Sharm El Sheikh, Egypt - More clarity on who ‘owns’ emissions reductions is still needed to access different sources of forest carbon finance and protect the rights of vulnerable groups, according to a new information brief released today by the Food and Agriculture Organization of the United Nations (FAO).

The brief, Carbon rights in the context of jurisdictional REDD+: Tenure links and country-based legal solutions, reveals that many countries have updated forestry legislation to comply with international climate change commitments, but only a few specify who owns emission reductions, holds carbon rights or has the right to transfer them.

The report also warns that lack of clarity as to the ownership of forests and the rights associated with them can actually contribute to greater deforestation.

“Countries have made significant strides in REDD+ reporting, but further progresses are still needed to update their legislation or adopt other legal solutions to create an enabling framework providing for payments and benefits under public schemes or voluntary carbon markets,” said Tiina Vähänen, Deputy Director of FAO’s Forestry Division.

“This is a whole area of law opening up, and countries have the chance to get it right from the beginning to ensure all parties, including Indigenous groups and smallholders, benefit fairly form their work to restore forests and mitigate and adapt to climate change.”

Ten countries studied

The information brief describes the findings of a study of ten countries, showing a patchwork of legal frameworks. In some cases, forests and lands are owned by the state and in others, managed by private landowners or communities. Parties entitled to hold rights to emissions reductions could include the government, forest landowners, private actors or non-state actors who contributed to generating the emissions reductions. These rights could be transferred by official regulation or contractual agreement.

In Zambia, for example, the Forest Act 2015 provides that the government first owns all trees in forests and forest produce, including carbon, until they are transferred to others.

In Papua New Guinea, where the Constitution recognizes customary laws, forest resources are most often owned by customary owners of the land, and they hold the rights to benefits from climate change project-related agreements.

In Ghana, the land and timber ownership system is more complex. Customary laws operate alongside written statutes. The information brief notes that Community Resource Management Areas in the country (so-called CREMAs), where groups of communities agree on the management regime of a common area, could provide a way to clarify rights but their status still need to be legally recognized.

Legal options to clarify ERs rights

The brief suggests a variety of possible legal approaches to clarify rights over emissions reductions, including updating legislation or agreeing upon how rights associated with emission reductions, or benefit allocation arrangements, will be established on a contractual basis with landowners and resource rights holders in compliance with the law.

Drafting benefit-sharing mechanisms through participatory and inclusive processes that direct benefits to local communities, small owners, and Indigenous Peoples is key to building trust among the parties in this area.

The brief mentions that an important incentive to adopting appropriate legal solutions is the avoidance of competing claims or double payments and to ensure environmental integrity, which is often needed for international standards and programmes. In addition, this creates an environment conducive to attracting greater investment from the private sector and protecting the rights of all contracting parties, especially those of vulnerable groups.

The brief concludes that an added benefit to REDD+ performance-based finance is that it provides incentives to untangle the rights relating to forests.

Click for more