Overview of existing regulatory mechanisms and relevant actors

203 Pages·2015·3.24 MB·English

Consulting Study 10:
Overview of existing regulatory mechanisms
and relevant actors
A. Institutional framework governing the palm oil sector in
Cameroon: A report on laws, regulations and practices
B. Community rights and environmental protection in the laws
and regulations of Indonesia
December 2015
Authors
Consulting Study 10:
Overview of existing regulatory mechanisms
and relevant actors
Surin Suksuwan, David Hoyle, Pavithra Ramani,
Mike Senior and Rebecca Smalley
Proforest Sdn Bhd
Southeast Asia Regional Office
Suite#303 MBE Desa Sri Hartamas
No. 30G, Jalan 25/70A
50490 Kuala Lumpur, Malaysia.
Tel: [phone]
Email: [e-mail]
Consulting Study 10 A: Consulting Study 10 B:
Institutional framework governing the palm Community rights and environmental protection
oil sector in Cameroon: A report on laws, in the laws and regulations of Indonesia
regulations and practices
Bernadinus Steny, Yance Arizona and Gita Syahrani
Anouska Perram (consultant lawyers)
Forest Peoples Programme Forest Peoples Programme
1c Fosseway Business Centre, Stratford Road, 1c Fosseway Business Centre, Stratford Road,
Moreton-in-Marsh GL56 9NQ, United Kingdom. Moreton-in-Marsh GL56 9NQ, United Kingdom.
Tel: [phone] Tel: [phone]
Fax: [phone] [e-mail] Fax: [phone] [e-mail]
www.forestpeoples.org www.forestpeoples.org
© The High Carbon Stock Science Study 2015
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This report has been independently prepared by the authors for the High Carbon Stock (HCS) Science Study. It is part of a series of
consulting studies on high carbon stock, in the areas of biomass estimation, soil carbon dynamics, remote sensing, and
socio-econ omics. Together, these consulting studies provide background information for the HCS Science Study’s synthesis report,
but also they constitute stand-alone research that aims to shed light on this critical area of enquiry.
Contents
Consulting Report 10: Overview of existing regulatory mechanisms and
relevant actors
Acronyms and Abbreviations 05
Executive Summary 07
Section 1: Introduction 09
1.1 The sustainable palm oil manifesto and the HCS study
1.2 Objective of this study 10
Section 2: Methods 11
2.1 Identification of regulatory mechanisms 12
2.2 Review of international and regional regulatory mechanisms
2.3 National and local case studies
2.4 Analysis of socioeconomic benefits
Section 3: Results 13
3.1 Key findings of the review of international and regional
regulatory mechanisms
3.1.1 Relevance of regulatory mechanisms in
strengthening of socio-economic benefits
3.1.2 Adoption of treaties 14
3.1.3 Issues Related to Compliance 15
3.2 Issues with operationalisation or interpretation 16
3.3 Assesment of the overall effectiveness of regulatory
mechanisms
3.4 Key findings of FPP’s national and local case studies 18
3.4.1 Cameroon regulatory environment case study
3.4.2 Indonesia regulatory environment case study 20
3.4.2.1 The communal and individual subject 21
3.4.2.2 Procedure for recognition of rights 22
3.4.2.3 Recognition institutional support
3.4.2.4 The protection and empowerment of 23
rights
Section 4: Synthesis and Recommendations 26
4.1 Best practice guidance
4.2 Mechanisms for implementing socio-economic safeguards 27
Annex 1: Outputs from the Review of Relevant Regulatory Mechanisms 28
Consulting Report 10A: Institutional framework governing the palm oil
sector in Cameroon: A report on laws, regulations and practices
Introduction 126
Section 1: Overview of Cameroon’s Political and Administrative Context 127
Section 2: Climate Change Obligations and Practice in Cameroon 128
Section 3: The Palm Oil Sector in Cameroon and RSPO Standards 129
Section 4: Land Ownership and Planning Laws in Cameroon 130
Section 5: Forest Governance 135
Section 6: Environmental and Social Impact Assessment 137
Section 7: Effects of (Lack of) Participation of Communities in Plantations 139
(Including HCS/HCV Identification)
Section 8: International Law Standards and their Status in Cameroon 140
Section 9: Assessment and Conclusion 143
Consulting Report 10B: Community rights and environmental
protection in the laws and regulations of Indonesia
Foreword 146
Scope of Analysis 148
Executive Summary 149
Section 1: Regulations Regarding Rights and Carbon Stock 154
1.1 Human rights
1.2 Constitutional basis for community rights 157
1.3 Constitutional court rulings 159
1.4 Agrarian affairs 162
1.5 Land administration 165
1.6 Spatial planning 167
1.7 Environment 173
1.8 Conservation 180
1.9 Forestry 184
1.10 Plantations 190
1.11 Village 195
1.12 Local government regulation 199
1.13 Indigenous peoples draft bill 201
References 204
Consulting Study 10
Overview of existing regulatory mechanisms and relevant actors
Acronyms and Abbreviations
ACHP African Charter on Human and Peoples’ ESIA Environmental & Social Impact
Rights Assessment
ACRWC African Charter on the Rights and ESMP Environmental and social management
Welfare of the Child plan
ACWC ASEAN Commission for the Protection of FAO UN Food and Agriculture Organisation
the Rights of Women and Children
FCPF Forest Carbon Partnership Facility
AMDAL Analisis Mengenai Dampak Lingkungan
FFB Fresh fruit bunch
Hidup (Environmental Impact
Assessment) FPIC Free, prior and informed consent
APL Areal Penggunaan Lain (Other Usage FPP Forest Peoples Programme
Areas)
FSC Forest Stewardship Council
ALS Assessor Licensing Scheme
GHG Greenhouse gas
ASEAN Association of Southeast Asian Nations
FIP Forest Investment Program
AU African Union
HCS High Carbon Stock
BEI Banking Environment Initiative
HCV High Conservation Value
BPN Badan Pertanahan Negara (National Land
Agency) HCVRN HCV Resource Network
CAO Compliance Advisor Ombudsman HoB Heart of Borneo
CBD Convention on Biological Diversity ICCPR UN Covenant of Civil and Political Rights
CBO Community-based organisations ICERD International Convention on the
Elimination of All Forms of Racial
CCBA Climate, Community and Biodiversity Discrimination
Alliance
ICESCR UN Covenant on Economic, Social and
CDM Clean Development Mechanism Cultural Rights
CEACR Committee of Experts on the Application IFC International Finance Corporation
of Conventions and Recommendations
ILO International Labour Organisation
CEDAW UN Convention on the Elimination of all
forms of Discrimination against Women ISPO Indonesian Sustainable Palm Oil
CGF Consumer Goods Forum KATR Kementerian Agraria dan Tata Ruang
(Ministry of Agraria and Spatial Planning)
COP Conference of Parties
KLHK Kementerian Lingkungan Hidup dan
CRC UN Convention on the Rights of the Kehutanan (Ministry of Environment and
Child Forestry)
EP Equator Principle KLHS Kajian Lingkungan Hidup Strategis
(Strategic Environmental Analysis)
EPF Equator Principles Financial Institution
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Consulting Study 10
Overview of existing regulatory mechanisms and relevant actors
Acronyms and Abbreviations
KDPDTT Kementerian Desa dan Pembangunan UUPLH Undang-Undang Perlindungan dan
Daerah Tertinggal dan Transmigrasi Pengelolaan Lingkungan Hidup (Law
(Ministry of Villages, Development on Environmental Protection and
of Underprivileged Regions and Management)
Transmigration)
WRI World Resources Institute
LUCF Land use change and forestry
MDG Millennium Development Goal
NBSAP National Biodiversity Strategies and
Action Plans
NGO Non-governmental organisations
PNG Papua New Guinea
PS Performance Standard
REDD Reduced Emission from Deforestation
and (Forest) Degradation
RSPO Roundtable on Sustainable Palm Oil
SC Steering Committee
SES Social and Environmental Standards
TC Technical Committee
TFA Tropical Forest Alliance
TSC The Sustainability Consortium
UDHR UN Declaration on Human Rights
UKL-UPL Upaya Pengelolaan Lingkungan-Upaya
Pemantauan Lingkungan (Environmental
Management Efforts-Environmental
Monitoring Efforts Reports)
UN United Nations
UNDRIP UN Declaration of the Rights of
Indigenous Peoples
UNFCCC UN Framework Convention on Climate
Change
UNHRC UN Human Rights Committee
UUPA Undang-Undang Pokok Agraria (Basic
Agrarian Law)
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Overview of existing regulatory mechanisms and relevant actors
Executive Summary
Proforest and FPP were engaged by the Technical The outputs from the review of regulatory mechanisms
Committee of the High Carbon Stock (HCS) Study were analysed to identify commonalities; relative
to undertake an overview of existing regulatory effectiveness based on an assessment of the content
mechanisms and relevant actors, for the socio- relevance and degree of implementation; and key
economic component of the HCS Study. attributes that affect their effectiveness.
The HCS socio-economic component’s core objectives The effectiveness of the identified international
are as follows: and regional mechanisms was assessed on two key
considerations, i.e. (a) the relevance of the content of
• To generate suggested threshold values for the mechanism in strengthening the socio-economic
greenhouse gas (GHG) emissions from HCS forests benefits of oil palm development; and (b) the degree
that take account of the regional socio-economic to which the mechanism has been implemented at
context in Southeast Asian and African countries the global, regional or national level. A simple scoring
where new oil palm developments are planned. system based on these two criteria was developed with
the overall effectiveness categorised as low, medium or
• To provide guidance on how to accommodate the high.
rights and livelihoods of local communities and
indigenous peoples when implementing a future Based on the analysis, recommendations were
HCS methodology for land-use planning. formulated on mechanisms for strengthening the socio-
economic benefits of future oil palm development
(within the context of HCS implementation); and on
This report is specifically aimed at providing a
how to ensure these measures accommodate the rights
comprehensive picture of existing regulatory
and livelihoods of local communities and indigenous
mechanisms and relevant actors at the international
peoples.
level, and developing selected case studies to provide
greater insights into regulatory mechanisms and actors
On the whole regulatory mechanisms have not been
at national and local levels. Increased understanding of
very effective – none of the regulatory mechanisms
the effectiveness of these various mechanisms gained
achieved a maximum score of 9 based on the scoring
through this study allowed for the identification of
system developed. The highest score of 6 was achieved
key implementation challenges and recommendations
by 11 regulatory mechanisms in total, namely ICESCR,
for improving the effectiveness of these mechanisms.
ILO, UDHR, UN Global Compact, IFC Principles, HCV
Recommendations also provide guidance on which
Approach, RSPO, TFA, CCBA and CGF. Of the 11, only
mechanisms can best safeguard rights and livelihoods in
the first three are legally binding mechanisms while the
practice, and on the potential consequences of higher
rest are voluntary mechanisms.
or lower carbon thresholds in the context of relevant
regulatory mechanisms.
Although international treaties contain many safeguards
to protect the interests and rights of local communities,
The main methods used for the study were desktop
they have generally not been very effective on their
reviews and case study preparation. For the two
own, due to weak implementation. On the other hand,
national-level case studies, two FPP lawyers carried out
voluntary mechanisms, such as the RSPO and the CCB
detailed reviews of the legal frameworks in Cameroon
Standards (CCBA), have provided a more effective
and Indonesia, which included taking into account how
means of implementation in some cases. It should be
laws and procedures are applied in practice.
pointed out that the relatively better performance of
voluntary mechanisms is to a large extent underpinned
A total number of 31 international, regional and
by the existence of the legally binding mechanisms.
national regulatory mechanisms were selected for
Most of the voluntary standards assessed require
the review encompassing both legal instruments and
companies to comply with international frameworks,
voluntary mechanisms relevant to oil palm development
such as ILO Conventions, and so retain much of the
and the rights and livelihoods of local communities.
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Overview of existing regulatory mechanisms and relevant actors
strong content of these international frameworks. In
cases where international binding mechanisms have
not been translated into national laws, voluntary
mechanisms can provide a much-needed “push” factor
to motivate relevant actors, particularly those from the
private sector, to adopt and implement practices that
comply with international laws.
The effectiveness of legally binding international
and regional mechanisms are, in turn, dependent on
the respective national legal framework. This is well-
illustrated by the two case studies developed by FPP.
Verification of compliance to regulatory mechanisms
is still far from satisfactory, with key weaknesses being
the heavy reliance on self-assessment or reporting by
treaty parties in the case of legally binding treaties.
For voluntary mechanisms key weaknesses are the
sometimes variable quality of third party verifiers (where
applicable) or of the verification methods used.
By committing to voluntary regulatory mechanisms
such as the RSPO, Tropical Forest Alliance, etc. oil palm
companies are more likely to deliver socio-economic
benefits. Increased levels of transparency, accountability
and public scrutiny, common features of these voluntary
regulatory mechanisms, are key drivers that motivate
positive actions by the companies.
The improvement and efficacy of regulatory
frameworks, including voluntary mechanisms, has
been strongly driven by civil society including NGOs
and CBOs, particularly through advocacy efforts
on company performances. In order to minimise
reputational risks, it is beneficial for companies to
engage in a dialogue with civil society, with the aim of
making positive changes in response to these advocacy
efforts. Increasingly, many NGOs have taken the
approach of providing positive reinforcements publicly
in recognition of efforts made by companies to meet
requirements of regulatory frameworks, which is a
further incentive for constructive engagement with civil
society. It is critical that indigenous and tribal peoples
are included in such dialogues as they are currently
not adequately consulted with in the formulation and
implementation of regulatory mechanisms.
Mechanisms to improve auditing and enforcement of
voluntary standards, particularly on the implementation
of FPIC and knowledge of requirements under
international mechanisms (especially ILO) can
further strengthen the role of voluntary standards in
safeguarding socio-economic rights.
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Overview of existing regulatory mechanisms and relevant actors
Section 1: Introduction
1.1 The sustainable palm oil manifesto • Above and below ground biomass
and the HCS study
• Soil carbon
The High Carbon Stock (HCS) study originates from the
Sustainable Palm Oil Manifesto which is a commitment • Remote-sensing
to achieve common objectives held by a group of key
stakeholders in the palm oil industry: growers, traders, • Socio-economics and sustainable development
processors, and end-users, to set higher standards for
• The global oil palm industry
sustainability.
• Sustainability assessment
Signatories of the Manifesto aim to enhance the work
of the Roundtable on Sustainable Palm Oil (RSPO) in
The TC work closely with a group of Research
three key areas:
Consultants, and their work will be reported as a set
of independent and publicly available reports. An
i. Building traceable and transparent supply chains;
independent and publicly available Synthesis report,
ii. Accelerating the journey to “no deforestation” prepared by the TC, will recommend thresholds for
through the conservation of HCS forests and the acceptable levels of GHG emissions, taking into account
protection of peat areas regardless of depth; and environmental concerns, regional socio-economic
contexts, and the practical considerations in developing
iii. Increasing the focus on driving beneficial economic and managing economically viable oil palm plantations.
change, ensuring a positive social impact on people The final report will be subject to transparent peer
and communities. reviews and will be made public.
A key commitment in the Manifesto is the funding of The study aims to clearly define what constitutes HCS
a scientific study to define HCS forests, determining forest, and establish HCS thresholds that takes into
thresholds that take account of regional variations in account not only environmental concerns but also
socio-economic conditions. socio-economic and political factors in developing and
emerging economies. The study will take a wide-ranging
A Steering Committee (SC), has been established to and practical approach, using robust scientific methods
oversee the HCS Study. Members of the Steering to examine four key areas:
Committee represent key players in the palm oil value
chain which includes the signatories of the Manifesto, i. Biomass
Wilmar International and an independent economic
advisor for the agribusiness sector. ii. Soil carbon
A Technical Committee (TC) has been established iii. Remote sensing
to guide and contribute to the HCS study. The TC
iv. Socio-economics
comprise seven highly experienced scientists with
expertise in the following areas:
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1.2 Objective of this study This report is specifically on Study 1 which is aimed at
providing a comprehensive picture of existing regulatory
Proforest and FPP were invited by the Technical mechanisms and relevant actors at the international
Committee of the High Carbon Stock (HCS) Study level, and developing selected case studies to provide
to undertake an overview of existing regulatory greater insights into regulatory mechanisms and actors
mechanisms and relevant actors, for the socio- at national and local levels. Increased understanding of
economic component of the HCS Study. the effectiveness of these various mechanisms gained
through this study allowed for the identification of
The HCS socio-economic component’s core objective key implementation challenges and recommendations
are as follows: for improving the effectiveness of these mechanisms.
Recommendations also provide guidance on which
• To generate suggested threshold values for GHG mechanisms can best safeguard rights and livelihoods in
emissions from HCS forests that take account of practice, and on the potential consequences of higher
the regional socio-economic context in Southeast or lower carbon thresholds in the context of relevant
Asian and African countries where new oil palm regulatory mechanisms.
developments are planned.
The main methods used for the study were desktop
• To provide guidance on how to accommodate the reviews and case study preparation. For the two
rights and livelihoods of local communities and national-level case studies, two FPP lawyers carried out
indigenous peoples when implementing a future HCS detailed reviews of the legal frameworks in Cameroon
methodology for land-use planning. and Indonesia, which included taking into account how
laws and procedures are applied in practice.
The socio-economic studies will help develop greater
understanding of the socio-economic impacts of oil In carrying out this study, the project team was guided
palm development, both positive and negative. Possible by the following key questions:
impacts of oil palm expansion due to the imposition of
differing GHG emissions thresholds (as part of an HCS • Which institutional features and mechanisms are
methodology) can then be inferred. This would in turn the most effective at governing the palm oil industry
allow for a more informed approach in the definition to ensure the best possible outcomes for affected
of appropriate HCS thresholds based on a sound communities, particularly in the context of the
understanding of the trade-offs between emissions and introduction of new HCS requirements?
socio-economic impacts.
• What are the key constraints to their
An analysis of the existing institutional framework implementation?
governing the palm oil sector, to be carried out under
the second objective, is aimed at improving knowledge
of the effectiveness of these various mechanisms and
the key implementation challenges. This would then
be used to help provide guidance on how concerned
companies can effectively accommodate the rights
and livelihoods of affected communities within a HCS
methodology.
There are altogether four Studies under the socio-
economic component of the HCS Study:
• Study 1: Overview of existing regulatory mechanisms
and relevant actors
• Study 2: Comparative studies of socio-economic
impacts
• Study 3: Role of small-holders
• Study 4: Survey of stake-holder views on industry
commitments to strengthening the rights and
livelihoods of local communities
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