What this chapter covers:
After a contract has been carefully designed and granted, contract implementation must start. Contract administration embraces all relationships between government and the contractor arising from the implementation of the contract. At this stage, through contract administration, governments seek to accomplish three main goals. The first one is compliance. When utilizing contracts, forests are managed so that outputs are produced under the conditions called for by the terms of contract. In procurement contracts, the government should ensure that the needed work or services be carried out on time, cost effectively and at the quality level stipulated in the contract terms. The second goal of contract administration is the early identification of problems, thus preventing their escalation, avoiding irreversible damage being caused and taking timely remedial actions when required. The final goal of contract administration is the protection of public interests, especially by maintaining and ensuring a competitive system and transparency of government decisions.
This chapter discusses two areas of actions indispensable for reaching contract administration goals: monitoring and enforcement. It begins with a discussion of monitoring as a means of securing compliance and early problem identification and resolution. Monitoring, the comparison of performance against expectation, is then described and main indicators and methodologies identified. The second topic discussed in this chapter is enforcement, taking remedial adjustment action to bring performance into line with expectations (terms of contract) in cases where unacceptable deviation has been proven. Enforcement is also defined as the act of compelling the party which has not performed to pay the extra cost of obtaining substitute performance (Downes, T. A., 1995). The chapter ends with a discussion of the institutions and mechanisms necessary for carrying out monitoring and enforcement.
Although contract monitoring and inspection are quite specific, and may not apply to all forests, contracts or circumstances, this section provides a blueprint that may be adapted or modified to fit most forest and institutional situations.
Regular reporting by contractors is the first stage in the monitoring and inspection of forest management in forest utilization contracts. On-the-ground inspection of the contractor’s operations is an essential complementary action to secure compliance with forest utilization contracts. The inspections procedures, compliance criteria, time frequency, logistics of inspection and reporting procedures and format should be defined in detail within the contract. However, regular and routine gathering of information on operations, forest management and harvesting have a cost. The government agency responsible for contract inspection and enforcement will need sufficient staff with the appropriate expertise in the full range of forest resource management activities and variables involved in the resource utilization contracts. The agency must also develop a protocol and procedures for facing potential breaches of contract which are identified.
Ways must be found to fund and implement the monitoring of contracts, including on-the-ground inspections. One way may be to allocate a portion of the forest fees received in a fund for financing contract monitoring and on-the-ground inspection and supervision of forest contracts.
The distribution of the findings and results of these monitoring activities and their incorporation into changes in policy and practices is an important component of monitoring and reporting. In the design of monitoring procedures, it is important that the reporting mechanisms be designed to ensure that what is learned from experience can be used to modify and improve forest management practices, contract management and operational procedures, and improve monitoring systems.
Some of the most relevant variables used in the monitoring of forest utilization contracts are listed below and then described in the next section:
Mapping, forest and environmental inventory
Monitoring timber resources involves essentially four components: forest inventory (existent population and biomass), forest growth, forest removals and forest health. A fifth monitoring component, fire protection, is normally associated with timber resources, but it is also applicable to other commercial and non-commercial resources.
Monitoring methods for forest inventory, removals and growth are founded on the disciplines of forest biometrics, or mensuration, and statistics. Readers may wish to consult forestry textbooks on the design of timber inventories, on tree and log measurements, and on measuring and predicting growth and yield (see also FAO 1980a, FAO 1980b, FAO 1981, FAO 1997). In the design of monitoring programmes for forest health, readers will need to consult regionally specific references because forest pathogens vary widely by country and forest.
Evaluation of the accuracy of the forest and environmental inventories is important, but is not easy to do. It will require on-the-ground checks. The accuracy of forest mapping may be monitored against the maps by on-the-ground checking of randomly selected areas. The forest inventory may be checked in the same way, by spot-checks, by re-measuring randomly selected inventory sample plots, and by checking forest types from the forest inventory maps against the forest types found on the ground. The environmental inventory may be checked by selective comparison of the environmental inventory data against the environmental conditions on the ground.
However, checking mapping, forest and environmental inventories can be expensive and time-consuming. Government agencies may not have the field capacity for the on-the-ground checking of maps and inventories. It may not be in the contractor’s interest to produce accurate inventories of environmental, non-timber and non-commercial forest resources, but it ought to be in the contractor’s interest to have accurate maps and forest inventories. It may be better for the government to concentrate on monitoring other aspects of forest management in the contract, components such as road plans and layout, logging plans and logging activities, and silvicultural and regeneration activities.
Boundary marking and maintenance
Boundary marking is an essential first step in the administration of forest utilization contracts, and in the prevention of human and agricultural incursions into forest areas. Performance in completing boundary marking can be monitored relatively easily. Boundaries may be checked through the combined use of Global Position System technology (GPS) and small aircraft low-level flights. Boundary marking should be completed and checked within the time limits specified in the contract and before logging operations begin.
It is important that forest utilization contract activities be maintained within the defined boundaries. Monitoring of boundary maintenance is relatively easy. It may be monitored by spot checks at pre-determined intervals (perhaps every two to five years), by ground spot checks of different sections of the boundaries, or quickly and easily by inspection from aircraft, followed up on the ground if necessary.
Criteria and indicators for sustainable forest management
Forest and environmental management plans may be evaluated against the requirements and standards specified in the forest regulations and in the forest utilization contract. These would be “office” or “paper” based evaluations. However, without on-the-ground checking, there will be no guarantee that the management plans match conditions on the ground.
During the last few years, there has been a considerable amount of interest and work in developing national and unit-level systems of criteria and indicators for sustainable forest management. Some of them include guidelines for forest management. An important activity has also been carried out regarding the development of certification systems. Criteria and indicators, together with certification systems, can play an important role in monitoring resource management in the context of utilization contracts. Governments may decide to adopt one of the existing systems, or develop their own one, and then use them as standards in the monitoring of forest contracts.
Criteria and indicators are a fluid and evolving subject. Therefore, it is not discussed here. Instead, some of the more important references are presented in Box 10.1.
Examples of forest certification systems are the Forest Stewardship Council system and national systems developed in such countries as Brazil (CERFOR), Finland (Finish Forest Certification System - FFCS), Indonesia (Ekolabel Indonesia - LEI), Malaysia, and the umbrella Pan-European Forest Certification (PEFC). The Canadian forest certification system is an example of an environmental management-based certification system.
Box 10.1: Selected references on criteria and indicators
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On-the-ground logging plan layout and marking of trees
On-the-ground layout of landings and skid roads and the marking of trees can contribute to efficient logging, minimize logging damage and regenerate the forest. On-the-ground logging plan layout can significantly reduce logging costs.
Inspection and approval of logging plan layout and tree marking may be done most easily after the roads are built, but before logging begins so that any corrections and changes may then be made. On-the-ground inspection of logging plan layout and tree marking are key factors in monitoring contractors’ performance and ensuring sustainable forest management.
Resource harvesting inspections
Resource harvesting activities is a key component to be monitored because of the impact harvesting can have on forest growth, damage to the residual stand and regeneration, and the potential for environmental damages from poor logging and road construction practices. Inspection of harvesting activities involves both field and office visits by staff, but field inspection capabilities are particularly important. Staff must have training and field experience in harvesting methods and know the procedures to follow if contract violations are identified.
Where forest fees are based on the quantity of timber harvested, monitoring of the wood measurement procedures is particularly important. Wood measurement systems are subject to abuse and staff may be open to bribery and corruption. Substantial amounts of money may be at stake and the incentives for abuse are strong.
In a few cases, wood measurement is done by the government agency in charge of forest utilization contracts. In this case, the government staff must be adequately trained and provided with proper equipment to measure the wood as cut, and without delay. The government staff must also be adequately paid, so that they will not be open to bribery by contractors.
However, most forest agencies do not have the staff or budget to adequately fund, equip and staff wood measurement operations, so that wood measurement is left to forest utilization contractors. Under these circumstances, it will still be necessary to inspect and audit the contractor’s wood measurement procedures and records, in order to verify the accuracy of the contractor’s measurements, volumes, species, etc. This may be carried out by government forest agency staff, or it could be contracted out to an independent organization or private company. If inspections and audits are undertaken by the government forest agency, the agency need not be large. However, it will still need to be adequately staffed and equipped with adequate transportation and field capability.
If wood measurement is contracted out to an independent agency or private company, the contract and contract terms will have to be carefully written to provide the right performance incentives, and to be sure that the wood measurement contractor is independent of, and not influenced by, forest utilization contract holders. It will also be necessary to audit the performance of the wood measurement organization or company, by random field checks and checks of their records.
There are several wood measurement systems that may be appropriate to different situations. Each has technical and staffing requirements, advantages and disadvantages. Four common wood measurement systems are described below with brief comments on their advantages and disadvantages, and on their applicability:
Resource harvesting inspections will cover a number of other aspects, depending on the nature of the forest, the resources harvested and the harvesting methods employed. Some of those aspects are listed below:
Inspections may be both planned (scheduled) or random (surprise visits), demonstrating to contractors that activities will be inspected and that compliance is expected. Field inspections should involve inspections of key items before, during and after harvesting. Some inspection items may be inspected economically by aircraft or by remote sensing. Others will require on-the-ground inspection.
Post-harvest inspection of the cutting area
The cutting area should be inspected on the ground, again following logging to ensure that the logging was done according to the silvicultural plan, in line with environmental requirements and with minimum damage to the residual stand, that only marked trees were cut, that logs and felled trees are not left, and that trees that should be cut are harvested. This is another important step in ensuring sustainable forest management. Where the government agency does not have the field capacity for on-the-ground inspection, post-harvest inspections may also be contracted out through a separate procurement contract.
Environmental and conservation inspections
Environmental inspections will cover a wide range of impacts. Many will be specific to the country or forest area in question. Inspection for compliance with environmental protection laws, regulations, biodiversity protection, conservation and contract terms will involve both office and site visits. As with other inspection areas, environmental inspections will require staff with the appropriate expertise. In some cases, the personnel may be the same as those involved in other aspects of resource management or environmental inspections. In other cases, conservation specialists (wildlife biologists, botanists, zoologists) will be needed. Alternatively, environmental inspections may be contracted out to consulting firms, non-governmental organizations or communities.
Typical conservation and biodiversity protection issues in resource utilization contracts include:
Engineering inspections
Engineering works include roads, bridges and a variety of other constructions. A list of engineering works that may require approval and inspection includes:
Roads (and log landings) and bridges (and other stream crossings), along with camps and maintenance facilities, are probably the most important engineering works to inspect. They are the most likely to cause environmental damage, erosion and stream pollution, and are the most important to inspect from the point of view of avoiding these damages. Road plans, and plans for bridge and stream locations, camp and maintenance facilities may be first reviewed in the office and before construction so that locations may be shifted to avoid potential environmental, erosion or pollution problems. They should then be checked on the ground after construction to confirm their correct location and to make any changes before logging commences.
Road planning and construction
Well designed road systems and proper road construction can reduce soil erosion and stream damage, minimize the environmental impacts of logging and, in addition, reduce logging and log transport costs. Savings in logging and log transportation costs should provide forest utilization contractors with an incentive for efficient road planning and construction. In practice, however, with a very short-term horizon, contractors often put insufficient effort into road planning and construction. The result is poor road layout, expensive log transportation, and environmental damage resulting from bad road location.
Monitoring of road planning may be done relatively easily by evaluating the road plans and accompanying maps to ensure that adequate road standards are met, that roads are located away from streams, and that stream crossings, culverts and ditches meet environmental standards and minimize environmental impacts.
On-the-ground checks can quickly verify the accuracy of the plans and maps. Road location and construction may be monitored on the ground shortly after construction and before logging begins. Monitoring should ensure that the road layout matches the layout on the road plan and maps, and that any problems are corrected before logging begins. Inspection following road construction is easy, as access will be easy. For added efficiency, road inspection may be combined with on-the-ground inspection of the logging plan and/or inspection of the tree marking. It is important that the on-the-ground inspection of road layout, the logging plan and tree marking be done and approved before logging begins.
Financial inspections
Government agencies responsible for the management and supervision of resource utilization contracts usually have an accounting or financial services department, or share financial services with other government organizations. The accounting or financial services department is responsible for ensuring payment of performance bonds, deposits, forest fees and other payments under resource utilization contracts. This department is responsible for notifying contract holders when payments are due (invoicing), for assessing late payments and interest penalties, for sending reminders, and any follow-up actions, if necessary. The department must understand the individual contracts, and the appropriate action when contract holders fail to remit payments. This would include providing the documentation to the legal services department for enforcement and collection action.
Where payments under resource utilization contracts are based on resource harvesting and removals, the financial services department must be in communication with forest agency employees responsible for the measurement and recording of resource use. Independent auditing of harvest volumes may be necessary to ensure accuracy and accountability.
Investment inspections
Contract compliance with investment provisions will involve both office and field investigations. Expertise will be required in specific areas. For example, where the contractor is committed to building and operating a sawmill, expertise in sawmill construction and operation will be needed to ensure that the facilities are properly built, equipped and operated to satisfy the contract. Where the contract requires development and operation of employment training programmes, expertise with training programmes will be needed to verify that the contract provisions are met. Where monetary investments are required it may also be necessary to audit financial records. Governments may find it easier and cheaper to contract for the services of verifying investments. This may be more cost effective and has the added advantage of providing an independent assessment and avoiding disagreements with the contractor over the nature, quality or level of the investments.
Non-timber forest resources
Non-timber resources represent a source of income and subsistence goods in many countries. Non-timber forest resources include a great variety of products from fuelwood and charcoal, resins, medicinal plants, forest foods and wildlife, to recreation and ecotourism. Two types of non-timber forest resource which affect the design of monitoring systems may be differentiated. The first type is resources which are consumed in use through harvesting of some kind. These include living organisms or their parts (fuelwood, forest foods, fruits, medicinal plants, etc.) with either market or subsistence values. Methods analogous to those described for timber resources have been developed for other commercial plant species in the field of botany and its application through botanical economics (Peters, 1994; Panayotou and Ashton, 1992; and Hall and Bawa, 1993). Monitoring animal populations is covered extensively in wildlife management textbooks.
The other major types of non-timber resource are non-consumptive uses such as forest recreation, including ecotourism, wilderness hiking and camping, and wildlife photography, scenery and natural beauty. As these uses are non-consumptive, there is less risk of environmental damage associated with them. However, plant and animal populations which contribute value to activities such as forest recreation, ecotourism and wildlife photography may be at risk from other forces. Monitoring of these non-commercial forest resources is discussed below. Monitoring of recreational resources requires that the quality of visitors’ experiences be surveyed directly as well as any perceived undesirable (or desirable) changes. Methodologies were discussed in a previous chapter, in the section on valuation of non-timber forest values.
Non-marketed forest resources.
Non-marketed resources include all forest resources that are not normally sold in markets and are therefore not priced. Such resources have value, but valuation is difficult. The vast majority of living organisms in forests, as well as many tree species in tropical forests, are not utilized commercially. These resources constitute the bulk of the biodiversity contained in forests.
Non-marketed forest resources deserve special and separate attention from commercial resources for two reasons. First, forest ecosystems comprise a network of linkages among biological and physical elements so that the health and well-being of commercial resources may depend on the non-market components. This means that sustainable use of commercial resources requires sustainable management of non-market resources. Because less is known about the non-market resources, more attention must be focused on them.
Non-market biological resources.
The biggest challenge in designing monitoring systems for non-market biological resources and forest biodiversity is the wide range and diversity of these resources and the number of species involved. Current practice in biodiversity monitoring is to focus on various key indicator species which act as indicators of the health of the entire ecosystem. In addition, measuring of plant species diversity, including richness and evenness, are also used to monitor changes in biodiversity. Ashton (1996) provides a good review of issues in the translation of scientific knowledge on ecosystem function and diversity into operational methods for monitoring.
Cultural inspections
Inspections for compliance with laws, regulations and contract terms relating to the preservation of cultural sites, heritage and traditional use rights of indigenous and forest communities may be carried out by the inspection agency or contracted out. In some cases, the personnel will be the same as those involved in other aspects of inspections. In other cases, specialists in cultural issues (sociologists, anthropologists) will be needed. Some of the cultural protection issues in resource utilization contracts will include:
Social and economic monitoring
In monitoring socio-economic components, the concern is for the distributional aspects of contract operations and their impacts on the quality of life enjoyed by the affected groups. Quality of life is associated with economic status (income and wealth), health, education and cultural stability. Criteria and indicators for measuring many of the social and economic components are often difficult to specify, quantify and evaluate (Binkley, 1996; Sikod, 1996; Colfer, 1996; Merino 1996).
Monitoring human and cultural impacts applies more specifically to individual segments of society, often at the community level. Governments are responsible for ensuring that resource development does not lead to undesirable impacts on communities or indigenous people, that all negative impacts are mitigated or compensated, and that forest utilization contracts are written to generate benefits for these communities or groups. In some cases, forest utilization or procurement contracts may contain provisions for employment and training for local residents, including indigenous groups. Monitoring of those contract elements will be required.
Procurement contracts for goods and services may be for the provision of a wide variety of goods and services: aerial photography, mapping, forest inventories, forest management planning, inspection of logging plans, road layout and construction, silvicultural activities, log measurement, tree planting, environmental surveys, fire protection, water quality monitoring, environmental monitoring, wildlife surveys, etc. It is therefore difficult to detail monitoring procedures, how monitoring should be carried out, and what items should be monitored. This will have to be defined for each type of procurement contract.
There are several important issues in the design and operation of a successful compliance and enforcement system for forest contracts. Enforcement involves a number of components (legislative groups, legal instruments, enforcement agencies and courts) which act independently, or are autonomously administered, yet must function together to be effective. There is also a relatively broad range of enforcement responsibilities involved in the administration and management of public forest lands and resource utilization contracts beyond simply ensuring contract compliance. Another important and challenging issue is the control of bribery and corruption. Each of these issues is discussed below.
Enforcement systems comprise four major components (Donoghue and Paananeu, 1984):
Legislative bodies and groups, which vary from country to country depending on the political system, enact and amend laws that legitimize enforcement powers. Compliance and the effectiveness of enforcement depends critically on the conditions and clarity of the legislation, and on the strength and clarity of the commandments written into these laws. Legislative bodies also pass legislation that empowers non-elected government officials to establish regulations and enforcement procedures as well as powers to enter into contracts. The regulations and the contracts will both contain clauses or provisions that require enforcement and specify penalties.
Legal instruments vary from country to country, but include statutes, decrees (presidential, ministerial, federal, state or provincial, and municipal), ordinances and by-laws of local governments, regulations and government contracts. These various legal instruments define who has enforcement powers, and under which legal instruments. They also establish the legal basis for sanctions or charges as well as the penalty provisions, all of which are central to the enforcement system.
Enforcement agencies are organizations and persons empowered to enforce the various legal instruments. Given the extensive geographic distribution of public forests, the type and the potentially diverse nature of resource utilization contracts, a variety of organizations and persons may be involved in enforcement. These enforcement persons and organizations may include the police (local, state or provincial, federal), the military, federal and state or provincial forest officers, park officers, independent private sector security companies, community organizations, or third party non-governmental organizations. These persons or organizations represent the field level “front line” of the enforcement system. Consequently, the mandate given to these agencies, their capacity (funding, skills and experience of personnel, organizational design) and the way in which they interact (institutional structures and arrangements) will be a determining factor in the success of the enforcement system.
Courts, (judges, prosecuting attorneys, clerks, bailiffs and administrative staff) are the fourth component in the enforcement system. Successful enforcement depends on the commitment of the judicial system, primarily judges and prosecutors, to aggressive prosecution of accused offenders, and to sentencing commensurate with the crimes and penalty provisions of the legislation.
Effective enforcement systems depend on all four components working together. For coordination of ongoing enforcement operations and for planning of enforcement policies and procedures, there must be mechanisms for communication, particularly among the first three components of the enforcement system.
Enforcement may involve one or more of four different bodies of law: criminal, civil, administrative and contract law. Criminal law applies to offences against the state or society. The definitions of criminal offences vary among countries, but arson (deliberately setting fires) and theft (of timber or other property) are two examples that are common to most countries. Civil law applies to crimes committed by one person or party against another. Administrative law applies to the administration of statutes, for example laws related to the management of public forest lands or other natural resources. Contract law relates to contracts between two parties (individuals, companies or contracts with government), for example forest utilization contracts, or contracts for the provision of goods and services for forest management.
Breach of contract is technically a civil offence (a crime by one person or party against another); however, often there are separate codes of law in countries that subdivide major classes of crime and contract law is commonly one of these.
These four legal dimensions to enforcement pose a significant challenge for the design of enforcement systems. Issues such as familiarity with each jurisprudence, training, field methods, investigation and arrest procedures, personal safety, collection and preparation of evidence, and the burden of proof, vary substantially among the different classes of crime.
Bribery and corruption may take a variety of forms, involve several types and degrees of crime, and involve all four types of law and enforcement. Bribery and corruption are common in one form or another in almost all countries, and all sectors of the economy and society. For a number of reasons, however, it presents unique challenges in the forest sector and in the management of public forest lands. The extensive geographic nature of forests, which impedes supervision and control, the challenges and cost of supervision, and the generally low priority afforded by governments to the forest sector create conditions which tend to promote graft, bribery and corruption.
Corruption inflicts a variety of difficult to measure costs on society. These are categorized by Klitgaard (1988). They are summarized in Table 10.1.
Table 10.1: The costs of corruption (after Klitgaard, 1988)
Efficiency costs |
Waste resources Distort resources use Create “public bads” Distort both economic and forestry policies |
Distributional costs |
Reallocate resources to the rich and powerful, those with military or police power, or those with monopoly power |
Incentive costs |
Distort energies of officials and citizens towards the socially unproductive seeking of corrupt rents.Create risks, induce unproductive preventive measures, distort investments away from areas with high corruption. |
Political costs |
Breed popular alienation and cynicism Create political instability |
Mechanisms for dealing with corruption need to be identified and incorporated into the design of enforcement systems at all levels. Klitgaard (1988) identified the agent and the client as the two parties in any corrupt action. Both should be targeted by enforcement systems. Klitgaard suggests five concrete actions to help control corruption:
It is impossible to totally eliminate corruption, but it is possible to monitor and reduce it. In many cases, it is possible to estimate the direct costs associated with corrupt activity, such as lost government revenues from illegal logging, under-reporting of volumes cut, miss-classification of species, etc. It should also be possible to estimate the costs of different levels of control and the associated magnitude of the recovered revenues. Based on these calculations, it is then possible to choose the most efficient level of control.
A final point is that anti-corruption measures must be championed within the government, and at the highest level. There must be a political commitment to tackle corruption if enforcement measures are to succeed. Without genuine commitment from government at the highest levels, any enforcement mechanisms which are tried are likely to fail.
Four major components in enforcement systems were identified in Section 9.4.1: legislative bodies, legal instruments, enforcement agencies, and the courts. This section focuses on the design and functioning of enforcement agencies, with emphasis on prevention and enforcement policy. The discussion then turns to the creation of institutional structures for enforcement, and a review of those organizations usually involved in enforcement.
Prevention programmes involve two types of activity: education and training, and inspection (Donoghue and Paananeu, 1984). Education programmes are designed to improve compliance by informing the public about laws and regulations and the penalties associated with non-compliance. In explaining the objectives of laws and regulations, enforcement agencies can build public support and cooperation, improve compliance and gain cooperation in enforcement. Penalties will act as deterrents only if would-be offenders are aware of the consequences of being caught, and the risks of apprehension outweigh the potential benefits of illegal behaviour. Training programmes are more focused towards groups such as forest companies, contractors, sub-contractors, forest workers or local communities to explain and demonstrate ways of improving compliance or developing skills that can assist in inspection and detection.
Education and training programmes have been used by a variety of organizations to improve enforcement and compliance. The US State of Maine Planning and Zoning Commission used education and training of logging equipment operators to improve compliance with new timber harvesting regulations (Pidot, 1982). In Canada, the British Columbia Forest Service has a silviculture training programme for practising foresters to help compliance with the Province’s Forest Practices Code Act and Forest Regulations. In Sweden, the Forest Service also used education programmes as a means of improving compliance with regulations applicable to all forest operations (Eckerberg, 1986, 1988). Sangal (1984) reported the use of education programmes to inform local farmers in India of the damages associated with setting fires in nearby forests, along with training programmes to develop local capacity in fire suppression. In the United States, Kernan and Drogin (1995) demonstrated the benefits of interpretative messages to improve compliance with off-trail hiking restrictions in Mount Rainier National Park.
Vigilance is the other important prevention activity. Both regular and random patrols serve as a deterrent to potential violators because they increase the probability of detection. Patrols can take various forms. Field patrols may be by vehicles, boats, planes, on foot, by animal transport (horses, etc.), or in some cases by remote sensing. Aerial patrols are often used in fire protection activities which include the detection of human-caused fires, or to detect illegal logging, log transport or log exports. Regularly scheduled and random visits to logging operations and other forest operations can deter or detect specific violations of contract provisions. Office inspections of documents, data, financial records and other material are done by office visits to field and central offices, banks, accounting firms and other organizations or through the use of computers and telephones.
The choice of a balance between positive incentives and penalties (negative incentives in encouraging and achieving compliance) is an important decision to be taken. In Sweden, as in many countries, persuasion through education and training is the preferred method over sanctions, court action and penalties for non-compliance with forestry laws and regulations (Eckerberg, 1986). The benefits from compliance are stressed over enforcement and punishment. Enforcement through the courts can be extremely expensive and successful prosecution difficult.
Another enforcement policy issue is the choice between basing assessments of compliance on specific, clearly defined, measurable performance criteria, or on management practices, as opposed to measurable results, involving more general procedural criteria and a “systems approach”. These two approaches have been debated intensely in the development of alternative forest management certification systems. Generally, performance-based criteria have been preferred. However, specific detailed performance criteria are often difficult to define and can be extremely costly to measure.
Discussion of enforcement policies may be summarized with a few suggestions and recommendations on how to proceed in promoting enforcement and compliance with forest utilization or procurement contracts. These suggestions and recommendations are as follows:
In addition to the direct enforcement activities discussed in previous sections, a number of incentives may be used to encourage compliance under resource utilization agreements and in procurement contracts. A common incentive is performance bonds. The performance bond is returned only after final inspections have been completed to verify that the contract provisions have been honoured. Alternatively, procurement contracts may contain a withholding clause, under which final payments are withheld until completion of the contract and contract performance has been inspected and verified. In either case, contractors have a financial incentive to comply with the contract terms. Examples of additional contract performance incentives applicable to resource utilization contracts include:
The above sections addressed the questions of what, how, where and when to monitor forest activities and impacts. The final question, primarily an administrative one, is - “who does the monitoring and who will be accountable for achieving contract terms?” - that is, who will be responsible for data collection, analysis, interpretation of forest monitoring and the taking of corrective measures? As with other government administrative functions, there is a range of options in allocating the administrative tasks associated with monitoring among organizations in the public and private sectors. In some cases governments will find it advantageous to contract direct with other government agencies or private sector firms for specific monitoring activities. This could include anything from the design of monitoring programmes or components to data collection, analysis and reporting. In some cases, responsibilities for some aspects of monitoring may be assigned to forest utilization contractors as part of resource utilization agreements.
Other organizations and institutions may become involved in monitoring. Local communities can play an important role in monitoring. They have knowledge regarding local conditions, the forests, plant and animal species and other resources, resource utilization and land use history. They have an interest and a stake in forest use and forest management, they live in the area and have “on-site” knowledge of activities. Monitoring can be a way of involving local communities in forest management of public forests, giving them a stake in the way the resources are utilized and also providing local employment.
Colleges, universities, forestry research and other research institutions may be involved in monitoring activities in various ways, through contracts for monitoring activities, in the provision of expert advice or in undertaking research on forest management issues. Private sector consultants and local forestry and environmental organizations with the capacity and expertise may also be involved in contract monitoring activities
Because of the specialized demands of monitoring, it may be necessary or advisable to involve international organizations or expatriate assistance. Short-term contracts with qualified international organizations can be an effective means for setting up monitoring procedures and providing training for local staff. International organizations may also be used in independent auditing of monitoring activities.
Christensen (1983) discussed institutional options for enforcement and identified three alternatives: (1) direct hire of enforcement personnel, (2) use of local agencies such as the police, military or others, and (3) contracting with independent organizations or companies. The advantages and disadvantages of these three options are presented in Table 10.2.
In the first option, direct hire, the agency responsible for supervising contractual agreements will have to develop enforcement capacity by hiring and training its own staff in enforcement duties. This option is commonly chosen for enforcement in resource utilization, as well as forestry services procurement, contracts. The enforcement functions then become part of the duties of the existing personnel. An alternative is for a separate government organization to take on enforcement duties. In the US Forest Service, direct hire is used for enforcement duties such as investigation of criminal offences and more serious civil crimes (Donoghue and Paananeu, 1984). Forest Service staff will usually work in close cooperation with other public law enforcement agencies.
The second option, the use of existing public law enforcement agencies, depends on the knowledge of, and experience in, enforcement procedures by agencies such as the police or military. This option is commonly used where specialized enforcement skills and experience are required, and for more serious crimes where there may be danger or resistance to forestry personnel. In Zambia, Zimbabwe and Botswana, as well as other countries, the military has been used in patrolling wildlife preserves and borders to curb both domestic and cross-border illegal hunting of wildlife, mostly rhino and elephant. In Cambodia, the military have been used in controlling illegal logging.
The third option, the use of contractors, involves contracting out enforcement procedures to an independent organization. With the development of forest certification programmes and certification companies and organizations, third party auditing of forest practices (inspection) and enforcement (primarily through certification incentives) in production forests is possible. One main assumption for third party inspection is that it provides an unbiased, independent evaluation of forest practices, and thus adds credibility to forest management and administration.
Contracting independent, non-governmental organizations for enforcement activities may also be possible. Private security and detective services are available in some countries, and this option may be considered if the police or military authorities are suspected of involvement in such activities as illegal logging.
A fourth option, in addition to the three in Table 10.2, involves local communities in monitoring, inspection and enforcement reporting. The advantages of involving local communities are gaining recognition. Forest communities have local experience, live, work and travel in the area. Examples include community involvement in protection of parks and natural areas and in managing adjacent buffer zones (Ghimire, 1994). Involvement of local communities in protection of parks and natural areas, conservation and ecotourism are seen as beneficial, providing both the financial benefits of employment to the community, and the protection benefits to parks and natural areas. Agrawal (1996) identified advantages of community-based management over traditional government and market-based (private sector) options in the Indian Himalayas, including enforcement activities. Sangal (1984) concluded that education and involvement of communities and their collaboration were the most effective way of obtaining compliance with forest fire laws in India. Lewis et al. (1990) and Murindagomo (1992) described two community-based wildlife management programmes, one in Zambia and the other in Zimbabwe, both designed to curb poaching of wildlife.
Table 10.2: Options for enforcement agencies (adapted from Christensen, 1983)
Enforcement option |
Advantages |
Disadvantages |
1. Direct hire |
-control over salaries and costs |
-must obtain authority to engage in enforcement activities |
-enforcement can be directed as needed |
-develops unwanted “police” image | |
-control over enforcement priorities |
-personnel may not be considered legitimate authority | |
-personnel are familiar with the area and forest management issues |
-specialized training in interdictions methods required | |
-personnel may be used for other forestry activities |
||
2. Local agencies |
-potentially less cost |
-personnel may not be available when they are needed |
-personnel are clearly recognized as authority |
- limited control over enforcement priorities | |
-no need to obtain authorization for enforcement activities |
-personnel may not be familiar with the area, or with resource management issues | |
-no need for specialized training in interdiction methods |
-lack of ability to control hours and areas (geographic) of work | |
3. Contractors |
-vendor may absorb some costs if it is a public agency |
-statutory authority must be established |
-some control over hours, areas of work |
-personnel may not be familiar with geographic area, or resource management issues | |
-enforcement “bought” as needed |
||
-personnel normally recognized as authority (uniforms, vehicles) |
Jurisprudence education and training is an important component of the entire enforcement system (legislative bodies, enforcement agencies and courts). The lack of knowledge by forestry staff of the laws, regulations and other legal instruments in forest enforcement is a common and significant problem in encouraging cooperation with the courts (judges, prosecuting attorneys and other staff) to secure convictions. The deterrent effects of laws and regulations are lost if cases are dismissed or not effectively prosecuted or offenders are not convicted. This will weaken enforcement and compliance incentives. On the other hand, a lack of knowledge by public law enforcement agencies and the courts of the issues in management of public forest lands will affect the legal system’s ability to deal with forest sector enforcement (Agrawal, 1996). A comprehensive programme for jurisprudence training can address these deficiencies. The programme should include modules for all players in the enforcement system, forestry enforcement staff, prosecution lawyers, court officials and judges.
P.S. 1996. Stand level concepts and indicators for certification of forest management. Proceedings of the UBC-UPM conference on the ecological, social and political issues of the certification of forest management. Vancouver, Canada. Faculty of Forestry, University of British Columbia. pp. 25-58.
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J.A. 1983. Law enforcement sources for wildlands. Journal of forestry, 81(12): 785-787.
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1 Normally the nation is taken as the unit of society. But it could just as well be a smaller geographical or administrative unit such as a province. Or, the larger global society.
2 For a description of discounting techniques and measures of economic and financial worth, see Gregersen and Contreras, 1992.
3 A detailed discussion and analysis on this topic may be found in FAO Forestry paper 43 Forest revenue systems in developing countries (Gray, 1983; Pearce, 1990; Grut, Gray and Egli, 1991; and Gillis, 1992).
