UK approach to legislation on deforestation poses risks to forest peoples’ rights and the forests they call home

https://www.forestpeoples.org/en/press-release/2020/forest-peoples-rights-threatened-proposed-uk-approach-legislation-deforestation UK legislative plans for tackling commodity-driven deforestation are welcome, but the government’s current approach to supply chain regulation is seriously flawed as it: - Would not require UK companies to address human rights impacts and risks - Would only require UK businesses to ensure compliance with legal rules in producer countries, where national laws often fail to adequately protect forest peoples’ rights and the forests they call home Effective due diligence regulations must include international sustainability and human rights laws as the benchmark for legal compliance, and establish a duty of corporate conduct that requires businesses to undertake combined environmental and human rights due diligence on forest risk commodities. This includes close attention to protecting community tenure rights and respecting the core standard of free, prior and informed consent (FPIC). A failure to require human rights due diligence to address rights impacts and risks of abuse associated with deforestation would significantly undermine the usefulness of the UK’s regulatory initiative and be contrary to its obligations and commitments to uphold human rights. -------------------------------------------------------------------------------------------------------------------------- "Leaving British businesses to only comply with 'local laws' in producer countries will end with these businesses causing massive deforestation, polluting the environment and abusing the rights of many local people and surely allow companies to walk away with impunity." - Mina Beyan, Program Director of Social Entrepreneurs for Sustainable Development (SESDev) in Liberia. Earlier this year the British government announced that tackling deforestation and curbing climate emissions linked to global commodity production and trade is one of its strategic priorities, and that the UK will push the matter to be top of the agenda of the UN climate summit to be hosted in Scotland in 2021. The well documented association between deforestation and human rights violations [1] coupled with the current global pandemic, increased attacks on human rights and environmental defenders, the rise in food insecurity, increasing numbers of land grabbers acting with impunity and the raging forest fires in the Amazon- are core reasons why human rights must be at the heart of the UK’s environmental and climate initiatives. Crucially, evidence shows that securing forest peoples’ tenure rights is vital precondition for effective measures to slow deforestation and curb land use GHG emissions. [2] In August, the Department of Environment, Food and Rural Affairs (DEFRA) launched a public consultation on its plans to put a new law on the statute books that requires UK businesses to eliminate “illegal” commodities associated with deforestation from their supply chains. This legislation would require companies to report publicly on the actions taken, through their environmental due diligence, to abide by the new law and impose fines on those failing to comply. Effective mandatory regulation of the UK commodity trade to reduce the UK’s environmental and social footprint abroad is much needed and long overdue, but without a due diligence approach that demands respect for human rights and remedies for violations caused by UK businesses overseas, the proposal in its current form raises serious concerns on a number of fronts. First, DEFRA has made clear that human rights are ‘beyond scope’ regardless of the final form of the legislation and does not propose to include proper deterrent sanctions and liability provisions that would enable potential remedy for indigenous peoples and local communities. This approach fails indigenous peoples and local communities on multiple fronts because fundamental human rights outlined in the International Bill of Human Rights and the UK’s other international human rights and environmental law obligations will not be the standard to which companies are held to. The legislative proposals have not taken consideration of successive calls from indigenous peoples and local communities who have urged States to tackle the root cause of both the threats and violence towards them and the destruction of their forests, often caused by a failure to recognise their land rights, and who have called for legally binding human rights and environmental due diligence (HREDD) to support reform of corporate supply chains. [3] It disregards a large body of evidence built up over decades that shows that insecure customary land tenure is a key underlying driver of deforestation. It also fails to respond adequately to the government’s own independent expert task force on sustainable commodity supply chains. Important information on the details of the legislative proposal are also not yet available: the size of potential fines, which companies will fall under scope of the law and even which commodities will need to be disclosed in supply chain transparency measures have not be outlined. It is also of concern that UK investors, financiers and public procurement appear to be missing from the current proposals. The bare minimum is not enough Defra’s initial proposal and the scope of the consultation adopts a flawed ‘local’ legality approach, a low bar that would require British businesses only to comply with a small number of forest and land laws in producer countries, which typically fail to adequately uphold forest peoples’ rights and lack effective protections for community forests. The emphasis on national-level law needs to be replaced with all applicable law expressly including international human rights and environmental law. Recent legal roll-backs in forest-rich countries such as Brazil and Indonesia exemplify why international standards must be part of the basis for defining sustainability norms and regulations. If progress is to be made in protecting forests and forest peoples’ rights, and if the UK is to be a world leader in sustainable trade, then it is essential that international standards are included in the benchmark for sustainability in any UK law on supply chain regulation. Reliance only on producer country national laws and local (national) commodity certification schemes must be abandoned in this UK legislative proposal otherwise it will run a serious risk of failing to meet its objectives. Worse still, such an approach risks demanding compliance with only a subset of applicable laws that are often outdated, discriminatory and unsustainable which would leave forests and forest peoples vulnerable to harm. Restrictions on the regulatory scope of the law means that it would only apply to UK companies and traders that import and place goods on the UK market, without due attention to British business investments and commodity supply to other countries and external markets. The current DEFRA proposal does not address these critical matters and leaves a large loophole for unsustainable UK business in other countries and markets. This is because supply chains in which UK companies and financiers are involved extend well beyond the UK, and involve supply to markets across the world. To prevent harmful leakage of unsustainable commodities outside the UK, it is critical that any legislation on forest risk commodities obligates a company to conduct due diligence applies also to UK businesses supplying and supporting commodity production for both UK markets and markets worldwide. This broader scope for the regulation of British businesses offers genuine potential for reducing the UKs environmental footprint overseas and building momentum for global supply chain reform. “This [current plan] is equal to no plan at all as most countries in Africa, who are frontiers for forest risk commodities, have weak regulatory frameworks to tackle deforestation, human rights and other environmental violations. Besides, most countries in Africa do not have laws that protect the security of community tenure rights, The few that have some level of safeguards for tenure rights are facing massive challenges with implementation and compliance. For instance, Liberia has a progressive land rights law enacted in 2018 but struggling as at now to implement this law to fully secure the tenure rights of local communities yet there are businesses operating with new ones coming in." "I urge the UK government to adopt the GRI recommendations and come out with a robust legislation that covers human rights and environmental due diligence for British businesses.” Mina Beyan, Program Director of Social Entrepreneurs for Sustainable Development (SESDev), Liberia] The UK Government must respond fully to the GRI recommendations and upgrade its approach to address human rights The legislative proposal from Defra comes in response to recommendations made by multi-stakeholder expert taskforce, known as the Global Resources Initiative (GRI), which was set up in 2019 to advise the UK government on actions needed to address commodity-driven deforestation. The GRI, composed of high level experts drawn from big business, civil society and the scientific community, delivered its final report that advised the UK Government on actions it must take on supply chain reform in March. In addition to proposing that the UK lead a “global call for action on deforestation and sustainable supply chains”, it recommended that the UK “urgently introduce” a mandatory obligation on companies dealing in forest-risk commodities, which should require them “…to analyse the presence of environmental and human rights risks and impacts within their supply chains, take action to prevent or mitigate those risks, and publicly report on actions taken and planned (emphasis added).”[1] Defra’s proposal falls far short of this proposal to combine human rights and environmental due diligence needed to tackle embodied deforestation and associated human rights abuse, reform UK business and supply chains and strengthen accountability of British companies to forest-dependent communities and citizens in the UK and overseas. “…The UK must put sustainability and advancement of human rights as its top priority in its planned regulations for supply chains. Leaving companies solely to comply with national laws and regulations will sustain further human rights violations and ecological damages. It is now up to the government of UK to make sure its policies are consistent with international standards and principles.” - Edisutrisno, Executive Director of TuK INDONESIA In order to be effective, the UK government needs to ensure that human rights are integrated into its current proposals for a deforestation-risk commodity law, and that the legal instrument will address the gaps identified above; including through the inclusion of specific provisions to safeguard the customary tenure rights of forest-dependent communities in producer countries. ----------------------------------------------------------------------------------------- [1] See, especially, FPP (2018) Closing the Gap: rights based solutions for tackling deforestation at pages 14-15 [2] See, for example, Blackman, A et al (2017) “Titling indigenous communities protects forests in the Peruvian Amazon” PNAS 114(16)(2017):4123–412; Davis A and Kandel S (2016) Conservation and Community Rights: Lessons from Mesoamerica RF-US, Clark University and PRISMA; Ding H, Veit P, Gray E, Reytar K, Altamirano J C, Blackman A and Hodgdon B (2016) Climate Benefits, Tenure Costs: The Economic Case For Securing Indigenous Land Rights in the Amazon WRI, Washington DC; Vergara-Asenjo G and Potvin C (2014) “Forest protection and tenure status: The key role of indigenous peoples and protected areas in Panama” Global Environmental Change 28 (September 2014): 205-215; Persha L, Agrawal A and Chhatre A (2011) “Social and ecological synergy: local rulemaking, forest livelihoods, and biodiversity conservation” Science 331(6024)(2011):1606-8. doi: 10.1126/science.1199343; Ricketts T H et al (2010) “Indigenous Lands, Protected Areas, and Slowing Climate Change” PloS Biology, March 2010; Sobrevilla, C (2008) The Role of Indigenous Peoples in Biodiversity Conservation: The Natural but Often Forgotten Partners World Bank, Washington DC; Hayes, T M and Murtinho, F (2008) “Are indigenous forest reserves sustainable? An analysis of present and future land-use trends in Bosawas, Nicaragua” International Journal of Sustainable Development & World Ecology, 15(6)(2008): 497-511; Nepstad, D., Schwartzman, S, Bamberger, B., Santilli M, Ray, D., Schlesinger, P., Lefebvre, P., Alencar, A., Prinz, E., Fiske, G., and Rolla, A (2006) “Inhibition of Amazon Deforestation and Fire by Parks and Indigenous Lands” Conservation Biology 20(1)(2006): 65–73 [3] See, for example, the Palangka Raya Declaration (2014)