Legal Analysis

REDD plus: A New Name for the Past
Bernadinus Steni

Although there is no official decision yet in UNFCCC, REDD plus is already responded to by many rain forest countries including the Indonesian. REDD plus concept reminds many forest communities on a number of forestry concepts in the past that resulted in the lossing of land and expelled from their territory. The scope of REDD plus which include conservation and enhancement of carbon stock has an implications particularly for the rights of indigenous / local in and around forest areas.

Looking at the experiences of many communities in Indonesia, at least two operational consequences potentially arising from the design of REDD plus; the tightening of the conservation area and plantation would be calculated as forest.

Conservation

Conservation in the past has an approach that nature preserved for ecological purposes alone. This is what the experts of Social Ecology, Murray Bookchin, called ecofacism. Even if needed, human intervention is limited in conservation areas. Human being, in this paradigm is a threat to biodiversity. Therefore, in the legal framework, appear various prohibitions and restrictions on human activities in conservation areas. In Indonesia, this view appears in a number of laws and regulations. See table I

Table I: Conservation in Law

In practice, conservation with a framework like this cause some impact on the field, including forced displacement of indigenous communities who have been living in forest areas since long. One case in Sulawesi can be referred, as written by Marcus Colchester:

Forced relocation to make way for national parks has been a particularly severe problem for indigenous people in watershed forests which are often afforded strong protection to conserve soils – and thus prevent the siltation of downstream engineering projects. Thus the Dumoga-Bone National Park in Sulawesi, Indonesia, while noted as a successful example of buffer zone management by the World Conservation Union (Sayer 1991:44), in fact required the expulsion of the indigenous Mongondow people, who had been forced up the hillsides by the agricultural settlement and irrigation projects in the lowlands (Down to Earth No. 5 1989)


Plantation

REDD plus taken from LULUCF concept clearly accept plantation forest. That is, oil palm, timber plantations and a variety of industrial monoculture will be counted as forest and forest areas.

However, this coverage is an irony for the environment. In many findings, palm plantations have led to a number of environmental impacts that are not small. CIFOR study said, the burning of land (land clearing) spent 11.6 million hectares of land, release 0.73 parts per million volume of CO2 to the atmosphere (Murdiyarso and Adiningsih 2006). Economic costs due to forest loss, degradation and pollution of smoke is estimated at $ 2.3-3.5 thousand million, with an additional $ 2.8 thousand million release of carbon (Tacconi 2003).


Recent studies also show Sawit Watch more appropriate palm plantations as a source of emissions than carbon sink. See table
2

Table 2: Comparison of GHG Sequestration between primary forest and oil palm



 

 

 

 

 

 

Source: Oil Palm Watch, 2009

In contrast to the results of the study above, in 2008, the Secretary of BBN National Team (National Team for Vegetable Fuel Development) Unggul Priyanto, explained that the palm trees absorb CO2 greater than wood forest. Carbon is absorbed by the oil palm, in addition to leaves and stems are also stored in the oil palm.1 But if it refers to this table, oil absorption capacity of CO2 emissions from forest areas do exist but the level of absorption is always lower than the amount of emissions, so there are always margin of emissions that must be covered by other absorber. Meaning that this difference cannot be overcome by oil palm plantations. Therefore, the assumption of Priyanto, should be doubted, not only because because of there is a political bias of his duties as a supporter of biofuel, scientifically Priyanto also did not present sufficient data that could counteract the data described by Oil Palm Watch above.


Plantations also cause social problems because many communities sell their land for oil palm plantations. Members of the community was persuaded that promise high incomes, but in practice they would lose the economic benefits more. In the study of Marcus Colchester, Norman Jiwan, Andiko, Martua Sirait, Asep Yunan Firdaus, A. Surambo, Herbert Pane (2006), the social impact of oil described in Pasaman, one of the famous locations of oil palm plantation in West Sumatra
:

Since 1992, Pasaman District has become famous as an oil palm producing area. Oil palm estates are now widespread in the six sub-districts. By 1999, the production of oil palm in Pasaman District reached 566,957 tons, harvested from 63,249 ha. of estates. However, this has not been achieved without problems. On 8 May 2001, the vice bupati of Pasaman District noted that the benefits were being enjoyed unequally. Estate industries had failed to improve local livelihoods. Siliah Jariah payments were not being fairly shared and many people were not getting to participate in the plasma schemes. Among the problematic estates he specifi cally noted: PT AMP (1,950 hectares), PT TSJ (800 hectares), PT ASM (500 hectares), PT Puska (550 hectares), PT Grasindo (2,800 hectares), PT AW (3,899 hectares), PT PM (2,104 hectares), and PT PMJ, as well as PTPN VI. The offi cial statistics for 2000 supported his argument. Of a total population in Pasaman of 504,530 persons, no less that 92,033 were living in poverty and hunger, with 778 babies registered as suffering malnutrition.

By law, ease of plantation development was present in layers through the acquisition of access to land that almost no limitations. On land, the Act Plantation formulate as follows:

In the event that the necessary land is customary land rights of indigenous people which in reality is still there, ahead of the rights referred to in paragraph (1), the right applicant shall conduct deliberations with customary law community customary rights holders and citizens of holders of land rights is concerned, to obtain agreement on the transfer of land, and compensation (Article 9, paragraph 2)

This formula shows that the consensus to open plantations in the area of indigenous people, not talking about basic principles such as free and prior informed consent but simply talking about the land transfer agreement and benefit, nor compensation. In this logic, there is no clause of community may agree or disagree on the plantation, but accepted as if it must, so that the land transfer is mandatory. Land owners also receive benefits only. Rewards is a non-legal term that indicates that there is no recognition of property rights, but a similar concept of gratitude regardless of normative elements such as the amount of a given benefit and social factors such as land values in the sense of the complex value (economic and social value). This formulation is a red carpet for the plantation and the road toll for REDD plus actors to have more profit through plantation business.

Demonstration Activities : From Tenure to Cash Money

Overall, the problems that have been faced by REDD pilot projects are clarifying tenure rights and striking win-win deals with local governments. Tenure is a continuing problem as these REDD schemes come under a license regime in which application and related processes will be subjected to formal legal procedures. Requirements and administrative aspects in this process are difficult for indigenous peoples to follow for the many reasons already mentioned above. At the same time, basic needs of indigenous peoples concerning secure tenure over ancestral land is disregarded by policy-makers. In some areas the situation is made worse because the indigenous territory overlap’s with government authorised concessions. As admitted by one of pilot project developers, Flora Fauna International, to deal with tenure in the negotiating process requires a great deal more energy and time than the current rush towards REDD policy implementation has allowed

The tenure and participation problem is also overwhelming the KFCP (Kalimantan Forest and Climate Partnership) REDD pilot project. An investigation report by Friends of the Earth Australia, AidWatch, WALHI and Serikat Petani, published in November 2009, notes that the project proposal favours the complete marketisation of forest credits to help Australia offset its responsibility to reduce greenhouse gas emissions. In addition, the Australian agreement with Indonesia does not guarantee indigenous peoples rights, and as such breaches the UN Declaration on the Rights of Indigenous People, signed by Australia in April 2009. Although some resistance has come from the field, the Australian Government has made no changes to the agreement with Indonesia. The motivation behind the Australia-Indonesia REDD project is not rehabilitating peat land, but rather avoiding economic losses in Australia through securing cheaper carbon credits from the peat lands of Central Kalimantan.

On the other hand, while central government never clearly announce any statement about HTR (Community Based Tree Planting) as a part of laid scheme of REDD plus in KFCP area, in the field there is a sort of rush to speed up the community’s readiness by conduct their hand to open to what supposed to be the sack of money. HTR is one of the legal framework which provided by the Forestry Law No 41/1999 to let community or coalition of farmers get involve in plantation to support raw materials for pulp and paper industry.

Some of community that pretty much depend on natural resources, including forest production are motivated by local government of forestry agency to generate HTR in customary land. In Petak Putih, one of the villages affected by KFCP, the community has been promised to have 8 million rupiah as return per hectares of this HTR project. Community which so long time retain their customary forest, perhaps one of the virgin forest left in this area, stare with desire by that promise as they have no more access to get cash money. Cash money is a problem in Petak Putih. Long story tell about the involvement of some community members in logging company was triggered by cash money. In these last five years, community also has been indulged by government’s cash money program like BLT (Direct Cash Money), and other link which is rather as a prison to hold them subjected to the habit of getting access for project of cash money. It has gradually gripped the circle of community’s mode of production to permanently have directly to cash money which they get from projects initiated and/or run by company and government. HTR which at the end come with huge promising of fresh money will persistently change the figures of social relation within community. Consensus is no longer has any power to regulate peoples but merely money. In the future, without getting improvement in public services such as education, health, etc, those communities will be the eternal servant of project-based.


National REDD Strategy: Challange from Sector

Currently, Indonesia is preparing a national REDD strategy. There are some government efforts as outlined by this document to address the issues of forest tenure and benefit-sharing more equitable. In one paragraph mentioned that the government will review all existing forestry permits and restrict the granting of forest concessions. Another paragraph states that the division will consider the economic benefit of local communities in the surrounding forest. However, this document still does not answer the demands of recognition of rights of indigenous and local communities over forests that have been proposed since long.


On the other hand, the document of national strategy of REDD plus a fairly accommodating to the interests of forest moratorium not guarantee the compliance of related sectors such as forestry, mining and plantations. Each sector still has different platforms and still relies on natural resource exploitation to enhance the economic coffers. Forest condition all over Indonesia is under a huge threat as described in map below:

Just recently, Bank of Indonesia issued a regulation to push private’s and government’s banks to lend more loan by lowering any requirements needed. Most of bank credits are given to finance mining operation. As seen in credit flow from January to May, 2009 loan went to mining is about 26,38 trillion rupiahs. In the same period in 2010, it has already spent higher 47,41 %. Increasing 79,72 % from 2009. This means that there is no control to the banks to limit their loan to those investments which destructing forest. No environmental safeguards.

On the other hand, demands for CPO are increasing, but the oil palm trees are old. Companies need to apply new license in some other areas (forest or peat land or even peoples agriculture land). For example, Astra Agro Lestari Tbk, one the biggest players of oil palm in Indonesia, production report showing that along semester I 2010, CPO production is going decrease rather than the same period in 2009. In 2009, it produced 499.444 ton of CPO. While in 2010, only produces 470.993 ton. The reason is oil palm trees are old (Kontan, 9 Agustus, 2010) by which they are hunting for new land. This is a hidden reason behind a huge pressure from private sectors now to pass law on Land Security.

Even REDD is designed almost perfect, it cannot be immediately push sectors which have power to regulate natural resources to suspend or limit their exploitative development. Hence, REDD plus will be only success if it changes development model. Otherwise, it will justify the false process in the name of golden goal.

[i] Presented in G-20 Peoples Summit, November 2010

[ii] See among others Global Forest Coalition in The Global Forest Coalition, May 2009, Forest and Climate Change: An Introduction to the Role of Forests in the UN Climate Change Negotiation, Indigenous peoples position paper in Anchorage Declaration, 24 April 2009 at Alaska, Accra Caucus Position, Accra Caucus on Forest and Climate Change, 30 November – 1 Desember 2008, Conference of Parties 14 Poznan, Poland

[ii] http://www.wrm.org.uy/subjects/nature2.html, download 2 Agustus 2009 di Jakarta

[iv] Lihat Antara, Kamis, 24 Januari 2008

[v] Interview with Dewi Rizki from Flora Fauna Indonesia, Hotel Haris, Jakarta, 21 October 2009

[vi] Australia’s REDD Offsets for Copenhagen, Friends of the Earth Australia, AidWatch, WALHI and Serikat Petani, November 2009

Since 1992, Pasaman District has become famous as an oil palm producing area. Oil palm estates are now widespread in the six sub-districts. By 1999, the production of oil palm in Pasaman District reached 566,957 tons, harvested from 63,249 ha. of estates. However, this has not been achieved without problems. On 8 May 2001, the vice bupati of Pasaman District noted that the benefits were being enjoyed unequally. Estate industries had failed to improve local livelihoods. Siliah Jariah payments were not being fairly shared and many people were not getting to participate in the plasma schemes. Among the problematic estates he specifi cally noted: PT AMP (1,950 hectares), PT TSJ (800 hectares), PT ASM (500 hectares), PT Puska (550 hectares), PT Grasindo (2,800 hectares), PT AW (3,899 hectares), PT PM (2,104 hectares), and PT PMJ, as well as PTPN VI. The offi cial statistics for 2000 supported his argument. Of a total population in Pasaman of 504,530 persons, no less that 92,033 were living in poverty and hunger, with 778 babies registered as suffering malnutrition.

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