REDD countries

Lao PDR is a centrally-planned socialist republic with a relatively well-developed legal framework applicable to land and forestry, though major legislation on REDD+ has not been adopted to date (April 2013). Major REDD+ challenges include the sustainability of land concessions and land and forest governance and tenure. A major overhaul of land and forestry legislation is underway as of 2013 that should address these and other issues and introduce a basic legal framework for REDD+. This is likely to include provision for more specific legislation to be adopted thereafter. Several institutions have responsibility for REDD+, most notably the Ministry of Natural Resources and Environment (MONRE) and the Ministry of Agriculture and Forestry (MAF), while coordination is provided by two inter-ministerial committees (the REDD+ Task Force and the National Environmental Committee). However, capacity constraints in MONRE have led to MAF taking on many of its functions in the short term.

All land and forest belongs to the State, which may allocate small parcels of land to citizens for personal use, or grant leases or concessions for commercial use. Most land used by rural families and communities is not registered and so not secure; however, major land use planning and allocation programmes are underway to increase title registration. Rules on granting land use leases and concessions are at times unclear, and a moratorium on new concessions was issued in 2012 in response to concerns over their sustainability. Logging is similarly centrally-planned, though discrepancies in the legal framework and low institutional capacities have led to relatively high levels of illegal logging. Several initiatives are underway to strengthen the legal framework for logging and ensure legality of timber flows.

Background

Lao PDR is a single-party socialist democratic republic. The economy is centrally-planned, and under the National Constitution all land and forest resources belong to the state. Despite this, the country has for some time been moving toward liberalisation of the economy, a move that is noticeable in its land and forest laws and the increased share of land that is privately managed, if not privately owned.

Lao PDR stated in its R-PP that it intended to adopt a decree on REDD+ at an “early date“, and other policy documents state the intention to regulate carbon as a priority (Agricultural Master Plan 2011-2015). However, no such decree has been adopted to date (April 2013) and it is not believed that any is under development. Lao PDR is in the process of revising its Forestry Law and Land Law, together with developing a Land Policy. The Forestry Law is scheduled for voting by the National Assembly in December 2013, while the Land Law and Land Policy are scheduled for June 2013.

The present reforms constitute a potentially major overhaul of land and forest legislation, and have been signalled by officials as portending a “significant shift in rethinking natural resource management and land tenure systems” (Robeck, 2012). The reforms are likely to address a broad range of issues, including REDD+ and other ecosystems services, as well as related issues such as land tenure and rules on forest conversion (MONRE, 2012). It is likely that the development of specific REDD+ legislation will occur after this overarching reform is complete.

Definitions relevant to REDD+ projects and programmes

Lao PDR has to date not included definitions of specific terms related to REDD+ or ecosystem services in its legislation. It is expected, however, that definitions of some such terms will be included in the 2013 revision of the Forestry Law or in subsequent implementing legislation dealing with REDD+. The Forestry Law does contain a general definition of “carbon market” but this is not functionally applied in the law.

Lao PDR does not include a technical definition of “forest” within its legislation, and “forestlands” are defined broadly to include any lands, whether forested or not, which are determined by the state as forestlands. The country has submitted a working definition of “forest” to the UNFCCC that requires a minimum of 20% forest cover, and excludes areas predominantly coved by palm trees and bamboo. Reports have indicated that the government intends to include plantations as part of the forest definition; however, no final decision has been made (GIZ, 2012).

Forests are categorized into Protection Forests, Conservation Forests and Production Forests, with different rules for preservation, development and utilization applying to each. Not all forests are categorised, however, and those that are not are commonly referred to as “Village Forest Areas.”

The definition of “degraded” and “barren” forests has been a continuing source of controversy and uncertainty in Lao PDR. Under the Forestry Law, only degraded and barren forests are eligible for conversion to non-forest. However, the definitions of these terms in the Forestry Law are imprecise, and it is broadly agreed that this has led both to legal uncertainty and to the conversion of large areas of high-quality forest (Forest Trends, 2011). This issue is among those being considered for reform in the context of the 2013 revision of the Forestry Law.

While not defined in the definitions section of the Forestry Law, “forestry activities” are specifically listed, and the term is then used throughout the document in a range of contexts. REDD+ activities or other ecosystem services are also not defined, and it is likely that certain amendments will be required to avoid legal conflicts in the legislation.

Land & Forest Resource Law & Tenure

All land and natural forest in Lao PDR belongs to and is centrally managed by the State. Planted trees can be privately owned, though the land in which they are planted remains state-owned. Rights to use and exploit land and forest can be granted to private entities in a number of ways, with minor differences depending on the category of land.

The strongest form of right over forest land is a registered land title granting long-term use rights. This can be granted to individuals or families on up to three hectares of land, usually following the expiration of a preliminary three year land certificate. These rights are similar to ownership, and include rights of usufruct, transfer and compensation for removal, though land must be used in accordance with objectives set by the Government. In contrast to most categories of land, natural forest land cannot be bequeathed, and so such land is likely to revert to the State upon the death of the holder. As such, the creation of carbon credits in natural forests is likely to require state approval.  Rights for business operations are usually granted through a lease or concession. Concessions are typically granted for larger areas, and are more common among foreign investors. In the forest sector, leases and concessions can be granted for harvesting timber or non-timber forest products (NTFPs), though this is not officially permitted in natural forests. Where forestland is classified as degraded or barren, the State may authorize its conversion to other land uses or issue leases or concessions for industrial plantations. Issues with the sustainability of land concessions led the Government in 2012 to suspend the issuance of new land concessions until 31 December 2015, until such issues are resolved (Myanmar Times, 2012). Measures planned or under consideration to help resolve such issues include expanding the use of land surveys and land use planning assessments in granting concessions, speeding up the process of land use allocation in order to strengthen the rights of local land users and reviewing land compensation policies to provide for greater participation of and benefits for local peoples (Vientaine Times, 2012).

While the State has historically not recognized customary land rights, recent legislative changes - specifically in the Decree On the Implementation of the Land Law No. 88/PM and the Ministerial Instructions on Adjudications Pertaining to Land Use and Occupation for Land Registration and Titling, No. 564/NLMA, 2007 - have made customary titles possible, and the first titles were issued in late 2011. However, these titles do not allow holders to sell or lease the land, nor to use it as security for loans. The issue of strengthening customary rights is under consideration in the 2013 reform processes.  Certain forest land is also under village management. “Village Use Forests” are allocated to village administration authorities under land and forest allocation plans. Village authorities are then responsible for the forest land’s management and use, and may allocate rights to village community members based on needs.

Though there have been significant improvements in recent years, the majority of land used by individuals or communities in Lao PDR is not subject to high-levels of tenure security. To date, much land use is informal and registration of land rights remains limited.  The Government has recognised the importance of improving land tenure security, and has highlighted changes in land tenure policy as a crucial part of current efforts to reform land law and policy (Robeck, 2012). One aspect of such efforts is the implementation of a Participatory Land Use Planning and Land Allocation Programme that seeks to greatly expand the issuance of titles (MAF and NLMA, 2010).

Carbon Rights & Benefit-Sharing

Carbon rights and benefit sharing from REDD+ or other ecosystem services are not specifically regulated in Lao PDR. Legislation for valuing ecosystem services has been identified by the Government as a priority (Agricultural Master Plan 2011-2015), and these issues are among those under consideration as part of the 2013 review of the Forestry Law (MONRE, 2012).

While the Government has not signalled how it will regulate carbon rights, organizations providing input to the Forestry Law reform process have recommended linking carbon rights and benefit sharing to land tenure where the latter is sufficiently secure, such as in the case of registered land use rights. Where tenure remains insecure, it was recommended to adopt a legal framework that regulates benefit sharing without allocating carbon rights, while allowing for such areas to transition to allocation of carbon rights once tenure becomes more secure (MONRE, 2012). A comparable framework exists in Lao PDR for sharing timber revenue under the Decree on Sharing Revenue from Timber Harvested in Production Forest Areas, which could provide a workable model for benefit sharing from REDD+.

Other Relevant Laws and Processes 

Under the Forestry Law, DOF is responsible for preparing the national logging plan, which must be approved by the National Assembly. This divides quotas amongst the provinces, where Provincial Agriculture and Forestry Offices (PAFOs) distribute provincial logging plans amongst the districts and, together with District Agriculture and Forestry Offices (DAFOs), to individual production forests, based on the approval of the government. Logging is only officially allowed in Production Forest areas where inventory, surveys, and sustainable management plans have been completed. Re-categorization of Protection Forest or Conservation Forest into Production Forest requires the approval of the National Assembly’s Standing Committee based on proposals made by the government. The central government is the only body able to authorize the export of natural logs.

Despite the above procedures, illegal logging remains a major issue in Lao PDR. Several steps are underway to address this. Lao PDR is in the pre-negotiation phase of a Forest Law Enforcement Governance and Trade (FLEGT) Voluntary Partnership Agreement (VPA) to establish a credible timber legality assurance system in line with EU regulations requiring demonstration of legality of all wood and wood products sold in the EU. Negotiations are expected to begin in mid-2013 (FLEGT, 2012). Just under 83,000 hectares of Production Forest Areas has achieved Forest Stewardship Council (FSC) certification (FSC, 2013), which also requires protection of High Conservation Value Forests, community engagement and other safeguards. Expansion of the certified area, including through further development of the legal framework for sustainable forest management, is currently planned to be implemented through the Scaling-up Participatory Sustainable Forest Management project, funded under the Forest Investment Program (FIP Lao Investment Plan 2011). Mining and hydropower utilities are bound by concession agreements that include environmental safeguards, but these are rarely enforced (DOF, 2010).

Procedures, Guidelines or Safeguards

As discussed above, Lao PDR has not yet begun development of specific REDD+ legislation. Likewise, no national procedures, guidelines or safeguards have been adopted for REDD+. A recent report noted that, while there has been substantial work on piloting REDD+ systems, including guidelines and safeguards, little attention has been paid to developing such systems at the national level (UN-REDD, 2012). Input from national stakeholders into the Forestry Law revision process recommended that minimum safeguards for REDD+ and/or general forestry activities are included in the Forestry Law, together with enabling provisions providing the basis for subsidiary regulations or decrees and requiring that procedures, guidelines, and safeguards to be adopted by the State are followed.

While REDD+-specific procedures, guidelines and safeguards remain to be developed, several other sets of rules are relevant for the implementation of REDD+. The Decree on Environmental Impact Assessment (EIA) requires EIAs to be carried out for all large-scale investment projects, which may include REDD+ projects. For smaller projects, an Initial Environmental Examination is required. The Regulation on the Approval Procedure for CDM Projects, which includes a list of sustainable development criteria, may provide a basis upon which to build procedures for REDD+.

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