Documentation:Open Case Studies/FRST522/Does the Forest Stewardship Council (FSC) certification system respect Indigenous Peoples' rights
A case study from the Mapuche in Chile.
The Mapuche are the largest First Nation living within the borders of the modern Chilean state. Approximately 1 of 10 Chilean citizens identifies themselves as Mapuche. Their traditional, ancestral and unceded territory, called "Wall Mapu" in their traditional language, Mapudungun, is situated in the southern parts of what is today Chile and Argentina (see image 1). On the Chilean side of the modern border, Mapuche territory extends over the regions of Bíobío, Los Ríos, Araucanía and Los Lagos. Over the past 200 years of Chilean history, the Mapuche Nation had to face several phases of dispossession. This, in connection with the transformation of the south into an epicentre of plantation forestry, caused severe conflicts between the government and mainly privately owned forestry companies vs. the Mapuche. With forest certification being an important economic amplifier for the forestry industry of the modern state Chile, the question has been raised whether the certification scheme of the Forest Stewardship Council (FSC) sufficiently respects Indigenous Peoples' rights. The following article will discuss the role of the FSC in this intense conflict over land rights.
History of land use in Chile
The territory of the Mapuche people inside the modern Chilean borders saw several phases of changing land-use patterns, which have been strongly connected to the losses and gains of rights over their territory.
Archaeological research indicates that the Mapuche had converted approximately 891,000 ha of forest cover into an agriculturally used landscape by the time the settlers arrived. This evidence of their use and care for their lands and resources provides an important piece of evidence for proving their customary rights over land in their traditional and ancestral territory.
Even though the settlers could not conquer the First Nation, the introduction of diseases lead to a significant decline in the Mapuche population. This lead to an advance of native forests into formerly used agricultural lands, causing a significant increase in forest cover for over 300 years until the beginning of the 19th century. After the Chilean war of independence between 1810 and 1826, the government created incentives for enhancing colonization of the south in order to consolidate their newly won sovereignty from Spain. In the beginning of this process, the newly proclaimed state of Chile recognized all lands south of the Bíobío River as territory of the Mapuche. This changed drastically in the second half of the 19th century, when military interventions directed at the Mapuche lead to dispossession of large shares of their traditional lands in the region of Araucanía. As a result of this violent colonization programme the Mapuche Nation was left with approximately 5% of their traditional lands. It has been estimated that over 13 mio ha of forest were cleared for the establishment of agricultural lands, which turned the south into Chile's bread basket Due to significant environmental problems from soil erosion caused by the intensive agricultural land use, the government started to put subsidies and tax incentives into place that aimed at promoting reforestation.
By the 1960s, Chile had developed one of the first governmentally financed reforestation programmes. During the time of the socialist government of Allende between 1970 and 1973, Mapuche started to mobilize for regaining their political autonomy and sovereignty over lost lands. Their struggles showed successes and the tenure landscape in the south started to change; some Mapuche successfully engaged in the Agrarian Reform and established agricultural and forestry cooperatives. The military coup of General Pinochet and the installment of the dictatorship in Chile initiated a second period of dispossession of Mapuche territories; the establishment of neo-liberal economic structures led to an enhancement of privatization also in the forestry sector, leading to an increase in plantation area in the south. By 1990, 1.7 mio ha plantations of Pinus radiata and Eucalyptus spp. had been established; this conversion of the landscape has been identified as the main driver of native forest decline in the southern parts of Chile by the end of the 20th century. Nowadays, approximately 90% of all plantation areas are controlled by 6 major private corporations. Most recently available statistics provided by the Corporación Nacional Forestal (CONAF - Chilean Forest Service) inventory the area of plantations at a size of approximately 2.87 mio ha in 2011, 1.9 mio ha of which is owned by the two largest private companies: Forestal Arauco and Forestal Mininco. The new phase of land loss caused by the military dictatorship lead to an enhancement of Mapuche migration from rural to urban areas on the one hand, and triggered the formation of the modern-day 'Mapuche movement' on the other hand. The maps on image 2 visualize the drastic increase of plantations in the south of Chile over the past decades.
In the end of the 20th century, efforts by the newly formed democratic government of Chile to launch a reconciliation process failed: The 1993 ratified so-called "Indigenous Law" (Ley 19253 - De los Indigenas, sus Culturas y sus Comunidades) was designed to establish norms for the protection, encouragement and development of Indigenous Peoples and lead to the formation of a National Indigenous Development Corporation (Corporación Nacional de Desarrollo Indigena - NIDC). A major responsibility given to the NIDC was the resolution of land ownership conflicts between Mapuche and private land owners such as forestry companies. Due to corruption and bureaucratic incompetence, the institution did not manage to redistribute significant amounts of land to the Mapuche, but rather led to further fragmentation of their already minimal lands.
Eventually, Chile became a signatory party of one United Nations convention and a Declaration with respect to the recognition of Indigenous Peoples' rights during the government of Bachelet (2006-2010): The International Labour Organization (ILO) Convention 169, also called 'Indigenous and Tribal Peoples Convention'; United Nation Declaration on the Rights of Indigenous Peoples (UNDRIP). Conventions are legally binding, and being a signatory party still conveys a message of a certain respect and willingness to engage in negotiations and can set the tone within national legal processes.
In recent years, a movement of growing intensity seeks to restore the traditional territory of the Mapuche. Even though the mainstream of activism utilizes legal instruments such as court cases, or finds expression in peaceful forms of protest, such as marches launched through non-governmental organisations established by Mapuche, an increasing number of violent incidents has been witnessed by international Media: Mapuche activists occupy privately "owned" land, launch arson attacks against forestry companies or sabotage the corporate machinery. Instead of making efforts to resolve this conflict arising from the Chilean land tenure system that does not recognize Indigenous Peoples' customary land rights, the government responded with increasing presence of military forces in the area. Additionally, the government keeps applying an anti-terrorism law, which is a legacy from the Pinochet dictatorship, to persecute Mapuche activists; this has further intensified the conflict significantly. The application of this law has been criticised heavily by international authorities such as the UN Office of the High Commissioner for Human Rights which urges the Chilean government to suspend applying this law in the context of the Mapuche conflict until the law's revision guarantees fair trials; it is furthermore identified as a problem that the application of this law leads to a stigmatization of the Mapuche. Overall, the situation keeps worsening and increasing violence and fear are recorded on both sides.
The short historical outline above shows the significant role that the forestry sector has played and is still playing in the land use conflicts between Mapuche people on one side and governmental and economic actors on the other side. It is outstanding how dispossession through governmental instruments has shaped the Chilean landscape, following a continuum of land conversions from traditionally used, Indigenous lands to agricultural lands and then to plantation forestry under mainly private ownership today. Considering the ongoing conflict over land ownership and the fact that approximately 1.6 mio ha of forest plantations had been certified by FSC by 2015, the question arises as to how far the FSC takes on responsibility and respects the Title of the Mapuche people over their traditional lands in the south of Chile. Especially when considering the increasing violence in this highly emotional conflict, the influence of a more neutral, external actor has the potential of providing substantial support for resolving this conflict. Whether or not this role is taken on by the FSC will be analysed below.
Legal foundation of the modern day conflict over land use
The conflict between forestry companies and government vs. Mapuche with respect to land use rights is caused by the fact that the past and recent governments of the Chilean state have not acknowledged and recognized the Mapuche’s customary rights to land. Due to the topic of this case study, the following provided definition has been taken as direct quote from the FSC Principles and Criteria: Customary rights are “Rights which result from a long series of habitual or customary actions, constantly repeated, which have, by such repetition and by uninterrupted acquiescence, acquired the force of a law within a geographical or sociological unit” (FSC principles and criteria for forest stewardship, p. 22). It is important to note that the existence and continuance of those rights is independent from nation state’s recognition. As mentioned above, archaeological surveys provide evidence for agricultural land use by the Mapuche that dated back to pre-colonial times and have only been interrupted through the military defeat of the Mapuche in the late 19th century. It is furthermore important to emphasize that the Mapuche have never accepted the small portions of lands they have been granted in the beginning of the 20th century, which shows that their traditional and ancestral territory is unceded until this day.
The government of Chile keeps using this small portion of land as reference for the demarcation of the Mapuche territory. Even though Mapuche have recovered areas during the Agrarian Reform and have been able to regain some of the lands lost during the dictatorship through court cases, they are still left with a significantly smaller area recognized as their territories by the state. Thus, the establishment of privately owned forest plantations and other land uses has lead to the violation of customary rights of the Mapuche as the actual borders of their traditional, ancestral and unceded territory are not acknowledged by the tenure system of the Chilean state.
Stakeholder and power analysis
In this case study on land tenure in the south of Chile, the following stakeholders have to be considered:
The Mapuche, being the group of affected stakeholders due to their ancestral and traditional ties to the territory and their dependence on those lands and resources for socio-economic, cultural and spiritual reasons. The Nation is denied all levels of operational rights due to dispossession, leaving them with a low level of power.
On the other hand, the two major interested stakeholders are the forestry companies that have established their plantations with support of past governments on unceded Indigenous lands, and the recent governments with their forestry related institutions that is still in support of the land use of those companies. It has been noted that the forestry companies and the government keep shifting the responsibility for causing the conflict towards each other, while forestry companies and Mapuche share the opinion that the government is responsible for the conflict. It has to be pointed out that both affected stakeholders have a significant amount of power and share responsibility for the conflict: Chilean governments have created incentives for the establishment of plantations without respecting customary rights in the first place and nowadays represent the authority that can change the tenure system in the country. On the other hand, forestry companies could take on responsibility in order to improve the relationship with the Mapuche People as an attempt to resolve the conflict eventually. This would be an important first step towards calming the conflict and could set the stage for real improvements of the Mapuches in the conflict over land tenure. Especially in case of FSC certified corporations, efforts need to be improved with respect to FPIC and acknowledgment of the Mapuches' customary rights over land.
International Media, NGOs and other international organisations such as the United Nations play a role as interested stakeholders, being important external actors that monitor and uncover state violence in the conflict and the underlying violation of the Mapuche's customary land rights. They furthermore amplify the voices of the Mapuche and create international publicity, which puts pressure on the Chilean government, forestry companies and the FSC. Hence, they comprise a power within this conflict that should not be neglected.
The FSC is another important interested stakeholder with a large share of power, as is provides an important link for forestry companies to international markets. Its influence on the behaviour of forest companies in the context of the Mapuche conflict will be discussed in the following paragraphs.
Role of FSC in the conflict
Principles and criteria for certification
The Forest Stewardship Council is one of the major international institutions in the field of forest certification. The international membership of the FSC adopted a revised and improved version of their underlying principles and criteria for certification in 2015. 10 constantly evolving principles are defined as rules that all forestry companies have to follow in order to be applicable for certification. Each of the Principles is accompanied by a number of criteria and indicators for assessing compliance with the FSC Principles. The scope of the certification process does not only involve an evaluation of management practices and their impacts within the area to be certified, but also takes into account the impacts that those practices potentially have outside the boundaries of the unit; some principles and criteria are explicitly designed for evaluating those effects. It is emphasized in the preamble of the document that FSC’s certification procedure complies with international, national and regional laws and regulations. It is furthermore pointed out that FSC acknowledges risks of unforeseeable factors that may prevent perfect compliance at the moment of the certification decision. Depending on how well the company already conforms with the respective criteria or how strong the consequences from non-compliance are, either minor or major Corrective Action Requests (CARs) are filed; this gives the company 3 or 12 months respectively to achieve compliance, after certification has already been granted.
A glossary of terms is provided that defines central concepts and underlying assumptions: Interestingly, FSC distinguishes the terms “Traditional Peoples” and “Indigenous Peoples”. Traditional Peoples are defined as groups of people that do not self-identify themselves as IP, but who declare their rights over lands and resources based on customary and traditional occupation and use of the lands. Indigenous Peoples are defined as individuals and groups of people who meet the following criteria: Self-identification of individual people and their acceptance through the community is the key criterion. Furthermore, strong links to land and resources, a history of pre-colonial occupation of lands, distinct social political and economic structures as well as the presence of distinct languages, cultures and beliefs prove the status as IP. Non-dominant groups of society that agreed to maintain or regain their ancestral lands, resources and legal and cultural systems collectively as distinct communities are generally counted as IP. This definition is based on major documents published by the United Nations (UN), also including the UN Declaration on the Rights of Indigenous Peoples.
Principle 3 for the certification procedure of FSC specifically requires the forest company to identify all IP that are affected by their management activities, either because of their existence within the boundaries of the management unit, or because of the effects of management decisions reaching beyond the borders of the management unit. Therefore, the company needs to identify and respect all tenure rights, customary rights over land and resource-use as well as any legal rights and obligation held by the respective IP. The company is furthermore hold accountable for identifying instances where Indigenous rights are contested; in any case, legal and customary rights of affected IP must be recognized and upheld by the company. Thus, any management decisions interfering with those rights have to be subject to Free, Prior and Informed Consent (FPIC) and decisions made during this consultation process shall be concluded with a binding agreement between the IP and the forest company. The agreement must define the terms and conditions that shall govern the delegation of use rights by IP to the company; it shall include a description of measures to be implemented for the conservation of traditional knowledge and the protection of areas that have been identified as areas of particular cultural, spiritual, ecological or economic value to the respective IP during the negotiations. It furthermore shall provide a scheme for monitoring through the IP in order to guarantee compliance of the company with the agreement.
Overall, all interaction of the company with IP must be governed by the principles and definitions of UNDRIP and ILO Convention 169.
Role of FSC in the conflict
Considering that the geographic concentration of plantation forestry in the south of Chile overlays the traditional territory of the Mapuche, the certification of large areas of plantations through the FSC has been internationally criticised for not acknowledging the customary lands of the Mapuche (see for example Milliman et al., 2016). As mentioned above, the national tenure system used by FSC as reference does not recognize the territory of the First Nation. Thus, a very shallow assessment of tenure is applied as basis for certification, which results in very few obstacles for certification related to tenure. The following study provides evidence for this argumentation: Cubbage et al. (2010) aim to provide an assessment of improvements in management and forestry practices achieved through FSC and CERTFOR (Sistema Chileno de Certificación Forestal) certifications. Their study focuses on forestry companies in Argentina and Chile and applies the methodology of conducting interviews with responsible staff members in the company as well as reviewing official audit reports. From this one-sided perspective, problems arising from conflicts over tenure have not been evaluated as being an issue, as it has been argued that all companies were focussing on management of their own property. With respect to the situation in Chile this assessment fails, because customary rights are not incorporated in modern tenure rights. Furthermore, FSC does not comply with its own principles and criteria for certification, which require the forestry company to identify contested rights of Indigenous Peoples and uphold Indigenous rights, including customary rights over land, in any case. [Charlotte, the Chilean companies are using FSC P&C version 4, not the v-5 which you have been referencing. The Chilean National Forest Stewardship Standard is based on FSC P&C v-4 and was published in 2005 -- JB.] Further violation of their own standards of certification can be found in the assessment that none of the certified companies has elaborated a binding agreement on the basis of FPIC with the Mapuche Nation, which is required by FSC to guarantee a rightful delegation of use rights to the forestry company from the Mapuche.
In recent years, FSC has responded to international critique: As an approach to solve issues with certification in the light of tenure conflicts in Chile, FSC granted a fully independent mandate to the research team of Milliman et al. (2016). Their independent study has been published through the FSC website in 2016, providing important recommendations for the FSC to improve their quality of conduct.
Recommendations focus on the improvement of monitoring schemes and a renewal of conceptual frameworks that define the relationships among certifiers and companies to be certified as well as among FSC Chile and the Chilean government. This must also involve a new form of monitoring and communication by FSC International with FSC Chile. Important procedures with respect to compliance and complaint mechanisms need to be enhanced and clear instructions for dealing with non-compliance of companies with important international conventions, such as UNDRIP and ILO Convention 169, have to be defined. Furthermore, the importance of training and education of certifiers with respect to Indigenous Peoples' rights and their recognition is an integral part of a successful implementation of principle 3. Finally, certifications must be suspended, in cases where the companies do not comply with principle 3.
As the FSC is a non-governmental actor of considerable influence on international timber markets and forestry-related economies, it has the capacity to prevent a worsening of the conflict arising from the establishment of forest plantations on Mapuche territory in southern Chile. Its underlying principles for certification provide a great tool for achieving recognition of the Mapuche's customary rights in the context of the conflict, as long as FSC complies with its own standards. FSC's principle 3 furthermore provides a toolbox that can be used to start dialogue between Mapuche and forestry companies, in order to correct faulty certifications: Enforcing the establishment of binding agreements between Mapuche and forestry companies based on FPIC is a major important factor for creating a situation where customary rights are upheld by the forestry company. The acknowledgement of the First Nation’s customary rights can be achieved and guaranteed with those agreements through a legal and free delegation of land use rights by the Mapuche to the forestry companies.
Media coverage and international critique have been an important factor that helped to identify FSC Chile’s failures and created the necessity for a re-assessment of their performance in the discussed conflict. This will hopefully lead to an actual improvement of the situation and can potentially contribute to the full recovery of sovereignty of Mapuche over their traditional, ancestral and unceded territory. Hale and Reinao (2018) also see the potential of improved FSC certification in an accelerated reconciliation process, because achieving recognition of customary rights on a smaller scale within the boundaries of a private management unit will be faster than state-wide acknowledgement and ratification of overarching principles of reconciliation. They also point our that the Media's coverage on the ongoing conflict keeps creating awareness among potential consumers, which will continue to exert pressure on FSC and certified corporations, monitoring their progress towards creating a rightful environment in the landscape of certified forestry plantations in southern Chile. International pressure may furthermore have a positive influence on the Chilean government to launch real reconciliation efforts, lead to a reformation of the Chilean tenure system and bring the country to a state were the customary rights of the Mapuche are acknowledged and recognized.
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