Legal Preparedness for REDD+

1. Legal Preparedness for REDD+ Law and Governance for REDD+ How can law support effective benefit sharing and participation in REDD+? Conservation Campus, IUCN World Conservation Congress 2012 Yolanda Saito, IDLO Legal Specialist, Green Economy Frederic Perron-Welch, IDLO Consultant, Biodiversity Law and Governance 8 August 2012

2. IDLO:Inter-governmental Organization Specialized in Legal and Institutional Aspects of Development Supporting Justice: Legal Capacity Building and Technical Assistance Programs on Sustainable Development & other issues. Multi-Year Initiatives: Legal Preparedness for Climate Change Initiative (LPCCI), Legal Preparedness for the Green Economy (LPGE) Specific Programs: Legal Preparedness for Achieving the Aichi Biodiversity Targets, Legal Guidebook on Low Emission Climate Resilient Development Strategies, Policy Briefs on Climate Compatible Development etc. Helping People: Legal Professionals; Governments; Policy Makers; Regulators; and Civil Society in Developing Countries, Transition Economies and Countries Emerging from Conflicts In-Country Programs: Active in over 175 Countries On-Site: Rome HQ, Offices in Bishkek, Juba, Kabul, Nairobi Community: Legal Alumni Networks in 44 Countries International Development Law Organization Who How Target Where

3. Making a Difference through Law

4. Presentation Overview Overview Legal Preparedness for REDD+ Analytical Framework: REDD+ Reference Tool Country Studies Findings: Mexico, Vietnam, Zambia and Kenya 4. General Guidance: Guiding Steps to Integrate REDD+ into Laws and Institutions

5. Law and Governance The Role of Law and Governance in REDD+ • Laws and institutions not only prohibit or incentivize but also provide an overall enabling framework that guides public and private sector activities towards desired ends. • Good governance is a pre-requisite for effective REDD+ at all stages from planning to implementation to reporting • Necessary to avoid adverse impacts of REDD+ activities • Key to achieving desired results (poverty reduction and climate mitigation).

6. Program Overview How was the Legal Preparedness for REDD+ Initiative developed? • Program developed through discussions and collaborations formed during at UNFCCC COP 16 CancunSide Event & COP 17 Durban Roundtable • FutureFocus: • New REDD+ Country Studies in Colombia, Ecuador and Guatemala, • Nextphases in existingcountriestodevelop Legal ActionPlansandCapacityBuilding training forgovernmentactorsandcommunities.

7. Law and Governance Why conduct a Legal Preparedness for REDD+ Study? • Useful tool to identify challenges and innovations to REDD+ implementation for countries considering REDD+ engagement • Target Audience: • Policy-makers: To increase understanding of legal aspects of REDD+ by national and subnational government policymakers; • Stakeholders: To engage & enable stakeholders to participate in decision-making processes • Engage in-country lawyers for a review of cross-sectoral laws impacting on REDD+ activities • Consultations across government ministries and key stakeholders • Drafting of Country Study Report • Multi-stakeholder Validation Conference to verify report findings • Incorporation of feedback and finalization of Report Steps in conducting a Legal Preparedness for REDD+ Study

8. Presentation Overview Overview Legal Preparedness for REDD+ Analytical Framework: REDD+ Reference Tool Country Studies Findings: Mexico, Vietnam, Zambia and Kenya 4. General Guidance: Guiding Steps to Integrate REDD+ into Laws and Institutions

9. Analytical Framework • REDD+ Reference Tool • Outlines international guidelines and safeguards for REDD+ from the Cancun Agreements & Durban Outcomes, and expert sources • (IUCN; UN-REDD & Chatham House; FAO & Profor, Baker & Mackenzie; ICV, Imazon & WRI) • Offers generic legal and institutional options • Not intended to be exhaustive/prescriptive, but rather to provide a foundation for a broad-based gap analysis to identify country-specific challenges and innovations. LPAR Mexico - Methodology

10. 4 Legal Principles for Strengthening Capacity for REDD+ LPAR Mexico - Methodology

11. Legal & Policy Options for Participation & Benefit Sharing • Forest and Land Tenure – Who can participate? • Legal frameworks that reflect de facto tenure • Laws supporting and protecting the attributions of entitlements • Land titling procedures that are clear, accessible and enforceable • Equitable rules on the alienability and acquisition of lands, FPIC & just compensation • Public Participation – How can they participate? • Clear rules on participation in decision-making – levels, timing ad mechanisms • Grievance procedures to signal unexpected REDD+ impacts • Dispute resolution mechanisms that are accessible and fair • Benefit Distribution Systems – How do they benefit? • Participatory decision-making systems for monetary & non-monetary BDS • Pricing tools, value addition and other incentives (e.g. ecotourism) • Rules on performance-based payments or MRV criteria • Systems for simultaneous payments for co-benefits

12. Presentation Overview Overview Legal Preparedness for REDD+ Analytical Framework: REDD+ Reference Tool Country Studies Findings: Zambia, Vietnam, Mexico and Kenya 4. General Guidance: Guiding Steps to Integrate REDD+ into Laws and Institutions

13. Country Findings: Zambia • Decentralized governments but lack of concrete governance rules, mechanisms and capacity and true forest benefits. • Forest and Land Tenure – Who can participate? • Customary tenure recognized, but no de factogovernance rules. • Public Participation – How can they participate? • Established participation rights BUT lack of participation mechanisms in decision-making process and lack of government capacity to review Joint Management agreements. • Benefit Sharing – How can they benefit equitably? • Lessons learned from existing BDS experience: • Game management areas (GMA) considered successful for redistributing tourist fees to community boards. • Joint forestry management (JFM) criticized for granting forest use rights only (honey, wood) with no “top up” incentives.

14. Country Findings: Vietnam • Centralized government structure with long history of participatory forest governance. Participation in decision-making limited but several benefit sharing innovations. • Forest and Land Tenure – Who can participate? • Households, individuals and communities only have rights to use lands and forests, not full ownership. Communities have carbon rights but no recognition as legal entities. • Public Participation – How can they participate? • Participatory laws exist but centralized administration raises challenges to participatory decision-making at the local level. Participation limited to implementation, not planning (decreed by Govt). • Benefit Sharing – How can they benefit equitably? • Payments linked to performance by using a formula to assess the actual and potential carbon stock of local forests. • National dedicated fund for REDD+ • Piloting Free Prior Informed Consent systems

15. Country Findings: Mexico • Decentralized system with remaining challenges and promising innovations at federal, state & local levels. • Forest and Land Tenure – Who can participate? • 70% of land are within self-governed ejidoswith rights to contract and convert land. • For carbon rights, in certain pilot carbon sequestration projects, instead of requiring formal deeds, community testimony on land tenure rights suffices to grant entitlements to communities to participate. • Public Participation – How can they participate? • Participatory rights are enshrined in environmental & natural resources and forestry sectors but implementation remains a challenge. • Benefit Sharing– How can they benefit equitably? • Federal government has initiated a PES scheme for carbon sequestration and biological diversity, providing economic incentives that replaces agricultural practices and reduces deforestation.

16. Country Findings: Kenya • Promising new legal reform but more work needed on capacity building for implementation and clear, accessible mechanisms. • Forest and Land Tenure – Who can participate? • Recent 2012 legal reform has set up a secure and equitable land tenure system with accessible titling, gender equity principles, land dispute resolution mechanisms and participatory processes throughout. • Public Participation – How can they participate? • Forest Act allows formation of Community Forest Associations (CFAs) that can submit Forest Management Agreements (FMAs). However, hindered by lack of government capacity to process Agreements. • Benefit Sharing – How can they benefit equitably? • Constitution calls for equitable sharing of benefits but no guidance provided. Conflicts over BDS may be handled by costly litigation in formal court system.

17. Presentation Overview Overview Legal Preparedness for REDD+ Analytical Framework: REDD+ Reference Tool Country Studies Findings: Mexico, Vietnam, Zambia and Kenya 4. General Guidance: Guiding Steps to Integrate REDD+ into Laws and Institutions

18. Guiding Steps to Integrate REDD+ into Laws & Institutions • Stakeholder Engagement • Consider Range of Legal Instruments • Cross-Sectoral Analysis • Review • Realistic Policy-Mix • Iterative Framework LPAR Mexico - Methodology

19. For more information • For more information on the Country Studies, please contact primary expert authors: • REDD+ Analytical Tool - Sarah Mason Case, smasoncase@idlo.int • Cross-cutting Paper - Sarah Mason Case, smasoncase@idlo.int • Legal Preparedness for REDD+: Zambia - Sarah Mason Case, smasoncase@idlo.int • Legal Preparedness for REDD+: Mexico - Liliana Del Villar, ldelvillar@idlo.int • Legal Preparedness for REDD+: Vietnam - Phan Tuan Hung, Hung@idlo.int • Legal Preparedness for REDD+: Kenya - Grace Kimani, gkimani@idlo.int • Legal Preparedness for REDD+: Colombia, Ecuador, Guatemala – Cecile de Mauleon, cdemauleon@idlo.int

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