TAP review - Round 1 (3 November) Round 1 Response from ERP … · Key activities in table AS1,...

Carbon Fund methodological

framework (state specific indicator

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TAP review - Round 1 (3 November) Round 1 Response from ERP (DD Month YYYY) Actions to be taken by ERPD design team

Level of Ambition

N Those TAP members who are dealing with social issues in particular, wish to have exchanges with key people who have attended consultative meetings, including grassroot organization (Kinshasa visit).

Organize meeting in Kinshasa

The WWC's VCS project falls into Mai Ndombe jurisdictional area. It seems that the WWC team has been instrumental for drafting some sections of the ERPD. It also seems that the ERPD's carbon accounting approach is largely based on project-style methodologies. And the project comes also up prominently in terms of benefit sharing. Is it correct to say that WWC has been an important factor in designing the ER approach at JL? What are the reasons that this VCS project is coming up so prominently in the overall approach? To which extent does the VCS project creates a precedence that the ERPD need to follow?

• This issue has been discussed partly in the meeting in Zurich. Main explanations and clarification are:

• the ERPD carbon accounting approach is not a project-style methodology. It's a mix of top-down and bottom-up accountability approach in order to facilitate the matching between carbon measurement and strategy to adress drivers.

• WWC is involved (i) as a partner of the program design working group and (ii) as a service provider under World Bank contract to support program REL development. They have been chosen to support the program design recognizing their skills and vision about REDD+ as WWF have been chosen for some other part of the work and for FIP implementation on the ground.

• In term of benefit-sharing, we are not thinking that WWC is really prominent. We can discuss further this point in the country visit. One element to consider is the maturity of their project and their ability to generate ER during the first years of the program period (so it place them in good position to sell ER through the ERPA). But the benefit sharing design is also precising that their share of the ERPA should be capped in order to give opportunity to others actors to sell ERPA in the following years.

• As explained in our following answers, the WWC project baseline will be changed in order to be aligned with the program baseline so the VCS project is not creating a precedence that the ERPD need to follow

• Il faut rappeler que ERA n'est pas seulement un "projet" au sens commun du terme, sinon, il y a longtemps qu'on n'en parlerait plus. C'est d'abord une concession de conservation qui dispose d'un bail emphytéotique de 25 ans. C'est une nouveauté dans le paysage congolais. Une nouveauté intéressante dans la mesure où les difficultés des parcs nationaux et de l'ICCN sont connues. Il est normal que le gouvernement soutienne une approche innovante de ce type en matière de conservation. d'autant que la concession est dans un endroit stratégique de ce point de vue, (couloir à éléphant). (il faut donner ce point en premier car il donne l’explication du pourquoi, il n’y en a pas d’autre)



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Safeguards

Y Further information on two safeguard related processes would be of use for the TAP: • Info about process of first independent observation methodological report (OI-REDD); • Finalization of the report about monitoring forest companies regarding legal requirements (See further comments and questions under Criterion 24)

Information about OI REDD and monitoring of forest companies regarding legal compliance have been updated in the TAP Dropbox

Ind. 2.1 The Accounting Area is of significant scale and aligns with one or more jurisdictions; or a national-government-designated area (e.g., ecoregion) or areas.

N The TAP is interested to know the selection criteria for choosing Mai-Ndombe as the particular accounting area. Also, clarify on the prospects to upscale experience from the Province (accounting area) chosen to other provinces? The TAP particularly need a good explanation on the expansion of conservation concessions as an important ER approach at jurisdictional level and the prospect of their permanence.

Mai-Ndombe accounting area has been chosen for the following reasons: - Proximity to Kinshasa (important threat of deforestation and also opportunity to attract private actors in commodity value chain linked with Kinshasa market) - no more forest in the bas congo province to supply Kinshasa in charcoal and bois d’oeuvre and transfer to the mai Ndombe to supply Kinshasa (2010) (histoire de donner une nouvelle menace) - Key ecological transition area between savannah areas and dense humid forest (opportunity to combine different strategy as refforestation and forest protection) - Area where many REDD+ initiatives are already in place (WWC project, Novacel project, WWF intervention area, Experience of sustainable forestry with Sodefor, FIP project,...) Opportunity for upscaling experience in Mai-Ndombe: - Mai-Ndombe area allows DRC to experiment REDD+ in a context combining a variety of ecological area, drivers, existing mitigation approach. This will definitively allow to pilot and upscale strategy within the country (activities in savannah area can be up scaled in Kwilu, Kwango, Kasai, Katanga/ activities with forest companies can be up scaled in Oriental Province and Equateur, ...) - The proximity with Kinshasa is an advantage for knowledge management and political sensibilisation (facility to bring decision-maker, partners, scientist from Kinshasa to the ground) Conservation concession expansion and permanence Conservation concessions development is an intermediary strategy to give values to forest and provide local development in a context of growing forest destruction. Conservation concession will be at a later stage ( when the economical and regulative context will be improved) subject to other economical vocation as sustainable forestry, NTPF activities, ecotourism... Le concept de concession de conservation n’est pas seulement valable pour des projets privés comme celui d’ERA, Il vaut aussi pour les concessions

Commenté [MR1]: cette formulation est incompréhensible



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communautaires. Dans les Plans de Gestion des Ressources Naturelles il sera possible de déclarer « concession de conservation » des forêts à haut stock de carbone et grande biodiversité. Même problème en ce qui concerne le carbone.

C 23 To prevent double-counting, ERs generated under the ER Program shall not be counted or compensated for more than once. Any reported and verified ERs generated under the ER Program and sold and/or transferred to the

Toward Y • To be listed on the VCS registry the ERs will need to be issued as Verified Carbon Units under the VCS which requires the following of the VCS rules, which are then issued by a VCS Registry (Markit or APX). What consideration has then been given as to how these units are then transferred to the National Registry of the DRC’s national REDD+ program.

The ER will be firstly registered under the National Registry. Then arrangements will be found with VCS to convert ER in VCUs as needed. However windows of National Registry related to ER tracking might be managed through existing registry platform as Markit/APX. This will be clarified with the next draft of ERPD.

See complementary note about ER issuance and transfert

• It appears that any existing REDD+ projects in the ER program will be grandfathered and can opt out such as the Wildlife Works ERA project but it can also opt in and sell its ERs to the World Bank (see reference above). This is to be confirmed as is the extent to which the project

The only existing REDD+ project is the one of Wildlife Works ERA. This project will adopt a new REL in line with the program baseline. After each program verification, a number ER will be allocated to the project and a part of this will be sold through the ERPA with the Carbon Fund.




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Carbon Fund shall not be sold, offered or otherwise used or reported a second time by the ER Program Entity. Any reported and verified ERs generated under the ER Program that have been sold and/or transferred, offered or otherwise used or reported once by the ER Program Entity shall not be sold and transferred to the Carbon Fund

ERs will be issued and then accounted for on a project or program baseline?

Il faut dire que par ailleurs il n’y a pas d’acheteur

• Once the registry. is established what legal basis will be used to bring the DRC ERs into legal existence (or will VCUs be cancelled and exchanged for DRC ERs) and on what basis will they be managed

The homologation decree currently in revision will set the legal framework for the generation of DRC ER. As explained in previous answer, it will be in the opposite way, DRC ER will be converted in VCUs as needed


Until the registry is operational, it would be useful to be provided with any working documents, protocols or other design specifications of the registry and how it will interface with the national REDD+ program.

Une réponse doit être donnée ici Document will be share about overall design of the Registry and Standard Operation Procedure of some key functions. Draft of homologation decree will be shared when available (January)

• Finally, at a national level once the ERs are sold to the World Bank what steps will DRC take to ensure they are not counted as part of the national INDC target?

Process to report on INDC target is not yet clearly defined under the UNFCCC process but DRC, by tracking all the ER generated and sold through the Registry, will keep transparent their carbon accountability relative to mitigation strategy in the forest sector. Moreover, governmental unit in charge of the national reporting to the CCNUCC (as defined in the Varsaw framework) will be also in charge of managing the Registry and keeping track of ERs.

To be precised in the ERPD

Ind 24.2 Safeguards Plans address social and environmental issues and include related risk mitigation measures identified during the national readiness process, e.g., in the SESA process and the ESMF, that are relevant for the specific ER Program

N The TAP expected that under each of the themes within the context of Mai Ndombe (agriculture, energy, forestry and their sub-themes illustrated in tables 6, and Sectoral Key activities in table AS1, AS2, AH1 etc ), safeguard provisions would have been identified. However, likely social and environmental risks associated with or relevant to the themes have not been spelt out and described in the current ERPD. This is considered important since it will help to build a monitoring matrix that can be easily visualized and used to track progress on safeguards. Somewhere in the document it is stated that for each programme component and activities the risks will be identified but these have not been provided.

All the activities identified in the Mai-Ndombe strategy are aligned with the national REDD+ strategy. This national strategy has been build taking in account the SESA and ESMF. Risk and mitigation measures of all this activity have then already been identified in the national and the FIP SESA/ESMF and in the FIP’project safeguards documents. It will be added to the ER Program and DRC will take the opportunity to review all these risks more precisely and the corresponding alleviation measures. tu peux extraire du CGES du FIP le tableau qui précisément identifie les risques et leur mitigation, et l’intégrer au document

Report of working group 5 work to be added in dropbox Tab to be added in ERPD in order to synthetize specific safeguards provisions Voir le tableau des risques et mitigations du CGES du FIP (il fait défaut dans le CGES de la red)



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context (e.g., land tenure issues), taking into account relevant existing institutional and regulatory frameworks. The Safeguards Plans are prepared concurrently with the ER Program Document, and are publicly disclosed in a manner and language appropriate for the affected stakeholders

Questions: • For further clarification: (i) Have the patrilineal and matrilineal systems of inheritance of land and property in the Province been considered in the design of benefit sharing mechanisms that are proposed in the document? • Have the risks, particularly social risks, been identified in the design of Community Based Forest Management framework?

In addition to the Redd+’s national safeguards management frameworks, the FIP’s Piredd has realized a full environmental study on its zone, including the Maï Ndombe District. This study describes in detail how safeguards will be implemented. Two inheritance systems zones are cohabitating in the Maï Ndombe, the patrilineal Anamongo zone (Inongo, Kiri, Oshwe and pygmies living there) and the matrilineal Teke and Sakata area. Two different problems are to be distinguished in the two areas concerning inheritance of the Redd+ investments: 1) the changing of lineages at the chefferie level, common to the two systems. It creates sometimes resistance and conflicts and these conflicts may impede the management of the benefit sharing negotiated with the paramount chiefs. It will be better to negotiate with the concerned lineages the benefit sharing system taking into account the transitional periods (when the power of the new lineages is not still well established, and sometimes these periods may last many years). The problem has not to be ignored in the contracts. 2) the farmers investments in the matrilineal system area are to be made preferably in the maternal clan area. And this is exactly what people are doing. Investments in the paternal clan area are subject to many disorders and conflicts. The only way to clarify this is to be sure that the land rights outside the maternal area are fully certified by official titles or strong negotiated arrangements with the clans (…). Le risque, si l’on investit sur les terres du clan paternel, est que les héritiers du père n’aient aucun droit sur les biens investis et qu’ils entrent en conflit de ce fait avec le clan maternel titulaire du droit. Le problème se pose aussi pour les fruits de ces investissements. Les « community based forest management frameworks » , c’est-à-dire les plans de gestion des ressources naturelles : le fait que les droits d’héritage soient matrilinéaires (on exclut donc du raisonnement les clans anamongo du nord de la province) n’empêche nullement que les personnes non héritières de ces forêts par leurs enfants mais par ceux de leurs sœurs puissent participer à la programmation du Plan. De même que les allochtones, qui n’ont pas de droits directs sur les terres, sinon au travers de leurs épouses, si elles sont du clan qui possède la forêt.

Environment study of FIP Piredd to be added in dropbox



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Ind 25.1 Appropriate monitoring arrangements for safeguards referred to in Criterion 24 are included in the Safeguards Plans

N What is required is first of all, a listing of key safeguard issues required by the World Bank, which are contextualized to suit the issues and conditions in Mai Ndombe and how each of the programme components addresses the issues that are applicable. This is not explicit in the safeguard section of the current document. Indigenous People (Pygmies communities). There are two interesting information regarding the IP: 1. First, they described as ‘totally sedentary’ in the programme area; 2. They are marginalized in the governance frameworks. The TAP would need more information on the sedentarization process of these groups, as this would mean shifting from being hunter-gatherers to agriculture or other sedentary mode of production. Key questions are: Is the program foreseeing their participation only through their ‘past stewardship’ or as new agriculturists? How the question of their marginalization in governance frameworks has been managed during consultations? What appropriate approaches for future consultations could be put in place?

The Socio Environmental Study of the FIP gives answers to the first question, knowing that it has been prepared for the all Mai Ndombe area. It contains an ESMF, and management frameworks or plans for pest management, resettlement, IP, nonphysical cultural goods. The ESMF itself contains a list of risks linked to each type of activities implemented by the project, and the corresponding mitigation measures. IP We have described IP as semi sedentarized. There is no more pygmies in the area living exclusively in camps, as by the past, but all of them are attached to a village where they have their dwellings. Only men are in camps during one or two months of the year (generally November and December) and during these periods they regularly come back to the village. They cultivate all around the year, around these villages, in their own agricultural plots and in the bantou’s plots where they constitute most of the farming labour in Kiri for instance, in bantu’s clans with Pygmies (all are not). But they still have a very important activity of hunter-gatherers, one has not to deny this (See in the Maï Ndombe’s Piredd document the annex about pygmies with the labour calendar of the pygmies, with all their different activities, kinds of caterpillars they gather, honey collecting periods etc. The difference between now and the past time is that they are not going very far from the villages. No more than 30 km and less than this. In itself this shrinking of the hunting gathering area is a problem because in the shrunken area they over exploit the natural resources. So the two activities of them have to be tackled by the project: 1) improving their agricultural practices and helping them to grow perennial crops to be less dependent on revenues coming from the the forest bio diversity over exploitation, and 2) involve them in programs leading to a better reconstitution of natural resources (accordingly with their old practices or adopting new practices). Governance : The FIP’s Dedicated Grant Mechanism (DGM) is operating in the Maï Ndombe since now two years. In many pygmies villages associations have been constituted and they have elected a board of provincial representatives to the DGM where associations (basic and IP or pro IP organization) are invited to submit projects. These representatives where present at all the last workshops on ER-Program and FIP project in Bandundu and Inongo. One have to understand that pygmies are most of them not with an attitude of submission to the bantus, on the contrary, in the Maï Ndombe they are really wanting to defend their rights. But, for the bantus as well as for the pygmies, there is a great need of further inputs of the projects to enhance the local capacities for natural

Document about DGM to be added in dropbox Annex to the Piredd Maï Ndombe to be added in the drop box. it has been translated in English.



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resources management (for IP as well). This is the reason why in the villages where IP are living (generally speaking in slightly separated quarters) IP’s CLDC (Comités Locaux pour le Développement et la Conservation) will be proposed distinctly to the communities. The two CLDC will elaborate together the Resource Management Plans and share the responsibilities on their implementation.



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Ind 26.1 An assessment of existing FGRM, including any applicable customary FGRMs, is conducted and is made public. The FGRM applicable to the ER Program demonstrates the following: i) Legitimacy, accessibility, predictability, fairness, rights compatibility, transparency, and capability to address a range of grievances, including those related to benefit-sharing arrangements for the ER Program; ii) Access to adequate expertise and resources for the operation of the FGRM

A framework for addressing grievances has been described and illustrated in Figure 8 and the section has clearly recognized that failure to comply with social and environmental standards is strongly linked to grievances and complaints. The document also states that communities and IPs will be informed of their rights and the set procedures for addressing complaints. The TAP recommends an independent body in which the government is represented but is not dominant or the principle player. For the TAP, the existence of such an independent entity, functioning at last for the first couple of years of ERPA implementation, is crucial for a successful FGRM.

The study to design into details the mechanism is starting this month and will deliver early 2016. However some principles have already been discussed and are described in the ERPD. The National Registry will have a window to manage and monitor complaints. The FGRM is described in the document or in the design of the project : the main role of the Concertation Comities (Cadres de Concertation, CARGS) organised at the level of the groupements, sectors and Territories, gathering farmers organisations, NGO –local and international-, agents of the technical services, paramount chiefs and elected authorities) will be double : 1) to elaborate the Natural Resources Management Plans, above the ones elaborated by the CLDC and 2) to control the execution of these plans and the contracts signed between the project and the CLDC, and Decentralised Territorial Entities. These Cadres de Concertation will be funded by the program, starting with the FIP’s one. They will have to report to the project and its Comité de Pilotage every illegal behaviour in the use of the natural resources (for instance) and any ill behaviour as far as contracts between communities and LIA (local implementing agencies). Through the Registre of the REDD and its internet site, they will be able to inform at a large scale any mismanagement. It is an enormous effort of organisation for the Maï Ndombe and it should be a very bad idea to double this permanent local system of consultation and observation by another system. However we recognize the need to reinforce this system with 1 or several Ombudsmen in charge of conducting mediation phase, preventing conflict and verifying/reporting about the proper functioning of the GRM system described above. These ombudsmen could be for instance contracted by the RRN (Natural Resources Network) which has representatives in the Mai Ndombe Province (local Ngo). The choice of the ombudsmen’s contracting institution has to be made so that it is not itself judge and party.

Complement ERPD section with a role and functions of Ombudsman to strenghten the FRGM

The FGRM procedures described raises a general problem with legality of the proposed procedure. The four steps proposed for the treatment of complaints seem not complying with the general principles of law, e.g. in criminal/penal law the sanctions should be based on legal provisions. Also, the boundaries of the civil society’s power in the monitoring and control of the implementation of decisions/sanctions should clearly indicated, as civil society don’t have the power to control judges in States where the rule of law applies. The TAP

The first element of our answer concerns the opposability of territorial plans for management of natural resource. If, as we hope and is in the program of the FIP, a provincial edit validate the plans and decides that the dispositions of the plan are opposable to anyone (tiers) it will be of great help for the communities and all concerned institutions to ask for the cancellation of any measure not accorded to the plans. For instance the cutting rights given to anyone on any protected forest (protected so as said in the plans).



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therefore suggests reviewing the proposed procedure bearing the above comment in mind.

The procedure to cancel or to forbid these bad practices are to be addressed definitely to the administrative and judiciary institutions that are habilitated to receive and treat the cases. The same for plaints on any mismanagement of the contracts obliging as well the project itself and the local communities or anyone else (administrations etc.). The cases being collected by the CLDS and CARG (which are composed of a mixture of public and civil agents) or emitted by any civil institution or individual are treated at three levels :

1) a level of mediation and decision which is internal to the implementing scheme, including the CLDC, the CARGs, the administration, the civil society and at least, the provincial Steering Comity, headed by the governor of the province. Some of them have administrative rights and obligations to deal with the cases.

2) an external mediation, through the ombudsman. Any one from the implementing scheme can call for the ombudsman help. The ombudsman is a mediator. As so he can help the parties to get to a consensus.

3) if not, if there is no consensus or if it is not implemented, a decision is asked to the judge.

The civil society, in the scheme that we have proposed is in no case in position to impose a decision which is relevant to the judge, or the administrator. Civil Society can observe, denounce, and possibly goes to court. But the judge decides. The civil society, in the scheme that we have proposed is in no case in

position to impose a decision which is relevant to the judge, or the

administrator. Civil Society can observe, denounce, and possibly goes to

court. But the judge decides, or the administrator. It is also and of course

true for the financial execution of the contract between the project and the

parties. For instance as far as ESP are concerned. If there is a different on

the payment level due to a contractor, it has to be first discussed in a

mediation process and second decided by the judge.



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Ind 26.2 The description of FGRM procedures, included in the Benefit-Sharing Plan and/or relevant Safeguards Plans, specifies the process to be followed to receive, screen, address, monitor, and report feedback on, grievances or concerns submitted by affected stakeholders. As relevant, the Benefit-Sharing Plan and/or relevant Safeguards Plans and/or ER Program Document describe the relationship among FGRM(s) at the local, ER Program, and national levels

N While what has been provided is clear and recognizes the need for feedback and even requires complaints and grievances to be recorded and tracked in a central registry, what is still missing are early indications of emerging or potential complaints that the proposed programme components is facing or will most likely face. Also there is a need to further explain the FGRM procedures as they relate to the benefit sharing plan and the feedback mechanisms to them as well as the grievances and complaint arrangements.

Ind 27.1 The ER Program identifies the key drivers of deforestation and degradation, and potentially opportunities for forest enhancement

Y In respect to production forest management, the ER Program focuses on “Reduced impact logging”. This is only a part of a wider SFM approach within a forest management unit. Guidelines, like the newly developed ITTO Guidelines for sustainable forest management in tropical natural forest” allow looking at wider scale of ER reduction potentials in production forests. Also, certified forest management, as implemented by some major timber companies in the Congo Republic and Gabon in particular offer also such potential. The TAP is questioning why FS1 focuses in the limited carbon assessment for RIL and not SMF (particularly considering that the ER Program aims at piloting ER activities)

Regarding forest management, The ER Program focus not only on RIL but also in Forest law enforcement, establishment of pilot community forest, reinforcement of protected area management and refforestation. In our understanding, all this activities are part of a global SFM approach. Reduced impact logging (FS1) is one of the activitieswith Forest companies but other activities will also be implemented in close collaboration with them as conservation concession (or extension of conservation area within the concession) and also support in reducing and controlling artisanal logging. Certification is a target of this ER-Program. One of the objectives is to use ER revenues to incentivize forest companies to move quickly toward certification. (the most important company in the area, SODEFOR, is already working on FSC certification with the support of WWF)

Complement the vision of the forest pillar and explaining how the program will support forest companies to move toward certified forest management.



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Ind 27.2 The ER Program identifies currently planned ER Program Measures and how they address the key drivers identified in Indicator 27.1, and the entities that would undertake them

N As underlined under a different Indicator, the question of local institutions (deconcentrated forest services; district level, community level, local leaders remains essential for conducting an ER program in the field. This part needs more consideration and thus should be more prominently presented in chapter 6.1.

Section 6.1 need to be updated in order to provide more information on local institutions

the activity FH2 that aims at supporting logging companies in adopting and complying with SFM rules does not provide convincing incentives that are likely to enable the ownership of SFM and internalization of SFM competence within the companies; it is generally known that SFM practices are more costly than conventional logging. The TAP advises to further strengthen this aspect in FH2.

One of the incentives for forest companies to adopt and comply with DRC forest management requirements is the perspective to have their "entry" in the carbon regime framework and access to ER revenues if they implement mitigation measures. All the incentives theory of the program relative to forest companies is based on the principle of the carrot and the stick. We offer the opportunity for forest companies to be compensated for their effort in reduced impact logging or extending conservation area but this opportunity is limited to concession which are already advanced in their forest management process. In parallel, forest control by the state will be reinforced and sanction will be apply for concession which are not progressing toward legal requirements. Transparency and monitoring will be the key of this strategy to bring the forest sector on track to Sustainable Forest Management. Regarding FH2 more specifically, this activity is to support forest companies which demonstrate their interest to comply with forest management DRC requirements but which need some technical/financial support to do so. To strengthen internalization of SFM competence within the companies, we propose to complement the FH2 activities with targeted support to their forest planning unit.

As for activity FH3 regarding the development of community forestry, the option of regrouping contiguous community forests in one bigger concession would imply putting in place stronger and effective institutions discussed below.

These institutions could be the groupements (under the ETD, elected territorial entities) or the ETD itself, as already foreseen by the arrêté 49 about community forests.



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The design of the participatory process for land-use planning includes key interesting steps that might lead to secured investment in the ERP, these are: sensitization/FPIC, establishment of local development committees (CLD), participatory mapping and designing of sustainable development plans (PDD). However, the TAP observes that one of the enabling conditions for such land-use planning is the coherent and harmonized land registry (see our comment under Ind. 28.1). We also recognize that participatory mapping is an effective tool for land-use planning at local level, but we are of the opinion that functional standards agreed among stakeholders in DRC are still missing and would be useful to minimize conflicts and contestation of outcomes (community maps).

Workshop to be planned to set standards The first condition for land use planning IS NOT the land registry. The first step is to decide on which basic institution this land registry will be done and with which customary authority, with which associative interlocutor. We have, after many consultations (may be fifty, in all the sectors of the province, involving hundreds of persons and tenths of customary authorities) understood that the level of land owned by the traditional clans is the right one to speak about land use and land ownership and security. Sometimes it is 1, sometimes 4 villages. CLD will be established at this level. and the mapping will be done afterwards (and not before), because land registry and land use planning cannot be done without the right and reinforced institutions and the right customary chiefs to speak with and these plans and rights being registered by them and to their benefit. And this process of mapping and registering is a very essential act to reinforce these two institutions. And, to register the rights as well as the plans, the project will have to reinforce the Mapping official Services (Affaires Foncières, Cadastre) and to try to get an edit about opposability of the Plans.



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The ERPD presents a complex organogram of multilevel institutions and entities (Figure 4), which seems not easy to follow. At the bottom level, linkages between ERP entity with the supporting technical partners and state agencies are clearly shown, as well as with the agents that have the direct responsibility to reduce emissions and increase uptake (companies, cooperatives, conservation concessions, forest concessions, sustainable development committees (CLD), farmers’ organizations, etc.). Responsibilities pertaining to ER activities and monitoring performance indicators are also emphasized. The ERPD states that CLDs (for local communities and Indigenous people) have been created and representatives have been appointed in 19 sectors and 8 territories. The TAP observes that the connection of the CLDs with the whole group and various social categories and gender is not established; the process for putting the CLDs in place is not described, thus the legitimacy of such entities are still to be justified.

There is a confusion here between CLDs and representatives of 19 sectors. Current status of number of CLDs in the province? (Marc) Representatives of the 19 sectors are only a network of local leader and recognized customary chiefs in order to start a consultative process and a link with reality on the ground during the design phase. Connection with CLD and the whole group will be mainly the contracts that they will have with implementing agency or agreement with concessionnaires. They will be also involved in all steps of the program strategy from participatory mapping to monitoring and evaluation. IP will have their own CLD (Marc?) Cette confusion est malsaine et je l’ai déjà dit que vous devez absolument passer cela à la trappe (vos 19 représentants etc.). A process of CLD’s creation has been initiated in 2011 by the PAB, a food security project of the European Union that was operating in the Plateau and 2 territories of the Maï Ndombe districts. But this project stopped one year after having created CLD in every villages. So, these CLDs are very weak and one can say that the work has to be started again. WWF has built about twenty CLDC during these last 4 years and they are operational and active. The CLDC created to manage the “cahiers des charges” are under the same organisational rationale. The CLD, under the understanding of the Ministry rural development are inclusive, it means that all the village’s adult members are asked to participate to the general assemblies and to elect the bureaux with a full election power. But the legitimacy of such an inclusive institution is very often dependant of the activities they are really implementing for the community. Managing natural resources could be an opportunity for communities set up permanent institutions like the CLDC, capable to work closely with the customary chiefs in the sense of common interest. CDLC will prove themselves their legitimacy. But they can be helped to do it, if they are fully considered by the upper levels institutions as the inevitable basic partners.

Précision fonctionnement CLD: La voie actuelle de reconnaissance des droits coutumiers risquant de renforcer le pouvoir coutumier, l'économie institutionnelle des CLD est d'encadrer ce pouvoir dans l'exercice de régulation de l'accès aux ressources du terroir, de le "responsabiliser" dans cette gestion en l'inscrivant dans un système inclusif et transparent de planification des besoins et la rendant moins discrétionnaire (reddition des comptes). Le décret fixant les modalités de création des CFCL répond à la même logique. Les CLD sont des ASBL sous le régime de la loi 004 de 2001. Dans le modèle de statut/règlement intérieur [fixé par WWF ou Min Dev Rural?], en sont membres des organisations de base, des regroupements socio-culturels et des individus. Il comprend 3 organes : AG (annuelle) des membres qui valide le plan de développement local (quorum 2/3), nomme et révoque le Pdt du CA et le Coordo du CG; CA (dont commissaire



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aux compte effectuant 2 missions de contrôle par an) présidé par représentant nominé des ayants-droits (2 ans renouvelable une fois, non apparenté au coordo du CG, révocable à majorité des 2/3) avec rapporteur er conseillers ; CG (2 ans renouvelable une fois) avec conseillers spécifiques sur développement, conservation, genre & minorités, double signature trésorier et coordo sur les décaissements, ressources (cotisations, dons, autofinancement, fonds).

Moreover, the concern of TAP about the legitimacy of current local institutions is further emphasized with mode of designation of village chiefs (appointed by the administration, p.18). The TAP contends that the question of legitimacy is important and should be addressed adequately as it will have implication for the effectiveness and sustainability of the institutions in the medium and long terms. It might also be linked to the effectiveness of actions to be carried out within the ERP.

Village chiefs are not designated by the administration. they are basically designated by the customary system. Usually (and it is more less the same the majority of tribes in Congo, the chiefs alternate from one lineage to another one belonging to the same chief’s clans. the designation of the new chief depends on somehow “mystic” processes but indeed controlled by the elders of the chief’s clans. At the level of the “groupement” (from 20 to 50 villages, and there are from 1 to 10 groupements in an ETD), the chiefs are integrated to the administration, but not losing their traditional role and mystical power. The chiefs are member of the CLDC. they have a privileged role in the CLDC. there are discussions about their being president of these DLDC. the legitimacy of these institutions to be mature will have to be tested by their



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results. But clearly the chiefs have to sign the contracts and to engage their signatures. Very often, chiefs are not really active, followed and trustable. this is the raison d’être of the CLDC : not to enter in conflict with the chiefs, but to become in the village a pole of orientation, of balance to negotiate consensus between opposite interests.

A key question thus is: how does the ERP make sure that community’s bodies and entities are effective and sustainable and that they are mature enough at the time of signing contracts? Carefully consider this issue in the risk assessment.

The condition for the CLD to be effective and sustainable is to maitain an activity and a role to them in the implementation. In the current strategy; their role to lead the participatory mapping, to organize the negociation of the contract, to monitor the contract terms. Lack of maturity of community’s bodies (beginning with the chiefs) is a challenge for villages. the risk is to be managed in the contracts with the communities : monitoring and withdrawal possibility is one of the answer, as well as training, training and visit, transparency in the checking of activities and problems.

The TAP suggests, in order enabling the consistency and coherence within the institutional architecture, to use the model of contract as the starting point for the designing. Since the whole idea is to build a regime of contract law related to carbon, the ERPA model should be placed at the centre and the subsequent developments should derive from it. In this approach, any entity in the architecture will be defined and justified by the linkage with the model of carbon contract.

OK to review the ERPD and include more clarity on the regime of contract law related to carbon. The model of contract will be definitely applied to the relations with all individuals and institutions involved in this projets. for instance, the relationship with the technical services will be managed by contracts. Everything will be managed by contracts and, as far as it will be possible, by carbon contracts. It is perfectly possible for instance to link the contracts with the administration first to regular or investment payments and second to carbon results based contracts.



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Ind 28.1 The ER Program reviews the assessment of land and resource tenure regimes carried out during the readiness phase at the national level (i.e., SESA) and, if necessary, supplements this assessment by undertaking an additional assessment of any issues related to land and resource tenure regimes in the Accounting Area that are critical to the successful implementation of the ER Program, including: I. The range of land and resource tenure rights (including legal and customary rights of use, access, management, ownership, exclusion, etc.) and categories of rights-holders present in the Accounting Area (including Indigenous Peoples

N • The free prior informed consent/consultation (FPIC) is part of the program and it is said that community have the right to withdraw, but there is no development on ‘no’ scenario. Such hypothesis should be clearly spelled out and its implications in terms of the focus of the programme.

The communities will have the right not to create a CLDC, not to elaborate a Management Plan (PGRN). If so, they will nevertheless beneficiate (if they are interested in) from the activities of the project concerning training in new agricultural practices and inputs such as improved varieties (cassava, maize, perennial crops…). If they have decided to create a CLDC, make a PGRN, they can perfectly decide not to sign any contract of implementation with the project. Should they sign such contracts and decide to withdraw of them: 1) the investments they would have got under these contracts of course will not be asked for any reimbursement ; 2) the PSE (payments to the results) of course will be cut, and not asked for re imbursement of previous payments. Of course this will have an impact on the focus of the project. But it is impossible to anticipate. We have consulted a lot on these contracts, even in pygmies villages. People are eager to try it. But it is clear that results could be not at the rendez vous, notably as far as mises en defens are concerned. In that case the project will have to adapt its strategy. But these mises en defens under payments to the results have been experimented in different places in Bas Congo and it works.

Sub-contracts with local and indigenous communities will follow the principles of consultation and negotiation procedures for the ‘cahiers de charge’ with logging companies which are presented as closer to FPIC: Does this proceed from a consensus with the concerned communities? The TAP would like to see more evidences here

There are very significant differences between the “cahier des charges” and the contracts for implementing the Plans de Gestion des Ressources Naturelles we are speaking about. Cahier des Charges are compensatory investments paid to communities because of forest exploitation by Companies. There is no work done on the natural resources exploitation by the communities themselves, and about their development prospective in their own living land. There is a real demand of the communities, confirmed by the many consultations we have done in tens of villages, and at the level of the cities, to endeavor this prospective, because they are very conscious of the drastic threats against their present ways of exploiting these resources. We have discussed the principle of contracting with them for improving their practices, and they agree with it, knowing that they will benefit from a lot of investments under these contracts.



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and other relevant communities); II. The legal status of such rights, and any significant ambiguities or gaps in the applicable legal framework, including as pertains to the

• Costs for consultation/information/grievance and feedback mechanism represent 2% of the financial plan (5M$/5 years). May be more development on the needs ahead might justify such a figure. Isn’t there an underestimation of the needs ahead?

the process of the project is entirely base on permanent consultation with the beneficiaries through the CLDC, the elaboration of the PGRN, the CARgs, the Comité de Pilotage territoriaux et provincial. It is the heart of the project. It will function as a permanent information sharing and feed back mechanism. This costs are fully integrated in the budget of the enabling activites (PIREDD Plateau and Mai-Ndombe). The additional costs presented here and corresponding to 2% of the total financial plan is additional budget to support the consultation and feedback mechanism at the program level



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rights under customary law; III. Areas within the Accounting Area that are subject to significant conflicts or disputes related to contested or competing claims or rights, and if critical to the successful implementation of the ER Program, how such conflicts or disputes have been or are proposed to be addressed; and IV. Any potential impacts of the ER Program on existing land and resource tenure in the Accounting Area. V. The ER Program demonstrates that the additional assessment has been conducted in a consultative, transparent and participatory manner, reflecting inputs from relevant stakeholders VI. On the aspects of community forestry

A comprehensive assessment on land and resources tenure is presented in the ERPD; more information on long-term legally secured arrangements in respect to land tenure should be given however.

- the long-term legally secured arrangement are covered by what is called a concession by the land tenure low. There are two types of rural concessions (not speaking about the forest or conservative concessions covered by the Code Forestier and its application decrees). The two are emphytheotic but the one accorded to strangers is of 25 years renewable and the one accorded to local people is perpetual. - The state can get back these concessions when not “mises en valeur”. - The owner of the concession can do what he wants on the concession. He can plant, create a farm etc. - The procedure for getting a concession need a vacances de terre enquiry (une enquête de vacances de terre meaning the checking that the land is “vacant”). The state gets some money to give the concession, under a barême, but the rates are very low. the true price of the land is negotiated during the “enquête de vacances de terre”, it is at this level that a true land market does exist. No signature on the enquête de vacance de terre, no deal. the procedure of the enquête de vacances de terre is well defined by the law. All the “having rights” (ayant droits) are supposed to be consulted. In the facts, traditionnel chiefs are the ones who sign. - Whatever is the bargain during the enquête de vacances de terre negotiation, there is, even for a long term concession (as well for short terms concessions) redevances to be paid separately and regularly to the traditional chief. One has not to think that getting a “permanent” right through an official title he will not have to continue giving something substantial to the chief. and this something will increase with the production level of the farm : the more you get, the more you give. And this creates a constant trouble indeed between chiefs and owners, especially when a chief is dead, during the transition period, during witch two or more lineages are asking for the something. BUT, this has to be managed and normally reasonable. - Is it clear. Please ask for more details if required.



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will they be given exclusive communal tenure over a designated community forest area and will the community forests be legally gazette? VII. It would also be useful to clearly state what tenure arrangements will be associated with each programme, be it charcoal production, plantation agriculture, forest plantations etc. This is important since 56% of the forest cover in Mai Ndombe is governed by Customary Laws and Traditions, making land acquisition an important safeguard issue. VIII. Can it also be clarified whether the planned plantations will be on communal land to be leased or co-owned and co-managed with investors?

1) There is no presentation of the conflicting land registries in DRC (cadastre foncier, cadastre minier, cadastre agricole, cadastre forestier), the reality of this in the program area and the way the key reforms announced address them.

- All these registries are giving rights over the same lands and this is the problem : how to manage the coexistence of rights on the same land. If people are reasonable, things are managed. If not conflicts can occur. - One has first to consider that there is no cadastre agricole. It has to be built and this program will help to built it by equipping the Services des Affaires Foncières (Land Tenure Bureau) with the equipment required to fix by GPS the limit of the farms including the great farms: for instance the limits of the Sogenac Ranch, in Mushie and Bolobo territories that are overlapping the limits of the Siforco forest concessions. Also, the program will help to fix the limits of the “livestock farms”. The livestock farm is the true way, very poorly covered by the law, by which people, often urban citizens, are getting lands in the countryside, for five year renewable leases. These leases are occupying a great part of the savannas and it will be a great challenge for the project to help clarify theses rights and also involve the revision of the limits of the farms, very often too big for the livestock they are supporting, or to help their owners to invest on them and to control the fires (they burn for grazing purposes, great threat for the forest galleries when the dry season is too long ). - the main thing we are waiting from the ongoing reforms on land tenure and land planning is precisely what will be experiment at large scale by the project : the link between land rights attribution and the Plans de Gestion des Ressources Naturelles. We hope that through the project the different rights attribution processes will be obliged to depend on the Plans : If the plan decides not to attributes farms under the limit of 3 km around the villages (to maintain for instance food security farming notably for the vulnerables) the Cadastre will NOT attribute farms in this surrounding. And the same, if the Plan excludes to exploit a very old and rich in biodiversity forest, the Gouvernor will not authorize “permis de coupe” in these forests. As well, in the seasonally overflooded forests, if the plan forbid making charcoal, the Agent of the Environment Ministry will not authorize to cut theses forests for charcoal making, due to their role in the fish reproduction.



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2) The ERPD indicate the absence of segregation of IP (Pygmies communities) regarding land and resources tenure. We need more development and evidence on this.

- Our surveys and consultations with the pygmies in their villages as well as with their representatives in the four territories of the Maï Ndombe district have established as a working hypothesis (to be confirmed by local full surveys and adaptive measures) that in the concerned territories the pressure on land was high only around the cities, when in the villages it was not so high generally speaking so that everyone could find farming land at less than 3 km from the villages, less than one hour of walk. - So in the villages, pygmies are not impeached to get land. Should they be so, naturally the project will have to negotiate land for the IP during the phase of the land planning. We think that it could be the case in the Penzwa sector. And it could be indeed an opportunity to fix the rights of the IP in such lands, eventually to examine with them how, within the surroundings, to acquire such secured rights for them. - Another point will have to be clarified during the planning process and their contracts will be the permanent rights for the IP on lands concerned by perennial crops. This could be a challenge in certain cases not only for the IP but also for allochthone populations. - We consider that the immediate surrounding of the cities, land tenure access is a problem for everyone, and not more for the IP than for the bantus: everything is monetarized and who wants land has to pay for it.

3) The role of ‘chefs de terre’ in the distribution of land is not always appreciated as sometimes they follow their egoistic interest not that of their community: it would be interesting to present how the ongoing reforms address this and the strategy the program will adopt given the implications with benefit sharing.

- the problem now is that the last laws (one can say all the laws during these last fifteen years includind the Code forestier) have stone by stone rebuilt a juridical context of more rights for the chefs de terre, with the true risk of patrimonial appropriation of the land, instead of a true “community” empowerment of the communities knowing that this concept is not legally based and recovers in the villages very complex realities (presence of the IP, the allochthones, conflictual lineages and clans…). - so, due to the law evolution, the Congo does not seem in a trend to manage the tendancy of the chiefs to “follow their egoistic interest”. The new reforms, if ever, will not easily inverse this tendency. This is the reason why our project will try to create conditions in the villages to manage by themselves the contradictions, through the CLDC. We Know well that it will not be always easy, and this will be the real threat that the villages do not play the game and refuse as well the plans as the contracts with the projects.



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4) Migrants access to land for agriculture through leasing agreements with the ‘chefs de terre’. Though their number is not important at this point, as stated in the document, one can anticipate that opportunities in the area of the project are likely to bring more people and raise the problem of their precarious rights to land. Studies have shown how dynamic is this category of the population and one can anticipate more impact from them. It would be interesting to present the program’s vision on both their rights and potential impact.

- Migrants are not so few, as the question (or the present text of the erpd seems to say). First of all there is an important Basakata migration from the Kutu territory to many places : Mushie for instance, is said a baboma city when indeed it is a basakata one in terms of population and strong conflicts are opposing communities there. One can says that most of the migration is, mostly Basakata, an internal one (Kutu, their territory, is in the Province). But new migrations are occurring from the rest of the Bandundu. For instance people of the Masi Manimba are the true invaders of the Kwamuth forests, People from Bagata Bulungu and Idiofa (Yanzi, Bambala…) are colonizing the right bank of the Kasaï…People from everywhere are coming along the Lukeny to make charcoal… - We have only on answer to oppose to this reality, indeed associated to a great dynamism and capacity of working more, exploiting more the natural resources by the way (for instance, basakata destroying systematically the halieutic resources) : the CLDC, the dialogue, the planning, the negotiation of consensus and new rights and rules.



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Ind 28.2 The ER Program explains how the relevant issues identified in the above assessment have been or will be taken into consideration in the design and implementation of the ER Program, and in the relevant Safeguards Plan(s). If the ER Program involves activities that are contingent on establishing legally recognized rights to lands and territories that Indigenous Peoples have traditionally owned or customarily used or occupied, the relevant Safeguards Plan sets forth an action plan for the legal recognition of such ownership, occupation, or usage. Beyond what is required for the successful implementation of the ER Program, the ER Program is encouraged to show how it can contribute to progress towards clarifying land and resource tenure in the

N An analysis of laws, statutes and other regulatory frameworks in relation planned ER program measures is presented in Table 11 which shows 1) program measures, 2) relevant legal provisions, 3) comments on the positions and 4) identification of gaps. Though such a presentation appears to be concise and summarizes key legal gaps related to each measure, the validity of this presentation depends on an overall and rigorous legal analysis which is actually missing in the ERPD. The TAP suggests starting with a robust legal analysis before summarizing the outcomes (gaps, relevant actions, etc.) in a table. The following issues should be kept in mind while conducting this exercise: 1) there should be a clear distinction between legal documents and technical documents (there is a confusion between both in Table 11); 2) Such an analysis should be based on legal documents and their titles should be entirely presented; 3) the legal framework relevant to ER program measures includes international laws applicable to DRC and national and provincial legislations (it is not clear from Table 11 how the various levels of the legal framework are consistently analyzed); 4) Conducting a legal analysis in the current DRC context proves to be difficult because it is not easy to gather all relevant legal instruments that would enable a complete and valid assessment. In this context, any legal analysis is running the risk of being contradicted when new provisions are found. It is therefore advisable to mention some precautions while presenting any analysis of the law in DRC; 5) Table 13 mentions a comment related the high risk of conflict among stakeholders in the benefit sharing scheme and provides the following as a response: ‘the signature of sub-contracts within REDD+ benefit sharing plan will be based on the prior recognition of the rights on land and resources (concession’s contract, natural resources management plan, etc.)’. We observe that this assertion cannot be legally justified because rights related to concessions are rights on resources not rights on the land. So, There couldn’t be recognition of rights to land through a resources management plan.

Table 11 [10?] 1) Nouvelle colonne à prévoir. Distiction documents "légaux" et "techniques". Il y a dans le tableau une colonne "législation/réglementation" : "technique" = "réglementation" ou seulement guides opérationnels ? 2) Inclusion d'une colonne avec la référence complète des textes juridiques et autres normes 3) Rajout de colonnes avec inclusion des normes internationales et provinciales 4) Ajout d'un commentaire sur l'insécurité juridique lié au statut légal incertain, discutable ou contesté de certains textes Table 12 [13?] 5) La formule englobait les sous-contrats assis sur des titres fonciers utilisés par exemple pour du reboisement ou de l'agroforesterie qui sont des droits sur la terre et pas uniquement des droits sur les ressources comme le sont les contrats de concession forestière. Portée des droits pour la concession forestière des communautés locales à vérifier.



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Accounting Area, where relevant.

C 29 The ER Program provides a description of the benefit-sharing arrangements for the ER Program, including information specified in Indicator 30.1, to the extent known at the time

N • Section 15 combined with Annex 10 sets out a considerable analysis of benefit sharing and how it will be implemented conceptually. • Then ER-PD does not provide a detailed analysis of entitlements to benefits based on land tenure and carbon ownership in the program area. Explain and justify

Baser le droit au partage des revenus carbone sur le régime foncier et la propriété du carbone n'est pas apparu comme un principe pertinent (i) pour ne pas inciter les acteurs à entrer dans une logique de rente (rémunération sur base de droits acquis) et (ii) parce que pour les communautés locales dont les droits demeurent juridiquement indéterminés les bénéfices du programme se matérialiseront (a) en amont de la mesure de la performance carbone et indépendamment de celle-ci dans le cadre de PSE dont le financement est sécurisé (la reconnaissance administrative du Plan Simple de Gestion du terroir constituera la base légale pour l'exclusion des tiers) et (b) en aval dans le cadre de sous-contrats de partage des bénéfices pour les communautés riveraines des concessions forestières ou foncière qui constituent le cadre juridique des activités bénéficiant d'une rémunération à la performance carbone (ces transferts ne sont pas dans la règlementation du cahier des charges des concessionnaires forestiers explicitement liés à la perte de droits d'usages ni proportionnels à ceux-ci).

voir note explicative



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• From Indicator 30.1 there needs to be more information how the benefit sharing arrangements will be monitored;

Most of the benefit arrangements will be contractual and linked directly or indirectly with the carbon performance. The Monitoring report of the program will be the key piece to monitor the contracts and benefit-sharing agreements. The Monitoring report will include an exhaustive list of all beneficiairies engaged in performance-based contract, their respective performance and the order of payments/order of transfert of Emission Reduction. This will allow high transparency and verification in the benefit sharing process.

• There also needs to be more taking into account the importance of managing expectations among potential Beneficiaries as the bespoke project by project arrangements do need to be explained and justified as WWC for example has a better arrangements than many others.

Project by project arrangements are explained in Annex 10. The Program design team will work on the coming month to draft sub-contract between the program and the project. This sub-contract will be an annex of the ERPA as described in the Term and Conditions of the ERPA. Regarding WWC, we do not think that WWC has better arrangements than many others. WWC accepted to change his project REL under VCS and align with the one of the program. This new REL still need to be defined precisely. In compensation of this change that will be in anycase damageable for the WWC project and because the WWC project is already performing, the program proposed to WWC to garantee a certain share of the ERPA (subject to effective performance).

• Also there seems to be a wide range of approaches to how much revenue certain beneficiaries receive without sufficient explanation why

Ajouter une introduction qui expliquer les différentes approches Pour les concessionnaires forestiers comme pour les communautés locales, le partage des bénéfice se fonde sur une ACB (incluant une analyse de sensibilité) conduisant à identifier le coût d'opportunité au changement des pratiques. Mais le montant intégère aussi une prime incitative.* Il a été tenu compte du fait que les bénéfices revenant aux communautés locales dans le cadre du mécanisme de cahier des charge existant pour les concessions forestières d'exploitation ou dans le cas du projet ERA ne sont pas à proprement parler un partage des "bénéfices" mais un prélèvement sur la valeur des crédits commercialisés indépendant de la marge. >> Inclure les résultats des ACB disponible pour les PSE et les concessionnaires forestiers mais qu'elle n'a pas été réalisée par un tiers dans le cas de WWC. | Pour l'Etat, la Province et les PA (hors PSE et riverains concessions), le montant proposé a pour objectif de maintenir la capacité de réinvestissement du programme, de manière déconnectée d'une mesure de la performance de chacun de ces acteurs. La province bénéficiera indépendamment de la performance carbone d'une fraction des revenus liés à sa performance en matière de contrôle forestier. L'Etat touchera par ailleurs les revenus des crédits commercialisés directement par projets imbriqués.



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• Finally there could be some better explanation of how sections 4.4, 15 and annexure 10 work together

Identifier l'endroit où présenter cette articulation entre régimes d'accès, (pas le cadre juridique des activités en 4.5 ?), partage des bénéfices carbone, et proposition de plan de partage à partir d'hypothèses de partage des bénéfices. Proposition d'inclure une sous-section spécifique dans la section 4.4 explicitant l'indétermination des droits fonciers coutumiers (absence de texte d'application de la loi foncière) et ce que pourrait changer la mise en oeuvre de la règlementation instituant la foresterie communautaire sur tout ou partie des terroirs.

Ind 30.1 The Benefit-Sharing Plan is made publicly available prior to ERPA signature, at least as an advanced draft, and is disclosed in a form, manner and language understandable to the affected stakeholders for the ER Program12. The Benefit-Sharing Plan contains the following information (see MF)

N The TAP seeks clarification on the process of appointing representatives (‘traditional’ leaders, CLD representatives, etc.) and the role played by various sub-groups in such processes. Legitimacy of representatives and the type of connection with the whole group might have implication with the effectiveness of benefit sharing and sustainability of the institutions over time. It might also be linked to the effectiveness of actions to be carried out within the program. How does the ER program make sure that community’s bodies and entities are effective and sustainable and that they are mature enough at the time of signing contracts?

See above answers to indicator 27.2 (same comment and question)



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Ind 31.1 The Benefit-Sharing Plan is prepared as part of the consultative, transparent and participatory process for the ER Program, and reflects inputs by relevant stakeholders, including broad community support by affected Indigenous Peoples. The Benefit-Sharing Plan is designed to facilitate the delivery and sharing of Monetary and Non-Monetary Benefits that promote successful ER Program implementation. The Benefit-Sharing Plan is disclosed in a form, manner and language understandable to the affected stakeholders of the ER Program

N In respect to communicate benefit sharing mechanism, but also in general terms of communication and information sharing: The program proposes a communication system based on relays and community radios but nothing is said about the capacities of communities to deal with/absorb such new type of communication tools. Also, the impact, functionality and effectiveness of the coverage of the villages by relays and community radios are not sufficiently presented. The TAP seeks further clarification in this respect.

The communication system proposed based on relays and community radio is not really a new type of communication tool. Community radios have been used for a long time especially in the health sector. In term of coverage, each territory has already a radio so communication will cover the entire program area. CN-REDD already collected the list of all the community radios of the Mai-Ndombe and organized in last April a training about communication around REDD+. Early 2016, a new campaign of communication will start in parallel of the implementation to diffuse regular information about the program and good practices relative to forest.

Add in ERPD some precision about community radios and the full list of radios of the Mai-Ndombe



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Ind 33.1 The design and implementation of the Benefit-Sharing Plan comply with relevant applicable laws, including national laws and any legally binding national obligations under relevant international laws

N There are no national laws on benefit sharing and no explanation as to how the approach links to the UNFCCC Rules on REDD+. The benefit sharing arrangement raises some issues with regard to the supporting legal background of the propositions. The TAP would suggest a more strong legal review of this section. For instance: 1) The proposition to share part of the benefits between Indigenous people, the State and the Jurisdiction should comply with the norms on indigenous people. There should be a clear demonstration on this. 2) With regard to contractual arrangement, the ERPD states that the highest contractual level is that of the ‘arrêté d’homologation’ signed by the government to recognize the program entity. It is seems difficult to understand this because there are two parties in a contract and the relevant issue is not ‘who recognizes who’, but rather, what is the capacity of each party to engage in a contract and to able to respect its clauses. 3) As already suggested under indicator 27.2 the benefit sharing arrangements could also follow from or be built from the model of contract so as the keep the consistency and coherence of the whole system

1) In DRC there are currently no specific regulation about indigenous people. (A project of legal text is currently in review in the parliament) 2) We don't really understand this question. Please reformulate 3) Producing clear model of contract will be a priority for the first semester of 2016 in order to prepare the sub-agreements of the ERPA. However the Annex 10 of the ERPD already provide some features of the different sub-contract that will be signed with stakeholders.

Production of model of contract of sub-arrangements of the ERPA will be prepared in first semester of 2016



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Ind 34.2 Stakeholder engagement processes carried out for the ER Program design and for the readiness phase inform the identification of such priority Non-Carbon Benefits

N This is not explicit in the documents, but it seems implied in the design of improved agricultural production, community based forest management and commercial agricultural plantations (cocoa, coffee etc) and forests Questions and points of action: However, the stakeholder information sharing and consultation presented in 5.1 and 5.2 of the ERPD raises some issues that casts doubt of the ‘full, effective and on-going participation’ requested in the ERPD template. The process described seems more close to an expertise process (experts being at the centre) than a participatory process focused on relevant stakeholders. The TAP draws the attention on the following issues: 1) The terms used in this section (to consult, to inform, to extend/vulgarize, to participate) have precise meanings among the safeguards. Therefore, a clear definition of their use in the ERPD should be presented (with reference to standards) and the consistency with the methods used should be spelled out; 2) The ERPD contends that an important effort has been made to inform and consult stakeholders in Mai-Ndombe, but what is missing is a clear understanding of such consultation and information, its objectives and the outcomes; there should be a development on the quality of information and how this led to a good consultation of effective participation. 3) In Table 12 on the coming consultations and validation of the ERPD it is stated that comments for the final version will be collected. There is no development on how to deal with such comments. What if the comments from communities and stakeholders present views that are opposites of the ideas presented in the current ERPD? Would this imply a thorough reorientation and rewriting of the document? 4) What are the objectives of the big communication campaign through radio and relays in the program area, scheduled in at the end of 2015? Also, the TAP seeks further clarification on the capacities of communities to deal with/absorb new type of information brought by the ER program and the impact, functionality and effectiveness of the coverage of the villages by relays and

1) A clear definition of this terms will be added in the ERPD. The methods of consultations or information sharing will be added in the Annex 7 in the table describing all the consultative activities 2) The Annex 7 describe quite extensively the different steps of consultation/information sharing, their objectives and the different participants. A column will be added to precise the different information support that have been provided previously and during the consultation steps. 3) All the different consultation steps during the design phase have been done in order to reach a convergence of vision between the different stakeholders. The last consultative step in Inongo in October 2015 is the continuity of such process and the views and feedback of the stakeholders allow to refine details of the design and also precise principles that should lead the implementation. Beause the consultative process started earlier, there is no reason that further consultation provide a significant different vision which will require a reorientation of the document. 4) The big communication campaign, starting in 2016 will be there to accompany the starting of the implementation, to vulgarize the implementation features of the program, the activity that will be supported with the communities, to diffuse message relative to good practices as promotion of agroforestry, protection of savannah regarding burning, illegal logging community-control,... (precision about radio have been provided in comments relative to indicator 31.1) 5) a) CN-REDD is the entity responsible of the development of the ERPD and so responsible to take in account and integrate the comments received, b) The current draft will be made public early september and the validation workshop to be organized early 2016 will allow precisely to check with the stakeholders if they agree with the final design features and if they consider that their comments have been taken in account

Complement Annex 7 with (i) Methods of consultation/information sharing, (ii) information support that have been provided before and during each consultation steps (To assess the quality of information shared with stakeholders)



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community radios which are not sufficiently presented in the document; 5) Table 13 which presents a summary of the comments received so far does provide precisions on: a) who has integrated the comments received, b) whether those who provided the comments agree with the way they are integrated, their completeness, i.e. has a return to consulted people been organized?



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Ind 35.1 The ER Program proposes an approach utilizing methods available at the time to collect and provide information on priority Non-Carbon Benefits, including, e.g., possibly using proxy indicators. If relevant, this approach also may use information drawn from or contributed as an input to the SIS

N As already stated, income generation is what has been stated as a key non-carbon benefit, as is biodiversity. However more detail on socio-economic data such as potential employment figures, expected income growth, number of households that could directly benefit would be useful because the activities have been identified.

Marc Tout cela a été fait dans le projet Maï Ndombe. Il y a plusieurs tableaux qui donnent des réponses chiffrées à ces questions. il faut donc renvoyer à ce document dans la drop box, dans sa version anglaise.

With respect to biodiversity and what is known about the bio-physical characteristics of Mai Ndombe and Project Sites, some key bio-diversity indicators that will be tracked within the context of a Jurisdictional Level MRV is required.

Marc, WWF J’espère que WWF va donner une réponse à cette question pour laquelle je n’ai pas d’éléments chiffrés du tout. Mais je dirais ceci : La biodiversité, la conservation des espèces protégées, l’établissement de règles de comportement responsable vis-à-vis de la biodiversité devrait faire partie de la méthodologie des Plans de Gestion des Ressources Naturelles (et là il faut peut-être préciser les choses avec les anglais : il ne s’agit pas seulement de land use planning, mais bien de gestion des ressources naturelles). Comme indicateurs je dirais :

1) le niveau des prises de pêche se maintient ou augmente (il faut mettre en place un système de mesures mais il est gérable si on relance et étend la pêche responsable

2) grâce au respect des périodes d’ouverture de la chasse, les indicateurs de présence des principales espèces chassées s’améliorent (wwf, s’il peut quantifier cela).

There are also no other bio-physical indicators that have been suggested – a few proxy soil fertility indicators could be used since Agro-forestry and Improved Agriculture will be key activities in the ERPD.

Soil fertility in forest fields is not bad in the mai ndombe. the presence of chromolena odorata being of good help for it. Yields are good. In savannah, yields are poor and they will be significantly increased by agroforestery. We can accept these proxy indicators :

- yields increase by twenty percent in savannahs (cassava, peanuts and maize) due to improved varieties (we know them and can advance this percentage) ;

- yields are increased by thirty percent for the same reason in forest’s fields (effects of improved varieties is better in forest) ;

- yields are increased by 40 percent in agroforestry, compared to the yields in savannah (but indeed, an agroforestry field of first rotation is a forest field).



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Ind 36.1 The ER Program Entity demonstrates its authority to enter into an ERPA with the Carbon Fund prior to the start of ERPA negotiations, either through: i. Reference to an existing legal and regulatory framework stipulating such authority; and/or ii. In the form of a letter from the relevant overarching governmental authority (e.g., the presidency, chancellery, etc.) or from the relevant governmental body authorized to confirm such authority.

Under 17.1 of the ER-PD it provides that a Ministerial Decree has been passed [The Ministerial Declaration 004/CAB/MIN/ECN-T/012 of 15 February 2012] which authorizes the Province on Mai-Ndombe as the program implementing entity and transfers to it Emissions Reductions. The issue is that we have not seen the Decree and therefore need to obtain a copy and review it. It may in fact give this authority, but he ER-PD states that it “authorizes the Province on Mai-Ndombe as the program implementing entity and transfers to it Emissions Reductions.” We require confirmation that: • Emissions Reductions are defined at law and they can be transferred- (the ER-PD states that “There is currently no legislation or generally accepted regulation on the carbon rights or the ownership of carbon rights that entitles the entity which will be in charge of the program (Province de Maï-Ndombe, a private entity or PPP) to claim the ownership over the ERC (Emission Reduction credits) credits that will be assigned to the FCPF Carbon Fund in the context of the ERPA)- so if this is correct how can one transfer something where the ownership is unclear? It alos raises the question what under DRC is being transferred? a contractual right only? • that the State owns the Emissions Reductions and there are no other basis for other parties to claim them like community groups; and • that the Decree allows the province to enter into a contract with the World Bank- or that there is no other legal requirement to authorize this (so an explanation of how states under DRC law can enter into contracts with the world bank would assist). We need to know this is constitutionally and legally possible under the DRC law. So does the Decree expressly authorize the Province of Mai-Ndombe as the program implementing entity to transfer Emissions Reductions to an overseas body and sell them? If so then provided this is a valid Decree at law and it can be shown that the State had the ownership to transfer the ERs and that there is no prohibition on Mai-

Arrêté d'homologation de 2012 contesté par la société civile en cours de révision Ce texte est une affirmation implicite que les droits à générer / vendre des CRE (sur base de droits d'usage et de gestion exclusif sur…) Les contrats que le WWF a proposé aux CLD évoque le renoncement explicite à tout droit sur les crédits carbone. Il est arrêté que c'est la province qui sera le porteur de programme homologué ? Vérifier dispositions consitutionnelles et loi financière sur la capacité de la province à prendre des engagements internationaux et vendre des crédits Il n'existe pas de démembrement du domaine de l'Etat au profit des collectivités territoriales (forêts provinciales) mais les acteurs provinciaux sont amenés à jouer un rôle dans le classement ou la mise en concession des forêts au travers des conseils consultatifs des forêts*



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Ndombe then it may be valid. The issue has to be considered in this broader context because one cannot authorize something that of itself has no legal basis.



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Ind 36.2 The ER Program Entity demonstrates its ability to transfer to the Carbon Fund Title to ERs, while respecting the land and resource tenure rights of the potential rights-holders, including Indigenous Peoples (i.e., those holding legal and customary rights, as identified by the assessment conducted under Criterion 28), in the Accounting Area. The ability to transfer Title to ERs may be demonstrated through various means, including reference to existing legal and regulatory frameworks, sub-arrangements with potential land and resource tenure rights-holders (including those holding legal and customary rights, as identified by the assessments conducted under Criterion 28), and benefit-sharing arrangements under

The challenge however is that the ER-PD makes a number of broad and at times conflicting statements about how carbon ownership is determined. On the one hand it states (i) DRC’s constitution confers ownership of all natural resources above and below ground on the state and that furthermore Land Law No. 73-021 of 20 July 1973 stresses that all property of the state is exclusive, inalienable and imprescriptible; (ii) But it also states that there is currently no legislation or generally accepted regulation on the carbon rights or the ownership of carbon rights that entitles the entity which will be in charge of the program. (iii) elsewhere it states that The DRC government currently adjudicates carbon rights using similar legal provisions to those used for managing forest concessions. (iv) elsewhere it says table 23 "Like many countries, DRC’s constitution confers ownership of all natural resources above and below ground on the state (cp. Land Law No. 73-021 of 20 July 1973). This regulation does not explicitly refer to carbon rights, however as carbon rights qualify as natural resources, they are considered as property of the state.To ensure the establishment and adaptation of a robust legal and regulatory framework for REDD+, DRC, with support from CN REDD, developed an ambitious action plan (cp DRC R-Package, p19f) that covers, among others, land tenure, carbon rights, land-use planning and mainstreaming of REDD+ into the Forest Code. A framework law on the environment was adopted in 2013, and its implementing decrees are being prepared (Law on the Environment). However laws, policies or regulations establishing clear, uncontestable carbon rights have not yet been enacted." What is therefore required is: • a definitive legal analysis of the current presumptions and approaches to the ownership to ERs and how they are treated at law considering the intention to list and sell ERs; • how this relates to land tenure- on what lands can REDD+ be carried out and how is the right to undertake such activities granted? • what the suggested approach is to selling ERs while the

Le commentaire (et il semble l'ERPD lui-même, mais je n'ai pas le souvenir d'avoir écrit ça) repose sur l'affirmation que les le carbone présente les caractéristique requise pour être considéré comme une ressource naturelle incorporée au bois. Il est dit dans le texte que c'est une option qui serait recevable dans la doctrine juridicque congolaise. C'est ainsi une des hypothèses explorées dans l'étude préparatoire de 2003 qui présente l'avantage de conforter la présomption de l'Etat que les ressources naturelles lui appartienne et de ce fait les droits sur les crédits carbone générés en RDC. Sur cette base, les crédits issus de la déforestation évitée en périphérie des champs reviendraient directement aux villageois et ceux issus de la séquestration de arbres plantés à leur propriétaires conformément à l'article 7 (vérifier) du code forestier. Dans ce cas, il faudrait prévoir dans chaque contrat signé avec les communautés locales une clause de cession des droits carbone comme cela était envisagé dans les modèles de contrat soumis au WWF. Par ailleurs, la procédure d'homologation des projets REDD+ de l'arrêté de 2012 statue sur la propriété des crédits carbone reconnue par l'Etat au porteur de projet sans pour autant lier celle-ci sur une propriété du carbone (comme il est question de le faire).



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the Benefit-Sharing Plan

law is uncertain; • what the future approach will be.



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Note that it is necessary therefore to follow up on • Review Decree 004/CAB/MIN/ECN-T/012 of 15 February 2012 setting the homologation process of the REDD+ projects- need to understand the the full scope of the regulations for approval of REDD+ projects. • To what extent does the law actually establish a process to create ERs or will it rely on the VCS? • What will the legal basis be for and of ERs? Legal rights, property rights, securities? Will there be a law that actually creates a DRC ER that is then listed on the DRC registry as suggested? • Test the proposition that "DRC’s constitution confers ownership of all natural resources above and below ground on the state (cp. Land Law No. 73-021 of 20 July 1973). This regulation does not explicitly refer to carbon rights, however as carbon rights qualify as natural resources, they are considered as property of the state" and ensure that there are no indigenous or community rights that will overrule this. • How different areas of land are categorized and if rights to certain land once granted alters the constitutional position. ie where a lease has been granted over the areas subject to the REDD+ program what has that done to carbon rights or where they simply not allocated? • Track the ownership chain of any ERs generated by the projects and how they are then transferred to the Carbon Fund under the ERPA. • What is the land tenure arrangements for the REDD+ program lands and how does this affect ERs (see earlier discussion under land tenure) • Noting that The Land Law and the 2002 Forest Code both acknowledge the role of customary law in land allocation, particularly in rural areas what relevance does this have for carbon rights especially in relation to the REDD+ program lands Questions: • How will the early REDD+ projects be treated under the Verified Carbon Standard's JNR approach if adopted and how will any rights these projects hold be treated under an approach with the Carbon Fund? It appears from the

La Constitution de 2006 ne parle pas de la propriété sur le sol, le sous-sol, les eaux et les forêts, mais de souveraineté, concept fort différent (la France est souveraine de la même façon sur son territoire). Dans le même article 9, l'idée de domanialité (domaine de l'Etat) n'est cependant pas abandonnée sans qu'il soit défini et renvoyant au domaine de la loi, aujourd'hui celle de 73 pour le foncier et de 2002 pour les forêts. la Constitution de 2006 introduit l’idée d’appropriation coutumière des terres (article 34), se démarquant ainsi du simple droit de jouissance retenu par la loi foncière. L’article 34 indique en effet que « l’Etat garantit le droit à la propriété individuelle ou collective, acquis conformément à la loi ou à la coutume » et que « nul ne peut être privé de sa propriété que pour cause d’utilité publique et moyennant une juste et préalable indemnité [fixée par la loi] ». Il est attendu que la question soit discutée et clarifiée lors de la réforme annoncée de la loi foncière. Les terres relèvent du domaine de l'Etat (art. 53 de la loi foncière ), y compris cotumières (387) mais l'article 388 reconnait les droits coutumiers et prévoit qu'un texte règlementaire doit les "régler" (art. 389). Faute de texte d'application, ils restent indéterminés et les droits collectifs ne sont pas reconnus au profit de droits individualisés. La concession forestière des communautés locales est le moyen de sécuriser cette propriété collective.



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ER- PD these are to be grandfathered and provided with an option to participate in the FCPF However, what then happens of the program underperforms once a project has opted in? • Given early REDD+ projects have involved conversion of logging concessions into conservation concessions and ERs were as we understand granted to project developers: how does this align with the current approach with transferring ERs to the Carbon Fund or transitioning to the JNR approach.



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Criteria 37 and 38 (Registre)

As noted above this Registry is currently in design and will be operational early 2016. As the registry and VCS implementation develops it will be necessary to get confirmation that implementation is being undertaken as described. In the meantime it would be useful to be provided with any working documents, protocols or other design specifications of the registry and how it will interface with the national REDD+ program.

See above criteria 23 "Document will be share about overall design of the Registry and Standard Operation Procedure of some key functions. Draft of homologation decree will be shared when available (January)"

TAP review - Round 1 (3 November) Round 1 Response from ERP … · Key activities in table AS1,...

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