BIO-CULTURAL COMMUNITY PROTOCOLS - Portal do Professor

PART II / CHAPTER 6
Similar to the ABS context, an informed and empowered
community is in a much better negotiating position than one
that is uninformed about its rights and opportunities. It is also
likely that a PES scheme built on a strong foundation such as
the one created through the BCP process would be sustainable
in the medium- or long-term, thus preventing high costs of
renegotiating previous deals.
5.4 Affirming Access and Land Rights
Many countries in the developing world are characterized
by legal plurality in determining who has access to or
ownership over land and associated natural resources.
These rights are granted under different legal systems that
are often a fusion of international, national and
customary law. They may be as diverse as the UN Declaration
on the Rights of Indigenous People 30
, formal land titles, rights
through use, ancestral rights, or membership in communityowned
or occupied land. 31
One of the key contributions of a BCP in the context of PES
schemes is the affirmation of ILCs’ existing rights to land or
land use by listing all relevant national and international
legal frameworks. When ILCs are in danger of being
marginalized by a PES scheme, BCPs can help them clarify
and assert their existing rights. Highlighting these rights
legally empowers communities to enter into such schemes
with confidence and understanding of their values and
priorities. Given the centrality of clear land rights to the
establishment of effective PES schemes, BCPs could provide
further clarity about the legal status of ILCs and their use
of land and natural resources.
5.5 Determining Types of Payment
In cases in which ILCs do not have clear access or rights to
land, official land tenure could be granted in exchange for
their agreement to engage in sustainable land use practices.
Kerr et al. describe an example in Indonesia in which
informal forest occupants that had previously engaged
BIO-CULTURAL COMMUNITY PROTOCOLS IN THE
CONTEXT OF PAYMENT FOR ECOSYSTEM SERVICES
in detrimental agriculture agreed to refrain from such
activities if they were given official land tenure and granted
access to associated government services. 32
Such non-monetary benefits are an example of the vast
array of options available for the type of payments under
PES schemes. Non-monetary benefits may be particularly
useful in local contexts in which certain service provisions
or the clarification of land tenure may be more important
than monetary income. While many factors will influence
the size and nature of payment possible, the visioning
component of BCPs can help in establishing what type of
payment would be most desired by ILCs.
5.6 Addressing Possible Secondary
Effects through a Bio-cultural Analysis
of Existing Use of Biological Resources
When entering into PES schemes, ILCs have to be aware of
possible secondary effects such as the socio-economic
impact of restricted future land use. While there is always a
risk of unanticipated consequences emerging from the
implementation of such schemes, the use of BCPs can
reduce some of the associated risks.
Part of the BCP process is a discussion about the nature of
the current resource use of all members of the community;
within a PES context, it will also include discussion about
how the conditions attached to a PES scheme will affect
such resource use. The designers of the PES scheme can then
use the BCP to ensure that community members will not be
adversely affected by the scheme and, in cases in which
local land use practices have to be changed or stopped,
to ensure that any negative consequences are mitigated
wherever possible. On top of that, highlighting the
communities’ bio-cultural values in this regard will further
prevent cultural conflict emerging from certain land
usage change.
30. Article 26 of the UN Declaration on the Rights of Indigenous People:
- Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.
Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other
traditional occupation or use, as well as those which they have otherwise acquired.
- States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions
and land tenure systems of the indigenous peoples concerned.”
31. Supra note 7.
32. TRIP Report: Property Rights, Environmental Services and Poverty in Indonesia, by John Kerr et al., 2004: . Footnote 5 (UNEP 2008) also mentions land and access rights
as a possible form of payment as part of a PES scheme.
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