by Anggalia Putri

When REDD/REDD+ emerged and was touted as a new sub-sector in the forestry/environment sector, concerns arose that this new initiative would replicate old undemocratic development project patterns that even threatened human rights, especially the rights of indigenous and local communities that have long been marginalized in natural resource management. After a few years, among those more optimistic and viewing REDD+ as an opportunity, concerns emerged that this scheme might ultimately end up in a ‘hijacked’ condition, meaning more focused on processes that do not bring much change or Business as Usual. In the tug-of-war that occurred when implementing REDD+ at the national level, especially in the hasty drafting of forestry regulations made merely as a ‘red carpet’ to welcome various REDD+ funding opportunities, it soon became apparent that this scheme was attempted to be immediately placed within the existing forestry concession regime, which tends to overlook or be resistant to various concerns related to community rights.

In various forestry regulations, whether Minister of Forestry Regulation (Permenhut) No. P 68/Menhut-II/2008 regarding the Implementation of Demonstration Activities (DA) for Carbon Emission Reduction from Deforestation and Forest Degradation, Permenhut No. P 30/Menhut-II/2009 concerning Procedures for Emission Reduction from Deforestation and Degradation, Permenhut No. P 36/Menhut-II/2009 on Procedures for Licensing Business Utilization of Carbon Absorption and/or Storage in Production Forests and Protected Forests, as well as the latest, Permenhut No. 20 of 2012 concerning Forest Carbon Management, there seems to be no effort to reform the authority and governance of forestry that is actually contained in the initial discourse regarding REDD+. Discourses related to community rights and democratization of natural resource management, such as regarding tenurial conflict prevention and resolution, protection and fulfillment of human rights, and improvement of governance and power imbalances in general, are not reflected at all in the contents of various technical regulations above. Although there are also other REDD+ processes at the national level that are beginning to accommodate these issues (for example, the drafting of the National REDD+ Strategy accommodating safeguards or safety nets and various other paradigm-changing elements), legally the above regulations still serve as the main (if not the only) legal basis for various existing REDD+ activities, including the Demonstration Activities which are the focus of this paper.

One thing not reflected in various REDD+ implementation rules above but crucial for protecting community rights in and around REDD+ DA projects is the provision regarding Free Prior and Informed Consent (FPIC) whose discourse has begun to gain strength since the initiation of KFCP in 2007 and agreed upon in 2008. FPIC is one of the fundamental demands of indigenous and local communities potentially affected by REDD+ and also a fundamental demand of civil society. FPIC is considered important because it is seen as one of the procedural rights of the community needed in rearranging the governance and authority of forestry.

This provision is actually already included in international agreements on safeguards for REDD+ which are stipulated in the Cancun Agreement. In this regard, FPIC is emphasized as an instrument to prevent conflicts in order to reduce project failure risks and also as a consequence of recognition and respect for the authority and regulations of indigenous and local communities over their territories.

In response to the demand for FPIC, the Australian government, particularly the Minister of Foreign Affairs and Trade of Australia, assured that KFCP had been designed and implemented through a consultation process with the community. Since mid-2009, it was stated that KFCP had worked through 13 village facilitators to explain the goals of the KFCP project, gather community views on the project, understand the social and economic situation of the community, and develop options to generate additional income for the community including rubber planting, a solution that had long been implemented by the community. The Minister also stated that community representatives had expressed their acceptance of KFCP with the condition that the community still had fair access to forest resources and received incentives. The Minister was also very confident that the rights to customary land had been estimated in the project planning phase. Identified issues were not entirely followed up for resolution due to ‘complexity’ reasons and were said to be continued in the implementation phase.

Meanwhile, the response of government actors in Indonesia to the FPIC discourse in REDD+ can generally be said to vary and depend on the institutions from which they originate. The first battle related to the FPIC discourse concerns the legal umbrella of implementation. Although it already had a basis in international law, in national law, FPIC did not have a specific and explicit basis, so it still persisted as a discourse and policy aspiration. A uniform understanding of the meaning and operationalization of