Forest tenure, governance & carbon rights

Governance of REDD+ covers the decisions, actors, processes, arrangements and policy tools needed to design and to implement REDD+ strategies as well as technical REDD+ pillars. This involves local, national and global actors from a wide range of sectors. Forest governance relates to the institutional, policy and legal dimensions that will influence the successful implementation of REDD+, comprehensively addressing both direct and indirect drivers of forest loss and degradation. It deals with governance enablers and/or challenges that influence how emissions reductions from avoided deforestation and forest degradation will take place. These issues often go beyond the forestry sector and cover policies linked to changes in land-use change.

Clarifying tenure rights strengthens accountability. In fact, communities and stakeholders with secure tenure rights have a strong interest in investing time and resources in maintaining and enhancing the natural capital under a long-term vision. By identifying who owns, manages and uses forests, more effective engagement on the ground in activities to address deforestation and forest degradation can be achieved. Some common issues that relate to tenure and REDD+ include: lack of legal provisions to recognize customary forest tenure; lack of transparency in transactions related to forestland; costly and cumbersome forestland registration procedures that tend to exclude women and the poor; lack of enforcement of existing forest tenure claims, and lack of institutional capacity to address forest and land tenure issues.

Overall, a more stable enabling environment that guarantees minimum and appropriate forms of legal protection to parties engaged in REDD+ actions would stimulate further investments in REDD+. As such, forestry countries need to comply with international emission reductions (ER)  legal requirements in order to access carbon markets and Result-Based-Payments schemes.

Carbon rights or emission reductions (ER) rights have been defined in different ways. In spite of it, REDD+ transactions raise a number of legal issues that require participation of relevant stakeholders in decision-making referring to ERs rights, in order to clarify who owns them, how they can be transacted and who is entitled to benefit from REDD+. Certainty on those issues reduces risks of double counting or double payments, allows to identify who needs to be rewarded for its REDD+ actions, and who has to be involved when ERs are transacted at national or international level.

However owning an intangible resource such as ERs/carbon poses challenges for traditional property law systems. The identification of land ownership is not always sufficient to ensure ownership over the carbon/ERs stock in a forest. Therefore, rather than allowing unclear situations to be exploited at the expense of local benefit as REDD+ develops, it is likely to become increasingly important that ERs rights and/or benefits arising from REDD+ implementation are clearly established through the necessary legal/operational arrangements.

Leveraging  the experience and results obtained in UN-REDD Phase 1 and 2, the UN-REDD Programme will continue supporting partner countries to establish governance systems of and for REDD+ contributing to the achievement of the Paris Agreement goals and strengthening the enabling environment for the long term sustainability of REDD+ activities at different levels.

The Cancun Agreements request developing country parties to address land tenure issues (1/CP.16, paragraph 72) when developing and implementing their national strategies. Thus, many countries have acknowledged the importance of tenure in the context of REDD+ and have been seeking support from the UN-REDD Programme in this area. The UN-REDD Programme’s focus on tenure stems from understanding tenure security as an important enabling condition for REDD+. Each country will determine the appropriate approach to deal with tenure issues based on its unique situation. Depending on country needs and priorities, the UN-REDD Programme may support both short and long-term activities, ranging from technical advice on tenure reforms based on participatory approaches, to training on the use of specific tools and methodologies to improve land use planning or to demarcate forest boundaries.

Forest countries aiming to access certain RBPs and carbon market opportunities may need to comply with legal requirements associated with emission reductions (ERs) rights. For this reason the UN-REDD Programme is giving special attention to this matter.

Forest carbon rights can be defined as intangible assets created by legislative and contractual arrangements that allow the recognition of separate benefits arising from the sequestration of carbon in the forests. They can be linked to tenure ownership rights or some kind of control over the land and trees, or can be considered as a separate interest.

Overall, there is still considerable ambiguity surrounding carbon/ERs rights and the legal basis for trading carbon credits, despite the fact that most of REDD+ countries are involved in some form of carbon trade, either at the project level or at a sub-national or national level.

Defining carbon or ERs rights and establishing appropriate institutional arrangements is challenging for most countries. Among the primary reasons is that the legal recognition of Indigenous Peoples and local communities’ rights to their forests and land remains ambiguous and unimplemented.

Depending on the legal context and country’s priorities, REDD+ countries could receive support to strengthen their legal frameworks related to ERs rights under three broad categories, in order to:

1. Assess existing forest-related legislation, propose legal solutions and draft new provisions when necessary;
2. Engage with relevant stakeholders from the Executive and Legislative Bodies, and get new legislation adopted;
3. Develop legal instruments required at project/ jurisdictional level.