COMPARING DIFFERENT
POLICIES AND APPROACHES

Previous global top-down and non-participatory approaches to tackling tropical deforestation have long been discredited as ineffective for upholding forest peoples’ rights and curbing deforestation (e.g. Tropical Forest Action Plan of the World Bank and FAO), but have more recent public policies and private sector approaches to combatting forest loss and achieving zero deforestation been any more effective?

The RSPO National Interpretation (NI) process here in Colombia is disappointing: the companies and FEDEPALMA say they cannot uphold free, prior and informed consent as it does not appear in our national laws. So what is the purpose of the RSPO certification? Why are these companies part of the scheme? Is it just a marketing tool?

Colombian NGO activist, 2015

VOLUNTARY SUPPLY CHAIN STANDARDS

Commodity certification and voluntary standards:

Certification schemes now exist for timber, pulp and paper, palm oil, biofuels, sugar, soybeans, coffee and cacao, as well as for some minerals such as aluminium and coal. Certification standards also exist for farmed shrimp and prawns. Some key commodities, including beef and rubber, which are linked to deforestation and rights abuse, still do not have operating industry certification schemes. Several certification standards for palm oil and biofuels have clear environmental standards to tackle forest conversion to varying degrees, but some suffer from weak social and human rights protections (e.g. International Sustainability Carbon Certification – ISCC).105 Meanwhile, no schemes require an independent public consultation and validation process in their audit process.

Even where robust standards exist to protect communities and their forests, implementation and compliance remains a major challenge. The Roundtable on Sustainable Palm Oil (RSPO) scheme, for example, has useful social safeguards for indigenous peoples and features New Planting Procedures (NPP), which require company members to undertake an evaluation of High Conservation Value (HCV) forests and assess community tenure risks before proceeding to conversion in their concessions. The Forest Stewardship Council (FSC) likewise has important social principles and criteria. NGO studies and community complaints, however, show that certification under the RSPO and FSC has consistently failed to apply agreed standards to uphold community rights and safeguard forests. This is due to weak compliance, redress mechanisms and poor performance by certification bodies (CBs) which suffer from conflict of interest problems and low capacity on tenure, FPIC and social compliance verification.106

There are also major concerns regarding the so-called national interpretation processes whereby certification standards are ‘adapted’ to national conditions which in many countries appears to mean a watering down of social protections and rejection of core standards on customary land rights and FPIC (e.g. in Indonesia and Colombia). Communities and forest peoples’ organisations also complain the existing certification schemes do not deal with past illegality and rights violations on land now occupied by certified companies.

What do we mean by the term sustainability? The palm oil industry has not dealt with many of the past and present violations of community rights by agribusiness developments. It is not enough to create voluntary certification schemes, while we continue to suffer land grabs and the on-going violation of human rights

Franky Samperante, Pusaka, Indonesia – during IP tour of the EU, 2016

Major loopholes in certification schemes’ accountability frameworks also exist where companies denounced for human rights violations, land grabbing and illegal deforestation can escape scrutiny by simply withdrawing from the scheme, as occurred with Plantaciones de Pucallpa in the Peruvian Amazon.107

…this is just another sign of impunity of these palm oil companies and the toothlessness of both the RSPO and the Peruvian government. It seems that this company can do what it likes. It was ordered by the government and the RSPO to suspend its operations and yet nothing has changed

Robert Guimaraes, President of FECONAU, 2016

Fact check

  • When an FSC certificate is suspended, abusive companies are able to continue to violate rights with no recourse to FSC redress for communities (e.g. Long Isun case against PT Kemakmuran Berkah Timber (KBT), Indonesia).

  • Where companies are found to be in violation of RSPO certification standards, the complaints panel sometimes just makes recommendations for ‘improvement’ and remedial actions, including requesting ‘consultations’ with affected communities after a plantation has been developed: see, for example, RSPO report on Poligrow Ltda, Colombia, 2017.108

Company corporate social responsibility (CSR) policies:

In recent years a growing number of companies and some private banks have adopted corporate policies to address environmental and human rights matters in their investments, operations and supply chains. Nonetheless, numerous studies and reports confirm that most companies still lack effective systems to monitor, enforce and verify compliance with their social and environmental policies in their operations and supply chains.109 In 2017, in most cases non-compliance is still mainly picked up by communities, their civil society allies and international watchdog NGOs.110

Community complaints, public campaigns and independent NGO reports invoking CSR policies and exposing violations of zero deforestation commitments can sometimes be motors for change in companies and international financial institutions. For example, in response to major NGO criticisms regarding deforestation impacts of its loans, HSBC adopted a “no deforestation, no peat and no exploitation” policy. In 2017 HSBC publicly pledged to suspend loans to borrowers found to be in contravention of the bank’s commitment. After international NGOs highlighted violations of the new HSBC policy by borrowers Noble Group and Goodhope Asia Holdings in Papua,111 the bank called on the RSPO to investigate the allegations into Noble, as well as a complaint being raised against Goodhope Asia. The RSPO in turn issued a stop work order to Goodhope, while Noble triggered its own temporary stop work order until reviews were concluded and compliance assured.112 Later, however, the RSPO disregarded its own conditions for lifting the restrictions by exempting Goodhope Asia from the stop work order to allow a mill to be built.113 Cases such as these again point to the need to reinforce certification compliance and sanction mechanisms.

Overall, experience confirms that CSR policies are really only effective if tied to robust compliance procedures and associated formal grievance and accountability mechanisms (e.g. through links to certification schemes). Without such mechanisms, CSR policies run the risk of being mere pledges on paper. Most worrying is that even where serious human rights abuse or environmental damage is placed in the public domain, traders, buyers and banks that fund agribusinesses and other companies producing conflict commodities rarely withdraw business relations.

Companies often still fail to make clear how they plan to respond to such reports of rights abuse, which contravenes their business and human rights policies. Nor do they have clear policies to offer technical assistance and resources to bring their subsidiaries, sub-contractors and other business partners into compliance, or cease relations when violations persist and/or remediation does not occur.114 Additionally, few companies and banks have published non-compliance protocols that state clearly the human rights violation benchmarks that will trigger suspension of a trading or purchase agreement or recall of a loan.

Corporate commitments on zero deforestation (ZDF):

In 2017, over 400 companies have pledged to eliminate deforestation from their supply chains with more than 700 specific deforestation commitments.<up">115 Critics point out that the growing number of company policies on zero deforestation risks proliferating and confusing standards in the market place. Such policies may also be disconnected from local regulations and enforcement agencies and hence run the risk of alienating national and local government agencies as well as local suppliers. Some suggest that corporate ZDF policies are neo-colonial impositions that fail to respect local development agendas and constrain ‘legitimate deforestation’. Forest peoples and allied NGOs highlight that new zero deforestation land use zoning tools, like the High Carbon Stocks Approach (HCSA), risk applying carbon-centric and top down approaches that could marginalise communities and lead to ‘green land grabs’ unless stringent measures are put in place to ensure compliance with agreed HCS social standards.116 Independent studies conducted by FPP show that companies are struggling to implement their no-deforestation commitments and that community participation in land use zoning activities is often less than optimal.117 In May 2017, a revised HCSA methodology was released with more stringent social requirements and enhanced FPIC procedures. The ‘Social Requirements for Conserving High Carbon Stock Forests in Oil Palm Development’ are currently being trialled and additional guidelines will soon be published. It is critical that zero deforestation commodity production complies with these stringent social requirements to ensure that communities’ rights to their lands are respected, participatory community-land use planning and management is undertaken, and mapped community land use areas and livelihoods are secured alongside any identified HCS forests that are delineated for conservation in final Integrated Conservation and Land Use Plans.

Without genuine participation and enhanced FPIC mechanisms, ZDF and HCS initiatives run a high risk of repeating past errors of perpetuating ‘passive’ participation of forest communities. There are genuine dangers that community ‘involvement’ is primarily used to justify the expansion of large scale monoculture plantations and external business and forest conservation agendas without fully respecting local rights, livelihoods and community decisions.118 Like certification schemes, company CSR standards may also be costly for smallholders and communities to meet, thus raising equality and poverty impact concerns. Corporations that have adopted zero deforestation, or ‘no deforestation, no peatland and no exploitation’ voluntary commitments, must strengthen company compliance and due diligence systems to avoid perverse impacts on forest peoples. Implementation of corporate commitments must support, not undermine, secure land rights for forest peoples.

International guidelines on tenure governance and supply chains:

In response to growing concerns about the harmful impacts of agribusiness investments and related violent land grabs, numerous standards and guidelines have been developed in recent years by international agencies to reduce illegal land acquisition risks affecting communities, companies and governments. In 2012, the Committee on World Food Security (CFS) adopted the FAO Voluntary Guidelines on the Responsible Governance of Tenure (VGGT).119 The VGGT apply a human rights-based approach to the governance of tenure, and include a dedicated section on indigenous peoples and other customary landowners.120 The standard prohibits forced relocation of indigenous peoples, upholds the core FPIC standard and contains clear guidance on the need to recognise and secure legitimate systems of customary tenure before States and companies make land allocation decisions or investments. Numerous international agencies and intergovernmental bodies, including the European Union, have pledged to apply the guidelines. Large agribusiness, food and drink companies have likewise committed to upholding the VGGT across their businesses, including Cargill, Nestlé and Unilever.121

More than 20 guides on how to implement the VGGT have now been developed by FAO, OECD and regional intergovernmental bodies (including the African Union).122 Some guides provide specific advice on elements in the VGGT, including free, prior and informed consent (FPIC) and forest tenure.123 NGOs, companies and governments have also developed progressive guides on approaches to deal with past land rights violations, including guidance on land restitution to communities.124 While the voluminous guidance and wide commitment to the VGGT are certainly positive, it is unclear how governments and companies apply and account for the adherence to these tenure standards in practice. As noted below, most companies still lack robust compliance and reporting mechanisms for their sustainability policies, while score card systems tend to rely on company self-reporting on paper policies and commitments, rather than actual performance on the ground.125 Critics also point out that the VGGT have been applied in a patchy manner in some countries and regions, such as West Africa, which has side-lined the core human rights-based framework in favour of big business and greenwashing of industrial agriculture.126 With a clear application of the human rights-based approach and careful application of the guidelines on customary tenure, the VGGT in principle do hold potential for positive reforms in commodity supply chains.

PUBLIC POLICIES AND MANDATORY REGULATIONS:

Robust enforcement of laws that protect rights and provide access to justice is essential to uphold community rights and curb illegal forest loss. In practice, the effectiveness of public policies and statutory moratoria proscribing clearance of ‘natural’ forest in producer countries is variable and may have adverse outcomes for forest peoples. In Paraguay, the 2004 Zero Deforestation Law covering the eastern part of the country reduced forest loss there, but resulted in increasing pressures from industrial soy farmers on indigenous peoples’ lands and fallow forests in the same region, driving illegal land acquisition and forced displacement.127 Overall, deforestation has more than doubled nationally (2011-2012), largely due to relocation of cattle farms to the western Chaco region where violent land grabs and extensive forest clearance on indigenous peoples’ lands have increased.128

Law enforcement and statutory controls:

Studies report that tough ‘command and control’ measures, effective forest monitoring systems and sanctions for illegal deforestation in the Brazilian Amazon coupled with efforts to stop agricultural credit for farm expansion in forest areas had a major impact in slowing forest loss. Recent assessments in the Amazon, however, find that forest protection regulation may redirect unsustainable cattle and soy production to domestic markets without decreasing illegal land acquisition and forest clearance, while ‘legal’ and ‘deforestation-free products’ for export are produced on land that has already been cleared and expropriated from communities in the past.129 Policies promoting intensification of farm and plantation output to relieve ‘pressure’ on natural forests are not founded on the evidence, which suggests that intensification does not necessarily reduce the demand for land clearance.130 However, others suggest that the robust law enforcement approach has in part led to a pushback from agro-industrial lobbies leading to a weakening of forest protection law and a controversial and unjust amnesty for past illegal land grabs and unlawful forest clearance, which is strongly condemned by civil society.131

With regards to actions to combat illegal deforestation linked to the drugs trade, there is much evidence to show that military style operations and crop eradication programmes have generated perverse outcomes. In Colombia, for example, adverse impacts include severe damage to local food security and displacement of deforestation to more remote forest areas – more often than not on the customary lands of indigenous peoples and Afro-descendant communities. Critics argue that while law enforcement rightly has a role to play, supply-side policies must be combined with well-funded demand side measures to reduce demand for drugs in post-industrialised countries like the US, UK and Europe through drug education and rehabilitation programmes.132

Moratoria:

Experience with deforestation moratoria is mixed across countries. The Indonesian moratorium on forest clearance for plantations in forest areas and peatlands under a Presidential Decree has not slowed forest conversion due to major loopholes (prior land clearance licences are not covered). Although some companies have had concessions suspended for violation of the moratorium (e.g. APRIL in Sumatra), the absence of solid mechanisms for enforcement of the deforestation ban has allowed many companies to continue land clearance and peat drainage.133

In DRC, the 2002 moratorium on industrial logging has never been fully enforced. Legal loopholes have allowed industrial logging to continue under the guise of ‘artisanal’ logging permits. In 2016 the ban was also violated with more than 20 concessions being issued to logging companies by the Minister of the Environment.134 In response to intense national and international civil society criticism some, but not all, of the concessions have been revoked. At the same time, calls on the DRC government made by UN human rights bodies to cease all land allocation until community land tenure rights have been mapped and documented remain unimplemented.135 Despite these loopholes, there is a general consensus that without the moratorium, much more of DRC’s forests would have been opened up (via logging roads), damaged or converted over the past decade. For this reason, citizens and communities continue to ask for the moratorium to continue and for loopholes to be closed until genuine land and forest policy reform is put in place.

In short, if moratoria apply clear binding conditions and benchmarks that must be met by government bodies and companies prior to the lifting of land use restrictions, then in theory powerful incentives for reform can be put to work. With proper enforcement and verification frameworks, such an approach could offer genuine potential for moratoria to stimulate positive change in supply chains and land governance.

Demand side regulation of supply chains:

One example of regulation at the global level is the EU Timber Regulation (EUTR). The EUTR came into force in 2013 and makes trade in illegal timber inside the EU a crime. Evaluations show countries were slow to implement the EUTR in 2013-15, while law enforcement and customs bodies have complained they do not have the resources to enforce the law and sanction wrongdoers. Evidence from 2016 indicates a modest increase in enforcement checks by countries like Sweden, the Netherlands and Germany. More than 50 sanctions and fines were imposed under the 34

EUTR in 2015-16.136 Its effectiveness so far, however, remains unproven in slowing the inflow of illegal forest products into the EU, partly because the law contains significant loopholes (e.g. does not cover key wood products like charcoal). Nonetheless, with closure of loopholes, greater attention to human rights and robust enforcement, the EUTR holds potential to reform timber supply chains and change business behaviour.

Evidence for the application of the US 2008 Lacey Act suggests that demand side legislation can send important signals to traders and importers and help combat organised crime, corruption and illegal trade, especially where sanctions are enforced.137 In order to increase global impact, major timber importer countries and global players like China need to adopt similar approaches to supply chain regulation and law enforcement.138 At the same time, demand side measures need to be coupled with changes in producer countries, including stronger controls and screening at the point of export. In Peru, for example, illegal timber is traded overseas via falsification of documentation by timber export companies.139

MULTISTAKEHOLDER AND HYBRID APPROACHES

National and sub-national approaches involving governmental and non-governmental stakeholders with a mix of mandatory rules, incentives and voluntary commitments by farm businesses, traders and retailers can be potentially effective for combatting agricultural drivers of forest loss. Experience in the Amazon shows that effectiveness can be undermined by regulatory loopholes, narrow application to single commodities, restriction to specific geographic areas or biomes as well as failures to include key actors or to tackle illegal operators who stay outside the initiative.140 Critics stress that zero deforestation initiatives in Amazonia have tended to apply a narrow environment and ‘forest centric’ focus, which often lacks effective protections for community tenure rights. Schemes have suffered from over-emphasis on rules focused on safeguarding ‘natural’ forest, which again leaves other forest types vulnerable to encroachment and clearance, including community and smallholder secondary forests and fallows.141

At the international level, the EU Action Plan on Forest Law Governance and Trade (FLEGT) has applied a multi-stakeholder and good governance approach to tackle the illegal timber trade. The EU FLEGT framework licenses only ‘legal’ tropical timber for export to EU markets via national legality assurance schemes set up under bilateral Voluntary Partnership Agreements (VPA) with timber export countries. While the approach has fostered participation by civil society and forest peoples, a narrow definition of legality tied to national laws has resulted in weak or limited treatment of human rights in VPAs and has tended to restrict FLEGT’s scope for protecting customary land rights.142 The existing FLEGT framework also excludes ‘conversion’ timber stemming from land clearance for agribusiness that makes up the bulk of illegal timber trade [Figure 3].

…The current (draft) FLEGT VPA legality definition is not in line with international and customary law. (It) only protects titled villages from external concessions…timber coming from untitled customary lands should not have the status as legal timber.

Observation of Amerindian Village leaders, Legality Seminar report, Guyana, 2015143

More recent multi-stakeholder zero net deforestation (ZNDF) initiatives set up at UN Rio+20 Earth Summit in 2012 include the Tropical Forest Alliance 2020 (TFA2020), which supports partnerships between government agencies, civil society organisations and businesses. The Alliance enables partners to develop national land use and tenure action plans to promote “deforestation free” supply chains for palm oil, beef, soy, pulp and paper. In 2016 TFA2020 developed the Africa Palm Oil Initiative (APOI), which contains important commitments to respect “land tenure and

the rights of local communities and indigenous peoples” and adhere to principles for the “recognition of community and human rights”.144 The APOI is now developing national action plans on sustainable palm oil.

The completed action plan for Liberia upholds the FPIC standard, includes plans to establish a national grievance mechanism and calls for a participatory process for developing a national land use plan that must be validated through a multi-stakeholder process.145 Despite these useful commitments and principles, governments, companies and conservation NGOs have so far largely dominated participation in national TFA2020 workshops. Direct participation 35

of land rights holders in Liberia has so far been limited, and specific commitments to uphold customary land rights are not clear in the action plan. Local communities have cautiously welcomed the TFA2020 programme, but also called for much stronger mechanisms for meaningful participation of customary land holders to ensure an accountable and effective multi-stakeholder engagement. A reply to these queries has not yet been forthcoming, raising further questions about transparency and the effectiveness of existing arrangements for community engagement.

Customary land owners need greater information on all aspects of the palm oil sector including the details of concession agreements, HCS, HCV, TFA2020, RSPO…at the community level. We are concerned that the imposed categories of land designation involved in HCS and HCV land planning will further increase pressure on our farm lands and force displacement and scarcity of resources

Community representatives and land rights holders, Liberia, 2016146

With TFA2020 and other zero deforestation initiatives, forest movements and policy makers also highlight that a number of pledges refer to zero net deforestation. They raise legitimate concerns that proper application of this standard must include safeguards to prevent the clearance of natural forests for industrial monoculture plantations. Safeguards must also ensure industrial plantations are not accounted for as forest cover.147

Multilateral Environmental Agreements:

Global initiatives and intergovernmental commitments to tackle tropical forest destruction have been ongoing since the first Rio Earth Summit in 1992, including pledges to involve forest peoples in national and international forest policies and initiatives and “Proposals for Action” developed by the Intergovernmental Forum on Forests (IFF), which became the United Nations Forum on Forests (UNFF) in 2001. The Convention on Biological Diversity (CBD) has several action plans and work programmes with elements seeking to reduce loss and degradation of forest biological diversity, but targets have not sufficiently been met as forest loss continues apace. National Biodiversity Strategies and Action Plans (NBSAPs) have likewise been drawn up to safeguard forests and other ecosystems. The CBD adopted the Aichi Biodiversity Targets in 2010, including Target 5 in relation to forest ecosystems, and Target 18 in connection with traditional knowledge and customary sustainable land use of indigenous peoples and local communities.

On the ground, however, CBD policies have not been very effective to date. While, on the positive side, the CBD has been ratified by almost all governments on the planet, there has so far been weak implementation in most countries and there is no national enforcement mechanism. Implementation thus relies on the political will and action of all the relevant social sectors. This means most Parties to the CBD (more than 75%) do not report on traditional knowledge, land tenure or community customary sustainable use policies, and many fail to include applicable CBD targets in their National Biodiversity Action Plans.148

International climate regime and forest and climate initiatives:

The UN Climate Convention has adopted agreements on Reducing Emissions from Deforestation and Forest Degradation (REDD+), which have been piloted by the World Bank and various bilateral agencies and conservation NGOs over the past decade. There is as yet no solid evidence that these schemes have been responsible for slowing forest loss [Table 2]. On the positive side, some indigenous peoples’ organisations report that REDD+ has opened important political space on land rights and FPIC at the global and national levels.149 However, in practice, pilot REDD+ projects have not enabled changes to land laws in favour of forest peoples and have not ensured meaningful participation or genuine respect for FPIC for forest dwellers.150 Other than a few cases such as Peru, Paraguay, Guyana and Colombia [Box 2], REDD+ and related national zero deforestation strategies have not included solid social components to secure and provide legal title for legitimate customary land tenure rights.151 Where positive tenure changes are emerging in forest nations, studies find that these cannot be attributed to REDD+ interventions, but rather to wider processes for land reform (e.g. in Liberia). REDD+ strategies have likewise generated patchy public policies, with several national REDD plans failing to include actions to tackle industrial drivers of deforestation or involve agribusiness, mining and infrastructure interests.152

Village elder calls for secure land title for Apakoko community forest and demands action to remove illegal loggers and miners occupying customary forest land in Mambassa Territory, Ituri Province, DRC © 2017 Nadia Mbanzidi Banota, FPP.

Village elder calls for secure land title for Apakoko community forest and demands action to remove illegal loggers and miners occupying customary forest land in Mambassa Territory, Ituri Province, DRC © 2017 Nadia Mbanzidi Banota, FPP.

Wampis community members and autonomous government enforce customary law and administer justice to evict illegal gold miners from their forest territory in the Peruvian Amazon © 2017 Andrés Larrea, GTANW.

Wampis community members and autonomous government enforce customary law and administer justice to evict illegal gold miners from their forest territory in the Peruvian Amazon © 2017 Andrés Larrea, GTANW.

In Peru, for example, sub-national REDD+ pilots have not tackled agribusiness and industrial drivers and have often failed to deliver meaningful local benefits for communities who have suffered restrictions on their livelihoods.153 Official deforestation analyses and interventions under national REDD schemes in Africa and Asia still tend to unjustly blame and target communities and small-scale farmers for forest loss. These questionable assumptions that communities are the primary drivers of forest loss also underlie the design of local REDD schemes such as the controversial Mai Ndombe REDD+ pilot in DRC.154 Yet science shows small scale subsistence farmers are not the cause of permanent forest clearance in countries like DRC.155

Official studies of deforestation in the DRC still tend to blame forest peoples for forest loss… without giving adequate attention to industrial and economic causes linked to roadbuilding, industrial logging, mining and urban expansion.

DRC case study, 2016

RIGHTS-BASED AND COMMUNITY DRIVEN APPROACHES

Indigenous peoples and allied forest peoples’ movements have maintained for decades that legal recognition and titling of their collective lands and territories is one of the most effective ways to slow forest loss and promote sustainable development.156 The same call for action on indigenous land rights, local traditional knowledge and forests continues to be made by indigenous peoples today, including through repeated statements presented to governments in the UN Climate Convention and the Convention on Biological Diversity.157

Securing collective community tenure rights:

There is mounting empirical evidence, particularly from Central and South America, which confirms that secure legal title for indigenous peoples and customary landowners is often associated with intact forest cover and low or zero deforestation rates, even in the face of intense pressure at the forest frontier where land is being cleared for commercial farming.158 Scientific studies show that indigenous titled lands managed through community governance frameworks are often more effective in sustaining healthy and intact forests and other ecosystems than conventional government-run protected areas.159 As noted in section C, many forest peoples face a series of obstacles to securing collective tenure in line with their legitimate rights under international law and human rights treaties ratified by forest nations [Box 1]. Removing these obstacles and fast tracking reforms and enabling legislation to implement progressive rulings of both international and constitutional courts could bring transformational change for customary communities and indigenous peoples in countries such as Indonesia.

Despite the major positive potential for tenure and rights-based policies for combatting forest clearance and advancing livelihood security for forest peoples, surprisingly few forest and climate programmes contain well-funded and focused components to secure community forests and customary land tenure rights. Notable exceptions include Peru, Colombia and Guyana. Lessons from these countries where many of these programmes are being implemented with outdated forest tenure legislation indicate that timely and effective interventions are needed to apply new standards and safeguards to secure customary land rights. Early actions on tenure would help ensure land titling programmes are fair, transparent, objective and properly aligned with state obligations on the recognition of indigenous and community lands [Box 2]. It would also allow rights holders to fully participate in the governance and implementation of such land titling initiatives.

Recent experience in the Colombia Amazon demonstrates that innovative partnerships between indigenous peoples, government land agencies and civil society organisations can help advance and unblock pathways to legally secure indigenous territories. In the case of the Uitoto (Muina+), more than 0.5 million hectares of old growth rainforest received title in 2017 under two Indigenous Reserve (resguardo) boundary extensions adjacent to a deforestation hotspot. This major achievement has been made thanks to concerted efforts seeking title extension made by the Resguardo Councils, the regional collective Association of Traditional Indigenous Authorities (CRIMA), using socio-economic studies, surveys and demarcation work provided by NGOs, along with civil society advocacy support to the Resguardo Councils and CRIMA to press the National Lands Agency to fast track the application and remove institutional blockages. While communities in the Middle Caquetá are pleased that progress is being made in legally securing a vital portion of their collective territory, they are concerned about reports suggesting that environmental and protected area conditions may have been attached to their titles without their knowledge and FPIC, thereby possibly diminishing the value of the title. In addition, the State appears to be asserting a continuing jurisdiction over their ancestral forests under an outdated forestry law (Law 2 of 1959). The indigenous peoples and their organisations therefore seek to consolidate their gains by removing any overlapping claims of authority or limitations on their access or use imposed without their consent. This is sought in order to ensure full respect for their rights of governance and control over their forest according to their customary law in line with international law binding on Colombia.

Box 2: Land rights, forest and climate programmes and zero deforestation initiatives

Peru: German and Norwegian funding for government zero deforestation policies in Peru are channelling support to Native Communities in Ucayali for land titling work via regional GIZ projects. International funds are also being directed for registering, demarcating and titling Native Communities under the Dedicated Grant Mechanism (DGM) of the World Bank Forest Investment Programme (FIP). Experience shows that these positive tenure elements have been secured due to sustained and intense local, national and global advocacy over more than five years led by the regional Amazonian indigenous peoples’ organisation AIDESEP.160 Despite this important progress, challenges to securing legally recognised collective property rights over uncultivated forest lands remain. Indigenous peoples in Peru continue to demand full recognition of their land and territorial rights in line with Peru’s international obligations and international human rights law.161

Colombia: Vision Amazonia 2020 in Colombia is funded by the UK, German and Norwegian governments under the REDD Early Movers (REM) programme. It contains a component for the extension of the land title boundaries of Resguardos, though the precise budget for land titling work was still unclear in 2017. Notwithstanding these positive tenure elements, this international forest and climate programme has been questioned by Amazonian indigenous peoples’ organisations for failing to apply core safeguards like FPIC.162

Guyana: The Amerindian Land Titling project (ALT) funded by the Guyana REDD Investment Fund (GRIF) resulted from prolonged advocacy by indigenous organisations and their allies calling for REDD+ readiness actions to resolve outstanding territorial claims and unresolved land title applications before climate investments go ahead on customary forests. Due the initial shortcomings in project safeguards, titling work was delayed until the UNDP and Government had agreed a robust set of safeguards, including FPIC in early 2017. Since adoption of the safeguard plan, progress remains painfully slow due to political obstacles (land title and title extension applications are being sent to Cabinet and stalled there) and lack of government capacity to implement the project in a timely manner.

Lessons:

Embed robust social safeguards in line with international law standards on indigenous peoples’ rights upfront in land titling programmes;

Ensure titling programmes are well resourced and institutional and political obstacles to implementation are minimised as part of project design;

Involve rights holders, beneficiaries and their representative organisations in the design, governance and implementation of land demarcation and titling initiatives.

At the global level, the establishment of the Land Tenure Facility (LTF) in 2017 to fund community mapping and land titling work is another potentially positive example of international collaboration in support of community tenure rights. This fund allows direct applications from indigenous peoples and forest communities to finance their land tenure work and collective actions to obtain legal recognition of their lands and forests.

Strengthening self-government:

Alongside actions to secure land and territorial rights grounded in customary tenure regimes, indigenous peoples and forest community organisations stress that States must also recognise and support local systems of self-government (including traditional governance structures preferred over local government mechanisms formulated and often imposed on indigenous peoples by law). Forest peoples seek recognition and support for local systems of community justice and the application of customary laws to ensure communities have effective control over their lands, territories and forest resources. In Peru, the law empowers Native Communities to administer local justice, and indigenous peoples such as the Wampis have formed their own collective self-governing body, and their communities have taken peaceful direct action on repeated occasions to remove illegal miners, land grabbers and other unwanted third parties from their titled lands and untitled customary lands. Indigenous peoples such as the Uitoto, Muinane, Nonuya and Andoque in the Colombian Amazon are likewise mobilising to call for the legal recognition of their traditional territory, including recognition of their autonomous self-governing collective bodies to oversee and protect the “Green Territory of Life” of the “People of the Centre.”

We do not need enlarged national parks and biological corridors imposed upon us and our traditional territories. Since time immemorial the traditional authorities of each one of our peoples has managed and cared for our territory and maintained its ecological function according to our traditional knowledge and our Law of Origin. What we seek is increased recognition and support from the national government for our own institutions and forms of collective traditional territorial governance...

Hernando Castro, Regional Indigenous Council of Middle Amazonas, Colombia

Community mapping:

Community mapping of customary tenure and land, utilising GPS technology coupled with participatory approaches such as sketch mapping and community construction of three-dimensional maps, has proven to be highly empowering for forest peoples.163 Community maps are used in dialogues with government land agencies, forest, and conservation authorities, to assert and legitimate customary land and livelihood rights.164 In Indonesia, indigenous peoples and forest networks have set up country-wide community mapping networks such as the Jaringan Kerja Pemetaan Partisipatif (JKPP).165 In Colombia, community maps have been used successfully in high level legal actions seeking land rights recognition, while in Guyana and Peru community maps are being used as part of formal applications for land titles and land title extensions.

Participatory mapping is being used by forest peoples and their allies in Latin America, Africa and SE Asia to challenge imposed resource concessions, illegal deforestation and land grabs linked to agro-industrial and mineral supply chains, including actions to secure restitution of forest land taken without community consent. Making community maps is a core part of social standards for the Community Land Use Planning (CLUP) tools used in the High Carbon Stock Approach to zero deforestation.166

Participatory mapping is undertaken jointly to plot the full extent of customary rights and uses, including farmlands; forest fallows; hunting, fishing and gathering areas; reserves; sacred sites; and collective territories

HCSA Social Requirements167

Community mapping is likewise a central part of FPIC standards and guidelines, where mapping is needed to define the geographic scope and jurisdiction over which the FPIC protections apply. This may involve mapping by a single community or by a collective of forest communities that hold a common territory and community forest.168 Where land authorities, forest agencies, licensing bodies and companies respect community maps, they hold genuine potential to uphold rights in zero deforestation schemes, make supply chains more accountable and promote meaningful reforms in land use policies and zoning.

Community-based monitoring:

Forest peoples have mobilised in recent years to combine mapping and digital technology with innovative and empowering grassroots efforts to monitor their community forests, lands and territories. The Wapichan in Guyana, for example, have set up their own community-controlled monitoring system to expose illegal deforestation and challenge illegal encroachment on their customary lands by Brazilian miners. The Wapichan tools are now being rolled out in other parts of Guyana where indigenous peoples are seeking to adapt the territorial monitoring approach to specific monitoring of timber and mineral supply chain compliance with legality and sustainability standards, including in relation to land tenure and human rights.

Uncontrolled mining expansion on our lands is resulting in deforestation, desecration of sacred sites and irreparable damage to our creeks, rivers and water sources. The situation is getting worse and threats are increasing. This is why we have decided to watch over our lands and forests, and to get organised to collect and publish information to tell the world what is going on

Chairperson of the South Rupununi District Council, Guyana, 2017169

In northern Peru, indigenous peoples including the Achuar and Wampis have used local monitoring to seek redress for environmental damage caused by oil companies in the Upper Amazon.170 Community monitoring reports are now being used to feed into litigation for land restitution and compensation caused by illegal loggers and oil palm plantation companies by the Shipibo people in Ucayali, Peru. Where communities consider it useful, there are options to share their local mapping and monitoring information on regional and global platforms on land rights and deforestation.

In Paraguay, the Federation for the Self Determination of Indigenous Peoples (FAPI) has coordinated with other indigenous organisations and national and international NGOs to establish an interactive mapping and deforestation platform in collaboration with the World Resources Institute (WRI). This platform enables local monitoring information on illegal deforestation and land rights violations to be shared on the Global Forest Watch (GFW) portal.171 It aims to give global visibility regarding the true situation of indigenous peoples and their lands and territories that are legalised or still under claim in Paraguay. At the same time, FAPI is working to monitor rights violations and initiate processes for legal redress and reparations.172 In Indonesia forest peoples are likewise using community monitoring to challenge infractions and illegal land encroachment by logging and plantation companies.

Now, we [the community] can check the company’s activities - take GPS coordinates of where they have been carrying out surveys or logging within our territory. We then work with a local NGO that has the skills to make maps and monitoring reports that we can then present to the local government or to the Forestry Commission as evidence that the company has entered our land without our consent. If we don’t have evidence how will anyone know outside of the community that these violations are going on?

Community activist, Long Isun Village, East Kalimantan, Indonesia

In Liberia, communities are now developing their own independent monitoring system to check oil palm company compliance with community agreements made under FPIC procedures. Elements to be monitored include respect for community rights, local benefit sharing and safeguarding of community forests.

JURISDICTIONAL APPROACHES

Policy makers, commodity and supply chain certification schemes, companies with zero deforestation pledges and REDD+ programmes all now propose ‘jurisdictional’ programmes to promote change and effective forest protection “at scale” (country, province, landscape). This approach combines legislative measures, enforcement and positive incentives within an agreed legal, administrative and geographic ‘jurisdiction’. This framework is considered conducive to cross-sectoral approaches between different industries and government ministries regulating land policy and natural resource exploitation working together with companies who have made no-deforestation and no-exploitation commitments.173 In theory, it also could offer opportunities to make progressive commodity standards on land tenure, FPIC and forests binding under statutory schemes operating at the level of the entire ‘jurisdiction’.

Silver bullet or a race to the bottom?

The jurisdictional approach is espoused as more friendly and cost-effective for smallholders and more amenable to a broader sustainable development approach at the landscape level.174 The RSPO and government bodies are piloting this approach in Sabah (Malaysia) and plans are underway to roll this approach out for palm oil production in the Ecuadorian Amazon region.175 Companies like Unilever have adopted new ‘produce and protect’ policies to source high risk conflict commodities from ‘low risk jurisdictions’.176 TFA2020 is also proposing jurisdictional approaches to zero deforestation in Sabah, East Kalimantan (Indonesia), Liberia and Para (Brazil).177 Some policy makers are now calling for international REDD+ finance to fund jurisdictional ‘sustainable development’ programmes like the Produce, Conserve and Include (PCI) programme in Mato Grosso, Brazil.

Critics emphasise that sub-national jurisdictional approaches are unable to address displacement of illegal actors, land grabbers and forest destroyers to other regions in the same country or in neighbouring countries. It is also unclear how they deal with national-level legal obstacles and the need for systemic tenure and agrarian reform. Analysts also point out that like all forest and land use programmes, they carry the risk of dominance by government and big business alongside elite capture of benefits, marginalisation of vulnerable groups and superficial treatment of tenure conflicts and customary land rights.178 Others warn that there is a possible perverse incentive for these programmes to push standards downwards and opt for weak verification systems to reduce the chance of non-compliance by a few actors, which might then risk blacklisting the entire jurisdiction. Major questions remain about the accountability, redress and compliance mechanism for these schemes covering entire regions and multiple actors: How are past illegalities and injustices addressed? Who ensures the whole jurisdiction is ‘compliant’? Who verifies compliance at scale and how?