11

Conclusion

This book’s primary objective has been to bring the legal interests of
indigenous peoples and forest-dependent communities to the foreground
of global developments in climate change mitigation. It analyses policy
approaches and positive incentives that aim to reduce emissions from
deforestation and forest degradation that also engage in positive forest-
related activities (REDD+), which have been promoted by countries
under the auspices of the UNFCCC. The book assesses the various
impacts of REDD+ on indigenous peoples and forest communities and
offers a critical view of the relationships between collective indigenous-
specific rights (especially with respect to FPIC and tenure) and human
rights, as well as background norms existing in contemporary treaties
and customary international law. We documented the stances taken on
these matters by the REDD+ funding bodies, particularly the UN-REDD
Programme and the World Bank’s FCPF, and demonstrated that insti-
tutions, states, civil society and other actors contribute to diverse fram-
ings of REDD+ in national contexts such as in Malaysia, Papua New
Guinea and Vanuatu. We examined in depth the history of land law and
forest resources laws in these countries and the ways that these laws and
policies intersect with legal frameworks for the recognition of the rights
of indigenous peoples and local forest communities. At a national and
sub-national level, REDD+ is being developed in the context of existing
complex legal and cultural interactions. Further, experience from the
regional context in Australia shows how indigenous involvement in
land-sector carbon sequestration and mitigation schemes depends on
the complex interface of federal constitutional arrangements, land-rights
legislation, provincial government land laws and natural resource man-
agement regimes. In short, the rights and interests of indigenous peoples
are distinctive, and, although REDD+ is developing amongst a plethora
of laws relating to human rights and social and environmental safe-
guards, the REDD+ regime has not yet addressed the complexity of the
issues raised by indigenous claims to forests and forested lands. In this


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  
final chapter, we review our main findings and conclude on the necessity
of having REDD+ attend to governance at the international, domestic
and local levels.
The book argues that REDD+ can be conceptualised as an emerging
international regime, with climate change mitigation as its overarching
objective, UNFCCC conferences as its dominant set of decision-making-
fora, and implementation by institutions such as the FCPF and the UN-
REDD Programme as main behavioural approaches.1 Existing and poten-
tial interactions of REDD+ with other regimes within the international
legal system have important implications for indigenous peoples and
forest communities. These interactions sometimes develop in surprising
ways, such as the UN-REDD Programme’s incorporation in its project
documentation of norms from ILO Convention 169 even absent the
ratification of that convention by many REDD+ participating states.2
The book sought to account for the conditions of normative and insti-
tutional fragmentation that are an unavoidable aspect of the evolution
and development of REDD+ within the system of international law.
REDD+ promotes the reduction of emissions from deforestation and
forest degradation, but other regimes oblige states to prioritise bio-
diversity, sustainable forestry management or even food security. We
considered whether the interests of local and affected communities have
been incorporated in national and international law-making, standard
setting and policy implementation when relevant international regimes
interact with REDD+, and the extent to which indigenous rights are
respected in those processes. How to integrate REDD+ into the complex
field of forestry governance and associated legal regimes in a manner
that protects and furthers the interests of affected indigenous and local
forest-dwelling communities is an ongoing challenge. We show that
regime interaction at the international level has extended to outreach
by organizations such as the UN-REDD Programme, and is important in
forestalling conflicts between norms. Yet regime interaction cannot
by itself provide methods with which to resolve disputes over access to
land and resources where these involve indigenous peoples’ claims. The
unresolved legal claims of indigenous peoples are deeply context-specific
and must be interrogated at the local level. If REDD+ is to assist in this
enterprise, it must include methods for resolving contestation between
international norms and commitments where these dictate the trajectory

1 2
See especially Chapter 2. See further in Chapter 3.

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    
of domestic disputes involving indigenous claims. Attention to historic
injustice, dispossession, the non-recognition of indigenous law, and the
social and economic marginalisation of indigenous and forest commu-
nities is essential.
Critical reflection on the value and limits of studies on regime inter-
action is an important aspect of this book. We showed that regime
interaction at the international level is but one of several factors that
change outcomes for indigenous peoples and local communities in cli-
mate mitigation scenarios. A key finding is that the normative and
institutional developments that accrue from the interaction between
international legal regimes must be attentive to domestic and local-level
legal processes: for example, the influence of the CBD on REDD+
safeguards is shaped by the international commitments of states, but
outcomes in any given context are also fundamentally determined by the
domestic environmental laws or politics of a country receiving REDD+
funding. Or, in another example, since the operational policies of the
UN-REDD Programme instruct states to protect and respect all human
rights, indigenous rights and property rights, and it remains the case that
many conflict with one another in principle as well as in practice, in the
absence of any advice on how to balance rights against others or apply
proportionality analyses, it will remain for the state to determine which
right to prioritise over others in any single instance. This is why the
book’s attempt to traverse the international, domestic and local contexts
is important.
In this vein, we evaluated the efforts of institutions within REDD+
to articulate safeguards on indigenous peoples’ rights, as demonstrated
perhaps most vividly by the principle of FPIC. We pointed to the diver-
gences between the standards applied by the UN-REDD Programme
and FCPF, respectively – where the ‘c’ in FPIC moves between ‘consent’
and ‘consultation’.3 We have critically examined the ‘human rights–
based approach’ taken by the UN-REDD Programme and its constituent
agencies, arguing that some formulations of this approach can under-
mine the legitimate claims of indigenous peoples.4 While such pressures
must be assessed in comparison with the threats posed by commercial
logging, agricultural expansion and so on, we have shown that REDD+
impacts on indigenous peoples in ways that are not dissimilar to defor-
estation – such as the loss of livelihoods, the loss of informal title in

3 4
See further in Chapter 4. Ibid.

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  
tenure-formalisation processes and increased incentives for states to take
public title of forested lands to garner benefits to themselves. Additional
risks to indigenous peoples may also include the assumption of liabilities
for the permanence of sequestered carbon.
Secure and clear tenure is seen by many as a legal guarantee that must
precede REDD+ projects.5 We discussed current UN-REDD Programme
and FCPF standards and advice on tenure arrangements in participant
states, and considered the methods used to address indigenous land
claims in the domestic courts of North America and Australasia and by
international and regional human rights bodies including especially the
IACtHR. We emphasised that the policies used by the UN-REDD Pro-
gramme derive from the FAO’s Voluntary Guidelines on the Responsible
Governance of Tenure, designed as part of the FAOs food security
mandate, and noted that the guidelines provide only limited protection
for indigenous communities that are no longer in possession of their
traditional lands. We further noted that the World Bank’s OP 4.10 on
indigenous peoples, which guides the activities of the FCPF, protects
dispossessed peoples only where the loss of possession was involuntary
and occurred within the lifetime of the affected community members.
Accordingly, we noted, REDD+ policy tends to favour current users
and occupiers of forested land, and could support the formalisation of
these rights at the expense of the claims of indigenous peoples asserting
historic and customary title to forested lands. In countries where cus-
tomary owners form the majority (as in Papua New Guinea), tenure
certainty is no longer so pressing, but retaining use and access to land
by customary owners remains vital, with FPIC to projects playing an
essential role. In all cases, caution is needed if locating the imperative
for tenure reform in climate change mitigation obscures the broader need
for reform of the position of indigenous peoples within societies and
forecloses a more systemic way of achieving it.
The book extended this analysis by examining whether REDD+
incorporates a system of co-benefits, which requires the revisiting of its
beginnings as an ecosystem-services model.6 We traced its evolution into
a more sophisticated benefit-sharing system and examined the progres-
sive moves to include biodiversity and socio-economic outcomes within
the rubric of efforts to advance carbon sequestration, emissions reduction
and avoided-deforestation objectives. In exploring the nature of benefits

5 6
See Chapter 5. See Chapter 6.

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    
and examining the articulation between the recognition of the rights of
indigenous peoples and local forest communities to forest and land
resources and the receipt of benefits, we have canvassed arguments about
whether indigenous and local community carbon rights might be better
articulated as a resource right rather than by adhering to tenure models.
The country case studies grounded our arguments in real-world scen-
arios. They also demonstrated the dialogic process between the inter-
national and domestic: for example, on the one hand, concerns from
local and national contexts become manifest at the international level
(such as in human rights standards) but find a different formulation
at the international level which is sometimes inadequate to address local
concerns. On the other hand, countries may be intransigent in accepting or
implementing changed legal norms issued from ‘above’. Malaysia – a
nation with large tracts of tropical forest and a long history of forest
governance and forest certification schemes prior to becoming a UN-
REDD Programme participant – has a variable human rights record in
respect of indigenous and community land claims. The Malaysian experi-
ence, exemplified by relatively large indigenous and ‘native’ populations in
East Malaysia, and a federal government structure with devolved regional
systems for forest governance, usefully demonstrates tensions generated by
decentralised decision-making authority in the REDD+ context.7 In con-
trast, two least developed nation states – Papua New Guinea and Vanuatu –
provide examples where customary owners are the majority of the popu-
lation.8 Both nations are heavily economically dependent on the forest and
land-use sectors, and in both, forests constitute important sources of
community subsistence and customary law is constitutionally protected.
Points of tension arise from the manner in which third party development
interests have sought access to customary held land and forests through
long term leasing arrangements, a practice that will influence the ways that
REDD+ projects might be structured in these nations as well as the role to
be played by FPIC. We found that capacity to effectively govern and
distribute benefits to customary owners under REDD+ remains a potential
barrier to their effective participation.
The book stepped away from REDD+ itself to examine a closely rela-
ted model of carbon sequestration and land-sector emissions-reduction
programmes developed within Australia. The focus on northern Australia –
an area characterised by statutory land rights for Aboriginal peoples

7 8
See Chapter 7. See Chapter 8.

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  
and a growing number of native title determinations – provides a longer-
term perspective on the connections between climate mitigation policies
and indigenous peoples.9 We have examined Australian federal carbon
farming legislation and reciprocal regional government models of carbon
rights (severed from landholding) and the extent to which indigenous
tenures and resource rights were incorporated within these laws. This
also required us to examine the opportunities and challenges for indigen-
ous peoples’ involvement in emissions-reduction projects, including
innovative savanna-burning modes (this model is based around the
reduction of emissions through the adoption of traditional Aboriginal
practices for burning the land). The Australian experience highlights the
complexity that surrounds the package of laws and policies that must
support REDD+-style projects and offers a model that can provide useful
information and learning about the implementation of REDD+-style
schemes.
On the basis of our analysis of the international, domestic and local
contexts, we support efforts within the international institutional frame-
work of REDD+ to facilitate the sharing of local experiences and expert-
ise in REDD+ implementation. We have sought to better understand the
legal rights and duties of actors according to an experimentalist govern-
ance model, which includes both recipient and donor states, international
organizations and nonstate actors.10 We also encourage the establish-
ment of plausible benchmarks based on real-world state and indigenous
responses to REDD+, and analyse whether the SIS might perform this
role. Penalty defaults (including the exclusion of participation in REDD+
funds) may be important as a future governance mechanism.11 At this
point, however, it is not clear who will ultimately decide on the trade-offs
in values contained in the REDD+ safeguards. Moreover, local-level
participation and empowerment may be ineffective or counterproductive
without due acknowledgment of power disparities facing indigenous
peoples and marginalised or disadvantaged groups.
In sum, this book responded to key questions in climate change
mitigation: how a set of international policies and approaches will impact
on indigenous peoples and forest-dependent communities, and what
role law should play in providing protections, managing risks, promoting
hidden perspectives or obstructing dangerous assumptions. This issue
required traversing a number of legal disciplines, including public

9 10 11
See further in Chapter 9. See further in Chapter 10. Ibid.

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    
international law and regime interaction, human rights law, the law of
indigeneity and land tenure, and environmental law. It also required a
grounded understanding of REDD+ policies as they are intended to
operate in places such as Malaysia, Papua New Guinea and Vanuatu.
Our findings are relevant for governments and policy-makers seeking
just and effective ways to achieve climate mitigation through forest poli-
cies, indigenous peoples working with or against universalising norms
and standards, and international lawyers seeking to develop new norms
amongst complex, diverse and non-harmonious legal arrangements.
While REDD+ is an initiative developed within the specific inter-
national law framework of the UNFCCC, the resonance or divergence
of law and legal principles from other bodies of law will determine the
outcomes of REDD+ schemes and the extent to which they further the
interests of indigenous and local communities affected by forest govern-
ance. REDD+ has the potential to yield material and political benefits for
indigenous and forest-dwelling communities in the countries where it
currently operates or will one day be implemented. The implementation
of REDD+ schemes, however, engages law at multiple levels, including
various international law regimes, national legal systems and the law of
local communities, and it is not yet clear which legal principles or bodies
of law will have ascendancy, or who will ultimately decide between them.
Over time, one thing has become clear: REDD+ is not a straightforward,
‘win-win’ approach to climate change mitigation. In seeking to accom-
modate the needs of indigenous peoples and forest-dwelling commu-
nities (as well as forest management, biodiversity protection, food
security and so on) through its definitions and safeguards, REDD+ has
become increasingly complex and unwieldy. In one sense, this is as it
should be, because just and effective climate change mitigation must
incorporate the perspectives of those who are affected by it and not
merely those who have the resources to address the problem of climate
change (and may well be most implicated in the causes of that problem).
If climate change mitigation is to be global in its orientation, it cannot
aspire to be anything but sensitive, time consuming, transparent, pluralist
and inclusive. Moreover, it must not obscure or derail efforts to provide
justice for indigenous peoples and forest-dwelling communities.

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