The legal issue at stake is important as law plays its own part in granting value to biodiversity. This supposes that legal practitioners pay attention to the speeches and analyses made by scientists and economists without law being designed as a mere “toolbox” intended to shape and implement decisions or orientations defined elsewhere. This article proposes to address the manner in which law should find its place in defining the “value” of biodiversity in all its complexity to better protect it. We will advocate for a true collaboration between biodiversity research workers whilst recalling the importance of legal discipline.

We will first propose take stock of the different assessments of biodiversity to outline the law’s originality and weaknesses in that field.

The economic assessment is mainly based on a utilitarian approach to nature and consists in assessing biodiversity by questioning the price agents would be ready to pay to preserve it. Such types of assessments must not conceal the fundamental part played by scientific assessment, as one only efficiently protects what is known. Assessing biodiversity means knowing what biodiversity covers. Indeed, several approaches may be used to define biodiversity: the specific approach; the genetical approach; the eco-systemic one. It is interesting to see to what extent the various disciplines succeed (or not) in translating the scientific complexity of biodiversity.

Law traditionally reveals certain weaknesses in the manner of comprehending biodiversity. By favoring qualifications leaning towards a specific protection of natural elements, law irons out interdependency and complexity within biodiversity. Furthermore, only a small part of biodiversity has a true status. Ordinary biodiversity is considered an element of private property of those who own or use territories, even though it appears as a major determinant of eco-systemic services. We will then review the weaknesses of this static and partial apprehension of biodiversity in terms of its assessment and its protection.

Secondly, it is proposed that we envisage the manner in which law could evolve and participate in protecting biodiversity by better approaching its assessment.

In listening to economists and scientists, the law would base itself on certain biodiversity assessment methods whilst affirming its own voice. With this, current compensation mechanisms of ecological loss have shown signs of evolution. Apart from the fact that European Union law provides a compensation scheme for this type of loss by taking into account the biodiversity ecological assessment by looking into the complexity and the entirety of nature, certain judges have accepted to compensate such loss by awarding damages meant to correspond to the biodiversity value. One may here wonder about the place the economical assessment should or should not occupy in setting a price on biodiversity in case of harm.

Finally, the intent of our contribution is to raise public awareness on the current and future place of law in terms of the various biodiversity assessment methods.

Despite having gained overwhelming attention and support, REDD has nevertheless suffered from controversies on various important issues, one of which is the issue of benefit sharing and the protection of indigenous people’s rights. Since most of indigenous people in Indonesia are also forest dependent people, concerns have been raised on the possibility that REDD activities will eventually disadvantage indigenous people and disregard their rights to forest resources.

This paper attempts to discuss how Indonesia’s policies on REDD have dealt with the issue of benefit sharing and the protection of indigenous people’s rights. To answer these questions, this paper will also analyze some proposals on the implementation of REDD, which are relevant to the issue of benefit sharing. In addition, the position of indigenous people in Indonesian agrarian law and their customary forest rights are of paramount importance to the discussions on benefit sharing. This paper will also discuss some comparison to past lessons learnt from implementation of the CDM, and how it can improve policies crucial to REDD implementation, such as with regard to bureaucratic barriers and public consultation practices.

The paper is structured as follows. After the introductory section, we will provide discussions on some proposals to implement REDD. These proposals are concerned with financial mechanisms, the scale of REDD activities, the determination of a baseline to account for REDD credits, the prevention of corrupt behavior likely to undermine the effectiveness of REDD activities, the lessons learnt from CDM practices, and the issue of benefit sharing. Section 2 will provide discussions on REDD pilot projects in Indonesia, and how Indonesian Government has responded to REDD initiatives. Section 3 will discuss the importance of incorporating indigenous people’s rights in REDD policies, and ensuring effective First Prior Informed Consent implementation. Section 4 deals specifically with the protection of indigenous people’s rights according to Indonesian law, in particular the Basic Agrarian Law and the Forestry Law. Conflicts and violation of indigenous people’s rights will also be discussed in this section. Section 5 will provide discussions on carbon credits, and how these credits could benefit indigenous people. Some concluding remarks will be given in Section 6.

The FAO (2010) defines deforestation as the conversion of forest to another land use or the long term reduction of three canopy cover below the minimum of 10% threshold. This definition also stipulates a minimum tree height of 5m and areas of 0.5ha and that agriculture must not be the dominant use. Reforestation and afforestation are known ways to curb deforestation. The Congo Basin countries- Cameroon, Gabon, the Democratic Republic of Congo (DRC), Congo , the Central African Republic and Equatorial Guinea (EG)–have small-scale subsistence farming, wood fuel, over logging of timber, transportation infrastructures, oil and mining extraction as driving factors of deforestation. Small-scale subsistence farming and over logging of timber are the main deforestation factors in Cameroon, the DRC, EG and Gabon. The Congo Basin countries are implementing the international REDD+ mechanism to avoid deforestation. Some REDD+ Projects have been launched and most of them are technically related to the measurement of the canopy cover and of the carbon stocks of the forest or of land-use influences in the forest. These projects are important for the implementation of -the REDD+ payment of ecosystem services (PES) scheme model in order to fund the projects on mitigating deforestation. This PES scheme will make payments at international/national levels (generated voluntary or compliance markets/national government or intermediaries) to the service providers (governments or sub national entities /sub national government or local landowners in developing countries) for an environmental service to deliver this service or measures likely to deliver this service. Two observations could be formulated. Projects on afforestation/reforestation are scarce even if the future REDD+ PES scheme will fund those projects. Projects on enforcement of the law or reducing logging are less concerned by the REDD+ mechanism in the Congo Basin. Two principles, the polluter pays principle and the provider gets principle, could be analyzed to reinforce the REDD+ mechanism at the regional and national levels. The polluter-pays principle is an environmental principle which makes the responsible of a polluting activity bears the costs of pollution. This principle could function through elimination of subsidies, pollution taxes, tradable pollution permits, products labeling, and performance and technology standards. Four Congo Basin Countries apply this principle in waste management and water pollution. Forest management is exempted. Environmental taxes could be efficient preventive measures to avoid deforestation by reducing over logging of timber. A constraint cost of pollution in a forestry legal framework and sustainable management planning could be an incentive for mitigating deforestation. Sustainable actions could be expressed through the provider gets principle. This principle functions as a PES scheme. The description of a desired environmental quality is needed in order to evaluate environmental objectives and pay the provider of these activities. This principle could play an important role by converting small-scale subsistence farming practices to activities of enhanced environmental quality and be implemented by subsidies.

The Congo Basin policy-makers, especially from countries concerned by small-scale subsistence farming and over logging of timber, could reduce their deforestation through the implementation of those principles in the forest sector. More REDD+ projects could be oriented to afforestation/reforestation and enforcement of measure or law on reducing farming and logging of timber. The Central Forest Commission Convergence Plan could facilitate this implementation at the regional scale.