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This presentation by Lasse Loft (BiK-F), Krister Par Andersson (Univ. Colorado), and Esther Mwangi (CIFOR) was given at the 2014 ISEE Conference in Iceland on August 15th. It covers the framing and defining of carbon rights, and their role in REDD+ benefit and burden sharing.
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Taking stock of carbon rights in REDD+
candidate countries: Concept meets reality
Lasse Loft (BiK-F), Krister Par Andersson (Univ. Colorado), Esther Mwangi (CIFOR)
ISEE Conference Iceland, August 15th 2014
Guiding questions & structure
15.08.2014 Loft, Andersson & Mwangi - Carbon Rights in Potential REDD+ Countries: Concept Meets Reality 2
Guiding questions• What are carbon rights?
• What is the status of carbon rights in selected REDD+ countries?
• Is there a need for carbon rights clarification in those countries?
Structure• Framing and defining carbon rights
• The role of carbon rights in REDD+ benefit and burden sharing
• Institutionalization of carbon rights
• Bundle of rights and obligations
• Conclusions
Regulatees: Subnat’l: e.g. Province AdminLocal: Land Stewards
MotivationChange in behaviour
REDD PolicyObjectives Instruments
Loft, Wong et al. A conceptual framework for assessing policy and intervention options for REDD+ benefit sharing mechanisms
3
Other Policies,e.g. Forest Policy
REDD PolicyObjectives Instruments
BSM
Admin. Measur.
Direct Regul.
Env.
Social
Econ.
Outcome
Env.
Social
Econ.
Land use
change
Regulatees: Subnat’l: e.g. Province AdminLocal: Land Stewards
MotivationChange in behaviour
Incentive
Distribution
1
Institutional Enabling Factors
InstitutionalCapacity & Structure
Property RightsDefinition &
Enforcement
Capacity
Building &
Responsibilities
2
3
Human induced and environmental pressures
Institutional Context Factors
Property Rights
InstitutionalCapacity & Structure
What are carbon rights?
15.08.2014 Loft, Andersson & Mwangi - Carbon Rights in Potential REDD+ Countries: Concept Meets Reality 4
Right to the good or service itself
Right to certified emissions reduction or credit
Right to the benefits for providing c-seq.
• Carbon sequestration and storage framed as ecosystem services• Need to differentiate contents of carbon rights:
Need for carbon rights clarification
1. Equity discourse on who should benefit: Those with ‘legal rights’
2. Int’l BSM - In case of market based mechanism: Who is responsible and liable?
Depends on whether forest stewards are directly involved:
• Nat’l approach no need
• Sub-nat’l & project need
15.08.2014 Loft, Andersson & Mwangi - Carbon Rights in Potential REDD+ Countries: Concept Meets Reality 5
National approachProject based
National accounting & sub-national implementation
Options for int’l BSM under UNFCCC
Need for carbon rights clarification
15.08.2014 Loft, Andersson & Mwangi - Carbon Rights in Potential REDD+ Countries: Concept Meets Reality 6
Legal rights discourse
BSM Other laws and policies with relevance for carbon rights
Brazil ✓ Nat’l accounting;Amazon Fund & State PES initiatives as BSM
E.g. Constitution - Indigenous peoples exclusive use rights, Law on the Management of Public Forests, Forest Law
Peru ✓ Nested approach with nat’laccounting and sub nat’limplementation, new PES law
National Forest Conservation Program, Protected Areas
Vietnam ✓ National fund combined with PES-like approach as potential BSM
Forest Protection and Development Law, Land Law, Decree on Payments for Forest Environmental Services
Indonesia ✓ Various options for REDD+ BS under debate including a trust fund for jurisdictional and local level benefit distribution
Government Regulation 3/2008 on Forest Systems and the Formulation of Forest Management,MoF Regulation 36/2009, GR 12/2014 on Types and Tariffs of Non-tax Government Revenue in MoF
Institutionalization of carbon rightsRules or laws on carbon rights: New specific legislation or implicitly following existing rules (sequestered carbon interpreted as e.g. natural resources or ecosystem services)
Nature of carbon right:
15.08.2014 Loft, Andersson & Mwangi - Carbon Rights in Potential REDD+ Countries: Concept Meets Reality 7
Independent proprietaryinterest
Or follows right to the tree Or follows right to the land
Current legal status of carbon rights in different countries
Specific Implicit Type of right Linked to
Brazil No (fed.)
Yes (some states)
Nat. resources /Env. Services
Right to property;Right to benefit, butburden to compensate
Right to c-property being linked to resource or land ownership;In Amazon states: ES providers
Peru No
New PES law
For PAs
Natural resource or ‘fruit’
C-seq as ES
Right to property, if ‘fruit’ also right to benefitRight to benefit
Right to transfer certificates
Right to natural resource i.e. forests
Right to use the land
SERNAP is title holder of C as a property
Vietnam No
PFES
Forest resources
Forest goods & services
Right to property;Right to benefit Right to benefit
Right to benefit is tight to land (use) rightRight to benefit is tight to ‘protection and
Indonesia Yes but disputed
C-seq & storage as ES
Right to property;Right to benefit
Right to land use
8
Distribution of rights
15.08.2014 Loft, Andersson & Mwangi - Carbon Rights in Potential REDD+ Countries: Concept Meets Reality 9
Type of right Brazil Peru Vietnam Indonesia
Ownership State, Private Entities
State as patrimony of the nation
‘People’, but managed by the state
Nation, but managed by the state
Use Rights IndigenousPeople, Private Entities
‘Third parties’ Communities HH, Individuals
Individuals,Companies
Benefits & burdens
Obligations and liability
Rights to benefits come with burdens:• Obligation of sustainable provision of carbon stocks
• Liability in case of unintended deforestation
15.08.2014 Loft, Andersson & Mwangi - Carbon Rights in Potential REDD+ Countries: Concept Meets Reality 10
Brazil Obligations: Focus on C&C and law enforcementLiability: Not yet legally defined on federal level for BS; Assumed to rest with owner (Expert opinion)
Peru Obligations: “alternative” & “sustainable use” details not clarified (PES Law)Liability: “Remains unclear as the nat’l BS policy unfolds” (Expert opinion)
Vietnam Obligations: “land must be used economical, effective and environmentally protective” (Art. 11 Land Law)Liability: Currently overlooked in the debate. “Probably state will act on citizens interest. It is likely that the state itself will be held liable. Yet how this plays out in practice is unclear.” (Expert opinion)
Indonesia Obligations and liability not spelled out. But owner / concession holder can insure the project nationally or internationally
Conclusions
15.08.2014 Loft, Andersson & Mwangi - Carbon Rights in Potential REDD+ Countries: Concept Meets Reality 11
• In none of the studied REDD+ candidate countries rights and burdens that come along with carbon rights have explicitly been defined
• Most countries allow for (different) legal interpretations of existing laws
• High uncertainty about who is entitled to benefit from providing carbon sequestration and storage, what obligations come along and who bears the risks of none permanence
• While BSM designs are being discussed and implemented, the need for carbon rights clarification is only slowly being recognized
• There is a need to enact legislation that clarifies the obligations that come along with these rights, especially liability rules and insurance mechanisms
To stimulate investments, allow for equitable access to benefits, and to reduce risks it is important for carbon rights and obligations to be clarified in national regulations or through court rulings based on existing legislation in all four countries studied!
Thank you very much for your attention!
…and special thanks to:Maria Fernanda Gebara, Ashwin Ravikumar, Jazmin Gonzales,
Pham Thu Thuy and Daju Resosudarmofor their input!
Contact: [email protected]
Who holds carbon rights?
15.08.2014 Loft, Andersson & Mwangi - Carbon Rights in Potential REDD+ Countries: Concept Meets Reality 13
Source: Schlager and Ostrom (1992)
Examples of use rights:
• Conservation easements or concessions: the right to use the land of another for a specified purpose, as distinguished from the right to possess that land
• Profits-á-prendre: the right to enter a property in order to take some kind of biological resources