Climate Change Law and Mitigation

Forest Carbon Sequestration and Indigenous and Local Community Rights

ARC Discovery Project – DP 110100259 – M. Tehan, L. Godden, M. Young and K. Gover

Overview 

CREEL researchers have been investigating the potential impact of the global greenhouse gas mitigation scheme, Reduced Emissions from Deforestation and Degradation (REDD+), on indigenous and local community rights. This project has involved fieldwork in REDD+ recipient countries as well as with international organisations (the World Bank, the United Nations Development Program (UNDP), the United Nations Environment Program (UNEP) and the United Nations Food and Agriculture Organisation (FAO)) and civil society groups. Presentations have been given by investigators in Australia and abroad (international presentations and/or fieldwork have included Canada, Finland, Italy, Malaysia, New Zealand, Russia, Switzerland, the United Kingdom and the United States of America).

Online Infographic

One aspect of the project is to examine how the domestic implementation of REDD+ is shaped by the interactions between multilateral REDD+-funding institutions and specific international agreements relating to human or indigenous rights by which a given country is bound. An infographic demonstrating these webs of obligation, along with a brief description of their practical implication in the context of REDD+, is provided HERE.

Background

REDD+ is an international mitigation scheme aspiring to use financial incentives to curb deforestation rates across tropical forested countries, potentially generating carbon credits that could be incorporated into a global carbon trading scheme. Although the negotiations on the final form of this mechanism, including how it will integrate with other aspects of the United Nations Framework Convention on Climate Change (UNFCCC), are not yet complete, considerable funds are being channelled to potential REDD+ countries through multi- and bi-lateral arrangements. Early negotiations were framed around an assumption that this scheme would automatically lead to multiple forest-related co-benefits, particularly relating to biodiversity and watershed protection and indigenous rights recognition. The international REDD+ architecture, however, has since shifted to recognise the complexity of the relationship between REDD+ objectives and these other forest values, and the need for them to be proactively protected and managed throughout REDD+ design and implementation. The language of 'safeguards' was introduced into the UNFCCC negotiating text to draw attention to and protect these alternative values. These safeguards have increasingly become a critical and contested area of the international negotiations, especially with respect to questions surrounding their monitoring, reporting and enforcements. 

Currently, the two most dominant multilateral funding mechanisms are the Forest Carbon Partnership Facility, administered by the World Bank, and the UN-REDD Programme, an initiative jointly administered by the FAO, UNDP and UNEP. These are only loosely connected to the formal UNFCCC negotiations and many of the safeguards or guidelines to which recipient countries must adhere to access funds are based upon predictions of what will emerge from UNFCCC negotiations or pre-existing protocols developed within the administering institutions to meet their particular objectives or obligations. 

However, complicating the application of the safeguards associated with these funds, many recipient countries are also parties to a number of other international agreements or regimes whose objectives demonstrate significant overlap with both REDD+ and, in particular, the safeguards. The project investigators have been tracking the nature of REDD-participant countries involvement with either FCPF or UN-REDD, alongside their international obligations under the UNFCCC, the Nagoya Protocol, CITES, the CBD, ILO Convention 196 and UNDRIP. Aside from setting out the potentially overlapping and conflicting international obligations into which REDD+ must be integrated at a domestic level, this research has also clarified how this data also shapes the standards or safeguards that will apply, through the complex funding conditions of both the UN-REDD Programme and the FCPF. Through these, where a country is a party to (or otherwise bound by) multiple instruments or institutions that contain divergent standards for, for example, Free Prior and Informed Consent (FPIC), from a given local community, these funding bodies' own rules stipulate which will apply, essentially creating a shifting hierarchy of instruments' and institutions' standards. More detail about this is provided in the research outputs listed below.

Research Outputs

The major research output will be the jointly authored monograph: Tehan, Godden, Young and Gover, Climate Change Responses and Indigenous and Forest Communities: International, National and Local Law Perspectives on REDD+(Cambridge University Press, forthcoming 2016). Other research outputs include:

  • Young, Margaret A, 'REDD+ and Interacting Legal Regimes' in Christina Voigt (ed) Research Handbook on REDD-plus and International Law (Edward Elgar, in press, 31/07/2015)
  • Gover, Kirsty, 'REDD+, Tenure and Indigenous Property: The Promise and Peril of a "Human Rights-based Approach" in Christina Voigt (ed), Research Handbook on REDD-plus and International Law (Edward Elgar, in press, 31/07/2015)
  • Young, Margaret A, 'Fragmentation, Regime Interaction and Sovereignty' in Christine Chinkin and Freya Baetens (eds),Sovereignty, Statehood and State Responsibility (Cambridge University Press, 2015) 71
  • Dore, Jeremy, Christine Michael, Jeremy Russell-Smith, Maureen Tehan and Lisa Caripis, 'Carbon Projects and Indigenous Land in Northern Australia' (2014) 36 The Rangeland Journal 389
  • Young, Margaret A, 'Trade Measures to Address Environmental Concerns in Faraway Places: Jurisdictional Issues' (2014) 23 Review of European Comparative and International Environmental Law302
  • Niall, Stephanie, Carly Godden, Maureen Tehan and Lee Godden, 'Climate change and REDD+: Integrating Customary Fire-Management Schemes in East Malaysia and Northern Australia' (2013) 28 Sojourn - Journal of Social Issues in Southeast Asia 538
  • Niall, Stephanie 'Law, Tropical Forests and Carbon: the case for REDD+' [Book Review] (2013) 16 Asia Pacific Journal of Environmental Law 257-261
  • Birrell, Kathleen, Lee Godden and Maureen Tehan, 'Global Climate Change and REDD: Prisms For Conceiving Indigenous Peoples' Engagement' (2012) 3 Journal of Environment and Human Rights 196
  • Rae, Jessica and Lee Godden, 'From forest certification to REDD+ in Malaysia' (2012) 53 European Tropical Forest Research Network (ETFRN) News, Moving Forward with Forest Governance 194
  • Rae, Jessica, Mahala Gunther and Lee Godden, 'Governing Tropical Forests: REDD+, Certification and Local Forest Outcomes in Malaysia' (2011) 7 Macquarie Journal of International and Comparative Environmental Law 40
  • Young, Margaret A, 'Climate Change Law and Regime Interaction' (2011) 2 Carbon and Climate Law Review147
  • Gover, Kirsty, 'The Elusive Promise of Indigenous Development: Rights, Culture, Strategy', [Book Review] (2011) 12(2)Melbourne Journal of International Law 171

Working Papers

See also the following working papers (CREEL Working Paper Series, Melbourne Law School, ISSN 2200-0453)

  • Working Paper No. 1: Charlotte Deans, The Effectiveness of the International Climate Regime: An Analysis of the Legal and Practical Challenges to the Implementation of 'Additionality' in the Kyoto Protocol Flexibility Mechanisms and REDD, January 2012
  • Working Paper No. 2: Stephanie Cousins, The Missing Link: Human Rights and the Clean Development Mechanism A Case Study on Sri Lanka, March, 2012 
  • Working Paper No. 3: Linda Hansen, Carbon in Country: Legal Pathways and Barriers to Indigenous Participation in Australia's Carbon Market Through Savanna Fire Management Under the Carbon Farming Initiative, September, 2015