC Ifugao Research Development Centre JFM Joint Forest Management KAMP Kalipunan ng mga Katutubong Mamamayan ng Pilipinas KASAKAV Katutubong Samahan sa Cagayan Valley KASAPI Katutubong Samahan ng Pilipinas KKK Koalisyon para sa Karapatan ng mga Katutubo KPLN Kapulungan para sa Lupaing Ninuno LCDA Land Custody and Development Authority of Sarawak LGU Local Government Unit LRA Land Registration Authority MLE Multi Lingual Education MOA memorandum of understanding MoEF Ministry of Environment and Forests MRP Muyong Resources Permit MTCS Malaysia Timber Certification Scheme NCCP-PACT National Council of Churches in Philippines-People’s Action for Cultural Ties NCIP National Commission on Indigenous Peoples NCR Native Customary Rights to land NeDA Barangay Ned Economic Development Association NGO non-governmental organisation NIPAS National Integrated Protected Areas System Applying a Rights Perspective Regulatory Initiatives: Review of Selected Forest-Related Critical NT Native Title NTFP non-timber forest product ONCC Office of Northern Cultural Communities Ors Others OSCC Office of Southern Cultural Communities PANAMIN Presidential Assistant on National Minorities vii PD Presidential Decree PENRO Provincial Environment and Natural Resources Officer PESA Panchayat (Extension to Scheduled Areas) Act PhP Philippine peso PIL Public Interest Litigation PRIs Panchayati Raj Institutions Pt Part RPS Rancangan Penempatan Semula s section SALCRA Sarawak Land Consolidation and Rehabilitation Authority SBMA Subic Bay Metropolitan Authority Sch Schedule SILDAP Silingang-Dapit SLDB Sarawak Land Development Board SPMM Samahang Pantribu ng mga Mangyan ng Mindoro ss sections TLA Timber License Agreements TWG Technical Working Group UGAT Ugnayang Pang-agham Tao UNDP United Nations Development Programme v versus VSS Van Suraksha Samiti WLPA Wildlife Protection Act WWF World Wide Fund for Nature Abbreviations used for case law references in Chapter 3 AC Law Reports: Appeal Cases CLR Commonwealth Law Reports DLR Dominion Law Reports MLJ The Malayan Law Journal MLJU The Malayan Law Journal Unreporteds Peters Peters’ United States Supreme Court Reports US Reports of Cases in the Supreme Court of USA viii Critical Review of Selected Forest-Related Regulatory Initiatives: Applying a Rights Perspective Applying a Rights Perspective Regulatory Initiatives: Review of Selected Forest-Related Critical EXECUTIVE SUMMARY In the Asia-Pacific region, millions of people live within or dwell near forests. For many of them, their wellbeing is dependent upon access to forest lands and forest resources, yet their customary rights and rights to basic human needs are often denied by national forest regulatory frameworks. The nationalisation of forests and rights allocation that occurred in most countries in the region has taken away from many forest-dependent rural communities important elements of their livelihood base and their cultural, social, political and spiritual subsistence. The consequences of this inattention to customary and basic human rights include not