Solomon Islands has a comprehensive legislative framework for environmental impact assessment in the form of the Environment Act 1998 (and Environment Regulations 2008), which could form the basis for an effective social and environmental safeguard – but only if it is made clear that the Act applies to REDD+ activities.  This could be achieved by amending the list of “prescribed developments” to include REDD+ activities (s. 16; Sch. 2). The Act would also form a more effective social safeguard if it contained more detailed guidance as to how the social impacts of a proposed development must be identified and assessed, including the potential impacts on women.

Under the Environment Act 1998, logging operations are listed as a “prescribed development” and  therefore require approval (development consent) from the Director of the Environment and Conservation Division as well as some form of environmental impact assessment (EIA), either in the form of a public environment report (PER) or a more detailed environmental impact statement (EIS) (ss. 16 – 19).  The Director must decide whether a PER or EIS is required before the Director can grant approval to a proposed operation, unless the Director has decided to grant the developer an exemption instead (ss. 17(4) and 19(c)).  The Director can also require existing logging operations to prepare a PER or EIS (s. 18).  People whose interests are likely to be affected by a proposed development have the right to participate in the EIA process (ss. 22 – 24). 

As the Act currently stands, REDD+ activities are unlikely to trigger the requirement to prepare a PER or EIS unless the REDD+ activity incorporates an “agricultural development scheme”, which itself is a prescribed activity (Sch. 2(8)(b)).  While there is also a general duty imposed on all public authorities (local, provincial and national) to consider the effect on the environment of a proposed development where the development requires some type of approval, this lower threshold means that it is less likely to result in the need to prepared a PER or EIS for a REDD+ activity (s. 15). 

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Published: 24 December 2015

Promoting and enhancing gender equality, gender equity and women’s empowerment is an important safeguard for REDD+. 

In Solomon Islands, women have restricted roles in leadership and decision-making processes at the family, tribal and community levels.  Although there are some matrilineal societies where women inherit customary land, this does not necessarily guarantee that women will be included in decision-making regarding their land, with decisions often being made by men (CEDAW 2013:32).  Women also have responsibility for food production, including activities which depend upon the effective management of forest resources such as obtaining water and gardening, and may therefore be exposed to adverse impacts from REDD+ activities unless effective safeguards are in place to ensure gender equity and equality. 

The Constitution prohibits domestic laws which discriminate on the basis of sex.  It also prohibits people from being treated in a discriminatory manner by others who exercise lawful authority (e.g. magistrates, etc.) (s. 15(1) and (2)).  However, this provision does not provide an effective safeguard to prevent discrimination against women as the constitutional protection does not apply to customary laws, or to laws which relate to land or land tenure (Art. 15(5)).  This exemption has been interpreted widely by the courts, permitting discriminatory customary laws to have effect (Tanavalu v Tanavalu, [1998] SBHC 4, HC-CC 185 of 1985; upheld by the Court of Appeal).

Solomon Islands ratified the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in 2002 although its provisions have not yet been incorporated into domestic law.  In accordance with Article 5 of the Convention, the Committee on the Elimination of All Forms of Discrimination against Women has recently asked Solomon Islands Government to provide information on the measures it is taking to eliminate discriminatory practices against women which are embedded in customary law, such as traditional forms of inherited male leadership, and the prevalence of men in customary land management (CEDAW, 2014).

Neither the Forest Resources and Timber Utilisation Act nor theProtected Areas Act 2010 contain any provisions to ensure women’s inclusion in consultation and decision-making processes.  By contrast, the Environment Act 1998 requires that a gender impact assessment be undertaken as part of an environmental impact statement (Environment Regulations 2008, cl. 5(g)).

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Published: 24 December 2015

Given that 90% of land in Solomon Islands is held as customary land and the majority of REDD+ activities will be undertaken on these lands, the free, prior and informed consent (FPIC) of customary landowners will be required for almost all REDD+ activities.  With assistance from the UN-REDD Programme, the Solomon Islands Government has prepared Guidelines for Developing Stakeholder Engagement REDD+ within the Solomon Islands (draft, February 2014).

Unlike Vanuatu where the National Council of Chiefs (the “Malvatumauri”) is established under the Constitution, there is no national federation of indigenous peoples in Solomon Islands.  In some provinces, tribal groups have formed a Council of Chiefs, such as the Isabel Council of Chiefs, the Guadalcanal Council of Chiefs, and the Lauru Land Conference of Tribal Communities, a community-based landowner structure which represents all landholders in Choiseul Province.  These structures could facilitate the process for seeking and obtaining FPIC for REDD+ activities at the provincial level. 

At the local level, there is no over-arching national legislation which set out a prescribed process for consulting and obtaining the consent of tribal groups for activities affecting their land.  Experience to date with the process for obtaining landowner consent for commercial logging under the Forest Resources and Timber Utilisation Act, has been highly problematic and does not meet the international standards for FPIC (see the 2007 United Nations Declaration on the Rights of Indigenous People).  The Customary Land Records Act, which sets out a process for identifying and recording which tribes hold primary and secondary rights over customary land, may provide a potential entry point for FPIC processes.

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Published: 24 December 2015

Dispute resolution framework

Most disputes are dealt with informally at the village level, either by local chiefs or leaders, or in some cases, the church.

Under the formal legal framework, disputes over customary land in Solomon Islands must first be referred to the local chiefs, who will determine the dispute according to kastom.  If the matter is not resolved using “traditional means”, the matter can be appealed to the local court (Local Courts Act [Cap. 19], s. 12(1)), which can hear all civil matters “affecting or arising in connection with customary land” (Land and Titles Act, s. 254).  The most common grounds for appeal are allegations that the local leaders and chiefs were biased.  Appeals from local courts in relation to land disputes are made to the Customary Land Appeal Court.   A further avenue of appeal lies to the High Court on matters of law, but not custom.

The forestry legislation has, however, created a conflicting legal regime for determining which tribe or clan has the right to grant timber rights, and who are their authorised representatives.  Under the Forest Resources and Timber Utilisation Act, these issues are determined by the Customary Land Appeal Court rather than the Local Court.

Observations

Disputes over ‘ownership’ of customary land and the exploitation of natural resources such as timber are a very common in Solomon Islands.  A recent report by the World Bank into the main sources of grievance in Solomon Islands found that disputes over land and development-related issues are the second most common cause of disputes affecting rural communities (with the first being anti-social behaviour stemming from substance abuse) (Allen et al, 2013). The Report also found that most existing dispute resolution mechanisms in Solomon Islands, whether customary or state-based, are struggling to deal effectively with disputes over land and natural resource, particularly where logging is involved.

While the traditional kastom system, the first port of call to resolve land and other disputes, is generally regarded as a having a legitimate mandate to resolve disputes, it is increasingly fragile and in some places appears to have broken down altogether, particularly if the chiefs and local leaders have themselves become entangled in logging operations.  Nor is the formal justice system functioning well.  Due to decades of government neglect and lack of funding since the mid- 1990’s, both the Local Courts and the Customary Land Appeal Courts have now almost virtually ceased to function.  The Local Courts, which are supposed to deal with civil and criminal cases, are overwhelmed with the volume of customary land disputes and currently have a backlog of 350-400 land dispute cases (Allen et al, 2013: 47). The combined failure of traditional processes and the formal justice system is leaving affected citizens without remedy for grievances.  In response to these problems, the Ministry of Justice and Legal Affairs has recently draft legislation, the Tribal Dispute Resolution Panels Bill 2012, to replace the current system of dispute resolution over tribal customary land (Solomon Islands Law Reform Commission 2012:59).

Since the period of civil conflict known as the “tensions” ended in 2003, a multilateral effort delivered by the Regional Assistance Mission to Solomon Islands (RAMSI) has worked to strengthen and the court system and improve access to justice in an effort to restore law and order (RAMSI 2009).  However, on the ground, these efforts have largely focussed on supporting higher level courts in the capital, Honiara, and there has been little support for local level courts.  Significant effort is still required to ensure that effective grievance and redress mechanisms are in place at the community and local levels in order to create an effective grievance procedure and dispute resolution mechanism for a national REDD+ programme.

Safeguards

Solomon Islands is still in the process of selecting and developing its nationally-appropriate safeguards for REDD+.  With assistance from the UN-REDD Programme, the country has prepared Guidelines on the Development of REDD+ Safeguards within the Solomon Islands National REDD+ Process (draft for discussion, February 2014).

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Published: 24 December 2015