by Gabriela Quijano at Forest Peoples Programme
On 10 November 2021, the UK government passed into law the UK Environment Act. While this law is primarily concerned with environmental protection within the UK, Schedule 17 attempts to tackle illegal deforestation overseas. Under this Schedule, certain businesses will be required to prove that their products are “deforestation-free” and compliant with local laws, but respect for indigenous peoples’ and local communities’ rights – in particular their land rights – has not been expressly required. This makes Schedule 17 limited and incomplete and the UK government’s approach shortsighted.
What does the law prescribe?
All around the globe, land is being cleared to make way for grazing animals and to grow crops. Eighty per cent of global deforestation is linked to the expansion of agriculture. The UK imports over half the food it consumes, leaving a large footprint on the world’s forests as well as on the people who inhabit them. As a way of tackling the UK’s contribution to global deforestation, Schedule 17 will make it illegal for certain businesses to use certain forest risk commodities (or products derived from those commodities) in their UK commercial activities unless they comply with “relevant local laws” in the producing countries.
“Relevant local laws” are defined to include national laws relating to the ownership and use of the land on which the commodity was grown. To ascertain “legality”, or reduce the risk of illegality, businesses in scope of the law will be required to establish and implement a due diligence system for each regulated commodity.
The commodities likely to be targeted will be beef and leather, cocoa, coffee, maize, palm oil, rubber and soy, although it is not clear whether they will all be included immediately. These commodities are targeted because they have been found to be responsible for driving the majority of recent and ongoing global deforestation and because the UK consumes a significant amount of them.
While Schedule 17 provides the basic architecture for the due diligence regime, most of the details as well as the enforcement mechanism will be defined through secondary legislation, which is not yet in place.
What does the law mean for indigenous peoples and local communities?
The law makes no reference to international human rights law or, more specifically, to the rights of indigenous peoples and local communities as set out under international law. It does not impose on businesses an express requirement to ensure respect for these rights, nor does it expressly stipulate that the relevant local laws they are required to ensure compliance with include legal provisions on, or related to, the rights of indigenous peoples and local communities to their lands, territories or resources. These are serious gaps which put at risk the effectiveness of the legislation. Violations of the rights of indigenous peoples and local communities are often a precursor and driver of deforestation, so protecting their rights is key for protecting forests. Furthermore, there is now ample evidence that shows that securing customary tenure rights is one of the most effective ways of preserving forests and other ecosystems.
While laws on the use and ownership of land can only reasonably be interpreted as including legal provisions concerning the land rights of indigenous and other local communities, the law should have made this explicit. This clarity is important for two reasons. Firstly, it sends an unequivocal signal to all parties concerned that respect for the rights of indigenous peoples and local communities will be expected and scrutinized under the law. Secondly, it avoids any confusion and ambiguity in what is already a highly contested field, with many indigenous and other local communities around the world struggling to have their human rights recognized or effectively enforced. However, this would only take us so far.
Are national laws sufficient?
Schedule 17, if adequately implemented and enforced, can provide a level of protection to indigenous peoples and local communities in countries where their customary tenure rights are explicitly recognized and protected under national law. Indigenous peoples and local communities in these countries can leverage Schedule 17 to demand respect for their rights and report instances of non-compliance, with potentially significant economic repercussions for the businesses concerned. However, an approach that relies solely on compliance with national laws is insufficient for three main reasons.
Firstly, laws that expressly recognize and protect the rights of indigenous peoples and local communities do not exist in all producing countries.
Secondly, where they do exist, they often fall short of international standards. For example, they often only provide protection to communities that are able to produce formal titles to their land. However, research has shown time and time again that many indigenous peoples and local communities with customary land rights remain unprotected because of the difficulties they experience in having their lands (or the full extent of their lands) formally recognized and titled.
Thirdly, actual enforcement of these laws is often weak or non-existent (even for communities with registered property titles), or is compromised by competing and contradictory legal requirements. This makes it very difficult for businesses (and regulators) to monitor and ascertain compliance.
Ensuring compliance with local laws or demanding that only “illegality” be avoided is therefore too low a bar. It can lead to a situation whereby forest-risk commodities are allowed to enter the UK market because they are considered to have been legally produced, when they have in fact been grown in breach of the rights of indigenous peoples and local communities.
As far as deforestation is concerned, the standard of legality will also allow commodities associated with massive deforestation that occurs “legally” in many countries to enter the UK market. In addition, it can have perverse effects. Indeed, the “legality” standard will not only legitimize countries with weak deforestation laws, but, even more worryingly, it can incentivize some countries to eliminate or weaken their legal protections so that activities that are illegal become legal and therefore compliant with the UK law. Recent and planned legal roll-backs in forest-rich countries such as Brazil and Indonesia show that this is not pure speculation but a very real risk. International sustainability standards, and not national law alone, must be the framework invoked by deforestation laws if they are to meet their stated objective of halting and reversing global deforestation.
A skewed consultation on the secondary legislation
The Department of Environment, Food and Rural Affairs (DEFRA) ran a public consultation on the secondary legislation from 3 December 2021 to 11 March 2022. Given the fact that the scope as well as many of the specific requirements of the law were left to the secondary legislation, this consultation and what DEFRA makes of it are critical. The consultation document asks questions ranging from the commodities and businesses that should be in scope of the law to the nature and purpose of due diligence and reporting requirements to the enforcement regime. The secondary legislation can only work within the confines of the primary law and, in this sense, will not be able to rectify its major shortcomings. However, there is still significant opportunity to put in place a robust regime by:
- ensuring the regulation casts its net wide in terms of both businesses and commodities in scope;
- laying down meaningful due diligence and reporting requirements in line with international standards;
- advancing expansive interpretations of key concepts such as “relevant local laws”, and;
- establishing a sufficiently persuasive and deterrent enforcement system.
The Impact Assessment prepared for the consultation gives out some of the government’s thinking regarding the businesses and commodities likely to be targeted, criteria for exempting certain businesses and the possibility of a phased approach to introducing commodities. Despite the initial impetus given by the enactment of the law, much of the government’s approach since then appears to be directed at further limiting its scope and easing requirements on companies. This is reflected in both the rationale for as well as the options put forward in the public consultation, ranging from setting an extraordinarily high size threshold for businesses in scope to giving certain high-risk sectors potentially up to five years before they are required to comply with the law. Many organizations have strongly criticized this approach, which could still permit the UK to contribute to rainforest destruction the size of Berlin between now and 2030 and allow the further dispossession of hundreds of indigenous and local communities.
Limited and closed options
Many of the options put forward by the consultation document are limited and closed in nature, not allowing participants to suggest alternatives. Some options are even more worrying in that they show that certain key decisions have already been made. For example, the consultation document assumes that only large businesses will be targeted, without ever having consulted on this, and puts forward a limited set of options to determine where the turnover threshold for inclusion should sit, ranging from £50 to £200 million. At no point does the primary legislation require that a turnover threshold be adopted, and it certainly does not require that only large businesses be targeted. However, the consultation document does not allow participants to question these limited options and suggest alternatives. It is not even clear why the government chose not to use the £36 million turnover threshold used by the Companies Act for defining the size of a large company. This is the threshold used by the UK Modern Slavery Act which, while still criticised for being too high, can at least be justified on being based on an established category.
Lack of interest in indigenous peoples’ rights
Whether this law makes a difference or not to at least some indigenous peoples and local communities will depend to a large extent on what is understood to fall under the concept of “relevant local laws” relating to land ownership and use that Schedule 17 requires compliance with. As a result, it is worrying that the consultation document asks no questions about this and about how this requirement should be interpreted and implemented to ensure sufficient protection of land rights. This confirms the government’s lack of appetite for exploring this issue and extending strong protections for indigenous peoples and other local communities.
In fact, the consultation document does not even ask more general questions about what an adequate due diligence system should look like and the minimum due diligence steps the secondary legislation should require. This is despite the fact that paragraph 3(3) of Schedule 17 makes clear that further provision on the due diligence system is to be made by way of secondary legislation. It is clear that the government did not wish to consult on these critical aspects.
Other elements that can contribute to enhancing protection of indigenous peoples and local communities such as opportunities to raise concerns about implementation, including in relation to specific cases (for example, through third party complaint procedures) or the critical question of access to justice for actual harm have also been woefully missed. Despite not being explicitly addressed in the primary legislation, the secondary legislation has ample room to establish a robust enforcement and remedial regime.