BUILDING WITH REDD+ BRICKS

Conceptualising the governance ‘mortar’ to secure co-benefits

under REDD+

INTRODUCTION

Come December, the world’s eyes will be on Paris – specifically, on the twenty-first

Conference of the Parties (“COP21”) to the United Nations Framework Convention on

Climate Change (“UNFCCC”) – where it is hoped an international framework will be fleshed

out for the channelling of finance from developed nations to developing nations in exchange

for those developing nations slowing the depletion of their forest resources. Termed

“REDD+”, the scheme is intended to place a monetary value on the carbon held in forests,

thereby incentivising a slowing of their depletion against agreed country-specific baselines

and, consequently, reducing the global carbon emissions which are driving climate change.

However, there is a substantial gulf between what governments aspire to do and what they

are practically able to control, especially in developing nations, and so financial incentives

alone are insufficient for effective carbon conservation. The remaining challenge – how

nations who are ready and willing to reduce their deforestation will be able to do so – is a

question of governance; of what powers should be held by various political and civil

institutions, and what rules should govern their interaction with one another. This is a

challenge which is compounded by the allure of ‘co-benefits’: the notion that alongside

carbon conservation, nations should also be concerned to protect biodiversity and promote

human development in and around forests.

This paper will be directed toward the challenge of identifying a system of governance

which can achieve both carbon conservation and these co-benefits, focusing particularly on

the human development co-benefit. The analysis will focus on the significance of inter-

institutional ‘linkages’ as a way to understand how governance structures can promote a

symbiotic relationship between carbon conservation and co-benefits. The term ‘linkage’ is

preferred to ‘link’ due to the latter’s focus on the fact of being a ‘connecting part’1, while

the former is concerned with the ‘condition or manner’ of the link2. While there has been

some scholarly attention directed to the extent of links between institutions in the REDD+

context3, it is submitted that the nature of these links, and how that nature shapes

institutional behaviour, requires further analysis.

The paper will begin with a brief background of the relationship between carbon

conservation and co-benefits: why co-benefits have arisen in REDD+ discussions, how

carbon conservation measures can sometimes jeopardise co-benefits and how in other

cases they can naturally promote those co-benefits. Once this groundwork has been laid

three archetypal form of governance – central governance, community governance and

market governance – will be outlined and assessed according to how their varied systems of

linkages can promote or hinder REDD+ effectiveness. From this analysis will emerge a

conclusion and three principles. The conclusion is that none of the three governance

systems is alone sufficient to support REDD+’s ambitions; the three principles will be

directed towards combining all three systems into a single “nested” system which is

sufficient. Finally, it will be argued that a strong ombudsman institution possesses all the

1 "link, n." OED Online. Oxford University Press, September 2015. Web. 5 October 2015. 2 "linkage, n." OED Online. Oxford University Press, September 2015. Web. 5 October 2015. 3 eg. M Menton et al, ‘Analysis of REDD+ policy networks in Peru’ (Brief, CIFOR, 2014)

requisite characteristics to promote those principles and therefore has a valuable role to

play in REDD+’s future.

REDUCING EMISSIONS FROM FOREST CARBON AND ITS ‘CO-BENEFITS’

REDD+ is a mechanism primarily intended to reduce carbon emissions; a fact attested to by

its full name – ‘Reducing Emissions from Deforestation and Degradation’ (the ‘+’

representing the role of conservation, sustainable forest management and enhancing forest

carbon stocks)4. The primacy of this outcome follows from the startling urgency posed by

global warming5.

However, beginning with the Cancun Agreement at COP166, there has been growing talk

about secondary co-benefits which could emerge through REDD+’s implementation – chiefly

human developmental outcomes and biodiversity promotion7. The relationship between

these issues and forest conservation is a natural one. Approximately 800 million of the

world’s poorest people live in forests8 and so have their livelihoods directly affected by any

policies pertaining to those forests. Similarly, old growth tropical rainforests are the most

species-rich ecosystems on earth and so represent an essential component in any effort to

promote biodiversity9.

4 United Nations, About REDD+, UN-REDD Program <www.un-redd.org/aboutredd> [Accessed 5 October 2015] 5 See T F Stocker et al, ‘Climate Change 2013: The Physical Science Basis – Summary for Policymakers’ (Working Group I Contribution, Intergovernmental Panel on Climate Change, 2013). 6 UNFCCC, Cancun Agreements Dec 1/CP.16 (United Nations Framework Convention on Climate Change, 2011). 7 C McDermott et al, ‘Trade-offs, co-benefits and safeguards: Current debates on the breadth of REDD’ (2012) 4(6) Current Opinion in Environmental Sustainability 646, 646. 8 R Lyster, ‘Do REDD+ carbon rights depend on land tenure or resource rights?’ (Speech delivered to University of Sydney class, Law Tropical Forests and Carbon, Christ’s College, Cambridge, 22 July 2015) 9 P Gonzalez, B Kroll and C R Vargas, ‘Tropical rainforest biodiversity and aboveground carbon changes and uncertainties in the Selva Central, Peru’ (2014) 1 Forest Ecology and Management 312.

There are various complementary justifications for incorporating co-benefits into the REDD+

mechanism, resting on the above-mentioned affinities between the issues. These include:

- ‘Do no harm’ principles, predicated on the view that if local communities and

biodiversity are not explicitly addressed, then they will be adversely impacted by

REDD+. For example, local communities lacking secure tenure could be displaced by

powerful interest groups if their forests suddenly take on significant monetary value

under REDD+10. Similarly, if the financial value of rainforests is increased, activities

such as agriculture could become concentrated in low carbon, high biodiversity areas

such as grasslands, savannahs and woodlands, to the detriment of those regions’

biodiversity value11. Such outcomes would conflict with existing international

instruments such as the UN Declaration on the Rights of Indigenous People12,13.

- The view that the level of funding which a full-scale REDD+ could draw to the

developing world creates a grand opportunity to make progress in the fights against

poverty and biodiversity loss14;

- Widening the scope of REDD+ can potentially draw more support to REDD+

implementation than would otherwise be available. An illustrative example is the

NGO Flora and Fauna International (“FFI”), who are currently providing substantial

on-the-ground support to REDD+ pilot projects and attribute their involvement not

10 A Chhatre et al, ‘Social safeguards and co-benefits in REDD+: a review of the adjacent possible’ (2012) 4(6) Current Opinion in Environmental Sustainability 654, 655. 11 C McDermott et al, above n 7, 648 12 GA Res 61/295, UN GAOR, 61st sess, 107th plen mtg, Supp No 49, UN Doc A/RES/61/295 (13 September 2007) 13 See R Lyster, ‘REDD+, Transparency, Participation and Resource Rights: The Role of Law’ (2011) 14(2) Environmental Science & Policy 118. 14 See D Murdiyarso et al, ‘Some lessons learned from the first generation of REDD+ activities’ (2012) 4(6) Current Opinion in Environmental Sustainability 678, 680.

to concerns with carbon emissions, but rather to REDD+’s utility in promoting

biodiversity15; and

- With regard to the practicalities of REDD+ implementation, it is sometimes argued

that local development co-benefits are essential for local support and that this, in

turn, is essential for the effectiveness of REDD+ policies16.

However, despite these considerations, and the aspirational words so far devoted to co-

benefits, no actual demonstration of how co-benefits are being achieved is required for

participation in REDD+17. Consequently, the mechanism by which co-benefits will be

advanced under REDD+ remains an open question.

THREE CANONICAL FORMS OF GOVERNANCE

CENTRAL GOVERNMENT

Of the three different governance institutions which will be discussed, central governance

has the distinction of being the only one whose role emerges directly from the REDD+ text.

In ensuring that the sovereignty of developing (“non-Annex 1”) nations is not undermined,

REDD+ is to be ‘country-driven’ and national participation to be voluntary18. Payments for

REDD+ projects are envisaged to be directed to local communities via channels which run

through central governments19. Consequently, not only is central government invariably

15 Pio & Kempinski, ‘Fauna and Flora International’ (Speech delivered to University of Sydney class , Law Tropical Forests and Carbon, Christ’s College, Cambridge, 22 July 2015). 16 W McFarland, ‘How is REDD+ either complementary to, or undermining of, development efforts in tropical tainforest countries?’ (Speech delivered to University of Sydney class, Law Tropical Forests and Carbon, Christ’s College, Cambridge, 23 July 2015) 17 C Voigt, ‘Multilateral Negotiations on REDD+’ (Speech delivered to University of Sydney class , Law Tropical Forests and Carbon, Christ’s College, Cambridge, 20 July 2015). 18 UNFCCC, Cancun Agreements Dec 1/CP.16 (United Nations Framework Convention on Climate Change, 2011). 19 C McDermott, ‘REDD+ and multi-level governance’ in R Lyster, C MacKenzie and C McDermott (eds) Law, Tropical Forests and Carbon: The Case of REDD+ (Cambridge University Press, 2013) 84, 94.

going to have a role to play in any REDD+ governance structure, but it also functions as a

gatekeeper for the involvement of any other institutions.

For these reasons, I turn first to broadly assess the key features of central-government-

directed governance (or ‘central governance’). This analysis necessarily requires coarse

brush strokes due to the variety of constitutional arrangements across nations.

Central governance may be imagined (to borrow a metaphor from the REDD+ literature, but

used there in a slightly different way) as a Russian Doll20, with each level confining the level

beneath it. The central law-making body (the “legislature”) determines the ‘shape’ of policy

by passing laws which typically contain a mixture of strict policy requirements (the doll

itself) as well as some room for discretion (the space inside the doll). Each of the lower tiers

of government must behave in a way confined by those laws, but also frequently set rules of

their own, further confining the lower tiers. This continues all the way down through the

‘dolls’ of regulations, sub-regulations and internal departmental policies until finally arriving

at the ‘baby’ Russian Doll where policies are implemented, often with no remaining

discretion at all21.

For our purposes, the key feature of this system is that it creates a top-down system of

linkages from policy formation to implementation where power is greatest at the point

farthest from policy implementation22. In theory this can promote policy unity because

broad policy directions are all being set by a single body, being the legislature. However,

there is a significant disconnect between the point of policy formation and that of

20 Forsyth 2009, referred to in P Kashwan and R Holahan, ‘Nested governance for effective REDD+: institutional and political arguments’ (2014) 8(2) International Journal of the Commons 554, 560. 21 For an extreme example see W F Fox Understanding Administrative Law (Lexis Nexis, 4th ed, 2000), 3. 22 See T Buck et al, The ombudsman enterprise and administrative justice (VT Farnham, 2011) 69.

implementation. This can lead to a lack of responsiveness by senior decision makers to any

problems which may arise at the implementation stage.

LOCAL COMMUNITIES

‘Community Forestry Management’ (“CFM”) is a form of governance in which the authority

and responsibility for, and rights to, forests vests in the communities who live in and around

those forests23. While international negotiations have been ongoing for the formal REDD+

instrument, pilot projects are already underway on the ground in many developing

countries. A typical REDD+ pilot project is run by forest communities, often supported by an

NGO24, so this form of governance is already spreading its roots.

The legal instruments underpinning CFM projects vary between cases. The most secure is

where there is formal tenure vested in the local community collectively over the local

forests25 – an arrangement for which a substantial body of international precedent now

exists26. Under this arrangement, decisions about resource use are determined by the

community as a whole through internal processes. In the alternative to actual tenure, CFM

can be underpinned by legislation or other government intervention which provides for

community groups to have certain management rights and entitlement to benefits.27.

Another alternative – the least secure – occurs in those countries where tenure is ill-

defined, no one has clear rights over the forest and the local community’s management

23 P Newton et al, ‘Community forest management and REDD+’ (2015) 56 Forest Policy and Economics 27, 27. 24 Pio & Kempinski, above n 15. 25 D Murdiyaso et al, above n 14, 681. 26 See eg R v Symonds (1847) NZPCC 388 (New Zealand); Geita Sebea v Territory of Papua (1941) 67 CLR 544 (Papua New Guinea); National Land Code (Penang and Malacca Titles) Act 1963 (Malaysia); Mabo v Queensland [1992] HCA 23 (Australia); Sesana and Others v Attorney General (52/2002) [2006] BWHC 1 (Botswana); Alexkor Ltd v Richtersveld Community [2003] ZACC 18 (South Africa). 27 eg T Hayes and L Persha, ‘Nesting local forestry initiatives: Revisiting community forest management in a REDD+ world’ (2010) 12(8) Forest Policy and Economics 545, 549.

occurs on a de facto basis28. In this final case, payments for managing forests can be

secured with donors contractually, but rights to the forests are not at all protected from

third parties or government. Given this lack of security, it is difficult to see how such

communities could protect their management role from third parties seeking to capitalise

from REDD+.

While CFM’s operation varies depending on the source of the community’s formal rights, it

has some invariant features. The crucial one, standing in contrast to the central government

model outlined above, is the intimate linkage between decision making (being driven by the

local community) and implementation. This feature has three distinct benefits. Firstly,

because forest-dwellers are making decisions on forest management, those decisions are

informed by substantial forestry knowledge accumulated over generations29; secondly, if

any management decisions have had unforeseen outcomes, the decision makers can

identify the issue and respond swiftly30; and finally, because the decision makers’ livelihood

is so directly connected to the forest, the possibility of unsustainable forest exploitation is

reduced31. However, while the CFM model greatly increases the directness of the link

between decision makers and outcomes, as compared to the central government model, it

lends itself to the possibility of CFM ‘bubbles’ all operating in isolation.

28 C Dyngeland, P Vedeld & A Vatn. ‘REDD+ at Work? Implementing Consistent REDD+ Policies at Local Levels - a Case from Kilosa District, Tanzania’ (2014) 16(6) International Forestry Review 549, 550. 29 P Cronkleton, D B Bray and G Medina, ‘Community Forest Management and the Emergence of Multi-Scale Governance Institutions: Lessons for REDD+ Development from Mexico, Brazil and Bolivia’ (2011) 2(4) Forests 451. 30 Ibid. 31 Ibid.

MARKET GOVERNANCE

‘Market governance’ refers to a system in which the major decisions regarding forest use

and conservation are made by investors acting with a profit motive. The defining feature is

trading, which promotes work (including conservation work) being undertaken by the

person who is able to do it for the lowest cost32.

This can arise organically where a product has natural market value; for example, the farmer

who is able to grow apples most efficiently acquires farming land and the yield is sold to

people who enjoy eating apples. Alternatively, where the social benefits of an activity are

too diffuse to create wiling customers, such as environmental conservation, markets can be

created by government intervention. Under “markets for environmental services” a

regulatory limit is placed on some form of environmental deterioration, local water

pollution for example. Tradeable rights to pollute (‘credits’) are required by anyone wishing

to engage in an activity which will contribute to that environmental deterioration, and these

credits can be generated by activities which offset the effect of that pollution, such as water

purification33. Consequently, the demand for credits from polluters incentivises others to

engage in water purification measures, generating credits for sale to those polluters. Under

REDD+, carbon credits could be generated through carbon conservation measures, and

these credits could then be traded on international markets to offset carbon emissions

elsewhere (though note that there is as yet no decision on whether carbon credits should be

able to be generated by forest conservation activities34).

32 T L Anderson and G D Libecap, Environmental markets: a property rights approach (Cambridge University Press, 2014), 22. 33 Ibid, 152-155. 34 C Voigt, above n 17.

For present purposes, the defining feature of markets is the fluidity of linkages between

decision makers and implementers. That is, the decision maker for a particular resource can

be changed as easily as that resource can be sold; and market forces promote resources

being sold to the investor who can use it most efficiently (briefly, because it is worth more

to that investor and so they are prepared to pay more for it, if paying more is necessary to

get a deal done). In the REDD+ context this would imply that whoever can maximise the

carbon volume of a piece of land would have the opportunity to do so.

However, the corollary of this fluidity of linkages between decision makers and

implementers is the following: the linkages between incentives and implementation is

especially rigid. That is, no matter who the decision maker is their decision is likely to be

governed by considerations of profit maximisation. If profits are linked to credits that are

generated by achieving a particular outcome, this outcome will be pursued to the detriment

of outcomes for which credits are not awarded. This contrasts with both community

governance and central governance, under which decision makers could plausibly decide to

pursue different policy outcomes. This will be explored in greater detail below.

TESTING THE THREE INSTITUTIONS – CRITERIA FOR SUCCESSFUL LINKAGES

Having outlined the nature of central, community and market governance models, it will pay

to consider to what extent the systems of linkages in each can be harnessed under REDD+

and to what extent they may create some adverse outcomes. This will be assessed in terms

of three key criteria by which to measure the effectiveness of linkages, being the extent to

which those linkages:

a. Promote suitable incentives;

b. Maximise decision-makers access to potential policy tools (“reach”); and

c. Provide a mechanism for benefits to be channelled equitably.

At the conclusion of this section the following will be established:

1. That none of the three archetypal forms of governance are individually sufficient for

effective REDD+, but that a “nested” system, incorporating all three, could provide a

solution;

2. What aspects of each institution need to be emphasised, and which ones limited, in

such a nested system; and

3. A set of three principles to achieve (2) above.

SUITABLE INCENTIVES

Markets – As alluded to above, markets provide a mechanism for moving resources to the

agent who is able to harness them most efficiently. Applied to the case of carbon credits,

this implies that the agent who is able to preserve, or even regenerate, forests at the lowest

cost will get the opportunity to do so. The linkages which markets create between resources

and efficient decision-making suggests, prima facie, that market governance represents an

attractive option, at least from the point of view of shaping incentives. However, it is subject

to two key caveats.

Firstly, “lowest cost” means “lowest cost to the agent” and does not take account wider

costs (‘externalities’35) such as the examples above of displaced forest dwellers or

35 B Andrew, ‘Market failure, government failure and externalities in climate change mitigation: The case for a carbon tax’ (2008) 28(5) Public Administration and Development 393, 398.

destruction of low-carbon ecosystems. In theory, this could be overcome by changing the

nature of the ‘carbon credits’ so that they represent not just carbon conserved, but also

social and biodiversity outcomes achieved. However, this would necessitate having a

practical, accurate and tailored metric for those co-benefit outcomes, as well as a rigid

method by which to balance their import against carbon conserved. This is notoriously

difficult to achieve36 and, in the case of social outcomes, perhaps conceptually impossible37.

Secondly, to ‘harness forests most efficiently’ does not, in the market, necessarily mean

conserving them. A rainforest can be ‘harnessed’ for the purposes of logging or even via

slash and burn methods so that infrastructure can be built on the land. To look at an

average tree in an old growth rainforest and consider that its carbon stocks are only worth

in the order of $1US38, gives one a deep sense for the commercial attractiveness of turning

it into timber. This is compounded by the fact that carbon credits – like any other financial

instrument – are susceptible to price fluctuations; if demand for them falls (perhaps

because less fossil fuel is being burnt) then prices will fall and fewer agents will be

interested in generating credits through conservation activities. Consequently, more forest

land will be used for non-conservation activities and some of the environmental gains made

by the decrease in fossil fuel consumption will be lost39. In the spirit of this argument, it is

worth considering the point made by Dr Christina Voigt that global emissions ‘targets’ are

36K Yeager, ‘Yes, in my backyard’ (2006) 22(3) Issues in Science and Technology 19, 131. 37 S R Marin and J B Davis, ‘Identity and democracy: linking individual and social reasoning’ (2009) 52(4) Development: journal of the Society for International Development 500, 506. 38 FRONTLINE/World, Brazil: The Money Tree (3 November 2009), PBS <www.pbs.org/frontlineworld/stories/carbonwatch/moneytree/> [Accessed 5 October 2015] 39 Speculatively, this effect may be circumvented by treating carbon credits not as representing a fixed volume of carbon, but instead as representing a share of the total allowable global greenhouse emissions – such figure to be periodically adjusted by some regulatory body.

better thought of ‘guardrails’40: it is essential that we don’t pass them, but for safety we

should keep well back from them.

Communities – Forest dwelling communities have the most intimate linkage with forests and

so community governance (“community forest management” in the forest sector) may

naturally be thought to best promote environmental outcomes. This view may be based on

traditional familiarity with forest management as well as an alignment of interests with

environmental outcomes. This has frequently been born out in REDD+ pilot projects,

including in Nicaragua and Honduras, where the most positive forest conservation outcomes

were in communally-managed reserves41.

However, despite this affinity, the interests of forest-dwelling communities and forest

conservation do not always align; agriculture is one of the most labour-intensive uses of

much forested land42, and so the temptation to de-forest and create farms is a very real

one. In this context it is worth considering the finding of Rodrigues et al that forest dwelling

communities typically experience a local economic boom coinciding with local

deforestation, but that their economic wellbeing typically falls below pre-deforestation

levels within a few years43. This suggests that particularly poor forest-dwelling communities

may feel compelled to pursue the short-term solution to impoverishment that de-

forestation can bring, where less desperate communities would find their interests aligning

more completely with that of their surrounding forests.

40 C Voigt, above n 17. 41 T Hayes & L Persha, above n 27, 548. 42 L Peskett, ‘REDD+ and development’ in R Lyster, C MacKenzie and C McDermott (eds), Law, Tropical Forests and Carbon: The Case of REDD (Cambridge University Press, 2013) 230, 233. 43 A S L Rodrigues et al, ‘Boom-and-Bust Development Patterns across the Amazon Deforestation Frontier’ (2009) 324(5933) Science 1435.

Government – The question of how incentives function in a central governance system must

be approached at two levels. The first concerns the incentives guiding government officials

as individuals, and the second concerns those incentives guiding the government as an

institution. When this form of governance is working effectively, the two overlap because

officials pursue wider government objectives. However, in those countries where corruption

is rife, government objectives – and environmental outcomes – can be profoundly

undermined, leading to situations such as that in Tanzania where officials overlook illegal

logging activity while prosecuting forest dwellers undertaking subsistence pole-cutting44.

Identified by the World Bank as the ‘greatest obstacle of economic and social

development’45, it is absolutely essential that corruption be curbed as far as possible if

REDD+ is going to be instituted effectively.

When one analyses those incentives which guide the government as an institution, both

negative and positive systems of incentives emerge. On one hand, the government’s

interests as an institution also regularly come into conflict with both good governance and

environmental outcomes. To protect themselves, national governments frequently resist

government transparency46 and can be disproportionately influenced by powerful interest

groups through lobbying47.

On the other hand however, the reach of government interests can introduce broader

environmental incentives than would entertain the minds of local communities or market

44 T Hayes & L Persha, above n 27, 549. 45 C MacKenzie, ‘Designing, implementing and enforcing REDD+ schemes’ in R Lyster, C MacKenzie and C McDermott (eds) Law, Tropical Forests and Carbon: The Case of REDD (Cambridge University Press, 2013) 128, 141. 46 P Kashwan and R Holahan, above n 20, 558. 47 T L Anderson and G D Libecap, above n 32.

agents. This creates policy linkages between REDD+ projects and all the disparate domains

on which those projects may impact.

It is perhaps best illustrated by the concept of ‘leakage’ – a notion frequently invoked in

support of the role of central governments in REDD+ implementation48. The idea is that a

community is only concerned with their local forest, or a corporation only concerned with

the forest which they own, and so both will only focus on minimising local deforestation.

However, if the drivers of deforestation are not addressed, then there can be a tendency for

those drivers to ‘leak’ into other forested areas which otherwise would have remained

standing, ultimately producing no net change in deforestation rates49. In contrast, if

governments are receiving REDD+ payments calculated on total deforestation within their

countries, their incentive will be to pursue initiatives which do not leak (subject to the

caveat of inter-jurisdictional leakage) and which therefore produce net benefits.

The principle that government’s greater breadth promotes environmental outcomes is not

limited to leakage however. Ecosystems can have benefits felt far beyond their geographical

limits and these benefits would likely be neglected in any cost-benefit analysis performed by

local communities or market agents. ‘Eco-system services’, as they’re called, include

stabilisation of semi-local weather effects under biotic pump theory50, as well as regulation

of watershed protection and erosion prevention51. In Vietnam, planting approximately

12,000 ha of mangroves for US$1m was estimated to have saved dyke maintenance costs of

48 C Voigt, above n 17. 49 L Peskett, above n 42, 247. 50 A M Makar’eva and V G Gorshkov, ‘The forest biotic pump of river basins’ (2008) 39(7) Russian Journal of Ecology 537. 51 J Neilson and B Leimona, ‘Payments for ecosystem services and environmental guidance in Indonesia’ in R Lyster, C MacKenzie and C McDermott (eds) Law, Tropical Forests and Carbon: The Case of REDD (Cambridge University Press, 2013) 207, 207.

more than US$7m52. It has also been suggested that, for Indonesia and Brazil especially,

national commitments on rainforests are also incentivised by the pursuit of international

clout53. Because government’s interests extend so far and wide these outcomes mean a

greater deal more to it than to local communities or individual investors.

Finally, due to its wider breadth of concerns, government is also positioned to play a vital

role in ensuring that the achievement of REDD+’s outcomes doesn’t create unacceptable

costs in other sectors. Perhaps the most significant such challenge arises from the

connection between de-forestation and agriculture. If de-forestation is reduced, without

plans for how the agricultural sector is to adapt, there could potentially be very serious

consequences for food security54. More broadly, a truly successful REDD+ would require a

major restructuring of many parts of rainforest nations’ economies. If this is to proceed as

smoothly as possible, a broad transition strategy is required. The linkages which exist

between central government and diverse domains of public life and environmental

concerns, make government optimally positioned to play a core role in that transition.

REACH

Government – As well as expanding the incentives which guide its decisions, the breadth of

government linkages also enhances its policy potency through the range of policy

instruments available to it. Consider Indonesia’s recent use of REDD+ pilot funding to

produce a national map showing competing concessions for mining, infrastructure,

52 L Peskett, above n 42, 249. 53 Pio & Kempinski, above n 15. 54 C McDermott et al, above n 7, 649.

agriculture and logging as well as conservation interests55. Each of these can be seen as the

pivot for a potential policy approach to reduce macro-scale deforestation.

For example, taking the case of infrastructure, it is widely recognised that the construction

of major roads through forested areas drives deforestation in those areas56, both due to the

first-order deforestation which needs to occur for the construction, and because such roads

open up those areas for human settlement, large scale logging and other deforestation

drivers.

Other examples of government’s wide reach driving conservation outcomes include:

- wide-scale law enforcement, such as the police operations in Brazil leading to the

closure of eight illegal sawmills and 120 illegal charcoal ovens57;

- economic regulation, such as the Soy Moratorium forbidding soy buyers from

purchasing soybean grown in areas deforested after a given date, also in Brazil; and

- nationwide roll-out of conservation initiatives, such as, for example, improving

agricultural practices (thereby establishing an alternative method to deforestation

for expanding agricultural production) whose administrative costs may be prohibitive

if carried out at the community level58.

55 E Davey, ‘A Lecture on Tropical Forests: Present Reality, Future Prospects’ (Speech delivered to University of Sydney class , Law Tropical Forests and Carbon, Christ’s College, Cambridge, 23 July 2015). 56 Ibid. 57 M Piketty et al, ‘Multi-level Governance of Land Use Changes in the Brazilian Amazon: Lessons from Paragominas, State of Pará’ (2015) 6(5) Forests 1516, 1522. 58 P Newton et al, above n 23, 34.

This final point must, however, be tempered by acknowledgment that: firstly, forest use

varies drastically between locations and a blueprint approach can only go so far59; and

secondly, communities must be engaged in any such approaches so as to ensure

effectiveness60. Nevertheless, the range of examples is illustrative of the linkages to policy

levers which government possesses.

Market – While government has wide reach, as discussed above, because of the breadth of

domains within which it has influence, markets have wide reach because of their linkages to

international capital61. This is particularly significant in light of the major gap which

presently exists between actual and required funding, and the still-open question of how

this gap will be bridged62.

As well as the general principle that more money equates to more work that can be done,

there is the subsidiary point that market agents who have large financial capital at their

disposal can invest in projects with significant start-up costs. Such projects may be out of

the reach of local communities or even of governments facing significant funding pressures.

One such example is the establishment of plantation forests which, though less desirable

than old growth forests for a number of reasons63, can still serve an important role as

carbon sinks if established on sufficient scale. Historically, such afforestation schemes have

typically only occurred in high and middle income nations64. However, large injections of

59 C Dyngeland, P Vedeld & A Vatn, above n 28, 560. 60 C MacKenzie, above n 45, 135. 61 L Peskett, above n 42, 236. 62 W McFarland, above n 16. 63 See eg. M Ohsawa, ‘Species richness and composition of Curculionidae (Coleoptera) in a conifer plantation, secondary forest, and old-growth forest in the central mountainous region of Japan’ (2005) 20(6) Ecological Research 632. 64 R M Ewers, ‘Interaction effects between economic development and forest cover determine deforestation rates’ (2006) 16(2) Global Environmental Change 161, 166.

market finance under a future REDD+ scheme may be sufficient to bring such afforestation

measures to developing nations.

However, despite the allure of vast funding which market mechanisms promise, a system of

market governance requires a significant carrot to attract international investment. Such a

carrot could take the form of carbon credits if they are able to be generated by

deforestation activity, but this would open up the problems discussed above under the

heading “incentives”. How to capture private funds while minimising these adverse

consequences remains an open question.

Communities – Despite the influence of Forestry Associations, community governance

cannot have wide reach because it concentrates local power in the hands of individual

communities at local levels. By its very nature its linkages are local. However, it can

nevertheless reach into places that government and the market cannot. The appropriate

metaphor, perhaps, is that of government and market having long arms but ham fists, which

cannot delve into the policy crevices in which forest communities distinguish themselves.

When forest management rules are created at community level, local people’s social capital

is bound up in their compliance and so the rules are far more likely to function effectively65.

This is illustrated in the forestry context by a comparison of forest conservation initiatives in

Nicaragua and Honduras. In the former, communities were included in the rule-making

process and reported that they complied with those rules on that basis, while in the latter

65 Y Hayami and Y Gōdo, Development economics: from poverty to the wealth of nations (Oxford University Press, 6th ed, 2005), 313-316.

communities questioned the very right of the Ministry of Forestry to make such laws and

conservation outcomes were undermined66.

Even in cases where rules are followed, there is a risk of adverse policy outcomes if

communities do not support the underlying objectives. This is illustrated, outside the REDD+

context, in the United States where regulations designed to protect the red-cockaded

woodpecker placed limitations on what activity could be undertaken on land on which the

woodpecker nested; this lowered the value of properties containing woodpecker nests and

so, it was reported, landowners pre-emptively cut down suitable trees before they had

grown large enough to support woodpecker nesting67.

Both points suggest that, while the extent of market and government linkages provides

opportunities which community governance cannot achieve, communities’ fewer linkages

have the greatest legitimacy at the local level and so produce the most reliable compliance.

EQUITABLY CHANELLING BENEFITS

Communities – It is intuitive that where forests are owned and managed by local

communities that the monetisation of those forests under REDD+ would lead to substantial

benefits flowing directly to these communities: the most direct of linkages is created

through power being vested in the very people to whom benefits should flow. The literature

generally supports this view68, and it will not be broadly disputed here. However, it is

subject to two qualifications which indicate that community governance is not a silver bullet

for producing equitable, pro-development outcomes.

66 T Hayes & L Persha, above n 27, 548. 67 T L Anderson and G D Libecap, above n 32, 49. 68 P Cronkleton et al, above n 29, 453.

The first is that community forest management requires some mechanism for identifying a

community with the area it is to manage and the establishment of such a mechanism can

create problems. Perhaps the most widely advocated mechanism is through secure land

tenure being granted to the local community69. Secure land tenure promotes certainty70

and, to many, it simply represents a just outcome that forest dwellers should have tenure in

their forests71. However, approximately 86% of global forested land is vested in national

governments72, so widespread community tenure would require a major restructuring of

forest tenure. This raises a fresh problem: while existing land tenure promotes certainty and

just outcomes, defining new tenure can have the opposite effect. In Tanzania, Dyngeland et

al report, village and forest boundaries were based on ‘informal understandings’ between

communities in 2010 and at that time were ‘generally reported to be clear’. However border

conflicts rose significantly following the attempted formalisation of these boundaries in

201273. Though property rights are generally amorphous, the right to exclude others is

typically considered a central feature74. Consequently, there is always a danger that tenure

reform could lead to the sudden exclusion of certain forest dwellers who had made use of

forested lands for generations. This is not to say that establishing secure tenure is generally

undesirable; only that it must be approached with care and may not be the answer in all

cases.

69 See paragraph 72 of UNFCCC, Cancun Agreements Dec 1/CP.16 (United Nations Framework Convention on Climate Change, 2011); In academia, see eg A Chhatre et al, above n 10, 656. 70 P Newton, above n 23, 31. 71 E Davey, above n 55. 72 P Kashwan and R Holahan, above n 20, 562. 73 C Dyngeland, P Vedeld & A Vatn, above n 28, 558. 74 K Gray and S F Gray, ‘The Idea of Property in Land’ in S Bright and J K Dewar (eds) Land Law: Themes and Perspectives (Oxford University Press, 1998) 15, 15.

A second qualification is that even with strong, established community governance

structures already in place, the sudden influx of money through REDD+ could expose

previously hidden vulnerabilities. Anecdotal evidence suggests that some communities may

be susceptible to financial exploitation through signing contracts whose terms and

implications they don’t fully understand75. Another potential challenge to equitable

distribution is existing power structures within communities excluding local minorities and

outsiders. Experiences from REDD+ pilot projects indicate that women76 and the poor77 may

be underrepresented in decision making, while in other communities lump sums were

distributed evenly to villagers without consideration to the fact that some people’s

livelihoods had been overturned by REDD+ projects while others were largely unaffected78.

In Kilosa, Tanzania, local Maasai pastoralists suffered significant detriment after being

denied their traditional entry onto grazing lands which had been put under community

management79.

Market – A system of pure market governance under which global finance is drawn to

REDD+ projects owned and operated by corporations is unlikely to maximally benefit local

communities. Though such REDD+ projects may generate some jobs for local communities,

they are likely to decrease available work in non-conservation industries such as agriculture

(which is generally more labour-intensive than conservation work80). The same linkages

which open up international finance also suck out some of the benefits.

75 L Peskett, above n 42, 245. 76 R R Bastakoti and C Davidsen, ‘Nepal’s REDD+ Readiness Preparation and Multi-Stakeholder Consultation Challenges’ (2015) 13(1) Journal of Forest and Livelihood 30, 38. 77 C Dyngeland, P Vedeld & A Vatn, above n 28, 551. 78 Ibid, p 557. 79 Ibid, p 558. 80 L Peskett, above n 42, 233.

Despite the above however, the involvement of international markets in REDD+ projects

could potentially promote community development outcomes in another way: by

establishing linkages to ‘ethical consumerism’ in developed countries. Ethical consumerism

refers to “efforts by customers to…purchase products…that have minimal…harm to or

exploitation of humans, animals or the environment”81 and has had a growing impact on

business practices in the last three decades82. Early evidence that this could shape business

practices in the REDD+ context come from the voluntary carbon markets within which a

Climate, Community and Biodiversity (CCB) certification operates83. Under this market,

buyers have paid on average US$2.70 per ton for carbon credit with the CCB certification84.

It is too early to tell whether this trend would hold in a fully-fledged global carbon market

under which REDD+ projects can generate credits, but if so it could see funding being

concentrated in those projects which deliver developmental and biodiversity co-benefits.

Government – While governments in developed countries frequently play a role in providing

financial support to economically marginalised citizens, this tradition is not strongly

entrenched in most developing countries and history suggests that under REDD+

governments are unlikely to ensure equitable benefit-sharing mechanisms85. This can be

attributed in part to lower pools of government revenue available for distribution and in

81 Oxford Burma Alliance, Responsible Consumerism and Burma <www.oxfordburmaalliance.org/responsible-consumerism.html> [Accessed 5 October 2015] 82 See P Yeow, A Dean and D Tucker, ‘Bags for Life: The Embedding of Ethical Consumerism’ (2014) 125(1) Journal of Business Ethics 87. 83 Climate, Community and Biodiversity Alliance, CCB Standards (2015) <www.climate-standards.org/ccb-standards/> [Accessed 5 October 2015]. 84 K Hamrick and A Goldstein, ‘Ahead of the Curve: State of the Voluntary Carbon Markets 2015’ (Report, Ecosystem Marketplace, June 2015), 17. 85 P Kashwan & R Holahan, above n 20.

part on the effects of corruption which rewards those citizens with the financial ability to

pay bribes86.

Given this, it has been suggested that binding international agreements are required to

secure the commitment of developing nations to achieving REDD+ co-benefits87, but the

prospects of such instruments actually materialising are remote88.

TOWARDS NESTED GOVERNANCE

The above discussion indicates that each of the three governance systems is, in isolation,

insufficient to achieve the ambitious aims of REDD+. This finding points to the desirability of

a hybrid system of governance which combines the best aspects of each. Referred to in the

literature as “nested governance” (though often this term is used to focus on combined

community and government approaches, without explicit reference to market

governance89,90), this approach is garnering substantial academic support91.

While space does not permit the outlining of a comprehensive proposal for a nested

governance arrangement, three principles of effective nested governance may be distilled

from the discussion so far. These, are as follows:

“Principle 1: Central government should administer REDD+ implementation, with

communities having a strong voice within that system. Decisions in different

86 D Murdiyaso, above n 14, 680. 87 P Kashwan & R Holahan, above n 20, 559. 88 C Voigt, above n 17. 89 See eg. P Kashwan & R Holahan, above n 20; T Hayes & L Persha, above n 27. 90 T Hayes & L Persha, above n 27. 91 See the discussion in P Kashwan & R Holahan, above n 20, 557-558.

government departments which potentially impact on forests should not occur in

isolation from one another.”

This principle flows from some of the discussion under “Incentives” and “Reach”.

Given the vastness of the REDD+ undertaking, both in the resources that it must

draw upon and in its far-reaching possible effects, it cannot feasibly be spearheaded

by actors whose focus is on local projects, whether those are communities or

investors (this is not to mention that the REDD+ negotiations themselves mandate

government having a central role92).

However, for this to function effectively, government must function as a single

cohesive entity, rather than as a “multi-headed beast”93 of functionally isolated

departments. From the point of view of this principle, the significance of

communities having a strong voice is that they must play a role within this cohesive

entity; as people who are most directly connected to the forests they are better

positioned than any government department to monitor the day-to-day functioning

of any REDD+ policies and it is essential that they are heard if anything is awry.

“Principle 2: Forest communities should have primary jurisdiction over their local

forests. To attract private investment, carbon conservation should generate carbon

credits, but the market should operate within bounds set by communities and

government, and investors should be accountable for externalities.”

92 UNFCCC, Cancun Agreements Dec 1/CP.16 (United Nations Framework Convention on Climate Change, 2011). 93 M Menton, ‘REDD+ and multi-level governance (case studies)’ (Speech delivered to University of Sydney class , Law Tropical Forests and Carbon, Christ’s College, Cambridge, 21 July 2015)

This principle follows from some of the discussion under “Equitably Channelling

Benefits” and “Reach”.

The phrase “primary jurisdiction” is intentionally broad due to the variety of non-

legally-recognised interests – sometimes competing – which may exist over forest

land. There will be cases where outright tenure is appropriate, but for the reasons

discussed above this will sometimes create more legal rigidity than is suitable for the

circumstances. In all cases there should be a thorough public consultation94 and

negotiation process with communities before projects are begun in the local forests.

As far as possible, communities should be able to approach this process with robust

bargaining power. This serves the dual purpose of ensuring that communities are

able to negotiate to share in the benefits of REDD+, while also providing legitimacy

for the process in the eyes of community members. Such legitimacy ensures that

community expertise could be harnessed in promoting REDD+ projects, instead of

the community ignoring or even sabotaging such projects.

It may be envisaged that the negotiations would be tripartite between

community/ies, investor and government in which: the government is influenced by

macroscopic concerns, such as leakage, as well as taking a share of the profit as

revenue; communities negotiate for a share of the benefits as well as for their role in

the project; while investors seek to minimise costs for their carbon credits. For wider

projects which don’t impinge directly on a particular area of forest, such as

94 See W F Fox, above n 21, 19.

improvements to forestry law enforcement, these negotiations would occur only

between investor and government.

Such an arrangement as that described could arise under a system in which the

government directly issues carbon credits (the total number of which it holds being

calculated from its net reduction in deforestation and degradation, being calculated

against its internationally agreed baseline), but where the carbon credits received by

the investor are “stamped” with the details of the particular project in which they

have invested. This way the investor (and any subsequent investors to whom it sells

the carbon credit) must affiliate itself with their project and therefore, under the

shadow of ‘ethical consumerism’, have an incentive to promote the co-benefits of

developmental outcomes and biodiversity.

“Principle 3: Decision making should be as transparent as possible.”

This principle follows from some of the discussion under all of “Incentives”, “Reach”

and “Equitably Channelling Benefits”.

No system, whether of nested governance or otherwise, will function effectively if it

is riddled with corruption, and perhaps the best tonic to corruption is transparency.

The greater the transparency, the greater the risk that government officials take in

sacrificing the rule of law for their personal gain95. Principle 3 underpins principles 1

and 2, which cannot properly be achieved without 3.

95 C MacKenzie, above n 45, 142.

However, principle 3 serves a wider purpose than just limiting corruption. Even with

the purest of intentions people, including government officials, can make poor

decisions; the greater the transparency, the greater the prospect of poor decision

making being rectified96. Similarly, transparency in government decision-making

allows citizens to more reliably predict future government decisions and exercise

their rights accordingly97. With reference to the discussion under principle 2 above,

such knowledge can improve the bargaining power of communities in negotiations

with government.

THE OMBUDSMAN INSTITUTION

Though still in its infancy by the standards of government institutions, the Ombudsman is

now a regular fixture in governments throughout the world98, with the International

Ombudsman Institute having members representing 107 different nations99. However, some

commentators suggest that the institution has proven not to be well-equipped for the

developing world100. This paper takes the opposite view: that the ombudsman institution is

in fact particularly well-equipped to function effectively in developing nations and that to

the extent that it has not historically functioned effectively in these nations that is because

of underfunding (of which Kerala, India represents a striking example101) or lack of political

96 C Field, ‘The Fourth Branch of Government: the evolution of integrity agencies and enhanced government accountability’ (Paper presented at the AIAL National Administrative Law Forum, Adelaide, 19-20 July 2012) 7. 97 A Chhatre et al, above n 10, 658. 98 N Abedin, ‘The Ombudsman in developing democracies: the Commonwealth Caribbean experience’ (2010) 23(3) International Journal of Public Sector Management 221, 226. 99 The International Ombudsman Institute, IOI Members (2015) <www.theioi.org/ioi-members> [Accessed 5 October 2015] 100 N Abedin, above n 98, 230. 101 T Vasavada, ‘Corruption and Democratic Governance in India’ in G Mudacumura and G Morgöl (eds) Challenges to democratic governance in developing countries (Cham, Switzerland, 2014) 203.

capital (as in most of the Carribean102). Furthermore, there are striking examples of

ombudsman success in developing nations where these factors have been overcome, such

as in Costa Rica, where the office rated highest in a public poll concerning the efficacy and

trustworthiness of various institution within the first ombudsman’s first term103. Working

from this basis, it will be argued that the ombudsman institution is well equipped to

promote the three principles advanced in this paper and, therefore, could play an invaluable

role within developing nations’ future REDD+ architecture.

While there is no single ombudsman blueprint104, there are a number of distinguishing

features of the office which, for present purposes, may be summarised as follows. The

ombudsman:

- Responds to complaints from citizens105;

- Has extremely wide powers of investigation within government106;

- Generally has no powers of compulsion, but publishes recommendations to

Departments and, when necessary, publishes reports107; and

- Is procedurally flexible and informal108.

102 N Abedin, above n 98. 103 R A Carazo, ‘Costa Rica’ in K Hossain et al (eds) Human Rights Commissions and Ombudsman Offices: National Experiences Throughout the World (Klumer Law International, 2000) 299, 299. 104 T Buck et al, above n 22, 12-13. 105 C Field, ‘A Fourth Branch of Government? The Evolution and Role of Parliamentary Statutory Officers”, (Paper presented at the Australasian Study of Parliament Group Annual Conference, Parliament House, Perth, 2-4 October 2013). 106 Ibid 107 Ibid. 108 N Abedin, above n 98, 223.

The character of institution which this typically produces is one which is responsive to

citizen concerns; seeks the best outcome rather than a narrowly legal outcome109; is able to

inform itself widely on all matters relevant to an investigation; and is completely dependent

on its reputation so strives for unquestionable impartiality110.

This may be illustrated by reference to the three principles.

PRINCIPLE 1 AND COHESIVE GOVERNMENT

The ‘Russian Doll’ model of government outlined earlier (a hierarchy in which lower tiers

must comply strictly with the laws, regulations, sub-regulations and policies set at higher

tiers) is prone to creating disunity in government. It is impossible to foresee all the possible

outcomes of a given law or centrally-directed policy and Russian Doll government does not

provide efficient channels for problems emerging at the implementation stage to be relayed

back to the central decision makers. Reports of problems can either pass slowly through the

different levels of governance111 or must be taken up by an active citizenry (which creates a

high threshold for action, filters out minority voices and generally occurs only in the

democratic world)112.

An effective ombudsman can circumvent this problem however by providing a linkage

directly between citizen and government, filtered only by an impartial judgment of the

matter following a wide investigation. This filter positively empowers the citizen’s complaint

109 N O'Brien, ‘What Future for the Ombudsman?’ (2015) 86(1) The Political Quarterly 72, 75-76. 110 B Barbour, ‘Ombudsman and Human Rights: Working with Vulnerable Communities’ (Paper presented to APOR Conference, Taipei, 23-25 March 2011), 3. 111 See Ibid, p 5. 112 It is worth noting here that ‘merits review’ is incapable of delving into systematic problems; see M Allars, ‘The nature of merits review: A bold vision realised in the administrative appeals tribunal’ (2013) 41(2) Federal Law Review 197.

by giving it greater credibility than it may otherwise have, both in the eyes of decision

makers and external observers. Contrast this with the Central Kalimantan Chapter of the

Alliance of Indonesian Indigenous Communities (AMAN) feeling driven to a public

declaration that indigenous people had been excluded from REDD+ project initiatives in

Kalimantan113. Not only does such a grand gesture indicate the extent of the perceived

exclusion, but AMAN’s status as an indigenous association makes it susceptible to being

dismissed as a vested interest. For the reasons outlined earlier in this paper, the

involvement of communities in REDD+ implementation is not just a matter of justice, but is

also essentially for its effectiveness in reducing deforestation. Effective linkages between

the policy implementation level – best represented by communities – and the policy

formation level are essential to achieve this end114. At present, international NGOs are

playing a major role in giving local communities a voice115, but when REDD+ scales up from

pilot projects to full implementation, NGO resources will be insufficient to scale up

alongside it. This gap will need filling and the ombudsman office is well suited to the role.

In addition to providing linkages between policy implementation and formation, the

ombudsman’s wide investigatory powers provides an opportunity to create flexible linkages

between seemingly disparate government departments whose actions may be dissonant

with one another. Once a complaint is received by an ombudsman, or in some cases on an

own-motion basis116, the office can pursue a matter through whatever department its

enquiry leads. This could shed light on inter-departmental disharmonies such as, for

113 REDD Monitor, Indigenous Peoples’ organisation demands “immediate moratorium” on REDD+ in Central Kalimantan (22 June 2011) <www.redd-monitor.org/2011/06/22/indigenous-peoples-organisation-demands-immediate-moratorium-on-redd-in-central-kalimantan/> [Accessed 5 October 2015] 114M Piketty et al, above n 57, 1518. 115P Kashwan & R Holahan, above n 20, 565. 116 C Field, ‘The Integrity Branch of Government’ (Paper presented at La Trobe University, Melbourne, 20 September 2012, 7.

example, one department subsiding palm oil (whose production is a significant driver of

deforestation), while another pursues net deforestation117. As discussed above, effective

REDD+ will require broad transformational change in densely forested countries and so

inter-departmental linkages, which as an ombudsman could provide, will become

increasingly essential.

PRINCIPLE 2, ACCESSIBILITY AND ACCOUNTABILITY

Earlier discussion highlighted how minority interests can sometimes be sacrificed where

local communities are treated as having a single set of interests which can be empowered

through tenure rights. In REDD+ discussions in Nepal for instance, government and

community forestry groups were well represented, but there was little to no input invited

from women, landless people or dalits (colloquially, “untouchables”)118. Furthermore,

negotiations often took place in English, being the language of the cultural elites in that

country119.

Given the range of interests which could potentially be adversely affected by REDD+, it is

essential that the solution is as flexible as those interests are diverse. There must be

stakeholder consultation, as in Nepal, but it mustn’t be left exclusively to political elites to

determine who those stakeholders are. An effective ombudsman could reverse the

situation, allowing the linkages to be directed bottom-up through the complaints

mechanism, rather than top-down through invitations to contribute. This is further

enhanced by ombudsman flexibility; many ombudsmen accept complaints either orally or in

117 M Menton, ‘REDD+ and multi-level governance (case studies)’ (Speech delivered to University of Sydney class , Law Tropical Forests and Carbon, Christ’s College, Cambridge, 21 July 2015). 118 R R Bastakoti & C Davidsen, above n 76. 119 Ibid.

writing, no lawyer or filings fees are required, and once a complaint is received the

ombudsman becomes the ‘moving party’120, making ombudsmen highly accessible to the

socially marginalised.

While the previous discussion concerned how government can use the ombudsman to

inform itself of issues at community level, the present point concerns how government is

made accountable to minorities. Ordinarily, the effectiveness of REDD+ measures will not

turn on the involvement of such minorities, but these people must nevertheless be given a

voice if they are not to become incidental casualties of the REDD+ restructuring.

This point of ensuring accountability also relates to private investment. If REDD+ carbon

credits are “stamped” with a record of the project within which the investment was made,

as envisaged earlier in this paper, then investors will be answerable further down the supply

chain for undesirable externalities arising from that project. When an ombudsman publishes

a report following a complaint by a minority, international ethical consumers are thereby

alerted to such externalities, creating a linkage between that minority and those

international consumers.

PRINCIPLE 3 AND TRANSPARENCY

A central aim of the ombudsman institution is to fight corruption. The mechanism is clear:

by having wide powers to investigate and publish findings, an effective ombudsman makes

it more difficult to hide corruption, acting as a deterrent. Of course, corruption has proved a

frustratingly intractable problem for developing nations and it cannot be supposed that a

120 N Abedin, above n 98, 223.

well-funded ombudsman is the sole answer. However, it has two key features which make it

well-adapted to make headway.

Firstly, ombudsmen are typically strikingly small compared to other government

institutions121. As such, ombudsmen can nurture a small pool of well-paid employees with

high personal integrity which, along with financial independence from executive

government, prevents them from being used as a political tool by corrupt agencies122.

Secondly, and relatedly, while there is always risk of any oversight agency itself becoming

corrupt, ombudsmen are better protected than most because they lack powers of

compulsion; an ombudsman’s power springs from its reputation and any hint of internal

corruption could drastically undermine this power. This may be contrasted with the judiciary

in Indonesia which is widely perceived as corrupt, but is able to continue seeking bribes for

judgments123 because of the binding force of its decisions.

The other strength of ombudsmen with respect to transparency is their interpretative

function. Consider, by contrast, Freedom of Information (“FOI”) mechanisms under which

citizens may request documents from governments and, subject to some exceptions, will

receive copies124. For those who are able to compose an FOI request and interpret the

response, this can be a valuable tool. However, for those who are illiterate, as is common in

forest communities125, it is unavailable. In contrast, an oral complaint to an ombudsman can

121 See eg C Field, above n 116, 6. 122 T Vasavada, above n 101, 200. 123 S Butt, R Lyster and T Stephens, Climate Change and Forest Governance: Lessons from Indonesia (Routledge, 2015) 131-133. 124 A Chhatre et al, above n 10, 658. 125 Rodrigues et al, above n 43, 1436.

begin a chain investigating the same documents but also, if something in them is troubling,

lead to an ombudsman report.

CONCLUSION

This paper has been directed towards two ends: firstly, to show how analysing governance

in terms of inter-institutional linkages can advance the search for a governance system

which effectively promotes both carbon conservation and co-benefits under a fully-

implemented REDD+; and secondly, to propose certain elements which such a governance

system may have, including principally a strong, well-funded ombudsman. While this has

produced an image of where we may like to end up, it does not provide a map to get there,

leaving open questions around the preparedness of developing nations’ governments to

share benefits with forest communities or to invest in institutions to increase their

transparency. As discussed, experience suggests that such governments rarely fall over

themselves to promote either end.

However, the volume of funding which a fully-operational REDD+ promises to deliver to the

developing world represents a potential “game changer”126 and may necessitate developing

nations changing their approach as they compete to maximise their shares in that funding.

Further systems of incentives (such as “stamped” carbon credits) may be built into the

international architecture to foster such competition.

This is new territory and the extent to which entrenched governance systems can be eroded

with sufficient finance is an open question. However, if the conclusions of this paper are

correct, REDD+ simply cannot succeed without widespread and fundamental governance

126 D Murdiyaso et al, above n 14, 680.

changes, and the challenges of making this a reality apply equally to every plausible

governance system which may be proposed. Early indications show promising levels of

enthusiasm from many developing nations127, but it remains to be seen whether this

enthusiasm will wane when the REDD+ architecture becomes more concrete. If, as

forecast128, substantial progress is made in Paris, the months following it loom as pivotal.

127 M Menton, above n 93. 128 eg C Voigt, above n 17.

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S R Marin and J B Davis, ‘Identity and democracy: linking individual and social reasoning’ (2009) 52(4) Development: journal of the Society for International Development 500.

C McDermott et al, ‘Trade-offs, co-benefits and safeguards: Current debates on the breadth of REDD’ (2012) 4(6) Current Opinion in Environmental Sustainability 646.

C McDermott, ‘REDD+ and multi-level governance’ in R Lyster, C MacKenzie and C McDermott (eds) Law, Tropical Forests and Carbon: The Case of REDD+ (Cambridge University Press, 2013) 84.

M Menton et al, ‘Analysis of REDD+ policy networks in Peru’ (Brief, CIFOR, 2014)

D Murdiyarso et al, ‘Some lessons learned from the first generation of REDD+ activities’ (2012) 4(6) Current Opinion in Environmental Sustainability 678.

J Neilson and B Leimona, ‘Payments for ecosystem services and environmental guidance in Indonesia’ in R Lyster, C MacKenzie and C McDermott (eds) Law, Tropical Forests and Carbon: The Case of REDD (Cambridge University Press, 2013) 207.

P Newton et al, ‘Community forest management and REDD+’ (2015) 56 Forest Policy and Economics 27.

N O'Brien, ‘What Future for the Ombudsman?’ (2015) 86(1) The Political Quarterly 72.

M Ohsawa, ‘Species richness and composition of Curculionidae (Coleoptera) in a conifer plantation, secondary forest, and old-growth forest in the central mountainous region of Japan’ (2005) 20(6) Ecological Research 632.

L Peskett, ‘REDD+ and development’ in R Lyster, C MacKenzie and C McDermott (eds), Law, Tropical Forests and Carbon: The Case of REDD (Cambridge University Press, 2013) 230.

M Piketty et al, ‘Multi-level Governance of Land Use Changes in the Brazilian Amazon: Lessons from Paragominas, State of Pará’ (2015) 6(5) Forests 1516.

A S L Rodrigues et al, ‘Boom-and-Bust Development Patterns across the Amazon Deforestation Frontier’ (2009) 324(5933) Science 1435.

J Spigelman CJ, ‘The Significance of the Integrity System’ (2008) 4(2) Original Law Review 39.

T F Stocker et al, ‘Climate Change 2013: The Physical Science Basis – Summary for Policymakers’ (Working Group I Contribution, Intergovernmental Panel on Climate Change, 2013).

T Vasavada, ‘Corruption and Democratic Governance in India’ in G Mudacumura and G Morgöl (eds) Challenges to democratic governance in developing countries (Cham, Switzerland, 2014)

K Yeager, ‘Yes, in my backyard’ (2006) 22(3) Issues in Science and Technology 19.

P Yeow, A Dean and D Tucker, ‘Bags for Life: The Embedding of Ethical Consumerism’ (2014) 125(1) Journal of Business Ethics 87.

B – Online Resources

Climate, Community and Biodiversity Alliance, CCB Standards (2015) <www.climate-standards.org/ccb-standards/> [Accessed 5 October 2015]

FRONTLINE/World, Brazil: The Money Tree (3 November 2009), PBS <www.pbs.org/frontlineworld/stories/carbonwatch/moneytree/> [Accessed 5 October 2015]

The International Ombudsman Institute, IOI Members (2015) <www.theioi.org/ioi-members> [Accessed 5 October 2015]

Oxford Burma Alliance, Responsible Consumerism and Burma <www.oxfordburmaalliance.org/responsible-consumerism.html> [Accessed 5 October 2015]

REDD Monitor, Indigenous Peoples’ organisation demands “immediate moratorium” on REDD+ in Central Kalimantan (22 June 2011) <www.redd-monitor.org/2011/06/22/indigenous-peoples-organisation-demands-immediate-moratorium-on-redd-in-central-kalimantan/> [Accessed 5 October 2015]

United Nations, About REDD+, UN-REDD Program <www.un-redd.org/aboutredd> [Accessed 5 October 2015]

C – Speeches

E Davey, ‘A Lecture on Tropical Forests: Present Reality, Future Prospects’ (Speech delivered to University of Sydney class , Law Tropical Forests and Carbon, Christ’s College, Cambridge, 23 July 2015).

R Lyster, ‘Do REDD+ carbon rights depend on land tenure or resource rights?’ (Speech delivered to University of Sydney class, Law Tropical Forests and Carbon, Christ’s College, Cambridge, 22 July 2015).

W McFarland, ‘How is REDD+ either complementary to, or undermining of, development efforts in tropical tainforest countries?’ (Speech delivered to University of Sydney class, Law Tropical Forests and Carbon, Christ’s College, Cambridge, 23 July 2015).

M Menton, ‘REDD+ and multi-level governance (case studies)’ (Speech delivered to University of Sydney class , Law Tropical Forests and Carbon, Christ’s College, Cambridge, 21 July 2015).

Pio & Kempinski, ‘Fauna and Flora International’ (Speech delivered to University of Sydney class , Law Tropical Forests and Carbon, Christ’s College, Cambridge, 22 July 2015).

C Voight, ‘Multilateral Negotiations on REDD+’ (Speech delivered to University of Sydney class , Law Tropical Forests and Carbon, Christ’s College, Cambridge, 20 July 2015).

D – Primary Materials

Alexkor Ltd v Richtersveld Community [2003] ZACC 18.

Geita Sebea v Territory of Papua (1941) 67 CLR 544.

Mabo v Queensland [1992] HCA 23.

National Land Code (Penang and Malacca Titles) Act 1963.

R v Symonds (1847) NZPCC 388.

Sesana and Others v Attorney General (52/2002) [2006] BWHC 1.

UN Declaration on the Rights of Indigenous People GA Res 61/295, UN GAOR, 61st sess, 107th plen mtg, Supp No 49, UN Doc A/RES/61/295 (13 September 2007)

UNFCCC, Cancun Agreements Dec 1/CP.16 (United Nations Framework Convention on Climate Change, 2011).