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
climate change by environmental lawyers has focused on
greenhouse gas (GHG) mitigation measures in developed
economies. Yet the issue of deforestation in tropical rainforest
countries is a significant contributor to global climate change
and deserves the attention of legal scholars. Deforestation,
especially in the tropics, contributes around 14% of annual
global greenhouse gas (GHG) emissions.
Although the Copenhagen Accord1 is not a legally binding
international instrument, it acknowledges the crucial role of
Reducing Emissions from Deforestation and Degradation and
the need to enhance removals of greenhouse gas emission by
forests. This includes the role of conservation, sustainable
management of forests and enhancement of forest carbon
stocks in developing countries (REDD+). Parties to the Accord
agreed on the need to immediately mobilise financial
resources from developed countries for REDD+.2
One of the crucial questions which emerges in the context of
REDD+ is how the rights of indigenous peoples and local
communities will be protected. A recent review of REDD+ related
legislation and institutional arrangements in Ghana, Guyana,
Indonesia, Panama and Suriname indicates that protecting the
rights of indigenous peoples and local communities is an aspect
of REDD+ which requires far greater attention.3
These rights include the rights of sharing in the financial
benefits of REDD+, the rights to participate in decision-making
around REDD+ schemes, and the rights to have their knowledge
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
on the extent to which they have some sort of claim to, or tenure
over, tropical rainforests, although in many countries the spirit
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
legal title compared with other statutory rights. Without
adequate protections, there are concerns that indigenous
peoples’ and local communities’ livelihoods, access to resources
and other rights, such as cultural rights, will be disrupted where
deforestation is substantially reduced or halted.4 Indigenous
people face the risk that governments will ‘zone’ forests thereby
creating protected areas, biological corridors, forest reserves and
sustainable forest management zones. Governments might then
grant state-authorised forest concessions to manage these
forests, prohibit community use of forestry resources, or evict
indigenous peoples and communities from parks or protected
areas,5 while also recentralising forest governance.6 Secondly,
there are concerns that insecure tenure may itself promote
deforestation as resource users clear forests in order to show
occupation where land claims are contested.
On 24 April 2009, the Anchorage Declaration7 was adopted
which sets out indigenous peoples’ demands on Member States
and the United Nations Framework Convention on Climate Change
(UNFCCC), as well as a road map towards the Copenhagen
Summit and beyond. Analysing the outcomes of the Copenhagen
Accord, the Permanent Forum on Indigenous Issues of the United
Nations Economic and Social Council finds that the REDD+ draft
decision negotiated during Copenhagen is ‘groundbreaking.’
Although countries are not obliged to implement the REDD+
safeguards, the draft decision is the only document emanating
from UNFCCC negotiations which contains reference to the
rights of indigenous people and the United Nations Declaration on
the Rights of Indigenous Peoples. It also recognised the need to
ensure indigenous peoples’ full and effective engagement and
the importance of their traditional knowledge.8 This acknowl-
4
Griffiths, T. ‘Seeing ‘RED?’ Avoided deforestation and the rights
of Indigenous Peoples and local communities’ (Forest Peoples
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
global south. In: Larson, A., Barry, D., Dahal, G., Colfer, C. (Eds.),
Forests for People: Community Rights and Forest Tenure Reform,
Earthscan, London, Washington, DC, p. 5.
6
See Phelps, J., Webb, E.L., Agrawal, A., 2010. Does REDD+ threat-
en to recentralize forest governance? Science, 328(5976), 312–313.
doi:10.1126/science.1187774.
7
E/C. 19/2009/CRP.9 cited by Results of the Copenhagen meeting of
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
Issues, United Nations Economic and Social Council: April 2010) ;
see E/C. 19/2010/18 available at http://www.un.org/esa/socdev/
unpfii/documents/E.C.19.2010.18EN.pdf (viewed 31 May 2010).
8
Results of the Copenhagen meeting of the Conference of the
Parties to the United Nations Framework Convention on Climate
Change; implications for indigenous peoples’ local adaptation and
mitigation measures (Permanent Forum on Indigenous Issues,
United Nations Economic and Social Council: April 2010), p.9;
see E/C. 19/2010/18 available at http://www.un.org/esa/socdev/
unpfii/documents/E.C.19.2010.18EN.pdf (viewed 31 May 2010).
119
edgement has been carried forward in the negotiations post-
Copenhagen.
1. The Advance Version of the REDD+
Negotiating Text
The Advance Version9 of a Negotiating Text provided by the Ad
Hoc Working Group on Long-term Cooperative Action under
the Convention (AWG-LCA), for its tenth session in Bonn from
1 to 11 June 2010 (the Advance Negotiating Text), includes
important provisions relating to indigenous peoples and local
communities.10
The Advance Negotiating Text states that when Parties
undertake REDD+ activities certain safeguards should be
promoted and advanced including: the importance of
transparency and effective national forest governance
structures; respect for the knowledge and rights of indige-
nous peoples and members of local communities; and the
need for the full and effective participation of relevant
stakeholders, including, in particular indigenous peoples
and local communities. Relevant international obligations
and national circumstances and laws should be taken into
account, while the text notes that the General Assembly has
adopted the United Nations Declaration on the Rights of
Indigenous Peoples.
Furthermore, Parties are requested when developing their
national strategies or action plans to address land tenure issues,
ensuring the full and effective participation of indigenous
peoples and local communities.11
The primary focus of this article is rights of tenure.
However, the assertion of these rights relies upon other
REDD+ safeguards such as transparency, governance and
rights of participation. The author acknowledges at the outset
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
evaluating the existence and protection of such rights in
REDD+ countries.
2. Relevant international law
The international obligations owed to indigenous peoples, and
in some instances the rights of local communities, are to be
found in a number of international environmental legal
instruments including the Rio Declaration on Environment and
Development,12 Agenda 21,13 the United Nations Framework
Convention on Climate Change,14 the Convention on the Conservation
9
Available at http://unfccc.int/resource/docs/2010/awglca10/
eng/06.pdf (viewed 24 May 2010).
10
Above n 9, para 2.
11
Above n 9, para 7.
12
Available at http://www.unep.org/Documents.Multilingual/
Default.asp?documentid=78&articleid=1163 (viewed 24 May 2010).
13
Available at http://www.unep.org/Documents.Multilingual/
Default.asp?documentid=52 (viewed 24 May 2010).
14
Available at http://unfccc.int/resource/docs/convkp/con-
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
emerged from the 1992 United Nations Conference on Environ-
ment and Development (the Rio Conference).
Principle 22 of the Rio Declaration acknowledges that
‘Indigenous people and their communities, and other local
communities, have a vital role in environmental management
and development because of their knowledge and traditional
practices. States should recognise and duly support their
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
for tackling the problems of poverty, development and
environment simultaneously which focus on resources, pro-
duction and people and which considers the role of indigenous
people and local communities in a democratic participatory
process in association with improved governance.17 The
Convention on the Conservation of Biological Diversity requires
countries to respect, preserve and maintain the knowledge,
innovations and practices of indigenous and local communities
embodying traditional lifestyles relevant for the conservation
and sustainable use of biological diversity.18 Meanwhile, the
Forest Principles state that national forest policies should
recognise and duly support the identity, culture and the rights of
indigenous people, their communities and other communities
and forest dwellers. Indigenous people and other communities
should have an economic stake in forest use, perform economic
activities, and achieve and maintain cultural identity and social
organisation, as well as have adequate levels of livelihood and
well-being, through, inter alia, land tenure arrangements which
serve as incentives for the sustainable management of forests.19
Various articles of the United Nations Declaration on the Rights
of Indigenous People20 require states: to prevent any actions
which dispossess indigenous peoples from their land, territo-
ries and resources21; to allow indigenous peoples to participate
in decision-making in matters which would affect their
rights22; and to protect their right to be secure in their means
of subsistence and development.23 Indigenous peoples also
have the right to the lands, territories and resources which
they have traditionally owned, occupied or otherwise used or
acquired.24 Aligned with this are the rights to the conservation
and protection of the environment and the productive
capacity of their lands or territories and resources,25 and
the right to determine and develop priorities and strategies for
their development.26 Many of these rights are replicated and
15
Available at http://www.cbd.int/convention/convention.shtml
(viewed 24 May 2010).
16
Available at http://www.un.org/documents/ga/conf151/
aconf15126-3annex3.htm (viewed 24 May 2010).
17
Art. 3.2.
18
Art. 8(1).
19
Principle 5(a).
20
Available at http://www.un.org/esa/socdev/unpfii/en/
drip.html (viewed 24 May 2010).
21
Above n 20, Arts. 8(b), 19.
22
Above n 20, Art.18.
23
Above n 20, Art.29(1).
24
Above n 20, Art.26.
25
Above n 20, Art.26.
26
Above n 20, Art.26.
extended in the International Labour Organisation Convention
(No. 169) concerning Indigenous and Tribal Peoples in Independent
Countries.27
Clearly then, indigenous peoples and local communities
have a plethora of international law instruments upon which
to rely to assert their rights as enunciated in the Advance
Negotiating Text, albeit that some instruments have limited
signatories.
3. Respect for the rights of indigenous peoples
and members of local communities: forest tenure
and carbon rights in tropical rainforest countries
In order for indigenous peoples and local communities to
claim the rights of benefit sharing in REDD+ projects, they will
need to establish that they have property rights to the carbon
sequestered in tropical rainforests. This claim will need to be
based on the identification of some type of tenure over the
forests. From a legal perspective, it is important to first get
clarity on what ‘land’ tenure means when applied to
indigenous peoples and local communities. The second is to
determine whether the rights of indigenous peoples and
communities over forests depend on ‘land’ tenure, or whether
‘resource’ tenure suffices.28
Existing literature29 uses the terms ‘land’ tenure and
‘resource’ tenure interchangeably, while the Advance
Negotiating Text specifically requests developing countries
to address ‘land tenure issues’ when developing REDD+
strategies and actions plans.30 The author’s concern is that
if ‘land’ tenure cannot be established then the protections
for indigenous peoples and local communities fall away.
3.1. ‘Land’ tenure
Dealing first with the question of ‘land’ tenure, there is an
emerging body of literature31 which questions whether the
liberal notion of individual property rights is appropriate when
applied to indigenous peoples and communities since land
27
Available at http://www.unhchr.ch/html/menu3/b/62.htm
(viewed 27 July 2009). See Part II.
28
See Lyster, R., 2009. The new frontier of climate law: reducing
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
Afterthought. International Institute for Environment and Devel-
opment. Available at http://www.landcoalition.org/pdf/
09_13554IIED.pdf (viewed 23 July 2009); see also White, A., Martin,
A., 2002. Who Owns the World’s Forests? Forest Tenure and Public
Forests in Transition (Forest Trends); Daviet, F., Davis, C., Goers, L.,
Nakooda, S., 2009. Ready or Not: A Review of the World Bank Forest
Carbon Partnership R-Plans and the UN-REDD Joint Program
Documents. World Resources Institute and Barnes, G., Quail, S.,
2004. Property rights to carbon in the context of climate change.
Paper Presented at Conference on Land Governance in Support of
MDGs: Responding to New Challenges.
30
Above n 9, para 7.
31
See Barry, D., Larson, A., Colfer, C., 2010. Forest tenure reform:
an orphan with only uncles. In: Larson, et al. (Eds.), Forests for
People: Community Rights and Forest Tenure Reform. Earthscan,
London, Washington, DC.
 environmental science & policy 14 (2011) 118–126
and/or forests are more likely the subject of community tenure
arrangements. Allied with this is the concern that forest tenure
reform ought not to be confused with ‘land reform’ associated
with land redistribution for the benefit of landless agricultural
workers.32 Meanwhile, concern that the recognition of commu-
nity tenure or common property will result in unrestrained
group resource use is being tempered to some extent by research
which indicates that common property is an institution of self-
governance where participating group members impose limits
on their individual claims.33 Common property is distinguish-
able from individual private property in that it is shared private
property with clear boundaries, rights and management and use
rights. Here, exclusion of non-participating individuals is
crucial, while there is growing evidence that successful
collective management does occur and consensus that common
property is supportive of sustainable resource use.34 So, in the
case of indigenous peoples and local communities, community
tenure, or common property, in forests is the most likely type of
land tenure.
When determining whether forest tenure rights ought to
depend on ‘land’ tenure only, it is salutary to note that the
International Institute for Environment and Development (IIED)
report on tenure in REDD35 states that 77% of the world’s forests
are owned by government.36 The IIED report, even though
slightly outdated given that it relies on 2002 figures, confirms
that state ownership is the predominant type of tenure in
Cameroon (over 97% of land); DRC (all forested areas); Indonesia
(most of the land); and in Malaysia (most forestland). Yet this is
not the case in some countries such as PNG (less the 3% of the
land). In Brazil most land and forests are privately owned, either
individually or collectively, as a result of national legislation.
A 2008 study suggests that only 69% of forests are owned by
government, with 65% administered by government while
another 4% is designated for ‘use’ by indigenous peoples and
local communities. These use rights can be unilaterally
extinguished by government. Eighteen percent of forests are
owned by communities and indigenous peoples, up from 15% in
2002, and 13% owned by private individuals and firms.37 The
distinguishing feature between public and private forest tenure
is whether the rights can be extinguished with or without due
process and compensation.38 This accords with the views of
32
Above n 31, p.21.
33
See Johnson, K., Nelson, K., 2004. Common property and conser-
vation: the potential for effective communal forest management
within a National Pak in Mexico. Human Ecology, 32(6), 706, citing
the work of Ostrom, E., Burger, J., Field, C., Norgaard, R., Policansky,
D., 1999. Revisiting the commons: local lessons, global challenges.
Science, 284, 278 and Ostrom, E., 1999. Self Governance and Forest
Resources (Occasional Paper No. 20, Centre for International Forest-
ry Research), amongst others. See also Meinzen-Dick, R., 2009. Prop-
erty Rights for Poverty Reduction? DESA Working Paper No. 91.
34
Johnson K., Nelson K. above n 33, p. 707.
35
Cotula L., Mayers J. above n 29.
36
Cotula L., Mayers J., p. 11, citing White A., Martin A. above n 29.
37
See Fig. 1 in 2009. Tropical Forest Tenure Assessment: Trends,
Challenges and Opportunities. Rights and Resources Initiative and
International Tropical Timber Organisation, p. 13.
38
Tropical Forest Tenure Assessment: Trends, Challenges and
Opportunities. Rights and Resources Initiative and International
Tropical Timber Organisation, p. 10.
121
distinguished property lawyers Gray and Gray who note that
private ownership of land is legally recognised where
certain irreducible features of property are present. They
are: immunity from summary cancellation or extinguish-
ment; presumptive entitlement to exclude others; and
entitlement to prioritise resources values (to have decisional
control).39
In some countries, customary tenure may be created by
way of statute, such as has occurred recently in Mali,
Mozambique, Tanzania and Uganda.40 In Indonesia, the
Basic Agrarian Law gives legal protection to customary land
rights so long as customary systems still exist and their
exercise is not inconsistent with the national interest and
legislation. This is not to suggest that recognition by statute
is the only way for indigenous peoples and local communi-
ties to assert tenure. There are a number of courts cases
from around the world41 which acknowledge that where a
clan or group has continued to acknowledge the laws and
(so far as practicable) to observe the customs based on the
traditions of that clan or group, through which their
traditional connection with the land has been substantially
maintained, the traditional community title of that clan or
group remains in existence.42
Whether rights are granted by way of statute or judicial
process, holders of customary rights are vulnerable to the
exercise of administrative discretion whereby their rights
may be taken for a public purpose, which can include the
business activities of private corporations or even REDD+.43
This might occur, for example, when logging licences are
granted by a government bureaucracy in violation of
customary rights, or access to forest resources is denied
when forests are subsequently zoned for REDD+ purposes by
Ministerial regulation rather than by statute.
What this discussion indicates is that, globally, indigenous
people and local communities claim private ownership over
only 18% of tropical rainforests. It seems logical to conclude
that this degree of private ‘land’ tenure can scarcely cover the
39
Gray, K., Gray, S., 2009. Elements of Land Law. 5th edition.
Oxford University Press, p. 103.
40
Above n 29, p. 16.
41
See the decision of the Australian High Court in Mabo v
Queensland [1992] HCA 23; (1992) 175 CLR 1. Available at
http://www.austlii.edu.au/au/cases/cth/HCA/1992/23.html
(viewed 27 July 2009); the decision of the South African Consti-
tutional Court in Alexkor Ltd v The Richtersveld Community CCT 19/
03, 14 October 2003. Available at http://www.austlii.edu.au/au/
journals/AILR/2003/41.html#Heading134 (viewed 27 July 2009);
see the decision of the Inter-American Court of Human Rights
in Case of the Suramaka People v Suriname, Inter-American Court
of Human Rights, Series C No. 172, 28 November 2007.
Available at http://www.corteidh.or.cr/docs/casos/articulos/
seriec_172_ing.pdf (viewed 28 May 2010). For a more extensive
discussion of these cases see Lyster, above n 27.
42
Mabo v Queensland [1992] HCA 23 <http://www.austlii.edu.au/
au/cases/cth/HCA/1992/23.html>; (1992) 175 CLR 1 <http://
www.austlii.edu.au/cgi-bin/LawCite?cit=%281992%29%20175%20
CLR%201> at para 66.
43
Mabo v Queensland [1992] HCA 23 <http://www.austlii.edu.au/
au/cases/cth/HCA/1992/23.html>; (1992) 175 CLR 1 <http://
www.austlii.edu.au/cgi-bin/LawCite?cit=%281992%29%20175%20C
LR%201> at para 66.
122 environmental science & policy 14 (2011) 118–126
rights of the million of indigenous people and other local
communities living in tropical rainforests.44 If they and local
communities wish to claim some sort of forest tenure then
they will need to base it on something other than ‘land’ tenure.
It is proposed here that the concept of ‘resource’ tenure
provides an appropriate avenue for identifying forest tenure in
publicly owned forests.
3.2. ‘Resource’ tenure
The predominance of state ownership of tropical forests
means that frameworks for REDD+ at the international and
domestic levels, must acknowledge that the rights of indige-
nous people and local communities arise predominantly as a
result of ‘resource’ tenure. This is more consistent, from a
legal perspective, with the majority of forest tenure reforms
which rarely transfer the full bundle of rights to ‘access, sell or
otherwise alienate, manage, withdraw resources and exclude
others’ access, use, management and exclusion rights.’45 More
typically, the state retains or restricts alienation rights while
recognising the rights of indigenous peoples and local
communities to use and even co-manage forest resources.46
Indeed, the author suggests that the categorisation of 18% of
forests, mentioned earlier, as being privately owned, might
need to be revisited if the rights are conferred by statutes
which reserve to the state ultimate ownership of the forests.
Perhaps the closest one can come to a legal definition of
‘resource’ tenure is the civil law notion of the right of usufruct.
This is ‘the right of reaping the fruits ( fructus) of things
belonging to others, without destroying or wasting the subject
over which such right extended.47 Can indigenous peoples and
local communities who exercise such rights claim that they
have enforceable rights of tenure over the resources of the
forests in which they live – and ultimately property rights to
the carbon sequestered in those forests. It is here that one
reverts to the theory of property law that ‘every claim of
‘‘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
‘resource’ tenure rights are able to assert that the power which
they exercise over socially valued forestry resources is socially
approved in which case they have property rights over the
carbon rights in forests where they have ‘resource’ tenure.
The Indian Supreme Court jurisprudence is helpful to those
who may be regarded as living illegally or ‘squatting’ in
tropical rainforests and using forest resources without any
44
In the World Bank estimates that 800 million people live in or
around vulnerable forests or woodlands and depend heavily on
them for survival; see http://web.worldbank.org/WBSITE/EXTER-
NAL/NEWS/0,,con-
tentMDK:21096487pagePK:64257043piPK:437376theSiteP-
piPK:437376theSitePK:4607,00.html (viewed 18 September
2010).
45
Barry et al. above n 31, pp. 22–23.
46
See Cronkleton P., Barry D., Pulhin J., Saigal S., The Devolution
of Management Rights and the Co-Management of Community
Forests’, in Larson et al. above n 5, p. 45.
47
Burke, J., 1977. Jowitt’s Dictionary of English Law. 2nd edition.
Sweet & Maxwell, p. 1844.
48
Gray and Gray above n 39, p. 90.
formal recognition of tenure. The Indian Constitution49
includes both fundamentally protected rights and Directive
Principles of State Policy.50 These Directive Principles are
not legally enforceable yet they serve to articulate the
aspirations of the nation, and courts may have regard to
them as an aid to statutory and constitutional interpreta-
tion. In Tellis & others v Bombay Municipal Council & others51
the respondent had sought to evict pavement and slum
dwellers (‘squatters’) in the city of Bombay and in the
process had demolished their dwellings. Relying on Article
21 of the Constitution, which provides that ‘No person shall
be deprived of his life or personal liberty except according to
the procedure established by law’, the petitioners argued
that their ‘right to life’ had been infringed. The court held
that since the eviction of pavement and slum dwellers
would lead, in a vicious cycle, to the deprivation of their
employment this would infringe the right to life which
included the ‘right to livelihood.’52
The Indian Supreme Court relied on Article 39a of the
Constitution, which is a Directive Principle of State Policy. It
provides that ‘the State shall, in particular, direct its policy
towards securing that the citizens, men and women equally,
have the right to an adequate means of livelihood.’ The Court
also relied on Article 41, another Directive Principle, which
provides, inter alia, that ‘the State shall, within the limits of
its economic capacity and development, make effective
provision for securing the right to work in cases of
unemployment and of undeserved want.’ Furthermore,
Article 37 of the Constitution provides that the Directive
Principles, though not enforceable by any court, are
nevertheless ‘fundamental in the governance of the coun-
try.’ Given this, the Court held that ‘[i]f there is an obligation
upon the State to secure to the citizens an adequate means of
livelihood and the right to work, it would be sheer pedantry
to exclude the right to livelihood from the content of the
right to life.’53
4. From tenure to proprietorial rights over
carbon
What cannot be avoided is the conclusion that references to
‘land’ tenure, ‘resource’ tenure or ‘the rights and interests’ of
people revert essentially to some sort of proprietorial rights to
forest carbon.
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
least of which is that in trying to craft a definite legal answer to
this issue, one realises that REDD+ schemes are multi-
jurisdictional where either common law54 or civil law55
49
Available at http://lawmin.nic.in/coi/coiason29july08.pdf
(viewed 25 July 2009).
50
The Indian Constitution above n 49, Part IV.
51
[1985] 2 Supp SCR 51 (India); (1987) LRD (Const) 351 (Supreme
Court of India).
52
Above n 51, para 21.
53
Above n 51, para 33.
54
All former British colonies, for example.
55
All former Dutch, French and other continental colonies.
 environmental science & policy 14 (2011) 118–126
predominate, and where the constitutions of former colo-
nies56 may now include the protection of fundamental legal
rights either by way of a Bill of Rights or Directives of State
Principle.57 We are then left to try to resolve the question of
‘property’ in carbon according to first principles about the
notion of property.
Gray and Gray remind one that ‘few concepts are quite so
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
a community, ‘to assert a significant degree of control over
that resource.’ The law of property meanwhile incorporates
‘a series of critical value judgements, reflecting the cultural
norms, the social ethics and the political economy prevalent
in any given community’60 while the ‘limits of property are
the ‘‘interfaces between accepted and unaccepted social
claims’’.’61 Consequently, ‘every claim of ‘‘property’’ com-
prises the assertion of some quantum of socially approved
power as exercisable in respect of some socially valued
resource.’62 Importantly, the common law has no concept of
‘absolute title, property or ownership’ and the quantum of
property which anyone has in a resource can be measured
on a sliding scale,63 and somewhere along that spectrum a
right will be regarded as having sufficient ‘gravamen to
qualify for the appellation proprietary.’64 The difficulty with
this approach is that the identification of proprietary rights
might be ‘more instinctive than principled.’65
Nevertheless, upon this analysis, it would seem that
indigenous peoples and local communities living in tropical
rainforests exercise ‘a significant degree of control’ over
either forest land or resources and consequently might be
regarded as having proprietary rights over the forest carbon.
The New South Wales government in Australia was the first
to recognise the necessity of separating the carbon sequestra-
tion right that would otherwise be intrinsically embodied in
the property right to a tree or forest. This separation was
regarded as necessary to allow for the carbon sequestration
right to be traded free from the tree or forest itself.
Consequently, the government created a separate legal right
under the Carbon Rights Legislation Amendment Act 1998 (NSW).
The legislation recognises that a carbon credit derived from
the planting of forests needs to be identifiable as a legal entity
separate from the tree itself. The Act defines carbon
sequestration and a carbon sequestration right as follows:
‘carbon sequestration by a tree or forest means the process by
which the tree or forest absorbs carbon dioxide from the
atmosphere, and a carbon sequestration right in relation to
56
For example, India, Pakistan, and the Philippines.
57
These are aspirational goals which may be relied upon by
Supreme Courts to interpret other rights such as the fundamen-
tally protected ‘right to life’.
58
Gray and Gray above n 39, p. 86.
59
Gray and Gray above n 39, p. 87.
60
Gray and Gray above n 39, p. 88.
61
Gray and Gray above n 39, p. 88.
62
Gray and Gray above n 39, p. 90.
63
Gray and Gray above n 39, p. 90.
64
Gray and Gray above n 39, p. 95.
65
Gray and Gray above n 39, p. 95.
123
land means a right conferred on a person by agreement or
otherwise to the legal, commercial or other benefit (whether
present or future) of carbon sequestration by any existing or
future tree or forest on the land after 1990.’ The Act amends
the Conveyancing Act 1919 (NSW) to recognise that rights
associated with carbon sequestrated by trees and forests from
the atmosphere may be a species of forestry right.
5. Transparency and governance structures:
institutional capacity to assert REDD+ rights
Although this article asserts that indigenous peoples and local
communities have property rights over the carbon seques-
tered in forests, these rights are ineffectual without the
institutional capacity to claim, and fully utilise, them.66 The
same may be said with respect to the REDD+ safeguards
contained in the Advance Negotiating Text.
From a legal and governance perspective, transparency,
openness and accountability in government are facilitated by
four key pillars: access to information; access to legal remedies
before courts and tribunals; the right to participate in
government decision-making; and access to an independent
Ombudsman,67 or Public Protector,68 who investigates
instances of maladministration in government agencies.
Yet it must be acknowledged that these institutions are
typical of western democracies and may still be emerging in
many tropical rainforest countries, although there is no doubt
that a strong civil society is recognised as an important
contributor to both launching and sustaining a transition from
authoritarian to democratic governance.69 Also, it is necessary
to recognise that the enforcement of forestry laws, and
consequently the protection of any forestry rights, has been
severely compromised in tropical rainforest countries. Corrup-
tion in the forestry sector is widespread resulting in forestry
resources being accessed illegally. The main three drivers for
this are: agricultural expansion; illegal logging and demand for
wood as a domestic fuel where few other energy options are
available.70 Illegal practices and bureaucratic corruption often
do not come to the attention of the public, the press, or the more
reputable elements of forest agencies because forest regions
tend to be remote and sparsely populated. Understaffed and
underfunded forest agencies further complicate the enforce-
ment task.71 Given this, unless legal rights are respected and
66
Dahal, G., Adhikari, K., 2008. Trends and impact of forest tenure
reforms in asia: cases from India, Indonesia, Lao PDR, Nepal and the
Philippines. Journal of Forests and Livelihood, 7(1), 20.
67
See for example in Australia the Ombudsman Act 1976 (Cth).
Available at http://www.austlii.edu.au/au/legis/cth/consol_act/
oa1976114/ (viewed 28 May 2010).
68
For information about the South African Public Protector see
http://www.publicprotector.org/ (viewed 28 May 2010).
69
See Antlov, H., Brinkerhoff, H., Rapp, E., 2008. Civil Society
Organizations and Democratic Reform: Progress, Capacities and
Challenges in Indonesia. RTI International. Available at http://
www.rti.org/publications/abstract.cfm?pub=12222 (viewed 31
May 2010).
70
Brown, M.L., 2010. Limiting corrupt incentives in a global REDD
regime. Ecology Law Quarterly, 37(237), 253.
71
Brown, ML. above n 70 at 254.
124 environmental science & policy 14 (2011) 118–126
legal responsibilities are enforced, the recognition of property
rights in forest carbon might have no force and effect.72
Be that as it may, Global Witness has recently released a set
of Transparency Indicators 2009 for making the forest sector
transparent. Three of these Indicators will be discussed here
including: transparency norms, legal standing and transpar-
ent access to decision-making.
5.1. International law and transparency indicators
One of the most comprehensive International Law instru-
ments on transparency is the Convention on Access to Informa-
tion, Public Participation in Decision-Making and Access to Justice in
Environmental Matters, which was adopted on 25th June 1998 in
the Danish city of Aarhus, (the Aarhus Convention).73 The
Convention is only binding on countries in Europe. However, it
is one of the most comprehensive articulations of what a
transparency ‘package’ encompasses. The Convention: links
environmental rights and human rights; establishes that
sustainable development can be achieved only through the
involvement of all stakeholders; links government account-
ability and environmental protection; and focuses on inter-
actions between the public and public authorities in a
democratic context.74 Specifically, it requires all Parties to
‘endeavour to ensure that officials and authorities assist and
provide guidance to the public in seeking access to informa-
tion, in facilitating participation in decision-making and in
seeking access to justice in environmental matters.’75
Meanwhile, Principle 10 of the Rio Declaration emphasises
the importance of participation and access to judicial
proceedings and effective remedies.
5.2. Transparency norms
According to Global Witness, with regard to transparency
norms, the following questions need to be asked: Is there a
Freedom of Information Act? What other rules provide for
transparency? Are there any sector specific laws/rules/state-
ments that provide for transparency? Is there any settlement
process for disputes regarding to access to information?
The value of Freedom on Information (FOI) legislation is
that those impacted by government decision-making can be
fully informed about the government’s actions. Without this
information it is difficult for people to exercise their rights and
make informed choices. With respect to REDD+, it is essential
for indigenous peoples and local communities to be able to
access information about: where REDD+ sites will be estab-
lished; who will manage the sites; how they will be impacted
by the establishment of sites and the legal obligations which
they will have within the sites; what financial benefits will be
distributed for managing REDD+ sites; and, importantly, what
financial benefits they are likely to receive. In most instances,
under FOI legislation, requests for information are made in
72
Takacs, D., 2009. Forest Carbon: Law + Property Rights (Conser-
vation International), p. 23.
73
Available at http://www.unece.org/env/pp/documents/
cep43e.pdf (viewed on 28 May 2010).
74
See http://www.unece.org/env/pp/ (viewed 28 May 2010).
75
Above n 73 Art. 3(2).
writing to government agencies and a dedicated officer is
appointed within the agency to comply with requests. FOI
legislation often contains exemptions which allow agencies to
refuse requests such as ‘commercial in confidence’ or if it
would affect ‘law enforcement and public safety.’76 Where
requests for information are refused, an internal appeal
process is often established within the government agency
itself, with further rights of appeal being available to an
independent tribunal which can overrule the agency’s refusal
to grant the request for information.77
Evidence that FOI legislation is being taken seriously in new
democracies emerges with the enactment in Indonesia of the
Openness of Public Information Act78 due to come into effect on 30
April 2010, although the delay in publishing a government
regulation on exemptions to the law makes its start date
uncertain.79 The exemptions are likely to relate to defense and
security issues, business deals and diplomatic negotiations,
while penalties for refusing to disclose information include a
prison sentence of one year and fines of up to Rp 5 million
(US$540).80 The concern here is that REDD+ concessions to
private companies might be regarded as ‘business deals’
which are exempt from FOI requests. No doubt the regulations
will clarify this.
Although Global Witness does not specifically mention an
Ombudsman or Public Protector, this is an additional
transparency institution that might be considered in the
context of REDD+. Generally, this office provides one of the
most inexpensive and informal accountability mechanisms to
people aggrieved by maladministration in government. An
affected individual simply contacts the office to lodge a
complaint. The Ombudsman then conducts an investigation,
has open access to government agency offices, documents and
records, and attempts to resolve the dispute between the
individual and the agency. The Ombudsman might make
recommendations to the agency. The Ombudsman final
sanction is the lodging of a report in Parliament which
exposes the instance of maladministration in the government
agency. The flexibility and informality of procedures offered
by such an office has obvious benefits in the context of REDD+.
5.3. Legal standing
Legal standing is the term used to describe permission,
granted either by the courts or statute, to appear before the
courts in order to litigate. In the context of REDD+ rights
against government, it is the right to bring an action against
the government challenging the legality of its decision-
making. This is known as an application for judicial review
and in most cases will test whether a government decision-
76
See, for example, Schedule 1 of the Freedom of Information Act
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/
legis/nsw/consol_act/foia1989222/s53.html (viewed 28 May 2010).
78
Law No. 14 Year 2008.
79
Maulia, E., Tampubolon, H., 2010. Government not ready for
information law rollout. The Jakarta Post, Friday 30 April 2010 at 1.
80
Maulia E., Tampubolon H., ‘Government not ready for infor-
mation law rollout’ The Jakarta Post, Friday 30 April 2010 at 1.
 environmental science & policy 14 (2011) 118–126
maker has acted consistently with the legislation enacted by
the Parliament – such as forestry legislation. In some
jurisdictions, governments provide an additional right to
citizens by establishing administrative tribunals. These
tribunals do not test the legality of decision but the
correctness. In other words, applicants will argue that the
government’s decision, say to grant a logging permit, or to
establish a REDD+ site, is wrong. The tribunal then has the
authority to ‘step into the shoes’ of the government decision-
maker, reassess all the facts, call for new evidence, and either
confirm the decision, or substitute it with its own preferred
decision.
Many arguments have been advanced for why courts have
the right to determine who can bring a legal action such as not
wanting to open ‘the floodgates’ of litigation, or not wanting to
give a forum to ‘vexatious litigants’ and ‘busy bodies.’ In other
words, courts have wanted to ensure that litigants have a
direct personal interest in the subject matter of the litigation.
In the context of REDD+, it would be necessary to investigate
rights of standing in each tropical rainforest country in order
to assess the standing of indigenous peoples and local
communities to assert their rights. It seems likely that they
would have no difficulty establishing that they are directly
impacted by government action in forests.
More problematic is the question whether public interest
actions are permitted. These are when a public interest law
firm, non-governmental organisations, or individual seeks to
bring an action on behalf of those unable to represent
themselves, or simply on behalf of their own members which
seek to protect the world’s forests, or because the individual
seeks to right a public wrong. In Australia, for example, the
lead environmental non-governmental organisation, the
Australian Conservation Foundation, was found by the High
Court of Australia to lack standing to bring a public interest
action challenging government decision-making since it had
only an ‘intellectual and emotional’ concern about the issue.81
Legislation has since been enacted at both the Common-
wealth82 and State levels to ameliorate the situation. In the
state of New South Wales, ‘any person may bring proceedings
in the Court for an order to remedy or restrain a breach of this
Act, whether or not any right of that person has been or may be
infringed by or as a consequence of that breach.’83 This is one
of the most liberal standing provisions anywhere in the world,
and is replicated in all environmental legislation in New South
Wales.
Ultimately, it is a matter for the courts and Parliament in
each tropical rainforest jurisdiction to determine what the
standing provisions are. However, as this discussion has
81
See Australian Conservation Foundation v Commonwealth (1980)
146 CLR 493.
82
Administrative Decisions Judicial Review Act 1977 (Cth) s. 5 states
that ‘A person who is aggrieved by a decision to which this Act
applies that is made after the commencement of this Act may
apply to the Federal Court or the Federal Magistrates Court for an
order of review in respect of the decision.’ The phrase ‘a person
who is aggrieved’ has been interpreted more liberally than was the
case in Australian Conservation Foundation v Minister.
83
Environmental Planning and Assessment Act 1979 (NSW) s. 123.
Available at http://www.austlii.edu.au/au/legis/nsw/consol_act/
epaaa1979389/s123.html (viewed 28 May 2010).
125
demonstrated, a lack of standing can mean that challenges to
government decision-making around REDD+ cannot be
advanced before the courts. Meanwhile with respect to
accessing international dispute resolution bodies, the Perma-
nent Forum on Indigenous Issues calls for indigenous peoples
to be better equipped to defend their rights using the
complaint mechanisms of United Nations Treaty Bodies,
other intergovernmental bodies such as the Organization of
American States and the African Commission on Human and
Peoples’ Right. The list includes the grievance bodies of
multilateral development banks, such as the World Bank and
Asian Development Banks, and in particular its inspections
panels and the ombudsman of the International Finance
Corporation.84
5.4. The need for the full and effective participation of
indigenous peoples and local communities: transparent access
to decision-making
The right, and perhaps even the duty, to participate in
government decision-making is well established in the
literature.85 As will be remembered, the REDD+ Advance
Negotiating Text itself requires respect for the knowledge and
rights of indigenous peoples and members of local communi-
ties; and the need for the full and effective participation of
relevant stakeholders, including, in particular indigenous
peoples and local communities. Global Witness states that
some of the key questions to be asked are: Is there a national
forest forum? Are there local forest forums? Is there a
procedure for consultation on new norms? Is there an
established list of stakeholders? Are reports on consultation
processes public?
Although these are key questions, they are linked intrinsi-
cally to forest tenure reform in landscapes which are often
composed of ‘multiple stakeholders, competing interest
groups and distinct public agencies holding rights and
claiming control over land and forest resources. The transfer
of rights is further complicated because it is multifaceted,
involving different types of tenure systems and rights
bundles.’86 Under forest tenure reform, rights are often
transferred to community-level stakeholders who provide
detailed local knowledge essential to good forestry manage-
ment. Co-management rights are often granted giving rights-
holders decision-making power. Essentially, legislation
passed to facilitate participation need to identify: ‘who
participates in management and how they participate; which
resources will be managed and how; and who benefits from
management and how.’87
All of this ought to be set out in specific forestry legislation
which moves ‘transparent access to decision-making’ from an
abstract concept to an established right on the part of
indigenous peoples and local communities. Indeed, as the
Permanent Forum on Indigenous Peoples has asserted ‘[t]he
full involvement of indigenous peoples and other forest-
84
Above n 7 at 18.
85
See, <fn0425>for example, Sunstein, C., 1988. Beyond the
Republican revival. Yale Law Review, 97, 1538.
86
Conkleton et al. above n 46, p. 44.
87
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,
monitoring, measure, reporting, verification, and avaluation
processes of REDD-plus. Transparency and coordination
among the different players should be ensured.’88
What cannot be ignored, however, is that effective rights of
participation in REDD+ decision-making will depend in large
measure on the political space and freedom that civil society
enjoys in any given jurisdiction. There is evidence that
international donors have targeted civil society strengthening
as integral to realigning state-society relations so as to expand
citizen participation and reinforce state responsiveness and
accountability.89 Evidence in Indonesia, for example, is that over
the past ten years the number of civil society organisations has
grown dramatically as democratisation has created the space
for them to establish rights and mechanisms of accountability.
Regional autonomy and decentralisation have enhanced these
opportunities.90 Yet prominent civil society leaders still lament
the fact that ‘the guardians of justice are corrupt’ so that the
transition to democractic consolidation is incomplete.91
6. Conclusions
This article has demonstrated that while the REDD+ Advance
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.
including references to the rights of indigenous peoples, and
local communities, the implementation of these rights
requires clarity with respect to the type of tenure which
grants property rights in forest carbon. In addition, the rights
cannot be simply asserted without undertaking a detailed
legal analysis of transparency norms, legal standing and
transparent access to decision-making in each tropical
rainforest country. Generic aspirational statements made
in the Advance Negotiating Text only takes the rights of
indigenous peoples and local communities rights so far. Any
REDD+ Text emerging from Cancun needs to clearly articu-
late the type of legal tenure which indigenous peoples and
local communities hold. The Text should also require:
Freedom of Information legislation; the establishment of
an Ombudsman; and rights of legal standing. Individual
tropical rainforest countries must then commit themselves
to the type of legal and governance reforms that have been
alluded to here.
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-
mental Law at Sydney Law School, The University of Sydney.
Rosemary is a consultant to the law firm Mallesons Stephen
Jaques.