This morning European Union (EU) policymakers finished negotiating a new Regulation that aims to prevent agricultural goods tainted by deforestation from being imported into the EU market. While this is an historic first, the law fails to include strong provisions to protect the land rights of Indigenous Peoples and local communities, who time and time again have proven to be the best guardians of the forests.
“For months, Indigenous Peoples from around the world have called on the EU to protect their rights in the Regulation. Last night EU policy makers ignored these pleas – and the overwhelming wishes of EU citizens – and failed to do so.
This is a serious omission.
Failing to require companies to ensure that goods are produced in accordance with international human rights laws and respect for Indigenous Peoples’ rights means relying on national governments to do so.
In Brazil, we have seen the deadly consequences of this: in the last four years, Bolsonaro’s administration relentlessly attacked Indigenous Peoples’ rights, as deforestation accelerated in the Amazon.
By failing to ensure that products placed on the EU market comply will international human rights laws on Indigenous Peoples, the EU has missed the chance to signal to the world that the most important solution to stopping deforestation is upholding Indigenous’ rights,” said Nicole Polsterer, Sustainable Consumption and Production campaigner at Fern.
The European Parliament had voted in September to make respect for international human rights norms and standards on land rights, such as the right to Free, Prior and Informed Consent (FPIC), a prerequisite for importing products into the EU. But in the final agreement, although language on FPIC has been added, companies will still only have to verify compliance with such rights if they are enshrined in the relevant legislation of the country of production - which is virtually no better than the Commission’s initial proposal.
Moreover, the law fails to provide a route for victims to obtain compensation from companies who violate the law.
The Regulation focusses on cleaning up EU supply chains, but partnerships are needed to decrease overall deforestation
Although the proposed Regulation will help clean up EU supply chains, products could still be sold in other consumer markets like China or Indonesia. To reduce this risk, Fern has campaigned for the EU to build agreements with governments in forested countries to tackle the root causes of deforestation, such as weak forest governance and unclear land tenure. Such agreements could also help producer countries and small producers to comply with the Regulation.
While the Commission’s proposal recognised the need for agreements with producer countries, it didn’t provide detailed plans for them. Our source tell us that the final agreement now requires the Commission to develop a comprehensive framework on additional partnerships, despite last minute opposition from part of the Commission. Fern will need to confirm this in the final text, which isn’t available yet.
“So far, the EU is giving most of its attention to cleaning up EU supply chains, rather than using the Regulation as a jumping-off point to work with producer countries to address the root causes of deforestation. Without such agreements, goods tainted by deforestation will just be sold elsewhere, as we have seen with palm oil. While the share of palm oil imports to the EU has significantly decreased, a lot of it has been rerouted to China,” added Polsterer.
Developing binding partnership agreements to support producer countries to address governance is something the EU has experience of with timber, through the Voluntary Partnership Agreements (VPAs). NGOs from producer countries which have a VPA have urged that the new Regulation should “incentivise and support all countries to reach the [Forest Law Enforcement, Governance and Trade] FLEGT licensing stage within a reasonable timeframe and help them to assess their compliance with the new deforestation criteria.” They also urge the EU to clarify its vision on the future of forests and favour a constructive and inclusive dialogue with producer countries, building on the positive and transformative approach that VPAs spearheaded.
The law in a nutshell
The Commission had initially proposed that all companies selling beef (including leather), soy, palm oil, timber, coffee and cacao in the EU market should conduct “due diligence” to prove firstly that they are legal, and secondly that they have not caused deforestation or forest degradation after 2020. EU policy makers have added rubber (and derivatives), printed materials and charcoal to that list.
Companies will need to do a different level of due diligence depending on a country’s risk rating. The Commission proposes assigning a high, medium or low rating to producer countries based on deforestation rates verified through satellite monitoring, producer country legal frameworks, countries’ deforestation pledges and agreements between the EU and third countries. It wouldn’t consider human rights violations though, which means companies would only need to conduct low levels of due diligence on goods coming from some countries where land grabs are still happening.
Policy makers did not reach an agreement on measures to support smallholders; this will be discussed at the technical level next week. Fern believes it is key that the Regulation includes obligations on companies to support their smallholder suppliers, including paying them adequate remuneration.
Although the law will enter into force next year, the lawmakers have created an 18-month transition period, meaning companies will be obliged to meet its requirements from 2025 onwards.
Some issues that were not resolved in these negotiations will be decided at later reviews: in one year, the EU will look at adding other wooded land; in two years they will look at including the financial sector and expanding the list of products and commodities covered; and in five years there will be a general review which will look at other issues like impacts of the Regulation on Indigenous communities.
This press release was edited on 7 December to reflect the fact that the final agreement requires the Commission to develop an additional Framework on partnerships. The initial version stated that the proposed Framework had been moved to a separate declaration.