Feisty Debate on Carbon Rights Raises More Questions Than Answers

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By Allie Goldstein

Do global efforts to pay developing countries to reduce greenhouse gas emissions from deforestation aid in the fight for community and indigenous rights, or impede it? The Fifteenth Dialogue on Forests, Governance & Climate Change, hosted by the Rights & Resources Institute, brought together a mix of voices – and they weren’t always in harmony.

Photos in this article are from IISD Reporting Services. More photos of the event are available here.

March 20, 2014 | Though the weather outside the Newseum in Washington D.C. on Wednesday was dull, the mood inside was spirited and at times contentious at the Fifteenth Dialogue on Forests, Governance & Climate Change, hosted by the Rights and Resources Institute (RRI). About 100 panelists and audience members came together to discuss the issue of ‘carbon rights’ in the wake of the recently passed Warsaw Agreement on Reducing Emissions from Deforestation and Degradation of forests (REDD+).

Arvind Khare“For the large trade to take place and large flow of money from developed countries to developing countries to take place, it’s extremely important that two things are very clear,” said Arvind Khare, Executive Director of RRI. “Who is the seller and who is the owner? And what is the commodity you are trading?”

Ecosystem Marketplace’s State of the Forest Carbon Markets report tracked 8.6 million tonnes of carbon dioxide-equivalent emissions reductions from REDD transacted on the voluntary carbon markets in 2012. And the passage of the ‘REDD Rulebook’ at the United Nations climate negotiations in December 2013 means that REDD could make its way into international compliance carbon markets.

“Countries now for the first time have greater clarity in terms of what’s expected for engaging in REDD,” Evan Notman of the US Agency for International Development said of the Rulebook.

The REDD Rulebook officially adopts seven ‘safeguards’, including a call for transparency, consistency with national forest laws, and respect for the rights of indigenous peoples and communities.

Bringing tenure out of the shadows

Khare’s first question about identifying the actors involved in REDD trades has to do with the sticky issue of tenure – the right to use, own, manage, exclude others from, or exchange land and the environmental assets produced on that land, such as carbon sequestration. In a recent survey of 23 low- and middle-income countries, RRI found that only Mexico and Guatemala have so far passed national legislation defining tenure rights over carbon.

Sergio Madrid ZubiranIn Mexico, 54% of the forested land belongs to ejidos or communities, and the national Ley Forestal specifies that “if you own the forest, you own the forest resources, including carbon,” according to Sergio Madrid Zubirán of the Consejo Civil Mexicano para la Silvicultura Sonstenible in Mexico.

Edwin Vásquez Campos, a Huitoto Indian and the General Coordinator for COICA, a coalition of indigenous groups of the Amazon Basin, said that Mexico’s case is not the norm, and that land tenure in the Amazon is still a major struggle for indigenous peoples.

When it comes to REDD, “information is not the same as consultation,” he added. 

According to another RRI study, tenure overall has been shifting from governments to communities over the last decade, with forest land administered by governments falling by 244 million hectares between 2002 and 2013 as indigenous people and local communities gained control over 46 million hectares – nearly double the 50 million hectares they previously controlled. RRI, however, found a notable slowing of this trend of tenure reform since 2008 and notes that, in low- and middle-income countries, only 30% of land is currently under community ownership – far short of RRI’s goal for forest peoples to achieve 42% ownership by 2015.

Divorcing carbon from forests?

Khare’s second question on the definition of the commodity is complicated by the issue of whether the rights to carbon emissions reductions can or should be separated from the forests they come from — an issue that received considerable airtime at Wednesday’s event. 

Niranjali AmeransingheSamuel Nguiffo“I would posit that you really shouldn’t separate carbon from land rights,” Niranjali Amerasinghe of the Center for International Environmental Law, said.

Samuel Nguiffo, a Cameroonian lawyer working for the Center for Environment and Development, agreed, saying that various laws about land, water, and forestry are confusing for people who manage on the landscape level in Cameroon.

“Any new legislation will be having an additional fragmentation of something that is not fragmented. Communities see their resources as being just one,” he said. “When you make it more complex for communities, you exclude communities.”

Charles Di Leva of the World Bank’s Environmental and International Law Unit, however, raised concerns about a different kind of exclusion – the exclusion of forest peoples from a potential source of revenue if they were to be denied the ability to trade carbon until land tenure issues are resolved. In this case, unbundling carbon rights from land rights might actually give indigenous peoples and communities access to capital despite ongoing tenure issues.

“If we were to require title resolution as a prerequisite, we might be excluding communities who want to participate in REDD activities,” Di Leva said.

Urgency…but for what?

Rick SainesA major point of contention, then, was the chicken-or-egg question of whether tenure and safeguards issues must be resolved at the national level before proceeding with REDD, or whether REDD can occur simultaneously with tenure reform – even driving it.

Speaking from the audience, Rick Saines of Baker & McKenzie argued for speed, encouraging stakeholders to get beyond the “baggage” of the private sector to reach across the community-corporate aisle.

“We are in a crisis mode. The building is burning, so to speak,” he said. “We need to find common ground. I would implore the folks who have the power to be bridge-builders to try to connect the conversation with private sector, civil society, and the indigenous communities – all of whom have vital roles to play – and without all of whom we will not be successful.”

Khare pushed back on the sense of urgency for REDD, calling on Saines to define ‘success’ and arguing that moving quickly on forest carbon markets could in fact mean moving quickly in the wrong direction.

“There is always this desire—oh, let’s do something,” he responded. “And in doing so, should we not really think, are we doing more damage than previously? Are you really so confident that we are moving towards the solution?”

Unlocking the piggy bank

Those who believe that REDD itself is urgent see major progress in safeguarding community rights and want to push forward.

Andrew Hedges, the REDD+ Vice-Chair of the Climate Markets & Investment Association, noted that, on a project level, REDD markets have evolved significantly over the last five years. Many buyers on the voluntary market now expect projects to have both Verified Carbon Standard (VCS) and Climate, Community, and Biodiversity Standard (CCB) certification, he said.

Ecosystem Marketplace indeed found that, in 2012, more than three-quarters of VCS-certified projects also achieved CCB validation. The CCB Standards require project developers to ensure that property rights within the project area are respected – and to actually map statutory and customary rights – as well as consult with communities through a process of Free, Prior, and Informed Consent. This has given major players in the private sector – including Eneco, Natura Cosméticos, Microsoft, and Disney – the confidence to invest in REDD, which saw $70 million-worth of transactions in 2012.

In terms of public funding for forest-based emissions reductions, the Forest Carbon Partnership Facility’s (FCPF) Methodological Framework for the Carbon Fund, finalized in December 2013, could unlock the $390 million in funds already committed to REDD. While 36 countries are FCPF REDD+ countries (with another eight in line to sign the Participation Agreement) and have access to the REDD Readiness Fund, only five have progressed along in REDD activities to the point that they are ready to sign Emission Reduction Payment Agreements (ERPA) and begin receiving performance-based payments. No country has actually completed an ERPA yet, Di Leva said.

Tenure holds the key

The safeguards section of the Methodological Framework requires that emissions reduction programs “be based on a full and effective consultative, transparent and participatory process” with affected stakeholders and meet the safeguards in the REDD+ Rulebook that were originally proposed at the Cancun climate negotiations in 2010.

“The Methodological Framework provides more flesh on the bones for the Cancun safeguards,” said Di Leva. “There are so many moments to input information into the process concerning rights and resources that I think we have created a situation that does not allow for compulsion of activities to take place if communities and indigenous peoples do not want the activity to take place.”

Kate Horner of the Environmental Investigation Agency, however, found quite a few weaknesses in what panelists affectionately began to call the ‘Meth Framework.’ One of the major problems with the safeguards is that they require countries to review land and tenure regimes before signing ERPAs, but not to resolve them, she said.

Tom Griffiths of the Forest Peoples Programme agreed, pointing to the example of the Democratic Republic of Congo (DRC), where he said 99% of forestland is state-owned, yet under customary law, at least 70% is community-owned. Despite the ongoing tenure conundrum, the DRC has begun the first stages of submitting an ERPA to the Carbon Fund.

“The longer you delay this safeguard work, the greater the risk of future difficulties and challenges,” he said.