REDD and Indigenous Peoples (part 2)

Legal assistance paper

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Date produced: 30/11/2009

Para 4(e) of Non-paper No 39 (5 Nov 2009) ostensibly safeguards the rights of indigenous peoples and local communities but there is no monitoring and/or enforcement mechanism in place to ensure that these safeguards are operationalised. What additional provisions – if any – should be included in NP 39 to ensure that the safeguards provided for indigenous peoples and communities are enforced? 

1 Summary of advice
• The current options for the enforcement of human rights for indigenous people are not sufficient to protect the human rights of indigenous peoples in the context of REDD development (see section 3).
• Annual reporting: A paragraph should be added to the draft negotiating text in Non-paper No 39 requiring all States which are participating in the REDD mechanism to provide annual reports as to how they are meeting their human rights obligations (see section 4).
• Validation of human rights compliance at project development stage: At the time that a REDD project is first validated at the domestic or international level, the validation process should include a certification that human rights issues have been addressed (see section 5).
• Establishment of a review and complaints mechanism: The REDD mechanism being proposed in Non-paper No 39 should include some form of review and compliance mechanism to ensure that REDD procedural principles and guidelines for indigenous people are being respected and effectively implemented in the event that national systems fail (see section 6.1).
• Options for establishing a REDD Compliance Committee include (see section 6.2):
1. Expanding the mandate of the current Kyoto Compliance Committee to include complaints regarding REDD;
2. Establishing a REDD review mechanism which is part of a more general compliance mechanism for the Kyoto follow-on treaty; or
3. Establishing a separate REDD Compliance Committee within the framework proposed by Non-paper No 39 by inserting an additional paragraph into Non-paper No 39 under the article dealing with “Institutions”, which establishes a REDD Compliance Committee (see proposed drafting in section 6.3 below).
• A REDD complaints mechanism should specify that an equitable balance of indigenous representatives must be included on any committee.

2. Potential impacts of REDD on indigenous people and local communities
REDD activities can affect indigenous people and local communities in many ways. The implementation of REDD will require participating States to clarify issues of land tenure and resource rights at the domestic level in order REDD to operate effectively and equitably.
Potential areas of conflict with indigenous communities include:
• The potential for ecosystem services to be lost within which indigenous people traditionally use the forest for, such as providing food, fuel and medicine
• The risk that customary land rights will be violated,
o Such as the risk that a State might arbitrarily resume land from forest-communities in order to capture the REDD revenues.
o The potential for traditional people who access forests to be excluded as the forests are “locked up” for conservation
• The decoupling of forest carbon rights from forest ownership or management rights, which has implications for natural resource ownership and use.

3. Main human rights instruments relevant to indigenous people

3.1 169 Indigenous and Tribal People’s Convention 1989 (ILO 169)
ILO 169 is a multilateral treaty which is intended to be legally binding on the parties who have signed and ratified it (Art 37). The Convention is only binding on those States which have ratified it (Art 38.1). ILO 169 addresses issues of land titling and resource ownership on customary land.
Part I of ILO 169 deals with general policy issues. Extracts which are relevant to REDD include:
• “The peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs (etc) …and the lands they occupy or otherwise use…” (Art 7.1)
o this could be interpreted to mean that they have the right to decide whether to permit logging on their lands, or whether to pursue REDD instead.

• “The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised…” (Art 14.1).

• “The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised…” (Art 14.1).

Part II of ILO 169 deals with land. The following provisions are directly relevant to REDD:
• “The rights of the peoples concerned to the natural resources pertaining to their lands (eg to participate in the use, management and conservation of those resources) shall be specially safeguarded…” (Art. 15.1)
o These two provisions could be interpreted to mean that traditional ownership of forests by indigenous peoples also dictates that they also own the right to the carbon in those forests. The provisions also oblige the State to clarify the ownership of land through the land titling process. This is particularly important in the case of REDD, because REDD has the potential to exacerbate landownership disputes (in the same way that logging has).

3.1.1 Enforcement of ILO 169
The ILO Convention is not widely ratified: of the 181 States which are members of the ILO, only 20 States have ratified the Convention, although relevantly, many of these States contain tropical forests and are likely to participate in REDD (e.g. Argentina, Bolivia, Brazil, Chile, Ecuador and Peru.
Annex A contains a list of States which have ratified ILO 169.
The ILO’s Constitution has a tripartite character with separate representation of employers, workers and government in the Governing Body and in the General Conference. Within those States which have ratified the Convention, there are some enforcement options.
Current options for enforcement include:
• Member States are required to make separate annual reports on the measures taken by them to give effect to the conventions that the State has adopted, and these reports are examined closely by a committee of experts. The Committee can raise questions with the governments concerned.
• Union and employer organisations can make representations and complaints to the Governing Body, and the Governing Body can raise these with the State concerned.
• However, only a member State can file a complaint with the International Labour Office against another Member State if it is dissatisfied with the other member’s non-observance of an ILO convention.
• The complaint can be referred to a commission of inquiry, and any government concerned in the complaint can refer the findings of the commission to the International Court of Justice.
• The Governing Body can invite representatives of official international organisations and non-governmental international organisations to be represented at meetings and to circulate statements, but this will not trigger a formal complaint procedure.
The weaknesses with the ILO enforcement structure is that although employers or employee associations can lodge complaints with the ILO, only the government of a Member State is entitled to lodge a complaint which can trigger binding penalties being imposed on another member State which is in breach of its obligations.

3.2 United Nations Declaration on the Rights of Indigenous People, 2007 (UNDRIP)
On 13 September 2007, the UN General Assembly passed a resolution adopting the Declaration on the Rights of Indigenous Peoples (UNDRIP). The language of the Declaration language is similar to, although stronger than, that of ILO 169 in relation to the protection of indigenous peoples’ rights.
Extracts relevant to REDD include:
• “Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use…” (Art 26.2)
• “States shall give legal recognition and protection to these lands…” (Art 26.3).

3.2.1 Enforcement of UNDRIP: The Declaration was passed by an almost unanimous vote in the General Assembly of 143 for: 4 against (Canada, NZ, Australia and the US voted against its adoption). Australia subsequently changed its position and signed the Declaration in 2009.

Despite the strong vote in favour of UNDRIP, the Declaration is not legally binding under international law.
UNDRIP is a resolution adopted by the General Assembly. Under the United Nations Charter, the General Assembly has no enforcement powers. It does, however, have the power to initiate studies and make recommendations for the purpose of, inter alia, assisting in the realization of human rights and fundamental freedoms. These powers are not sufficient to ensure the enforcement of human rights in individual cases.

3.3 Regional human rights treaties
There is a range of regional human rights conventions which contain provisions relevant to indigenous people, some of which have regional machinery for their enforcement, although this is patchy.
3.3.1 Americas
The American Convention on Human Rights 1969 is generally enforceable by individuals through the Inter-American Commission of Human Rights. However, only governments of member States or the Commission can submit a case concerning an alleged violation with the Inter-American Court of Human Rights. Only the Court has power to compel member States to remedy a violation of the Convention.
States can choose whether they wish to be subject to the jurisdiction of the Inter-American Court of Human Rights. Not all States within the Americas have ratified the Convention or recognised the jurisdiction of the Commission or Court.
Of specific relevance to REDD in the American Convention on Human Rights 1969 is Article 21 which upholds the right to property and prohibits the deprivation of property without compensation.
3.3.2 Africa
The African Charter on Human and Peoples’ Rights 1981 can be enforced through the African Court of Peoples’ and Human Rights.
Individual complaints of violations can be made to the Secretary of the Commission, and the Commission then decides whether it will consider the complaint. Only serious or massive violations of human rights are referred by the Commission to the Assembly of Heads of State and Government for consideration as to whether further action should be taken.
There is also an African Court of Human Rights. Individual petitions to the Court are only permitted if the State party has accepted the jurisdiction of the Court to receive complaints from individuals.
All countries in Africa have ratified the African Convention on Human and Peoples’ Rights.
3.3.3 Asia
There is no regional human rights convention in Asia, although ASEAN has recently proposed that one be developed.

3.4 Observations on current enforcement options for human rights
The current options for the enforcement of human rights which are described above are unlikely to be sufficient to protect the human rights of indigenous peoples in the context of REDD development, for the following reasons:
• The ratification and enforceability of the instruments is piecemeal. Not all states have ratified the relevant international or regional human rights instruments.
• In many cases, it is optional for countries to submit to the jurisdiction of regional human rights commissions or courts which enforce the conventions.
• Individual complaints are not always permitted.
• Where individuals are able to submit complaints, the enforcement options can often be difficult to access and time consuming. Most importantly, in the context of REDD, any enforcement options will not be integrated into the REDD process.
In these circumstances, it is suggested that additional enforcement options for human rights are required for REDD. Whether the REDD mechanism takes the form of a funding-based mechanism or a project-oriented market-based mechanism, the funding of REDD activities should be made contingent upon the recognition and protection of the human rights of indigenous people. In order for this to happen, some kind of review and compliance mechanism is required.
Within the REDD framework, the supervision of compliance with human rights obligations can take place at two different levels, namely, at the:
• At the national level, within national regulatory frameworks and policies, and
• At the individual project level.
These are considered in paragraphs 4 and 5 below.

4. Recommendations for annual reporting obligations on human rights
States which wish to participate in the REDD mechanism should be required to deliver annual reports which address how they are meeting their human rights obligations at the domestic programmatic and legislative level.
The REDD mechanism should make provision for these reports to be reviewed in detail, and for the supervising body to make recommendations to the participating State as to how they could improve their protection of human rights. The purpose of this is to ensure that systemic weaknesses are identified and addressed.
Annual reports could cover things such as:
• how issues of the land tenure of indigenous people affected by REDD are being addressed,
• the structures which are in place to ensure free, prior informed consent,
• the structures which are in place to ensure the equitable sharing of REDD revenues and benefits,
• what support is being given to indigenous people to understand and participate in REDD, and
• the complaint mechanisms which the State has put in place at a regional or national level to receive and respond to complaints from indigenous people.
The development of sufficient human rights protections within domestic REDD regulatory frameworks will be particularly important during Phase 1 in which REDD-countries will be developing their national REDD action plans and establishing their capacity-building strategies, as it will be these plans and strategies on which their future REDD activities will be based. The annual reporting and review process could be a particularly useful tool during this phase.

4.1 Recommendation to include annual reporting obligation
A paragraph should be added to the draft negotiating text in Non-paper No 39 requiring all States which are participating in the REDD mechanism to provide annual reports as to how they are meeting their human rights obligations. However, there is no obvious place in the current text in Non-paper No 39 for such a paragraph to be placed, as the reporting obligations seem to be a bit haphazard.
I note the following options:
• existing Article 3, paragraphs 12 – 16, of Non-paper No 39 currently requires the “Measurement, reporting and verification of actions”, but this relates to the measurement and monitoring system for REDD, and human rights does not fall easily under this heading.
o Nevertheless, this article could be broadened to contain reporting obligations in general, with a more detailed list of topics (including human rights) which annual reports must address;
• A separate and entirely new article on reporting obligations could be inserted; or
• The additional paragraph on human rights monitoring and reporting could be inserted under Article 5 which addresses institutional arrangements.

5 Project development and human rights
Protective mechanisms to ensure compliance with human rights obligations could be put in place at two different stages of the REDD-cycle:
• Project development stage
• Post project complaints (see section 6)

5.1 Project development stage
Human rights considerations are best addressed at the project development stage. National policy and legislative structures for REDD should put processes in place to ensure that human rights are considered and addressed.
At the time that a REDD project is first validated at the domestic or international level, the validation process should include a certification that human rights issues have been addressed. For example, an auditor’s certificate could be required verifying that free, prior informed consent was given, and that the other human rights principles were observed in the same way that Designated Operational Entities certify compliance with the Clean Development Mechanism rules and procedures in order to obtain approval for a project from the CDM Executive Board.
6 Post-project development complaints
Complaints might arise after the project development stage, once a REDD project is up and running.
For example, these complaints might include:
• That indigenous people did not give their free, informed prior consent to the project
• Disputes over land tenure, between groups or between indigenous groups and their government
• Disputes over the ownership and use of natural resources (i.e. forests)
• The displacement of local communities, including forced relocation, through land expropriation
• The failure to share REDD revenues and benefits equitably with indigenous and local communities, including the potential for corruption within national systems and the failure of the national system to deliver REDD revenues to indigenous communities.
Initially, these complaints should be dealt with at the national level. Each country participating in REDD should have a domestic system in place which can receive complaints, and which includes a process for review and appeal. These national complaint systems should be accessible to indigenous people and should enable to indigenous people to seek a review of REDD decisions and to appeal to the courts if their complaint remains unresolved.
In accordance with standard international practice, a complainant should only be entitled to bring a complaint to an international REDD complaints body (discussed below) once the complainant has exhausted their domestic appeal rights.

6.1 REDD requires a review and compliance mechanism
The REDD mechanism being proposed in Non-paper No 39 should include some form of review and compliance mechanism to ensure that REDD procedural principles and guidelines for indigenous people are being respected and effectively implemented in the event that national systems fail.
To this end, Non-paper No 39 should establish a body which can receive and respond to complaints generally regarding REDD activities, including complaints from indigenous people regarding an alleged breaches of human rights.
Thiago Chagas of Climate Focus makes the following relevant observations about the possibility of establishing a REDD complaints mechanism, including the likely objection by some State parties who might oppose the inclusion of a complaints mechanism because they will consider it to be an interference with their domestic affairs:
“Demonstrating that REDD procedural principles and guidelines are being respected and effectively implemented at the national level could be made an essential requirement for a Party to obtain (and maintain) the approval of its national implementation plan or reference scenario under the REED agreement. International supervision of a Party’s performance and monitoring of compliance could be implemented, for instance, through the creation of expert panels charged with the task of regularly assessing fulfilment of these procedural guidelines. Such assessments could be made publicly available and open for comments of other Parties and stakeholders.
It is important to bear in mind, however, that any attempt to assign such a broad supervisory role to an international body runs the risk of triggering opposition by Parties unwilling to accept any interference with their domestic policies and strategic decisions at the national level. In addition, directly associating the provisions of REDD funds to the effective implementation of principles and guidelines at the national level is likely to be interpreted as another form of conditionality imposed on developing countries and thus generate opposition.
A similar problem is likely come up if an attempt is made to create a review mechanism empowered to hear complaints by non-state entities against Parties that purportedly failed to meet the standards set out in the guiding principles and guidelines. This issue is considered in more detail with respect to the third question below.

6.2 Proposed additional provisions: REDD Compliance Committee
Options for establishing a REDD Compliance Committee include:
• Expanding the mandate of the current Kyoto Compliance Committee to include complaints regarding REDD,
• Establishing a REDD review mechanism which is part of a more general compliance mechanism for the Kyoto follow-on treaty,
o the whole of the negotiating text should be reviewed to consider whether a REDD Compliance Committee could “piggy-back” on a larger compliance mechanism which would supervise States’ parties compliance with their post-Kyoto treaty obligations as a whole; or
• Establishing a separate REDD Compliance Committee within the framework proposed by Non-paper No 39.
o This could be done by inserting an additional paragraph into Non-paper No 39. The most appropriate place for the additional paragraph to be inserted in Non-paper No 39 is under the article dealing with “Institutions”, under paragraph 22 (see proposed drafting below).
Whichever option is pursued, a REDD complaints mechanism which deals with complaints regarding the rights of indigenous people should include indigenous representatives.

6.3 Suggestions for new paragraph 22 (e) creating a REDD Compliance Committee
Proposed wording for paragraph 22 (e) of Non-paper No 39 is as follows (see underlining below):
“Para 22. Referring to the functions identified in paragraph 18 (e) – (f) above [this reference appears to be an error], the COP shall establish the following institutions:
(a) Regional REDD centres for capacity-building of MRV functions;
… (b) through to (d)…
(e) a REDD Compliance Committee to receive and respond to complaints concerning REDD activities, including any complaints concerning the human rights of indigenous people affected, or likely to be affected by REDD activities, which includes, where appropriate, an equitable balance of indigenous representatives.”
The details as to how a REDD Compliance Committee would function could be developed at a later stage through a process similar to that in which the Marrakech Accords were developed.
For example, consideration will need to be given to the following matters:
• Whether the Compliance Committee will be able to deal with complaints about systemic failures within domestic REDD regulatory frameworks (or whether this will only take place through annual reporting obligations)
• Whether the Committee will be able to hear complaints at the project development stage, or only once the project has been established
• Who will be entitled to bring a complaint before the Committee, e.g. should it only be those who are participants in, or directly affected by, a REDD project?
• What powers will the REDD Compliance Committee have? Will it be able to suspend the flow of funding, or will it be able to suspend the flow of REDD credits until remedial action has been taken?
However, none of these issues needs to be resolved at this stage: the main objective should be to have the general principle recognised in Non-paper No 39 that a review and complaints mechanism should be created – with the details to be resolved in later negotiations.