Greenpeace and Legality, Round Two

Greenpeace renewed its attacks on Indonesia this past week, again pushing out a report it published in October. The report – when it was released – appeared to be designed to push regulators in the UK, EU and US away from taking a legality approach to trade-based rules to halt deforestation.

So why now?

The UK confirmed, last week, it is taking legality approach to regulating imports in relation to their deforestation impact. The US Congress is considering a similar approach under the proposed FOREST Act, and the EU is set to release its draft version of its imported deforestation regulation shortly. The credibility, and popularity of legality standards is growing: in other words, Greenpeace is losing the argument.

This means NGOs now need a new approach if they are to introduce the trade restrictions that they seek on palm oil (and some other commodities). This will include seeking to undermine the notion of what constitutes legality in the countries of production, and any certification systems confirming this legality.

The idea that there are inconsistencies and disputes within Indonesia’s land-use regulations – and therefore illegalities — is nothing new, and is generally well acknowledged.

The fact that President Jokowi’s palm oil moratorium laws explicitly called for an understanding of the legality problems associated with palm oil permits gives a clear indication that it is already going some way to being addressed.

The problems associated with land tenure in Indonesia – and the problems it creates – have been studied at length.

A CIFOR paper from 2017, for example, stated clearly:

“[T]here is an unclear forest and land tenure system in Indonesia. For example, overlapping claims for State forests vs customary forest has been a point of contestation for long time. Often the forest tenure is equated with land titling, i.e. who holds the forestland ownership. In this situation, overlapping claims of land between the government and local communities are obvious. In many cases, the overlapping claims result in often violent conflicts between private companies (logging, mining and large-scale oil palm plantations) and local communities. These conflicts emanate because the government issues licenses to these companies on the same forestlands that have traditionally been owned and managed by local people. Government authorities at national, provincial and district level are constrained by a lack of credible evidence that would enable them make policy choices that are more directly in line with devolving substantial rights to communities. In particular, the issuance of community ownership of forest resources raises fears of increased rates of destruction.”

Another paper from ISEAS gave a history of land tenure problems in Indonesia:

“A proper rural cadastre was not introduced during the colonial era, because of the high cost involved, and because its certification of individual land rights would have clashed with customary regulations, including notions of communal land tenure. The introduction of a rural cadastre after 1960 was piecemeal, and the use of property tax registration as a substitute cadastre has continued. By 1992 cadastre registrations covered just 20% of land plots, mostly in urban areas. A World Bank-sponsored project helped to increased coverage since 1994 to 32% in 2013. Greater coverage was delayed by the rapid increase in newly opened up agricultural areas, the cost of land title certificates, the difficulties of reconciling individual land ownership with customary regulations…”

The point of these examples is to underline that what Greenpeace presents as some sort of conspiracy by companies, government and certification bodies to maintain the status quo, is actually a decades-old problem, with its roots in the colonial system, that is complex and has no simple solutions.

But then again, Greenpeace doesn’t do ‘complex’.

Greenpeace would prefer to have European lawmakers and US officials believe that these hangovers from the European colonial period are problems created by local businesses. In pushing its agenda today, is Greenpeace unwittingly airbrushing the problems of the colonial past and pushing the blame onto today’s Indonesians?

What Greenpeace’s approach also omits is that the ongoing uncertainty over land tenure doesn’t serve business or government well at all, and imposes a significant cost on business, and undermines investment.

For every example they provide of inconsistent titling, or the encroachment of smallholder plantations into conservation areas, there are just as many – if not more – of illegal land use by smallholders and others in large plantation areas. In the West, this might be referred to as “squatting.”

In some cases, where companies have attempted to set aside areas for conservation under a HCV framework, for example, this has and can result in ongoing forest destruction.

That Greenpeace wasn’t making these representations to Indonesian policymakers through the budget process indicates that this isn’t about supporting reforms in Indonesia or encouraging sustainable production; it’s about smearing palm oil on the international stage and lobbying Washington and Brussels to take more aggressive action against Indonesian exporters.

The NGOs’ best hope is probably Brussels – the historic center of the anti-palm oil campaign. The EU’s due diligence proposals will be a significant battleground, especially now the UK (and possibly the US) have chosen the route of the legality standard. The fact that even the EU Commission is closely considering legality measures shows how far Greenpeace is losing the argument. In these post-Covid days, it seems that pragmatism and reasonableness is finally back in fashion.

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