Forest Peoples Programme

Transcription

1 Forest Peoples Programme 1c Fosseway Business Centre, Stratford Road, Moreton-in-Marsh GL56 9NQ, UK tel: +44 (0) fax: +44 (0) RSPO Complaints Panel Care of: Wathshlah Naidu Complaints Coordinator RSPO, Kuala Lumpur Malaysia 30 th July 2017 Dear RSPO Complaints Panel, FPP UPDATE ON COMPLAINT TO RSPO ABOUT GAR This is our first detailed letter of 2017 sent to RSPO Complaints Panel of FPP s views on the remediation process being undertaken by GAR in response to the complaint filed by FPP in October 2014 and which the RSPO Complaints Panel has upheld in its determinations of May and August Since our last letter in October 2016 reporting the very limited progress being made by GAR, FPP has held four meetings with GAR in Bangkok, Jakarta and in Kapuas Hulu. We have met twice with smallholder Cooperative officials, in Bangkok and in their office in Mantan. FPP staff have carried out four further investigative missions within and around PT KPC. Partner NGOs, WALHI-KalBar and LinkAR-Borneo, have made numerous visits to the communities since October In January 2017, we also forwarded you further details of unresolved land disputes in Suhaid. We are dismayed by the lack of action by the Complaints Panel (CP) and Secretariat in dealing with the complaint. 1. There has been no response from the CP to our letter of October 2016 (see attachment). 2. No relevant new documents have been uploaded on the case tracker site since November Our field investigations show that minimal progress has been made by GAR to resolve the situation on the ground in line with the CP s stipulations made over 2 years ago. HCV assessments are still incomplete No additional smallholdings have been provided Land disputes remain unresolved Legal status of the land remains unclear Remediation process is stalled in PT KPC Company is planning to develop land outside its permit area Minimal progress has been made in other concessions Questions remain about the legality of concessions. The bases for these conclusions are detailed below. We request the Complaints Panel to carefully review our findings and instruct GAR on the urgent actions it needs to undertake to provide remedy to the affected communities and the other actions needed to bring itself into full compliance with RSPO P&C. We also ask the Complaints Panel to expedite the other actions agreed to resolve this complaint. The Forest Peoples Programme is a company limited by guarantee (England & Wales) Reg. No , registered address as above. UK-registered Charity No It is also registered as a non-profit Stichting in the Netherlands. Granted United Nations Economic and Social Council (ECOSOC) Special Consultative Status July 2010

2 Below we elaborate on some of the key findings from our recent reviews. In providing this information, we remind the CP that further details on these same issues were provided in our October 2016 letter and this should also be referred to in addressing this renewed complaint. There are 18 concessions subject to the complaint of which one, PT KPC in Kapuas Hulu, was the pilot for GAR s trial of the High Carbon Stocks Approach, where FPP investigated in great detail and found major problems, leading to the complaint. In upholding FPP s complaint, the Complaints Panel s main requirements are that GAR must: 1. Halt all land acquisition and land clearance and then, once 2-5 are completed, resubmit valid NPP notifications prior to any further land clearance. 2. Provide remedy for lands taken without free, prior and informed consent in line with P&C 3. Provide 1000 ha for smallholders in PT KPC (ie 20% of lands released) 4. Redo HCV assessments 5. Review legality and bring itself into legal compliance We review any progress made in these five requirements since October Halt all land acquisition and land clearance: GAR withdrew its 18 NPPs in November GAR claims to have stopped land clearance since that date in all 18 concessions, the only exception being additional smallholdings provided in the nearby GAR subsidiary, PT PIP, which the Complaints Panel in its August 2015 ruling deemed permissible and for which a New Planting Procedure was posted. 1 In early July 2017, PT KPC commenced clearing ha. of land for additional smallholdings in the community of Menapar. No New Plantings Procedure has been followed for this and, as noted below, the redone HCV assessment is yet to be completed. We ask the CP to make a determination about this apparent violation. 2. Provide remedy for lands taken without consent In the original complaint FPP had demonstrated that GAR had taken lands contrary to the procedures for land acquisition set out in the P&C, referred to by the shorthand Free, Prior and Informed Consent. The Complaints Panel agreed stating that: GAR must also take remedial steps to correct any shortcomings in its land acquisition process with the affected communities. furthermore the CP noted that: GAR has maintained that FPIC was implemented as per RSPO rules. The Panel however, feels there is a need for GAR to demonstrate that it has complied with the full rigours of the RSPO Principles and Criteria as required by Principle 2.2 and 2.3. as described in the Indicators. In doing so, GAR must ensure that Principle 7.5 and 7.6 have also been complied with. After two years of prevarications, it is worrying to note that even in its letter to the CP in November 2016, GAR states that it: 1 2

3 accepts the Complaints Panel s decision that there were procedural shortcoming and maintains that it followed prevailing industry practice in land transactions at that time but this does not mean that it took land without consent. Consistent with this denial, GAR has done very little in PT KPC to provide remedy to community members from whom it had acquired lands without conforming to RSPO requirements on FPIC. It has satisfied some formal steps of an FPIC process, which had not been done, such as participatory mapping, providing copies of land release agreements, and holding workshops to explain what FPIC means. However, it has refused to reopen land deals with the communities or community members, even though our research shows that it had paid for land at an average of only US$25-30 per hectare, while in its own accounts GAR values such undeveloped lands at US$1,000 per hectare. Community members in public meetings continue to insist that they were never paid to surrender their lands but were only paid for land clearance so that the company could use the land, a payment that the GAR personnel referred to as simpak beliung ( axe chippings ). Moreover, when new cases of land acquisition without any payment at all have come to light (and been reported to the CP by FPP and by LinkAR-Borneo), GAR has stated that it treats these cases as grievances. After two years of engagement with GAR, FPP has reluctantly concluded that GAR has no intention of really making remedy for lands taken without due process in PT KPC (lands taken without free, prior and informed consent). The implication of this should be clear to the CP. As GAR itself notes, its land acquisition was done according to its SOPs of the time which followed prevailing industry practice (ie not the procedure required by RSPO P&C). GAR s SOPs have now been revised but remedy has not been made for lands taken without (free, prior and informed) consent. We ask the CP to sanction GAR for this continued lack of compliance with the P&C. For its part, GAR asserts that it has made better progress in remediation in PT ATM and PT AKPL (in Central Kalimantan) and PT PIP and PT PGM (in Kalimantan Barat). Limited by our modest resources, FPP and partners have not been able to conduct detailed surveys of the situation in these other concessions, but research done by partners shows that there are unresolved land disputes in PT PIP and PT PGM on the other side of the Kapuas river from PT KPC. 3. Provide 1000 ha for smallholders in PT KPC (ie 20% of lands released) GAR has still not provided the required additional 460 ha of smallholdings to make up the total to 1000 ha as required by the CP. This is mainly because the company never acquired enough land (ie 20%) in the area where it planned to develop smallholdings, so it has been unable to fulfil its obligations rapidly. Despite repeated suggestions to do so, by FPP, GAR refuses to allocate the required 460 ha of additional smallholdings from its core estate. GAR has no answer when asked how will it compensate the smallholders for the loss of revenue they have suffered for the, up to, 10 years of delay that they have endured since they released their lands to GAR (though a flawed process contrary to FPIC) in exchange for a promise of smallholdings. After its attempt to acquire lands for smallholdings in the hamlet of Tungkup without following due process, outside its permit area and in a way that generated serious misunderstandings with that community (see FPP letter of October 2016 and response by GAR November 2016), GAR says it is 3

4 now planning to develop a further 440 ha of land for smallholdings also in Menapar. About 50% of the proposed area is outside the permit area and therefore again of questionable legality. Distant location of (proposed) smallholdings: For the past 18 months, community members in Suhaid and Marsedan, who had released lands to the company in , have raised concerns that the smallholdings that they have been (or are to be) offered as partial compensation for surrendering their lands, are distant from their own villages. They are concerned not only that once they finally get these areas back for their own use they will be hard to farm being so far away but also that, being Melayu, they will not be welcome on what is and remains a traditionally Dayak area. This is why they have requested smallholdings nearer to their own villages. This matter remains unaddressed and GAR s latest plans to develop additional smallholdings in and beyond the extreme south-east corner of the concession will only exacerbate this problem as these are even further away from Suhaid and Menapar which lie near the north-west corner of the concession. Legal status of smallholdings: Because much less tax is payable by smallholders with permanent land titles (sertipikat hak milik SHM) than would be paid if the cooperative acquired a small HGU, and because this results in permanent land ownership instead of a time-bound lease, most smallholders interviewed prefer the option of acquiring their lands as SHM. However, since this was offered to the communities in early 2016, GAR reports no progress in legalising the smallholdings. We ask the CP to sanction GAR for these continuing delays with providing smallholdings. Our recommendation is that GAR should be required to release lands to the smallholders, near to their places of residence, from the area it has planned for its core estate. This would ensure that farmers get immediate returns from the mature palms on these newly defined smallholdings, which would make up, in some measure, for the near 10 years of delay they have endured and avoid them having to wait even longer for any new plantings coming to maturity. 4. Redo HCV assessments: In March 2015, the RSPO Complaints Panel ruled that GAR should submit all the HCV assessments for peer review and to be checked by the RSPO Technical Director, for all the 18 concessions subject to the complaint. In 2015, GAR contracted the Jakarta-based consultancy Ekologika to redo the HCV assessments in its 18 concessions with an emphasis on ensuring community participation in HCV identification, and developing recommendations for community participation in management and monitoring especially of HCVs 4, 5 and 6. Interim results were presented to FPP in a meeting in GAR in early Later in 2016, a workshop to present the final draft of the redone HCV assessment for PT KPC by Ekologika was held in Pontianak with a selected group of villagers. Community members from Suhaid wrote to GAR rejecting the adequacy of this consultation. GAR recognises that a final consultation is still pending. According to our investigations, the consultation draft has not yet been shared with any of the communities. Under the RSPO system, all HCV assessor teams carrying out HCV assessments after 1 st January 2015 must be led by a team leader who holds a license from the Assessor Licensing Scheme run by the High Conservation Values Resource Network. Licensed assessors are given a provisional licence until they have proven their credentials by submitting HCV assessments for peer review and being checked by the HCV assessor panel. After they have done 2 peer-reviewed assessments, that are 4

5 judged satisfactory by the assessor panel, assessors graduate to a full licence. 2 In the case of Ekologika, one of their staff does hold a provisional assessor licence but she has yet to submit any peer-reviewed HCV assessments to the assessor panel. 3 This means that no single HCV assessment required of GAR by the Complaints Panel has yet been subject to peer review and ALS requirements as stipulated by RSPO. Despite this, GAR repeatedly states in its quarterly reports to the CP that the HCV assessments have been completed. FPP has just as repeatedly asked GAR to amend this erroneous statement. We ask that the CP sanction GAR for this continued non-compliance. 5. Review legality and bring itself into legal compliance Following the complaint by Forest Peoples Programme in October 2014, in which it was mentioned that some of the 18 concessions of GAR were of doubtful legality, the RSPO Complaints Panel required that a detailed legal review be carried out. This legal analysis was contracted by RSPO to the Indonesian legal firm Hanafi Ponggawa and Partners (HP&P), and paid for by GAR, and was completed in July It was shared with Forest Peoples Programme subject to a Non-Disclosure Agreement in October Despite the Non-Disclosure Agreement, already by September 2016, GAR was publicly noting that it had accepted the report and it selectively cited the findings, noting that HP&P had stated on page 49 of their main report that: In brief, aside from the findings delivered in Point III.5 herein, we would view that on the Complaint Date GAR s Subsidiaries had complied with prevailing laws and regulations in Indonesia. This selective quoting from the report is, to say the least, somewhat disingenuous and requires a response. In Point III.5, the HP&P report notes that of the 18 companies examined, at the time the complaint was filed, 3 subsidiaries lacked a long term land use permit (HGU), 7 lacked the requisite Forest Exchange Permit (TMKH), 5 lacked a Forest Conversion Permit (PKH), 1 lacked a Compulsory Smallholder Development Plan, and 1 lacked a Plantation Development Permit (IUP). Furthermore, FPP s own review of the HP&P report notes that HP&P s study overlooked several important aspects of the Indonesian permitting process. For example, as the HP&P report itself notes, an Izin Lokasi is for 3 years and can be extended for a maximum of one additional year, if 50% of the area has been acquired. Yet the HP&P report shows that the majority of GAR concessions long exceeded the terms of their Izin Lokasi and their extensions before IUP were acquired. Several of the companies secured IUP and HGU although they had NOT acquired the requisite 50% of the permit areas. For example, PT KPC acquired its Izin Lokasi in January The Izin Lokasi was, questionably, extended for one year in October 2012, showing that the company was operating without an Izin Lokasi for nearly three years between January 2010 to October Moreover, the permits were renewed despite the fact that the company only ever acquired 4,968 ha of land in the 19,200 ha concession, well below the requisite 50%. It is therefore legally questionable whether PT KPC should have been granted its IUP in July 2012 for the development of the concession. At the time, PT KPC lacked a valid Izin Lokasi and had not acquired 50% of the permitted area

6 Recent developments in PT KPC: In January 2017, as previously communicated to the CP and the Secretariat, community members of Suhaid wrote a letter to the National Land Bureau (BPN) demanding that no HGU be granted to PT KPC as this would prejudice their rights to their lands. This matter remains unresolved. FPP has serious doubts about the willingness of PT KPC/GAR to resolve these legal challenges. Apart from two short meetings a year ago, no meaningful dialogue has been pursued with the communities or the local administration to explore legal alternatives to a HGU, such as hak komunal. Although hak komunal titles have been accorded in other parts of Indonesia, GAR has rejected this as an option for PT KPC (see GAR letter to CP November 2016) but has suggested no alternatives. At the same time, the company while arguing that it is unable to revise its land use allocations as this is legally too complicated, has now embarked on the risky path of opening up new lands for smallholdings outside its permitted area, which is likely to be legally even more complicated. The lack of legality for the planned expansion outside the Izin Lokasi in the south east, the fact that smallholders seek to own their smallholdings near their villages and the fact that PT KPC has not yet acquired a HGU provides an opportunity for resolving these multiple problems by rearranging which lands are to be core estate (inti) and which smallholdings (plasma). We ask the CP to make a clear ruling on this matter. Conclusion: By means of this letter we are asking the Complaints Panel to sanction CP for its sluggish performance and to insist that GAR speeds up the resolution of the land conflict and related smallholder dispute in PT KPC, by: making remedy for lands taken without compliance with the P&C; releasing lands in the core estate to make up the smallholding area to 1000 ha, as required by the Complaints Panel; exploring legal alternatives to HGU in order to avoid extinguishing customary rights in perpetuity and; completing its HCV assessments subject to the required procedures. These actions should then be speedily extended to the other 17 concessions. We also ask yet again that the actions promised near two years ago by the Complaints Coordinator, which are intrinsic to addressing the original complaint (set out again in Annex 1) are carried out with despatch. Yours sincerely Dr. Marcus Colchester Senior Policy Advisor 6

7 Annex 1: Concerns with performance of RSPO Secretariat and Complaints Panel There are a number of issues, raised at the 14 th September 2015 meeting between RSPO Secretariat, GAR and FPP, that RSPO undertook to carry out with regard to the complaint. These remain outstanding 14 months later. These include the following as noted from the minutes in italics: 1. RSPO Secretariat acknowledged the agreed proposed approach by GAR in Mar 2012 requesting RSPO not to publish GAR s NPP based on the reasons raised (public listed selective disclosure etc). Darrel Webber will explain to FPP on this agreed RSPO action and will also present to the CP to decide on RSPO action. 2. RSPO will clarify with FPP on the delays in posting of NPP notifications and the full extent of it 3. MC noted that there had been long delays in acting on the October 2014 complaint against the CB. He noted that FPP was asked by ASI to refile the complaint in June but ASI had now decided to pass the complaint back to the CB. None of the procedures being invoked are presented on the RSPO website. Yet the accountability and credible performance of CBs is key to the RSPO certification-based process. MC requested RSPO to address this matter. RKN acknowledged the process has not been satisfactory and will revert in two weeks time after discussing with the RSPO team involving Ravin, Dr Sanath, Salahudin and Jan regarding CB complaints and its processes. 4. The Complaints Panel previously ruled that: on the issue of GAR having exceeded the maximum land holding for plantations under Indonesian laws: The Panel believes that this is an issue to be pursued by the relevant authorities of the Ministry of Agriculture. At the September 14 th meeting between GAR, FPP and the complaints coordinator, it was agreed that this wider issue of legality should apply to all RSPO member companies operating Indonesia. FPP thus agreed that this matter be the subject to an independent legal study not linked to GAR. We are asking the Complaints Panel to inform us (now over 22 months later) why there have been such long delays in addressing these matters and to take immediate action to get these actions undertaken. Please note that these matters were also raised with the Complaints Panel in our submissions of February 2016 and in October