harry alexander trs benefit sharing rcccui 16des2013
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Harry Alexander Research Center for Climate Change (RCCC)
University of Indonesia
Sharing of benefits over the utilization of tropical rainforests:
Alternative financing for IP and the environment
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Background
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REDD in National & International Fora Indonesia is a mega-diversity, mega-rainforest and also rich in mega-cultural
diversity country
There is now scientific consensus that global warming is taking place and COP recognized the crucial role of reducing emission from deforestation and forest degradation (REDD) Plus.
Law and legal institutions in Indonesia changed in response to economic policies & global trends
At present, there are no agreed rules on REDD at the international level and the structure of a REDD mechanism is unclear
In line to obligations under the UNFCCC & the Kyoto Protocol, both the United States and Indonesia have undertaken independent programs to address climate change
The America Clean Energy and Security Act (ACES) sets progressively legally binding caps on GHG emmision of large of US emmiter. EPA, Secretary of State and USAID collaborate with countries on reducing emmissions from deforestation with target 720 million metric tons in 2020 and 6 billion metric tons in 2050
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Challenges More- over, a majority of submissions for REDD+ readiness
funding from the World Bank did not adequately address
governance challenges, such as tenure, benefit sharing, and local
engagement (World Resources Institute, Washington, DC, 2009)
After feedback from donors, some proposals adopted the language
of local participation and benefit sharing (Forest Carbon
Partnership Facility, www.forestcarbon-partnership.org/fcp/ )
The UNFCCC does not currently mandate safeguards, benefit
sharing, or local involvement (World Agroforestry Center,
Nairobi, 2010)
Carbon markets seeking cheap verifiable credits will have little
incentive to create local partnerships
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REDD+
....policy approaches and positive incentives on issue reating
to reduce emmissions from deforestation and forest
degradation in developing countries; and the role of
conservation, sustainable management of forests and
enhancement of forest carbon stock in developing countries
(UNFCCC Decision 2/CP.13-11)
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Co-benefit
Forest Conservation
REDD+ action (political change & better
governance)
REDD+ action & forest governance
(forests & humans to adapt to CC)
REDD+ action (financial flow & socio-
economic benefit)
Manual MRF in an urban area
Semi-automated MRF in operation
ITTO Indonesia Program
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Co-benefit
Benefit in addition ro reduce climate change:
1. Forest Conservation
2. REDD+ action (financial flow, socio-economic benefit:
reducing proverty, supporting livelihoods, stimulating
economic development)
3. REDD+ action (political change: better governance, less
corruption, more respect to right of vulnerable groups)
4. REDD+ action and forest governance could boost the
capacity of both forests and humans to adapt to climate
change
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People & Forest
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People & Forest
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Perkembangan Terkini
Pemetaan partisipatif wilayah adat: 3,4 juta Ha 425 wilayah adat: rata-rata 10.100 Ha/wilayah adat
Tumpang tindih peta wilayah adat dengan kawasan hutan:
2,6 juta Ha (76,5%)
Overlap antara peta wilayah adat dengan PIPIB: 1,68 juta Ha
(49%)
Regitrasi peta indikatif wilayah adat anggota AMAN
di BRWA: 3,29 juta Ha
Total peta wilayah adat: 6,69 juta Ha
Pengintegrasian peta wilayah adat dalam One Map
Indonesia: 2,4 juta HA sudah masuk di Badan
Informasi Geospasial (BIG)
RAKERNAS 2013: percepatan pemetaan wilayah
adat sampai 2022 40 juta HA Abdon Nababan, AMAN, 2013
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Indonesian Regulatory Landscape on REDD+
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Law & Regulation on Climate Change
Law & Regulation on
Climate Change
Climate change law at the
area of intersection
between these three fields
toward development that
can last.
Environmental Law
(Forest, Water, Biodiversity)
Economic Law
(Trade, Investment, Competition)
Social Law
(Human Rights, Social
Development, Health Law)
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REDD+ related regulations
UUD 1945
MPR Decree
Law/Parliament Act
Government Regulation
Minister
Regulation
Constitutions
Guidance
REDD+ related regulations
Local Regulations
Policies
6/07 38/07
46/08
DNPI
61/01
RAN GRK
71/11
Inv GRK
P. 68 P. 30 P. 36
Perda P2 P3
Implementing Regulations
General Law
Imp regulations
Technicall regulation
Regional
Regulation
President
Regulation
Law
3/08 28/11
61/01 K 25/11
Satgas REDD
P. 20
5/60 6/94 41/99 32/09
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Carbon Right
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Carbon Ownership - Indonesian Constitution
Carbon Right
Regulate HMN
Carbon Control by State
legal relations between persons and legal acts
concerning carbon
Implementation REDD+
legal relations between persons and carbon
Bundled
BAA 5/60
Unbundles
Sectoral Laws
The Indonesian 1945 Constitution, Article 33.3, placed land, water and airspace
including the natural resources, within the control of the state, to be used for
the peoples prosperity.
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Carbon Rights
License
IUPHHK and IUPHHBK license
IUPJL license
IUPK license
timber and non-timber forest products (IPHHK and IPHHBK
license)
Land Title
State Forest Land
Customary Forest Land
(Hutan Adat)
Other Collective/Community Forest Land
Private Forest Land
Other type of land
Land status
Forest Area:
MoF responsibility:
Conservation Forest
Production Forest
Protection Forest
additional coordination with
Ministry of Agriculture,
Public Works etc. Required:
Conversion Forect
Non-Forest Area (district government)
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TRSs Legal Foundation
No Requirements
1 Identify legal, traditional, or customary rights of all Project Participants to use,
control, or transfer any rights in or appurtenant to the lands in the Project
Area.
2 Demonstrate that all necessary agreements have been reached with all Project
Participants affirming the legal right of the Project Proponent
3 Demonstrate that the proposed activity or Project does not conflict with any
national or subnational REDD or similar programs or activities in the relevant jurisdiction.
4 Demonstrate that the award of The RFS Credit is not itself a violation of
applicable law
TRS is the worlds first fully integrated forest carbon credit standard, that can assure purchasers of
RFS Credits that sellers have the right to transfer carbon emission reductions for value under the
law in which the Project Area is located.
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REDD Legal Framework
TRS
Legal Basis
Contract
REDD+ project
Legal Due Dilligences
Legal Opinion
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Rightsholders Engagement
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REDD+ stakeholders
REDD+ stakeholders are defined as "...those groups that
have a stake/interest/right in the forest and those that will
be affected either negatively or positively by REDD+
activities. They include relevant government agencies and
elected officials at various levels, formal and informal forest
users, private sector entities, Indigenous Peoples and other
forest-dependent communities (FCPF & UN-REDD, 2011).
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The Project Participant
The Project
Participant
Project Proponent
Project Developer
Rights holders
Governmental Authorities
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Rightholders
De Jure
Rightsholders
Holders of legal title to any land or any rights
Concessions Holders
Easements
Occupancy
De Facto
Rightsholders
Forest Users or Forest Dwellers
Indigenous Peoples
Local Communities with traditional or
customary rights
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TRSs Benefit Sharing
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Regulated Laws & Regulations
Negotiated
Contract
Benefit-Sharing
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Benefit-Sharing
Management Considerations
Option 1 Regulatory
Centralized
Itemized
Now
Option 2 Negotiated
Localized
Packaged
Later
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Regulated Benefit-Sharing
Three regulations dealing with REDD+ including dealing
with benefit sharing was constested by variety of stakeholders
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REDD+ as Natural Resources?
REDD+ is compared to natural resources such as oil, gas and
minerals? Government should manage fund and ensure equitable and sustainable use of these funds to the benefit of
whole community
1. Traded internationally
2. NR are legally regulated
3. Commodity vs. Carbon credits, emmision rights, and
allowance and tradeable REDD+ benefits
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The Way Forward
Communities should have control over local REDD+ design
and implementation. Governments may propose REDD+
sites, support low-emissions rural-development strategies,
and deliver payments and/or services as incentives
Local users should be given authority, information, and
support to determine whether they engage with REDD+, to
align
Donor should support REDD+ implementation the require
stakeholder involvement and benefit sharing provisions
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Transparent and enforceable benefitsharing plans
Identifying and respecting de facto rightsholders
Beneficiries Identified
Detailed informed, prior, written consent protocols
Written Consent Contract Signed
Negotiation
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TRSs Minimum Element of
Benefit Plan of Rights holder
direct or indirect monetary payments
inkind payments
cash, credit, inkind supplies or equipment, vouchers for health or education
the share of net benefits
the allowable expenses that may be deducted
Other incentives
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Benefit Sharing
Government
Tax
Non Tax
De Jure
Rightsholder
Payment
Contract
De Facto
Rightsholder
Indonesian Customary
Law
Contract
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SOCIAL DEVELOPMENT DEPARTMENT
Monetary Development Benefits
Examples:
Taxation
Royalties
Preferential rates
Revenue sharing
Development funds
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SOCIAL DEVELOPMENT DEPARTMENT
Non-Monetary Development Benefits
Examples:
Allocation of fishing rights in reservoir
Priority hiring of local community members during construction
Upstart support of local companies
Capacity-Building
Training
Multi-Purpose Infrastructure
Rural electrification
Access to improved infrastructure
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Legislative Model
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Brazil Provisional Act No 2,186-16, 2001 (Title 7 -Articles 24 to 29)
Implementing Agency: The Genetic Heritage Governing Council, under the Ministry of Environment (aka The Management Council) Applicable to :Brazilian or Foreign institution who make economic use of product/ process from resource/ associated TK (Art 24) Ownership: To be specified in Contract for Use of Genetic Heritage and Benefit sharing Benefit Sharing provisions : Sharing of profits, payment of royalties, Access and transfer of technologies, licensing without cost, of products and processes Capacity building of human resources Punitive Action: Offender to pay compensation @ 20% of gross income of receipts from product/ royalties irrespective of IP rights
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India Biological Diversity Act, 2002 and Biological Diversity Rules,
2004 Implementing Agency : National Biodiversity Authority Applicable to : Primarily for Foreigners Benefit Sharing : Access fee, Monetary benefits- upfront, milestones, royalty, Joint ventures, Product development; 5% of
assessed benefits to be given to NBA Ownership: Joint ownership wherever relevant Punitive Action: Varying from criminal prosecution to imposition of fines
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Philippines Implementing Rules and Regulations on the Prospecting of Biological
and Genetic Resources (Department Administrative Order No.96-20), 1996- Articles 8.1(8, 9, 13), 8.2(2, 3, 4) Implementing Agency: Inter-Agency Committee on Biological and Genetic Resources (under Dept of Environment and Natural Resources) Applicable to : Both domestic and foreign bioprospectors, except traditional use Benefit Sharing : Equity remittances, submit performance, compensation, ecological rehabilitation bond on MAT, Regular reports, all discoveries of commercial product/s derived from Philippine GR to be made available to government and local communities, collaborative research with domestic institutions, royalty free access to technology, donate equipments Punitive Action: Varying from criminal prosecution (without required Agreements or PIC), cancellation or revocation of agreement (non-compliance measures) and duly reported to international forums.
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Thank you
Harry Alexander (Legal Advisor at RCCC UI)