Key policy issues for PES and REDD+

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Presentation by Florence Bernard and Slayde Hawkins.

PES may be prohibited by Constitution or law. This presentation discusses how policy may affect the implementation of PES and REDD projects.

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  • Example: Kenya’s 2010 Constitution establishes security over land rights as a key principle of land policy,together with “sound conservation and protection of ecologically sensitive areas”. The provisions of the Trust Land Act 1939(Trust Land Act) formally recognizes customary land use rights.The conversion of customary rights into statutory rights under a formal system of registration does not, however, necessarily translate into tenure security due to deficiencies in land administration. Even where community land ownership is clear, the rights to the forest carbon may not be. For example, the Forests Act is not intended to prejudice customary rights which attach to the historical use of land by forest communities,which leaves tenure in forest carbon uncertain on land subject to community ownership. If REDD+ does not incentivize faster or more ambitious land titling exercises then there are risks that more powerful actors outside or within communities will claim rights over and above those of communities or poorer individuals.In most African countries there is not one set of customary land tenure. Rather, tenure arrangements vary in both time and space. They are a result of interaction between different forms of customary tenure and changing formal laws. capturing these types of institution in formal laws requires great flexibility. Above all it requires in-depth knowledge of local circumstances, power relations, customary arrangements and practices. While research on general tenure reform is useful there is a need for country specific studies to inform national tenure reforms.RISK: Land tenure regimes will not transition fast enough to function within the time frame specified for REDD+ or to have a viable impact on the critical period of large scale carbon sequestration (next decades). Example in Uganda: Under the current land Act, it is difficult for a person holding land under the customary tenure to benefit from the carbon sequestration investment. Thus in order for people holding such lands it will be necessary to review the Land Act so as to support the issuing special titles for carbon sequestration and to provide incentives to avoid deforestation.tenure reform is important in a REDD+ context it should not be rushed in the name of REDD. This could lead to badly informed reforms that deepen inequalities rather than prevent them.
  • To evaluate potential policy options, it is necessary to understand how the existing policy, legal, and regulatory frameworks apply to PES projects. Because laws and regulations were not written with PES in mind, their implications for PES can be difficult to identify with certainty. Nevertheless, sources of applicable law and their likely impacts can – and must – be assessed in light of specific local and national circumstances.In general, applicable laws will be found in a country’s framework environmental, water, and forestry laws, as well as their laws on land and natural resources, agriculture, planning and infrastructure, and indigenous peoples. Depending on the host country, national laws and regulations may be readily available on the internet or at a library. However, “common law,” the law developed by judges through court decisions, is also important in many countries (so-called “common law” countries), and is likely to be significantly more difficult to find and interpret. It will also be important to identify applicable local laws and regulations, which may be harder to find than their national counterparts. Furthermore, legal language can be difficult for a layperson to interpret accurately. A local lawyer should be consulted to help identify the likely effect of all applicable laws and regulations.The government bodies that are most likely to have regulatory authority include those in charge of the environment, agriculture, and forestry. If the host country has a climate change office or Designated National Authority (DNA), this would also be a natural place to look for more information specifically about carbon issues. In most places, applicable laws were not written with PES in mind, meaning that project developers must watch out for gaps or overlaps in regulation and missing or inconsistent legal requirements. For example, the ministries of environment and agriculture, which often have overlapping authority over forests, water resources, and land, may each have a valid claim of regulatory authority over PES. In exercising their authority, they may impose inconsistent or even contradictory requirements on sellers and project developers.
  • if the failure to obtain credits is the result of under-performance at the national levelThis enables a direct opportunity for the private sector to invest
  • The purpose of the R-PP is to build and elaborate on the previous Readiness Plan Idea Note (R-PIN) or a country’s relevant comparable work, to assist a country in laying out and organizing the steps needed to achieve ‘Readiness’ to undertake activities to reduce emissions from deforestation and forest degradation (REDD), in the specific country context. The R-PP provides a framework for a country to set a clear roadmap, budget, and schedule to achieve REDD Readiness. The FCPF does not expect that the activities identified in the R-PP and its Terms of Reference (ToR) would actually occur at the R-PP stage, although countries may decide to begin pilot activities for which they have capacity and stakeholder support. Instead, the R-PP consists of a summary of the current policy and governance context, what study and other preparatory activities would occur under each major R-PP component, how they would be undertaken in the R-PP execution phase, and then a ToR or work plan for each component. The activities would generally be performed in the next, R-PP execution phase, not as part of the R-PP formulation process.
  • Very few countries have succeeded in formulating in detail how to deal with tenure reforms. It proves to show that reforming tenure is more easily said than done.
  • Key policy issues for PES and REDD+

    1. 1. Training Workshop on Payments for Ecosystem Services (PES) and Reducing Emissions from Deforestation and Degradation (REDD+)<br />Nairobi, Kenya - August 9th, 2011<br />Key policy issues for PES and REDD+<br />Florence BernardASB Partnership for the Tropical Forest Margins<br />Slayde HawkinsForest Trends/Katoomba Group<br />
    2. 2. PES may be prohibited by Constitution or law<br />May be banning on selling ecosystem services, as a public good that is held on behalf of all<br />If sale of ES credits prohibited, may nevertheless be legal to contract to provide services that restore, conserve, ES<br />1. PES Allowed by Law?<br />
    3. 3. Tenure rules determine:<br />WHO can use<br />WHAT resources <br />For HOW LONG<br />Under what CONDITIONS<br />LAND TENURE<br />Legal or customary relationship of an individual or group with respect to land and other natural resources.<br /><ul><li>Common Tenure Challenges
    4. 4. Land title not validly vested in local users
    5. 5. Land use arrangements poorly defined or recorded
    6. 6. Unclear who has rights to ES revenue or whether transfer is permitted</li></ul>2.1. Tenure challenges<br /><ul><li>Existence of secure long-term use rights is an essential precondition for PES </li></li></ul><li>2.2. Rights in Ecosystem Services<br />Rights to sell ecosystem services credits generally must be implied from laws that are not directly applicable, because there are few official rules that explicitly allocate ecosystem services rights<br /> e.g. need to develop specific REDD+ legislation<br />Need to clarify multiple user rights <br />e.g. distinction between rights to carbon or benefits that flow from carbon versus the rights to the carbon credit itself or the title to the carbon emission reductions<br />For REDD+, Security of land tenure alone is insufficient in realizing Emission Reductions. Need to clarify and incorporate forest, tree and carbon tenure.<br />
    7. 7. 2.3. Customary rights<br />Customary tenure arrangements : complex structures based on local social conventions and traditions, vary across regions within a country and also over time. Statutory law ≠ Customary law<br />Customary rights may provide sufficient legal certainty, depending upon the circumstances. However, a lack of formal tenure rights exposes project participants and potential buyers to higher risk of challenge or conflict.<br />Prevailing tendency in tenure reform is to incorporate customary tenure rights in statutory law. Need for context-specific knowledge to inform national tenure reform processes.<br />Risk that land tenure regimes may not transition fast enough but important to avoid a rushed tenure reform that could lead to badly informed reforms that deepen inequalities rather than prevent them. <br />
    8. 8. 3. Application of existing law and responsible institutions<br />To understand how the existing policy, legal, and regulatory frameworks (environmental, water, forestry laws) apply to PES project<br />Who should be the key regulatory authorities?<br />Departments or Ministries Agriculture, Environment, Forestry / Climate change office<br />Need to strengthen institutional capacities to manage ES projects and establish links with international buyers (e.g. carbon). <br />E.g. REDD+: Need for a clear coordination mechanism to ensure that efforts to address REDD+ are effectively coordinated by different state agencies, civil society, private sector and communities. (Uganda RPP: through the national multi-actor RPP Steering Committee)<br />Accountability and transparency should be enhanced. <br />Pitfalls: conflicting laws or regulations, overlapping or conflicting authorities<br />
    9. 9. 4. Relationship Among National / Subnational /Project Level Activities<br />What is the appropriate subnational level (for example, council, district, provincial)?<br />Specify how subnationaland/or project level activities will relate to national baseline crediting, including:<br />What activities will be deemed to have contributed to the achievement of national-level goals?<br />How will credits earned at a national level be allocated to (and as among) subnational or project-level activities?<br />How (if at all) can project participants or participants in subnational activities be compensated independently of overall national performance?<br />
    10. 10. 5. Definitions<br />Clarity need around definitions of key terms such as "forest", "deforestation", "permanence", "crediting" etc, consistent with internationally agreed definitions.<br />What is a forest? When do trees become a forest?<br />
    11. 11. Purpose of the Readiness Preparation Plan (RPP)<br />The FCPF seeks to build the capacity of developing countries in subtropical and tropical regions for REDD, and to prepare them to take advantage of incentive mechanisms currently under development<br />To assist a country lay out and organize the steps needed achieving ‘Readiness’ to undertake activities that reduce emissions from deforestation and forest degradation (REDD), in the specific country context. <br />To provide a framework for a country to set a clear roadmap, budget, and schedule to achieve REDD Readiness. <br />
    12. 12. Policy issues covered in the REDD RPP<br />Preparation of a brief assessment of land use, forest policies and governance in the forest area;<br />Preparation of a consultation and outreach plan on the national REDD strategy;<br />Design of a social and environmental impact analysis methodology for the REDD strategy;<br />Design of a national REDD strategy;<br />Estimating investment and capacity building requirements for implementing the REDD strategy<br />Source: R-PPs on the website of the FCPF<br />
    13. 13. Analysis of how land and forest tenure are treated in selected R-PPs<br />In many R-PPs, there is awareness of the problems with weak tenure and its links to REDD+ readiness but lack of a strategy for action (WRI, Goers et al. (2011)).<br />Need for concrete steps and milestones for dealing with tenure issues.<br />It is likely that designing tenure reform will, for most countries, be a cumbersome and costly process.<br />

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