Beruflich Dokumente
Kultur Dokumente
How the Green Movement is Distorting Free, Prior and Informed Consent
A World Growth Report
June 2012
ExEcutivE Summary
Free Prior and Informed Consent (FPIC) has become a core element of environmental campaigning over the past few years. The FPIC narrative for environmental campaigners is simple: the private sector is engaging in projects that impact local communities; the way to address this supposed problem is to require FPIC for large-scale resource projects.
The real problem, however, is that there is no practical definition for FPIC. Despite this, a number of groups are calling for it to be a central part of any agreement at the Rio+20 conference. FPICs emergence in environmental campaigning followed the adoption of the United Nations Declaration on the Rights of Indigenous People (UNDRIP) in 2007. In the non-legally binding UNDRIP treaty, there is an article that demands FPIC if relocations of indigenous peoples it to occur, for whatever reason. The recognition of FPIC for indigenous communities is based on the understanding that customary frameworks exist within these communities, and that these legal frameworks should be recognised by states when allocating land and natural resources for other developments. FPIC for indigenous populations has since become standard practice for development institutions, however, most institutions recognise its limitations in the field, and that unanimity among all communities is impracticable. The environmental campaign definition of FPIC is significantly different. Organizations such as Greenpeace and WWF have called for FPIC to be applied for all resource projects and their impacts not only on indigenous groups, but also local or affected communities more broadly. The implications of applying FPIC to broader affected communities are significant for their potential to undermine the rule of law. The Greenpeace and WWF model implies that established land tenure and property rights within legal frameworks should be disregarded, and that they should be replaced with an over-arching concept of FPIC that would sit over the top of existing legal frameworks. Campaign organisations have subsequently used FPIC as a means to put the brakes on or halt completely development projects in poor countries. This is consistent with Greenpeaces broader objection to any large-scale economic activity in forest areas, whether for forestry, agriculture or mining. This broad framework for disruption has been introduced by environmental groups into certification systems, such as the Forest Stewardship Council (FSC).
Rather than support tenure rights and sustainable development, such a broad definition for FPIC without clear definition is likely to have the opposite effect as it will undermine property rights. Strong property rights and robust tenure systems are an essential part of economic development. Empirical evidence from Southeast Asia and the Pacific clearly demonstrates that strong tenure regimes have a measurable impact on economic development. Strong property rights ensure a productive use of resources by not having to allocate resources to defend landholdings; they also encourage long term investment in resources, and better environmental management of natural resources. The deployment of FPIC by environmental groups in developing countries has arguably had less to do with supporting the tenure rights of local communities and more to do with halting development projects altogether by disrupting projects and increasing perceptions of risks associated with these projects. Increasing perceptions of risk is relatively straightforward in developing countries, where legal institutions are already often weak and governance is poor. In Papua New Guinea, for example, Greenpeace has deployed FPIC to undermine forestry operations and investments. It has claimed that customary tenure has been disregarded right across the forestry sector, despite there being a legal and transparent framework for customary owners to permit access to resources and gain royalties. The Greenpeace actions have resulted in a number of legitimate development projects have been stalled or abandoned altogether due to the bogus claims of illegitimate customary landowners and insidious allegations of NGOs, much to PNGs economic detriment. In Uganda, campaign groups have taken advantage of the countrys weak tenure arrangements to disrupt agricultural investments across the country. Campaigners have protested investments in reforestation projects under the guise of FPIC, even though many of the original land claims were
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tenuous and marked by inter-clan feuding. When the projects collapsed denying local communities of rare investment and employment opportunities the problems of degradation and landlessness were not resolved. Development projects are easy targets for campaigners, but in a number of circumstances land conflict predated, and continued well after the involvement of companies. In Brazil, Greenpeace and other international NGOs have lobbied against the Brazilian cattle industry, based on accusations of businesses operating without the consent of indigenous land owners. According to Greenpeace, cattle ranching and deforestation is occurring within the Waraiwatsede indigenous lands in Mato Grosso. Greenpeace claim the Xavante people have been forced to live on only 20 per cent of the 165,000 hectares reserved for them, while the remaining 80 per cent is cultivated by large farms associated with land clearing. Greenpeace accuse large Brazilian meat and leather processor, JBS, of driving deforestation by purchasing cattle from properties situated within the lands. It also accuses JBS of purchasing from suppliers that use slave labour. JBS has denied these accusations. According to the company, an audit of their internal cattle sourcing system found that the company did not purchase from suppliers listed on the publically available embargo list compiled by the Brazilian Environmental Agency (IBAMA). Rights laid out in 1988 Constitution, and subsequent demarcation of the Waraiwatsede lands in 1993 effectively made settler activities illegal. But before this, land settling in Mato Grosso was not only tolerated and legal, but often encouraged by Government policies and subsidies. The resulting overlapping tenure and associated conflict is significantly more complex than has been made out by Greenpeaces attacks on the private sector. Greenpeaces rolling out of FPIC standards a campaign tool simply confuses rather than clarifies land tenure arrangements. In Indonesia, an exceedingly complex legal system, weak tenure rules and a long history of domestic migration have resulted in many cases of land conflict across Indonesia, with multiple actors, including indigenous groups, migrant groups, the private sector and the government. The administrative chaos has been exploited to create the impression of plantation companies and other private sector interests grabbing land from indigenous communities. This has been noted particularly in the Mesuji district in Sumatra, where a number of fatalities have resulted in clashes between various actors.
However, the situation in Indonesia is significantly more complex. It has been demonstrated in at least one case that the indigenous communities themselves were themselves encroaching on state land and illegally selling it to domestic migrants. This deployment of FPIC by Greenpeace and other groups is both disingenuous and destructive. It undermines efforts of indigenous communities worldwide that are genuinely seeking to establish tenure claims. It also undermines economic development in these countries by increasing legal uncertainty, thus further weakening the rule of law and existing tenure regimes. This use of FPIC indicates that groups such as Greenpeace and WWF, despite their rhetoric in favour of sustainable development, are conservation organisations at best, and anti-development agitators at worst. Their actions do nothing to promote genuine sustainable development that will bring the worlds poor out of poverty.
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ExEcutivE Summary
tablE of contEntS
executive suMMary introDuction: What is fPic 2.LanD tenure anD sustainabLe: DeveLoPMent 2 7
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3.fPic anD enviroMentaL caMPaigns: case stuDy introDuction 14 4.case stuDy: custoMary cLaiMs in PaPua neW guinea 5.case stuDy: Deforestation on inDigenous LanDs in braziL 6.case stuDy 1: LanD confLict anD DegreDation in uganDa 7.case stuDy 2: sociaL content in inDonesia concLusions anD recoMMenDations references
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There is no clear or agreed definition for land-grabbing. The general narrative that has been established by campaign groups is that large, often foreign, commercial investments for agriculture resource projects and in some cases conservation projects are acquiring large tracts of arable or forested land. According to critics, this results in negative social, economic and environmental impacts including:1 Displacement of local populations (indigenous or otherwise) and violation of human rights; Decreased economic security for local populations, who are deprived of access to resources; Decreased food security for the broader (national or regional) population; Increased levels of deforestation and therefore greater carbon emissions; Increased levels of environmental degradation. The situations described by campaign groups vary greatly between different social and national contexts. At the core of the claims of land-grabbing is the notion that the acquisition of land for any project requires the free, prior and informed consent (FPIC) of communities affected by the project. There are two key points dealt with in this chapter: definitions of FPIC, and what constitutes an affected community.
The most overt use of the term in UNDRIP refers reads as follows: States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them. 3 The declaration also includes stipulates that States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilisation or exploitation of mineral, water or other resources. 4 It should be noted that UNDRIP is not a legally binding declaration. It does, however, play a symbolic role in international policymaking. It also makes specific reference to the State as they key actor in relation to indigenous communities, not the private sector or other groups. With regards to the communities affected, there is no universal definition of indigenous peoples that FPIC necessarily applies to. There are, however, practical approaches that are discussed below.
1. Cf. Greenpeace (2011). Briefing: Special-purpose agricultural and business leases in Papua New Guinea. Accessed at http://www.greenpeace.org/australia/Global/australia/11-076%20PNG%20Press%20 Briefing_smaller_F-1.pdf 2. Colchester, Marcus (2010). Free, Prior and Informed Consent: Making FPIC work for forests and peoples. Research Paper July 2010. TFD Publication Number 11. Scoping paper prepared for TFDs FPIC Initiative. 3.United Nations General Assembly (2007), United Nations Declaration on the Rights of Indigenous Peoples, Article 19. 4. United Nations General Assembly (2007), Article 32.1.
5. Cf. Commission On Human Rights (2005). Sub-Commission on the Promotwion and Protection of Human Rights Working Group on Indigenous Populations; Twenty-third session18-22 July 2005. Item 5 (b) of the provisional agenda. STANDARD-SETTING: LEGAL COMMENTARY ON THE CONCEPT OF FREE, PRIOR AND INFORMED CONSENT. The document refers specifically to: Aboriginal Lands Rights (Northern Territory) Act 1976, Pt. IV; Aboriginal Lands Rights Act 1983 (NSW), sec. 45(5); Aboriginal Land Act 1991 (Qld), sec. 42;, and Torres Strait Islander Land Act 1991 (Qld), sec. 80; Mineral Resources Act 1989 (Qld), sec. 54; Mineral Resources Development Act 1995 (Tas), Pt. 7, and; Aboriginal Land (Jervis Bay Territory) Act 1986 (Cth), sec. 43, 52A(1), (2) 6. Ibid.
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Aotearoa-New Zealand the Crown Minerals Act 1991 provides special protection for Maori sacred land, as defined by the Te Ture Whenua Maori Act 1993 7
7. Ibid. 8. International Finance Corporation (2012), Guidance Note 7: Indigenous Peoples, pp7 9. World Bank (2005), Policy on Indigenous People, OP 4.10, accessed at: http://web.worldbank.org/ WBSITE/EXTERNAL/PROJECTS/EXTPOLICIES/EXTOPMANUAL/0,,contentMDK:20553653~ menuPK:4564185~pagePK:64709096~piPK:64709108~theSitePK:502184,00.html 10. Colchester, op. cit.
11. UN-REDD Programme (2011). UN-REDD Programme Guidelines on Free, Prior and Informed Consent 12. CF. Greenpeace (2008). Model Timber Procurement Policy Statement. Greenpeace Australia. Accessed at http://www.greenpeace.org/new-zealand/PageFiles/111638/model-procurement-policy.pdf and Rainforest Action Network (2011). Keep Slave Labour Out of US Grocery Stores. Accessed at http:// understory.ran.org/2011/06/23/cargill-keep-slave-labor-out-of-us-grocery-stores/
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by applying what was a product of debates about indigenous development to the community at large. The deployment of the term also undermines existing process and tenure rights systems in place in many countries, by advocating an all-encompassing, undefined process for the allocation of land and resources that can potentially undermine the rule of law as it applies to ordinary (non-indigenous) citizens.
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This would result in an increase in the number of people that could potentially veto resource projects with no legal standing. This would potentially undermine the rule of law in these countries, and, rather than strengthening land tenure in developing countries, it would undermine it further. This would create greater uncertainty over proper rights, which would have a negative impact on development outcomes as discussed in the next chapter.
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SuStainablE DEvEloPmEnt
It is well recognised by development economists that secure land tenure is the linchpin of economic development. Secure land tenure also provides the basis for sustainable land use and sustainable forest management.
In this case, the authors demonstrate similar patterns of property tenure and economic development in Korea and Taiwan under Japanese occupation. Well-defined property rights in both these territories secured land taxation for administration and enabled farmers to secure loans for capital improvements principally irrigation systems. The authors also compare the impact of a secure land tenure system in the Micronesian state of Palau, which was occupied by Japanese forces prior to World War Two, with other Micronesian states. They point out that Palau was three times richer than other Micronesian states in 2007.
13. Timothy Besley and Maitreesh Ghatak, Property Rights and Economic Development. In Dani Rodrik and Mark Rosenzweig, editors: Handbook of Development Economics, Vol. 5, The Netherlands: NorthHolland, 2010, pp. 4525-4595. 14. Dongwoo Yoo and Richard Steckel (2010), Property Rights and Financial Development: The Legacy of Japanese Colonial Institutions, The National Bureau of Economic Research, Working Paper No. 16551
15. Goldstein, M., & Udry, C. (2008). The profits of power: Land rights and agricultural investment in Ghana. Journal of Political Economy, 116(6), 9811022. 16. Kopeva, D. & Noev, N. 2001. Aspects of land consolidation after the land reform. In I. Osamu, ed. The new structure of the rural economy of post-communist countries, pp. 123 - 159. Sapporo, Japan, Slavic Research Center, Hokkaido University 17. Ibid.
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18. Southgate, D. 1988: The Economics of Land Degradation in the Third World. World Bank 19. Environment Department Working Paper No. 2. Washington, DC: the World Bank. Mink, S.D. 1993. Poverty, Population, and the Environment.World Bank Discussion Paper 189. Washington, DC: the World Bank. 20. Repetto, R. 1990. Deforestation in the Tropics. Scientific American 262 (4): 36-45. 21. Mendelson, R. 1994. Property Rights and Tropical Deforestation. Oxford Economic Papers 46: 750-756. 22. Robinson BE, Holland MB, Naughton-Treves L. 2011. Does secure land tenure save forests? A review of the relationship between land tenure and tropical deforestation. CCAFS Working Paper no. 7. CGIAR Research Program on Climate Change, Agriculture and Food Security (CCAFS). Copenhagen, Denmark. Available online at: www.ccafs.cgiar.org
23. Helmut Geist and Eric Lambin (2002), Proximate Causes and Underlying Driving Forces of Tropical Deforestation, BioScience, Vol 52 (2), pp 143-150 24. Roque, C.R.; Zamora, P.M.; Alonzo, R.; Padilla, S.G.; Ferrer, M.C.; Cacha, M.D.M. Philippines: Cebu, Negros and Palawan. In The Root Causes of Biodiversity Loss; Wood, A., Stedman-Edwards, P., Mang, J., Eds.; Earthscan Publications: London, UK, 2000; pp. 282-308 25. Laura Schmitt Olabisi (2010), The System Dynamics of Forest Cover in the Developing World: Researcher Versus Community Perspectives, Sustainability, Vol. 2 (6), 1523-1535
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But group ownership and individual tenure have striking difference; group ownership restricts individual entrepreneurship.31 It reduces the incentive for individuals to work their land as they wish; to use their land for collateral; and to make a profit and re-invest. It is precisely this entrepreneurial process that achieves economic development. PNGs most serious development problems result largely from the denial of private property rights to agricultural producers.
case stuDy: WaWoi guavi forestry concession anD custoMary LanD cLaiMs
Although much of PNGs land is purportedly held in customary ownership, there is no formal customary title over most of the countrys natural forests.32 In 2005, the Government enacted amendments to the Forestry Act (1991) that repelled the obligations of the Forest Authority Board to enter into consultation with or obtaining of consent of customary owners when negotiating a Forestry Management Agreement (FMA). In effect the Forestry Act amendments reflect the tenuous customary claims of some landowner groups to areas of remote forest. NGOs frequently accuse development projects of operating on customary lands without indigenous consent, often bolstered by the unsubstantiated claims from indigenous landowners. Unoccupied areas in PNG including much of PNGs remote and inaccessible forest area are not subject to customary title. However Greenpeaces has continued to attack a logging concession in PNGs Wawoi Guavi district claiming that logging has been undertaken without informed consent of indigenous landowners.33 Greenpeace chose to ignore that there is no documented landownership in any part of PNGs forest areas.34 Much of PNGs forested area was customarily regarded as commons a resource in which all those living in and around it possess rights of access for hunting and gathering. Access to the common is not the rights of any one individual or family, and does not afford one the right to exclude others.
26. Some estimate as much as 97% of PNGs land is held in customary tenure, although this is certainly overstated. See Tim Curtin and David Lea (2006), Land Titling and socioeconomic development in the south pacific, Pacific Economic Bulletin, Vol. 21, No 1 27. Legislation was intended to reflect PNGs cultural heritage of communal land ownership, although this has been disputed by Curtin and Lea, based on the history individual ownership of PNG houses and traditional garden farms. 28. Colin Filer, cited in David Lea and Timothy Curtin (2011), Land, Law and Economic Development in Papua New Guinea, Cambridge Scholars Publishing 29. See Steven Gosarevski, Helen Hughes, and Susan Windybank (2004), Is Papua New Guinea Viable?, Pacific Economic Bulletin, Vol. 19, No. 1; and Steven Gosarevski, Helen Hughes, and Susan Windybank (2004), Is Papua New Guinea viable with customary ownership?, Pacific Economic Bulletin, Vo. 19, No. 3.
30. The Australian Institute (2005), Privatising Land in the Pacific A defence of Customary tenures, Ed. Jim Fingleton, 31. Tim Curtin and David Lea (2006) 32. Amendments established that there is no customary title over most of the natural forests (covering 77 per cent of the countrys total land area). According to Lea and Curtin, this was partly a response to recommendations from a controversial World Bank review that assessed the state of forestry permits between 2001 and 2005. See Tim Curtin and David Lea (2006) 33. Greenpeace (2004), The Untouchables: Rimbunan Hijaus world of forest crime and political patronage, Amsterdam 34. Tim Curtin (undated) Is logging in Papua New Guinea illegal and unsustainable?
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Logging operations at Wawoi Guavi operate in compliance with PNGs legal requirements for landowner consent.35 Furthermore, the operation has delivered considerable benefits to land owners. In addition to royalties and levies, the project has contributed significantly in infrastructure, education and health. This includes over one million Kina investment in education and 300,000 Kina in health infrastructure.36 Given the poor state of PNGs local government services, the schools and hospitals built with this funding take on added importance. However, such investments is not assumed a number of legitimate development projects have been stalled or abandoned all together due to the bogus claims of illegitimate customary landowners and insidious allegations of NGOs, much to PNGs economic detriment.
35. ITS Global (2006), Whatever it takes: Greenpeaces anti-forestry campaign in Papua New Guinea, Melbourne, Australia 36. ITS Global (2007), The Economic Contribution of Rimbunan Hijaus forestry operations in Papua New Guinea, Melbourne, Australia.
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Greenpeace has argued that the original Timber Permit for Wawoi Guavi was unlawful because the timber rights had not been properly acquired from the indigenous landowners. However where land is not recognised as customary, it is considered unoccupied and therefore landowner consent is not required. In reality, it is not difficult for NGOs to locate landowners eager to claim that they gave no consent to a nearby project.
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demarcation or regulation in 2006.39 This area constitutes a far greater percentage than either private farms, or areas under legal protection such as Indigenous Lands or National Parks. Brazils insecure tenure framework acts as an incentive for squatters and settlers to deforest land that falls under this category. The basic legal framework for land tenure comes in the Land Statute of 1964 (Estatuto da terra). This instrument gives campesinos (landless peasants) the right to settle on undeveloped public or private lands. This was further consolidated in a law adopted in 1980 that gave squatters responsible for developing land during five consecutive years without opposition of landowners, the ability to claim property title over the area.40 Furthermore, the 1988 Constitution and the Agrarian Law of 1993 allowed for the redistribution of unproductive establishments to landless and rural workers, with the number of expropriations increasing significantly from the mid-nineties.41 These processes create land tenure insecurity on land plots that do not serve existing, legally defined, functions especially forests. The 1988 Constitution does not provide a clear definition of underdeveloped land. In practice the framework regards forests as unused incentivising squatters and encouraging landowners to clear forests to prevent invasion. Thus landowners often feel obliged to clear forest in order to guarantee tenure. Despite prohibitions of deforestation under the existing 1965 Forestry Code, any landowner who did not clear forests would in practice lose the land to settlers.42 Economic modelling has confirmed the detrimental effect of land tenure insecurity on deforestation in the Brazilian Amazon.43 Other models have indicated that regulating tenure regimes is the best option to reduce deforestation in the Amazon.44
37.UN-FAO (2010), Global Forest Resource Assessment 2010, accessed at: http://www.fao.org/forestry/fra/ fra2010/en/ 38. According to the INPE, deforestation in real terms was 6 km2 in 2010-2011, down from a 1994 peak of almost 30km2, accessed at: http://www.inpe.br/ingles/news/news.php?Cod_Noticia=271 39.Claudio Araujo, Catherine Araujo Bonjean, Jean-Louise Combes, Pascale Combes Motel and Eustaquio J. Reis (2010), Does Land tenure insecurity drive deforestation in the Brazilian Amazon?, CERDI 40. Philip Fearnside (2011), Brazils Amazon Forest in mitigating global warming: unresolved controversies, Climate Policy
41. Philip Fearnside (2001), Land-tenure issues as factors in environmental destruction in Brazilian Amazonia: The case of southern Par, World Development 29 (8): 1361-1372 42. Philip Fearnside (2011), Claudio Araujo et al. (2010) 43. Claudio Araujo et al. (2010) 44. Andrea Cattaneo (2001), Deforestation in the Brazilian Amazon: Comparing the Impact of Macroeconomic shocks, land tenure and technological change, Land Economics, 77 (2) 219-240 45. Various sources in Philip Fearnside (2001), 46. Philip Fearnside (2001), 47. Roque Roldn Ortiga (2004), Models for Recognizing Indigenous Land Rights in Latin America, Paper No. 99 World Bank Environmental Department Biodiversity series.
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Brazils complicated tenure system also leads to widespread irregularities in land titling. For instance government data from the state of Para suggests that 75 per cent of all properties over 10,000 ha have invalid titles, while a substantial part of the land is registered to fictitious people.45 This is compounded by Brazils muddled system of land-title registration, where a range of titling documents may be filed with different registry offices, resulting in frequently overlapping land claims.46 Despite insecure land tenure arrangements, Brazil has a strong framework for protecting indigenous land rights.47 Under the 1988 Brazilian Constitution, indigenous people have primary rights to their lands, and are free to use them for productive activity, preservation of natural resources and cultural and spiritual well-being. The constitution made it incumbent upon the State to demarcate these lands as Indigenous Lands (ILs), and guaranteed indigenous peoples perpetual usufruct of their lands. In 1995, Brazil adopted new legislation adding a three month period of contention, during which time non-indigenous claimants can challenge the demarcation of ILs. The vast majority of grievances against existing indigenous lands have been dismissed, despite concerns from NGOs.48
Environmental Agency (IBAMA). The company further claims that it has developed a GPS mapping system to ensure supplies are not located within ILs.50 NGOs believe that authorities are aware of farming in the Waraiwatsede IL.51 But authorities, hampered by underfunding, have been ineffective in curbing deforestation. Rights laid out in 1988 Constitution, and subsequent demarcation of the Waraiwatsede IL in 1993 effectively made settler activities illegal. But before this, land settling in Mato Grosso was not only tolerated and legal, but often encouraged by Government policies and subsidies.52 According to non-NGO data, deforestation in this area does appear to be a major problem with over 6000 ha cleared between 2000 and 2001, including two clearings of about 1800 ha each.53 Accelerated levels of deforestation are a likely result of land conflict, as settlers have an added incentive to exploit resources before eviction. Problems facing the Xavante Indians will not be remedied by NGO finger-pointing. Instead the focus should be on improving enforcement and monitoring efforts; and reforming land tenure arrangements to reduce incentives for squatters and land clearing. Distant NGOs attack the private sector for disregarding landowner consent. These NGOs fail to acknowledge that many of these issues pertain to local land conflicts; largely divorced from businesses operating at the end of the supply chain. Using FPIC as a campaign tool to attack target industries will do little to address environmental degradation on indigenous lands. Accelerated levels of deforestation are a likely result of land conflict, as settlers have an added incentive to exploit resources before eviction. Problems facing the Xavante Indians will not be remedied by NGO finger-pointing. Instead the focus should be on improving enforcement and monitoring efforts; and reforming land tenure arrangements to reduce incentives for squatters and land clearing. Distant NGOs attack the private sector for disregarding landowner consent. These NGOs fail to acknowledge that many of these issues pertain to local land conflicts; largely divorced from businesses operating at the end of the supply chain. Using FPIC as a campaign tool to attack target industries will do little to address environmental degradation on indigenous lands.
48. Roque Roldn Ortiga (2004), Models for Recognizing Indigenous Land Rights in Latin America, Paper No. 99 World Bank Environmental Department Biodiversity series. 49. Roque Roldn Ortiga (2004) Greenpeace (2011), Broken Promises How the Cattle industry in the Amazon is still connected to deforestation, slave labour and invasion of indigenous lands, Brazil 50. JBS Press release (2011), JBS denies Public Prosecutors accusations of breach of agreements, 19 October 51. Reporter Brasil/Both ENDS (2011), Valuing the Amazon Impacts of soy and soy export infrastructure in the Brazilian Amazon region,
52. Wendy Jepson (2006), Producing a Modern Agricultural Frontier: Firms and Cooperatives in Eastern Mato Grosso, Economic Geography, 82(3) 53. Phillip Fearnside (2003), Indigenous people as providers of environmental services in Amazonia: Warning signs from Mato Grosso, in: A. Hall (ed.) Global Impact, Local Action: New Environmental Policy in Latin America. University of London, Institute of Latin American Studies (ILAS), London, U.K.
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54. John Mugambwa (2007), A Comparative Analysis of Land Tenure law reform in Uganda and Papua New Guinea, Journal of South Pacific Law, 11 (1) 55. Republic of Uganda - Ministry of Lands, Housing and Urban Development (2011), The Uganda National Land Policy (Final Draft), Kampala Uganda 56. Also see Banana, A. Y., Bukenya, M., Arinaitwe, E., Birabwa, B. and Ssekindi, S. (2012), Gender, tenure and community forests in Uganda, Working Paper 87, CIFOR, Bogor, Indonesia. 57. Republic of Uganda - Ministry of Lands Housing and Urban Development (2011) 58. ,Joseph Bahati, Abwoli Banana, William Gombya-ssembajjwe, Multi-Stakeholder Governance in Land and Forestry in Uganda: Conflict Mitigation, Scale, Knowledge and Collective Action, case study presented at the IASC Conference in Cheltenham, England
59. UN-FAO (2010), Global Forest Resource Assessment 2010 60. Abwoll Y. Banana and William Gombya-Ssembajjwe (2000), Chapter 4 - Successful Forest Management: The Importance of Security of Tenure and Rule Enforcement in Ugandan Forests, in Forest resources and institutions, UN-FAO Forestry Department Working Paper No. 3, edited by Clark Gibson, Margaret A. McKean and Elinor Ostrom, accessed at: http://www.fao.org/ DOCREP/006/X2104E/X2104E05.htm 61. African Forest Forum (2011), Forest Plantations and Woodlots in Uganda, Working Paper Series Vol 1(17), Kenya 62. REDD National Focal Point/Government of Uganda (2011), REDD Readiness Preparation Proposal For Uganda
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FACE, in partnership with Uganda Wildlife Authority (UWA), reportedly began planting trees inside Mount Elgon National Park in Eastern Uganda in 1994. In exchange for financing plantations, FACE received the rights to the sequestered carbon. The project gained initial support from the IUCN (International Union for the Conservation of Nature), and was certified under the FSC (Forest Stwardship Council). International NGOs such as the World Rainforest Movement and Friends of the Earth have accused the company of causing large scale land evictions and infringing on the rights of local communities at Mt Elgon.63,64 They claim that indigenous people were not consulted and did not give consent to the project. The Ugandan Government declared Mt Elgon a National Park well before FACE started operations. Yet NGOs have ignored the history of competing land claims between Government authorities, indigenous people and local settlers; and instead have blamed the private sector. In 1983 a protected area was declared at Mt Elgon. Local communities living within the gazetted park boundaries were evicted. The Government allocated 6000 ha of the park as a reserve to accommodate the Benet people - an indigenous group with customary links to the area. Originally the term Benet was used to refer to the several communities who were evicted from the park in the early 80s who claim customary ownership on indigenous grounds. It is documented that non-Benet settlers living in the reserve area now refer to themselves as Benet. When the resettlement area was initially gazetted, a scramble for land took place in which much of the land was taken by nonBenet people. There are also allegations that the lands were unfairly distributed and misappropriated during resettlement.65,66 The reserve boundaries were altered in 1992, generating more confusion and conflict. Between 4,000 and 6,000 people considered encroachers - were again evicted as a result of this conflict. It was only following these developments that FACE began their afforestation efforts.
With the constant possibility of eviction, inhabitants of the resettlement area have not made the necessary investments in their land. They rely on illegally extracting park resources to supplement their incomes, leading to serious environmental degradation from within the Mt Elgon National Park.67 Indigenous communities have lost land to non-indigenous settlers with dubious customary claims; while local communities have forgone economic development. Campaigners continue to use FACE as a case study for land grabbing that ignores FPIC. However when the project collapsed - denying local communities of rare investment and employment opportunities - the problems of degradation and landlessness were not resolved. Development projects are easy targets for campaigners, but in a number of circumstances land conflict predated, and continued well after the involvement of companies.
63. Friends of the Earth (2011), Land life and justice how land grabbing in Uganda is affecting the environment, livelihoods and food sovereignty of communities, Netherlands 64. Chris Lang and Timothy Byakola (2006), A funny place to store carbon: UWA-FACE Foundations tree planting project in Mount Elgon National Park, Uganda, World Rainforest Movement, UK 65. SGS Qualifor (2007), Forest Management Certification Report, SGS South Africa, Doc. Number AD 36-A-04 (UWA-FACE Mt Elgon National Park)
66. David Himmelfarb (2006) and Eija Soini (2007), Land tenure and land management in the districts around Mount Elgon: An assessment presented to Mount Elgon Regional Ecosystem Conservation Programme (MERECP), ICRAF Working Paper no. 49. Nairobi, Kenya, World Agroforestry Centre 67. Eija Soini (2007)
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FACE (Forests Absorbing Carbon Emission) is a foundation created in 1990 by four Dutch electricity companies. FACE was initially intended to offset emissions from coal-fired power station by provided financing for reforestation programs. More recently FACE moved into the carbon credit market, selling carbon credits under the Verified Carbon Standard (VCS).
Tenure insecurity in and around the resettlement area meant forests became an open access resource and susceptible to rapid degradation. There are also reports that evicted locals were involved in vandalising forest plantations.
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Problems were encountered when implementing regulations of the BAL failed to emerge; or, when regulations were drafted, they were contradictory to or overlapped adat laws. As a result, the Government has attempted to recognise customary land provided that the following criteria are present: Land under the ownership of a recognised adat community; Land with defined and understood boundaries; and The community is recognised and functioning under adat law principles. In practical terms, the validity of indigenous or customary tenure by local communities is determined at the district level and by district-level laws.
Land Titling
There are an estimated 80 million parcels of land in the country, but in the 45 years since registration of land rights was established under the Basic Agrarian Law, only 30 million of these have been registered.70 The recording of land rights takes place either through private conveyancing or through the registration of deeds. Private conveyancing of titles is unregulated and informal. However, private conveyancing is considered a legal form of transfer under adat law, based on the exchange of currency (rather than central registration). Conveyancing requires witnessing by two people. The informal nature of private conveyancing creates significant risk of fraud; there is no central register to assess the validity of title documents. Formal conveyancing takes place through the registration of titles deeds at the National Land Office. The registration of deeds is a negative system, i.e. the object of the system is not to create a comprehensive land registry, but to ensure that overlapping claims do not occur and that the property rights of legitimate owners are upheld.
68. ASEAN Law Association (2005), Indonesian Legal System, Legal Systems in ASEAN, Ed. Prof. Dr. Paulus E. Lotulung, SH and Susanti Adi Nugroho, SH., MH 69. Hamid Yusuf. Land Administration System In Indonesia. 17th AVA Congress Siem Reap, Cambodia
70. Erna Heryani and Chris Grant (2004), Developing Asia and the Pacific - The World Bank Financed Land Administration Projects and Principles. PS4.3 Land Administration in Indonesia.
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High-profile disputes took place in Muara Tebo, Mesuji and Pulau Padang. However, the most prominent of these took place in an area known as Register 45 in Mesuji District in Lampung. One fatality occurred when local populations clashed with security officers in late 2011. The disputes were portrayed by some members of the media as a straightforward case of private sector interests a plantation company PT Silva Inhutani Mas - running roughshod over local populations. To add to this, a number of claims were made that beheadings had taken place; however, video evidence of beheadings had been shown to be fabricated. However, the clashes particularly in Tuga Roda have actually been the result of long-standing disputes over tenure rights to the land in the area. A total of 43,100 ha had been granted to Silva Hutani in the Register 45. The land had originally been granted under Ministry of Forestry regulations in 1997 for forest plantation development. Although the land was granted, Silva Inhutani had not yet developed the land; it then became subject to widespread squatting. A number of squatter communities were evicted at various points between 1997 and 2007. This included a local community the Megow Pak which commenced encroaching upon the land in 2005, and were evicted in 2007. The Mesuji area was made into an autonomous regency in 2009. According to news reports, a local indigenous community the Megow Pak had commenced selling off plots of land for between USD500 and USD1000 per hectare. Subsequently a large number of domestic migrants from Bali and other Indonesian islands travelled to Mesuji to purchase land. These land transactions were found to be illegal; rights to the land had already been allocated to Silva Inhutani. In addition, as indicated above, no tenure rights can be established on land classified as forest; the land belongs to the State. News reports indicate that more than 12,000 ha had sold or illegally occupied. As the company was overwhelmed, it requested assistance from police and security forces to enforce its property rights. Similarly, squatters who believed they had purchased clear rights to the land, attempted to defend their property rights. While activists were keen to place blame on the private sector and have labelled the case as a land grab where free, prior and informed consent had not been obtained, the case has been shown to be significantly more complex.
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Goldstein, M., & Udry, C. (2008). The profits of power: Land rights and agricultural investment in Ghana, Journal of Political Economy, 116(6), 9811022. Gosarevski, S., Hughes, H., and Windybank, S. (2004). Is Papua New Guinea Viable?, Pacific Economic Bulletin, Vol. 19, No. 1 Gosarevski, S., Hughes, H., and Windybank, S. (2004). Is Papua New Guinea viable with customary ownership?, Pacific Economic Bulletin, Vo. 19, No. 3 Greenpeace (2004). The Untouchables: Rimbunan Hijaus world of forest crime and political patronage, Amsterdam
Greenpeace (2011). Briefing: Special-purpose agricultural and business leases in Papua New Guinea Greenpeace (2011). Broken Promises How the Cattle industry in the Amazon is still connected to deforestation, slave labour and invasion of indigenous lands, Brazil Himmelfarb, D. (2006). Moving People, Moving Boundaries The Socio-economic Effects of Protectionist Conservation, Involuntary Resettlement and Tenure Insecurity on the Edge of Mt. Elgon National Park, Uganda, Agroforestry in Landscape Mosaics Working Paper Series. World Agroforestry Centre, Tropical Resources Institute of Yale University, and the University of Georgia International Finance Corporation (2012), Guidance Note 7: Indigenous Peoples ITS Global (2006). Whatever it takes: Greenpeaces anti-forestry campaign in Papua New Guinea, Melbourne, Australia ITS Global (2007). The Economic Contribution of Rimbunan Hijaus forestry operations in Papua New Guinea, Melbourne, Australia. JBS Press release (2011). JBS denies Public Prosecutors accusations of breach of agreements, 19 October Jepson, W. (2006). Producing a Modern Agricultural Frontier: Firms and Cooperatives in Eastern Mato Grosso, Economic Geography, 82(3) Kopeva, D. & Noev, N. (2001). Aspects of land consolidation after the land reform, in Osamu, I. (ed.) The new structure of the rural economy of post-communist countries, pp. 123 - 159. Sapporo, Japan, Slavic Research Center, Hokkaido University Lang, C., and Byakola, T., (2006). A funny place to store carbon: UWA-FACE Foundations tree planting project in Mount Elgon National Park, Uganda, World Rainforest Movement, UK Laura Schmitt Olabisi (2010). The System Dynamics of Forest Cover in the Developing World: Researcher Versus Community Perspectives, Sustainability, Vol. 2 (6), 1523-1535 Lea, D. and Curtin, T. (2011). Land, Law and Economic Development in Papua New Guinea, Cambridge Scholars Publishing Mendelson, R. (1994). Property Rights and Tropical Deforestation. Oxford Economic Papers 46: 750-756. Mink, S.D. (1993). Poverty, Population, and the Environment. World Bank Discussion Paper 189. Washington, DC: the World Bank. Mugambwa, J. (2007). A Comparative Analysis of Land Tenure law reform in Uganda and Papua New Guinea, Journal of South Pacific Law, 11 (1) Paulus E., Lotulung, S., and Susanti Adi Nugroho, S., (Eds.) (2005). Indonesian Legal System, Legal Systems in ASEAN, ASEAN Law Association
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About World Growth World Growth is a non-governmental organization established with an educational and charitable mission to expand the education, information and other resources available to disadvantaged populations to improve their health and economic welfare. At World Growth, we embrace and celebrate the new age of globalization and the power of free trade to eradicate poverty and improve living conditions for people in the developing world.
Our Philosophy World Growth believes that helping the developing world realize its full potential is one of the great moral aims for those of us fortunate to live in the wealthy developed world. We also believe that a misdiagnosis of what ails the underdeveloped world has yielded policy prescriptions that have been useless or even harmful to the worlds bottom billion. World Growth believes that there is enormous untapped human and economic potential around the world. In order to unlock that potential, and allow the poorest of the worlds poor a better life, it is necessary to realize changes in institutions and policies that promote growth. Instead of aid and handouts, what the populations of developing countries need are social and political institutions and infrastructure that foster productive economic activity and generate robust economic growth. These include, but are not limited to, property rights and protections, the rule of law, free markets, open trade, government accountability and transparency. For too long, well-meaning governments, aid agencies and others have promoted policies that fail to address the true roblems that afflict poor societies. As a result, too many people around the globe remained locked in pre-modern conditions where their talents and inherent capacities are shackled. The people of the developing world are fully capable of helping themselves to a more prosperous existence. The path to prosperity does not begin with handouts from the West. Instead it requires identifying the genuine obstacles to growth and highlighting paths to reform that will yield sustainable and lasting change.