Identifying and Working With Beneficiaries When Rights Are Unclear

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INSIGHTS FOR REDD+ INITIATIVES

Authors:John W. BrucewithRobin Nielsen

iDENTiFYiNG AND WORKiNG WiTH

BENEFiCiARiES WHEN RiGHTS ARE UNCLEAR

FEBRUARY 2012


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Acknowledgments

This paper was prepared by John Bruce with the assistance o Robin Nielsen. John W. Bruce

has worked on land and orest policy and law in numerous developing countries, primarily

in Arica and Asia and published extensively on the subject. He holds a BA in International

Relations rom Laayette College, a JD rom Columbia University Law School and an SJD

rom the Law School o the University o Wisconsin-Madison. Robin Nielsen is a practicing

attorney, with 15 years o corporate legal experience and ten years as an international land

tenure specialist. Her land tenure work in South Asia, Arica, and the Middle East ocuses on

the legal empowerment o marginalized populations and support or local community land

rights and land development interests.

The work was unded by the Trust Fund or Environmental & Socially Sustainable

Development (TFESSD) and the Program on Forests (PROFOR), a multi-donor partnership

managed by a core team at the World Bank. PROFOR nances orest-related analysis andprocesses that support the ollowing goals: improving peoples livelihoods through better

management o orests and trees; enhancing orest law enorcement and governance;

nancing sustainable orest management; and coordinating orest policy across sectors.

In 2012, PROFORs donors included the European Union, Finland, Germany, Italy, Japan,

the Netherlands, Switzerland, the United Kingdom and the World Bank. Learn more at

www.proor.ino

Disclaimer

All omissions and inaccuracies in this document are the responsibility o the authors. The

views expressed do not necessarily represent those o the institutions involved, nor do theynecessarily represent ocial policies o PROFOR or the World Bank.

Suggested citation: Bruce, John. 2012. Identiying and Working with Benefciaries When

Rights Are Unclear: Insights or REDD+ Initiatives. Washington, DC: Program on Forests

(PROFOR).

Published in February 2012

For a ull list o publications please contact:

Program on Forests (PROFOR)

1818 H Street, NWWashington, DC 20433, USA

[email protected]

www.proor.ino/proor/knowledge


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ARDFCO Agricultural, Rural Development and Forestry Department Coordination Oce

CFJJ Centre or Juridical and Judicial Training

CFM Community Forest Management

COBA Communautes de Base

CSO Civil society organization

DENR Department o Environment and Natural Resources

FAS Fundao Amazonas Sustentvel

FCPF Forest Carbon Partnership Facility

FONAFIFO Fundo Nacional de Fianciamento Florestal

FUG Forest user group

GELOSE Gestion Locale Scurise

GFC Gestion Contractualisee des Forets de lEtat

ICDP Integrated Conservation and Development Project

IDESAM Amazonas State Institute or Conservation and Sustainable Development

MCC Makira Carbon Company

MEFT Ministry o Environment, Forest and Tourism

NJP National Joint ProgrammePAMB Protected-Area Management Board

PDD Project design document

PES Payment or environmental services

RAI Responsible Agricultural Investment

REDD+ Reducing Emissions rom Deorestation and Forest Degradation, plus

conservation, sustainable management o orests, and enhancement

o orest carbon stocks

RUPES Rewarding Upland Poor or Environmental Services

SDS/AM Amazonas State Secretariat o Sustainable Environment

SNNPR Southern Nations, Nationalities and Peoples Region o Ethiopia

SOC State-owned company

SRA Social responsibility agreement

WCS Wildlie Conservation Society

ACRONYMS

ii iACRONYMS


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TABLE OF CONTENTS

EXECUTIVE SUMMARY ___________________________________________________ vii

1. INTRODUCTION _______________________________________________________

2. WHO SHOULD BENEFIT? RIGHTS, BENEFIT STREAMS, AND REALITIES _____________ . Rights, Claims, Other Interests, and Income Streams ____________________

. Legal Pluralism and Its Implications __________________________________ 8. Customary Land Tenure Rights ______________________________________ 9. Sources o Legal Uncertainty _______________________________________. Interests Unsupported by Rights ___________________________________

3. IDENTIFYING BENEFICIARIES ___________________________________________ . Assessing Potential Criteria or Legitimacy ___________________________ . Assessing Legal Framework _______________________________________ . Assessing Perceived Rights and Other Claims _________________________ . Importance o Distinguishing Among Intended Beneciaries ______________7. Constraints to Identiying Beneciaries: Capacity, Costs,

Politics, and Interests ____________________________________________ 8. Property Rights as Benets _______________________________________ 9

4. DEALING WITH UNCERTAINTY___________________________________________ . Process: Creating and Realizing Clear Expectations on Benets ___________ . Clariying Carbon Rights __________________________________________ 8

5. CONSULTING EXPERIENCE: GOOD PRACTICE EXAMPLES _______________________ . Makira Forest Protected Area Project (Madagascar) ____________________ . Humbo Community-Managed Natural Regeneration Project

(SNNPR, Ethiopia) _______________________________________________ 7. Juma Reserve Red Project (Amazonas, Brazil) _________________________ . Lessons From Practice ____________________________________________ 7

6. CONCLUSIONS AND RECOMMENDATIONS__________________________________

REFERENCES __________________________________________________________

ANNEX I: RAPID ASSESSMENT METHODS ______________________________________7

ANNEX II: LEGAL FRAMEWORK FOR CARBON: BEST PRACTICES ____________________ 7

ANNEX III: LEARNING FROM EXPERIENCE _____________________________________77

vTABLE OF CONTENTS


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FIGURES

Figure .. Vertical and Horizontal National Benet Sharing ___________________ Figure .. Coexisting Multiple Sources o Property Rights ___________________ 8Figure .. Makira Revenue-Sharing Plan ________________________________ Figure .. Juma Reserve Project Investment Plan 8 ________________

Figure .. PES: Bolsa Floresta Investment Plan 8 __________________ Figure .. Distribution o Investment Among BolsaFloresta Programs: 8________________________________

TABLES

Table III.. Lessons or Benet Sharing Under REDD+From Review o Experiences ___________________________________77

BOXES

Box .. Property Rights Under National Law _______________________________ Box .. The Reassertion o Customary Claims _____________________________

Box .. Negotiating with Rs __________________________________________ 8Box .. Facilitating Negotiation _______________________________________ 9Box .. Importance o Capacity Building ________________________________ Box .. Addressing an Unequal Benet System ___________________________ Box I.. Rough Quantication o Dependence on Resources __________________ 7

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oten recognized and applied locally, including customary tenure rights. Accordingly, it is important

to assess perceived rights and interests. This assessment will need to include identication o claims

that may have lain allow or some time, but will be pressed more seriously once project benets

are anticipated.

A critical assessment must be made o the enorcement capacity o government and local institutions,

the costs o such enorcement, and the politics and vested interests involved in the key institutionalactors. Competition among those institutions or control, particularly in the case o overlapping legal

mandates, need to taken into account in beneciary identication and benet allocation.

Prior to identiying beneciaries, it is necessary to develop a tentative understanding o what

legitimacy means in a given context. This would provide a ramework or consultations and

negotiations with the various stakeholders. For this paper, the notion o legitimacy is tied to identiying

whose claims and use o the resource base o concern should be recognized and addressed, and

also whose incentives need to be changed among the local stakeholders.

DiSTiNGUiSHiNG AMONG BENEFiCiARiES

A preliminary identication o communities and other stakeholders and the benet they derive

rom the resource o concern will be necessary to assess in terms o their legal basis. The latter

determines the extent to which laws might require certain kinds o compensation. It will be important

to distinguish between potential REDD+ beneciaries who have: (a) property or other legal rights

(including those who have customary rights recognized by national law), (b) customary claims to

such rights which are not recognized by national law, and (c) those who simply have established

benet streams rom the resource. All these should be considered potential beneciaries, but their

REDD+ benets will need to be assessed and dierently ormulated.

PROPERTY RiGHTS AS A BENEFiT

While beneits have typically been thought o in terms o compensation or jobs, a third approach

is to provide greater security o land tenure as a beneit. Secure land tenure is a potential

determinant o production o environmental services, and more secure rights over land and

other resources can be used as an incentive or or reward or delivery o environmental services.

Security o tenure beneits will usually take time to deliver. They should not be seen as a

substitute or more immediate, highly tangible beneits, but as a supplement that can be critical

or sustainability.

DEALiNG WiTH UNCERTAiNTY

Lack o clarity regarding rights and claims can be a medium-term impediment to payments

or environmental services, including payments or carbon. The call or secure tenure through

ormal legal recognition o local rights to orest, orest land, and orest products and rights to

shared benets is justied and should be the objective. The challenge, however, is conclusively

resolving the issues in a satisactory time rame. There are some immediate term options that

could contribute to the larger goal o secure rights. A legal option worth exploring is the use oregulations under the appropriate laws, or example, orestry law. Regulations do not alter the law

or nulliy existing property rights, but where the law is vague, regulations can be used to clariy it or

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even ll in the gaps. Where legal changes are not easible in a timely ashion, an option is to resort

to negotiated agreements with potential beneciaries and other entities. These agreements may

be needed even where the law is not ambiguous. Agreements, such as contracts, allow or parties

to speciy their assumptions about ownership and other rights while acknowledging that the

assumptions may be corrected by later events and speciy what will happen i those assumptions

turn out to be wrong. Contracts that clearly identiy interests to be recognized, speciy which

uses may continue and what uses must be eliminated, and speciy the compensation (whether

nancial or other) provide a remarkably fexible means or addressing the issues surrounding

ownership and rights with identied beneciaries.

CREATiNG AND REALiZiNG EXPECTATiONS ON BENEFiTS

Process will be as important as substance in creating and sustaining clear expectations concerning

benets. Consultation is needed, and is well addressed in many REDD initiatives. Actual engagement

and negotiation with all concerned is oten less well done. Negotiation processes help fesh out how

the principles and standards that underpin the agreement will be implemented in the case at hand.

The negotiation process puts fesh on those bones, but because o the discrepancies in power

and knowledge among parties, the negotiations and outcomes must be held to clear standards.

Negotiation processes can enhance the enorceability o the agreement o project partners and

reduce risk o nonperormance and unintended consequences. Where a project brings together

multiple parties with dierent rights, interests, levels o sophistication, and experience with legal

systems, tools, such as the 4R, can help organize and guide the negotiation process.

An important outcome o capacity assessment mentioned above will be processes to build the ability

o key institutions to make and enorce management decisions. Carbon projects add additional

complexity to the already signicant issues in capacity building because carbon projects areinherently output oriented, requiring reliable monitoring to support the concept in an environment

o uncertain legal rights. Capacity building will be important in areas such as negotiation, site-specic

technical areas and knowledge sharing, transparent nancial systems, monitoring, legal rameworks,

and organizational, management, and general business skills.

Implementation processes will be more successul to the extent that they continue the participatory

tone o earlier stages o interaction with stakeholders. Enorcement processes will always be required

and will be made easier i incentive structures or locals are well designed, encouraging them to

participate constructively in enorcement tasks, such as monitoring violation o agreements. Because

disputes will always arise, dispute resolution processes need to be built into agreements. While it

may not be possible to deal with legal conusions and gaps regarding rights to carbon beore REDDinitiatives are launched, they should be an ongoing element in creating sustainability, and will oten

be best accomplished incrementally, building on experience.

CONSULTiNG EXPERiENCE: GOOD PRACTiCE EXAMPLES

Good practice examples rom Madagascar, Ethiopia, and Brazil are reviewed, and lessons suggested.

They suggest the importance o:

Adequate up-ront analysis o the legal ramework and both legal and customary interests in theREDD resource. Such analysis can help identiy how local communities could take advantage o

the ormal law in order to have their customary rights recognized.

iXEXECUTIVE SUMMARY


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Identiying perceived rights and interests, because perceptions may be as important as realities

or the creation o benet packages that contribute to the legitimacy and sustainability o the

REDD initiative. Consultations are important to understand these perceptions. Consultations can

bring to the surace divergent interests in a group and can indicate the extent o relevant social

and economic relationships at the local level.

Negotiation o relatively simple, fexible contracts among the interested parties is perhaps themost critical step in the creation o an eective REDD initiative. These create clear expectations

and common understandings, and can ll gaps and resolve conusions in the law concerning

rights in the REDD resource.

Good practice projects beneted rom signicant capacity building or local communities, various

government entities, and project implementers. Institution building is oten a precondition or

eective resource management.

Initial implementation may be disappointingly slow; attention to the needs noted above may

result in signicant start-up times and transaction costs or eort, but it lays the basis or smooth

implementation down the line.

Contracts can be used to vest rights to carbon and transer rights to carbon rom the state to local

groups. Contracts are fexible legal tools that allow the parties enormous reedom to adapt the

terms to specic circumstances or avoid some terms altogether.

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Expert statements indicate that annually approximately 20 billion dollars will be needed to prevent 90

percent deorestation in tropical countries. Development practitioners are eager to see the benets

rom REDD+ initiatives shared with local partners. Equally important to understanding how local

partners might benet are questions such as, who should derive benets rom REDD+ initiatives, and

how to ensure these initiatives reach the aected households, individuals, communities, companies,

and government units. Getting benet-sharing rights is undamental, as it will determine how REDD+

initiatives serve a broader development agenda and prevent them rom centralizing decision making

and enabling elite capture.

One o the challenges associated with sharing benets rom sales o carbon and other REDD+

activities is the challenge o identiying and engaging intended recipients when rights to the

resources are unclear. This paper examines how to address this challenge by adopting a legal

pluralism ramework and discussing the potential role o legal instruments such as contracts. While

the analysis ocuses largely on REDD+ activities that involve land, orests, and carbon sequestration,

many o the principles suggested are applicable in a broad sense to REDD+ projects dealing with

energy and other matters.

Recent REDD+ discussions are inclined toward a national approach to applying credit rather than as

a subnational approach, as in the case o the Clean Development Mechanism. Wertz-Kanounniko(2010, 25) suggests there is an intermediate nested approach in which credits are awarded at

both national and local levels. Costenbader (2009, 109) notes that both national and subnational

approaches have advantages, but expresses concern that nation-based REDD policies would

require strong governance and eective administrative checks. In many potential host countries,

insucient institutional capacity may seriously obstruct the implementation o a nation-based

approach. In this connection, a project-based approach to REDD could be implemented more

quickly and better accommodate in-country heterogeneity. He also urges hybrid arrangements.

At the same time, there is growing empirical evidence that community-based orestry can, i

implemented with secure property rights and local rule-making autonomy, produce results in the

high carbon storage sought by REDD initiatives, and also produce substantial livelihood benets(Chhatre and Agrawal 2009).

IUCN (2009, 5) in gure 1.1 below useully conceptualizes benet design and allocation as having

both a vertical and horizontal dimension.

Whatever the approach taken, the sustainability o the REDD initiative will heavily depend on whether

there is an adequate determination o local as well as national beneciaries.

A quick review (conducted in early 2011) o countries engaging in REDD+ initiatives through the

Forest Carbon Partnership Facility (FCPF) and their perormance against the Worldwide Governance

Indicators o 2009 shows that REDD+ initiatives will be taking place in countries where theenorcement capacity o the courts and government agencies is decidedly weak, as evidenced

by broad governance indicators. Enorcement will play an important role in maintaining any orest

1 iNTRODUCTiON

1Chapter 1: INTRODUCTION


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As Swallow and Meinzen-Dick (2009, 250) point out, trying to deal with complex local situations

with multiple actor institutions can incur serious transaction costs, specically negotiation and

enorcement, and so can pose obstacles to unctional markets or environmental services.

Negotiation costs include the time, social, and nancial costs o organizing buyers and sellers into

operating units, as well as the costs o establishing contact, preparing necessary documentation, and

negotiation between buyers and sellers. Enorcement costs include certication, monitoring, and

enorcing contracts between buyers and sellers, and among groups and buyers and sellers. Oten

intermediaries, such as NGOs, will be needed, but care must be taken with the costs involved or

the intermediaries can absorb too much o the unding that is needed to create incentives at the

community and individual level (IUCN 2009, 3).

In this context, it is critical that there be an identication o beneciaries that is both legally correct

and pragmatic. I aected communities and others who have property claims or established income

streams rom the resource are let out and do not benet rom the initiative, their cooperation,

which will oten be crucial to eective enorcement, is not likely to be orthcoming. The experience

with ICDPs and commercial orestry concessions suggests that getting this right is a make-or-break

sustainability issue.

With regard to beneciaries, two key issues prevail. One set o issues concerns property rights in the

land and trees concerned. Clear and secure property rights are a prerequisite or a market in those

rights. That situation is acerbated in many countries by the poor integration o coexisting land tenure

systems, including customary land-tenure systems, and the oten striking gap between the ormal

legal position and the normative reality on the ground. Eective design requires that both be taken

seriously. The second issue is how the rights and responsibilities o the beneciaries can be made

more clear in the short to medium term.

Identication o beneciaries determines who should be involved in the negotiation and structuring/

design o benets. It also infuences who should benet by directly creating incentives or sustainableREDD+ initiatives, and what is the optimal balance between incentives and enorcement given

government capacity in the latter. Knowing who should be the beneciaries and addressing these

questions will be important to minimize REDD+ initiatives advertently or inadvertently aecting the

outcome o contestations over control o land and orest resources, in particular, those between

central or local government and local communities.

The identication o beneciaries in this context should be pragmatic. It should take into account

existing property rights, but will need to deal with some sensitivity with historic customary claims

even where these are not recognized in national law, and even the existence o interests in income

streams rom the resource which have no arguable legal basis and may indeed be illegal. Benets

will need to be distributed with a clear ocus on sustainability o the REDD+ initiative.

There also are oten issues concerning the legal identity o the community or group. This has

implications or their capacity to own property or enter into legally binding agreements. The group

may not have corporate legal personality, that is, recognition by the state as a legal entity. This issue

oten arises in the case o traditional communities who use orest resources. Similarly, the national

law may not be clear about who is entitled to represent these groups, and raises questions about

the appropriateness o signing agreements with traditional authorities. Because traditional polities

oten involve hierarchies o leadership, or instance, paramount chies and subsidiary chies, issues

may also arise as to which level o traditional leadership can represent the community in relation to

the orest resource.

3Chapter 1: INTRODUCTION


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Solutions or institutionalizing the rights and responsibilities o the beneciaries may be in part

legislative, but hasty legislation may itsel miscarry. Incremental steps toward creation o an adequate

legal ramework may be more appropriate. In the meantime, the solution may lie in careully

negotiated and thoroughly understood agreements among the REDD+ sponsors, the governments,

and local communities or individual beneciaries.

This paper explores the substantive legal issues and procedural options or identiying beneciariesin such contexts and ways o working with them despite the legal uncertainty. It gives considerable

attention to process, an approach refecting the diversity o the situations on the ground. To explore

these issues, the paper draws upon several relevant bodies o learning on orestry projects and

programs, including the literatures on land, tree and orest tenure, legal pluralism, orest project design

and implementation, the protection o indigenous peoples, and resettlement issues associated with

development projects. The paper also explores how contracts or agreements could be used to work

with the beneciaries and clearly capture the dierent parties rights and responsibilities. It examines

experiences discussed in the literature, and reviews three good practice projects. Lessons are drawn

rom both those projects and earlier relevant experiences. Because REDD+ subnational projects

have only been underway or a short time, and their experience with beneciary identication isnot well documented, many o the relevant experiences with the issues explored here come rom

pre-REDD+ orestry projects and programs.

It should nally be noted that there is no one solution. The very diversity o ongoing and planned

REDD+ initiatives requires an approach that suggests options rather than prescriptions. The nature o

the initiative, or example, whether it is national, subnational, or local, will aect how the approaches

set out here are implemented and by whom. (Annex 3 suggests some basic parameters.) It is,

however, an underlying assumption o this paper that any REDD+ initiative, however ramed, is likely

to be successul and sustainable only i it seriously addresses local interests and issues. The REDD+

sponsor, whether public or private, needs to take responsibility or seeing that this happens.

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As Robledo et al. (2008) and others have noted, property rights to carbon, orest, and land aect

who is accountable or managing orest carbon and who should receive incentives. This chapter is

concerned with the range o rights and other claims or a share o the benet streams created by

REDD+ initiatives. It explores the nature o interests in orests that may need recognition, whether this

is required by law, equity, political, or pragmatic considerations. It goes on to explore the diculties

that commonly arise in identiying which claims should be recognized and proposes a pragmatic

approach to these issues. It examines ways in which legal uncertainties can be resolved, exploring

the relative roles o legislation and contract in dealing with such issues.

2.1 RiGHTS, CLAiMS, OTHER iNTERESTS, AND iNCOME STREAMS

The REDD+ community has only gradually recognized the importance o property rights in resources

that could be aected by REDD+ initiatives (Cotula and Mayers 2009). Ecient and reliable markets

require clear property rights in the property to be transacted. Experience in the arena o payments

or environmental services has shown that contracts to purchase environmental services, including

carbon, will require that the environmental service providers have clear and secure rights to perorm

the agreed-upon actions, or exclude prohibited actions, on the land concerned, because this is seen

as necessary to generate a credible commitment (Climate, Community and Biodiversity Alliance

2010a; Swallow and Meinzen-Dick 2009). PES initiatives require conditionality, and i local service

providers (local land users) cannot guarantee service provision on the basis o the right to exclude

others rom interering with the service, PES will not work. Buyers o environmental services will

tend to concentrate on opportunities where the service providers can oer spatially well-dened and

airly secure property and access rights. Given the requency o insecure land tenure arrangements

in the Southern Hemisphere, this institutional constraint is oten binding (Borner et al. 2010). Many

orest-dependent communities are unable to benet rom PES because they lack legal recognition

o their land claims (Boyd et al. 2007). In Costa Rica, or example, a national law on allocation o

unds to distribute REDD benets orbids ecosystem service payments to residents lacking legal title

(Pagiola 2008).

In act, there are oten a wide range o legal and other interests in resources o concern or REDD+

initiatives. International law contains some directly relevant provisions, the key treaty being ILO

Convention 169, which recognizes the rights o ownership and possession o indigenous peoples,

and requires states to consult these peoples on the allocation o natural resources on indigenous

lands. The United Nations Declaration on the Rights o Indigenous Peoples requires the promotion

o processes or the recognition o the rights o indigenous peoples to their lands, territories, and

resources (including carbon assets) and or the implementation o provisions on the ree, prior,

and inormed consent o indigenous peoples, small orest owners, and local communities. It will

be important to ascertain i the country where a REDD+ initiative is planned has acceded to this

agreement. Even i they have not, these conventions are molding expectations, even in countries

that have not agreed.

2 WHO SHOULD BENEFiT?RiGHTS, BENEFiT STREAMS, AND REALiTiES

5Chapter 2: WHO SHOULD BENEFIT? RIGHTS, BENEFIT STREAMS, AND REALITIES


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In national law, the sources o rights in such resources o concern in REDD+ initiatives are

typically the Constitution, the Land Law (or the immoveable property provisions o the Civil

Code), the Forestry Law, and other laws on natural resources and the environment. Governments

in many developing countries have long claimed ownership o orest lands. Those claims oten

originated in the colonial period, when colonial powers claimed ownership o all land by right

o conquest in order to have land readily available or allocation to settlers or concessionaires

rom the metropole. Postindependence governments have, in most cases, embraced this

inheritance rom colonial law, and have oten displaced populations or development or other

projects without compensation and with impunity. Currently, governments claim statutory rights

in Latin America (approximately 33 percent), Asia (approximately 67 percent), and nearly all o

Arica (98 percent), while local communities rights are not recognized. Historically, orests have

been appropriated by the state and commercial interests (Springate-Baginski and Wollenberg

2010, 5). (For a recent and robust review o Forest Law and its relationship to sustainable

development, see Christy et al. 2007.)

The Constitution will usually speciy what natural resources are owned by the state and dictate what

kinds o property rights may exist in these resources, or instance, whether private ownership othose resources is possible or only lesser rights consistent with state ownership. The other laws will

provide the details. These laws may not be entirely consistent with one another, and the agencies

entrusted with their implementation may argue or expansive interpretations o their mandate over

land and orestsorest land is oten not well denedresulting in tensions among the government

agencies concerned.

Carbon rights are a orm o property right that commoditizes carbon and allows it to be traded,

separating rights to carbon rom broader rights to orests and land. They also dene management

responsibilities and liabilities. In a ew cases, there may be a law dealing specically with rights to

carbon resources. In such cases it is important that carbon rights be dened in national legislation

(Cotula and Mayers 2009).

There are a considerable variety o legal approaches to the legal ramework or carbon rights and

markets. In some countries, such as Australia and New Zealand, there is specic carbon rights

legislation. In other countries, modications o orestry law are used to create carbon rights. In still

others, common law and civil law legal institutions are used to create tradable carbon rights. (The

diversity o approaches is dealt with in greater detail in section 5.2 below.) Property rights are, in

general, rights recognized by law in objects, including land and land-based resources, such as the

soil, trees, buildings, and anything else attached to the land. While we oten speak o them as rights

in a thing, in act these are rights against everyone with regard to the object, such as the right o

the owner to exclude everyone rom the property. Some basic property rights in land, which oteninclude rights in trees and other carbon resources, are listed in box 2.1 below.

BOX 2.1. PROPERTY RiGHTS UNDER NATiONAL LAW

Ownership is the most expansive right, and includes the rights to use the land, to take its production

and proit rom it, to pass the land to ones heirs, and to sell, lease out, or otherwise transact the

land. Ownership o land is assumed to include ownership o all resources on and in the land, unless

some law speciically provides otherwise (as where mineral rights are reserved to the state) or a

contract provides exceptions to the contrary in particular cases. An example o the second exceptionwould be a commercial orestry concession agreement that provides that trees planted belong to

the concessionaire.



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It is, however, not uncommon to ind nominal state ownership o all land, with those using the land

operating it under a usuruct (a use right). This is a long-term (oten perpetual) and inheritable

right to use and beneit rom the land recognized by the state. It is oten used where the state is,

or some ideological or practical reason, not comortable with ull private ownership. But it may

also exist speciically or a particular resource, such as orests, where these are public property.

Usuruct oten comes about through a legal ratiication by statute o long-term use and occupation

o land. Limits are oten placed on the transerability o use rights. The assumption is that trees on

the land are held with the land by the usuructuary, but care should be exercised as the law or the

grant document may provide otherwise.

National law typically also recognizes other more limited rights in land and trees. One is state leasehold,

where land owned by the state is leased to a private entity. A lease originates in a lease agreement

between the state as landlord and another party as tenant. (There are also statutory leases, where a

lease relationship is declared to exist by law in the absence o an agreement, but these are unusual.) Alease, unlike a usuruct, is never perpetual but always or a specied period (its term), requires payment

o annual rent (or sometimes a capitalized rent paid up ront), and typically cannot be inherited or

transerred without the consent o the owner. Leases may be made subject to conditions by the state,

such as development conditions, and levels o conditionality vary widely between countries. The legal

assumption is that trees on the land are held with the land by the leaseholder, but laws or the lease itsel

may provide restrictions to the contrary and so care should be taken to clearly understand the position.

The concession, oten used in the case o orests, is best thought o as a specialized lease, usually o

state land. While leases are given to allow the tenant to use the land as he or she wishes, concessions

are given in pursuit o a government purpose, so that the concessionaire will carry out tasks that

the government wants perormed on the land, such as orestry. Because o this, concessions tend

to be highly conditional. The rights in trees themselves may be ramed quite dierently rom case to

case, even within a given country. While the land law may have special provisions or concessions,

this is oten not the case.

A license is a considerably weaker legal right, and less a right in land than a right to do something

on the land. It is a permission rom the owner or other holder o the land to carry out some activity

on the land, which may include use o its trees or other resources, or a speciic period o time. A

license to cut timber or a season or rotation would be an example. Such rights are granted by theowner, tend to be or a relatively brie period o time and highly conditional, and are relatively easily

terminated by the grantor.

Customary land tenure rights exist in much o the worlds orest land. These arise out o the custom

o land-using communities. Those communities have institutions which, to a greater or lesser degree,

manage access to such land. Oten customary rights are recognized by national law and, in the case

o indigenous peoples, are recognized and protected by international law. Alternatively, they may not be

recognized, and this creates a major disconnect between the legal position and reality. Customary rights

are discussed at some length in section 2.3 below, because many dealing with REDD initiatives have

limited knowledge o them.

Source:Author.



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Beyond the rights legally provided or in national law, there will be rights o indigenous peoples

arising out o international law, customary land tenure rights, which may or may not be recognized

in national law, and claims which are based in law, but are o questionable validity. All are interests

which will contend or recognition and a share in benets.

2.2 LEGAL PLURALiSM AND iTS iMPLiCATiONS

National law, whether in statute or jurisprudence, will oten not be the only law at play in a nation.

In the case o nations with ethnic and social complexity, their normative systems will oten refect

this, including bodies o laws rom a variety o traditions, which easily or uneasily coexist with one

another. This phenomenon is reerred to as legal pluralism, and most national legal systems are

pluralistic to a greater or lesser degree. This is obvious in countries which have ederal systems or

other decentralized systems o law making. But other bodies o law, which do not originate in any

level o ormal government, may also be in play.

Figure 2.1 illustrates legal pluralism.

In a legally pluralistic society, the state has operating within it a number o bodies o law o nonstate

origin and oten o local application. One is international law, based on both long-standing international

FiGURE 2.1. COEXiSTiNG MULTiPLE SOURCES OF PROPERTY RiGHTS

Internaonal

Project

Local/customary

and

organizaonal

State

Religious

Source:CAPRI; IFPRI.



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practice and treaties and agreements to which the government may have acceded; there may

also be bilateral treaties which protect investments o their citizens in the other country. Another,

and more important, is customary law. In the case o land, this is customary land tenure, norms

developed by traditional substate communities to govern land access and use by their members.

Customary land tenure may or may not be recognized by the state. A third is religious law, such as

Islamic law, in this case a supranational body o law to which citizens o the country owe allegiance

and which may or may not be recognized by national law. A ourth is project law, which occurs

when a project (typically a donor-unded development or conservation initiative) introduces rules

that it enorces within the project area. A major orestry concession agreement may in eect create

a legal microclimate or the concession area, determining eective legal rights in the area. One o

the issues considered later in this paper is when and how it may be appropriate to try to create by

agreement o the state and nonstate actors a particular and exceptional legal environment or REDD

initiatives.

2.3 CUSTOMARY LAND TENURE RiGHTSCustomary law is a major constituent o the normative ramework in many developing countries.

Numerous varieties o customary land tenure oten coexist in an ethnically diverse country, refecting

both local culture and local land-use patterns. Customary land tenure is most extensive in Arica,

where most rural land use and some urban land use is determined by it, but also is ound in

substantial areas o Latin America (typically those occupied by indigenous peoples) and Southeast

Asia (notably in Indonesia and the Philippines) and numerous Pacic Island nations. Even in the

relatively developed world (the United States, Canada, New Zealand, and Australia), customary land

tenure continues to play a role in determining the land rights o rst peoples.

Many o the worlds orests and other resources o importance or achieving REDD+ are aected bycommunity claims o customary land tenure rights (or example, DRC, Liberia, Panama). White and

Martin in 2002 ound that in developing countries 22 percent o orests were managed or owned

by communities and in 2008, another study o the same countries ound that 27 percent o orests

were owned by or designated or communities and indigenous peoples (Sunderlin, Hatcher, and

Liddle, 2008)

These communities vary widely in size, and their social organization oten nests smaller communities

within larger communities in a hierarchical relationship, as in the case o villages under the authority

o the tribe to which they belong. A hierarchy o land administration may exist, with dierent

competences at dierent levels, as where a local authority may allocate unused land but theallocation may need to be conrmed by a higher authority.

Most such communities, under their customs, regard orests as common property resources owned

by the community, their use shared by community members and regulated to varying degrees by

traditional institutions. For example, the edges o the orest may be regarded as a reserve o land

or arming by uture generations, or used sporadically in systems o orest allow cultivation. Deeper

in the orest, community members may be relatively ree to hunt and gather both timber and

nontimber orest resources. However, there may be important special-use niches, such as sacred

groves or spirit orests, or areas where commercially valuable substances can be extracted, or areas

where special medicinal herbs and other such resources are husbanded. There may also be stands

o economic trees such as rubber trees or gum Arabic trees.



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While customary ownership o the orest resource is usually in common, community authorities

may give individuals, lineages, or clans particular privileges or exploiting and responsibilities or

protecting such special resources. In these cases, there are rights o individuals and groups within

the community that deserve attention as well as the community rights. To complicate matters,

orests oten lie between communities, and the orest may include not very clearly dened territories

o a number o communities.

These situations are common regardless o whether national law regards the orest as owned by

the community or owned by the state but subject to a community use right, or does not recognize

customary rights. In some cases, as in the Philippines, there is relevant legislation: The Indigenous

Peoples Rights Act 1997 protects the ownership o customary possessory rights to ancestral lands,

and provides a process or the titling o these lands. In Mozambique, the 1975 land law conrms

the use rights o rural communities in their territories, and provides or a process o delimitation

and certication o community land rights. In Ghana, the law clearly recognizes the customary land

rights o citizens and provides or their registration. In all these cases, only a very small portion o

the land is potentially covered; less than 10 percent has been clearly identied, demarcated, and

ocially recorded.

Where such customary rights are recognized by national law, their holders must necessarily be

included as legitimate beneciaries by REDD initiatives. The question then is the exact nature o

those rights, and the task is to assess their value and how they relate to other rights, including those

o the state.

But what is to be done when these customary rights are not recognized in national law? Do they

need to be taken into account in identiying potential beneciaries o REDD activities? Conronted

by customary claims, we tend to ask: Surely, i the state does not recognize customary law, can it

really be law? From a ormal legal standpoint, customary land tenure may lack validity. But when

one takes a practical rather than a legal position, it can be seen that, objectively, more than oneinstitution in the nation is making rules that shape behavior. The state makes its law and the village

makes its law. As an important part o the normativereality, along with national law, it needs to be

taken into account. In practical terms, it may be more signicant than national law because o its

roots in culture and the local legitimacy it enjoys. It may not matter much that it is not ocially law.

In addition, i the people involved are appropriately characterized as an indigenous people, their

customary rights may be protected by international law. A country which has signed an international

convention incorporates the provisions o that instrument into its national law. To the extent that a

confict between the international agreement and national law arises, most authorities on international

law agree that the international commitment deserves priority. However, the decisions o nationalcourts dier on this point. At a minimum, in such a case, national law should be interpreted to

minimize such a confict.

While governments have provided reasons or not considering customary rights, there is growing

evidence that this cannot be done. Arican governments have oten argued that since their many ethnic

communities tend to meet the criteria or indigenous groups, none o them deserve to be treated

as indigenous groups. There is no legal basis or this position. It also is growing increasingly dicult

or governments to maintain it. Civil society organizations (CSOs) are becoming increasingly aware o

these rights and more requently resorting to the courts to assert them. In a groundbreaking 2010 case,

brought by a Kenya NGO, the Commission under the Arican Convention on Human and Peoples Rights

ound a group o traditional orest-dwellers to be an indigenous people and called or their land andorest (taken or a orest reserve) to be restored to them (see box 2.2). Donor projects which require

these rules to be observed have a cumulative educational impact regarding indigenous peoples rights.



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At the same time, there may be uncertainties about the nature and the extent o customary rights. Is

a communitys property claim to orest resources recognized under national law? And what exactly

is the nature o the customary right? Does the customary right o the community include ownership

o trees and/or land, or just the right to use the orest resources as they have traditionally used

them? The implications can be quite dierent. And who represents the community in negotiations?

Because these questions may not have been posed beore, the answers may not be obvious and

dierent opinions may be ound, even within the community itsel.

The plans or a REDD+ initiative may generate competing claims to rights to use or own orest

resources. Where resources which have not previously been regarded as very valuable are perceived

as more valuable, or example, through donor interventions or new market values, claims tend to

multiply. Once it is evident that there are benets to be associated with rights in orest with REDD+

potential and that a project is under consideration, those with claims that have lain allow or a time

may bring them orward. Those claims may not have been pressed earlier because the claimant

did not consider the potential benets to be commensurate with the costs o pressing a claim; with

a project and prospects o compensation, the benets may be seen to be more substantial. Such

claims are oten also discouraged by a sense o the part o the claimant that the claim would likelynot have been dealt with airly; now, with a rights-determination process sponsored by the project,

the claimant may eel there is a better chance that the claim will be recognized. Fraudulent claims

may also be presented, or claims under old contracts which may or may not still be valid. There

is the possibility o conficting claims between outsiders and local communities, and there may

be disputes between local communities; not all community boundaries are clear, especially those

within a orest. The REDD or REDD+ initiative needs to ascertain these claims as early as possible in

the process. They will be less disruptive i they are understood and addressed at the outset, rather

than troubling the implementation process at a later date.

Uncertainty is also a unction o a pervasive lack o enorcement o some laws. A body o law may

exist that seems to oer a solid basis or going orward with a REDD+ initiative, but it may soonbecome clear that not only has it not been implemented, but the machinery to implement it does not

even exist. Where implementation has been undertaken, there may be problems with corruption in

the distribution o rights and royalties, excessive claims to benet streams by government agencies,

ailure to provide secure expectations to local participants, and ailure to strengthen community

organization to participate eectively (Ribot 2002; Oyono et al. 2006). Other sources o uncertainty

involve the lack o enorcement o some laws, and the existence o competing claims to rights.

Sometimes the national legal system will have clear legal answers to these questions, and where

that is the case, they provide an important starting point. This said, legal clarity is not itsel a sucient

solution. The clear legal position may be unsatisactory in that it does not address key local issuesand interests. As suggested earlier, enorceability o restrictions on orest use may only be possible

i the communities and other players asked to orego that use see some advantage or themselves

in REDD.

2.5 iNTERESTS UNSUPPORTED BY RiGHTS

Some o the claims o rights will represent strongly held belies in rights, although they might not

ultimately be decided to be legally valid by a court o law. Such claims may come rom communities

with considerable local political infuence and a genuine dependence on orest resources. In other

cases, local communities may assert no legal rights, even customary legal rights, as in the case oimmigrant (possibly reugee) communities that have recently settled at the edge o a orest. Again,

the dependence on the resource may be real. Other claims may be brought by those who have little



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to put orward except the act that they have an income stream rom the orest, including outsiders

and commercial interests. These may include not very sympathetic cases, such as charcoal truckers

and their teams in the orest who manuacture charcoal illegally. They may also include elites who

have engaged in land grabbing, through legal or illegal means, but now have title.

How to deal with such claims? The problem is not unlike that which aces sponsors o development

projects which will displace land users. While compensation or lost rights to land and orest resourcesmay be limited to those who can show such rights or claims, it may still be appropriate to provide

benets to those who have been dependent on the resource and are going to have their income

streams rom the resource adversely aected by the REDD+ initiative. In some cases, this may

seem equitable. In other cases, it may seem less so, but an entirely practical question needs to be

asked: Is this group or community in a position to undermine eective enorcement o the REDD+

plan and management o the resource? I so, consideration should be given to addressing their loss

o income in some manner that gives them a stake in the success o the REDD+ initiative. In the

Brazilian Amazon, payment or environmental services (PES) would result in high transers to large

landowners, simply because they are the ones who have been doing most o the deorestation. But

as Borner et al. (2010, 1280) comment, when our-ths o a major environmental problem arecaused by large landholders, then it is not unreasonable that a prospective mitigating solution will

necessarily have to provide some compensations to this stakeholder group or their losses.



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Prior to entering into serious consultations and negotiations, the external partner will need to do

due diligence to ensure that the intended beneciaries are parties to the contract. There is extensive

literature on due diligence or identiying relevant groups. This section provides a brie overview o

important steps to ensure that due diligence is done. This includes developing stakeholder maps

using inputs rom key inormants, conducting an independent enquiry, assessing the legal ramework

and rights, assessing perceived rights, and so orth.

3.1 ASSESSiNG POTENTiAL CRiTERiA FOR LEGiTiMACY

It is important at the outset to develop at least a tentative understanding o what legitimacy means

in a given context. Preliminary notions o this can be gained during the scoping, and should be

made explicit, even i tentative. This will provide a ramework or consultations and negotiations with

the various stakeholders. It may well need to be adjusted. For purposes o this paper, the notion

o legitimacy has been tied to identiying whose claims and use o the resource base o concern

should be recognized and addressed, and also whose incentives need to be changed among the

local stakeholders. In a REDD initiative, some will lose access to existing benets rom the resources

concerned and others will be recipients o new benets. It is appropriate to think in terms o both

pre-REDD and the construction o new benet streams rom REDD. The new benet streams and

incentives may consist o some mix o compensation and opportunities.

To the extent possible, consistent with the objectives o the REDD+ initiatives, existing uses and

benet streams should be maintained. Continued use or hunting and gathering need not pose a

problem or the REDD+ initiative, and it will be important to allow communities to maintain access

to religious sites, such as sacred or spirit groves. Any new benet streams should not interere

with the REDD+ objective. A considerable body o experience related to conservation projects with

community involvement can be accessed. More substantial opportunities to create new benet

streams or local people may exist in the case o REDD+, as it can involve changes in current

activities in the agriculture and energy sectors, as well as activities to enhance carbon stocks inorested areas. A considerable body o experience is available on earlier reorestation projects,

involving well-developed and researched models such as taungya (Menzies 1988).

How should the inormation gathered above be used to identiy and prioritize legitimate beneciaries

and inorm benet sharing? One obviously begins with benet streams or existing rights and access.

Here the salient act is that these are streams. The benets are not one-time benets but fows

that continue indenitely. I those streams are to be interrupted when older inormation is used, they

are best replaced by new streams, which should be fows o REDD-generated nancing. Such fows

create a continuing interest in the success o the REDD enterprise, and should be ramed so that

they can be adjusted rom time to time to keep incentives adequate.

15

iDENTiFYiNG BENEFiCiARiES3

Chapter 3: IDENTIFYING BENEFICIARIES


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3.2 ASSESSiNG LEGAL FRAMEWORK

A number o laws that will almost certainly be relevant to claims to have interests in the orest have

already been mentioned in the previous section: the land and the orestry laws, as well as any law

on carbon ownership. It will also be important to review the law relating to the institutions with which

the sponsor may need to deal and which might eventually be party to any agreement or the REDD+

initiative. In addition, there are recent laws that specically address carbon ownership, stimulated

by the prospect o REDD+ programs. They examine not only the bodies o substantive law dealing

with orest resources, but also those dealing with the institutions involved in management o orest

resources and their mandates:

The mandates and competences o the dierent ministries or government agencies potentially

involved, including local government, to ensure that the sponsor is dealing with all those who

need to be at the table on the government side.

The legislation on local government, to see what relevant decisions rest with local government

institutions, which may include both ocials and local councils.

Any legislation dealing with traditional authorities, which may be in the local government law or

another law, or instance, a separate Law on Chietaincy.

This should be done as part o a broader assessment o the adequacy o the legal ramework

or REDD activities, but should be ocused by a set o questions directly relating to beneciary

identication. Among the questions asked should be whether the orestry resource tentatively

identied or a REDD initiative has ever been the topic o litigation or is the subject o a historical

grievance. In the current strengthening tide o greater support or land rights o indigenous peoples,

the possibility o resurrection o customary claims long considered dead cannot be discounted.

3.3 ASSESSiNG PERCEivED RiGHTS AND OTHER CLAiMS

One o the key lessons rom the ICDP experience, oten considered disappointing, is that the

sponsor must not during planning and implementation ignore the complexity and heterogeneity

o the communities concerned. This contributed to poor project outcomes and capture o benets

by community elites. Without adequate participation in benets, nonelite community members will

likely continue to convert the orest (Blom, Sunderland, and Murdiyarso 2010). Field assessments

must seek to understand both those communities and their customary and other interests in the

REDD resource.

This can begin with consulting written sources on local custom and interviews with knowledgeable

ocials and conducting eld-based enquiries. The objective is to understand: (1) existing benet

streams to the community and its members rom orest use, and (2) how local communities

understand their rights relating to such benet streams and the resources that generate them.

As Malimbwi and Zahabu (2010, 117) note, an existing Participatory Forest Management ramework

can oten be used to implement REDD. Such a ramework will oten provide a basis or stakeholder

analysis, a study to assess stakeholder willingness to participate in orming partnerships and

implementing REDD programs, identication o the local and indigenous rights with respect to

REDD, and review and building on existing community involvement and mechanisms. It is important

that this review o the tenure situation at the REDD site fush out any major long-standing claimsthat may have lain barren or years but may be asserted once project benets are anticipated. This

is particularly true o claims that involve whole communities, as where there is a disputed boundary



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between communities in the project area. It will be better i such claims are identied and addressed

early on, rather than their troubling implementation o the project at a later date.

3.4 iMPORTANCE OF DiSTiNGUiSHiNG AMONG iNTENDED BENEFiCiARiES

Ater doing a preliminary identication o communities and others and their income or other benet

streams, it will be necessary to assess these in terms o their legal basis, because this determines the

extent to which laws might require certain kinds o compensation. It will be important to distinguish

between potential REDD+ beneciaries who have (a) property or other legal rights (including those

who have customary rights recognized by national law), (b) customary claims to such rights that are

not recognized by national law, and (c) those who simply have established benet streams rom the

resource. All these should be considered potential beneciaries, but their REDD+ benets may need

to be assessed and dierently ormulated.

For thosewith property and other legally established rights, there will need to be compensation

to the extent that these rights are taken, where the right-holder will, under the REDD initiative, nolonger have access to or the use o the resource to which the right-holder is entitled. Compensation

may take many orms, but it will be most useul in terms o creating an interest in the REDD

initiative i compensation does not take the orm o a one-point-in-time payment, but is delivered

as a continuing benet stream, subject to adjustment over time in recognition o changing resource

scarcity. This is equitable where a right is being acquired whose market value is dicult to assess

and will clearly rise substantially with time. One-time compensation based on the value o current

use will certainly come in time to be seen by the local people as virtual thet, and the grievance may

undermine the sustainability o the REDD initiative. In the case o communities, the management,

distribution, and use o a REDD-generated benet stream should be careully negotiated. The loss

o rights or access will oten all much more heavily on some community members than others and

arrangements need to be made to ensure that signicant benets are directed to those users.

For those with customary rights not recognized by national law, the sponsor o the REDD

initiative needs to recognize that their expectations, in spite o the lack o a basis in national law or

their claim, will be greater than those who cannot claim such customary rights. Simply as a practical

matter, in terms o creating a supportive local environment or the REDD initiative, the sense o

entitlement refected in customary claims needs to be recognized in raming benet streams rom

REDD. In an international environment where the customary claims o indigenous peoples are being

given ever greater legal weight (see box 2.2 above), an approach that takes such claims seriously is

prudent. National agencies involved may be reluctant to recognize this need, but the sponsor should

recognize that this in the interest o the long-term sustainability o the REDD initiative.

For those who have no credible claims of right under either national law or custom, such

as recent and obviously opportunistic users engaged in illegal uses, compensation is obviously not

appropriate. Here an entirely pragmatic approach is appropriate, based entirely on whether the

group concerned needs to be accommodated in some ashion in the interest o the sustainability

o the initiative. One may nd that they are regarded by local communities as intruders, and better

expelled rom the orest.1 The question o whether an illegal use needs to be accommodated will

also depend on what other measures are in place and the capacity to deliver on these, such as

1 For World Bank-supported activities, however, it will be important to remember that the World Banks policy on involuntary

resettlement requires assistance to displaced communities, regardless o the lack o legal basis or their occupation o the

land concerned.

17Chapter 3: IDENTIFYING BENEFICIARIES


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enorcement, improved monitoring o the resource base, and alternative resource options. These

suggestions may be helpul but are certainly not going to be universally applicable. The criteria

or allocation o benets need not be the same or all projects, and will in act necessarily vary

depending on the local situation and the political and legal environment.

3.5 CONSTRAiNTS TO iDENTiFYiNG BENEFiCiARiES:CAPACiTY, COSTS, POLiTiCS, AND iNTERESTS

A number o actors constrain or otherwise aect choices in identiying REDD+ beneciaries and

dening their roles and benets. These include lack o institutional capacity, high transaction costs,

vested interests, and political realities.

Institutional capacity will oten be a constraint in identiying and communicating with legitimate

beneciaries. Even where benets are to go to households, it will usually be necessary to deal

with them through intermediary institutions, which may be their own community institutions,

local governments, NGOs, or CSOs. Brown (2010) notes that a lack o knowledge, capacities, andineective communication constrained PES in Mexico, and Martins et al. (2010) suggest that in the

Brazilian case, local institutions have proved problematic because o their limited capacities and the

act that working with them incurs large transactions costs. They are oten particularly unprepared to

negotiate or benets, because they lack both relevant knowledge and experience.

It will be important in the early stages to identiy these institutions and to assess their capacity as

part o the planning or routing benets to the ultimate recipients. While these institutions may have

signicant capacities to carry out the roles they have been perorming, they may not have an existing

capacity to successully perorm new tasks required o them. For example, a traditional community

institution which has eectively managed traditional uses o a orest by its members may not have

the capacity to manage and account or unds involved in delivering REDD benets to its members.In some cases, it will be ound that dierent necessary tasks need to be allocated to dierent

institutions. Corbera and Estrada (2010, 95) note that community orestry, i developed through

a community orestry enterprise in a well-organized community, can provide eective control and

management o orest resources, but that this will not happen in communities with weak structures

and internal conficts. Capacity building is thus oten a necessary element in utilizing local institutions

or REDD purposes.

There is a signicant body o experience with such eorts, or example, NGO assistance provided to

local communities in delimiting their customary territories. Another example is the delimitation and

certication o communities in Mozambique (Tanner 2008). One approach is to create community-level project committees to assist with local REDD implementation. These can be useul i existing

institutions cannot, or some reason, be used, but such committees oten lack a solid base in the

local social structure, may not be genuinely representative o the community, and thus may lack

legitimacy in the eyes o locals. They are oten unsustainable, lasting only as long as an immediate

benet stream fows through them. Working with better-grounded local institutions is generally

preerable.

Another important constraint is the existence o vested interests, both nancial interests and

interests in authority and control. These may exist at community level. Traditional authorities, or

example, i not given an appropriate role, may see the REDD+ initiative as threatening to their social

control o their subjects and may seek to undermine the project. At the same time, local employeeso the Ministry o Forestry may lack condence in local people to contribute constructively to REDD+

activities and/or they may be using their authority over the orest to extract bribes rom local and/or



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outside users. Oten, restrictions on extraction o orest products have little impact beyond allowing

gate-keepers to collect tolls. Those whose interests are endangered by a more transparent system

o benet allocation will resist it, and instead o trying to make incentive-driven models work, they

may seek to preserve command-based models.

Finally, politics may come into play as attempts are made to identiy legitimate beneciaries and

allocate benets. Forests are oten political, and denying access and use in the interests o REDD+objectives will be controversial. Forests may constitute contested terrain as between political

constituencies, such as villages or even much larger communities. As an example o the latter, in

Liberia the issue o orest ownership and use rights is closely tied to larger issues o citizenship and

identity, with the peoples o the interior resenting the states claim o ownership o their orests and

the states historic reluctance to recognize the legitimacy o their claims. Development partners

involved in REDD+ need to be sensitive to such conficts and tensions and try to ensure that they

are openly addressed rather than swept under the rug to create problems at a later date.

3.6 PROPERTY RiGHTS AS BENEFiTSIdentiying local beneciaries that need to be involved in REDD+ initiatives also provides insights

into the benets that would be meaningul to them. While benets have typically been thought o

in terms o compensation, jobs, or services, a urther approach is to provide greater security o land

tenure as a benet. Secure land tenure is a potential determinant o production o environmental

services, and more secure rights over land and other resources can be used, in addition to other

payments, as an incentive or reward or delivery o environmental services. A reward approach is to

use conditional tenure as a orm o in-kind payment or environmental services. In a case where

beneciaries have not had secure tenure in the resource, tenure may be made conditional upon

sustainable orest management. This strategy is currently being tested in RUPES sites (Rewarding

Upland Poor or Environmental Services) in Southeast Asia (http://www.worldagroorestrycentre.

org/Sea/). In the Philippines, in connection with comanagement o protected areas, the PAMB

(Protected Area Management Board) is issuing tenurial instruments to all migrants who have

occupied land or at least 5 years beore the program was initiated (Rosales 2003, 3545). Gilmour

and Fisher (2010) argue rom the experiences o Nepal and a number o other Asian countries, that

orest tenure reorm to provide local communities with more secure land tenure can both enhance

sustainability o REDD+ initiatives and provide a major benet to those communities. Here it is

important to mention that while it may seem that such a benet is most suited where there are

customary claims that are not recognized, ensuring secure recognition o tenure could be equally

important where property rights are recognized but not enorced.

In some cases, communities strongly sensitized to threats to their land may demand tenure reorm

beore they are even willing to discuss REDD+ activities. This may be possible where the land

concerned is public land, and government can thus create new rights or those communities. In

other cases, it will be more dicult, and it will oten not be possible to deliver security o tenure

as a benet at the initiation o a program. It will need to be negotiated at the outset, but also may

be implemented over the rst years o the program. It should be seen not as a substitute or more

immediate, highly tangible benets, but as a supplement that can make a major contribution to

sustainability in the long term.

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the parties. These agreements should typically be three-way agreements between the REDD

sponsor, the government, and the beneciary groups. While the parties involved may have quite

dierent legal concepts o property and dierent positions as to exactly what rights exist in the orest,

the notion o a contract as a mutually binding commitment exists in virtually every legal system. This

is common ground.

In the context o such negotiations, a community can agree to compromise its own rights in such anagreement in return or certain benets, whereas the state would be potentially liable legally i it did

so unilaterally. Trade-os are possible, and i these are ully bargained, involve sel-determination,2

are well-planned, can result in a winwin solution, or at least a solution which all the parties can

nd acceptable.

One way o addressing legal uncertainties about ownership o the land concerned is to provide in a

contract or all-back solutions, noting the parties assumptions about ownership and other rights,

but acknowledging those assumptions may be upset by later events, and speciying what will happen

i those assumptions turn out to be wrong. For example, those dealing with commercial concessions

will be amiliar with provisions, such as those in some recent Liberian cases, providing that i landincluded in the concession on the assumption that it belonged to the state was later ound to belong

to someone else, the concessionaire should then be empowered to negotiate with that owner,

reaching an agreement to redirect revenues rom the government to the owner. Alternatively, the

concessionaire is empowered to insist that the government begin eminent domain (compulsory

acquisition) processes against the owner, ater which the land should become part o the concession.

Contracts that clearly identiy interests to be recognized, speciy which uses may continue and

what uses must be oregone, and speciy the compensation (whether nancial or other) provide

a remarkably fexible means or addressing the issues around legitimate beneciaries. In so doing,

they can rame incentives that create an interest in the part o a wide range o aected communities

in the REDD initiative, and render enorcement o use restrictions more manageable.

4.1 PROCESS: CREATiNG AND REALiZiNG CLEAREXPECTATiONS ON BENEFiTS

Good process can help reduce the risks inherent in proceeding in a legal environment where

rights to orest lands and orest carbon are uncertain and multiple stakeholders have signicant and

oten competing interests. Where the legal ramework governing rights to orest land and carbon

is ambiguous or incomplete, the processes o creating, supporting, and enorcing the vertical and

horizontal relationships necessary to implement REDD+ strategies and programs can help createa oundation o certainty and predictability. Processes or consultation, negotiation, and capacity

building at national and subnational levels can help ensure that all necessary parties and their interests

are identied, that they agree on their respective rights and responsibilities, and that they have the

capacity to perorm their agreed obligations. Processes employed or implementation, enorcement,

and dispute resolution support the perormance o agreements in accordance with their negotiated

terms and make the consequences o confict manageable and outcomes predictable.

2 Further discussion regarding the importance o processes involving sel-determination and being ully bargained are discussed

in Rethinking Forest Partnerships (World Bank 2009). For quick reerence, the denitions o these terms are mentioned here:

Fully bargainedreers to the need or the sides to really talk with each other beore they make an agreement. They shouldtalk about what each side needs, discuss options, and reach an agreement that helps all sides.

Self-determinationreers to the importance o all sides entering the project reely, based on their own decision.



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The various processes are employed at dierent stages and levels o national and subnational

strategy planning and project design and implementation. Subsequent to the discussion on processes

or the identication o stakeholders addressed in the previous section, this section discusses the

processes in sequence; however, they are oten ongoing and occurring simultaneously. In the best

circumstances, the processes will continuously loop back on themselves: consultations at local

levels will inorm national negotiations; experience with program implementation processes will

inorm consultation and capacity building; all processes will suggest new options or structuring

relationships among stakeholders.

Despite decades o experience with community orest management (CFM) programs and steady

growth and expansion o orest carbon programs or the voluntary carbon market, reported

experience with the processes o establishing relationships or and implementing benet sharing

plans is limited. Some projects, such as the Juma Reserve in Brazil, have been in development or

years and have just begun implementation.

To date, orest carbon project experience has largely been developed or the voluntary carbon

market; projects using national orestland in developing countries have generally been developedand managed by international and national NGOs in partnership with governments. While limited,

the project experience to date is useul. A number o projects are using a combination o CFM

legislation and project-specic negotiated contracts to create the legal oundation or aorestation/

reorestation and avoided deorestation projects. Projects currently in development are experimenting

with contractual structures: the government o the Democratic Republic o Congo (DRC) and

Conservation International are negotiating or conversion o a 485,000 timber concession into a

conservation concession with a steady revenue stream to the government. The project plans to pair

the concession with a negotiated community conservation agreement with the orest communities

with customary orest-use rights (Arican Development Bank 2010).

.. Consultation ProcessesConsultation processes are the most ully realized o the processes given the widespread recognition

o their importance in ensuring the inormed involvement o national stakeholders, particularly

orest-dependent communities, and stakeholder participation in establishment o REDD+ initiatives.

For REDD+, there are various guidelines or ensuring engagement o indigenous peoples and

other orest communities in these programs (e.g., UN-REDD Operational Guidance 2009, Forest

Carbon Partnership Facility 2009 guidelines); Verchot and Petkova (2009) note the need or similar

guidance on benet sharing systems. The processes applied to the two activities can useully be

linked in order that identication o stakeholders includes analysis o their rights and interests, whichwill inorm the selection o project partners and the creation o benet-sharing plans.

In this context, it is important to recognize the extent o cultural diversity. That diversity may be

considerable, even within a single project area. Forested areas are oten buers between dierent

ethnic groups, and orest-dependent communities can be diverse. For example, there may be

well-established local communities at the orest edge; villages o people who have recently come

rom elsewhere and squatted on the orest ringe to clear land or cultivation; groups who have

recently established themselves deep in the orest to avoid confict; and communities o indigenous

orest-dwellers or whom the orest has deep cultural meanings. Some groups, or instance, some

indigenous peoples in Latin America, may be strongly sensitized to threats to their land, and may

reuse to even discuss REDD+ activities without clear guarantees o their tenure security. A one-size-ts-all approach to consultation with these orest-dependent communities may not be possible and

this should be taken into account in designing consultation processes.

23Chapter 4: DEALING WITH UNCERTAINTY


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The emphasis o the consultations will vary depending on the stage o the REDD+ process. As national-

level planning weighs dierent REDD+ options, the consultation process shits rom identication

o all potential interests to identiying the parties needed to execute various options and creating

the necessary vertical and horizontal relationships among the parties. That shit, while resulting

in narrowing the number o stakeholders to those who will be necessary to implement projects,

requires a simultaneous broadening o perspective. However, as planners consider REDD+ strategy

options and program development, the processes broaden the approach to consider stakeholders

as project partners with the authority to contract or benets in exchange or perormance.

As planners narrow options or national strategies and dene the unctions needed to implement

the strategies, the legal ramework analysis and identication o stakeholders and their rights and

interests described in the previous section can assist with selection o necessary and desirable

parties. Understanding the nature o the rights exercised or asserted by identied parties and the

basis or those rights is a necessary step in order to determine whether the rights are sucient or

the project or new rights must be negotiated.

For orest carbon projects, in addition to identiying existing rights to land and natural resources,project developers will want to identiy the various types o carbon the project may produce (or

example, sequestered carbon, carbon sinks, and carbon credits) and who holds those rights under

the applicable law, to the extent ownership status can be determined. That legal assessment will orm

the oundation or the development o contracts between parties or the sale o carbon products and

equitable benet distribution (Takacs 2009) is it not the legal assessment o land and use rights.

Conservation Internationals (2010) evaluation o 12 o its orest carbon projects worldwide ound

that projects generally had between 511 partners, with 35 core (implementing) partners working

at the local level and 27 extended partners at national, regional, and local levels. The REDD+

strategy options included in the FCPFs R-PPs and UN-REDDs National Joint Programme (NJP)

proposals generally suggest rameworks that will likely involve several national, regional, and localgovernment bodies, a national-level nancial entity, such as a trust or oundation, one or more levels

and types o project management and support, and one or more levels o community organizations.

As specic ecological areas are considered, project planners oten distinguish between project areas

where carbon will be measured and larger project zones, which have the potential to impact or be

impacted by activities in the project area, including leakage. The most useul socioeconomi

Identifying and Working With Beneficiaries When Rights Are Unclear

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