MINISTRY OF ENVIRONMENT AND NATURAL RESOURCES

NATIONAL GUIDELINES FOR FREE PRIOR AND INFORMED

CONSENT (FPIC) FOR REDD+ IN KENYA

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Acknowledgement

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TABLE OF CONTENTS

Acknowledgement............................................................................................................................... ii

Acronyms ......................................................................................................................................... iii

1.0 INTRODUCTION .......................................................................................................................1

1.1 Understanding Free Prior and Informed Consent (FPIC) ................................................................. 3

1.2 What are the Features of FPIC? ....................................................................................................... 4

1.3 Key Elements of Free Prior Informed Consent (FPIC) ...................................................................... 4

a. What is Free? .................................................................................................................................... 4

b. What is Prior? .................................................................................................................................... 4

c. What is Informed? ............................................................................................................................. 5

d. What is Consent? .............................................................................................................................. 5

1.4 Understanding the Differences between Consultation and Consent .............................................. 6

1.5 Level and To Whom FPIC Should Be Applied ................................................................................... 7

2.0 INTERNATIONAL AND NATIONAL CONTEXT ..............................................................................8

2.1 Indigenous People’ and Local Communities’ Engagement in Climate Change and REDD+ related

process: Human-rights Based Approach .......................................................................................... 8

2.2 UN-REDD Guidelines on FPIC ........................................................................................................ 11

3.0 NATIONAL LEVEL PERSPECTIVES ON FPIC: LEGISLATIVE AND POLICY ENVIRONMENT .............. 12

4.0 FREE PRIOR INFORMED CONCENT (FPIC), CONCEPTS, FRAMEWORK AND GUIDING PRINCIPLES.

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4.1 Why are Indigenous People and Local Communities entitled to FPIC; The Rationale .................. 14

a) Historical Marginalization ........................................................................................................... 14

b) Cultural and Spiritual Identity ..................................................................................................... 15

c) Indigenous People and local communities contribution to nature conservation ...................... 16

d) FPIC as a safeguard measure ...................................................................................................... 16

e) Indigenous People Decision-making Processes .......................................................................... 16

f) Respect for rights of Indigenous People and Local Communities .............................................. 17

5.0 KEY ISSUES TO LOOK OUT FOR RELATING TO FPIC PROCESS IN A FOREST CARBON AND REDD+

PROJECTS .............................................................................................................................. 17

a. Rights to Land and Natural Resources ........................................................................................... 17

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b. Livelihoods, Traditional Knowledge and Forest Customary Practices: .......................................... 18

c. Risks, Costs and Benefit Distribution ............................................................................................. 19

d. Accountability and transparency ................................................................................................... 20

e. Full and Effective Participation of Indigenous People and Local Communities............................. 20

f. Capacity Building ............................................................................................................................ 20

6.0 GOVERNANCE AND INSTITUTIONAL ARRANGEMENT: ............................................................. 21

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Acronyms ACHPR African Commission on Human and Peoples’ Rights

ASALs Arid and Semi-Arid Lands

CBD Convention on Biological Diversity

CCBS Climate Community and Biodiversity Standards

CFAs Community Forest Associations

CoP Conference of parties

CRA Commission on Revenue Allocation

EMCA Environment Management and Coordination Act

ERPA Emissions Reduction Purchase Agreement

ERC Ecosystem Restoration Concession

EWC Endorois Welfare Council

FAO Food and Agricultural Organization

FCPF Forest Carbon Partnership Facility

FCC Forest Conservation Committees

FPIC Free, Prior and Informed Consent

ILIDP Ilkerin Loita Integral Development Project

IPCC Intergovernmental Panel on Climate change

LCE Loita Council of Elders

KEFRI Kenya forestry Research Institute

KEPSA Kenya Private Sector Association

KFS Kenya Forest Service

KFWG Kenya Forest Working Group

KWS Kenya Wildlife Service

MEWNR Ministry of Environment, Water and Natural resources

MPIDO Mainyioto Pastoralists Integrated Development Organization

MRV Monitoring, Reporting and Verification

NBSAP National Biodiversity Strategy and Action Plan

NCCAP National Climate Change Action Plan

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NCCRS National Climate Change Response Strategy

NRCO National REDD+ Coordination Office

NRSC National REDD+ Steering Committee

NEMA National Environment Management Authority

NIPSCCC National Indigenous Peoples Steering Committee on Climate change

NMK National Museums of Kenya

NTFPs Non-Timber Forest Products

OGC Ogiek Governing Council

PES Payment for Environmental Services

REDD Reduction of Emissions from Deforestation and Forest Degradation

RPP Readiness Preparation Proposal

R-PIN Readiness Plan Idea Note

SFM Sustainable Forest Management

UNCED United Nations Conference on Environment and Development

UNDRIP United Nations Declaration on the Rights of Indigenous Peoples

UNFCCC United Nations Framework Convention on Climate change

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Glossary

‘Full and effective participation’ means meaningful influence of all relevant rights holder and stakeholder groups who want to be involved throughout the process, and includes consultation and free, prior and informed consent ‘Gender sensitive’ implies seeking to understand and give consideration to socio-cultural norms and discriminations in order to acknowledge the different rights, roles and responsibilities of women and men in the community and the relationships between them. Gender sensitive policy, program, administrative and financial activities, and organizational procedures will: differentiate between the capacities, needs and priorities of women and men; ensure that the views and ideas of both women and men are taken seriously; consider the implications of decisions on the situation of women relative to men; and take actions to address inequalities or imbalance between women and men.

Wherever the terms ‘indigenous peoples’ and ‘local communities’ is used through these guidelines to mean communities living adjustment to forests whose rights and livelihoods will be affected by the proposed forest project. It is implicit that particular attention will be paid to women and marginalized and/or vulnerable groups within these communities.

Marginalization’ is understood in the context of the Constitution of Kenya 2010, art. 260

‘Rights holders’ are defined as those whose rights are potentially affected by REDD+ initiatives, including holders of individual rights and marginalized communities and others who hold collective rights.

‘Social justice’ is understood to mean ‘respect, protection and fulfillment of human rights’. Human rights are the fundamental rights and freedoms that belong to every person in the world, based on core principles like dignity, fairness, equality, respect and autonomy, including but not limited to the rights enshrined in relevant international treaties, conventions and other instruments.

‘Stakeholders ’are persons or groups who are directly or indirectly affected by a project, as well as those who may have interests in a project and/or the ability to influence its outcome, either positively or negatively. These include government ministries and institutions, private sector, local communities and indigenous peoples.

‘Vulnerable’ people are those with high exposure to external stresses and shocks (including climate change); and with high sensitivity and low adaptive capacity to adjust in response to actual or expected changes due to their lack of secure access to the assets on which secure livelihoods are built (socio-political, cultural, human, financial, natural and physical). Forest dependency may be an important factor affecting vulnerability particularly where REDD+ initiatives themselves may change access to forest resources. In many situations marginalization exacerbates vulnerability, e.g. marginalization by gender.

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1.0 INTRODUCTION

Kenya’s natural resource endowment is the foundation for much of the country’s economic activity. As such the high demand for land and natural resources has put tremendous pressure on Kenya’s natural resource base, especially forests. A key challenge to maintaining and enhancing the ecological and livelihood values of Kenya’s forests relates to complex issues surrounding land and resource tenure, including conflict over forest land ownership and access rights of local communities often pitting government’s forest institutions, private investors and communities living in or near the forests amongst other actors.

It is recognized that REDD+ programmes have the potential to deliver several benefits to forest dependent communities, including the sustainable management of biodiversity, the provision of alternative livelihoods, equitable sharing of revenues generated from emissions reductions, etc. However, if not done appropriately, it also presents risks to rights, livelihoods, culture, and biodiversity. For Forest Carbon and REDD+ programs to succeed in the long term, these risks have to be identified, reduced and mitigated. Stakeholder(s) engagement is critical in the risk mitigation endeavor.

These Free, Prior and Informed Consent (FPIC) guidelines are meant to contribute towards enhancing participation of forest dependent communities( both local communities and indigenous communities) in meaningfully contributing to and enjoying benefits from national development initiatives within forestry sector and in implementation of the REDD+ process.

The effort is informed by the realization that forest dependent communities are often among the poorest of the poor, their identity and culture is uniquely tied to their land and natural resources, they play a major role in sustainable development through managing their natural resources and their rights are increasingly recognized under national, regional and international legal frameworks that Kenya has subscribed to. 12

. The overall goal of these guidelines is to provide clear, practical and concrete guidance on how stakeholders will be included in national REDD+ efforts, and on how the principle of Free Prior Informed Consent (FPIC) should be applied and respected in the context of project development and implementation among forest dependent communities in Kenya. Associated to these guidelines is a separate set of supporting operational materials aimed at providing details on how to conduct FPIC at the community/project level. These guidelines are to be used by government ministries, private sector, project developers and development partners and - -involved in the development and implementation of forest carbon and REDD+ projects.

Overall, the proposed FPIC guidelines will promote the respect for principles of openness and transparency deriving from constitutional provisions on citizen participation, Kenya’s international obligations and responding to international best practice. It is envisaged that these guidelines will

1http://tbinternet.ohchr.org/_layouts/TreatyBodyExternal/Treaty.aspx?CountryID=90&Lang=EN

2 http://www.unredd.net/index.php?option=com_docman&Itemid=134&view=document&alias=8792-legal-companion-to-the-un-redd-programme-guidelines-on-fpic-8792&category_slug=legal-companion-to-fpic-guidelines-2655 which provides the broader legal basis for FPIC, including with reference /some references to Kenya.

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enhance the legitimacy, and hence the quality and credibility of development practice in REDD+ related interventions in the country.

While the national guidelines on stakeholder engagement are targeted at a broad array of stakeholders including Indigenous People and Local Communities at the national level, FPIC guidelines on the other hand has been primarily applied within the context of IPs, local communities and other vulnerable groups living in implementation geographical areas. FPIC is understood to be the collective right of IPLCs to participate in decision making and give or withhold their consent to activities that impact on their land, territories and resources, livelihoods, social cohesion and future well-being. Consent must be freely given, obtained prior to implementation of activities and be founded upon an understanding of the full range of issues implicated by the activity or decision in question; hence the formulation: free, prior and informed consent.

The right of FPIC applies to forest carbon and REDD+ discussions prior to:

a. Relocating an indigenous community from their land b. Taking cultural, intellectual, religious and spiritual property c. Causing damages, takings, occupation, confiscation and uses of their land, territories and

resources d. Adopting and implementing legislative or administrative measures and e. Approving any project affecting their land or territories and other resources, particularly in

connection with the development, utilization or exploitation natural resources.

Under these circumstances, consistent with international human rights instruments and other treaty obligations, potentially impacted people have the right to participate in and consent to or withhold consent from a proposed action. FPIC therefore takes stakeholder engagement/consultation and participation to a higher level. FPIC is specifically designed to be applied at the project level/community level, while stakeholder engagement guidelines are to be applied at national and a higher and larger scale including and beyond project level, often at the policy level.

FPIC is a comparatively new mechanism for ensuring the full realization of indigenous people’s rights and to safeguard the interests of local communities, minorities and other marginalized groups.3 A number of international laws and instruments have already incorporated FPIC both as a right and as a principle4. Many intergovernmental organizations, international bodies, conventions, and international human rights laws have increasingly recognized indigenous people’ right to FPIC as an important feature, but at varying degrees. The UN human rights, environmental and development related systems and agencies, and other multilateral lending and development agencies e.g. World Bank and its affiliates are some examples. The rights of indigenous people to the principle of FPIC have put a stronger requirement on states and other development actors to recognize and respect the rights of indigenous people to FPIC, including REDD+ related programs.

3 COK 2010 Article 260 on interpretation of marginalized communities. 4 http://www.unredd.net/index.php?option=com_docman&Itemid=134&view=document&alias=8792-legal-companion-to-the-un-redd-programme-guidelines-on-fpic-8792&category_slug=legal-companion-to-fpic-guidelines-2655

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In this context, the requirement for consent serves as a core human rights principle and a fundamental safeguard to ensure that IPLCs’ rights and interests are not violated through imposed dispositions. In addition to contributing to realization of emission reduction targets in the forest sector, through full and effective engagement of IPLCs in REDD+, the FPIC guidelines will contribute to the recognition and respect for both statutory and customary rights to land and resources of REDD+ stakeholders in the country, in particular Indigenous People and Local Communities.

1.1 Understanding Free Prior and Informed Consent (FPIC)

Free, Prior and Informed Consent (FPIC) is a mechanism and a process wherein indigenous people and communities undertake their own/independent collective decision on matters that affect them. This collective decision-making process includes programmes and projects that relate to the use of their land and resources; plans that will have serious implications on their health; activities that may affect their territorial integrity, collective identity, cultural integrity, livelihoods, social cohesion and wellbeing, among others. This principle also applies to policy formulations or adoption of legislative and administrative decisions that directly affect indigenous people.

Free, Prior and Informed Consent (FPIC) is enabled through provision of accurate and complete information in a manner understood by Indigenous People and Local Communities; the freedom of IPLCs to undertake their internal and collective decision-making process; and the recognition and respect to their collective decision - including conditions they may provide as part of their decision - and the proper and accurate documentation of the decision.

(FPIC is a reiterative process undertaken in good faith to ensure mutual respect and meaningful participation of IPLCs in decision-making. It is not just a procedural process but a substantive mechanism to ensure the respect of IPLCs’ collective rights especially in relation to land and territories, resources, as well as self-determination. FPIC is essential for ensuring the full and effective participation of indigenous people in policy-making and decision-making processes on matters that concern or affect them. FPIC establishes conditions for exercising the fundamental rights of the indigenous people to negotiate and define terms for policies, programmes and activities (such as REDD+) that directly impact their livelihoods, cultures and wellbeing.

The right to be consulted and to give or withhold consent is intimately linked to the right of indigenous people to self-determination and to fully participate in the decisions of the broader society in which they live. When embedded in a broader context of collaborative governance and inclusive democracy, it should be avoided that the requirement for consultation and consent is reduced to a simplistic option of saying “yes or no” to external pre-defined measures that IPLCs’ have not participated in the formulation of, and which do not reflect their aspirations for development.

A governance approach to consultation and consent will focus, inter alia, on the recognition of IPLCs substantial rights, to land, territories and resources, in the broad legislative and institutional framework of the country; on the establishment of institutional capacity of both states and IPLCs’ and on development of regular mechanisms for dialogue, participation and consultation. The duty to consult and seek for FPIC is solidly embedded in a coherent human rights and governance framework that respects indigenous people’ substantial rights.

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1.2 What are the Features of FPIC?

FPIC as a collective decision-making process - FPIC is a collective undertaking of the members of community/ies that shall be involved in collective decisions. Indigenous People and Local Communities exist as collective and thereby rely on each other for their collective survival and development. In this context, the collective decision-making of indigenous people ensures that their collective interests is fully accounted and become the basis of their decision. The views and concerns of individual members of indigenous communities shall be accounted. What prevails in the process of collective decision is the collective interest of the indigenous communities, and not the individual. Therefore, the collective decision of indigenous people is not simply an aggregation of individual decisions but rather an outcome of collective deliberations in upholding the common good and welfare over individual interests and benefits.

FPIC as a reiterative process - FPIC is a reiterative process that shall be undertaken in good faith to ensure mutual respect and meaningful participation in decision-making. As a reiterative process, it requires the conduct of series of consultations, dialogues, exchanges, and interactions between IPLCs and those seeking the consent and agreement of concerned communities. It also requires continuous engagement of IPLCs, in the whole programme/policy cycle.

FPIC as a process of engagement with governments and other external entities - the FPIC process defines the relation of IPLCs, with external entities, including governments, in relation to the projects, plans, activities, laws, and policies that affect them. In this context, any plan and activity that impact IPLCs need to engage them in mutual trust and seek their consent through a process of consultations, dialogues and interactions.

1.3 Key Elements of Free Prior Informed Consent (FPIC)

a. What is Free?

Free implies the absence of any manipulation, coercion or intimidation from any other groups, bodies and entities in the decision-making process of indigenous people and local communities. Any external influence that hinders self-determination in the process of decision-making and the outcome of their decision is a clear violation of this principle. Consent cannot be valid if it is taken from the authority or the group that is not recognized by the indigenous communities or not accountable to them. Further, the independence of their decision-making process and the outcome must be verifiable with the members of the indigenous communities. The verification could be through community based open validation sessions and evidence of written agreements and full disclosure of community representative involved, with a certified copy of such an agreement accessible at the community level.

b. What is Prior?

The informed consent must be sought first as a precondition before implementing any activity and project. It is an advanced authorization from affected IPLCs before the commencement of any activities or project. It shall respect the time requirements of IPLCs consultation and consensus processes defined by them. The prior consent requires a comprehensive procedure to ensure that IPLCs have sufficient time to understand, analyze and discuss the information they receive collectively. The element of prior

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also denotes respecting the duration of time for IPLCs to undertake their decision-making process according to their pace and circumstances.

c. What is Informed?

This is a core element of the FPIC decision-making process, namely to reach or achieve a well-informed decision. It is thereby important not only to have access to information, but also to clearly understand the information provided to them. Where necessary, information should be translated to the local language and put in a form and manner that is understood by the indigenous communities to facilitate better understanding. Further, IPLCs and other vulnerable and marginalized groups, must have a level of satisfaction on the level of information provided to them. This includes information to clarify or answer their questions as well as information that shall provide them with a comprehensive understanding especially on the implications of the activity, project or matter for their collective decision.

Information disclosure for the FPIC process should include full and legally accurate exposure of data pertaining to any activity or proposed developments or projects. These shall include studies on environment and social impacts, project design, implementation plans, budget and sources of funds, and terms of contracts or agreements. The project proponent is responsible for the full disclosure of the information to indigenous communities, including providing the information in forms understood to them. In this context, there shall be considerations on the level of literacy and language understood by IPLCs. Consideration of access to legal aid or services, especially to help unpack and communicate information of legal nature is critical for informed decision-making.

IPLCs shall also have the freedom to secure additional information from other sources, besides the project proponent. They remain with full rights to seek for additional means to verify the accuracy of information provided to them. The decision of the indigenous communities will be based on accuracy of information provided by the project. IPLCs have the right to change and/or review their decision, and sanction should be given to project proponents, based on due process. Information to be provided by project proponents relates to:

- Nature, size and scope of the proposed project or activity - General and specific objectives, implementation plans, budget, outcomes and impacts of the

project and/or activity, and also source of funding in some cases - Duration, locality and scale of the project - Assessment of possible economic, social, cultural, and environmental impacts, including

potential risks and benefit sharing arrangement - Roles and responsibilities of the project proponent and that of the community in question - Involvement of personnel in the execution of the proposed project (IPLCs, private sector staff,

research institutions, government employees and others)

d. What is Consent?

It is a collective decision-making process of indigenous people that entails several steps. This may include series of consultation as needed and it should allow enough time for indigenous communities to undertake their own internal deliberations prior to making their collective decision. The consultations shall allow community members, including women, minority groups, Persons with Disability (PWD) and

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youth, to express their views, raise their concerns, seek additional information, if needed, and seek clarifications on their questions and/or concerns.

It should be transparent, inclusive and well-informed with meaningful and accountable participation of indigenous communities and other vulnerable and marginalized groups’ representatives, in the consultation processes and the collective decision-making process. The consultation processes shall be properly documented. Project proponents shall provide for any additional information, if requested, and respond to the clarifications and conditions set by indigenous communities. In addition, consultations require an effective system of communication to enhance understanding of project related information among IPLCs.

Community members should be granted opportunity to discuss collectively on the implications of the project/activity from their own perspectives, interest, welfare, and aspirations, and to arrive at a decision. Further, community deliberations shall ensure the active participation of women, minority groups, Persons With Disability and youth - and to take into account their views, specific concerns and rights. Where necessary, the capacity of the IPLCs should be enhanced for their decision-making process, which includes the option of withholding consent.

Indigenous communities should have the freedom to define their own mechanisms and processes of decision-making and the right to set their terms and condition to either say YES or NO. Indigenous communities must have the right to withdraw consent, if conditions are not met. Any agreement reached should be written in a form fully understood by community members and the proponent must respect the no consent decision, should this be the outcome of the FPIC process. Strong division with opposing views within indigenous communities means the absence of consent.

On the other hand, consent does not mean unanimity. Based on the traditional systems of indigenous people’ decision-making, consensus is always the desired outcome of a collective decision-making process in upholding the common good and the collective interest and welfare of the community. Even if there are views or positions that run counter to those of the majority, as long as those with opposing views agree to abide or respect the position of the majority, then this is considered as a consensus and a consent decision. Thus, the outcome still upholds the collective voice, views and interests of the community as one social and collective entity.

1.4 Understanding the Differences between Consultation and Consent

Consent is the result of an independent and collective decision-making process to a certain proposal or action. It is a mechanism that allows those concerned to undertake their own collective decision-making process that includes access to relevant information, consultations, internal deliberations, and independent decision-making process resulting to collective decision of giving their consent or withholding their consent.

On the other hand, consultation is a mechanism as a democratic right for expressing and exchanging views and opinions on a certain issue, proposal or action to influence its outcome or final decision. Consultations therefore involve another party that seeks to gather the views of a particular stakeholder group and that party is the body to make the final decision. Compared to consultation, in consent, it is the party concerned that will not only share or express their views, but will undertake their collective

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decision of providing or withholding their consent before a project, programme and action can commence.

Consent is therefore an end product or result of a collective, but independent, decision-making process, while consultation is a process of gathering or expressing views and opinions for consideration in making a decision.

In terms of REDD+, in particular, the consent of IPLCs is required before going to actual implementation. Consent should be sought from the affected IPLCs based on clear and full agreement as an exercise of their rights to land, territories and resources. The final decision of Yes or No shall be given by the affected communities, and with their thoughtful consideration and perspectives on the implications of the REDD+ policies, strategies and activities to their rights, interest and welfare.

1.5 Level and To Whom FPIC Should Be Applied

Given that an FPIC process concerns a specific proposed activity with potential impacts on a specific community, and that consent is given or withheld collectively by the community, FPIC is applied at the community level.

The decision as to which stakeholder groups is FPIC applicable to in the context of REDD+ stakeholder engagement processes in Kenya, is informed by international and regional good practices, policies of multilateral bodies engaged in REDD+ mechanisms, national legal, policy and program circumstances and self-identification and determination of community groups in REDD+ implementation sites. Specifically, the rights of Indigenous People and Local Communities ’ has emerged as a unique category of rights recognized in the international space based on historical circumstances of marginalization and dispossession amongst other identifiers.

REDD+ is a forest sector climate change mitigation measure, and a number of Indigenous People and Local Communities groups are either forest dwellers and/or forest dependent. In addition to groups that have been recognized and who self-identify with the indigenous people category, there are other vulnerable and marginalized groups whose livelihoods are associated to forestry resources, and as such their interests must be safeguarded. These groups include, forest adjacent local communities and other minority groups.

The proposed FPIC Guidelines for REDD+ and forest carbon produce in Kenya, is therefore informed by the country’s constitution and enabling legislation, REDD+ Cancun safeguards, and other national, regional and international principles and practices related to Indigenous People and Local Communities .

The Constitution obligates the state to provide for adequate representation of “marginalized groups” in all levels of government, execute affirmative action on behalf of these groups, and promote the use of indigenous languages and the free expression of traditional cultures. More specifically, hunter-gatherer and pastoral livelihood systems are recognized and are associated with the concept of marginalization in line with the African Commissions on Human and People Rights decision in 2003.

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The African Commission on Human and People’ Rights (ACHPR)’s collaborative efforts with International Work Group for Indigenous Affairs (IWGIA), through a study on Indigenous People in Africa5, has provided an indicative list of indigenous people in Kenya, broadly around hunter-gatherer6 and pastoralist7 communities. The constitution, national programs interventions, emerging national jurisprudence and African regional instruments and jurisprudence8 provide an indicative list of some of the Kenyan communities that self-identify and increasingly legally endorsed as indigenous people to whom the proposed FPIC guidelines will apply.

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Indigenous people are found in forest areas where they are either part of the community forest associations or operate as different entities, both communities should be involved and the FPIC process.

2.0 INTERNATIONAL AND NATIONAL CONTEXT

2.1 Indigenous People’ and Local Communities’ Engagement in Climate Change and REDD+ related

process: Human-rights Based Approach

Increasingly, the global community have recognized and provided policy and legislative frameworks within which indigenous people and local communities rights, knowledge and customary governance practices are promoted, respected and protected. These rights broadly relate to procedural rights including rights to participate in decision-making, acquire information, and access justice; and substantive rights including rights to self-determination, self-governance, and freedom from discrimination, freedom to practice culture, personal security, health, and education. Traditional knowledge, innovations, practices and other expressions of cultural heritage; customary sustainable use of biological resources and genetic resources are examples of rights recognized under international environmental law and policy instruments.9

Article 8(j) of the Convention on Biological Diversity (CBD) (which Kenya has ratified10 ) obligates states parties, subject to national legislation, to respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge innovations and

5African Commission on Human and People’ Rights (ACHPR) and International Work Group for Indigenous Affairs (IWGIA), Indigenous People In Africa: The Forgotten People? 2006, The African Commission’s work on indigenous people in Africa 6Ogiek, Sengwer and Yaaku 7Samburu, Turkana, Rendille, Endorois, Borana, Pokotand Maasai 8The Commission ruled on February 4, 2010 that the Endorois' eviction from their traditional land for tourism development violated their human rights 9 United Nations Convention on Biological Diversity (CBD), World Intellectual Property Organization (WIPO); United Nations Educational, Scientific and Cultural Organization; Food and Agriculture Organization of the United Nations; United Nations Convention on Climate Change 10 Ratified on: 24th October, 1994, see: https://www.cbd.int/countries/?country=ke

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practices.1112 Likewise, it requires government, to respect, preserve and maintain the knowledge and innovations of indigenous people, relating to biodiversity conservation and management.13

The UNFCCC Copenhagen Decisions14, for methodological guidance for activities relating to REDD+, recognizes the “need for full and effective engagement of indigenous people and local communities in, and the potential contribution of their knowledge to, monitoring and reporting of activities relating to decisions”.

Also, the Warsaw Decision15 on modalities for National (and subnational) Forest Monitoring Systems (NFMs) calls for the reporting on how safeguards in decision 1/CP.16, appendix I, are being addressed and respected. Further, the decision acknowledges that local livelihoods production systems may be dependent on activities related to drivers of deforestation and forest degradation and calls for the recognition of the importance of indigenous and traditional knowledge and practices, and gender-sensitive approaches as tools for adaptation to climate change.

In addition to the recognition of IPs’ rights associated to specific UN agencies, under the human rights systems of the UN, specific instruments dedicated to IPs’ rights have been realized. These include, amongst others, the ILO Convention no. 169 of 1989 on Indigenous and Tribal People, and the United Nations Declarations on the Rights of Indigenous People (UNDRIP) of 2007. The ILO convention, for example, prohibits relocation of IPs without consent and calls for informed participation in the context of development, national institutions and programmes, land and resources. Furthermore, a number of multilateral international agencies have established specific policy guidelines on stakeholder engagement and safeguards on IPs’ rights, including on the right to Free, Prior, Informed Consent (FPIC).

The Cancun Agreement on REDD+ safeguards calls for the respect for the rights and knowledge of indigenous people and members of local communities. The safeguard provides for the respect for the rights of indigenous people, including rights to land, and resources, and the right to their livelihoods and resource management systems, as enshrined in the UNDRIP, along with other collective rights of indigenous people. The Cancun REDD+ Agreement on social safeguards relating to indigenous people refers to “the full and effective participation of relevant stakeholders, inter alia, indigenous people and local communities;” and the “respect for the knowledge and rights of indigenous people and members of local communities, by taking into account relevant international obligations, national circumstances and laws.”

The World Bank’s Carbon Fund Methodological Framework, adopted in December 20th, 2013, with the goal of guiding the development of large-scale REDD+ programs, is another progressive tool with respect to IPs and local community participation. In part, the tool provides a framework for community participation in monitoring and reporting, information disclosure, and respect for both World Bank’s and Cancun safeguards that seek to promote broad community support and the full and effective

11Convention on Biological Diversity (CBD), art. 8(j), 2006; http://www.biodiv.be/convention/cbd-text 12 Legal Companion to the UN-REDD Programme Guidelines on Free, Prior and Informed Consent (FPIC) International Law and Jurisprudence Affirming the Requirement of FPIC, UN-REDD Jan. 2013 13Training ManualOn Free, Prior And Informed Consent (FPIC) IN REDD+ for Indigenous People. Asia Indigenous People Pact (AIPP) and International Work Group for Indigenous Affairs (IWGIA), 2012 14FCCC/CP/2009/11/Add.1, Decision 4/CP.15 p.11- accessed at: http://unfccc.int/resource/docs/2009/cop15/eng/11a01.pdf 15FCCC/CP/2013/10/Add.1, decision 11/CP.19

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participation of relevant stakeholders, in particular affected IPs and local communities. The rights recognized and targeted for safeguarding under the Carbon Fund’s methodological framework only serve to enhance pre-existing World Bank’s Social and Environmental safeguards operational policies under the broader mandate of the Bank and its affiliated International Financing institutions in development practice.16

The United Nations Development Program (UNDP), under its Social and Environmental Standards (UNDP-SES), equally recognizes and has established a framework for respect and promotion of IPs’ rights, including the right to cultural heritage and customary governance.17 Recognizing the critical role of indigenous people and other forest dependent communities to long-term sustainability and effectiveness of REDD+, the UN-REDD Programme has developed guidelines on stakeholder engagement which have since been harmonized with FCPF i.e. the Joint FCPF/UN-REDD Programme Guidelines on Stakeholder Engagement for REDD+ Readiness18, with a focus on the participation of IPs and forest dependent communities. The UN-REDD Programme’s stakeholder engagement guidelines recognizes Free Prior Informed Consent (FPIC) as a key component of effective stakeholder engagement and consultation and has developed further guidelines on FPIC.19

The African Commission on Human and People’ Rights (ACHPR) is a structure within the African Union. In 2009, it passed the “Resolution on Climate Change and Human Rights and the Need to Study its Impact in Africa” (No.153). The resolution urged that policymakers to include human rights safeguards, such as Free, Prior and Informed Consent (FPIC), in legal texts, and “ensure that special measure of protection for vulnerable groups, such as indigenous communities” be included in international agreements or instruments on climate change.

The UN Framework also addresses the human rights responsibilities of businesses. In 2011, the United Nations Human Rights Council unanimously endorsed the UN Guiding Principles on Business and Human Rights20 - a set of guidelines for States and companies to prevent and address human rights abuses committed in business operations. Under the guiding principles, business enterprises have the responsibility to respect and protect human rights and provide genuine remedies for any victims of human rights violations, especially the human rights of individuals belonging to specific groups or populations that require particular attention, including indigenous people and local communities, wherever they (businesses) operate and whatever their size or industry.21 Instructively, the guidelines clarify that no matter the context, States and businesses retain distinct but complementary responsibilities to respect and protect human rights.

16 OP4.O1, on Environmental Assessment; OP4.04 on Natural Habitats; OP4,36 on Forests; OP4.09 on Pest Management; OP4.37 on Safety of Dams; OP 4.11 on Physical and Cultural Resources; OP 4.10 on Indigenous People and OP 4.12 on Involuntary Resettlement 17 Draft UNDP’s Social and Environmental Standards – available from: http://www.undp.org/content/dam/undp/library/corporate/Social-and-Environmental-Policies-and-Procedures/UNDPs-Social-and-Environmental-Standards-ENGLISH.pdf 18http://www.un-redd.org/Stakeholder_Engagement/Guidelines_On_Stakeholder_Engagement/tabid/55619/Default.aspx 19http://www.un-redd.org/stakeholder_engagement/tabid/55630/default.aspx 20 The Un Guiding Principles on Business And Human Rights : An Introduction, by The Un Working Group On Business and Human Rights; accessed; http://www.ohchr.org/Documents/Issues/Business/Intro_Guiding_PrinciplesBusinessHR.pdf; see also: http://www.ohchr.org/Documents/Publications/GuidingPrinciplesBusinessHR_EN.pdf for the full text 21 Ibid, foundational principle no. 12, p.15

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Other private sector and non-State related actors have also developed tools and standards that recognize, respect and promote the protection of IPs’ rights, including the right to full and effective participation. One such tool is the REDD+ Social & Environmental Standards initiative which aims at building support for government-led REDD+ programs that make a significant contribution to human rights, poverty alleviation and biodiversity conservation. The secretariat of the REDD+ SES initiative is the Climate, Community & Biodiversity Alliance (CCBA) and CARE International.22

International Financial Institutions (IFIs) and Multilateral Development Banks (MDBs) providing funds for global development initiatives, including REDD+ initiatives are bound to abide by their policies relating to IPs. Most of their policies now provide for the rights to FPIC in context of IPs.23’24

Emerging global in-country experiences at the national level indicate increasingly growing trends in the recognition of the historical challenges and disadvantaged position occupied by local communities, indigenous people groups and another vulnerable and marginalized sectors of society; and subsequent establishment of the requisite national legislation, policies, guidelines and programs to respond to their unique circumstances.25 One common feature of this emerging practice is enactment of legislation requiring and enabling consent or similar decision making mechanisms prior to the approval of any activities undertaken in spaces occupied by these groups. I agree with the comment from JL. FPIC in WB is about consultation NOT Consent.

2.2 UN-REDD Guidelines on FPIC

The guidelines recognize that indigenous people and forest dependent communities are the rights holders of the forest since they have socio-cultural, economic, environmental and spiritual association with the forest for generations (Which forests?). In the context of the UN-REDD Programme, stakeholder engagement practices should adhere to the United Nations Declaration on the Rights of Indigenous People (UNDRIP), the UN Development Group Guidelines on Indigenous People’ Issues26, and International Labor Organization (ILO) Convention No. 169. For FCPF activities, REDD+ activities affecting indigenous people are governed by the World Bank Operational Policy 4.10 (OP 4.10).27 It is aimed at ensuring that development processes fully respects the dignity, human rights, economies, and cultures of indigenous people.

UN-REDD-Social and Environmental Principles and Criteria (SEPC)28: The UN-REDD Programme has developed a set of Social and Environmental Principles and Criteria (SEPC) to enhance the multiple benefits of, and reduce risks from, REDD+ and support countries in developing their national approaches to REDD+ safeguards in line with the UNFCCC. The SEPC reflects the UN-REDD Programme’s

22 REDD+ SES – accessible from - http://www.careclimatechange.org/files/presentations/REDD+SES.pdf 23 European Policy on IPs; The World Group, European Bank for Reconstruction and Development, African Development Bank 24International Finance Corporation, 2011. Update of IFC’s Policies and Performance Standards on Environmental and Social Sustainability, and Access to Information Policy. 25Philippines, Australia (Northern Territories), Venezuela, Peru and Denmark (Greenland), Norway, EU, Canada and Belize, Bollivia 26 Accessible from: http://www.ohchr.org/Documents/Issues/IPeople/UNDGGuidelines.pdf 27 OP4.10, Accessible from: http://web.worldbank.org/WBSITE/EXTERNAL/PROJECTS/EXTPOLICIES/EXTOPMANUAL/0,,contentMDK:20553653~menuPK:4564185~pagePK:64709096~piPK:64709108~theSitePK:502184,00.html 28 Accessible from: http://www.un-redd.org/Newsletter23/SEPC_Public_Consultation/tabid/55626/Default.aspx

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responsibility to apply human rights-based approach to its programmes, uphold UN Conventions, treaties and declarations, and apply the UN agencies’ policies and procedures.

3.0 NATIONAL LEVEL PERSPECTIVES ON FPIC: LEGISLATIVE AND POLICY ENVIRONMENT

Kenya’s Constitution has entrenched a number of very progressive legislation including clarification on the concept of indigeneity often associated with marginalization and vulnerability.29 The concept is basically premised on perceived exclusion of certain sectors of Kenyan societies including in areas of political representation and governance. Besides recognition of marginalization related to gender and intergenerational equity, community groups are identified on the basis of their traditional livelihoods systems - predominantly pastoralism, nomadism and hunter-gathering. Additionally, intellectual property rights on culture30, language and indigenous knowledge31, including affirmative action in political32 representations, have been provided for. The Constitution also vests community land in communities identified on the basis of ethnicity, culture or similar community of interest.

The Constitution has entrenched rights, which recognize the plight of indigenous communities as historically marginalized and disadvantaged, and has established a legal framework for robust affirmative interventions for both political representation and equity in resource allocation. Further Devolved county governance structure has provided opportunity for enhanced citizen participation33 in governance and decision-making, and, equitable resource distribution within and across the country and sectors groups. The Commission on Revenue Allocation (CRA) and the Commission on Administrative Justice (CAJ), provide constitutional mechanism for bringing the marginalized communities and regions of Kenya into the country’s mainstream development space, and for enhancement of accessible mechanism for public feedback and grievance redress respectively. The aim is to address historical inequities in service delivery, with an aim of equalizing opportunities for all Kenyans. The CRA has for example identified fourteen (14) counties considered most marginalized based on the County Development Index (CDI), which is constructed from indicators of the state of health, education, infrastructure and poverty. .

The National Land policy (NLP)34, recognizes and calls for the protection and promotion of customary land rights, and reasserts its viability under provisions on community land. The NLP35 identifies subsistence farmers, pastoralists, hunters and gatherers as vulnerable groups who require facilitation in securing access to land and land-based resources; participation in decision making over land and land-based resources; and protection of their land rights from unjust and illegal expropriation. The NLP addresses the tenure issues in a number of ways. with regard to community land, the policy recognizes and protects customary land rights,.

29 Constitution of Kenya 2010, art. 260 30 Ibid, art. 11 31 Ibid, art. 44 32 Ibid, art. 56 and 100 33 Constitution of KENYA 2010, Schedule 4, ( functions of the county Government ) 34GoK, Ministry of Lands, Sessional Paper no 3 of 2009 on National Land Policy 35GoK, Ministry of Lands, Sessional Paper no 3 of 2009 on National Land Policy

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Under the Forest Act 2005, community engagement in forest management is predicated on the registration of a Community Forest Association (CFA), which allow communities to participate in the joint management of public forests under national amd county governments. The Act grants customary use rights to communities who traditionally relied upon forests for their livelihoods. Additionally, it does support community involvement in management of water catchments through water catchment management strategy, for the management, use, development conservation, protection and control of water resource within each catchment area.

Other relevant policy initiative on Indigenous communities include the Proposed Legal Framework for the Protection of Traditional Knowledge and Traditional Cultural Expression.36 The Draft policy recognizes the value of indigenous knowledge and the institutions which regulate it. The legislation will give effect to provisions of article 11 and 40(5) of the Constitution of Kenya (2010).

These gains are increasingly being cemented through emerging progressive jurisprudence recognizing and re-affirming the internationally recognized rights of indigenous people at the national level, as exemplified by the recent ruling by the Environment and Land Court on the Ogiek claims over their ancestral domains at the Mau, delivered on 17th March, 2014.37

On-the-ground experiences for operationalization of FPIC in Kenya is minimal but with increasing demonstrated interest in its understanding, implementation and promotion among a number of project proponents. Conservation International (CI) had, for example, commissioned a case study on FPIC in Kenya, with the hope of informing the design and future implementation of REDD+ in the Country.38 Wildlife Works Carbon, one of the pioneer private sector REDD+ project developers in the country, has also undertaken appreciable work in carrying out and seeking FPIC in the Kasigau Corridor REDD+ Project (Taita Taveta) as well as the Chyulu Hills REDD+ Project (Kajiado and Makueni County).

One of the most robust undertaking of FPIC in the country was carried out by Kipeto Energy Ltd. The company is establishing a commercial wind energy facility in Kipeto area, located about 70 km south-west of Nairobi in Kajiado County, an area predominantly inhabited by an indigenous community, the Maasai. The FPIC process undertaken by the company endeavored to adhere to the IFC’s performance standards on stakeholder engagement and FPIC, the Kenyan Constitution and relevant enabling legislation and, relevant regional and international standards on stakeholder engagement.39 The engagement approach displays the detailed consultations in an effort to achieve the indigenous people’s FPIC, which also develops a management infrastructure that ensures continuous consultation and participation in the entire project cycle from design and feasibility study phase, to construction, operations and decommissioning.

36GoK, Draft Bill on the Protection of Traditional Knowledge and Traditional Cultural Expression, 2013 37Joseph Letuya & 21 others v Attorney General & 5 others [2014] eKLR; Republic of Kenya N The Environment and Land Court At Nairobi, Elc Civil Suit No. 821 Of 2012 (Os), 17th March 2014 38Sena Kanyinke, A Case Study: Operationalizing Free, Prior and Informed Consentwithin REDD+ Projects in Kenya. Visit - https://communitylegalresources.files.wordpress.com/2014/12/ci_fpic-case-study_kenya.pdf 39https://www3.opic.gov/environment/eia/kipeto/transmission%20line%20seia/Appendices/16.4.22-Appendix%20E-SEP.pdf

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4.0 FREE PRIOR INFORMED CONCENT (FPIC), CONCEPTS, FRAMEWORK AND GUIDING PRINCIPLES.

4.1 Why are Indigenous People and Local Communities entitled to FPIC; The Rationale

FPIC is a specific right of indigenous people and forest dependent communities in the exercise of their collective rights. It is the legitimate rights of the indigenous people on matters that affect them. It is directly linked to the respect of their right to land, territories and resources, and their right to self-determination and to cultural integrity.

The rationale for engagement with indigenous and local communities in the context of REDD+ processes stems from a number of key concerns over potential adverse implications of REDD+ actions on indigenous people. IPs, as social groups with identities that are distinct from dominant groups, are often among the most marginalized and vulnerable segments of a population. They can be subject to different types of risks and severity of impacts including loss of identity, culture, traditional land, and natural resource-based livelihoods.40 If a project will directly affect indigenous groups and forest dependent community and their traditional or customary land under use, early engagement is an essential first step in building longer-term processes of consultation, informed participation, and good faith negotiation

a) Historical Marginalization

The history of indigenous people globally has demonstrated continuous exploitation, discrimination and oppression through the violation of their rights to land and territories, cultural heritage and dignity, as well as self-governance.

Many experiences have shown that governments and private sector have ignored, repeatedly refused or insufficiently recognize the rights, concerns and interests of indigenous and local communities in forest-related matters. These include forest policies, programmes and projects at the national, regional and local levels. Indigenous People and Local Communities are considered as forest destroyers and a number have been evicted in the name of forest conservation, establishment of national parks, protected areas or conservation areas.

Likewise, legal prohibition and restrictions of their forest-related livelihood activities, such as subsistence hunting and gathering or pastoralism, have been a common practice. Thus, many Indigenous People and Local Communities have expressed their serious concerns on REDD+ as its implementation may aggravate further violation of their rights over their land and resources, and to their livelihoods, among others.

Being relatively few, indigenous communities in the country do not have sufficient political representation at the national and/or county levels. The main effect of political marginalization is the unequal access to development resources, including Constituency Development Fund (CDF), and employment besides the lack of consultation and effective participation in ‘development’ initiatives that affect their livelihoods.

40Asia Indigenous People Pact (AIPP), Training Manual For Indigenous People On Free, Prior And Informed Consent (FPIC), 2014

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Most of the human rights violations experienced by pastoralists and hunter-gathers in Kenya are related to their access to and control over land and natural resources. Indigenous People and Local Communities’ reliance on natural resources and poverty makes them more vulnerable to the effects of environmental threats such as droughts and floods, deforestation, soil erosion and pollution.

Historically, most hunter-gatherer communities have been evicted out of the forests during gazettement (the Ogiek of Mau forest and the Endorois in Mochongoi forest are cases in point). In addition,establishment of Settlement schemes, logging and charcoal production have put a severe strain on Kenya’s rich and varied forests, and have resulted in the loss of traditional habitat of Kenya’s forest people - including the Awer (Boni), Ogiek, Sengwer, Watta and Yaaku. The Sengwer of the Cherangany hills and Kapolet forest; the Watta in the precincts of the Tsavo National Park face similar threats to their livelihoods and the El Molo on the eastern shore of Lake Turkana are also threatened by a continuous influx of settlers.41

These hunter-gatherer?? communities constitute the most marginalized communities in Kenya, and require urgent government attention to guarantee their basic human rights. In order to rectify this condition and provide social justice, the collective rights of Indigenous People and Local Communities have to be respected and recognized. The REDD+ mechanism has the potential to either exacerbate this tensions and marginalization over IPs’ access and control over land; or provide a window of opportunity for dialogue around respect and protection of their rights.

Application of FPIC provides the necessary steps to ensure the right of Indigenous People and Local Communities to have their collective decision are respected, especially in relation to the use of their land, territories and resources. All activities, projects, programmes and policies that may have serious implications to their land, territories, cultural heritage, identity, survival and collective wellbeing require consent prior to the implementation. Therefore, FPIC underscores the respect for Indigenous People and Local Communities right to decide on the use, utilization, management, conservation and development of their land, territories and resources based on their collective ownership and perspectives, interest and welfare.

b) Cultural and Spiritual Identity

Indigenous people have their own distinct cultures, identities and resource management systems based on their historical and intricate relations with their land, territories and resources. They have protected, managed and nurtured their land and resources for centuries. As distinct people, they are entitled to their land, territories and resources to ensure their distinct and collective identities, dignity, survival, and development. This right, along with other related collective rights, are enshrined in the UN Declaration on the Rights of Indigenous People (UNDRIP).

Forests have multi-functional values and roles for Indigenous People and Local Communities. IPLCs have developed sustainable forest resource management systems to support their livelihoods and food security. Based on this, a significant portion of the world’s remaining forests is found in indigenous people’ territories. Forests are their main sources of food, habitat, livelihoods, medicines, and other

41StavenhagenRoldofo. Report of the Special Rapporteur on the “Situation of human rights and fundamental freedoms of Indigenous people, – Mission to Kenya” (A/HRC/4/32/Add.3)., presented to the UN-HRC, 26th February 2007

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ecosystem services. In addition, it has socio-cultural and spiritual functions for them. Do we have indigenous peoples’ territories in Kenya?

c) Indigenous People and local communities contribution to nature conservation

Indigenous knowledge (also referred to as traditional knowledge) held by resource dependent communities is now recognized as essential to biodiversity conservation. Around the world, local communities, are now celebrated by international conservation agencies as important allies to nature and fostering a sacred source of ecological knowledge.

The latest IPCC assessment report acknowledges (AR5) that IPs’ traditional knowledge systems and holistic view of community and environment are major resources for adapting to climate change, but are little used. Likewise, the World Conference on Indigenous People Outcome Document42 recognizes Indigenous People’ special relationship to the environment and their contribution to ecosystem management and sustainable development. At the national level, the constitution calls for the recognition, protection and promotion of indigenous knowledge and innovations.

d) FPIC as a safeguard measure

FPIC serves as a safeguard in ensuring potential negative social and environmental impacts of any project from the perspectives of Indigenous People and Local Communities are considered and addressed. The FPIC process also allows Indigenous People and Local Communities to voice out their concerns on potential adverse impacts of projects, which should be taken into account. In this process, they can demand for clear information disclosure from the project proponents that shall include results of feasibility studies as well as comparative studies relating to the project. The information disclosure to affected indigenous communities will provide the guidance for IPLCs in undertaking their collective decision. It is therefore critical that the conduct of FPIC allows IPLCs to be well-informed in all aspects of any project that may affect them, as well as to have the time to deliberate on the implications of the project on their collective wellbeing and their collective interest and welfare. The respect and compliance to the collective decision of IPLCs in the FPIC process therefore also upholds and protects the IPLCs’ interest and well-being.

e) Indigenous People Decision-making Processes

In indigenous societies, traditional decision-making systems are often in the form of consensus. In this process, community members actively participate in both formal and informal ways of collective decision-making. Issues and concerns of members are handled in various ways including continuous deliberations to reach consensus. This collective decision-making process is essential to the exercise of the right to self-determination and self-governance.

42 The Outcome Document of the World Conference on Indigenous People (WCIP),Accessible from: http://wcip2014.org/wp-content/uploads/2014/09/N1453491-WCIP-FINAL-DOCUMENT-EN.pdf

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Indigenous people have their own traditional systems of governance in managing their own land, territories and resources. This includes their socio-political systems, customary laws and practices, resource management systems, and traditional knowledge and cultural practices, which make them distinct from the dominant and mainstream society.

This collective decision is an essential component in exercising the right of IPLCs to their land, territories and resources, and their right to self-determination and cultural integrity. Conducting FPIC allows IPLCs to exercise their control over and management of their territories and the respect to their cultural integrity and self-determination, especially on their own development as distinct people. Thus, any external entity such as forest carbon and REDD+ project proponents need to obtain the explicit agreement and authorization of indigenous communities as right-holders before implementing any project or activities that have impacts on concerned IPLCs.

f) Respect for rights of Indigenous People and Local Communities

Increasingly, the global community under the UN system and other multilateral agencies have recognized and provided policy and legislative frameworks within which Indigenous people rights, knowledge and customary governance practices are recognized, respected, promoted, and protected. They include the ILO Convention on Indigenous and Tribal People Convention, 1989 (No. 169) the United Nations Declarations on the Rights of Indigenous People (UNDRIP) of 2007, the Expert Mechanism on Rights of Indigenous People’(EMRIP) and the office of the Special Rapporteur on IPs’ rights, under the UN human rights systems.

Other environmental related UN conventions such as the Convention on Biological Diversity (CBD), the UNFCCC platform, especially the Copenhagen, Cancun, and Warsaw decisions have incorporated decisions on IPs’ rights to participation, respect for indigenous knowledge and livelihoods; and recognition of their land tenure rights. Furthermore, a number of multilateral international agencies including the World Bank and the UN-REDD+ collaborative initiative have established specific policy guidelines with respect to protection of IPs’ rights.

5.0 KEY ISSUES TO LOOK OUT FOR RELATING TO FPIC PROCESS IN A FOREST CARBON AND REDD+ PROJECTS

a. Rights to Land and Natural Resources

Forest carbon and REDD+ projects have created additional interests and competition for forest land and consequently increased the danger of displacement of the indigenous people, forest dwellers and forest dependent communities and increase incidences of conflicts and violations of land and forest resource rights. Despite IPLCs’ right to participate in decision-making and requirement of FPIC, project proponents have often taken decisions on forest and land-use zoning without their informed participation .

It is expected that there will be increased zoning of forests by government and conservation NGOs and companies under REDD+, which will increase demarcation of protected areas, forest reserves or sustainable forest management zones to receive REDD+ payments. The majority of these forest zoning and land classification programs throughout the world often ignore the customary rights of IPLCs to their land and territories.

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Experience elsewhere indicates where local and indigenous communities are not properly consulted on land tenure actions and planning processes, national REDD+ planning and local REDD+ pilot schemes, end up giving limited attention to land rights and land tenure issues and conflicts. Concerns are rife that due to incentives and compensation mechanism of conservation and management of forest efforts in REDD+, there might be an increase in land grabbing and forest encroachment by migrant settlers, outsiders and private companies. This will, in turn, increase the chances of eviction of indigenous communities from their traditional land and carbon protected forest areas. The prospect of monetary benefits may also create more conflicts on land and forest boundaries between communities, among local landholders and forest owners.

If the land rights, particularly of the forest customary land of indigenous people, are not recognized and safeguarded, the loss of traditional land or territories - after identifying REDD+ pilot and implementation areas - may lead to displacement and relocation of IPLCs.

The UNDRIP, recognizes the importance of land, territory and resources for indigenous people, and several articles refer to the rights of indigenous people over these.43 Specifically, UNDRIP Article 10: states “Indigenous people shall not be forcibly removed from their land or territories. No relocation shall take place without the FPIC of IPs concerned”. And, article 32(2) – “States shall consult and cooperate in good faith with the indigenous people concerned through their own representative institutions in order to obtain their free and informed consent prior (FPIC) to the approval of any project affecting their land or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

b. Livelihoods, Traditional Knowledge and Forest Customary Practices:

Many indigenous people’ livelihoods, and customary practices are highly dependent on forest and forest resources. These include the practice of subsistence hunter-gathering and grazing, including access to water and firewood, indigenous medicine among other benefits. Therefore, potential regulation and restrictions of access of these livelihoods practices and forest products under REDD+ will undermine these practices, as well as the application, enhancement and transfer of traditional knowledge. dry season grazing in forest land is often considered a major source of forest cover loss by governments and environmental conservationists – a perception that may further strengthen the likelihood of prohibition of such practices under REDD+ related interventions.

REDD+ programmes may consider collection of wood for fuel, cutting down trees for house construction and other purposes, and gathering non-timber forest products (NTFPs) or medicines as forest degradation activities. This means there may be more restrictions to free access to resources and biodiversity (for food and medicines) of Indigenous People and Local Communities in forest; as a consequence, they may have to pay for previously freely accessible environmental services like water, forest and bio-resources after becoming a part of REDD+ Programme.

Focusing only on environmental protection and conservation of forests without understanding and recognizing the contributions of Indigenous People and Local Communities through their traditional forest use and management practices (including traditional knowledge) could further marginalize and undermine the traditional livelihoods of Indigenous People and Local Communities. On the other hand, REDD+ can also contribute to recognizing the value of traditional knowledge systems for forest 43 UNDRIP arts. 8, 10, 25 and 26

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management and strengthen the capacity of Indigenous People and Local Communities for long-term conservation and sustainable forest management.

c. Risks, Costs and Benefit Distribution

Overall, REDD+ investments seek to provide compensation to governments, communities, companies or individuals in developing tropical countries for actions taken to reduce Green House Gases (GHG) from the forest sector. Based on the REDD+ architecture, Indigenous People and Local Communities are entitled to receive benefits from REDD+ as payment for their contributions to the reduction of carbon emission and enhancing the carbon stocks in their forests.

It is worthwhile to note that The Land Act (2012) calls upon the National Land Commission (NLC) to provide incentives for communities and individuals to invest in income generating natural resource management programmes, and establishment of measures to facilitate the access, use and co-management of forests, water and other resources by communities who have customary rights to these resources.44 Kenya has also signed and ratified the Nagoya Protocol and established national regulations for Access to Benefit sharing (ABS) under Environmental Management and Co-ordination (Conservation of Biological Diversity and Resources, Access to Genetic Resources and Benefit Sharing) Regulations, 2006.

The Senate Bill45 on Benefit Sharing recognizes that natural resources are spread across all the 47 counties of the country and thereby endeavors to establish a clear legislative framework for ‘Securing Natural Resources to Benefit Kenyan Counties and Communities’.

The Bill attributes the present situation of abject poverty within Kenyan rural communities, (especially indigenous people) to the failure to benefit from the exploitation of natural resources by local communities, partly arising from the absence of a statutory approach to natural resource benefit sharing regime.

In the design, approaches and mechanisms for benefit sharing, efforts should be made by project proponents to provide for effective participation of IPLCs in order to pre-empt potentially unfair compensation payment to such communities.

In the context of REDD+, payments must not only be adequate but also reflect the realities of cost to different stakeholders and right-holders and reach them without vanishing in corrupt practices. There is therefore need to ensure that compensation reaches targeted beneficiaries adequately and in time. The investments should incorporate the interest of those who historically, and in the present have participated in sustainable forest management in addition to those who have forgone use of forest resources .

Additionally, clear risks, costs and benefit sharing arrangements, developed through institutionalized FPIC guidelines, will help reduce/address concerns over the chances of the elites within indigenous communities capturing or having control over the benefits. It’s paramount that perspectives, interests

44 The Land Act (2012); article 19, 45 The Natural Resources (Benefit Sharing) Bill, 2014

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and concerns of minority groups, women, the elderly, persons with disability and youth are accounted for.

d. Accountability and transparency

Clear and concrete accountability and transparency measures should be established to curb the likely negative impacts of corruption in order to ensure benefits from REDD+ reach all the concerned IPLCs contributing to REDD+ initiatives. Such efforts will help allay IPLCs’ fears that equitable benefit sharing under REDD+ will only remain promises and/or only token amounts will be given to them. It will also minimize potential conflicts between IPLCs and within communities, regarding compensation payments and benefits under REDD+.

Critical in the process of determining and clarifying potential costs and benefits in REDD+ is the need to establish a deeper understanding of the concept of ‘carbon property rights’ and its relations to land tenure arrangements.

e. Full and Effective Participation of Indigenous People and Local Communities.

The full and effective participation of IPLCs in REDD+ include their representation in relevant bodies, mechanisms and process at all levels.

Establishment of clear structures of governance and decision-making for REDD+ programs, are critical ingredients for fostering full and effective participation of IPLCs in REDD+ interventions. This implies clear bodies and mechanisms for the implementation, monitoring and reporting of REDD+ shall be set up to include accountability measures at all levels. It also requires anti-corruption measures and policies for transparency for independent monitoring and verification.

f. Capacity Building

Despite clear evidence from field data that IPLCs livelihoods systems are primarily dependent on nature based resources, and as such, are highly susceptible to climate change related shocks, there is an apparent lack of capacity for IPLCs to engage in the Climate Change and forest carbon and REDD+ related process. The low level of awareness on the forest carbon and REDD+ mechanism, specifically relates to concepts, terminologies and practices, such as carbon measurements and pricing, legal contracting and use of appropriate technologies. This therefore weakens communities’ ability to meaningfully engage, especially to ensure that the communities benefit, or at least minimize negative impacts of forest carbon and REDD+ activities.

At the minimum, indigenous people and local communities’ representatives and members of local communities need to fully understand and grasp the basic concept of REDD+ and related processes and its implications on their rights and livelihoods; and be able to articulate their concerns and their perspectives in forest management.

Enhanced capacities of IPLCs at the local level is critical in ensuring their effective engagement in forest carbon and REDD+ interventions. Experiences have demonstrated that communities that have weak capacities are vulnerable to misinformation, manipulation, bribery and dispossession, among other negative influences. They also become easy targets for divide and rule, undermining their unity and

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cohesion to collectively take action and effectively address their concerns through the FPIC framework. This therefore necessitates the need to support communities to develop capacities to effectively engage in REDD+ related processes.

There is also a need for relevant state agencies (national and county) and project proponents to develop an adequate knowledge base regarding Indigenous People and local communities; their demographic composition and location; the scope of their land and resource rights, their economic and social situations; their representative institutions and governance systems and; their aspirations for development.

6.0 GOVERNANCE AND INSTITUTIONAL ARRANGEMENT:

The FPIC process should be solidly embedded in the governance framework of the country, which respects Indigenous People and Local Communities ’ procedural and substantive rights, and that facilitates robusts/meaningful dialogue and consultation. The framework should delineate the duty to consult with Indigenous People and Local Communities, and ensure a high degree of policy and legislative coherence.

While indigenous communities’ issues are diverse and cross-cutting, the need for a coordinated and collaborative approach in their engagement by the various ministries, commissions and agencies of the state, including county governments is paramount.

A number of agencies are presently involved in the coordination of Indigenous Communities’ related concerns in the natural resources sector. The National Forest Programme (NFP), has one of its objectives as promotion of the interest and rights of minority and marginalized communities. The National REDD+ Coordination Office (NRCO), is spearheading the process of development of national guidelines for stakeholder engagement and Free Prior and Informed Consent (FPIC) for Indigenous People and Local Communities.

Additionally, the National Museums of Kenya (NMK), seats as the Country’s representative to the United Nations Permanent Forum on Indigenous Issues (UNPFII). The NMK advocates for the rights of indigenous people in Kenya within the UN human rights framework. Furthermore, the National Gender Equality Commission runs a department on Minorities and Marginalized communities with one of its objective being to undertake public education and information to sensitize public on principles of equality and freedom from discrimination, monitor and advise on the development and implementation of affirmative action policies and programmes on issues related to minority and marginalized communities in the country.

At the community level, the REDD+ process is structured such that indigenous people and local communities would engage in forest carbon project and REDD+ through their Community Forests Associations (CFAs).

For Local communities organized around CFAs, CFAs could provide the entry point for project proponents. For the CFAs to be effective and legitimate governance structures for enabling FPIC, existing challenges related to i) recognition of forest dependent communities living within forests; ii)

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perceived dis-empowerment through registration of CFAs and approval of Participatory Forest Management Plans (PFMPs) by KFS, distribution of forest management responsibilities, user or access rights and benefit sharing arrangements must be addressed.46

There is also growing recognition that traditional forest-related knowledge, practices, and associated local institutions provide the foundation for participatory approaches to development that are both cost-effective and sustainable. Traditional forest management systems are typically supported by customary institutions based on principles of equity, reciprocity, and equilibrium in the management of the resource and the sharing of benefits. Traditional governance systems of IPs which are structured along Clan (kinship relations) and Age-Set (rites of passage) regimes are still relatively vibrant and dynamic, as attested by their resiliency amidst enormous external pressures. The traditional governance and management institutions have slowly been changing to accommodate the changes brought about by the state system, modern education and foreign religions. Examples of customary institutions of governance include the, the Kaya Elders, Endorois Welfare Council, the Ogiek Supreme Council (OSC) and the Ogiek Governing Council (OGC). One glaring weakness of traditional institutions of decision-making is that women are not part of the Council of Elders at any level, and rarely participate in their meetings. Any Forest carbon and REDD+ decision-making arrangement (including FPIC) at community level must make deliberate efforts to ensure participation of women.

While in some instances, state and traditional governance institutions involved in the management of natural resources exist as parallel structures, in others, the stakeholders have creatively engaged to establish hybrid institutions, which endeavor to incorporate aspects of their traditional systems with the contemporary systems e.g. Loita Council of Elders (LCE).

It’s imperative that traditional institutions governing access and use of resources, be mobilized and linked to sub-county, county and national structures and institutions of decision-making with the goal of securing both local interests and sustainably manage natural resources, including forests. The integration of IPs Traditional Governance Systems in the management of Climate Change interventions, including forest carbon and REDD+ interventions, is critical for sustainability of both biodiversity and local livelihoods. It is important that clear structures for engagement and consultation in REDD+ programs be established and supported where traditional structures are nonexistent and/or weak. At the national level, most indigenous communities are increasingly being represented by umbrella organizations.

It proposed that an Oversight and Compliance Committee should be established promote the application and compliance of REDD+ safeguards, including these specific guidelines. It should have corresponding chapters at the County level. The Committee should have its Secretariat with the National REDD+ Coordination office, Ministry of Environment and Natural Resources.

46A Corruption Risk Assessment for REDD+ in Kenya” by UNREDD program and Ministry of Environment, Water, and Natural Resources, Republic of Kenya

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Further Reading on Free Prior Informed Consent:

I. Anderson, P. 2011. Free, Prior and Informed Consent: Principles and Approaches for Policy and Project Development. RECOFTC – The Center for People and Forests and Deutsche Gesellschaft fur Internationale Zusammenarbeit (GIZ) GmbH Sector Network Natural Resources and Rural Development – Asia.

II. Case study: operationalizing free, prior and informed consent within REDD+ projects in Kenya: https://communitylegalresources.files.wordpress.com/2014/12/ci_fpic-case-study_kenya.pdf

III. Doyle, Cathal, 2008, Free Prior Informed Consent (FPIC) – a universal norm and framework for consultation and benefit sharing in relation to indigenous people and the extractive sector, Paper prepared for OHCHR Workshop on Extractive Industries, Indigenous People and Human Rights, Moscow. https://www.google.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=Doyle%2C+Cathal%2C+2008%2C+Free+Prior+Informed+Consent+(FPIC)+%E2%80%93+a+universal+norm+and+framework+for+consultation+and+benefit+sharing

IV. FCPF and UN-REDD Programme, April 2012. Guidelines on Stakeholder Engagement in REDD+ Readiness: With a Focus on the Participation of Indigenous People and Other Forest-Dependent Communities. http://www.un-redd.org/Stakeholder_Engagement/Guidelines_On_Stakeholder_Engagement/tabid/55619/Default.aspx

V. FSC guidelines for the implementation of the right to free, prior and informed consent (FPIC), 30 October 2012; https://www.google.com/search?q=fpic+step-wise+process&ie=utf-8&oe=utf-8

VI. Hill, C., S. Lillywhite and M. Simon. 2010. Guide to Free, Prior and Informed Consent. Oxfam Australia http://www.ilo.org

VII. https://www.google.com/search?q=Anderson%2C+P.+2011.+Free%2C+Prior+and+Informed+Consent%3A+Principles+and+Approaches+for+Policy+and+Project+Development&oq=Anderson%2C+P.+2011.+Free%2C+Prior+and+Informed+Consent%3A+Principles+and+Approaches+for+Policy+and+Project+Development&aqs=chrome..69i57.741j0j4&sourceid=chrome&ie=UTF-8

VIII. https://www.google.com/search?q=UN-REDD.+2010.+Applying+Free%2C+Prior+and+Informed+Consent+in+Vietnam%2C+April%2C+2010&oq=UN-REDD.+2010.+Applying+Free%2C+Prior+and+Informed+Consent+in+Vietnam%2C+April%2C+2010&aqs=chrome..69i57.1770j0j9&sourceid=chrome&ie=UTF-8

IX. https://www.google.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=UN-REDD.+2009.+Operational+Guidance%3A+Engagement+of+Indigenous+People+and+other+Forest+Dependent+Communities.

X. IAITPTF and IPF. 2011. Handbook on Free, Prior and Informed Consent for Practical Use by Indigenous People’ Communities. The International Alliance of Indigenous and Tribal People of the Tropical Forests (IAITPTF), South East Asia region and the Indigenous People’ Foundation for Education and Environment (IPF). https://issuu.com/iwgia/docs/0593_fpic-manual-eb/77

XI. Making Free Prior & Informed Consent a Reality. Indigenous People and the Extractive Sector. Middlesex University School of Law. The Ecumenical Council for Corporate Responsibility. Cathal Doyle and Jill Cariño, May 2013. http://www.forestpeople.org/sites/fpp/files/publication/2012/10/fpic-manual-web21.pd

XII. REDD+ SES. 2010. REDD+ Social and Environmental Standards. Version 1, June 2010 http://www.redd-standards.org.

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XIII. Respecting free, prior and informed consent Practical guidance for governments, companies, NGOs, indigenous people and local communities in relation to land acquisition: http://www.fao.org/3/a-i3496e.pdf

XIV. Rovillos, R. and E. Baldo-Soriano. 2010. Climate Change, REDD+ and Indigenous People: Training Course for Indigenous People. Tebtebba Foundation, Baguio, Philippines.

XV. UN-REDD Programme, March 2012. UN-REDD Programme Social and Environmental Principles and Criteria. http://www.un-redd.org/multiple_benefits_sepc/tabid/54130/

XVI. UN-REDD. 2009. Operational Guidance: Engagement of Indigenous People and other Forest Dependent Communities, UN-Programme – Working document.

XVII. UN-REDD. 2010. Applying Free, Prior and Informed Consent in Vietnam, April, 2010. United Nations Collaborative Programme on Reducing Emissions from Deforestation and forest Degradation in Developing Countries.