Initiatives of Duty-bearers - IUCN · indicate an emerging trend of duty-bearers themselves ......

Section 1

In a rapidly changing world, new and emerging laws, policies, and practices that help duty-bearers ensure respect for and further fulfillment of rights. States and international governance organizations have advanced a variety of new laws and policies supporting community rights, including towards greater recognition of and protection for Indigenous customary law, bio-cultural heritage, and traditional knowledge internationally (Tobin) and in the South Pacific (Techera) and French Guyana (Karpe and Tiouka). In the context of forests and global climate change adaptation and mitigation, new policy and practice innovations are being developed and adopted by states internationally (Lovera) and in India (Dash), Vietnam (Sikor and Nguyen), Laos (Takahashi and Liang), and Ecuador (Warnars). Emerging initiatives, policies, and tools are also being promoted and carried out by non-state duty-bearers, most notably, non-governmental conservation organizations and communities. These include efforts to advance new rights boundaries (Munson), raise awareness of and implementation capacity for rights-based approaches (Hitchner et al., Maffi, and Denier), and integrate rights into conservation practice, including monitoring and enforcing agreements and standards for conservation organizations (Springer et al. and Bennett and Woodman), extractive industries (Steiner), and urban areas (Alfsen et al.). While the effectiveness of these new and emerging laws, policies, and practices is mixed, they indicate an emerging trend of duty-bearers themselves taking initiative to further advance and protect rights and diversity in conservation.

Initiatives ofDuty-bearers

Theme I: Initiatives of Duty-bearers

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~ John Borrows1

Traditional knowledge is crucial for the survival and development strategies of Indigenous peoples and local communities around the world. It also plays a central role in the design, implementation, and monitoring of policies and programmes of work to protect the earth’s natural environment2. Furthermore, there is a steady increase of scientific and commercial interest in traditional knowledge and the genetic resources used by Indigenous peoples and found on their lands. Despite its importance and multiple forms of value, Indigenous peoples’ rights over their traditional knowledge and genetic resources remain largely unprotected in international law.

This situation may soon change, due to ongoing negotiations on the regulation of access to genetic resources and benefit sharing (ABS) under the auspices of the Convention on Biological Diversity (CBD) Working Group on ABS (WGABS) and on the protection of traditional knowledge at the World Intellectual Property Organization (WIPO) Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore (IGC).3 The WGABS has prepared a draft ABS Protocol4 to be submitted for adoption at the 10th Conference of the Parties (COP 10) to the

1 Borrows, J., 2002. Recovering Canada: the Resurgence of Indigenous Law. University of Toronto Press: Toronto.2 Tobin, B., and E. Taylor, 2009. Across the Great Divide: Complementarity and conflict between national sui generis legislation and customary governance of traditional knowledge in Peru. SPDA, IDRC: Lima, page 4.3 Although this article focuses primarily on the WGABS draft ABS Protocol, the analysis and conclusions are also relevant to the ongoing negotiations of the WIPO IGC. 4 This article refers to the Draft Protocol prepared by participants in WGABS 9 (resumed session) in Montreal in July, 2010. See UNEP/CBD/WGABS/3, April 26, 2010.

‘The Law Giveth and the Law Taketh Away’:The Case for Recognition of Customary Law in International ABS and Traditional Knowledge Governance

Brendan Tobin

Historically, international law has served as a legitimizing tool for colonialism and abrogation of Indigenous peoples’ rights. Developments in international human rights law over the past 50 years have at last recognized Indigenous peoples’ rights to their lands, territories, resources, knowledge, customs, laws, and, most importantly, self-determination. The extent of these rights has been most clearly articulated in the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). The Protocol on access to genetic resources and benefit sharing (ABS), which is currently being finalized by the Working Group on ABS under the auspices of the Convention on Biological Diversity, is the first international instrument to be negotiated since the adoption of UNDRIP that directly addresses Indigenous peoples’ human rights. The extent to which the ABS Protocol recognizes and reflects the rights set out in UNDRIP will be an important indicator of the international community’s commitment to the realization of Indigenous peoples’ human rights and recognition of the fundamental role that customary law plays in ABS and traditional knowledge governance. Negotiation of the ABS Protocol provides an important opportunity for the international community to correct, at least in part, the historic abuse of Indigenous peoples under international law. The paper concludes that good legal governance, capable of securing equitable benefit sharing and the protection of subsisting native title rights over genetic resources and traditional knowledge, requires a ‘rule of law’ based upon multicultural legal pluralism, which recognizes and draws upon sources of legal principles, equity, contract, and dispute resolution found in both customary and positive legal regimes.

Abstract

“Aboriginal peoples might function like the miner’s canary. When the most vulnerable among us suffer from the toxins present in our legal environment, their suffering serves

as an important warning about the health of the larger legal climate.”

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Exploring the Right to Diversity in Conservation Law, Policy, and Practice

Policy Matters 17, 2010

CBD in Nagoya in October, 2010. The IGC, meanwhile, has a mandate to prepare an instrument or instruments for the protection of traditional knowledge and traditional cultural expressions by 2011. These processes are the first involving the development of international instruments to expressly address Indigenous peoples’ human rights since the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) by the United Nations General Assembly in 2007.

A historic overview of international law and Indigenous peoples’ rights provides the necessary backdrop for an examination of Indigenous peoples’ rights over genetic resources and traditional knowledge and their treatment under the draft ABS protocol and an analysis of the role of customary law in ABS and traditional knowledge governance. Amongst the key issues raised by Indigenous peoples for attention within the Protocol include:

• the need for express recognition of Indigenous peoples’ property rights over their traditional knowledge and genetic resources;

• measures for ensuring access to justice in cases of misappropriation; and • adequate recognition for customary law.

If not adequately addressed, these issues will create legal uncertainty, facilitate continuing biopiracy, and leave Indigenous peoples without any meaningful avenue of redress where their rights have been breached. This paper focuses primarily on the latter issue and suggests a formula for the recognition of customary law in international instruments that reflects international human rights obligations and emerging customary international law. It concludes that if the CBD, through its ABS Protocol, fails to seize this opportunity to secure effective recognition of Indigenous peoples’ rights, it may soon find itself facing the task of having to negotiate a stand-alone Protocol on traditional knowledge.

InternatIonal law and IndIgenous rIghts

Since the time of Aristotle, legal philosophers have recognized three pillars of legal governance: natural law (universal moral principles), customary law (unwritten laws considered binding by those subject to them), and positive law (stipulated laws).5 The balance between natural, customary, and positive law has fluctuated according to political and legal realities over time and across around the world. During the Middle Ages in continental Europe, for example, customary law was

the predominant source of law, though still subordinate to natural law, which came to be seen as God’s law. From the 17th century on, customary law began to be displaced or amalgamated by positive codified civil law in continental Europe. In England, however, general principles of custom provided the basis for common law, which was then spread around the world during the colonial period. While specific or local customs may at times override common law in England, recognition of customary law in its colonial territories both during and in the post-colonial period has not been uniform.

During the early colonial period, 15th- to 16th-century leading theorists such as Bartolome de las Casas (c. 1484-1566) and Francisco De Vitoria (c. 1492-1546), who were influenced by classical views of the legal order in which both customary law and

positive law were seen as subordinate to natural law, argued for recognition of Indigenous peoples’ “dominium” over their lands6. In the 17th century, Hugo Grotius, (1583-1645), who is often referred to as the father of international law, also argued in favour of recognition of Indigenous peoples’ dominium, taking the view that discovery was not a legal basis for obtaining legal title of ownership7. Grotius was espousing a naturalist framework in which “basic rights inhere in men as men, not by reason of their race, creed or color, but by reason of their humanity.”8 Both De Vitoria and Grotius, however, also ascribed to the theory of ‘just war’, which served to legitimize usurpation of Indigenous peoples’ dominium.9 This provides an early and telling example of the law giving with one hand and taking away with the other.

During the 18th century, international law, according to James Anaya, shed “its naturalist frame as it changed into a state-

5 Murphy, J. B., 2007. “Habit and Convention in the foundation of custom”, pages 53-78 in Perrau-Saussine, A., and J. Bernard-Murphy (eds.), The Nature of Customary Law: Legal, Historical and Philosophical Perspectives. Cambridge University: Cambridge, page 53.6 Gilbert, J., 2006. Indigenous Peoples’ Land Rights Under International Law: From Victims to Actors. Transnational Publishers: Aldersey, New York, page 9 and following.7 Grotius, H., 1625 (translated 1925). “The Rights of War and Peace (De Jure Belli AC Pacis)”, page 550, cited by Gilbert, 2006, page 12.8 Quoted in Gilbert, 2006, page 9.9 Gilbert, 2006, pages 9 to 12.

The balance between the three pillars of legal

governance - natural law, customary law, and positive

law - has fluctuated over time according to changing legal

and political realities.


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centred system, strongly grounded in the Western world view.”10 Recognition of statehood for the purposes of international law was dependent on fitting into a European mould of what was civilized; it was not applicable to what Wheaton calls “an unsettled horde of wandering savages not yet formed into civil society.”11 The rise of such positivist legal theory served to marginalize both natural law and customary law and to legitimize the exclusion of Indigenous peoples from the remit of

international law. This exclusion was coupled with the development of the notion of trusteeship over Indigenous peoples and the treatment of their lands as terra nullius.

In essence, Western powers had written Indigenous peoples out of international law, denying any oversight by natural law or recognition of ancestral rights and native title arising from the customary laws of Indigenous peoples themselves. In the words of Patrick Macklem, “The doctrine of terra nullius represented the legal conclusion that indigenous peoples possessed no international legal existence. International law, therefore, deemed their lands to be vacant, and neither conquest nor cession was necessary to acquire the sovereign power to rule indigenous people and territory.”12 The negation of Indigenous peoples’ rights required the negation of their customary laws. This was assisted by the legal fictions of discovery, in cases where lands were already inhabited, and of

conquest, even where there had been no war of conquest or any formal cession of lands.13 International law developed and was interpreted to legitimize colonial expansion and was easily ignored when convenient in order to usurp Indigenous peoples’ rights. The resultant discrimination of Indigenous peoples14 made a mockery of the notion of a true rule of law.

Where deemed necessary to the colonial enterprise, customary law was recognized on pragmatic rather than legal grounds. According to Martin Chanock, however, what was being recognized was “not common law, nor custom, nor statute – [it was] a law of and for subordinates – racially and culturally, which was seen as suitable to their state of evolution.”15 In this sense, customary law was a colonial construct serving as the basis for a two-tier legal regime, with one law for the colonial power and another for subordinate, colonized peoples. Wherever customary law met colonial law, the latter dominated. Furthermore, customary law was subject to a rule of repugnancy that determined its applicability based upon European codes of ‘civilization’.

Decolonization marked an important chapter in the rewriting of international law, but it did not necessarily lead to increased recognition or protection of Indigenous rights or of their customary legal regimes. Common Article 1 of the 1966 International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights established the right of all peoples to self-determination. At the time, however, it was not considered a right of Indigenous peoples, but rather of the whole population of a colonized state. Over time, the international agencies responsible for monitoring compliance with the Covenants, the Human Rights Committee and the Committee for Economic, Social and Cultural Rights, have both recognized that Indigenous peoples have a right to self-determination.16 More recently, UNDRIP has clearly recognized Indigenous peoples’ rights to self-determination17 and to their land and traditional territories, as well as the legally binding status of

10 Anaya, J., 2004. Anaya, J., 2004. Indigenous Peoples in International Law, Second edition. Oxford University Press: Oxford, page 15.11 Gilbert, 2006, page 26. Gilbert, 2006, page 26.12 Macklem, P., 2008. “Indigenous Recognition in International Law: Theoretical Observations”. Macklem, P., 2008. “Indigenous Recognition in International Law: Theoretical Observations”. Indigenous Recognition in International Law: Theoretical Observations”. Michigan Journal of International Law, 30: 177-210.13 See generally Gilbert, 2006, page 20 and following. See generally Gilbert, 2006, page 20 and following.14 Gilbert, 2006. Gilbert, 2006.15 Chanock, M., 2005. “Customary law, sustainable development and the failing state”, (pages 158-223) in Orebach, P., F. Bossellman, J. Bjarup, D. Chanock, M., 2005. “Customary law, sustainable development and the failing state”, (pages 158-223) in Orebach, P., F. Bossellman, J. Bjarup, D. Customary law, sustainable development and the failing state”, (pages 158-223) in Orebach, P., F. Bossellman, J. Bjarup, D. Callies, M. Chanock, and H. Petersen, The Role of Customary Law in Sustainable Development. Cambridge University Press: Cambridge, page 342.16 McHugh, P., 2004. McHugh, P., 2004. Aboriginal societies and the Common Law: A History of Sovereignty, Status and Self-determination. Oxford University Press: Oxford, page 304.17 Article 3, UNDRIP, UN Doc A/RES/61/295 (opened for signature September 13, 2007). Article 3, UNDRIP, UN Doc A/RES/61/295 (opened for signature September 13, 2007).Article 3, UNDRIP, UN Doc A/RES/61/295 (opened for signature September 13, 2007).UNDRIP, UN Doc A/RES/61/295 (opened for signature September 13, 2007).UN Doc A/RES/61/295 (opened for signature September 13, 2007).

Figure 1. Kayapo women gathering food in the Amazon. © Cristina Mittermeier

The rise of positivist legal

theory legitimized the exclusion of

Indigenous peoples from the remit of international law.

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treaties entered into with them and the obligation of states to honour and respect such treaties18. In doing so, UNDRIP has formally written Indigenous peoples back into international law and commenced the process towards securing a rule of law that is cognizant and respectful of the framework of multicultural legal pluralism surrounding relations between Indigenous peoples, the states within which they reside, and the international community. Against this backdrop, negotiation within the WGABS of an international ABS Protocol is the first major test of international commitment to the realization of Indigenous peoples’ human rights as set out in UNDRIP.

IndIgenous rIghts over genetIc resources and tradItIonal Knowledge

The CBD was the first international instrument to recognize a right of Indigenous peoples in relation to traditional knowledge19 and it has subsequently declared itself to hold primary responsibility for the protection of traditional knowledge related to biological diversity.20 The CBD did not create or recognize a property right over traditional knowledge as such. Apart from a handful of exceptions such as in Peru, the Philippines, Panama, India, and Costa Rica, Indigenous peoples’ rights over their traditional knowledge remain largely unprotected in national law. Protection of Indigenous peoples’ rights over their genetic resources and traditional knowledge is both dependent upon and crucial to the realization of other human rights to food, education, health, human dignity, culture, land, territories, resources, and, above all, self-determination.21 Although the WGABS does not have a mandate to address all of these rights comprehensively, it will need to ensure that any Protocol it puts forward for adoption by the Conference of the Parties to the CBD does not run counter to their realization and is instead supportive and mutually reinforcing.

Article 31 of UNDRIP recognizes Indigenous peoples’ rights to maintain, control, protect, and develop their traditional knowledge, genetic resources, and intellectual property and requires states to establish effective measures to protect these rights. Although the Declaration does not define what is meant by ‘effective measures’, it is clear they will at least need to define and recognize rights over traditional knowledge and establish compliance mechanisms to ensure their enforcement. Due to the nature of research and trade in traditional knowledge, national measures in provider and user countries will need to be linked through a framework of international law.

CBD Decisions, interventions, and submissions of Indigenous peoples in WGABS negotiations, as well as in international human rights fora, suggest that customary law has an important role to play if measures are to be effective. In this vein, the CBD programme of work on Article 8(j) relating to the protection of traditional knowledge calls for a “holistic approach consistent with the spiritual and cultural values and customary practices of … indigenous and local communities.”22 The Preamble to CBD Decision VI/10 recognizes that indigenous and local communities have their own systems for the protection and transmission of traditional knowledge as part of their customary law. Most importantly, Decision VI/10 invites Parties and governments, with the approval and involvement of indigenous and local communities representatives, “to develop and implement strategies to protect traditional knowledge, innovations and practices based on a combination of appropriate approaches, respecting customary laws and practices…”23 Furthermore, the Bonn Guidelines state that “the prior informed consent of indigenous and local communities … should be obtained, in accordance with their traditional

18 Article 37, UNDRIP. Article 37, UNDRIP.Article 37, UNDRIP.19 See Article 8(j), United Nations Convention on Biological Diversity (CBD), opened for signature June 5, 1992, 1760 UNTS 79 (entered into See Article 8(j), United Nations Convention on Biological Diversity (CBD), opened for signature June 5, 1992, 1760 UNTS 79 (entered into force December 29, 1993).20 CBD Decision VI/10. CBD Decision VI/10.21 Tobin, B., 2009a. “Setting Protection of Traditional Knowledge to Rights: Placing human rights and customary law at the heart of traditional Tobin, B., 2009a. “Setting Protection of Traditional Knowledge to Rights: Placing human rights and customary law at the heart of traditional Setting Protection of Traditional Knowledge to Rights: Placing human rights and customary law at the heart of traditional knowledge governance”, pages 101 -118 in Kamau, E. C., and G. Winter (eds.), Genetic Resources, Traditional Knowledge and the Law: solutions for Access and Benefit Sharing. Earthscan: London.22 CBD Decision V/16. It should be noted that the CBD and negotiations under its auspices refer to “indigenous and local communities”, rather CBD Decision V/16. It should be noted that the CBD and negotiations under its auspices refer to “indigenous and local communities”, rather than to Indigenous peoples and local communities. This contrasts with UNDRIP – which refers specifically to Indigenous Peoples – and has been criticized by Indigenous organizations such as the International Indigenous Forum on Biodiversity.23 CBD Decision VI/10, Section F, Paragraph 33. CBD Decision VI/10, Section F, Paragraph 33.

Figure 2. Left to right: Neva Collings, James Lamouche, and Merle Alexander represent the concerns of Indigenous peoples and local communities at the resumed WGABS9 meeting in Montreal in July, 2010.© Brendan Tobin


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practices,”24 which may be interpreted as including their customary laws. Various negotiating and representative groups have called for recognition of customary law. First, the group of negotiators from African states (commonly referred to as ‘the African Group’), has called on the WGABS “to interpret Articles 15 and Article 8(j) of the CBD in a holistic manner that would ensure that ownership of and benefits derived from use of biological resources and associated traditional knowledge respect … customary laws, community protocols and traditional knowledge.”25 In addition, the International Indigenous Forum on Biodiversity (an umbrella group representing Indigenous peoples in negotiations under the CBD) has proposed that an ABS regime should require Parties to “take reasonable and effective legislative, administrative and policy measures to ensure that users of traditional knowledge … comply with prior informed consent requirements of indigenous and local communities, customary laws, [and] community protocols.”26 Likewise, the Coordinator of Indigenous Organizations of the Amazon River has called for recognition of the traditional institutions, forms of organization, and authorities of each Indigenous people and local community and the provisions under customary law in relation to prior informed consent and mutually agreed terms.27

With regard to genetic resources, although the CBD recognizes national sovereign rights, Indigenous peoples in many countries have property rights over biological resources and arguably over the genetic resources they contain. UNDRIP recognizes Indigenous peoples’ rights to the resources that they have traditionally owned or otherwise used or acquired (Article 26.1) and to redress where their resources have been confiscated, taken, or used without their free, prior and informed consent (Article 28.1). The United Nations Human Rights Committee, in concluding observations on the 1999 reports of Canada, Mexico, and Norway and the 2000 report of Australia, expressed the view that states are obliged to “implement and respect the right of indigenous peoples to self-determination, particularly in connection with their traditional lands and resources.”28 In addition, Art XVIII.4 of the Organization of American States-proposed Declaration on the Rights of Indigenous Peoples states, “The rights of indigenous peoples to existing natural resources on their lands must be especially protected.”

treatment of IndIgenous rIghts In the draft aBs Protocol

The CBD has given the WGABS a mandate to negotiate an international regime on both ABS and Article 8(j). Article 8(j) places obligations upon countries to promote the wider use of traditional knowledge relating to biological diversity with the consent of indigenous and local communities. Taken together with Decision VI/10, which declares the CBD to be the primary body responsible for the protection of traditional knowledge relating to biological diversity, this mandate places a clear obligation on the WGABS to develop measures for the protection of Indigenous peoples’ rights over their traditional knowledge. The International Indigenous Forum on Biodiversity has made specific proposals of measures that they believe must be reflected in the ABS Protocol in order to ensure that it enables the realization of Indigenous peoples’ rights, including:

• The protocol shall state in the preamble that the rights of Indigenous peoples and local communities are to be respected.

• Where traditional knowledge is being accessed, the prior informed consent of the Indigenous peoples and local communities must be obtained and this shall not be subject to national legislation.

24 CBD Decision VI/24, Paragraph 31. While the CBD and negotiations under its auspices refer to “prior informed consent”, UNDRIP CBD Decision VI/24, Paragraph 31. While the CBD and negotiations under its auspices refer to “prior informed consent”, UNDRIP establishes a higher standard of “free, prior and informed consent”.25 A/RES/61/295. A/RES/61/295.A/RES/61/295.26 A/RES/61/295. A/RES/61/295.A/RES/61/295.27 A/RES/61/295. A/RES/61/295.A/RES/61/295.28 McKay, F., 2004. “Indigenous Peoples rights and Resource Exploitation”. McKay, F., 2004. “Indigenous Peoples rights and Resource Exploitation”. Philippine Natural Resources Law Journal, 12(1): 43-71, page 55.

Figure 3. Negotiators from Canada, the European Union, and Brazil (standing) discuss the draft Protocol with the WGABS Co-chairs during the resumed 9th meeting in Montreal in July, 2010. © IISD/Earth Negotiations Bulletin

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• The protocol shall recognize the rights of Indigenous peoples and local communities to genetic resources.

• The importance and relevance of traditional knowledge shall be fully integrated throughout the protocol, especially in the Compliance section.

• The protocol shall recognize the existence and role of customary laws of Indigenous peoples and local communities.29

The draft Protocol follows the language of the CBD and refers to Indigenous ‘communities’ rather than ‘peoples’. This not only fails to respect the fact that international human rights law has recognized their status as ‘peoples’, but it also threatens to undermine their collective rights over traditional knowledge. The threat to collective rights may be seen from analysis of sui generis legislation to protect traditional knowledge in Peru.30 Peruvian Law 2781131 first recognizes traditional knowledge as the cultural patrimony of Indigenous people; it then provides that any community can negotiate for its access and use, without the need for consent of the Indigenous people as a whole. This runs contrary to the very notion of collective patrimonial rights32 and threatens to undermine traditional decision-making practices and the authority of customary laws. One means to avoid such an outcome would be for states to refer to Indigenous peoples as such and to explicitly give ‘due recognition’ to customary law in the development and implementation of measures on ABS and the protection of traditional knowledge. Giving ‘due recognition’ would require states to ensure that law and policy related to ABS and traditional knowledge is developed in accordance with – and does not run counter to – the rights of Indigenous peoples to regulate their affairs in keeping with their own customary laws, in so far as their customary laws are recognized under national, international, and constitutional law.

Another concern for Indigenous peoples is the lack of any specific reference to their rights over genetic resources in the draft Protocol. The Protocol merely provides that Parties, “where applicable, and subject to national legislation,” set out criteria and/or processes for obtaining prior informed consent or approval and involvement of indigenous and local communities for access to genetic resources (Article 5(e)). Indigenous peoples seek a more explicit recognition of their rights over genetic resources – one that is not subject to the Convention’s pervasive recognition of national sovereignty.

29 International Indigenous Forum on Biodiversity, Opening Statement at WGABS 9 in Cali, Colombia, on March 22, 2010. See International Indigenous Forum on Biodiversity, Opening Statement at WGABS 9 in Cali, Colombia, on March 22, 2010. See ECO, 33(1): July 15, 2010. Last accessed September 3, 2010, at: www.cbdalliance.org.30 For a detailed study of confl icts between Peru’s law 2��11 and customary decision–making, see Tobin and Taylor, 200�. For a detailed study of conflicts between Peru’s law 2��11 and customary decision–making, see Tobin and Taylor, 200�.31 Peru, 2002. Peru, 2002. Law 27811: Protection of Indigenous Peoples’ Collective Knowledge Associated with Biological Resources. Available at: http://www.wipo/int/tk/en/laws/index.html.32 Indigenous peoples’ collective patrimony many be likened to national patrimony, which belongs to the nation as a whole. Such rights are Indigenous peoples’ collective patrimony many be likened to national patrimony, which belongs to the nation as a whole. Such rights are generally inalienable and are not subject to embargo.

Figure 4. A group of negotiators from Asia-Pacific, Latin America, and Africa huddle during the resumed WGABS� meeting in Montreal in July, 2010. © IISD/Earth Negotiations Bulletin


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One option for achieving this would be to require states to exercise their sovereign rights over genetic resources in accordance with the rights of Indigenous peoples over the resources on their lands or territories, as well as those that they have traditionally used and those whose characteristics arise from their intervention.

The draft Protocol does not establish or recognize any self-standing right in favour of Indigenous peoples over their traditional knowledge. However, it does establish a set of obligations that, if implemented fully, would effectively provide them a de facto right over their knowledge. Article 5bis requires states to adopt legislative, administrative, or policy measures “with the aim of ensuring” that access to and use of traditional knowledge is subject to prior informed consent of and mutually agreed terms33 with indigenous and local communities.34 In practice, implementation of this provision could amount to the recognition of property rights over traditional knowledge and rights to govern access and use in accordance with customary laws. The same Article calls on states to take appropriate, effective, and proportionate measures “with the aim of ensuring” that traditional knowledge utilized within their jurisdiction has been accessed and utilized in accordance with the rights to prior and informed consent and mutually agreed terms. This provision also requires states to adopt administrative or legal measures to address situations of non-compliance. Besides its attention to issues of prior informed consent and mutually agreed terms, Article 5bis may be interpreted as creating an implicit obligation of states to adopt measures to prevent misappropriation of genetic resources and traditional knowledge. It does not, however, explicitly require states to do so. This is surprising considering that cases of biopiracy, seen as the unapproved and uncompensated use of genetic resources and or traditional knowledge, is most prevalent where access is secured without prior informed consent or mutually agreed terms.

In its provisions on compliance, the Protocol makes no reference to misappropriation of either genetic resources or traditional knowledge or to access to justice in such cases. It provides for access to justice only in disputes relating to mutually agreed terms. This runs counter to UNDRIP, which recognizes Indigenous peoples’ rights “to access to and prompt decision through just and fair procedures for the resolution of conflicts and disputes with states or other parties, as well as to effective remedies for all infringements of their individual and collective rights.”35

Differences exist on how to deal with traditional knowledge in the negotiations on an ABS Protocol. In general, Indigenous peoples and developing countries wish to see it treated as a cross-cutting issue, while some developed countries propose that it be dealt with in a stand-alone article or section. Although some aspects of rights over traditional knowledge such as the granting of prior informed consent warrant specific measures, concern exists that if it is dealt with in a stand-alone article, the level of protection afforded traditional knowledge may be significantly weakened.

customary law and Its role In aBs and tradItIonal Knowledge governance

Indigenous peoples have consistently argued that customary law should play a central role in the regulation of their rights over genetic resources and traditional knowledge. The authors of a report for the CBD on the role of customary law in compliance measures for an ABS regime see it as having a significant role to play in issues related to prior informed consent and mutually agreed terms, as well as in cases of misappropriation.36 Customary law also has a central role to play in the development of national legislation to regulate ABS and protect traditional knowledge.

Whether or not the ABS Protocol is adopted in Nagoya, development of national law and policy on ABS and traditional knowledge must ensure compliance with customary law, in so far as it forms part of national law and regulates rights over relevant resources and knowledge. Processes of prior informed consent based upon principles and provisions of customary law and the negotiation of mutually agreed terms provide opportunities to extend the application of customary law to third-party users of genetic resources and traditional knowledge. In essence, users may be required to ‘contract into custom’37 by the terms and conditions of access and use agreements. In cases of

33 ‘Mutually agreed terms’ is a phrase used in the CBD for negotiated agreements based upon contractual terms, negotiated in good faith and ‘Mutually agreed terms’ is a phrase used in the CBD for negotiated agreements based upon contractual terms, negotiated in good faith and without undue duress.34 Draft ABS Protocol Article 5bis. UNEP/CBD/WGABS/3, April 26, 2010. Draft ABS Protocol Article 5bis. UNEP/CBD/WGABS/3, April 26, 2010.35 Article 40, UNDRIP. Article 40, UNDRIP.36 Alexander, M., P. Hardison, and M. Ahern, 2009. Alexander, M., P. Hardison, and M. Ahern, 2009. Study on Compliance in Relation to the Customary Law of Indigenous and Local Communities, National Law, Across Jurisdictions, and International Law. UNEP/CBD/ABS/GTLE/2/INF/3.37 Tobin, B., 2009b. “The Role of Customary Law and Practice in the Protection of Traditional Knowledge Related to Biological Diversity”, pages Tobin, B., 2009b. “The Role of Customary Law and Practice in the Protection of Traditional Knowledge Related to Biological Diversity”, pages

Development of national law and policy on ABS

and traditional knowledge msut ensure compliance

with Indigenous peoples’ customary law.

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misappropriation, customary law can also serve as a source of crucial information regarding any rights, restrictions, and fiduciary obligations relating to access to and use of genetic resources and traditional knowledge. This information may be central to the demonstration by Indigenous peoples of a breach of their rights and to enable a court, administrative authority, or dispute resolution mechanism to make informed, fair, and equitable decisions. The challenge for the ABS Protocol is to find means to articulate obligations relating to customary law that take into account the varying responsibilities of states and the differing levels of recognition of customary law in national jurisdictions. Guidance on how this may best be achieved can be gleaned from the provisions of UNDRIP.

UNDRIP requires states to give “due respect” to Indigenous peoples’ customs, laws, and traditions in recognizing their rights over “resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.”38 Article 27 of the Declaration goes further by requiring states to establish, in conjunction with Indigenous peoples, “a fair, independent, impartial, open and transparent process, giving due

recognition to indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their … resources.”39 This appears to follow the requirements for recognition of Native title that have developed over the last 20 years or so, with customary law playing a central role in demonstrating the nexus between the relevant Indigenous peoples and their traditional lands and territories.40 It is thus arguable that where customary law demonstrates an ancestral right over genetic resources, then (except when it may be specifically overridden by national law) that right must be given due recognition in national ABS measures. An ABS Protocol should therefore establish an obligation for states to give due recognition to customary law in the recognition and adjudication of rights over genetic resources and traditional knowledge.

With regard to the resolution of disputes arising from the exercise of rights over resources and knowledge, Article 40 of UNDRIP requires that in conflicts with the state or third parties, “due consideration” shall be given to the customs, traditions, rules, and legal systems of the Indigenous peoples concerned and to international human rights. Although the

term ‘due consideration’ is significantly weaker than either ‘due respect’ or ‘due recognition’, it is not toothless. West’s Law Dictionary defines ‘due consideration’ as “the proper weight or significance given to a matter or a factor as circumstances mandate.”41 The IGC draft elements on the protection of traditional knowledge utilizes a somewhat equivalent term, calling for “due regard” of customary law, which the English Court of Appeal has recently held to be more than a mere “box-ticking” exercise.42 An obligation to give due consideration would require judicial and administrative authorities to give appropriate weight to customary law when reaching their decisions.

The Co-chairs’ original draft for the ABS Protocol stated in Article 9.1 that, “in implementing their obligations… Parties shall give due consideration to indigenous and local community laws, customary laws, community protocols and procedures, as applicable, with respect to traditional knowledge associated with genetic resources.”43 During the 9th meeting of the WGABS, which resumed in Montreal in July, 2010, the phrase “due consideration” was replaced with “take into consideration”. While due consideration implies more than a mere box-ticking exercise, an obligation to ‘take into

127-156 in Antons, C. (ed.), Traditional Knowledge and Traditional Cultural Expressions in the Asia-Pacific Region. Kluwer: the Netherlands.38 Article 26, UNDRIP. Article 26, UNDRIP.39 Article 27, UNDRIP. Article 27, UNDRIP.40 For discussion of conditions for recognition of Native title, see generally McRae, H. (ed.), 2009. For discussion of conditions for recognition of Native title, see generally McRae, H. (ed.), 2009. Indigenous Legal Issues: commentary and materials, 4th Edn. Thomson Reuters (Professional) Australia Limited: Sydney; and Gilbert, 2006.41 Lehman, J., and S. Phelps (eds.), 2005. Lehman, J., and S. Phelps (eds.), 2005. West’s Encyclopaedia of American Law, 2nd Edition. Thompson & Gale: Detroit.42 See See R (Deborah Domb & Others) v The London Borough of Hammersmith and Fulham and The Equality and Human Rights Commission [2009] EWCA 941 (Civ), [2009] All ER (D) 42 (Sep). In his judgement, Rix LJ noted that “the test of whether a decision maker has had due regard is a test of the substance of the matter, not of mere form or box-ticking, and that the duty must be performed with vigour and with an open mind.”43 UNEP/CBD/WG-ABS/9/3. UNEP/CBD/WG-ABS/9/3.

Figure 5. Left to right: WGABS Co-chairs Fernando Casas (Colombia) and Tim Hodges (Canada) confer with Lyle Glowka and Valérie Normand of the CBD Secretariat.© Brendan Tobin


24

consideration’ might potentially be met by the most perfunctory consideration of customary law. Equally problematic was a proposal for the replacement in Article 9.1 of “community laws, customary laws and, community protocols and procedures” with the more ambiguous term, “community level procedures”. If adopted, this would erase any reference to customary law and run contrary to state obligations under both CBD Decision VI/10 and UNDRIP.

Efforts to dilute reference to customary law in the draft ABS Protocol have come mainly from developed countries. On one hand, this concern relates to the legal complexities that would arise from giving recognition to unwritten customary law from foreign countries in national courts. On the other hand, it involves concerns of the potential implications of

giving any recognition to Indigenous peoples’ customary laws, which, if fully recognized, would strengthen already strident demands for restitution of land and resource rights. Although he acknowledges the potential disruption that could be brought about by the recognition of customary law and of the ancestral rights it substantiates, John Borrows has argued that the failure to secure the rule of law effectively undermines legal certainty for all.44

Although the use of terms such as ‘due respect’, ‘due recognition’, or ‘due consideration’ causes concern in some quarters, the legal basis for opposition to their inclusion in the ABS Protocol appears largely unfounded. Use of these terms would serve to confirm, in varying degrees, countries’ commitments to comply with their obligations under national

and international law. Such obligations would, however, be limited to those relating specifically to the role of customary law in the recognition and enforcement of rights over genetic resources and traditional knowledge. Furthermore, the use of the term ‘due’ in itself implies a level of conditionality on the weight to be given customary law in each instance, an issue which would then be determined in accordance with national law. This would be the case even when a diversity of customary legal systems with differing status exists under the overarching national law of a particular state. It is, however, clear that distinct levels of recognition are required for cases involving the status of customary law as it relates to the existence of rights over resources and knowledge and to its role in dispute resolution that involves exercising those rights.

Drawing on the provisions of UNDRIP, it is suggested that the ABS Protocol adopt a similar approach to the recognition of customary law. This would involve distinguishing between the obligations of states relating to the recognition and adjudication of rights over genetic resources and traditional knowledge, for which ‘due recognition’ of customary law is requisite, and to dispute resolution procedures for conflicts arising from exercise of those rights, where ‘due consideration’ of customary law may prove more appropriate.

conclusIon The CBD has declared itself the primary body responsible for protection of traditional knowledge relating to biological diversity. The negotiation of the ABS Protocol will demonstrate whether it can, in fact, live up to that responsibility. The adoption of a Protocol on ABS at the CBD provides an important opportunity to secure Indigenous peoples’ rights over their traditional knowledge. However, as currently drafted, the ABS Protocol fails to do so and also fails to secure due recognition of the fundamental role that customary law has to play in the governance of Indigenous peoples’ rights; it also fails to provide Indigenous peoples with means for redress in cases of misappropriation of either their resources or knowledge. Good legal governance, capable of securing equitable benefit sharing and the protection of subsisting native title rights over genetic resources and traditional knowledge, requires a ‘rule of law’ based upon multicultural legal pluralism, which recognizes and draws upon sources of legal principles, equity, contract, and dispute resolution found in both customary and positive legal regimes.

The challenges and complexities associated with devising and implementing measures to secure Indigenous peoples’ rights are not small. However, these challenges cannot and should not be side-stepped forever. If the Parties to the CBD individually and collectively muster the political will necessary to address these challenges in the ABS Protocol by COP 10 in October, 2010, then it may be said, by inverting the age-old adage, that “the law taketh and the law giveth back”. Should they fail to do so, COP 10 is likely to be remembered as the birthplace of the Biopiracy Protocol and calls will soon be raised for the negotiation of a stand-alone international protocol on traditional knowledge. Either way, the rule of law

44 Borrows, 2002. Borrows, 2002.

The negotiation of the ABS Protocol will

demonstrate whether the CBD can live up to its self-declared responsibility as the primary body for protecting

traditional knowledge.

25



must someday prevail.45

45 After the resumed WGABS took place in Montreal from September 18-21, 2010, there were still major issues to be resolved in Nagoya.

Brendan Tobin ([email protected]) is a lawyer, Ashoka fellow, and PhD candidate at the Irish Centre for Human Rights at the National University of Ireland. Having been involved in ABS negotiations since 1993, he has published extensively on issues of ABS and the protection of traditional knowledge, including through his role as coordinator of the Biodiplomacy Initiative at the United Nations University’s Institute of Advanced Studies from 2003-2007.

Indigenous bio-cultural heritage involves the relationship between biological resources and associated traditional ecological knowledge. The inextricable link between biological and cultural diversity has been acknowledged in the natural and social sciences, as well as in international and national policy.1 The South Pacific is a biologically and culturally diverse region in which Indigenous peoples are closely connected to nature through cultural and spiritual values.2 Their reliance upon biological resources extends from sustenance and livelihoods to deeply rooted cultural practices involving the use of fauna and flora for ceremonies and celebrations.3 The traditional ecological knowledge across the region is also extensive, including, for example, complex information about food preparation using poisonous plants, significant medical knowledge held by traditional healers, and bio-cultural indicators for weather.4 However, globalization and modernization have resulted in shifting value systems; population growth,

1 Maffi, L., 200�. “Biocultural Diversity and Sustainability”, pages 26�-2�� in Pretty, J., A. Ball, T. Benton, J. Guivant, D. R. Lee, D. Orr, M. Pfeffer, and H. Ward (eds.), The Sage Handbook of Environment and Society. Sage Publishing: London.2 Gerbeaux, P., T. Kami, P. Clarke, and T. Gillespie, 2007. Shaping a Sustainable Future in the Pacific: IUCN Regional Programme for Oceania 2007-2012. IUCN Regional Office for Oceania: Suva, Fiji; Smith, A., and D. O’Keefe, 2004. Training Workshops in Cultural Heritage Management in the Pacific Island Nations Interim Report: Workshop 1, Levuka, Fiji. UNESCO: Paris and ICOMOS: Australia. For a consideration of the connection between South Pacific people and the natural environment in the context of cultural landscapes, see Smith, A., and K. L. Jones, 200�. Cultural Landscapes of the Pacific Islands. ICOMOS Thematic Study. ICOMOS: Paris.3 Techera, E. J., and S. Troniak, 2009. Marine Protected Areas Policy and Legislation Gap Analysis: Fiji Islands. IUCN Regional Office for Oceania: Suva, Fiji.4 UNESCO-MAB, 2005. International Symposium-Conserving Cultural and Biological Diversity: The Role of Sacred Natural Sites in Cultural Landscapes. UNESCO: Paris, page 168, in relation to East Rennell in the Solomon Islands.

Safeguarding Indigenous Bio-Cultural Heritage in the South Pacific Small Island States

Erika J. Techera

Figure 1. Map of Oceania. © Perry-Castañeda Library Map Collection, University of Texas


26

natural resource exploitation, and land degradation have all contributed to the degradation of natural and cultural heritage.

The legal protection of Indigenous bio-cultural heritage involves many areas of law such as human and Indigenous collective rights, biodiversity and protected area management legislation, property rights (including intellectual property), and heritage law. The focus of this article is the international law that supports the conservation of genetic resources and the intangible aspects of Indigenous bio-cultural heritage in the South Pacific. In particular, attention will be drawn to the need for greater interconnectedness between the United Nations Convention on Biological Diversity5 (CBD) and the United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention on the Safeguarding of Intangible Cultural Heritage6 (CSICH). In addition, the South Pacific island states have taken some important steps that may prove useful to other regions of the world.

The Role of InTeRnaTIonal law

At the international level, the rights of Indigenous peoples to the protection of and respect for their cultures, traditional practices, and customary lands and resources have been specifically recognized in the International Labour Organization Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries (ILO 169)7 and in the United Nations Declaration on the Rights of Indigenous Peoples.8 Concurrently, the CBD has been the trigger for action to conserve and manage biodiversity, including genetic resources, at all levels of governance. The treaty calls for the in situ conservation of genetic resources, species, and ecosystems. Of particular relevance is Article 8(j) of the CBD, which calls for states to respect, preserve, and maintain “knowledge, innovations and practices of indigenous and traditional communities... relevant for the conservation and sustainable use of biological diversity”.9 In addition, Article 10(c) encourages states “to protect and encourage customary use of biological resources in accordance with traditional cultural practices” compatible with conservation and sustainable use.10 The focus is upon utilization of resources and the references to consent and benefit sharing arguably imply that the greatest risk is from unauthorized and inequitable exploitation. However, the CBD neither acknowledges the intrinsic value of bio-cultural heritage, nor seeks to address the current loss of culture in the South Pacific and throughout the world.

The CSICH, on the other hand, seeks to safeguard all intangible cultural heritage, regardless of its economic utility. Under Article 2(2), bio-cultural heritage is part of the domain of “knowledge and practices concerning the nature and universe”.11 Importantly, the focus is upon maintaining the ‘living’ nature of culture and its transmission to future generations.12 In association with the CSICH, UNESCO offers practical strategies such as the Living Human Treasure programme for safeguarding intangible cultural heritage. This programme encourages states, including those in the South Pacific, to officially recognize people with a high degree of knowledge and skills required for performing or re-creating elements of

5 United Nations Convention on Biological Diversity (CBD), opened for signature June 5, 1992, 1760 UNTS 79 (entered into force December 29, 1993).6 Convention on the Safeguarding of Intangible Cultural Heritage (CSICH), opened for signature October 17, 2003, UNESCO Doc MISC/2003/CLT/CH/14 (entered into force April 20, 2006).7 ILO 169, opened for signature June 27, 1989, 28 ILM 1382 (entered into force September 5, 1991).8 United Nations Declaration on the Rights of Indigenous Peoples, UN Doc A/RES/61/295 (opened for signature September 13, 2007).9 CBD, 1992.10 CBD, 1992. CBD, 1992.11 CSICH, 2003. CSICH, 2003.12 UNESCO, 2010a. “Safeguarding without freezing”. Last accessed June 2, 2010, at: http://www.unesco.org/culture/ich/index.php�pg�00012. UNESCO, 2010a. “Safeguarding without freezing”. Last accessed June 2, 2010, at: http://www.unesco.org/culture/ich/index.php�pg�00012.UNESCO, 2010a. “Safeguarding without freezing”. Last accessed June 2, 2010, at: http://www.unesco.org/culture/ich/index.php�pg�00012.Last accessed June 2, 2010, at: http://www.unesco.org/culture/ich/index.php�pg�00012.June 2, 2010, at: http://www.unesco.org/culture/ich/index.php�pg�00012.

Figure 2. Taboo fishing area, Mangaliu, Vanuatu. © Erika J. Techera

27



intangible cultural heritage and to facilitate the transmission of knowledge and skills to younger generations.13

This international legal and policy framework provides an important foundation for the protection of Indigenous bio-cultural heritage as a human or collective Indigenous right, in association with biodiversity conservation and under heritage law itself. Despite this foundation, comprehensive legal protection of Indigenous bio-cultural heritage would require these laws to be mutually reinforcing in order to truly safeguard genetic resources and traditional ecological knowledge

both from extinction and exploitation. In the long-term, an international treaty on the protection of traditional knowledge would arguably facilitate the better protection of bio-cultural heritage. However, existing legal and policy frameworks on access and benefit sharing and sustainable management of traditional knowledge and resources presuppose their continued existence. In the short-term, it is therefore essential that steps are taken to protect both biological and cultural diversity and to ensure that the CBD and CSICH operate in a synergistic way.

The CBD, for example, promotes the in situ conservation of genetic resources; this is essential for the safeguarding of Indigenous bio-cultural heritage because continuous connection with customary lands is an essential part of Indigenous peoples’ ways of life. While the CBD also encourages customary use of biodiversity, this is only to the extent that it is ‘compatible’ with

conservation and sustainable use. The CBD does not protect the lifestyles of Indigenous and traditional peoples, per se, which are also a vital component of bio-cultural heritage. Therefore, the processes addressed by the CSICH are also needed to ensure that traditional knowledge and cultural practices continue to be used and transmitted and, where appropriate, revitalized. Another example relates to the utilization of Indigenous bio-cultural heritage. While the CSICH provides the mechanisms to revitalize and safeguard traditional knowledge and practices, the CBD provides for their fair and equitable utilization through benefit sharing agreements. Thus, the CBD must work in conjunction with the CSICH to holistically protect bio-cultural heritage from misappropriation and exploitation. It is not clear how these treaties are currently working together in practice in this way, although some recent attention has been given to this issue at the policy level.14 The risk of a legally fragmented, sectoral approach is that some aspects of cultural heritage are likely to be neglected, exploited inappropriately, or lost altogether.

legal PRoTecTIon of IndIgenous BIo-culTuRal heRITage In The souTh PacIfIc

The South Pacific region is comprised of a number of small island developing states spread across a large ocean area. Although it is difficult to make generalizations, the majority of these island states are former colonies15 that are now independent. In almost all cases, upon independence, customary land ownership was restored and varying types of recognition were given to customary law.16 However, Western parliamentary and legal systems introduced during colonial times have not been displaced.17 Much of the population continues to live a traditional lifestyle with adherence to traditions and customary law to a greater or lesser extent. Thus, each of the countries is legally pluralist with both a dominant legal system and customary law operating; this creates a complex environment for law- and policy-makers designing new regulations.

In the context of Indigenous bio-cultural heritage protection, international law plays an important standard-setting role. Any legal fragmentation at the global level is likely to be replicated domestically, as is the case with biodiversity

13 UNESCO, 2010b. “Encouraging transmission of ICH: Living Human Treasures”. Last accessed June 2, 2010, at: http://www.unesco.org/ UNESCO, 2010b. “Encouraging transmission of ICH: Living Human Treasures”. Last accessed June 2, 2010, at: http://www.unesco.org/UNESCO, 2010b. “Encouraging transmission of ICH: Living Human Treasures”. Last accessed June 2, 2010, at: http://www.unesco.org/Encouraging transmission of ICH: Living Human Treasures”. Last accessed June 2, 2010, at: http://www.unesco.org/culture/ich/index.php�pg�00061. Fiji is one of the countries to have established such a programme. See UNESCO, 2007. “Establishment of a National Living Human Treasures system in Fiji.” Last accessed June 2, 2010, at: http://portal.unesco.org/culture/en/ev.php-URL_ID�29181&URL_DO�DO_PRINTPAGE&URL_SECTION�201.html.14 International Conference on Biological and Cultural Diversity: Diversity for Development � Development for Diversity (June 8-10, 2010, International Conference on Biological and Cultural Diversity: Diversity for Development � Development for Diversity (June 8-10, 2010, International Conference on Biological and Cultural Diversity: Diversity for Development � Development for Diversity (June 8-10, 2010, Montreal, Canada). A Proposed Joint Programme of Work on Biological and Cultural Diversity Led by the Secretariat of the Convention on Biodiversity and UNESCO. Last accessed June 24, 2010, at: www.unesco.org/mab/doc/iyb/icbcd_working_doc.pdf. Also, it has been argued that UNESCO is best placed to ‘mainstream links between biological and cultural diversity’. See UNESCO and The Christensen Fund, 2007. Links between biological and cultural diversity, report of international workshop from September 26-28, 2007. UNESCO: Paris.15 For example, Fiji was a British colony, Vanuatu (formerly the New Hebrides) was jointly administered by the French and British, and Samoa For example, Fiji was a British colony, Vanuatu (formerly the New Hebrides) was jointly administered by the French and British, and Samoa For example, Fiji was a British colony, Vanuatu (formerly the New Hebrides) was jointly administered by the French and British, and Samoa was a German protectorate later taken over by New Zealand.16 Whilst it is hard to make generalizations, the position ranges from one where customary law is constitutionally recognised alongside legislation Whilst it is hard to make generalizations, the position ranges from one where customary law is constitutionally recognised alongside legislation as a source of law (Vanuatu) and where it has implied acknowledgement (Samoa) to others where customary law has no formal acknowledgement but in practice is applied on a daily basis (Fiji). 17 Fiji, Vanuatu, and Samoa each have retained a common law legal system. Vanuatu still retains some French laws. Fiji, Vanuatu, and Samoa each have retained a common law legal system. Vanuatu still retains some French laws.

Legal protection of Indigenous

bio-cultural heritage requires

international laws to be mutually

reinforcing.


28

conservation and heritage protection, which have tended to be addressed separately. The CBD has been widely ratified throughout the South Pacific region,18 but few states have yet committed to the CSICH.19 This has resulted in a focus on domestic legislation to meet obligations under the CBD, but not those under the CSICH. Fiji, for example, has enacted the Environment Management Act 2005, which provides for land use planning, environmental impact assessment, and pollution control, together with the National Trust for Fiji Act 1970, which authorizes the declaration of protected areas, buildings, and objects.20 Neither of these statutes mentions Indigenous bio-cultural heritage or traditional ecological knowledge. While there are some intellectual property laws in Fiji,21 there is no specific legislation that safeguards intangible heritage.22 Similarly, Vanuatu has enacted the Environmental Management and Conservation Act 2002, which provides for the conservation, sustainable development, and management of the Vanuatu environment.23 This statute has gone further than many similar laws by providing for the protection and registration of Community Conserved Areas and a permit system for bio-prospecting. However, despite having some intellectual property laws, Vanuatu also has no specific legislation to safeguard intangible cultural heritage.24 Furthermore, Samoa has intellectual property legislation that protects expressions of folklore25 and some protected area management legislation26, but no laws protecting traditional ecological knowledge. Overall, it is evident that there is little specific heritage law in these countries and no comprehensive legislation to protect intangible cultural heritage, traditional ecological knowledge, and Indigenous bio-cultural heritage altogether. This reflects the position at the international level where the CBD is widely ratified, the CSICH has only recently come into force, and there is no current treaty specifically aimed at the protection of traditional knowledge or bio-cultural heritage.

As noted above, biodiversity in the South Pacific region is threatened by pressures such as population growth and environmental degradation. At the same time, cultural heritage is being lost through the processes of modernization and globalization. These losses are likely to worsen as further factors such as climate change impact the physical as well as the cultural environment. In addition, both genetic resources and cultural heritage are at risk of misappropriation by

others. Therefore, legislative gaps must be addressed to avoid exposing Indigenous bio-cultural heritage to further loss. It is essential that the states in the South Pacific region develop laws and policies to ensure that both natural and cultural elements of Indigenous bio-cultural heritage are conserved, regardless of their economic value, and are protected thereafter from inequitable exploitation.

The need for further legal frameworks has been recognized at both the national and regional levels. For example, at the national level, the Samoan Law Reform Commission and the Fiji Ministry of Indigenous Affairs’ Institute of Fijian Language and Culture are currently working on legislation to protect traditional knowledge and expressions of culture. At the regional level,

the Secretariat of the Pacific Community27 developed the Model Law on Traditional Knowledge and Expressions of Culture in 2002. This model provides a framework for ownership of traditional cultural rights, prior informed consent, and utilization of traditional knowledge. Currently, the Pacific Islands Forum Secretariat28 is leading an inter-agency collaboration 18 All 16 of the island states in the South Pacifi c have ratifi ed the CBD. See CBD (no date). “List of Parties”. Last accessed June 24, 2010, at: All 16 of the island states in the South Pacific have ratified the CBD. See CBD (no date). “List of Parties”. Last accessed June 24, 2010, at: http://www.cbd.int/convention/parties/list/.19 To date, Fiji, Vanuatu, and Tonga have ratifi ed CSICH. See UNESCO, 2010c. “The States Parties to the Convention for the Safeguarding of the To date, Fiji, Vanuatu, and Tonga have ratified CSICH. See UNESCO, 2010c. “The States Parties to the Convention for the Safeguarding of the Intangible Cultural Heritage (2003)”. Last accessed June 22, 2010, at: http://www.unesco.org/culture/ich/index.php�pg�00024.20 National Trust of Fiji Act 1970 �Cap265�. National Trust of Fiji Act 1970 �Cap265�.21 For example, the Copyright Act 1999 and the Patents Act 1978 �Cap 239�. For example, the Copyright Act 1999 and the Patents Act 1978 �Cap 239�.For example, the Copyright Act 1999 and the Patents Act 1978 �Cap 239�.22 However, a Heritage Decree is currently being drafted. However, a Heritage Decree is currently being drafted.However, a Heritage Decree is currently being drafted.23 The Environmental Management and Conservation Act 2002 �Cap 283� (Vanuatu) was assented to on December 31, 2002, and commenced on The Environmental Management and Conservation Act 2002 �Cap 283� (Vanuatu) was assented to on December 31, 2002, and commenced on March 10, 2003.24 Vanuatu has also enacted the Preservation of Sites and Artefacts Act �Cap 39� which provides for the classifi cation of sites of historical, Vanuatu has also enacted the Preservation of Sites and Artefacts Act �Cap 39� which provides for the classification of sites of historical, ethnological, or artistic interest.25 Copyright Act 1998, Section 29. Copyright Act 1998, Section 29.Copyright Act 1998, Section 29.26 Relevant legislation includes the National Parks and Reserves Act and the Lands, Surveys and Environment Act 1989, but they do not include Relevant legislation includes the National Parks and Reserves Act and the Lands, Surveys and Environment Act 1989, but they do not include environmental impact assessments or true integrated natural resource management.27 The Secretariat of the Pacifi c Community was founded in 1947 and provides technical, research, educational, and planning services to its 26 The Secretariat of the Pacifi c Community was founded in 1947 and provides technical, research, educational, and planning services to its 26 The Secretariat of the Pacific Community was founded in 1947 and provides technical, research, educational, and planning services to its 26 member states.28 The Pacifi c Island Forum Secretariat is the intergovernmental organization that coordinates the implementation of the Pacifi c Plan aimed The Pacific Island Forum Secretariat is the intergovernmental organization that coordinates the implementation of the Pacific Plan aimed at strengthening regional cooperation and integration. The Secretary General of the Forum Secretariat is the Chair of the Council of Regional Organisations in the Pacific, which brings together eleven main regional organizations in the Pacific region (including the Secretariat of the Pacific Community and the Secretariat of the Pacific Regional Environment Programme).

Legal fragmentation of biocultural diversity at the international level will likely be replicated at the national level.

The protection of traditional knowledge

in the South Pacific requires both

national and regional legal frameworks.

29



in this area with the Secretariat of the Pacific Community, Secretariat of the Pacific Regional Environment Programme,29 and World Intellectual Property Organization. In addition, the Traditional Knowledge Implementation Action Plan was prepared in response to member countries’ requests for technical assistance to progress the Model Law and develop national systems of protection. It addresses the protection of traditional knowledge through the development of national and regional frameworks at two levels: traditional biological resources (including the protection of plant genetic resources and knowledge) in collaboration with the Secretariat of the Pacific Regional Environmental Programme; and traditional knowledge and expressions of culture (including traditional arts, songs, and dances) in collaboration with the Secretariat of the Pacific Community. The Action Plan includes a pilot programme aimed at developing traditional knowledge bills in six Pacific states, including Fiji and Vanuatu, that is currently underway.30

conclusIon

The fragmentation and disconnect between international heritage law and that which encourages the conservation and fair and equitable utilization of genetic resources and traditional ecological knowledge has hindered the development of relevant integrated laws at the regional and national levels. In these circumstances, laws for protected area management, species and genetic resource conservation, heritage, and intellectual property have arisen separately. In the biologically and culturally diverse South Pacific region, where limited resources are available for law and policy development, this creates barriers to the drafting of a coherent system for the protection of Indigenous bio-cultural heritage.

Designing new and culturally appropriate laws to address these issues is problematic within the context of the legally pluralist South Pacific nations. Such laws must meet contemporary regulatory needs, but not transgress deeply ingrained traditional beliefs or customary laws. The situation is further complicated by the well-documented incompatibility of Western intellectual property law with the protection of traditional ecological knowledge.31 Despite these significant complexities, South Pacific island states have taken the lead in seeking to progress a comprehensive regime involving national legislation as well as a cross-jurisdictional regional legal framework. In particular, it is hoped that the pilot programme involving domestic implementation of the Model Law on traditional knowledge and cultural expression will lead to the development of such laws throughout the region. This will be complemented by the development of further national and regional frameworks concerning traditional knowledge, innovations, and practices related to biological resources.32

There is little doubt that the genetic resources and traditional ecological knowledge of the South Pacific region are culturally and economically valuable and could be more broadly utilized by Indigenous peoples to assist in the achievement of sustainable development.33 The challenge is to ensure that appropriate legal strategies are identified in order to facilitate

29 The Secretariat of the Pacifi c Regional Environment Programme is a regional organization that was established by Pacifi c islands governments The Secretariat of the Pacific Regional Environment Programme is a regional organization that was established by Pacific islands governments to promote cooperation and provide assistance in the region and to protect and improve the environment. Members include 21 Pacific island states and territories as well as 4 countries with regional interests.30 Pacifi c Island Forum Secretariat, 2009. “Traditional Knowledge Action Plan”. Last accessed June 24, 2010, at: http://www.forumsec.org/ Pacifi c Island Forum Secretariat, 2009. “Traditional Knowledge Action Plan”. Last accessed June 24, 2010, at: http://www.forumsec.org/Pacific Island Forum Secretariat, 2009. “Traditional Knowledge Action Plan”. Last accessed June 24, 2010, at: http://www.forumsec.org/resources/uploads/attachments/documents/Traditional%20Knowledge%20Action%20Plan%202009.pdf. Funding towards implementation of the Traditional Knowledge Action Plan has been provided by the European Union, which is also assisting some of the national efforts in this area.31 This issue has been the subject of much academic research and institutional effort, in particular from the Secretariat of the Pacifi c Community This issue has been the subject of much academic research and institutional effort, in particular from the Secretariat of the Pacific Community at the regional level, as noted above, and the World Intellectual Property Organization (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore at the international level. See WIPO (no date). “Traditional Knowledge, Genetic Resources and Traditional Cultural Expressions/Folklore”. Last accessed June 24, 2010, at: http://www.wipo.int/tk/en.32 Another model law has been developed by the Secretariat of the Pacifi c Regional Environment Programme. See “The Model Law on Another model law has been developed by the Secretariat of the Pacifi c Regional Environment Programme. See “The Model Law on Another model law has been developed by the Secretariat of the Pacific Regional Environment Programme. See “The Model Law on Traditional Ecological Knowledge, Innovations and Practices”. Last accessed July 20, 2010, at: http://www.grain.org/brl_files/brl-model-law-pacific-en.pdf. 33 There are examples of agreements that have been reached with traditional knowledge holders in relation to possible medicinal and There are examples of agreements that have been reached with traditional knowledge holders in relation to possible medicinal and pharmaceutical products to be derived from the use of genetic resources and traditional ecological knowledge. See Tavana, N. G. V., 2002.

Figure 3. Eretoka Island, Vanuatu. © Erika J. Techera


30

this. In seeking to conserve biological and cultural heritage, international law has a powerful standard-setting role to play and existing laws and global institutions must work more cooperatively. Important lessons may also be learned from sharing the experiences of South Pacific regional developments in this area. It is only in this way that the integrity of Indigenous bio-cultural heritage will be ensured for present and future generations.

“Traditional knowledge is the key to sustainable development in Samoa: examples of ecological, botanical and taxonomical knowledge”. Last accessed June 2, 2010, at: http://www.mnre.gov.ws/documents/forum/2002/4-Tavana.pdf.

Erika J. Techera ([email protected]), PhD, is an environmental lawyer and Director of the Centre for International and Environmental Law at Macquarie Law School. Erika has researched and taught in the broad field of international and comparative environmental law, including international environmental law, heritage law and policy, and water and marine biodiversity law. She is a member of the IUCN Commission on Environmental Law and World Commission on Protected Areas.

The Protection of Indigenous and Traditional Heritage in French Guyana: A Work in Progress Philippe Karpe and Alexis Tiouka1

In general, the definition of Indigenous and traditional heritage remains open for discussion and unclear about how it is established in practice. There are indeed working definitions accepted by many,2 but it is always difficult to agree on the criteria that comprise them. In spite of this lack of consensus in the discourse, France has legal provisions for Indigenous and traditional communities’ right to the preservation of their heritage. The 2000 Framework Law for Overseas Territories obliges the French government to respect, protect, and maintain Indigenous communities’ knowledge, innovations, and practices that are founded on their traditional lifestyles and that contribute to the conservation of the natural environment and biological diversity.3 Prior to then, France had no special regulations concerning the protection of Indigenous and traditional heritage, but there were other related regulations such as laws on intellectual property and customary law. However, it was appropriate to adopt a special regulation on this matter to ensure that relevant standards are unified in a coherent manner and to gain a better understanding of legal gaps and

1 Editor’s note: This article was originally written in French and was translated for the English version of Policy Matters 17. It will also be published in its original form in a fully French version of Policy Matters 17.2 See WIPO, 2004. Traditional knowledge: policy and legal options, WIPO/GRTKF/IC/6/4.3 Article 33, Law n°2000-1207 Framework Law for Overseas Territories, 2000.

Figure 1. “Ciel de case”, French Guyana Amerindian art (detail). © Valery Gond

31



opportunities. Overall, such a regulation provides the mandate for the development of standards for the ethical foundation of the right of Indigenous communities to their cultural heritage. This ethical foundation is a fundamental condition of the protection of cultural heritage.

In addition to the 2000 Framework Law, new regulations for National Parks4 were introduced to French law in 2006 provide traditional communities with the right to special protection of their heritage5, particularly in the Amazonian Park of Guyana. These regulations are in line with Article 8(j) of the United Nations Convention on Biological Diversity6 and the resolutions adopted by the International Union for Conservation of Nature (IUCN), particularly Resolution 1.55 (“Indigenous peoples and forests”), passed in 1996 at the first World Conservation Congress. The Law on National Parks establishes the authorization for access to the Indigenous and traditional heritage inside the Amazonian Park as the basic principle for the protection of communities’ heritage.7 It already specifies the procedures for doing so; for example, the authorizations are delivered by the president of the regional council8 after agreement of the president of the general council and consultation with the National Park administrative public entity. These authorizations are also delivered on the basis that they do not contravene the implementation of the provisions of the intellectual property code.9

Responsibility rests with the Amazonian Park Charter10 to elaborate upon the Law on National Parks and specify what constitutes protection.11 The Amazonian Park Charter was developed by the Amazonian Park Scientific Board12 and then submitted to the Management Board and Park Director for approval. Once approved, it must be definitively passed by the French government to take effect (to date, the Charter has still not been passed).

The DevelopmenT of The AmAzoniAn pArk ChArTer

In 2009, the Amazonian Park Scientific Board created a working group specifically to draft provisions of the Charter relating to the protection of Indigenous and traditional heritage. These precise details are needed to enact the provisions established by the Law on National Parks; otherwise, the heritage is open for appropriation. For example, several requests

have recently been submitted by French and foreign (Brazilian and English, in particular) organizations to conduct research on Indigenous and traditional heritage within the Park.13 This indicates the urgency and necessity of developing and enacting an appropriate legal framework to ensure the protection of such heritage before it is exploited.

The working group released its first report in May, 2009. It proposes an analysis of the different avenues for the protection of Indigenous and traditional heritage, namely, as intellectual property, through regulation of access to genetic resources, and through the sharing of benefits that may result from its use. The report also proposes to help the Scientific Board draft the Amazonian Park Charter and raises various questions related to the potential

access and benefit sharing regime, including, among others, what criteria will be used to determine who has access to the resources, who makes the final decisions, and for how long the authorization for access will be valid. Some of these questions have not yet been given a firm response, as the working group notes that further studies and discussions are required, particularly regarding how to deal with non-material benefits and easy-to-access sources of information such as scientific publications. Compliance mechanisms such as sanctions and access to justice for failing to respect the protection of Indigenous and traditional heritage also need to be further elaborated. The working group suggests that administrative

4 Law n°2006-436 pertaining to national parks, natural marine parks, and regional natural parks, 2006.5 Article L.331-15-6 of the Environmental Code.6 Article L.331-15-5, second paragraph of the Environmental Code.7 Article L.331-15-6, first paragraph of the Environmental Code.8 The municipality, the department, and the region are the French local authorities. Guyana is at the same time a region and a department. As both a region and department, Guyana is managed by general elected Councils (deliberative bodies), which themselves designate presidents.9 Article L331-15-6, third paragraph of the Environmental Code.10 Drafted by the Park�s entities and approved by the �overnment, the Charter defi nes its objectives and its perspectives with respect to Drafted by the Park�s entities and approved by the �overnment, the Charter defines its objectives and its perspectives with respect to sustainable development and protection of the natural and cultural heritage and landscape. It also specifies the means to implement these objectives in Article L331-3 of the Environmental Code.11 Article L331-15-6, second paragraph of the Environmental Code Article L331-15-6, second paragraph of the Environmental Code12 The Scientifi c Board is one of the three main Park�s entities. It supports the management Board and the Director to perform their tasks. This The Scientific Board is one of the three main Park�s entities. It supports the management Board and the Director to perform their tasks. This scientific Board is composed of qualified persons in life sciences, Earth, human and social sciences. It can be used to advise the management Board on all relevant questions within their jurisdiction. One indigenous representative is currently a member of the Scientific Board.13 These projects are confi dential, so it is not possible to cite them. These projects are confidential, so it is not possible to cite them.

The right of Indigenous communities to their cultural heritage is a

fundamental condition for the protection of

that heritage.


32

entities of the Amazonian Park shall be ready to assess any applications to use Indigenous and traditional heritage and to control access thereafter, as well as to take decisions concerning benefit sharing mechanisms. Questions also remain regarding the nature of benefits to be shared and the powers of the regulatory bodies, among others. In those cases, the working group will refer to the 2002 Bonn Guidelines on access to genetic resources and the fair and equitable sharing of the benefits arising from their utilization14.

In addition, the working group formulates certain specific proposals relating in particular to the economic development of research, patent applications, and the legal process of authorization to access Indigenous and traditional heritage. In order to take into account the principle of free and informed consent of the Indigenous populations, the report suggests creating a Board of Representatives of these populations who would be involved in the decision-making process with a right of veto. This power of joint decision-making would only pertain to the decisions impacting the communities directly and indirectly. In other cases, the report recommends that they have at least an advisory capacity. It is noted that the working group has not yet specified the nature of the decisions that would and would not be subject to the process of joint decision-making.

This legal protection of Indigenous and traditional heritage relates only to that in the area covered by the Amazonian Park in Guyana15. Accordingly, in March, 2010, the French government16 carried out a study on the relevance and feasibility of an action plan for access and benefit sharing arising from the use of genetic resources and traditional knowledge in overseas territories. One of the objectives of this study was to establish legal protection for the Indigenous communities in the entire Guyana territory and for the other French overseas territories. This work is due to be completed by the end of 2010, at which time a report will be submitted to the government that contains recommendations for the legal protection of French Indigenous and traditional communities overseas. The first report of this study was published in February, 2010.

Overall, it is clear that establishing a legal framework for the protection of Indigenous and traditional heritage in French Guyana is a work in progress with many unanswered questions. However, it is seen as an important and critical endeavour to have undertaken in law and policy and one that aims to enact positive benefits for Indigenous communities and their traditional heritage.

14 CBD decision VI/24. CBD decision VI/24.15 Article L.331-15-6 of the Environmental Code is included under sub-section Code 3, entitled “Amazonian Parks in Guyana”. Article L.331-15-6 of the Environmental Code is included under sub-section Code 3, entitled “Amazonian Parks in Guyana”.Article L.331-15-6 of the Environmental Code is included under sub-section Code 3, entitled “Amazonian Parks in Guyana”.16 The study was requested by the Minister in charge of ecology and the Minister in charge of overseas affairs. The study was requested by the Minister in charge of ecology and the Minister in charge of overseas affairs.

Figure 2. “Ciel de case”, French Guyana Amerindian art. © Valery Gond

Philippe Karpe ([email protected]) is a Researcher in Law at the French Agricultural Research Centre for International Development (CIRAD) and a governmental expert on Indigenous peoples’ law. He is currently studying the concept of Indigenous citizenship in the Guianese and French context. Alexis Tiouka ([email protected]), Deputy-Mayor of Awale-Yalimapo, participated in working groups during the drafting of the United Nations Declaration on the Rights of Indigenous Peoples. He is currently a member of the Amazonian Park Scientific Council as an advisor on issues related to access and benefit sharing.

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The last two decades have been eventful for conservation policy, with rights over resources and community conservation initiatives gaining more focus in academic debate, policy, and practice around the world. Many countries have now adopted forest tenure reforms to secure rights of Indigenous peoples and local communities over forests and natural resources1. Forest tenure reforms are happening against the backdrop of growing evidence of the importance of rights-based approaches to conservation, particularly in contrast to the conventional conservation approach that is exclusive of rights and community participation2. These reforms are also occurring within the context of conflicts around the impacts of globalization and a neo-liberal model of development based on resource extraction, both of which have threatened and continue to threaten the lands, forests, and livelihoods of Indigenous peoples and local communities around the world3.

In India, the federal government has enacted the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006 (hereafter referred as the Forest Rights Act) to recognize and vest rights of forest communities. The enactment of the law is the culmination of a protracted struggle by communities for forest rights and conservation4 that spanned the greater part of the 19th and 20th centuries and continued into the 21st. This struggle emerged from issues like insecurity of land tenure and access rights, lack of recognition of community conservation initiatives in forest management, lack of recognition of traditional governance and resource ownership in tribal areas, and threats to community lands and forests from development projects. The Planning Commission of India has also highlighted the importance of resolving these issues through protective legislation such as the Forest Rights Act and the Panchayat Extension to Scheduled Areas Act to deal with the growing discontent, unrest, and extremism in tribal and forest areas5. Since the beginning of implementation in January, 2008, the Forest Rights Act, in particular, has

1 Sunderlin, W. D., J. Hatcher, and M. Liddle, 2008. From exclusion to ownership? Rights and Resources Initiative: Washington, D. C.2 Campese, J., T. Sunderland, T. Greiber, and G. Oviedo (eds.), 2009. Rights-based approaches: Exploring issues and opportunities for conservation. CIFOR and IUCN: Bogor, Indonesia.3 United Nations, 2009. State of the World’s Indigenous Peoples. United Nations Department of Economic and Social Affairs, Division for Social Policy and Development, Secretariat of the Permanent Forum on Indigenous Issues: New York.4 For more about the history of forest rights, community struggles, and enactment of the Forest Rights Act, see Guha, R., and M. Gadgil, 1992. This Fissured Land; An ecological history of India. Oxford University Press: Oxford; and Campaign for Survival and Dignity, 2003. Endangered Symbiosis, Evictions and India’s Forest Communities, Report of the Jan Sunwai (Public Hearing) held from July 19-20, 2003: Delhi. For more about the Forest Rights Act, see Campaign for Survival and Dignity (no date). “The Forest Rights Act”. Last accessed August 30, 2010, at: http://www.forestrightsact.com; Asher, M., and N. Agarwal, 2006. Recognizing the Historic Injustice, Campaign for the Forest Rights Act. National Center for Advocacy Studies: Pune, India; Springate-Baginski, O., M. Sarin, S. Ghosh, P. Dasgupta, I. Bose, A. Banerjee, K. Sarap, P. Misra, S. Behera, M. G. Reddy, and P. T. Rao, 2009. Redressing ‘Historical Injustice’ through the Indian Forest Rights Act, A Historical Institutional analysis of contemporary forest rights reform. Last accessed September 18, 2010, at: http://www.ippg.org.uk/papers/dp27.pdf; and Vasundhara (no date). “Forest Rights Act”. Last accessed August 30, 2010, at: http://fra.org.in.5 Government of India, 2008. Development challenges in Extremist Affected Areas, Report of an Expert Group to Planning Commission. Last accessed September 18, 2010, at: http://planningcommission.gov.in/reports/publications/rep_dce.pdf.

The Forest Rights Act: RedefiningBiodiversity Conservation in India

Tushar Dash

The Forest Rights Act is the culmination of a protracted struggle by forest-dependent communities to gain legal rights and recognition.

There are many field experiences with the implementation of the Forest Rights Act in the state of Orissa in India. By addressing issues of tenure security and access rights of forest communities, the Act builds a rights-based conservation framework around the recognition of forest rights, the process of determination of such rights, and the empowerment of local community institutions. The Act has the potential to recognize the diversity of use, access, and conservation practices and traditional knowledge of forest communities that have contributed to the conservation of forests and biodiversity. The empowerment of local community institutions and increased recognition of rights have enabled communities to better deal with external threats to community resources and to chart out their own management systems. Although there are certain issues and challenges impeding the implementation of the Act, it should be considered an essential part of current and future law, policy, and practice of forest management in India.

Abstract


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enlivened the conservation debate around two contesting arguments: one is represented by the conservation orthodoxy that holds forth that rights cannot co-exist with conservation; the other echoes the otherwise marginalized voice of the forest communities, as well as the current international discourse that recognition of forest rights and forest tenure reform are an essential part of a just and effective conservation process. In this context, this paper discusses the trends in implementation of the Act, the rights claimed, and how it is contributing to conservation by drawing on case studies and field experiences from the state of Orissa, India.

The ecological and legal conTexT of foresTs in orissa

The state of Orissa’s actual forest coverage is about 31 percent of its geographical area.6 There are two national parks, two tiger reserves, one biosphere reserve7, and 18 wildlife sanctuaries, covering 5 percent of Orissa’s geographical area. The state is home to 62 types of tribes, 13 of which are categorized as particularly vulnerable tribal groups (PTGs)8. Out of nearly 47 000 villages, there are about 29 300 forest fringe villages with a forest area of about 1 780 000 ha and population of nearly 15 935 0009. The forested districts are homeland to the tribes and PTGs and the forest cover in 12 tribal districts is about 38 percent of their total geographical area10. One-third of Orissa’s population depends on forests, which provide livelihood and food security for 4 to 6 months per year and contribute 20 to 50 percent to annual household income11.

As in other parts of India, the process of consolidation of state forests and creation of protected areas in Orissa has not done justice to the rights of the forest communities. The forests recorded under the Indian Forest Act of 1927 and Orissa Forest Act of 1972 were declared as such without following the procedure for settlement of rights as provided under these laws.12 In addition, rights of communities in protected areas, declared under the Wildlife (Protection) Act of 1972, remain unsettled and the Supreme Court order banning collection of non-timber forest products from these areas has negatively impacted the livelihoods of local communities13. Furthermore, rights of community conservation groups are not recognized, but the government has adopted and actively promoted the Joint Forest Management policy14, which has subsequently often conflicted with existing community conservation initiatives15. Rights and community conservation are also affected by the ongoing process

6 Government of India, 2009. India State of Forest Report, 2009. Forest Survey of India, Ministry of Environment & Forests: India. Last accessed August 20, 2010, at: http://www.fsi.nic.in/sfr_2009.htm.7 The Government of India declared Simlipal as a biosphere reserve in 1994. UNESCO added it to its list of Biosphere Reserves in May, 2009.8 Primitive tribal groups (which are now referred to as particularly vulnerable tribal groups or PTGs) were identified by the government from among the Scheduled Tribe groups for the first time in 1975-76 and thereafter in 1993. These groups are regarded as the poorest of the poor amongst the Scheduled Tribes. Criteria fixed for identification of such PTGs include pre-agricultural level technology, very low level of literacy, and declining or stagnant population.9 Government of India, 2009. India State of Forest Report, 1999. Forest Survey of India, Ministry of Environment & Forests: India. Last accessed July 15, 2010, at: http://www.fsi.nic.in/sfr1999/sfr_1999.pdf.10 Government of India, 2001. Government of India, 2001. India State of Forest Report, 2001. Forest Survey of India, Ministry of Environment & Forests: India. Last accessed July 15, 2010, at http://www.fsi.org.in/sfr_2001.htm.11 Government of Orissa, 2004. Government of Orissa, 2004. Human Development Report Orissa 2004. Planning and Coordination Department: Orissa. Last accessed July 20, 2010, at: http://www.orissa.gov.in/p&c/index.htm.12 Kumar, K., 2005. “Dispossessed and Displaced: A brief paper on tribal issues in Orissa”. Last accessed September 1, 2010, at: http://www. Kumar, K., 2005. “Dispossessed and Displaced: A brief paper on tribal issues in Orissa”. Last accessed September 1, 2010, at: http://www.vasundharaorissa.org/DiscussionPaper_eng/Dispossessed%20and%20displaced.pdf.13 Vasundhara, 2006. Vasundhara, 2006. Impacts of Wildlife Policy on the Lives and Livelihood of Poor Tribal and Other Marginalized Communities living in and near the Protected Areas, Discussion Paper. Last accessed July 10, 2010, at: http://www.vasundharaorissa.org/DiscussionPaper_eng/Impacts%20on%20Lives%20and%20Livelihood%20of%20People.pdf.14 Following the 1988 National Forest Policy, the Ministry of Environment and Forest initiated a process called Joint Forest Management in Following the 1988 National Forest Policy, the Ministry of Environment and Forest initiated a process called Joint Forest Management in 1990. The programme seeks to establish management ‘partnership’ agreements between local forest-dependent communities and the state for the sustainable management and sharing of benefits and responsibilities of forests. The village community is represented through a body specifically formed for the purpose. 15 The �oint Forest �anagement framewor� has often wor�ed as an extension of the forest bureaucracy and has led to confl icts with community The �oint Forest �anagement framewor� has often wor�ed as an extension of the forest bureaucracy and has led to conflicts with community groups on account of its failure to address issues of rights, community conservation initiatives, and actual representation of resource-dependent

Figure 1. Districts of the province of Orissa, India.© MapsofIndia.com

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of development that focuses on large-scale resource extraction16. It is within this legal and policy context that the Forest Rights Act is implemented in Orissa. The case studies discussed here aim to show how the forest rights, the procedures for the determination of such rights, and empowered local authorities for protection and management are improving tenure security and building a right-based framework for conservation.

The conTribuTion of foresT righTs To conservaTion

The Forest Rights Act secures individual and common tenure over forest lands and forests. The Act recognizes territorial rights of PTGs, rights of pre-agricultural communities, and rights over community conservation initiatives. Since the beginning of implementation in 2008, forest communities have used the provisions under the Act to claim a wide variety of forest rights (see Box 117). In addition, the Act provides rights for the conversion of forest villages into revenue villages18, rights of communities displaced due to state development interventions, and rights for creation of development

facilities in the forest villages such as schools, health centres, roads, electricity, and irrigation. The provision of such a diversity of rights to traditional resource access, use, and interactions reflects the strong conservation ethic of the diverse communities the Act intends to protect. Examples of some of the rights and claim processes from Orissa are discussed below.

The history of community forest protection and management in Orissa dates back to pre-independence19. There are about 12 000 self-initiated and legally unrecognized forest protecting groups throughout Orissa that protect around two million hectares of forest20. Community conservation areas cover some of the most important ecosystems such as forests, wetlands, and coastal/estuarine and mangrove ecosystems, all of which have high ecological value and form the basis of local communities’ livelihoods. Some of the rare, endangered, and vulnerable flora and fauna species li�e tiger, elephant, sea turtle, black buck, peacock, and migratory birds come under such protection initiatives. Community conservation areas also cover most of the protected areas, tiger reserves, and elephant reserves in the state, despite government attempts to free protected

areas of human presence. There is a rich network of sacred groves in Orissa, which are havens of important species and are mostly protected and conserved by communities21. The provision of the right to protect, conserve, regenerate, and manage community forest resources under Section 3(1)(i) of the Forest Rights Act has created a scope for the legal recognition of these traditional community conservation initiatives in forest land (including wetlands and mangroves). Many community conservation groups have already claimed and obtained legal rights over their community forests since implementation of the Forest Rights Act began.

communities. See Panigrahi, R., 2006. Democratization of Forest Governance: Myths and Realities: An analysis of implications of decentralized forest policies and processes in Orissa, India. Paper presented at the Eleventh Biennial Conference of the International Association for the Study of Common Property held June 19-23, 2006, in Bali, Indonesia. Last accessed August 25, 2010, at: http://www.indiana.edu/~iascp/bali/papers/Panigrahi_Rekha.pdf; Singh, N., 2000. Community Forest Management vs. Joint Forest Management in Orissa; Need to look beyond JFM. Paper presented at the International Workshop on a decade of Joint Forest Management in India, held in New Delhi in June, 2000. Last accessed July 20, 2010, at: http://www.vasundharaorissa.org/DiscussionPaper_eng/CFMVsjfm.pdf; and Sahu Subrat, K., 2010a. The protectors are thieves in disguise. Infochange News & Features: August, 2010. Last accessed August 10, 2010, at: http://infochangeindia.org/Environment/Community-forests-of-Orissa/The-protectors-are-thieves-in-disguise.html.16 Sahu Subrat, K., 2010b. Sahu Subrat, K., 2010b. Destroyed by development. Infochange News & Features: April, 2010. Last accessed August 20, 2010, at: http://infochangeindia.org/Environment/Community-forests-of-Orissa/Destroyed-by-development.html.17 For detail on rights see Chapter II, Section 3 of the Forest Rights Act. Last accessed August 30, 2010, at: http://tribal.nic.in/index1. For detail on rights see Chapter II, Section 3 of the Forest Rights Act. Last accessed August 30, 2010, at: http://tribal.nic.in/index1.asp?linkid=360&langid=1.18 A Revenue �illage is a small administrative region in India, a village with defi ned boundaries. One revenue village may contain many hamlets. A Revenue �illage is a small administrative region in India, a village with defined boundaries. One revenue village may contain many hamlets.19 India gained independence in 1947. India gained independence in 1947.20 These two million hectares include forest land recorded by the government, but the government does not recognize protection initiatives by These two million hectares include forest land recorded by the government, but the government does not recognize protection initiatives by these groups.21 For more information on the typologies of community conservation initiatives and the related issues, see Vasundhara, 2007. “Community For more information on the typologies of community conservation initiatives and the related issues, see Vasundhara, 2007. “Community Conservation Initiatives”. Last accessed August 30, 2010, at: http://cciori.org; and Mishra, Sweta, 2010. “Green Warriors: Conserving Local Biodiversity through Community Conservation Initiatives in Orissa, India”, pages 142-148 in this issue of Policy Matters.

The Act contains rights to:• forest land for habitation and self-cultivation• minor forest produce• fish and other products of water bodies• grazing• seasonal resource access of nomadic or

pastoralist communities• protect, regenerate, conserve, and manage

community forest resources • intellectual property and traditional

knowledge relating to biodiversity• traditional and customary rights such as

right of way, collection of soil for household purposes, and access to religious sites

Box 1. Examples of rights enshrined in the Forest Rights Act, 2006.


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Another example involves the 13 PTGs in Orissa, who have a total population of around 78 50022. Many of these communities have well-defined territories (referred to as habitats under the Act) that are geographical-political-cultural-ecological landscapes. Prior to the Forest Rights Act, the customary rights of the PTG communities over these territories had not been recognized by the government. The communities with customary territorial rights are now using Section (3)(1)(e) of the Act, which provides for communal tenure rights for the PTGs over their habitats.

To further exemplify, the Chuktia-Bhunjias are a PTG living on the Sunabeda plateau of the Nuapada district in western Orissa. The customary habitat of this community, known as Gudaraija, is spread across a larger landscape covering areas in the neighbouring states of Orissa and Chattishgarh. Two protected areas, the Sunabeda Wildlife Sanctuary in Orissa and the Udanti-Sitanadi Tiger Reserve in the state of Chhattisgarh, overlap with the cultural landscape and territory of the Chuktia-Bhunjia community. Clan groups within the community are traditionally organized around resources that are managed by a community institution. With support from civil society groups and micro-project23 officials, community leaders have initiated a process for the determination of their rights. In this process, they have identified rights that include the habitat areas, the socio-political organizations around the resources (each clan group has a separate area within the larger habitat), and areas for collection of minor forest products, water bodies, sacred areas, and areas of worship24 (see Figure 2). The community is now in the process of making claims over the customary habitat and other traditional rights over the forest and resources25.

Another example of claims to habitat rights is found in the Keonjhar district (also known as Kendujhargarh, as in Figure 1). The Juangs, another PTG, have claimed rights over the pirha (habitat of the Juangs), which is organized around a cluster of habitations, community forest resources, and sacred areas and is traditionally governed by a community institution. Similarly, the Dongria Kondhs, a PTG living in the Kalahandi district, have claimed community tenure rights over the Niyamgiri hill ranges, all of which are considered to be their habitat26. In both of these areas, the sacred areas and habitats of the communities are under threat from mining and industrial projects and the claim process is directed towards securing the forest and its biodiversity.

22 The estimated population of PTGs in Orissa is from the Base Line Survey conducted by the State Government in 2007. The estimated population of PTGs in Orissa is from the Base Line Survey conducted by the State Government in 2007.23 Micro-projects are government agencies set up in PTG areas for carrying out development activities for the community. There are micro- Micro-projects are government agencies set up in PTG areas for carrying out development activities for the community. There are micro-projects for the 13 PTGs in Orissa.24 This community worships the tiger. Interestingly, tigers are found in the entire habitat area. This community worships the tiger. Interestingly, tigers are found in the entire habitat area.This community worships the tiger. Interestingly, tigers are found in the entire habitat area.25 The information is based on training programmes with the community and micro-pro�ect offi cials. The information is based on training programmes with the community and micro-pro�ect officials.26 The information is based on interaction and training programmes with the community on Forest Rights Act in 2009-2010. The information is based on interaction and training programmes with the community on Forest Rights Act in 2009-2010.

Figure 2. Community map of the area inhabited by the Chuktia-Bhunjia, created during a training programme on the Forest Rights Act held from 2009 to 2010. © Vasundhara

Figure 3. Map of Satkhand pirha (habitat) prepared by the Juang community. © Vasundhara

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Under the Act, many communities have also identified rights over traditional �nowledge and agricultural biodiversity to make claims on traditional agriculture practices, medicinal practices, and sacred areas, among other things. The unique agro-biodiversity and terrace cultivation maintained by the Lanjia Souras, a PTG in the Raigada and Gajapati districts, is planned to be protected using Section 3(1)(k) of the Forest Rights Act, which provides the right of access to biodiversity and a community right to intellectual property and traditional knowledge27. This includes rights over Indigenous knowledge systems, seeds, medicines, health practices, medicinal plants, agriculture, and �nowledge of fauna and flora, none of which had legal protection prior to the Act.

deTerminaTion of righTs as an empowered process To supporT social insTiTuTions for conservaTion

The Forest Rights Act vests authority in the Gram Sabha (village assembly) to initiate the process of determination of rights, which includes receiving, consolidating, and verifying the claims. The Gram Sabha carries out these activities through Forest Rights Committees28. Rules under the Forest Rights Act provide for representation and adequate participation of forest-dependent communities such as scheduled tribes, other forest-dwelling communities, and women in the Gram Sabha and Forest Rights Committee. Determination and claim of rights is a collective exercise that requires the concerned

villages and communities to decide collectively on the nature and extent of the rights. For example, in the Kalahandi district of Orissa, the work of a local federation in the Karlapat Wildlife Sanctuary has ensured representation and participation of different users groups, including minor forest product collectors, grazers, traditional medicine practitioners, and women, in the Gram Sabhas and Forest Rights Committees29. In the Juang community discussed above, the effort to organize the traditional institution and cluster of villages to claim rights over their customary territory has rebuilt the socio-political organization. Similarly, the Chuktia Bhunjias, through the claim process, are reconstructing the habitat area that was fragmented by political boundaries that divided the community and the wildlife in the area. Thus, the process involved in the determination of rights has helped revive community institutions, build social capital, and ensure collective visualization of ecological landscapes and establishment of the institutional foundation for management of the community forest resources. It has also helped resolve conflicts and overlaps of claims, address issues of social justice and equity, and provide space for the participation of women.

The procedure of recognition involves a three-tier process. First, the Gram Sabha initiates the process for determination of rights and claims. The sub-district-level committee then examines the claims and prepares the draft record of forest rights, which is recommended to a district-level committee that examines the claims and prepares the record of forest rights. The committees at the district and sub-district levels are represented by government officials from the forest, revenue, and tribal welfare departments and members of the Panchayati Raj institutions. Involvement of people from the various departments has opened up opportunity for adding multiple disciplines and dimensions to the process of recognition of forest rights.

Furthermore, the Act empowers local authorities through Section 5, which empowers the holders of any forest right and Gram Sabha and village-level institutions to protect the community forest resources and habitat areas from any activity that adversely affects the forest, wildlife, or biodiversity. The provisions for rights and empowered authority are used by communities to strengthen community conservation initiatives and to control external threats affecting community forests. For example, in the Badrama Wildlife Sanctuary of Sambalpur, district villages have formed committees and have started

27 �or�shop on Forest Rights Act organized by the Tribal Research Institute in 2010. �or�shop on Forest Rights Act organized by the Tribal Research Institute in 2010.28 Forest Rights Committee is elected by the Forest Rights Committee is elected by the Gram Sabha (village assembly) and consists of ten to fifteen members. �embers include scheduled tribes, other traditional forest dwellers, and women.29 Process of determination of community forest resources at the village of Tentulipadar in the Karlapat Wildlife Sanctuary in Kalahandi district, Process of determination of community forest resources at the village of Tentulipadar in the Karlapat Wildlife Sanctuary in Kalahandi district, Orissa. Documented by Vasundhara in 2008-2009. Last accessed July 20, 2010, at: http://fra.org.in/Tentulipadar_Eng.pdf.

Figure 4. Determination of forest rights at Ranpur, Orissa. © Vasundhara


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developing management plans for the community forest resources30. In the Lakhari Wildlife Sanctuary, the local community has sent a petition to the district authorities to stop stone quarrying and crushing activities in the community forest and wildlife areas. In other areas, communities have tried to use the empowered authority to stop commercial plantations such as Jatropha and exotic horticulture plantations31.

issues of implemenTaTion and recommendaTions for ways forward

The Forest Rights Act presents immense possibilities for communities to gain recognition and respect for their conservation initiatives and customary rights. However, the practical efficacy of the legal framewor� of rights and empowered local authorities discussed above depends largely on how the Act, particularly its provisions on community rights, is perceived and implemented by government agencies.

In terms of coverage, the Act has yet to reach the majority of forest communities in Orissa. By June, 2010, less than 44 percent of over 426 200 individual claims filed were recognized for titles. Less than 17 percent of approximately 2 500 community claims filed were recognized.32 Comparing these figures to the existing forest-dependent communities in the state, which represent about 40 percent of the total population, the status shows that the implementation process has yet to achieve its mark. The national status is not promising either. As of May, 2010, only 32 percent of over 2 822 000 claims filed were distributed33. �ithin this, less than 3 percent of nearly 49 000 community claims filed were distributed. Considering that the population of forest-dependent people in India is 275 million34 and the number of forest fringe villages is nearly 170 40035, the claims and recognition status to date paints a discouraging picture. The Gram Sabhas, which have the authority under the Act to determine rights, arguably lack the information and capacity in the form of documents, maps, evidence, and technical support necessary for the determination and verification of claims. Ensuring that the Act is effectively utilized by forest communities will require a massive and concerted effort to raise awareness about the Act and its procedures and to develop the capacity of the implementing agencies.

Another issue is that forest communities who are not scheduled tribes remain excluded from the implementation process, due to the restrictive criteria of three generations (or 75 years) of habitation and the insistence of the authorities on documented evidence. Even though the list of evidence accepted under the Rules of the Forest Rights Act includes oral and physical evidence, authorities insist on documented evidence when considering claims, which is often not available, particularly for customary rights. In this case, the government authorities should be proactive in adhering to the existing provisions of the Act that allow for the processing of unrecorded rights with the help of oral and physical evidence.

In addition, the lack of awareness and understanding of all levels of government authorities of customary rights themselves and of the process for their recognition under the Forest Rights Act has led to their disregard. For example, in the tribal districts of Orissa, the traditional practice of shifting cultivation is not recognized by implementing agencies as a right. This is due to their faulty interpretation of the Forest Rights Act, stipulating (incorrectly) that it only recognizes rights over forest land under continuous occupation, not under seasonal occupation (which is the practice in shifting cultivation), as well as the general prejudice within government conservation agencies against the practice of shifting cultivation as being detrimental to forests. Other important community rights of the PTGs over their habitats and sacred areas are similarly ignored. This �nowledge deficit can be overcome by focusing on capacity building of the authorities and implementing

30 Dash, T., 2010. Dash, T., 2010. Forest Rights Act Strengthening Community Conservation in Badrama Wildlife Sanctuary in Sambalpur District of Orissa, Vasundhara discussion paper. Last accessed September 17, 2010, at: http://www.ncasindia.org/fra/documents/badrama_07_10.pdf.31 Basant Biswal, Bibinika Pradhan working in Kotgarh Wildlife Sanctuary in Kandhmal district, and Arun Prasad Dehudi of Aviyan, an NGO Basant Biswal, Bibinika Pradhan working in Kotgarh Wildlife Sanctuary in Kandhmal district, and Arun Prasad Dehudi of Aviyan, an NGO working in Koraput district of Orissa, personal communication via telephone, February, 2009.32 Government of Orissa, 2010. Government of Orissa, 2010. Status of implementation of the Forest Rights Act, 2006 in the State of Orissa as on 29.06.2010. Scheduled Tribes and Scheduled Castes Development Department: Orissa. Last accessed August 20, 2010, at: http://fra.org.in/Status%20Report%20(29.6.2010).pdf.33 Government of India, 2010. Government of India, 2010. Status report on implementation of the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006 [for the period ending 31st May, 2010]. Ministry of Tribal Affairs: India. Last accessed August 10, 2010, at: http://www.tribal.gov.in.34 World Bank, 2006. World Bank, 2006. India Unlocking Opportunities for Forest-Dependent People in India. Agriculture and Rural Development Sector Unit: South Asia Region. Last accessed July 15, 2010, at: http://siteresources.worldbank.org/INDIAEXTN/Resources/Reports-Publications/366387-1143196617295/Forestry_Report_volume_I.pdf.35 Government of India, 1999. Government of India, 1999. State of Forest Report, 1999. Forest Survey of India, Ministry of Environment & Forests: India.

The tendency to privatize commons and exclude rights still persists in forest reserves and protected areas. This exclusionary conservation approach needs to be redefined in line with the Forest Rights Act.

39



agencies at the federal, state, district, and sub-district levels.

Furthermore, the tendency to privatize commons and exclude rights, a legacy of past conservation policies, still arises in the implementation of the Forest Rights Act. Rights in reserve forests and protected areas (including wildlife sanctuaries, national par�s, and tiger reserves), although recognized by the Act, are not considered by the authorities. Seventy-five percent of the forest lands recognized under the Act so far are located in revenue forests (forests within a village boundary) and many claims on reserve forests are rejected by the forest authorities. Rights in protected areas and tiger reserves are also not recognized in many cases. In the Simlipal Tiger Reserve, tribal families were relocated, contradicting the rights

of the local communities of Khadia, Mankadias, and Kolha and ignoring the fact that their traditional rights are beneficial to the conservation of the forests36. This exclusionary conservation approach therefore needs to be redefined along the rights-based framewor� mandated by the Forest Rights Act for the benefit of local communities and conservation aims alike.

Overall, it is evident that the potential of the Act may be lost in the narrow perspective through which it is currently viewed by many implementing agencies. Their common perception is that the Act is for one-off settlements of cases of so-called encroachment in forest land. As a consequence, deadlines are set by governments to complete the process of recognition of rights (which is against the provisions of the Act), causing widespread confusion among the forest communities and disturbing the implementation process37. This perspective needs to change to one that understands and is confident in the given rights framewor�’s

inherent potential to ensure biodiversity conservation and restoration of ecosystems. The Forest Rights Act has to be looked at as an approach; as such, it requires a long-term plan to implement it and to ensure that the rights-based framework that underpins it informs and guides conservation governance, planning, and programmes throughout the country. The Act involves multiple disciplines in the process of determination and recognition of rights through the participation of the government departments of Tribal Affairs, Forest and Environment, and Revenue, as well as the Panchayati Raj institutions38. This multidisciplinary approach should guide future institutional arrangements of forest management in order to ensure that social, cultural, environmental, and economic concerns and opportunities are adequately represented.

It is also becoming increasingly evident that in addition to the challenges facing the recognition of rights under the Act, the process of forest tenure reform demands a complete overhaul of the existing forest governance system. There are still laws, policies, programmes, and structures in place that run counter to the framework of rights and empowerment of local authorities enshrined in the Forest Rights Act. Thus, the full recognition and exercise of rights under the Act is actually constrained by other existing laws. For example, even though community forestry groups get recognition under the Forest Rights Act, the state policy of �oint Forest �anagement remains unchanged, causing confusion and conflicts at the community level39. Similarly, development and extractive projects in forest areas have ignored the Forest Rights Act and have targeted community land and forests, which are protected under the Act as inalienable rights40.

In view of these issues, it is necessary to create an enabling legal and policy environment by amending existing laws and

36 Satpathy, P., and G. Jain, 2010. “Tiger Protection, Maoism and Forest Rights Act, the story of Jenabil”. Last accessed August 20, 2010, at: Satpathy, P., and G. Jain, 2010. “Tiger Protection, Maoism and Forest Rights Act, the story of Jenabil”. Last accessed August 20, 2010, at: http://www.fra.org.in/Jenabil%20displacement.pdf.37 The Forest Rights Act does not set a time limit for claims and recognition process but the government and authorities have set deadlines from The Forest Rights Act does not set a time limit for claims and recognition process but the government and authorities have set deadlines from time to time to complete the process. This has led to confusion at the community level and in many cases, discouraged people to claim.38 Panchayati raj institutions are set up under the 73rd amendment of the Constitution of India for decentralization of governance system and devolution of power to the grassroots.39 For example, there is the problem of collection and marketing of certain minor forest products such as the Kendu Leaf ( For example, there is the problem of collection and marketing of certain minor forest products such as the Kendu Leaf (For example, there is the problem of collection and marketing of certain minor forest products such as the Kendu Leaf (there is the problem of collection and marketing of certain minor forest products such as the Kendu Leaf (Diospyros Melanoxylon), Bamboo, and Mahua (Madhuca longifolia) due to existing laws such as the Orissa Kendu Leaves (Control of Trade) Act, an excise law that remains unchanged. Similarly, forestry programmes and plantations such as those under the Compensatory Afforestation Fund Management and Planning Authority are undertaken in land and forests claimed as community resources. Climate change mitigation plans like the Green India Mission and mechanisms such as Reducing Emissions from Deforestation and Forest Degradation in Developing Countries (REDD) propose structures and institutions that also threaten to affect the community forests, traditional rights, and community institutions.40 Saxena, N. C., S. Parasuraman, P. Kant, and A. Baviskar, 2010. Saxena, N. C., S. Parasuraman, P. Kant, and A. Baviskar, 2010. Report of the four member committee for investigation into the proposal submitted by the Orissa mining company for bauxite mining in Niyamgiri, submitted to the Ministry of Environment and Forests, Government of India. Last accessed September 2, 2010, at: http://moef.nic.in/downloads/public-information/Saxena_Vedanta.pdf. The forest clearance for the project has been cancelled by the �inistry of Environment and Forest in response to the findings of violation by the Saxena committee and recommendation of the Forest Advisory Committee.

The potential of the Act may be lost in the narrow

perspective through which many implementing agencies currently view it. In addition, some laws

and policies contravene the Forest Rights Act; what is needed is a

complete overhaul of the existing forest governance system.


40

policies to ensure that they do not counteract or negate the Forest Rights Act and instead are mutually reinforcing. For example, the National Forest Policy needs to be amended to reflect the current discourse on and understanding of the inter-linkages between recognition of rights and effective conservation. At the same time, convergence needs to be sought with existing complementary laws and programmes (such as the Panchayat Extension to Scheduled Areas Act, Mahatma Gandhi National Rural Employment Guarantee Act, and Watershed Development Programme) in order to further strengthen legal and policy provisions to ensure the realization of community rights and empowerment and �ust conservation in practice41.

41 For example, The 12 For example, The 12For example, The 12The 12th Five Year plan exercise that has recently been started by the Planning Commission needs to focus on the Forest Rights Act and the Panchayat Extension to Scheduled Areas Act.

Tushar Dash ([email protected]) is a researcher working on forest rights and community conservation in the state of Orissa in India. He is associated with Vasundhara, an NGO focusing on natural resource governance.

Since 2007, international negotiations towards a programme on reducing emissions from deforestation and forest degradation in developing countries (REDD) have been taking place under the United Nations Framework Convention on Climate Change (FCCC). Not only is it still uncertain what kind of compromises and outcomes might result, but it is also increasingly unlikely there will be a comprehensive agreement on climate change and REDD established in the near future, as the current negotiations are completely stalled.1 Despite this lack of an agreed international legal and policy framework, a few dozen countries have already started to elaborate national REDD policies, triggered by multilateral donors li�e the World Bank Forest Carbon Partnership Facility, the UN-REDD programme, and bilateral initiatives. A coalition of

1 Third World Network, 2010. Analisis de los textos de negociacion revisados en Bonn, Third �orld Networ� briefing papers, �une, 2010.

Rights and REDD: Can They Be Matched?Simone Lovera

International and national policies to reduce emissions from deforestation and forest degradation in developing countries (REDD) have serious implications for the rights of Indigenous Peoples enshrined in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), the rights of women enshrined in, amongst others, the Convention on the Elimination of all Forms of Discrimination Against Women, and the human rights of local communities, including land rights and substantive rights like the right to life, personal security, health, and an adequate standard of living. An important right enshrined in UNDRIP is the right of Indigenous Peoples to free, prior and informed consent, which has already been violated by international and by most national REDD initiatives; Indigenous Peoples have not given their prior consent to any of the major REDD-related initiatives to date. REDD also has many potential impacts on biodiversity and related rights. As a top-down forest governance model that is driven by powerful economic actors, REDD clashes with rights-based approaches to conservation. Continued support must be ensured for successful, rights-based, and community-driven forest conservation and restoration initiatives, which are a more locally appropriate and just alternative to REDD.

Abstract

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bilateral and multi-lateral donors has also established a so-called Interim REDD Partnership to coordinate financial flows to REDD activities. Many concerns have been expressed by civil society that this informal partnership might pre-judge or undermine the formal negotiations within the framework of the FCCC.�

Independent monitoring of national REDD policy development by non-governmental organizations (NGOs) and Indigenous Peoples’ organizations in developing countries themselves has revealed that the potential impacts of REDD on rights could vary widely.3 For example, in countries with strong and well-implemented legislation to protect Indigenous Peoples’ rights, community governance, and biodiversity, REDD could provide opportunities to strengthen rights-based approaches to conservation.4 However, in countries such as Indonesia or Paraguay, where legislation is weak or compromised by non-compliance, REDD could have serious negative impacts.5 It should be noted that deforestation rates tend to be higher in the latter category of countries, as high deforestation rates are typically a result of bad forest governance; thus, the potential of REDD to halt deforestation in these countries is arguably very limited upon that basis alone. In addition, few (if any) draft REDD policies address gender concerns, so the rights of women are also threatened by REDD.6

The RooTs of ReDD: “The PolluTeR is PaiD” PRinciPle

About six years ago, Kevin Conrad, a close friend of and advisor to Michael Somare, the Prime Minister of Papua New Guinea, came up with an idea. �he Prime Minister was complaining to him that the World Bank had forced him to comply with a number of strict conditions on a loan to the Papua New Guinea Forestry Sector that were aimed at conserving the forests. As the biodiversity and carbon stored in these forests were of global importance, Conrad advised his Prime Minister to ask for compensation from the world community for the ‘environmental service’ of reducing deforestation. Subsequently, Papua New Guinea took the lead in reintroducing the concept of payments for environmental services under the guise of the REDD programme in the international climate negotiations.7

�his anecdote is often told by Conrad himself at international meetings. However, he seldom specifies that the conditions of the World Bank required the Government of Papua New Guinea to make a strong effort to combat corruption in its forestry service and illegal logging in general. �hus, the Prime Minister of Papua New Guinea essentially wanted to be compensated for complying with his country’s own forestry laws.8 Although a demand for compliance is still relevant, as the Papua New Guinea forestry sector continues to be plagued by corruption and violations of local community rights,9 in essence, the legal and political roots from which REDD has grown uphold

� Lang, C., 2010a. “Civil society and indigenous peoples’ statement on Paris-Oslo process”. Last accessed August 18, 2010, at http://www.redd-monitor.org/2010/04/12/civil-society-and-indigenous-peoples%e2%80%99-statement-on-paris-oslo-process/#more-4491.3 Global Forest Coalition, �009a. REDD Realities, the potential impacts of REDD on Indigenous rights and biodiversity in developing countries. Global Forest Coalition: Amsterdam.4 Global Forest Coalition, �009a.5 Global Forest Coalition, �009a; Global Forest Coalition, �008. Life as Commerce, the impact of market-based conservation on Indigenous Peoples, local communities and women. Global Forest Coalition: Amsterdam; Friends of the Earth International, 2008. REDD Myths, a critical review of proposed mechanisms to reduce emissions from deforestation and degradation in developing countries. Friends of the Earth International: Amsterdam; and Lang, C., 2010b. “Papua New Guinea plans to Scrap REDD Safeguards”. Last accessed August 18, 2010, at: http://www.redd-monitor.org/2010/06/11/papua-new-guinea-plans-to-scrap-redd-safeguards.6 Global Forest Coalition, �009a.7 Clabbers, B., �009. Tropical deforestation and degradation under the UNFCCC and the Kyoto Protocol. E�RFN News No. 50, European �ropical Forest Research Network: Wageningen, the Netherlands.8 Lovera., S., �006. Reducing Deforestation: It’s the Money we Love. Forest Cover 20, Global Forest Coalition: Amsterdam.9 Lang, C., 2010c. “Recent Videos about Carbon Cowboys and REDD in Papua New Guinea”. Last accessed August 18, 2010, at: http://www.

Figure 1. The Mby’a guaraní community in Paraguay discussing REDD and payments for environmental services. © Simone Lovera

The legal and political roots from which REDD has grown uphold the “polluter is paid” principle - a perverse reversal of the international “polluter pays” principle.


42

the “polluter is paid” principle, in a perverse reversal of the internationally recognized “polluter pays” principle.10 If it is considered legitimate to pay a land owner for not destroying all of the primary forests left on his property, an extrapolated line of reasoning would consider it legitimate to pay a factory for not contaminating all of the remaining air or water resources in the world. In fact, one of the critiques of carbon offset schemes such as REDD is that they actually create the rights of industries and countries to emit greenhouse gases.11

ReDD: unDeRmining exisTing successes?The suggestion that industrialized countries should contribute financially to policies and actions taken by developing countries to reduce emissions from deforestation and forest degradation has been embedded in the FCCC since it was signed in 1992. Article 4(1)(d) stipulates that:

All Parties, taking into account their common but differentiated responsibilities and their specific national and regional development priorities, objectives and circumstances, shall… Promote sustainable management, and promote and cooperate in the conservation and enhancement, as appropriate, of sinks and reservoirs of all greenhouse gases not controlled by the Montreal Protocol, including biomass, forests and oceans as well as other terrestrial, coastal and marine ecosystems.1�

Article 4.3 of the FCCC also stipulates that industrialized countries should provide “new and additional support” to implement actions like this in developing countries. Its financial mechanism, the Global Environment Facility, which is supposed to channel this ‘new and additional’ financial support to cover the “incremental costs” of projects such as halting deforestation and conserving biodiversity that contribute to global environmental benefits, recently received 4.25 billion USD, its most generous replenishment to date.13 While the Global Environment Facility has received a lot of criticism, claims that there would be no money available for forest conservation if Governments did not come to consensus on a REDD agreement are obviously not true.14 Furthermore, claims that forest conservation would not be possible without REDD are even more unjustified,15 as a significant number of countries have succeeded to slow down or even halt forest

redd-monitor.org/2010/01/04/recent-videos-about-carbon-cowboys-and-redd-in-papua-new-guinea.10 See, for example, Kiss, A., and D. Shelton, 1997. Manual of European Environmental Law, �nd edition. University Press: Cambridge, page 43.11 Lohmann, L., �006. Lohmann, L., �006. Lohmann, L., �006. Carbon Trading, a critical conversation on climate change, privatization and power. What Next Development Dialogue, Dag Hammerskjöld Centre: Uppsala.1� 199� Framework Convention on Climate Change (FCCC), adopted May 9, 199� (entered into force March �1, 1994). 199� Framework Convention on Climate Change (FCCC), adopted May 9, 199� (entered into force March �1, 1994).13 Global Environment Facility, 2010. “Record Funding for the Global Environment Facility”. Last accessed August 18, 2010, at: http://www. Global Environment Facility, 2010. “Record Funding for the Global Environment Facility”. Last accessed August 18, 2010, at: http://www.thegef.org/gef/node/3010.14 Peskett, L., D. Huberman, E. Bowen-Jones, G. Edwards, and J. Brown, 2008. Peskett, L., D. Huberman, E. Bowen-Jones, G. Edwards, and J. Brown, 2008.Peskett, L., D. Huberman, E. Bowen-Jones, G. Edwards, and J. Brown, 2008. Making REDD work for the Poor, report prepared on behalf of the Poverty Environment Partnership, Overseas Development Institute: London.15 Peskett Peskett et al., �008.

Figure 2. �he degraded Namdu Forest Hills in Nepal in 1978. © Federation of Community Forestry Users, Nepal

Figure 3. �he same area of the Namdu Forest Hills in Nepal in 2005, after 17 years of community-driven forest restoration. © Federation of Community Forestry Users, Nepal

43



loss since 199�.16

Even more importantly, there are numerous examples of well-conserved forests on Indigenous territories, community conserved areas, and other community-driven initiatives to conserve or restore forest ecosystems.17 �he total area of

forests conserved by Indigenous Peoples and local communities is estimated to be at least 22% of the world’s total forest cover.18 �here are many additional areas where communities are actively restoring their forests. In Nepal, for example, more than 14 000 communities are involved in forest restoration initiatives that cover more than 1.�19 billion hectares of the country (see Figures � and 3).19

Any initiatives to reduce deforestation and forest degradation within the framework of climate change mitigation policies arguably must build upon these positive experiences and upon the rights and needs of the women and men that have been conserving and restoring their forests for generations.�0 Some 80% of the remaining forests in Ecuador, for example, are found on Indigenous territories.�1 Involving these communities in programmes and projects to conserve and restore forests is not only a prerequisite for rights-based approaches to forest conservation, but it also improves the effectiveness and sustainability of forest conservation and restoration initiatives.��

a maTTeR of DefiniTion

In many publications, it is claimed that REDD will contribute to biodiversity conservation.�3 However, REDD can also become yet another driver of biodiversity destruction. One of the reasons is arguably the definition of forests that was adopted by the Parties to the Kyoto Protocol in �001.�4 This definition includes not only a forest as commonly perceived, but also any kind of tree monoculture and even areas that are “temporarily unstocked” (a euphemism for clear-cut) but supposedly will be planted again at an unspecified moment in the future (see Box 1�5). If this flawed definition is adopted for REDD activities (which it is arguably likely to be), REDD policies would not only ignore serious forms of forest biodiversity degradation, but also enable the increasingly common forestry practice of replacing biologically diverse forests

16 Most European countries, as well as Asian countries such as India and China, have succeeded in halting deforestation through a combination Most European countries, as well as Asian countries such as India and China, have succeeded in halting deforestation through a combination of strict forest conversion bans and support for community forest conservation. See FAO, �009. State of the World’s Forests. Food and Agricultural Organization: Rome.17 See, for example, Mishra, S., 2010. “Green Warriors: Conserving Local Biodiversity through Community Conservation Initiatives in Orissa, India”, pages 142-148 in this issue of Policy Matters.18 Secretariat of the Convention on Biological Diversity, �010. Secretariat of the Convention on Biological Diversity, �010. Global Biodiversity Outlook 3. SCBD: Montreal.19 Bhattarai, B., 2009. “Nepal Community Perspective on REDD Mechanism”. Last accessed August 19, 2010, at: http://www. Bhattarai, B., 2009. “Nepal Community Perspective on REDD Mechanism”. Last accessed August 19, 2010, at: http://www.globalforestcoalition.org/img/userpics/File/presentations/Nepal-Community-Perspective-on-REDD-Mechanism.ppt.�0 International Union for Conservation of Nature (IUCN) Commission on Environmental, Economic and Social Policy (CEESP) �ask Force International Union for Conservation of Nature (IUCN) Commission on Environmental, Economic and Social Policy (CEESP) �ask Force CEESP) �ask Force on REDD and Communities and Global Forest Coalition, �008. The Hottest REDD Issues: Rights, Equity, Deforestation and Development and the Rights of Indigenous Peoples and Local Communities. Global Forest Coalition: Amsterdam.�1 Asociaci�n Limoncocha, �008. Asociaci�n Limoncocha, �008. Independent monitoring report on the implementation of the CBD expanded programme of work on forest biodiversity in Ecuador. Global Forest Coalition: Amsterdam.22 See Campese, J., T. Sunderland, T. Greiber, and G. Oviedo (eds.), 2009. Rights-based approaches: Exploring issues and opportunities for conservation. CIFOR and IUCN: Bogor, Indonesia.�3 See, for example, CIFOR, �008. See, for example, CIFOR, �008. CIFOR, �008. Going Ahead with REDD. CIFOR: Bogor, Indonesia; Kanninen, M., D. Murdiyarso, F. Seymour, A. Angelsen, S. Wunder, and L. German, �007. Do Trees Grow on Money? The implications of deforestation research for policies to promote REDD. Forest Perspectives 4, CIFOR: Bogor, Indonesia; Peskett et al., �008; and FAO, �009.24 Putz, F. E., and K. H. Redford, 2010. “Tropical forest definitions, degradation, phase shifts, and further transitions”. Biotropica, 42: 10-20.25 Marrakesh Accords of the Framework Convention on Climate Change, 2001. FCCC/CP/2001/13/Add.1. Last accessed August 20, 2010, at: Marrakesh Accords of the Framework Convention on Climate Change, 2001. FCCC/CP/2001/13/Add.1. Last accessed August 20, 2010, at: FCCC/CP/2001/13/Add.1. Last accessed August 20, 2010, at: http://unfccc.int/resource/docs/cop7/13a01.pdf.

The Kyoto Protocol and so-called Marrakesh Accords (the agreements on rules and definitions for land use, land-use change, and forestry between the Parties to the Kyoto Protocol) allow industrialized countries to discount their greenhouse gas emissions if they implement certain land-use change and forestry activities. A Kyoto forest includes the following:• a minimum area of land of 0.05-1.0 hectares with more than

10-30% tree crown cover (or equivalent stocking level) and trees with the potential to reach a minimum height of 2-5 meters at maturity in situ

• either open forest or closed forest formations, in which trees of various stories and undergrowth cover a high portion of the ground

• young natural stands and all plantations that have yet to reach a crown density of 10-30% or tree height of 2-5 meters

• areas normally forming part of the forest area that are temporarily unstocked as a result of human intervention such as harvesting or natural causes, but are expected to revert to forest.

Box 1. Definition of Kyoto Forests.


44

with monoculture tree plantations, with devastating impacts on forest biodiversity and local livelihoods.�6

While some of the latest proposals deriving from the FCCC negotiations include references to the need for “co-benefits” for biodiversity and even reject “the replacement of natural forests by tree plantations”,�7 these safeguards, even if accepted, will arguably not prevent significant amounts of funding from being used for the establishment of tree monocultures on non-forest areas that contribute to carbon sequestration, including biodiversity-rich ecosystems like grasslands. �he Brazilian national climate strategy, for example, includes a target of 11 million hectares of additional tree plantations, of which only � million hectares will be planted with native species. The more recent ‘planted forests’ strategy sets a target for expansion of tree plantations that is more than double of the climate strategy target. Most of these plantations will either replace other ecosystems like pampa (grasslands), cerrado (semi-dry woodland), caatinga (arid woodlands), or areas where forests might have grown back provided the land was left undisturbed.�8

ReDD VeRsus RighTs-baseD aPPRoaches To bioDiVeRsiTy conseRVaTion?The simple act of increasing the financial value of standing forests has its own set of problems. REDD is highly likely to exacerbate land-grabbing, with Governments and companies seeking to exclude communities from their territories – violently or otherwise, and without regard for the customary and territorial rights of Indigenous Peoples – in order to reap the financial rewards of REDD.�9 �here are also indications that increasing land values may be interfering with land reform programmes, whether it is because of REDD or the pressure to find more and more land to grow agricultural commodities.30 As stated above, REDD may also be used to finance the further expansion of monoculture tree plantations at the expense of natural forests and the rights and livelihoods of small farmers, local communities, and Indigenous Peoples.

REDD mechanisms are likely to be extremely complex, which would favour wealthy or experienced REDD project managers like large conservation organizations rather than local communities.31 Designing a REDD project for the carbon market involves turning forest carbon into a commodity to be bought and sold.3� �his normally implies restricting the use of forest resources in order to increase the profits from selling carbon offsets. Such a system discriminates against forest-dependent people, especially women, who need access to the forest resources to raise and care for their families and who cannot afford to buy forest products or alternatives.33

�here is also a growing concern that REDD might trigger a renewed centralization of forest management.34 �he potential

�6 Sasaki, N., and F. Putz, �009. Sasaki, N., and F. Putz, �009. Sasaki, N., and F. Putz, �009. Critical needs for new definitions of “forests” and “forest degradation” in global climate agreements. Harvard University: Petersham.27 Decision 1/CP 15. FCCC/CP/2009/11/Add.1. Last accessed August 20, 2010, at: http://unfccc.int/resource/docs/2009/cop15/eng/11a01. Decision 1/CP 15. FCCC/CP/2009/11/Add.1. Last accessed August 20, 2010, at: http://unfccc.int/resource/docs/2009/cop15/eng/11a01.pdf#page=3.�8 Government of Brazil, Interministerial Committee on Climate Change, Decree no. 6�63 of November �1, �007; Executive Summary Government of Brazil, Interministerial Committee on Climate Change, Decree no. 6�63 of November �1, �007; Executive Summary National Plan on Climate Change Brazil, Brasilia, December 2008. Last accessed August 20, 2010, at: http://www.elaw.org/system/files/Brazil+Climate+Change_0.pdf.�9 CEESP and Global Forest Coalition, �008; Global Forest Coalition, �008. CEESP and Global Forest Coalition, �008; Global Forest Coalition, �008.30 Global Forest Coalition, �008. Global Forest Coalition, �008.31 Global Forest Coalition, �006. Global Forest Coalition, �006. Global Forest Coalition, �006. You cannot save it if you cannot sell it? How environmental services markets impoverish people. Global Forest Coalition: Amsterdam.3� Global Forest Coalition, �009b. Global Forest Coalition, �009b. Global Forest Coalition, �009b. Forests and Climate Change: An Introduction to the Role of Forests in the UN Climate Change Negotiations. Global Forest Coalition: Amsterdam.33 Global Forest Coalition, �007. Global Forest Coalition, �007. Global Forest Coalition, �007. Potential Policy Approaches and Positive Incentive to Reduce Emissions from Deforestation in Developing Countries. Global Forest Coalition: Amsterdam.34 Fenton, E. (ed.), �010. Fenton, E. (ed.), �010. Realising Rights, Protecting Forests: An Alternative Vision for Reducing Deforestation. Case studies from the Accra Caucus. Accra Caucus on Forest and Climate Change: Accra. Last accessed August 20, 2010, at: http://www.rainforestfoundationuk.org/files/Accra_Report_English.pdf.

Figure 4. Forest Stewardship Council-certified “Kyoto forest” in Ireland. © Wally Menne/Timberwatch Coalition

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level of financial investments at stake provides an incentive for Governments to reposition themselves as the primary responsible agency in a country’s forest management. In India, for example, there is a serious concern that REDD will lead to a weakening of the �006 Forest Rights Act,35 which grants significant forest governance power to local Indigenous and non-Indigenous communities.36

Indigenous Peoples’ organizations in particular have expressed strong concerns about the potential impact of REDD on their rights and interests, including their land rights. Considering the significant amounts of funding that might be at stake through REDD mechanisms, their fear is that Indigenous territories will be subject to land-grabbing for profitable projects. These impacts will be significantly aggravated if REDD is financed through carbon markets, as commercial finance is likely to flow towards projects that are able to reduce deforestation rates significantly. Comparative research in Brazil found that deforestation rates in Indigenous reserves are between 1.7 and 7 times lower than deforestation rates in surrounding areas.37 CIFOR has thus recommended that payments for environmental services should not be

targeting Indigenous Peoples, as it would be highly inefficient to pay people who were not planning to deforest their territory anyway.38

An analysis by the Global Forest Coalition of the impact of market-based conservation in five different communities revealed the following:

The use of market-based mechanisms inevitably means that the odds are stacked against those in a weaker initial negotiating position. �his includes people with no legal land tenure and those unable to afford the considerable expense involved in the preparation of environmental impact assessments, the delivery of environmental services, the fulfilment of a range of quantifiable qualification criteria, and the provision of upfront and operational finance, including insurance against project failure. This implies that market-based conservation mechanisms will inevitably lead to increased corporate governance over biodiversity conservation, and erode the governance systems of (monetary) poor communities and social groups, including Indigenous Peoples and women.39

Carbon markets can, in theory, bring some economic benefits to local communities if they receive direct payments for the ‘environmental service’ of conserving or restoring their forests.40 However, it is important to analyze any economic costs that they incur in terms of decreased food security and food sovereignty and the loss of alternative sources of jobs41 and income related to, for example, the establishment of labour-extensive tree plantations. In the same 2008 analysis by the Global Forest Coalition, the most significant impact was the sense of disempowerment felt by many community members. In all cases, local residents reported that their control over their forests and livelihoods had decreased because “the main decisions were now taken by other actors.”4� In addition, under the impact of market-based mechanisms, communities that had their own governance systems that promoted collective sustainable management of biodiversity became more likely to act individually and pursue individual economic interests such as jobs and financial rewards.

The position of women within the communities was also affected, as women’s interests are more likely to be overlooked in commercial transactions that are normally dealt with by men (even in communities where women previously had responsibility for matters related to forests and biodiversity).43 Women have a disadvantageous position in monetary

35 �he Scheduled �ribes and other �raditional Forest Dwellers (Recognition of Forest Rights) Act, �006. �he Scheduled �ribes and other �raditional Forest Dwellers (Recognition of Forest Rights) Act, �006. 36 National Forum of Forest Peoples and Forest Workers (no date). “Imaginary Sinks: India’s REDD Ambitions”. Last accessed August 20, 2010, National Forum of Forest Peoples and Forest Workers (no date). “Imaginary Sinks: India’s REDD Ambitions”. Last accessed August 20, 2010, at: http://www.globalforestcoalition.org/img/userpics/File/publications/Sinks-in-the-making.pdf. Also see Dash, T., 2010. “The Forest Rights Act: Redefining Biodiversity Conservation in India”, pages 32-40 in this issue of Policy Matters.37 Nepstad, D., S. Schwartzman, B. Bamberger, M. Santilli, P. Schlesinger, P. Lefebvre, A. Alencar, D. Ray, E. Prinz, and A. Rolla, �006. “Inhibition Nepstad, D., S. Schwartzman, B. Bamberger, M. Santilli, P. Schlesinger, P. Lefebvre, A. Alencar, D. Ray, E. Prinz, and A. Rolla, �006. “Inhibition Nepstad, D., S. Schwartzman, B. Bamberger, M. Santilli, P. Schlesinger, P. Lefebvre, A. Alencar, D. Ray, E. Prinz, and A. Rolla, �006. “Inhibition �006. “Inhibition of Amazon deforestation and fire by parks and indigenous reserves”. Conservation Biology, 20(1): 65-73.38 Wunder, S., �005. Wunder, S., �005. Wunder, S., �005. Payments for environmental services: Some nuts and bolts. CIFOR: Bogor, Indonesia.39 Global Forest Coalition, �008. Global Forest Coalition, �008.40 Dudley, R. G., �005. Dudley, R. G., �005. Dudley, R. G., �005. A Generic Look at Payments for Environmental Services, Plan or Scam?, paper prepared for the �3rd International System Dynamics Conference, Bogor, and Portland, Oregon, 2005. Also see Wunder, S., 2007. “The Efficiency of Payments for Environmental Services in Tropical Conservation”. Conservation Biology, 21(1): 48-58.41 CENSA� and Global Forest Coalition, �005. CENSA� and Global Forest Coalition, �005. CENSA� and Global Forest Coalition, �005. Life as Commodity. CENSAT: Bogotá.4� Global Forest Coalition, �008. Global Forest Coalition, �008.43 Lovera, S., �008. Lovera, S., �008. Life as Commerce: The Impact of Market-based Conservation Mechanisms on Women. Global Forest Coalition: Amsterdam. Last accessed August 20, 2010, at: http://www.cbd.int/doc/external/cop-09/gfc-women-en.pdf.

REDD mechanisms have the potential to

increase land-grabbing, restrict local use of

forest resources, trigger recentralization of

forest management, and undermine the rights of Indigenous Peoples and

women, in particular.


46

economies in general, as they spend a significant part of their time on activities such as childcare, household management, and procuring clean water and other goods for the family, which are not rewarded in monetary terms but are highly valued in multiple other ways.44 Women play a fundamental role in nurturing trees and other forms of biodiversity management and there is a clear need to ensure the effective enforcement of the United Nations Convention for the Elimination of All forms of Discrimination against Women. �his Convention takes into account the particular problems faced by rural women and the significant roles that they play in the economic survival of their families, including their work in the non-monetarized sectors, and ensures that rural women have a right to participate in planning at all levels.45

ReDD: a ReciPe foR DisasTeR?Nowadays, it is broadly recognized that respect for good governance in general and, specifically, for the rights of Indigenous Peoples, local communities, and women are pre-conditions for REDD.46 A �009 analysis of REDD policies by NGOs and Indigenous Peoples’ organizations in 1� developing countries revealed that the impacts of REDD depend on existing levels of good governance in the country.47 In countries with strong and well-implemented legislation to protect Indigenous Peoples’ rights, community governance, and biodiversity, REDD provides opportunities, but mainly only in theory. However, in countries where legislation is weak or hardly complied with, REDD could have serious negative impacts.

�his sounds logical, but it also entails a fundamental dilemma with REDD. As 193 countries have ratified the Convention on Biodiversity and committed themselves to significantly reducing biodiversity loss by 2010,48 those countries that still have high deforestation rates are clearly not complying with international environmental commitments; this implies that deforestation itself is an indicator of bad governance. If good governance is a pre-condition for REDD, then REDD should arguably not

44 Global Forest Coalition, �008; Lovera, �008. Global Forest Coalition, �008; Lovera, �008.45 See, for example, Article 14.1 of the Convention for the Elimination of all forms of Discrimination Against Women, UN General Assembly, See, for example, Article 14.1 of the Convention for the Elimination of all forms of Discrimination Against Women, UN General Assembly, 1979: “States Parties shall take into account the particular problems faced by rural women and the significant roles which rural women play in the economic survival of their families, including their work in the non-monetized sectors of the economy, and shall take all appropriate measures to ensure the application of the provisions of the present Convention to women in rural areas.”46 Peskett Peskett et al., �008; Global Witness, �008. Independent Forest Monitoring and Reducing Emissions from Deforestation and Degradation. Global Witness: London; Cotula, L., and J. Mayers, 2009. Tenure in REDD: Start-point or Afterthought?, Natural Resource Issues No. 15, International Institute for Environment and Development: London, UK; Grieg-Gran, M., I. Porras, and S. Wunder, 2005. “How can Market Mechanisms for Forest Environmental Services help the Poor? Preliminary Lessons from Latin America”. World Development, 33(9): 1511-1527.47 Global Forest Coalition, �009a. Global Forest Coalition, �009a.48 In Decision VI/26, the Conference of the Parties (COP) adopted the Strategic Plan for the Convention on Biological Diversity (CBD). In the In Decision VI/26, the Conference of the Parties (COP) adopted the Strategic Plan for the Convention on Biological Diversity (CBD). In the Plan’s mission statement, Parties committed themselves to a more effective and coherent implementation of the three objectives of the Convention, to achieve 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 do so the benefit of all life on Earth. UN/CBD/COP/6/26. Last accessed August 20, 2010, at: http://www.cbd.int/decisions/default.aspx?m=COP-06&id=7200.

“Firstly, as things stand at the moment, countries and communities that are not already engaged in unsustainable deforestation may not qualify for REDD incentives. Whether the ‘REDD plus’ debates resolve this issue remains to be seen. Secondly, communities may have to prove that they ‘own’ forests in order to profit from them; there may be difficult conflicts over land tenure that need to be resolved before projects can proceed. �hirdly, because of the uncertainties and potential natural disasters or processes such as storms or forest fires associated with deforestation, communities managing REDD projects are likely to be asked to take responsibility for the projects’ risks and liabilities. This is especially the case if REDD projects are funded by private investors hoping to maximize the profits they can generate through REDD.

“Communities who want to establish their own projects are also likely to have to provide the initial finance to cover up-front funding and operational costs until they are able to sell REDD credits at the end of the project period. �his may prevent some communities from taking part, and for those who do decide to proceed, the risks could be considerable. If carbon prices are low, for example, or if deforestation has taken place after all, it might not be possible to repay any loans taken out at the start of the project. Communities may also have to address language barriers and hire or find assistance to deal with the technical complexities involved in establishing, monitoring, and verifying REDD projects. �here is a strong likelihood that associated technical documents will be inaccessible to local communities without advice from external consultancies.”

Box 2. Risks of Engaging with REDD (excerpt from Global Forest Coalition, �009b).

The fundamental dilemma of REDD is that it rewards countries that have failed to comply with international environmental commitments and are likely to even further exacerbate deforestation with REDD funds.

47



be implemented in exactly those countries that continue to have high deforestation rates. Otherwise, REDD is a high-risk strategy in countries like Papua New Guinea, Brazil, Indonesia, and others that have failed to reduce deforestation 17 years after they committed to conserve biodiversity and carbon sinks at the United Nations Conference on Environment and Development summit. However, these countries are the most popular targets for the main REDD donors. Brazil, for example, received 150 million USD from the Norwegian Government to reduce deforestation in �010 (as part of an agreement that also granted Norwegian companies the exclusive rights to exploit Brazil’s newly found oil reserves). In March, �010, the Brazilian Government subsequently signed off on the construction of the Belo Monte Dam, one of the most destructive dams it will have ever built, which will destroy 500 square kilometers of forests and Indigenous territories.49

It is clear that REDD is not designed to prevent such disasters. Instead of wasting billions of dollars on large-scale plantations and other false solutions to deforestation and carbon sequestration, there is a need to provide appropriate support to what has proven to work: rights-based, community-driven initiatives to conserve and restore forests. As concluded by the �ask Force on REDD and Communities,50 there is a need to:

• provide a broad range of social, cultural, legal, and economic incentives for forest conservation and sustainable use, especially by Indigenous Peoples and local communities. Conservation is and should be part of cultural identity and pride;

• ensure that incentive schemes and other forest policies recognize, respect, and are based on the historical territorial and use rights of Indigenous Peoples and local communities;

• ensure that incentive schemes and other forest policies recognize and support the significant contribution of Indigenous territories and community conserved areas to forest conservation; and

• ensure that such incentive schemes do not undermine the customary governance systems of Indigenous territories and community conserved areas and the values that have led to their success in forest conservation.

Research and analysis in countries as diverse as Brazil51 and Nepal5� provides evidence that forest conservation and restoration strategies that are based on respect for the rights of Indigenous Peoples and local communities and on respect for their traditional management practices are for more successful than top-down approaches to reducing deforestation.53 It is crucially important to ensure that these positive examples are not undermined by a REDD regime that may otherwise become yet another false solution to climate change.

49 Barry, G., 2010. “ALERT, Brazil’s Proposed Belo Monte Dam Damns Amazonian Rainforests and Peoples”. Last accessed August 19, 2010, at: Barry, G., 2010. “ALERT, Brazil’s Proposed Belo Monte Dam Damns Amazonian Rainforests and Peoples”. Last accessed August 19, 2010, at: http://www.rainforestportal.org/issues/2010/04/alert_brazils_proposed_belo_mo.asp.50 CEESP and Global Forest Coalition, �008. CEESP and Global Forest Coalition, �008.51 Nepstad Nepstad et al., �006.5� Bhattarai, �009. Bhattarai, �009.53 See Campese See Campese et al., �009; and Fenton, �010.

Simone Lovera ([email protected]) is the executive director of the Global Forest Coalition. She is also a volunteer campaigner for Sobrevivencia/Friends of the Earth-Paraguay and the co-coordinator of the IUCN CEESP Task Force on REDD and Communities.


48

Conservation policy in Vietnam shares many features with the 20th-century approach employed around the world. The Government of Vietnam nationalized forestland in the 1950s, founded a specialized agency to oversee forests, and established state forest enterprises to manage them. Based on the foundations of state-centered forestry, the Government instituted a system of protected areas in the 1990s that has not given adequate attention to the rights and needs of forest-dependent communities, including many of the ethnic minority groups recognized by the Government of Vietnam.1 As a result, conservation efforts have arguably perpetuated entrenched economic, political, and cultural inequalities. At the same time, state forest enterprises and protected area management boards have found it difficult to enforce the attempted exclusion of local peoples, as the latter derive important livelihood resources from forests and other biodiversity habitats. The ensuing conflicts between state agencies and local peoples have been a primary cause of declines in forest quality and biodiversity.2

The global REDD+ initiative to reduce emissions3 may provide an unprecedented chance for Vietnam to move towards a rights-based approach to biodiversity conservation. The Government of Vietnam has embraced the global initiative, becoming one of the first nine countries to pilot REDD+ under the United Nations programme on reducing emissions from deforestation and forest degradation in developing countries (UN-REDD).4 It is also eligible for readiness funding under the World Bank’s Forest Carbon Partnership Facility.5 The chance for moving towards a rights-based approach arises from the potential attention to forest peoples’ rights under the United Nations Framework Convention on Climate Change (UNFCCC)6 and from the opportunity for adherence of the UN-REDD and World Bank programmes to the procedures set out in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and Convention on Biological Diversity (CBD).7

At this point, it is still unclear what kind of rights-based approach Vietnam’s future REDD+ programme will take. As the Government of Vietnam has committed to relevant global agreements and engages with the UN-REDD and Forest

1 Zingerli, C., 2005. “Colliding Understandings of Biodiversity Conservation in Vietnam: Global Chains, National Interests, and Local Struggles”. Society and Natural Resources, 18: 733-747. Also, note that the Government of Vietnam recognizes 53 ethnic minority groups, but does not consider them Indigenous peoples.2 Sowerwine, J., 2004. “Territorialisation and the Politics of Highland Landscapes in Vietnam: Negotiating Property Relations in Policy, Meaning and Practice”. Conservation and Society, 2: 97-136 ; Déry, S., 2005. “La protection forestière au Vietnam: un outil d’intégration des marges territoriales?”, pages 91-118 in De Koninck, R., F. Durand, and F. Fortunel (eds.), Agriculture, environnement et sociétés sur les Hautes terres du Viêt Nam. Arkuiris: Bangkok.3 REDD+ stands for efforts to credit reduced emissions from deforestation and forest degradation, conservation of forest carbon stocks, sustainable management of forest, and enhancement of forest carbon stocks under the future climate convention. See UN-REDD Programme, 2010. “About REDD+”. Last accessed September 3, 2010, at: http://www.un-redd.org/AboutREDD/tabid/582/Default.aspx.4 The UN-REDD programme is the United Nations collaborative initiative on REDD+ in developing countries. See UN-REDD Programme, 2009. Last accessed September 3, 2010, at: http://www.un-redd.org/.5 Under the Forest Carbon Partnership Facility, the World Bank assists developing countries in their REDD+ efforts. The World Bank Group, 2010. “The Forest Carbon Partnership Facility”. Last accessed September 3, 2010, at: http://www.forestcarbonpartnership.org/fcp/. 6 Sikor, T., J. Stahl, T. Enters, J. C. Ribot, N. Singh, W. D. Sunderlin, and L. Wollenberg, 2010. “REDD-plus, Forest People’s Rights and Nested Climate Governance”. Global Environmental Change, 20(3): 423-425.7 The Government of Vietnam ratified the UNFCCC in 2002, became a signatory to UNDRIP in 2007, and ratified the CBD in 1994.

REDD+: A Chance for Rights-basedConservation in Vietnam

Thomas Sikor and Nguyen Quang Tan

Figure 1. Map of mainland Vietnam (in beige). © American Native Press Archives

49



Carbon Partnership Facility, it has opened up legal space for the recognition and support of forest peoples’ rights through the REDD+ Programme. However, it remains to be seen how the programme will operationalize the attention given to forest peoples’ rights. Will it follow a narrow focus on paying local communities for protection services without giving them substantive tenure and political rights in a kind of ‘community light’ version, or will the programme involve them as equal partners in the conservation of carbon and biodiversity in community-based REDD+ actions?

‘Community Light’: Payments without tenure The continuing reliance on protected area management boards and state-owned forest companies8 in Vietnam’s conservation and forest management policy suggest that the future REDD+ programme may employ a narrow focus on paying local peoples to protect forests. If this occurs, boards and companies would likely sign protection contracts with local peoples, paying them to protect forest against encroachment by others. Local peoples’ participation would be voluntary in the sense that they could opt out of protection contracts, yet they would be unable to participate in decisions about forest management. The state entities would design the projects to be rewarded under the national REDD+ programme.

A pilot project on payments for environmental services implemented in the province of Lam Dong demonstrates how such a payments-based approach may be implemented.9 Local peoples are engaged in the protection of forests under the tenure of protected area management boards. The management boards contract local peoples to protect the forest, monitor their protection activities through random field checks, and disburse the payment to households via locally established protection groups.10 Local peoples’ participation is voluntary, but most (if not all) participate because they don’t want to miss out on the payments. Although local peoples are paid for stopping others’ encroachment on forests, they have no tenure rights to such forests. As a consequence, people do not feel any sense of ownership over the project and just perform their patrolling jobs “for the state”, as noted by one community member during a visit to the village in the province of Lam Dong in September, 2009. The payments approach, therefore, ultimately relies on the power of the management boards and state-owned companies to enforce forest protection regulations, especially if payments should cease one day.

Vietnam’s future REDD+ programme may add important social and environmental safeguards to this narrow payments-based approach. For example, adherence to the principles of UNDRIP and the forthcoming International Regime on Access and Benefit Sharing (such as free, prior and informed consent) may facilitate the consultation and involvement of

local peoples in the preparation and implementation of REDD+ actions and securing of a reasonable share of Vietnam’s REDD+ funds for them. Income from REDD+ could thus make significant contributions to the income of local communities if certain conditions are met.11

Despite this potential, a narrow payments-based approach may easily impose detrimental effects on local livelihoods and the conservation of carbon and biodiversity because it does not involve local peoples as equal partners. As long as local peoples do not possess tenure to forests, they do not have a secure share in REDD+ benefits and instead depend on the

annual disbursement of payments. After payments cease, they may no longer feel obliged to comply with protection regulations due to their lack of legal rights and duties to the forest and the lacking recognition of their customary claims on the forest. Moreover, the procedural safeguards built into UNDRIP and CBD may not elicit the intended effects if implemented in Vietnam. Local communities may not utilize the opportunities for participation given to them through the right to free, prior and informed consent due to their political and cultural marginalization.12 More generally, the identification of ethnic groups remains tightly controlled by the Government, which restricts these groups’ abilities to

8 Forest companies are the successor organizations of the state forest enterprises.9 For some information on the project, see Asian Regional Biodiversity Conservation Program, 2008. Last accessed August 23, 2010, at: http://www.arbcp.com/.10 The amount of money to be paid for each hectare of protected forest is regulated under the provincial pilot payment decision, which is based The amount of money to be paid for each hectare of protected forest is regulated under the provincial pilot payment decision, which is based on a study conducted by a group of experts.11 See comparable evidence from Nepal: Karky, B., and M. Skutsch, 2010. “The Cost of Carbon Abatement through Community Forest See comparable evidence from Nepal: Karky, B., and M. Skutsch, 2010. “The Cost of Carbon Abatement through Community Forest Management in Nepal Himalaya”. Ecological Economics, 69(3): 666-672.12 Taylor, P. (ed.), 2008. Taylor, P. (ed.), 2008. Minorities at Large, special issue of Journal of Vietnamese Studies, 3(1).

Conflicts between state agencies and local peoples over strictly protected conservation areas have been a primary cause of declines in forest quality and biodiversity.

As long as local peoples do not have tenure to

forests, they do not have a secure share in

REDD+ benefits.


50

assert their rights under UNDRIP.13

Community-based redd+: human rights and tenure

The alternative is for Vietnam’s future REDD+ programme to employ a community-based approach, which would involve local communities as equal partners with governmental agencies and private companies in the conservation of carbon and biodiversity. Local communities will become equal partners if they hold tenure rights to forests considered their own, allowing them to have a real choice about how they want to manage these forests. Instead of following land use restrictions unilaterally defined by the Government, they would be able to negotiate concrete targets for forest management through the national REDD+ programme, thereby taking the opportunity to combine local forest uses with the Government aim of conserving carbon and biodiversity. Local forest officers would be mandated to assist them by providing technical advice, interim financial assistance, and law enforcement support instead of the current exclusive emphasis on the enforcement of forest protection regulations. Local peoples would be entitled to financial and other rewards for the carbon and biodiversity conservation services delivered, including financial payments and other kinds of rewards desirable to them.

There are four main reasons why Vietnam’s future REDD+ programme should employ a community-based approach. First, local communities already held individual and collective rights to over 25 percent of the country’s total forest area at the end of 2008. Another 19 percent of the forest area was under temporary management by local governments and slated for future allocation to unspecified recipients (see Figure 2). Since most forest areas allocated to local peoples are initially relatively poor in forest quality and biodiversity, they have a higher potential for rapid increases in carbon stocks and the creation of conservation landscapes due to the regenerative dynamics of tropical ecosystems.14 Second, the procedures and institutions necessary for a large-scale community forestry programme have already been developed and tested in several projects that were implemented by the Government of Vietnam and international donors. These procedures and institutions may not be ideal, but they are in place for community-based REDD+ and would allow for large-scale implementation, including forestland allocation, village forest regulations, benefit-sharing procedures, community-based law enforcement, and community forest protection and development funds.15 Third, experience indicates that communities

protect and manage forests better than state-owned forest companies or protected area management boards, despite massive subsidies and support from the state to the latter two institutions.16 Giving local people equal access to subsidies and support would create immediate gains for the conservation of carbon and biodiversity. Finally, community-based REDD+ would contribute towards the alleviation of poverty, which remains widespread among local communities in forest areas. This would not just be in terms of income and financial payments, but also involving efforts to help poor people expand their assets, strengthen their control over these assets, and enhance their voices.

PoLiCy imPLiCations

Critical cornerstones are already in place in Vietnam for community-based REDD+. The Government of Vietnam can thus take further action to promote community-based REDD+ in the following ways:

13 �eyes, C., 2002. “Presidential Address: The Peoples of Asia - Science and Politics in the Classifi cation of Ethnic Groups in Thailand, China, �eyes, C., 2002. “Presidential Address: The Peoples of Asia - Science and Politics in the Classification of Ethnic Groups in Thailand, China, and Vietnam”. The Journal of Asian Studies, 61: 1163-1203.14 Forest Protection Department, 2007. “Vietnam forestry statistics”. Last accessed August 24, 2010, at http://www.kiemlam.org.vn. Forest Protection Department, 2007. “Vietnam forestry statistics”. Last accessed August 24, 2010, at http://www.kiemlam.org.vn.15 Wode, B., and B. Huy, 2009. Wode, B., and B. Huy, 2009. Study on State of the Art of Community Forestry in Vietnam. GFA Consulting Group: Hanoi.16 Nguyen, T. �., 2006. “Trends in forest ownership, forest resource tenure and institutional arrangement: are they contributing to better forest Nguyen, T. �., 2006. “Trends in forest ownership, forest resource tenure and institutional arrangement: are they contributing to better forest management and poverty reduction? The case of Vietnam”, pages 355-407 in FAO, Understanding Forest Tenure in South and Southeast Asia, Forestry Policy and Institutions Working Paper No. 14. FAO: Rome.

Figure 2. Percentage of total forested area owned by various actor groups in Vietnam. © Thomas Sikor and Nguyen Tan, based on Forest Protection Department 2007 statistics

State companies

16.1%

Protected Area

Management Boards33.5%

Communities25.1%Other actors

6.0%

Not yet allocated19.3%

source: www.kiemlam.org.vn

Communities protect and manage forests better

than state-owned forest companies or protected

area management boards.

51



• Strengthen the security of tenure rights to forestland, forest, and carbon for local communities through the passing of suitable legislation;

• Accelerate the transfer of unallocated forest to local communities, which would almost double the area under community management;

• Redirect law enforcement to protect the rights of local communities as much as those held by other forest managers;

• Build the capacity of government officials and civil society actors to implement UNDRIP and CBD and other international instruments supporting forest peoples’ rights that Vietnam has signed or adopted;

• Enhance the capacities of local peoples to define and communicate their own priorities, values and desired benefits within future REDD+ actions;

• Create a fairer and more equitable institutional framework for all types of forest managers by separating the state agencies in charge of monitoring and law enforcement from those competing with communities for REDD+ funds; and

• Institute REDD+ procedures that minimize the transaction costs for small-scale forest owners such as local communities.17

If these implications are taken into account by the Government and international donors, then the REDD+ programme in Vietnam has the potential to meaningfully engage local peoples as equal partners towards all stakeholders’ aim of conserving and sustainably using biodiversity and forest resources.

17 Nguyen, �. T., T. Sikor, T. Enters, and B. Vickers, 2010. Nguyen, �. T., T. Sikor, T. Enters, and B. Vickers, 2010. Forest, people and climate change mitigation: Why REDD+ needs local people in Vietnam. RECOFTC – The Center for People and Forests: Bangkok.

Thomas Sikor ([email protected]) is Reader in International Development at the University of East Anglia. He has conducted research and advised government officials on community forestry and upland people’s livelihoods in Vietnam for the past fifteen years. Nguyen Quang Tan ([email protected]) is the Vietnam Country Program Coordinator of RECOFTC. He has over seventeen years of experience in the forestry sector of Vietnam, including focusing on forest tenure, community forest management, rural livelihoods, and poverty alleviation.

overview of the Land and forest aLLoCation Programme

Since 1986, the Lao People’s Democratic Republic (Lao PDR) has undergone a rapid economic transformation under the government strategy towards “new economic mechanisms”1. With the aim of poverty eradication, one of the government’s development priorities has been a substantial land reform, particularly in upland areas; as a result, farmers are being settled

1 Kitamura, N., 2003. “Forest Policy Development in Laos”, pages 113-126 in Inoue, M., and H. Isozaki (eds.), People and Forest: Policy and Local Reality in Southeast Asia, the Russian Far East, and Japan. IGES, Kluwer Academic Publishers: The Netherlands; Fujita, Y., and K. Phanivlay, 2008. “Land and Forest Allocation in Lao People’s Democratic Republic: Comparison of Case Studies from Community-based Natural Resources Management Research”. Society and Natural Resources, 21: 120-133.

Implications of Policy Interventions for Land Use Changes and Local Livelihoods in Lao PDR

Shimako Takahashi and Luohui Liang


52

on government allocated lands due to the perceived needto stabilize shifting cultivation practices. A market-orientedeconomyhasledtotheshiftingcultivationstrategies–widelypracticed over centuries, but often perceived as ‘backwards’–beingreplacedwithotherformsof landuse,includingtreeplantations.

�he Land and Forest Allocation (LFA) programme of LaoPDRwasdevelopedduringtheearly199�sandwasintroducednationwidein1994.Itisalandreformpolicythatdelineatesclear village boundaries and classifies village forests andland resources�. �he key approach of the LFA programmeis to reduce illegal logging and shifting cultivation in villageforests3.Againstthepolicybackdropof the1994governmentdecisiontoeliminateshiftingagricultureby��1�4,donorsandinternational organizations provided financial and technicalsupporttointroducetheLFAprogrammeinthenorthernpartof LaoPDR(seeFigure1)bydiscouragingshiftingagricultureandpromotingcashcrop-basedsedentaryagriculture.

�heLFAprogrammeaimstoenablefarmerstoraiseagriculturalproductivityandincomebyensuringlandtenuresecurityand to encourage village communities toprotect anduse forest resources sustainably. It is strategically guidedby theProvincialAgricultureandForestryOfficeandimplementedbytheDistrictAgricultureandForestryOfficethroughthefollowing eight steps: preparation; village survey and consultation; data collection and analysis; village-widemeetings;landsurveys;preparationof agreementsaccordingtolanduseplans;extensionanddissemination;andmonitoringandevaluation.However,theprocessoftenstagnates,partlyduetofinancialconstraintsandpartlyduetolackof clarityof landusepatternsandpropertyrights.Overall,despitegovernmentalefforts,implementationof theLFAprogrammehasbeenafalteringprocess.

cOnsequences Of Land use change Historically, landhasbeenmanagedat thevillage level according to avarietyof customary rules andcustomary landpractices.�raditionallandusebasedoncustomaryrightswassomewhattakenintoaccountintheLFAprogramme,butwithoutspecificconditions,whichleftroomformanydifferent(andsometimescounterproductive)interpretationsbased

on local interests.While theprogrammerecognizedcustomary rights toaccess to resources, themaingoalwastoincreaseforestconservationbyrestrictingaccesstoforestareas,whichconflictswithsomecustomaryrights5.

Oneexampleof thechangestolocallivelihoodsistheprofuseplantingof teak6onlanddesignatedforagriculturebytheprogramme.�herearefourmainreasonsforthegrowthof teak:itisusefulforbuilding furniture; itsmarketvalue ishigh; teak is easier tomanageand requires less labourthanuplandricefarming;andriceyieldhasbecometoolowundertheLFAprogramme’sinducedshorteningof fallowperiods.Inaddition,incentivestoobtainrightsforthelong-termuseof land

� UndertheLFA,landsarecategorizedintothreemaintypes:forestland(conservation,protection,andproductionforests),agriculturalland,andresidentialareas.3 Manivong,K.,andP.Sophathilath,��7.Status of Community Based Forest Management in Lao PDR. RECOF�C:Bangkok,�hailand;Ducourtieux,O.,J.Laffort,andS.Sacklokham,��5.“LandPolicyandFarmingPracticesinLaos”.Development and Change,36(3):499-5�6;Fujita,Y.,andK.Phanivlay,��8;�hongmanivong,S.,Y.Fujita,K.Phanivlay,and�.Vongvisouk,��9.“AgrarianLandUse�ransformationinNorthernLaos:fromSwiddentoRubber”.Southeast Asian Studies,47(3):33�-347.4 �heLaogovernmentinitiallysetthetargetdateby��andsubsequentlyextendedto��1�.SeeLestrelin,G.,andM.Giordano,��7.“Uplanddevelopmentpolicy,livelihoodchangeandlanddegradation:interactionsfromaLaotianvillage”.Land Degradation & Development,18(1):55-76;Ducourtieuxet al.,��5.5 Ducourtieuxet al.,��5.6 �eak(Tectona grandis)isoneof theworld’spremierhardwoodtimbers,naturallyhabitantonlyinIndia,Myanmar,LaosPDR,and�hailand.IthasalsobeennaturalizedinJava,Indonesia,forthepast4��to6��yearsago.SeePandey,D.,andC.Brown.,��.“�eak:aglobaloverview”.Unasylva,��1–�eak,FAO.

Figure 1. Locationof thestudysitefortheLandandForestAllocationprogrammeinLaoPDR.©UNU-ISP

Restricting access to forest areas conflicts with communities’

customary rights.

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haveencouragedindividualstoswitchfromannualcropfarmingtoplantingteaktrees7.�hroughtheLFA programme, temporary land use certificatesareissuedforaperiodof threeyearsandrenewedif landsareappropriatelyusedandmanaged.�hus,onceteakisplanted,itservesasasocioeconomicandlegalsafetynetforlocalpeople.

�eak plantations represent farmers’ rationalitybased on traditional knowledge and responses tothe LFA programme, as well as their adaptationstrategy to the erosion-prone hilly lands and therising demand for income sources. Since the

influenceandimpactsof thedifferentstagesof theLFAprogrammeareinconsistentlyimplemented,vulnerablepeoplehavebeenencouragedtochoosetoadoptoldcustomaryrulesbypractisingtheirlanduserights,ratherthanattemptingtoadapttounpredictablegovernmentpolicies.Aboveall,localpeoplecannotaffordtowaitfordecision-makerstoestablishandputintopracticesoundLFAprogrammeproceduresandsystemsof implementation;farmingactivitiestakeplaceonadailybasisandthecorrecttimingbasedonfarmingcalendarsof landuseiscrucial.

WhiletheLFAprogrammewasinitiatedtohelpfarmersraise their agricultural productivity and promote thesustainableuseof landandforestresources,ithasnotyielded beneficial results in agricultural productivity.�heauthors’researchshowsthatthecroppingperiodcontinues to increase while the fallow period of theshiftingcultivationcontinuestodecreasefromarangeof 7 to1�yearsdownto�or3years (seeFigure�).Because the fallow period has been getting shorter,the forestvegetationdoesnothave sufficient time tobe restoredand the soil fertility for thenextcycleof croppinghasbecomeverylow8.Itisalsoreportedthatthe size of an average family farm in northern Laosdeclinedfrom17hectares(ha)to13ha,whilethesurfacearea of a slash-and-burn field remains unchanged atan average of 3 ha per family9. �hese findings implyagriculturalproductivityhasnotimprovedandtheLFAprogrammehashadno immediateeffecton reducing

thepracticeof shiftingcultivation.Assuch,themainchangebroughtaboutbytheLFAprogrammehasbeenthereductionof fallowareas and timeperiods, resulting inunproductive cultivationon stressed landandextensive conversion intoplantationsof treecrops,includingteak,ratherthanpermanentcultivationasthepolicyhadanticipated.

BeyOnd refOrming the Lfa PrOgramme

�he Lao PDR case shows how national policies have affected land use and can be the driving force behind landtransformation.Italsodemonstratesthatdiscrepanciesexistbetweenpolicyinterventionsandlocalrealities.Asaresultof theLFAprogramme,thelandareaforshiftingcultivationhassignificantlydecreasedandfarmersarenolongerabletocontinuethetraditionalpracticeof long-fallowshiftingcultivationonasustainablebasis.�hissituationallowsfarmerstocontinuetheshiftingcultivation,butonlywithashortrotationcycleastheironlypracticaloption,whichnegativelyaffectssustainablelanduse.�ransformationof landintotreeplantationcouldbeawayoutof thisshortrotationcycle,but

7 �hisobservationisalsoconsistentwiththecustomarypracticethattheinitialoccupanthasexclusiveusufructrightsaslongasheorsheworkedontheland,asinthepaperof Ducourtieuxet al.,��5.8 Liang,L.,O.Sengtaheuanghoung,andS.�akahashi,��1�.“LandUseChange,CauseandConsequenceinMontaneMainlandSoutheastAsia:ACaseStudyinNorthernLaos”,pages57-74inHerath,S.,Y.Wang,andL.Liang(eds.),Meeting Climate Change Challenges in Transboundary Basins: Role of Sciences.UNU-ISP:�okyo.9 Ducourtieuxet al.,��5.

Figure 3. Shifting cultivation in transition to teak plantations innorthernLaoPDR.©UNU-ISP

Figure 2. Averagefallowandcroppingperiodsof shiftingcultivationatthevillagelevelinLaoPDRoverseveralyears.©NAFRI(Laos)/UNU-ISP


54

wouldleadtoreductionof naturalforestfallowsandmayhaveanassociatednegativeimpactonbiodiversity. In theory, theLFAprogrammecouldhaveattained itsgoalof stabilizingshiftingcultivation,butonlybyenablingthosepracticestobecontinuedwithalongrotationcycle. �hus, significant gaps exist between policy interventions and ground realities; thisdiscrepancymayhavebeencausedat least inpartbya lackof recognitionof customaryrightsandrespectfortraditionalknowledge.

Implementationof theLFAprogrammehasstalledduetoitstop-downapproach,whichhasfailedtoconsideravarietyof customarylandpracticesandsocialandculturalfactors.�hesepracticeshavealsobeenlargelyoverlookedbydonorsanddevelopmentagencies.�orectifythesituation,participatorydecision-makingmustbeensured,particularlytodiscusssoundsystemsof monitoringandevaluationof theLFAprogrammewiththeinvolvementof allnationalandlocalstakeholders.�hisiswherearights-basedapproachtosustainablelivelihoodscanworkinassessingsocialimplicationsof policyinterventionsforlanduseandcustomaryrights.Arights-basedapproachaloneisnotacure-all,butitarguablyholdsthekeytostimulatingdevelopmentanddiscourseof landusepolicyanditprovidesopportunitiesforlocalpopulationsthathavepreviouslybeenexcludedtoengageinconsultativedialoguestowardstheformulationof policiesthatwillaffectthem.

InLaoPDR,theLFAprogrammerestrictsvillagers’accesstoforests,but itshouldentailaminimumentitlementthatprovides alternatives. Restricting access to natural resources “in caseswhere people rely on those resources for theirlivelihoods,withoutprovidingaviable,sustainableandbetteralternative,wouldbeconsideredafailuretorespecttheirrights”1�.Inthiscontext,theagriculturalextensionservicesforalternativelivelihoodsneedtobeenhancedandresponsivetolocalprioritiesandneeds.Furthermore,thefurtherdevelopingof theprogrammeandpossiblealternativesshouldbedrivenatthelocallevel,whileextensionservicesshouldbecomplementarilysupportedbygovernments.Suchacombinationof bottom-upandtop-downapproacheswouldbetterensurethatavarietyof customarypracticesof landuseandrightsof vulnerablepeopleareconsideredandintegratedintopolicyandpractice.

Greaterfocusandfundingwillbeplacedonbiodiversityconservationandclimatechangeadaptationinthelead-uptomajorinternationalmeetingssuchastheConferencesof thePartiesof boththeUnitedNationsConventiononBiologicalDiversity(CBD)andtheUnitedNationsFrameworkConventiononClimateChange.Bothof theseglobalagendasarerecognizedashavingthepotentialtobedeeplyrootedwithinrights-basedandcommunity-basedapproaches.If theLFAprogrammecouldbeimproved,itmayprovideashowcaseof anecosystemapproachtotheconservationof biodiversity11.Moreover,thelessonsandexperiencesof theLFAprogrammeshouldbeutilizedforprospectivecarbonmarketschemessuchasReducingEmissionsfromDeforestation

andForestDegradationinDevelopingCountries(REDD)thatLaosPDRwilllikelyengagewithinthenearfuture.�hus,researchimplicationsgobeyondtheLFAprogrammetootherpolicyareasinvolvingforests,biodiversity,andtraditionalknowledge.�hegovernmentanddonorsshouldbeawareof the local-levelexperiencesand incorporate those lessonslearnedintofutureprogrammingandfundingschemes.Otherwise,thesamefalliblesystemwillcontinuetooccurtothedetrimentof bothlocalcommunitiesandbiodiversity.

1� Campese,J.,��9.“Rights-basedapproachestoconservation:Anoverviewof conceptsandquestions”,pages1-46inCampese,J.,�.Campese,J.,��9.“Rights-basedapproachestoconservation:Anoverviewof conceptsandquestions”,pages1-46inCampese,J.,�.Sunderland,�.Greiber,andG.Oviedo(eds.),Rights-based approaches: Exploring issues and opportunities for conservation.CIFORandIUCN:Bogor,Indonesia,page14.11 1998MalawiPrinciplesontheEcosystemApproach.UNEP/CBD/COP/4/Inf.9,1998.LastaccessedAugust5,��1�,at:http://www.cbd.int/1998MalawiPrinciplesontheEcosystemApproach.UNEP/CBD/COP/4/Inf.9,1998.LastaccessedAugust5,��1�,at:http://www.cbd.int/1998MalawiPrinciplesontheEcosystemApproach.UNEP/CBD/COP/4/Inf.9,1998.LastaccessedAugust5,��1�,at:http://www.cbd.int/MalawiPrinciplesontheEcosystemApproach.UNEP/CBD/COP/4/Inf.9,1998.LastaccessedAugust5,��1�,at:http://www.cbd.int/UNEP/CBD/COP/4/Inf.9,1998.LastaccessedAugust5,��1�,at:http://www.cbd.int/http://www.cbd.int/doc/meetings/cop/cop-�4/information/cop-�4-inf-�9-en.pdf.

Significant gaps between policy interventions and local realities are caused in part by lack of recognition of customary rights and respect for traditional knowledge.

Global biodiversity conservation and climate

change adaptation agendas have the potential to be

rooted within rights- and community-based approaches.

Shimako Takahashi([email protected]),PhD,MEM,isResearchFellowof theUnitedNationsUniversityInstituteforSustainabilityandPeace (UNU-ISP) andhas conducted researchprojects onnatural resourcesmanagement and agricultural ecosystems inAsia.Luohui Liang([email protected]),MSc,isAcademicProgrammeOfficerof UNU-ISP.Priortothat,heservedasManagingCoordinatorof theGlobalInitiativeonPeople,LandManagementandEnvironmentalChangeof UNU.

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