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environmental science & policy 14 (2011) 118–126

available at www.sciencedirect.com

journal homepage: www.elsevier.com/locate/envsci

REDD+, transparency, participation and resource rights:


the role of law

Rosemary Lyster *
Australian Centre for Climate and Environmental Law (ACCEL), Sydney Law School (F10), University of Sydney, Sydney, NSW 2006, Australia

article info abstract

One of the crucial questions which emerges in the context of REDD+ is how the rights of
Published on line 30 December 2010
indigenous peoples and local communities will be protected. These rights include the rights
of sharing in the financial benefits of REDD+, the rights to participate in decision-making
Keywords:
around REDD+ schemes, and the rights to have their knowledge about forestry resources
REDD+
respected. Each of these issues depends on the extent to which they have some sort of claim
Indigenous peoples and local
to, or tenure over, tropical rainforests. While the REDD+ Advance Negotiating Text is
communities
‘groundbreaking’ for including references to the rights of indigenous peoples, and local
Forest tenure
communities, the implementation of these rights requires clarity with respect to the type of
Transparency norms
tenure which grants property rights in forest carbon. In addition, the rights cannot be simply
Legal standing
asserted without undertaking a detailed legal analysis of transparency norms, legal standing
Access to decision-making
and transparent access to decision-making in each tropical rainforest country.
# 2010 Elsevier Ltd. All rights reserved.

To date, the vast majority of research and writing about stocks in developing countries (REDD+). Parties to the Accord
climate change by environmental lawyers has focused on agreed on the need to immediately mobilise financial
greenhouse gas (GHG) mitigation measures in developed resources from developed countries for REDD+.2
economies. Yet the issue of deforestation in tropical rainforest One of the crucial questions which emerges in the context of
countries is a significant contributor to global climate change REDD+ is how the rights of indigenous peoples and local
and deserves the attention of legal scholars. Deforestation, communities will be protected. A recent review of REDD+ related
especially in the tropics, contributes around 14% of annual legislation and institutional arrangements in Ghana, Guyana,
global greenhouse gas (GHG) emissions. Indonesia, Panama and Suriname indicates that protecting the
Although the Copenhagen Accord1 is not a legally binding rights of indigenous peoples and local communities is an aspect
international instrument, it acknowledges the crucial role of of REDD+ which requires far greater attention.3
Reducing Emissions from Deforestation and Degradation and These rights include the rights of sharing in the financial
the need to enhance removals of greenhouse gas emission by benefits of REDD+, the rights to participate in decision-making
forests. This includes the role of conservation, sustainable around REDD+ schemes, and the rights to have their knowledge
management of forests and enhancement of forest carbon about forestry resources respected. Each of these issues depends

* Tel.: +61 2 9351 0292; fax: +61 2 9351 0200.


E-mail address: rosemary.lyster@sydney.edu.au.
1
Available at http://unfccc.int/resource/docs/2009/cop15/eng/l07.pdf (viewed 24 May 2010).
2
Ibid at para 6. It is also important to note the REDD+ Partnership being developed under the Oslo-Paris Accord which following its
meeting on 27 May 2010 will commit additional REDD+ funds; see draft REDD+ Partnership document available at http://www.o-
slocfc2010.no/pop.cfm?FuseAction=Doc&pAction=View&pDocumentId=24467 (viewed 26 May 2010).
3
See David, C., Nakhood, S., Daviet, F., 2009. Getting Ready: A Review of World Bank Forest Carbon Partnership Facility Readiness
Preparation Proposals, Working Paper, World Resources Institute.
1462-9011/$ – see front matter # 2010 Elsevier Ltd. All rights reserved.
doi:10.1016/j.envsci.2010.11.008
environmental science & policy 14 (2011) 118–126 119

on the extent to which they have some sort of claim to, or tenure edgement has been carried forward in the negotiations post-
over, tropical rainforests, although in many countries the spirit Copenhagen.
and letter of the law are not always reflected in its implementa-
tion. For example, customary law (adat) with its emphasis on
community property rights may not have sufficient certainty in 1. The Advance Version of the REDD+
legal title compared with other statutory rights. Without Negotiating Text
adequate protections, there are concerns that indigenous
peoples’ and local communities’ livelihoods, access to resources The Advance Version9 of a Negotiating Text provided by the Ad
and other rights, such as cultural rights, will be disrupted where Hoc Working Group on Long-term Cooperative Action under
deforestation is substantially reduced or halted.4 Indigenous the Convention (AWG-LCA), for its tenth session in Bonn from
people face the risk that governments will ‘zone’ forests thereby 1 to 11 June 2010 (the Advance Negotiating Text), includes
creating protected areas, biological corridors, forest reserves and important provisions relating to indigenous peoples and local
sustainable forest management zones. Governments might then communities.10
grant state-authorised forest concessions to manage these The Advance Negotiating Text states that when Parties
forests, prohibit community use of forestry resources, or evict undertake REDD+ activities certain safeguards should be
indigenous peoples and communities from parks or protected promoted and advanced including: the importance of
areas,5 while also recentralising forest governance.6 Secondly, transparency and effective national forest governance
there are concerns that insecure tenure may itself promote structures; respect for the knowledge and rights of indige-
deforestation as resource users clear forests in order to show nous peoples and members of local communities; and the
occupation where land claims are contested. need for the full and effective participation of relevant
On 24 April 2009, the Anchorage Declaration7 was adopted stakeholders, including, in particular indigenous peoples
which sets out indigenous peoples’ demands on Member States and local communities. Relevant international obligations
and the United Nations Framework Convention on Climate Change and national circumstances and laws should be taken into
(UNFCCC), as well as a road map towards the Copenhagen account, while the text notes that the General Assembly has
Summit and beyond. Analysing the outcomes of the Copenhagen adopted the United Nations Declaration on the Rights of
Accord, the Permanent Forum on Indigenous Issues of the United Indigenous Peoples.
Nations Economic and Social Council finds that the REDD+ draft Furthermore, Parties are requested when developing their
decision negotiated during Copenhagen is ‘groundbreaking.’ national strategies or action plans to address land tenure issues,
Although countries are not obliged to implement the REDD+ ensuring the full and effective participation of indigenous
safeguards, the draft decision is the only document emanating peoples and local communities.11
from UNFCCC negotiations which contains reference to the The primary focus of this article is rights of tenure.
rights of indigenous people and the United Nations Declaration on However, the assertion of these rights relies upon other
the Rights of Indigenous Peoples. It also recognised the need to REDD+ safeguards such as transparency, governance and
ensure indigenous peoples’ full and effective engagement and rights of participation. The author acknowledges at the outset
the importance of their traditional knowledge.8 This acknowl- that the enforcement and protection of all of these rights is
likely to be problematic in countries with a weak notion of the
Rule of Law. Nevertheless, the article provides a framework for
4
Griffiths, T. ‘Seeing ‘RED?’ Avoided deforestation and the rights evaluating the existence and protection of such rights in
of Indigenous Peoples and local communities’ (Forest Peoples REDD+ countries.
Programme: 2007) at 10. Griffiths also provides evidence of the
impact of carbon forestry on Indigenous peoples and peasant
communities in the Ecuadorian Andes at 11.
5
See Larson, A., Barry, D., Dahal, G., 2010. Tenure change in the
2. Relevant international law
global south. In: Larson, A., Barry, D., Dahal, G., Colfer, C. (Eds.),
Forests for People: Community Rights and Forest Tenure Reform, The international obligations owed to indigenous peoples, and
Earthscan, London, Washington, DC, p. 5. in some instances the rights of local communities, are to be
6
See Phelps, J., Webb, E.L., Agrawal, A., 2010. Does REDD+ threat- found in a number of international environmental legal
en to recentralize forest governance? Science, 328(5976), 312–313. instruments including the Rio Declaration on Environment and
doi:10.1126/science.1187774.
7
Development,12 Agenda 21,13 the United Nations Framework
E/C. 19/2009/CRP.9 cited by Results of the Copenhagen meeting of
Convention on Climate Change,14 the Convention on the Conservation
the Conference of the Parties to the United Nations Framework Conven-
tion on Climate Change; implications for indigenous peoples’ local adap-
tation and mitigation measures (Permanent Forum on Indigenous 9
Available at http://unfccc.int/resource/docs/2010/awglca10/
Issues, United Nations Economic and Social Council: April 2010) ;
eng/06.pdf (viewed 24 May 2010).
see E/C. 19/2010/18 available at http://www.un.org/esa/socdev/ 10
unpfii/documents/E.C.19.2010.18EN.pdf (viewed 31 May 2010). Above n 9, para 2.
11
8
Results of the Copenhagen meeting of the Conference of the Above n 9, para 7.
12
Parties to the United Nations Framework Convention on Climate Available at http://www.unep.org/Documents.Multilingual/
Change; implications for indigenous peoples’ local adaptation and Default.asp?documentid=78&articleid=1163 (viewed 24 May 2010).
13
mitigation measures (Permanent Forum on Indigenous Issues, Available at http://www.unep.org/Documents.Multilingual/
United Nations Economic and Social Council: April 2010), p.9; Default.asp?documentid=52 (viewed 24 May 2010).
14
see E/C. 19/2010/18 available at http://www.un.org/esa/socdev/ Available at http://unfccc.int/resource/docs/convkp/con-
unpfii/documents/E.C.19.2010.18EN.pdf (viewed 31 May 2010). veng.pdf (viewed 24 May 2010).
120 environmental science & policy 14 (2011) 118–126

of Biological Diversity15 and the Forest Principles,16 all of which extended in the International Labour Organisation Convention
emerged from the 1992 United Nations Conference on Environ- (No. 169) concerning Indigenous and Tribal Peoples in Independent
ment and Development (the Rio Conference). Countries.27
Principle 22 of the Rio Declaration acknowledges that Clearly then, indigenous peoples and local communities
‘Indigenous people and their communities, and other local have a plethora of international law instruments upon which
communities, have a vital role in environmental management to rely to assert their rights as enunciated in the Advance
and development because of their knowledge and traditional Negotiating Text, albeit that some instruments have limited
practices. States should recognise and duly support their signatories.
identity, culture and interests and enable their effective
participation in the achievement of sustainable development.’
Agenda 21 requires all countries to develop an effective strategy 3. Respect for the rights of indigenous peoples
for tackling the problems of poverty, development and and members of local communities: forest tenure
environment simultaneously which focus on resources, pro- and carbon rights in tropical rainforest countries
duction and people and which considers the role of indigenous
people and local communities in a democratic participatory In order for indigenous peoples and local communities to
process in association with improved governance.17 The claim the rights of benefit sharing in REDD+ projects, they will
Convention on the Conservation of Biological Diversity requires need to establish that they have property rights to the carbon
countries to respect, preserve and maintain the knowledge, sequestered in tropical rainforests. This claim will need to be
innovations and practices of indigenous and local communities based on the identification of some type of tenure over the
embodying traditional lifestyles relevant for the conservation forests. From a legal perspective, it is important to first get
and sustainable use of biological diversity.18 Meanwhile, the clarity on what ‘land’ tenure means when applied to
Forest Principles state that national forest policies should indigenous peoples and local communities. The second is to
recognise and duly support the identity, culture and the rights of determine whether the rights of indigenous peoples and
indigenous people, their communities and other communities communities over forests depend on ‘land’ tenure, or whether
and forest dwellers. Indigenous people and other communities ‘resource’ tenure suffices.28
should have an economic stake in forest use, perform economic Existing literature29 uses the terms ‘land’ tenure and
activities, and achieve and maintain cultural identity and social ‘resource’ tenure interchangeably, while the Advance
organisation, as well as have adequate levels of livelihood and Negotiating Text specifically requests developing countries
well-being, through, inter alia, land tenure arrangements which to address ‘land tenure issues’ when developing REDD+
serve as incentives for the sustainable management of forests.19 strategies and actions plans.30 The author’s concern is that
Various articles of the United Nations Declaration on the Rights if ‘land’ tenure cannot be established then the protections
of Indigenous People20 require states: to prevent any actions for indigenous peoples and local communities fall away.
which dispossess indigenous peoples from their land, territo-
ries and resources21; to allow indigenous peoples to participate 3.1. ‘Land’ tenure
in decision-making in matters which would affect their
rights22; and to protect their right to be secure in their means Dealing first with the question of ‘land’ tenure, there is an
of subsistence and development.23 Indigenous peoples also emerging body of literature31 which questions whether the
have the right to the lands, territories and resources which liberal notion of individual property rights is appropriate when
they have traditionally owned, occupied or otherwise used or applied to indigenous peoples and communities since land
acquired.24 Aligned with this are the rights to the conservation
and protection of the environment and the productive 27
Available at http://www.unhchr.ch/html/menu3/b/62.htm
capacity of their lands or territories and resources,25 and (viewed 27 July 2009). See Part II.
the right to determine and develop priorities and strategies for 28
See Lyster, R., 2009. The new frontier of climate law: reducing
their development.26 Many of these rights are replicated and emissions from deforestation (and degradation). Environmental
Planning and Law Journal, 26(6), 417.
29
Cotula, L., Mayers, J., 2009. Tenure in REDD: Start-point or
15 Afterthought. International Institute for Environment and Devel-
Available at http://www.cbd.int/convention/convention.shtml
(viewed 24 May 2010). opment. Available at http://www.landcoalition.org/pdf/
16
Available at http://www.un.org/documents/ga/conf151/ 09_13554IIED.pdf (viewed 23 July 2009); see also White, A., Martin,
aconf15126-3annex3.htm (viewed 24 May 2010). A., 2002. Who Owns the World’s Forests? Forest Tenure and Public
17
Art. 3.2. Forests in Transition (Forest Trends); Daviet, F., Davis, C., Goers, L.,
18 Nakooda, S., 2009. Ready or Not: A Review of the World Bank Forest
Art. 8(1).
19 Carbon Partnership R-Plans and the UN-REDD Joint Program
Principle 5(a).
20
Documents. World Resources Institute and Barnes, G., Quail, S.,
Available at http://www.un.org/esa/socdev/unpfii/en/
2004. Property rights to carbon in the context of climate change.
drip.html (viewed 24 May 2010).
21
Paper Presented at Conference on Land Governance in Support of
Above n 20, Arts. 8(b), 19. MDGs: Responding to New Challenges.
22
Above n 20, Art.18. 30
Above n 9, para 7.
23
Above n 20, Art.29(1). 31
See Barry, D., Larson, A., Colfer, C., 2010. Forest tenure reform:
24
Above n 20, Art.26. an orphan with only uncles. In: Larson, et al. (Eds.), Forests for
25
Above n 20, Art.26. People: Community Rights and Forest Tenure Reform. Earthscan,
26
Above n 20, Art.26. London, Washington, DC.
environmental science & policy 14 (2011) 118–126 121

and/or forests are more likely the subject of community tenure distinguished property lawyers Gray and Gray who note that
arrangements. Allied with this is the concern that forest tenure private ownership of land is legally recognised where
reform ought not to be confused with ‘land reform’ associated certain irreducible features of property are present. They
with land redistribution for the benefit of landless agricultural are: immunity from summary cancellation or extinguish-
workers.32 Meanwhile, concern that the recognition of commu- ment; presumptive entitlement to exclude others; and
nity tenure or common property will result in unrestrained entitlement to prioritise resources values (to have decisional
group resource use is being tempered to some extent by research control).39
which indicates that common property is an institution of self- In some countries, customary tenure may be created by
governance where participating group members impose limits way of statute, such as has occurred recently in Mali,
on their individual claims.33 Common property is distinguish- Mozambique, Tanzania and Uganda.40 In Indonesia, the
able from individual private property in that it is shared private Basic Agrarian Law gives legal protection to customary land
property with clear boundaries, rights and management and use rights so long as customary systems still exist and their
rights. Here, exclusion of non-participating individuals is exercise is not inconsistent with the national interest and
crucial, while there is growing evidence that successful legislation. This is not to suggest that recognition by statute
collective management does occur and consensus that common is the only way for indigenous peoples and local communi-
property is supportive of sustainable resource use.34 So, in the ties to assert tenure. There are a number of courts cases
case of indigenous peoples and local communities, community from around the world41 which acknowledge that where a
tenure, or common property, in forests is the most likely type of clan or group has continued to acknowledge the laws and
land tenure. (so far as practicable) to observe the customs based on the
When determining whether forest tenure rights ought to traditions of that clan or group, through which their
depend on ‘land’ tenure only, it is salutary to note that the traditional connection with the land has been substantially
International Institute for Environment and Development (IIED) maintained, the traditional community title of that clan or
report on tenure in REDD35 states that 77% of the world’s forests group remains in existence.42
are owned by government.36 The IIED report, even though Whether rights are granted by way of statute or judicial
slightly outdated given that it relies on 2002 figures, confirms process, holders of customary rights are vulnerable to the
that state ownership is the predominant type of tenure in exercise of administrative discretion whereby their rights
Cameroon (over 97% of land); DRC (all forested areas); Indonesia may be taken for a public purpose, which can include the
(most of the land); and in Malaysia (most forestland). Yet this is business activities of private corporations or even REDD+.43
not the case in some countries such as PNG (less the 3% of the This might occur, for example, when logging licences are
land). In Brazil most land and forests are privately owned, either granted by a government bureaucracy in violation of
individually or collectively, as a result of national legislation. customary rights, or access to forest resources is denied
A 2008 study suggests that only 69% of forests are owned by when forests are subsequently zoned for REDD+ purposes by
government, with 65% administered by government while Ministerial regulation rather than by statute.
another 4% is designated for ‘use’ by indigenous peoples and What this discussion indicates is that, globally, indigenous
local communities. These use rights can be unilaterally people and local communities claim private ownership over
extinguished by government. Eighteen percent of forests are only 18% of tropical rainforests. It seems logical to conclude
owned by communities and indigenous peoples, up from 15% in that this degree of private ‘land’ tenure can scarcely cover the
2002, and 13% owned by private individuals and firms.37 The
distinguishing feature between public and private forest tenure
39
Gray, K., Gray, S., 2009. Elements of Land Law. 5th edition.
is whether the rights can be extinguished with or without due
Oxford University Press, p. 103.
process and compensation.38 This accords with the views of 40
Above n 29, p. 16.
41
See the decision of the Australian High Court in Mabo v
32
Queensland [1992] HCA 23; (1992) 175 CLR 1. Available at
Above n 31, p.21.
33
http://www.austlii.edu.au/au/cases/cth/HCA/1992/23.html
See Johnson, K., Nelson, K., 2004. Common property and conser- (viewed 27 July 2009); the decision of the South African Consti-
vation: the potential for effective communal forest management tutional Court in Alexkor Ltd v The Richtersveld Community CCT 19/
within a National Pak in Mexico. Human Ecology, 32(6), 706, citing 03, 14 October 2003. Available at http://www.austlii.edu.au/au/
the work of Ostrom, E., Burger, J., Field, C., Norgaard, R., Policansky, journals/AILR/2003/41.html#Heading134 (viewed 27 July 2009);
D., 1999. Revisiting the commons: local lessons, global challenges. see the decision of the Inter-American Court of Human Rights
Science, 284, 278 and Ostrom, E., 1999. Self Governance and Forest in Case of the Suramaka People v Suriname, Inter-American Court
Resources (Occasional Paper No. 20, Centre for International Forest- of Human Rights, Series C No. 172, 28 November 2007.
ry Research), amongst others. See also Meinzen-Dick, R., 2009. Prop- Available at http://www.corteidh.or.cr/docs/casos/articulos/
erty Rights for Poverty Reduction? DESA Working Paper No. 91. seriec_172_ing.pdf (viewed 28 May 2010). For a more extensive
34
Johnson K., Nelson K. above n 33, p. 707. discussion of these cases see Lyster, above n 27.
35
Cotula L., Mayers J. above n 29. 42
Mabo v Queensland [1992] HCA 23 <http://www.austlii.edu.au/
36
Cotula L., Mayers J., p. 11, citing White A., Martin A. above n 29. au/cases/cth/HCA/1992/23.html>; (1992) 175 CLR 1 <http://
37
See Fig. 1 in 2009. Tropical Forest Tenure Assessment: Trends, www.austlii.edu.au/cgi-bin/LawCite?cit=%281992%29%20175%20
Challenges and Opportunities. Rights and Resources Initiative and CLR%201> at para 66.
International Tropical Timber Organisation, p. 13. 43
Mabo v Queensland [1992] HCA 23 <http://www.austlii.edu.au/
38
Tropical Forest Tenure Assessment: Trends, Challenges and au/cases/cth/HCA/1992/23.html>; (1992) 175 CLR 1 <http://
Opportunities. Rights and Resources Initiative and International www.austlii.edu.au/cgi-bin/LawCite?cit=%281992%29%20175%20C
Tropical Timber Organisation, p. 10. LR%201> at para 66.
122 environmental science & policy 14 (2011) 118–126

rights of the million of indigenous people and other local formal recognition of tenure. The Indian Constitution49
communities living in tropical rainforests.44 If they and local includes both fundamentally protected rights and Directive
communities wish to claim some sort of forest tenure then Principles of State Policy.50 These Directive Principles are
they will need to base it on something other than ‘land’ tenure. not legally enforceable yet they serve to articulate the
It is proposed here that the concept of ‘resource’ tenure aspirations of the nation, and courts may have regard to
provides an appropriate avenue for identifying forest tenure in them as an aid to statutory and constitutional interpreta-
publicly owned forests. tion. In Tellis & others v Bombay Municipal Council & others51
the respondent had sought to evict pavement and slum
3.2. ‘Resource’ tenure dwellers (‘squatters’) in the city of Bombay and in the
process had demolished their dwellings. Relying on Article
The predominance of state ownership of tropical forests 21 of the Constitution, which provides that ‘No person shall
means that frameworks for REDD+ at the international and be deprived of his life or personal liberty except according to
domestic levels, must acknowledge that the rights of indige- the procedure established by law’, the petitioners argued
nous people and local communities arise predominantly as a that their ‘right to life’ had been infringed. The court held
result of ‘resource’ tenure. This is more consistent, from a that since the eviction of pavement and slum dwellers
legal perspective, with the majority of forest tenure reforms would lead, in a vicious cycle, to the deprivation of their
which rarely transfer the full bundle of rights to ‘access, sell or employment this would infringe the right to life which
otherwise alienate, manage, withdraw resources and exclude included the ‘right to livelihood.’52
others’ access, use, management and exclusion rights.’45 More The Indian Supreme Court relied on Article 39a of the
typically, the state retains or restricts alienation rights while Constitution, which is a Directive Principle of State Policy. It
recognising the rights of indigenous peoples and local provides that ‘the State shall, in particular, direct its policy
communities to use and even co-manage forest resources.46 towards securing that the citizens, men and women equally,
Indeed, the author suggests that the categorisation of 18% of have the right to an adequate means of livelihood.’ The Court
forests, mentioned earlier, as being privately owned, might also relied on Article 41, another Directive Principle, which
need to be revisited if the rights are conferred by statutes provides, inter alia, that ‘the State shall, within the limits of
which reserve to the state ultimate ownership of the forests. its economic capacity and development, make effective
Perhaps the closest one can come to a legal definition of provision for securing the right to work in cases of
‘resource’ tenure is the civil law notion of the right of usufruct. unemployment and of undeserved want.’ Furthermore,
This is ‘the right of reaping the fruits ( fructus) of things Article 37 of the Constitution provides that the Directive
belonging to others, without destroying or wasting the subject Principles, though not enforceable by any court, are
over which such right extended.47 Can indigenous peoples and nevertheless ‘fundamental in the governance of the coun-
local communities who exercise such rights claim that they try.’ Given this, the Court held that ‘[i]f there is an obligation
have enforceable rights of tenure over the resources of the upon the State to secure to the citizens an adequate means of
forests in which they live – and ultimately property rights to livelihood and the right to work, it would be sheer pedantry
the carbon sequestered in those forests. It is here that one to exclude the right to livelihood from the content of the
reverts to the theory of property law that ‘every claim of right to life.’53
‘‘property’’ comprises the assertion of some quantum of
socially approved power as exercisable in respect of some
socially valued resource.’48 It may be that those exercising 4. From tenure to proprietorial rights over
‘resource’ tenure rights are able to assert that the power which carbon
they exercise over socially valued forestry resources is socially
approved in which case they have property rights over the What cannot be avoided is the conclusion that references to
carbon rights in forests where they have ‘resource’ tenure. ‘land’ tenure, ‘resource’ tenure or ‘the rights and interests’ of
The Indian Supreme Court jurisprudence is helpful to those people revert essentially to some sort of proprietorial rights to
who may be regarded as living illegally or ‘squatting’ in forest carbon.
tropical rainforests and using forest resources without any It is not a simple task to identify what amounts to ‘property’
in forest carbon. This is so for a number of reasons not the
44 least of which is that in trying to craft a definite legal answer to
In the World Bank estimates that 800 million people live in or
around vulnerable forests or woodlands and depend heavily on this issue, one realises that REDD+ schemes are multi-
them for survival; see http://web.worldbank.org/WBSITE/EXTER- jurisdictional where either common law54 or civil law55
NAL/NEWS/0,,con-
tentMDK:21096487pagePK:64257043piPK:437376theSiteP-
49
piPK:437376theSitePK:4607,00.html (viewed 18 September Available at http://lawmin.nic.in/coi/coiason29july08.pdf
2010). (viewed 25 July 2009).
50
45
Barry et al. above n 31, pp. 22–23. The Indian Constitution above n 49, Part IV.
51
46
See Cronkleton P., Barry D., Pulhin J., Saigal S., The Devolution [1985] 2 Supp SCR 51 (India); (1987) LRD (Const) 351 (Supreme
of Management Rights and the Co-Management of Community Court of India).
52
Forests’, in Larson et al. above n 5, p. 45. Above n 51, para 21.
47 53
Burke, J., 1977. Jowitt’s Dictionary of English Law. 2nd edition. Above n 51, para 33.
54
Sweet & Maxwell, p. 1844. All former British colonies, for example.
48 55
Gray and Gray above n 39, p. 90. All former Dutch, French and other continental colonies.
environmental science & policy 14 (2011) 118–126 123

predominate, and where the constitutions of former colo- land means a right conferred on a person by agreement or
nies56 may now include the protection of fundamental legal otherwise to the legal, commercial or other benefit (whether
rights either by way of a Bill of Rights or Directives of State present or future) of carbon sequestration by any existing or
Principle.57 We are then left to try to resolve the question of future tree or forest on the land after 1990.’ The Act amends
‘property’ in carbon according to first principles about the the Conveyancing Act 1919 (NSW) to recognise that rights
notion of property. associated with carbon sequestrated by trees and forests from
Gray and Gray remind one that ‘few concepts are quite so the atmosphere may be a species of forestry right.
fragile, so elusive or so frequently misused as the notion of
property,58 and that one should not think of property as a
‘thing but a power relationship’59 which allows a person, or 5. Transparency and governance structures:
a community, ‘to assert a significant degree of control over institutional capacity to assert REDD+ rights
that resource.’ The law of property meanwhile incorporates
‘a series of critical value judgements, reflecting the cultural Although this article asserts that indigenous peoples and local
norms, the social ethics and the political economy prevalent communities have property rights over the carbon seques-
in any given community’60 while the ‘limits of property are tered in forests, these rights are ineffectual without the
the ‘‘interfaces between accepted and unaccepted social institutional capacity to claim, and fully utilise, them.66 The
claims’’.’61 Consequently, ‘every claim of ‘‘property’’ com- same may be said with respect to the REDD+ safeguards
prises the assertion of some quantum of socially approved contained in the Advance Negotiating Text.
power as exercisable in respect of some socially valued From a legal and governance perspective, transparency,
resource.’62 Importantly, the common law has no concept of openness and accountability in government are facilitated by
‘absolute title, property or ownership’ and the quantum of four key pillars: access to information; access to legal remedies
property which anyone has in a resource can be measured before courts and tribunals; the right to participate in
on a sliding scale,63 and somewhere along that spectrum a government decision-making; and access to an independent
right will be regarded as having sufficient ‘gravamen to Ombudsman,67 or Public Protector,68 who investigates
qualify for the appellation proprietary.’64 The difficulty with instances of maladministration in government agencies.
this approach is that the identification of proprietary rights Yet it must be acknowledged that these institutions are
might be ‘more instinctive than principled.’65 typical of western democracies and may still be emerging in
Nevertheless, upon this analysis, it would seem that many tropical rainforest countries, although there is no doubt
indigenous peoples and local communities living in tropical that a strong civil society is recognised as an important
rainforests exercise ‘a significant degree of control’ over contributor to both launching and sustaining a transition from
either forest land or resources and consequently might be authoritarian to democratic governance.69 Also, it is necessary
regarded as having proprietary rights over the forest carbon. to recognise that the enforcement of forestry laws, and
The New South Wales government in Australia was the first consequently the protection of any forestry rights, has been
to recognise the necessity of separating the carbon sequestra- severely compromised in tropical rainforest countries. Corrup-
tion right that would otherwise be intrinsically embodied in tion in the forestry sector is widespread resulting in forestry
the property right to a tree or forest. This separation was resources being accessed illegally. The main three drivers for
regarded as necessary to allow for the carbon sequestration this are: agricultural expansion; illegal logging and demand for
right to be traded free from the tree or forest itself. wood as a domestic fuel where few other energy options are
Consequently, the government created a separate legal right available.70 Illegal practices and bureaucratic corruption often
under the Carbon Rights Legislation Amendment Act 1998 (NSW). do not come to the attention of the public, the press, or the more
The legislation recognises that a carbon credit derived from reputable elements of forest agencies because forest regions
the planting of forests needs to be identifiable as a legal entity tend to be remote and sparsely populated. Understaffed and
separate from the tree itself. The Act defines carbon underfunded forest agencies further complicate the enforce-
sequestration and a carbon sequestration right as follows: ment task.71 Given this, unless legal rights are respected and
‘carbon sequestration by a tree or forest means the process by
which the tree or forest absorbs carbon dioxide from the 66
Dahal, G., Adhikari, K., 2008. Trends and impact of forest tenure
atmosphere, and a carbon sequestration right in relation to
reforms in asia: cases from India, Indonesia, Lao PDR, Nepal and the
Philippines. Journal of Forests and Livelihood, 7(1), 20.
67
56 See for example in Australia the Ombudsman Act 1976 (Cth).
For example, India, Pakistan, and the Philippines.
57
Available at http://www.austlii.edu.au/au/legis/cth/consol_act/
These are aspirational goals which may be relied upon by
oa1976114/ (viewed 28 May 2010).
Supreme Courts to interpret other rights such as the fundamen- 68
For information about the South African Public Protector see
tally protected ‘right to life’.
58
http://www.publicprotector.org/ (viewed 28 May 2010).
Gray and Gray above n 39, p. 86. 69
59
See Antlov, H., Brinkerhoff, H., Rapp, E., 2008. Civil Society
Gray and Gray above n 39, p. 87.
60
Organizations and Democratic Reform: Progress, Capacities and
Gray and Gray above n 39, p. 88. Challenges in Indonesia. RTI International. Available at http://
61
Gray and Gray above n 39, p. 88. www.rti.org/publications/abstract.cfm?pub=12222 (viewed 31
62
Gray and Gray above n 39, p. 90. May 2010).
63 70
Gray and Gray above n 39, p. 90. Brown, M.L., 2010. Limiting corrupt incentives in a global REDD
64
Gray and Gray above n 39, p. 95. regime. Ecology Law Quarterly, 37(237), 253.
65 71
Gray and Gray above n 39, p. 95. Brown, ML. above n 70 at 254.
124 environmental science & policy 14 (2011) 118–126

legal responsibilities are enforced, the recognition of property writing to government agencies and a dedicated officer is
rights in forest carbon might have no force and effect.72 appointed within the agency to comply with requests. FOI
Be that as it may, Global Witness has recently released a set legislation often contains exemptions which allow agencies to
of Transparency Indicators 2009 for making the forest sector refuse requests such as ‘commercial in confidence’ or if it
transparent. Three of these Indicators will be discussed here would affect ‘law enforcement and public safety.’76 Where
including: transparency norms, legal standing and transpar- requests for information are refused, an internal appeal
ent access to decision-making. process is often established within the government agency
itself, with further rights of appeal being available to an
5.1. International law and transparency indicators independent tribunal which can overrule the agency’s refusal
to grant the request for information.77
One of the most comprehensive International Law instru- Evidence that FOI legislation is being taken seriously in new
ments on transparency is the Convention on Access to Informa- democracies emerges with the enactment in Indonesia of the
tion, Public Participation in Decision-Making and Access to Justice in Openness of Public Information Act78 due to come into effect on 30
Environmental Matters, which was adopted on 25th June 1998 in April 2010, although the delay in publishing a government
the Danish city of Aarhus, (the Aarhus Convention).73 The regulation on exemptions to the law makes its start date
Convention is only binding on countries in Europe. However, it uncertain.79 The exemptions are likely to relate to defense and
is one of the most comprehensive articulations of what a security issues, business deals and diplomatic negotiations,
transparency ‘package’ encompasses. The Convention: links while penalties for refusing to disclose information include a
environmental rights and human rights; establishes that prison sentence of one year and fines of up to Rp 5 million
sustainable development can be achieved only through the (US$540).80 The concern here is that REDD+ concessions to
involvement of all stakeholders; links government account- private companies might be regarded as ‘business deals’
ability and environmental protection; and focuses on inter- which are exempt from FOI requests. No doubt the regulations
actions between the public and public authorities in a will clarify this.
democratic context.74 Specifically, it requires all Parties to Although Global Witness does not specifically mention an
‘endeavour to ensure that officials and authorities assist and Ombudsman or Public Protector, this is an additional
provide guidance to the public in seeking access to informa- transparency institution that might be considered in the
tion, in facilitating participation in decision-making and in context of REDD+. Generally, this office provides one of the
seeking access to justice in environmental matters.’75 most inexpensive and informal accountability mechanisms to
Meanwhile, Principle 10 of the Rio Declaration emphasises people aggrieved by maladministration in government. An
the importance of participation and access to judicial affected individual simply contacts the office to lodge a
proceedings and effective remedies. complaint. The Ombudsman then conducts an investigation,
has open access to government agency offices, documents and
5.2. Transparency norms records, and attempts to resolve the dispute between the
individual and the agency. The Ombudsman might make
According to Global Witness, with regard to transparency recommendations to the agency. The Ombudsman final
norms, the following questions need to be asked: Is there a sanction is the lodging of a report in Parliament which
Freedom of Information Act? What other rules provide for exposes the instance of maladministration in the government
transparency? Are there any sector specific laws/rules/state- agency. The flexibility and informality of procedures offered
ments that provide for transparency? Is there any settlement by such an office has obvious benefits in the context of REDD+.
process for disputes regarding to access to information?
The value of Freedom on Information (FOI) legislation is 5.3. Legal standing
that those impacted by government decision-making can be
fully informed about the government’s actions. Without this Legal standing is the term used to describe permission,
information it is difficult for people to exercise their rights and granted either by the courts or statute, to appear before the
make informed choices. With respect to REDD+, it is essential courts in order to litigate. In the context of REDD+ rights
for indigenous peoples and local communities to be able to against government, it is the right to bring an action against
access information about: where REDD+ sites will be estab- the government challenging the legality of its decision-
lished; who will manage the sites; how they will be impacted making. This is known as an application for judicial review
by the establishment of sites and the legal obligations which and in most cases will test whether a government decision-
they will have within the sites; what financial benefits will be
distributed for managing REDD+ sites; and, importantly, what
76
financial benefits they are likely to receive. In most instances, See, for example, Schedule 1 of the Freedom of Information Act
under FOI legislation, requests for information are made in 1989 (NSW). Available at http://www.austlii.edu.au/au/legis/nsw/
consol_act/foia1989222/sch1.html (viewed 28 May 2010).
77
Above n 76, s. 53 available at http://www.austlii.edu.au/au/
72
Takacs, D., 2009. Forest Carbon: Law + Property Rights (Conser- legis/nsw/consol_act/foia1989222/s53.html (viewed 28 May 2010).
vation International), p. 23. 78
Law No. 14 Year 2008.
73 79
Available at http://www.unece.org/env/pp/documents/ Maulia, E., Tampubolon, H., 2010. Government not ready for
cep43e.pdf (viewed on 28 May 2010). information law rollout. The Jakarta Post, Friday 30 April 2010 at 1.
74 80
See http://www.unece.org/env/pp/ (viewed 28 May 2010). Maulia E., Tampubolon H., ‘Government not ready for infor-
75
Above n 73 Art. 3(2). mation law rollout’ The Jakarta Post, Friday 30 April 2010 at 1.
environmental science & policy 14 (2011) 118–126 125

maker has acted consistently with the legislation enacted by demonstrated, a lack of standing can mean that challenges to
the Parliament – such as forestry legislation. In some government decision-making around REDD+ cannot be
jurisdictions, governments provide an additional right to advanced before the courts. Meanwhile with respect to
citizens by establishing administrative tribunals. These accessing international dispute resolution bodies, the Perma-
tribunals do not test the legality of decision but the nent Forum on Indigenous Issues calls for indigenous peoples
correctness. In other words, applicants will argue that the to be better equipped to defend their rights using the
government’s decision, say to grant a logging permit, or to complaint mechanisms of United Nations Treaty Bodies,
establish a REDD+ site, is wrong. The tribunal then has the other intergovernmental bodies such as the Organization of
authority to ‘step into the shoes’ of the government decision- American States and the African Commission on Human and
maker, reassess all the facts, call for new evidence, and either Peoples’ Right. The list includes the grievance bodies of
confirm the decision, or substitute it with its own preferred multilateral development banks, such as the World Bank and
decision. Asian Development Banks, and in particular its inspections
Many arguments have been advanced for why courts have panels and the ombudsman of the International Finance
the right to determine who can bring a legal action such as not Corporation.84
wanting to open ‘the floodgates’ of litigation, or not wanting to
give a forum to ‘vexatious litigants’ and ‘busy bodies.’ In other 5.4. The need for the full and effective participation of
words, courts have wanted to ensure that litigants have a indigenous peoples and local communities: transparent access
direct personal interest in the subject matter of the litigation. to decision-making
In the context of REDD+, it would be necessary to investigate
rights of standing in each tropical rainforest country in order The right, and perhaps even the duty, to participate in
to assess the standing of indigenous peoples and local government decision-making is well established in the
communities to assert their rights. It seems likely that they literature.85 As will be remembered, the REDD+ Advance
would have no difficulty establishing that they are directly Negotiating Text itself requires respect for the knowledge and
impacted by government action in forests. rights of indigenous peoples and members of local communi-
More problematic is the question whether public interest ties; and the need for the full and effective participation of
actions are permitted. These are when a public interest law relevant stakeholders, including, in particular indigenous
firm, non-governmental organisations, or individual seeks to peoples and local communities. Global Witness states that
bring an action on behalf of those unable to represent some of the key questions to be asked are: Is there a national
themselves, or simply on behalf of their own members which forest forum? Are there local forest forums? Is there a
seek to protect the world’s forests, or because the individual procedure for consultation on new norms? Is there an
seeks to right a public wrong. In Australia, for example, the established list of stakeholders? Are reports on consultation
lead environmental non-governmental organisation, the processes public?
Australian Conservation Foundation, was found by the High Although these are key questions, they are linked intrinsi-
Court of Australia to lack standing to bring a public interest cally to forest tenure reform in landscapes which are often
action challenging government decision-making since it had composed of ‘multiple stakeholders, competing interest
only an ‘intellectual and emotional’ concern about the issue.81 groups and distinct public agencies holding rights and
Legislation has since been enacted at both the Common- claiming control over land and forest resources. The transfer
wealth82 and State levels to ameliorate the situation. In the of rights is further complicated because it is multifaceted,
state of New South Wales, ‘any person may bring proceedings involving different types of tenure systems and rights
in the Court for an order to remedy or restrain a breach of this bundles.’86 Under forest tenure reform, rights are often
Act, whether or not any right of that person has been or may be transferred to community-level stakeholders who provide
infringed by or as a consequence of that breach.’83 This is one detailed local knowledge essential to good forestry manage-
of the most liberal standing provisions anywhere in the world, ment. Co-management rights are often granted giving rights-
and is replicated in all environmental legislation in New South holders decision-making power. Essentially, legislation
Wales. passed to facilitate participation need to identify: ‘who
Ultimately, it is a matter for the courts and Parliament in participates in management and how they participate; which
each tropical rainforest jurisdiction to determine what the resources will be managed and how; and who benefits from
standing provisions are. However, as this discussion has management and how.’87
All of this ought to be set out in specific forestry legislation
81
See Australian Conservation Foundation v Commonwealth (1980) which moves ‘transparent access to decision-making’ from an
146 CLR 493. abstract concept to an established right on the part of
82 indigenous peoples and local communities. Indeed, as the
Administrative Decisions Judicial Review Act 1977 (Cth) s. 5 states
that ‘A person who is aggrieved by a decision to which this Act Permanent Forum on Indigenous Peoples has asserted ‘[t]he
applies that is made after the commencement of this Act may full involvement of indigenous peoples and other forest-
apply to the Federal Court or the Federal Magistrates Court for an
order of review in respect of the decision.’ The phrase ‘a person
84
who is aggrieved’ has been interpreted more liberally than was the Above n 7 at 18.
85
case in Australian Conservation Foundation v Minister. See, <fn0425>for example, Sunstein, C., 1988. Beyond the
83
Environmental Planning and Assessment Act 1979 (NSW) s. 123. Republican revival. Yale Law Review, 97, 1538.
86
Available at http://www.austlii.edu.au/au/legis/nsw/consol_act/ Conkleton et al. above n 46, p. 44.
87
epaaa1979389/s123.html (viewed 28 May 2010). Conkleton et al. above n 46, pp. 46–47.
126 environmental science & policy 14 (2011) 118–126

dwelling peoples is needed in the design, implementation, including references to the rights of indigenous peoples, and
monitoring, measure, reporting, verification, and avaluation local communities, the implementation of these rights
processes of REDD-plus. Transparency and coordination requires clarity with respect to the type of tenure which
among the different players should be ensured.’88 grants property rights in forest carbon. In addition, the rights
What cannot be ignored, however, is that effective rights of cannot be simply asserted without undertaking a detailed
participation in REDD+ decision-making will depend in large legal analysis of transparency norms, legal standing and
measure on the political space and freedom that civil society transparent access to decision-making in each tropical
enjoys in any given jurisdiction. There is evidence that rainforest country. Generic aspirational statements made
international donors have targeted civil society strengthening in the Advance Negotiating Text only takes the rights of
as integral to realigning state-society relations so as to expand indigenous peoples and local communities rights so far. Any
citizen participation and reinforce state responsiveness and REDD+ Text emerging from Cancun needs to clearly articu-
accountability.89 Evidence in Indonesia, for example, is that over late the type of legal tenure which indigenous peoples and
the past ten years the number of civil society organisations has local communities hold. The Text should also require:
grown dramatically as democratisation has created the space Freedom of Information legislation; the establishment of
for them to establish rights and mechanisms of accountability. an Ombudsman; and rights of legal standing. Individual
Regional autonomy and decentralisation have enhanced these tropical rainforest countries must then commit themselves
opportunities.90 Yet prominent civil society leaders still lament to the type of legal and governance reforms that have been
the fact that ‘the guardians of justice are corrupt’ so that the alluded to here.
transition to democractic consolidation is incomplete.91
Rosemary Lyster is the inaugural Professor of Climate and
Environmental Law at The University of Sydney. She is also
the Director of the Australian Centre for Climate and Environ-
6. Conclusions
mental Law at Sydney Law School, The University of Sydney.
Rosemary is a consultant to the law firm Mallesons Stephen
This article has demonstrated that while the REDD+ Advance Jaques.
Negotiating Text has been regarded as ‘groundbreaking’ for

88
Above n 7, p.18.
89
See Antlov et al. above n 69, p. 1.
90
Antlov et al. above n 69, p. 4.
91
Antlov et al. above n 69, p. 4.