It is often assumed that if laws were strictly enforced, all would be well in the forest sector. However, due to a number of policy and legal failures, stricter forest law enforcement does not always contribute to legal and sustainable forestry. Before identifying ways to build institutional capacity to foster better law compliance (Chapter 5), this chapter provides guidelines and examples of best practices to develop a sound policy and legal framework with provisions to reduce the attractiveness of illegal and corrupt practices for operators in the forest sector.
Assessing the complex social, economic, cultural and political causes of forest law violation will enable the root causes of the problem to be addressed rather than its symptoms.
There are many reasons why people break the law, and motivations will vary extensively depending on the actors involved and the activities they are engaged in. Powerful actors may engage in lucrative illegal logging on a wide scale because they know that in certain settings they can get away with it. Poor farmers may commit minor illegal acts on a daily basis because they feel they have no choice. There may be any number of other contributing factors: unclear and/or discriminatory land tenure systems contributing to a lack of local responsibility for sustainable forest stewardship; prohibition of subsistence use by people whose livelihoods depend on forest products; cumbersome bureaucratic procedures and complex legal demands; policy and legal failures making illegal operations more profitable than legal activities; weak law enforcement and low penalties for illegal operators when caught; and unfeasible provisions creating the perception among forest users that the law is unfair and out of touch with reality. Forestry-related laws and regulations might be difficult to respect in some cases, especially for small producers and disadvantaged rural communities, who may not have the means to follow costly and complex legal requirements or who are excluded from benefits of nearby forests.
An important task in strengthening forest law compliance is to examine the policy and legal framework governing the forest sector and to eliminate requirements that are impossible to comply with or contradictory. This task must be based on an analysis of how regulations affect actors in the forest sector, in terms of their financial, technical and managerial ability to follow legal requirements and in terms of their needs. The financial impacts of regulation on the main stakeholders can be analysed using standard economic analysis techniques. In cases where regulations reduce profitability thereby precluding realistic compliance, such as in the Bolivian example (Box 11), the government may consider support in the form of financial incentives and/or compensation to induce forest operators to comply with the law on a voluntary basis (see section below on increasing the profitability of legal operations).
Forest-dependent communities are less likely to comply with forest laws if they think that to do so will endanger their livelihoods. Policies designed to control illegal activities in the forest sector, such as logging bans, have sometimes proven counter-productive because powerful political interests continue to find means to log the forests while more vulnerable poor and small-scale forest producers have been unable to find alternative livelihoods (Molnar et al ., 2003). Consequently, further impact analyses should be carried out to investigate the possible effect of the law on the livelihoods of the poor (Box 12). Many of these impacts will not be covered in the financial analyses mentioned above simply because many of the forest products that are essential for the livelihoods of poor populations do not enter formal markets and therefore do not have market prices. Controls on trade in illegally harvested timber and forest products may result in communities finding that their subsistence and commercial activities are not recognized or permitted, undermining their incentives for sustainable and legal forest use.
Mozambique has made a remarkable effort in recent years to analyse the forest and wildlife law in the context of poverty alleviation. Poverty reduction is one of the main overall objectives of Mozambican society. Like all other sectors, the forest and wildlife subsector has designed its policy and development strategy based on this national objective. Improving forest law enforcement should, therefore, have a positive impact on poverty reduction although this assumption should not always be taken for granted (Box 13).
Legal forestry operators often fear being undermined by less scrupulous competitors and government pressure. Moreover, large companies operating illegally are sometimes found to be linked to the funding of conflicts and the provision of arms to governments or rebel groups in the countries in which they operate (Global Witness, 2004b). Any company prepared to tackle vested interests may be threatened with having its concessions terminated and awarded to less scrupulous competitors.
However, recent research shows that if all exports associated with illegally harvested logs were phased out by 2007, international roundwood, lumber, and wood panel prices would rise by 19 percent, 7 percent, and 16 percent, respectively, and companies operating legally would significantly increase their earnings (Seneca Creek Associates and Wood Resources International, 2004).
It is therefore crucial to ensure that the regulatory frameworks strengthen the government's control over its natural resources and the domestic timber industry by integrating transparency and accountability into the industry's operations and by working with the international community to ensure that the government has adequate capacity to manage the logging industry and phase illegal operators out of the marketplace.
As mentioned earlier, a sound and coherent policy framework is a prerequisite to the development of clear, transparent and consistent legislation. Laws are only instruments to implement an overall strategy, and it might be necessary to conduct an all-encompassing review of the forest policies in place before drafting or redrafting forest and forest-related laws. In 1998-1999, Ecuador conducted a multistakeholder process to develop a sound forest policy with a set of objectives and five general priorities, which now provide an overall framework for the development of forest laws (Box 14).
One of the fundamentals of good legislation is that laws are communicated to and understood by those stakeholders most affected by them. Legal clarity contributes to compliance, reduces the possibility of arbitrary interpretation of the law by government officials and facilitates the task of the judiciary. Clarity will be achieved by:
Ensuring a participatory approach to forest law-making will promote transparency, reduce the potential for corruption, ensure greater equity, minimize the undue influence of privileged groups and encourage parties to follow legal requirements. It will also enable stakeholder groups to voice their concerns and protect their rights from arbitrary unilateral decisions by governments. In Honduras and Ecuador for example (Box 15), a conscious effort to ensure the integration of various points of view was carried out by favouring a participatory process in the design of the new forestry laws and technical norms. Public involvement in forestry policy is essential in order to formulate a policy that acknowledges people's needs and capacities.
Stakeholder participation will take different forms according to socio-economic and institutional contexts, but the following general guidelines for developing a legal framework for participation can be applied and adapted to most situations (Lindsay, 2004).
Transparency is a key factor in reducing corruption and preventing the willful participation of government officials in illegal activities. In the forest sector, lack of transparency primarily affects the awarding and monitoring of concession contracts, decisions on procurement contracts, staff responsibilities and calculation and collection of fines for illegal activities. Consequently, transparency will be greatly improved through policy reforms related to the granting and monitoring of concessions and subsidies and to issues of accountability in forest administration.
Ensuring full and mandatory disclosure of documents of public interest concerning the forest sector will enable people to contribute directly to law enforcement by equipping them with a knowledge of which forest operations in their local area are legal, and who to talk to if they are not. These steps can improve law compliance by giving public credibility to the decisions and actions of the forest administration. The following information should therefore be in the public domain:
These documents should, to the extent possible, be made available on the Internet, while printed copies should also be made available through the forest administrations.
Other specific best practices include:
Consistency means that one legal provision should not directly contradict another. A forest law needs to be consistent internally and with other instruments (e.g. land tenure, public property administration, subsidies, infrastructure, trade regulations) used to achieve a relevant policy.
A forest law may contribute to policy convergence with other sectors, but it is too much to expect that a law alone will reconcile all policy conflicts and contradictions (Christy, 2004). An adequate architecture of the forest sector legal framework must therefore include a sound analysis of legal linkages (see section on cross-sectoral linkages and collaboration in Chapter 4). Some countries, such as Honduras (Box 22) and Cambodia (Box 23) are progressing along these lines by dedicating considerable efforts to harmonizing forest-related legislation.
Decentralization can - if carried out under the right conditions - contribute to simplifying bureaucratic procedures. It can also lead to greater transparency in governance provided it is designed and implemented so that procedures and decisions are open to scrutiny and local officials are genuinely accountable to local populations. Many countries, including Bolivia and India, are empowering local authorities to make routine decisions in order to reduce the bureaucratic load forest operators face to obtain government permits and approvals (Box 24). Needless to say, the decentralization process must go hand in hand with capacity-building of decentralized institutions and sound funding of local government budgets for forest law implementation and enforcement (see Chapter 5 for more details). Decentralization is not a certain remedy for local corruption but may help in building more accountable and transparent decision-making in the forestry sector.
Avoiding regulatory proliferation. Several of the case studies already referred to show that there is often a correlation between how numerous regulations are, and how big corruption and the "informal" (or illegal) economy are (see Figure 3). Developing countries tend to have an overabundance of regulations (World Bank, 2004). Regulatory proliferation is often an indicator of a weak policy framework which does not adequately address the long-term vision for the forestry sector. This multiplies the risk of legal inconsistencies, contradictions and overlapping jurisdictions and complicates the understanding of the regulatory regime affecting the sector. All of this in turn allows for more discretionary decisions and, therefore, increased opportunities for corruption.
The following guidelines may assist governments in limiting regulatory proliferation, overlaps and inconsistencies:
It is worth noting that sometimes a complete review and redrafting of the entire forest legislation might be the best approach.
Simplifying forest regulations concerning management planning. Simplifying forest rules and regulations, including requirements for management plans for small holders, will greatly increase law compliance and reduce opportunities for discretionary decisions and subjective interpretations of the law by government officials and forest operators. Appropriate legislation supporting simpler forest management plans for small-scale or community-based forest operators has been developed in many countries including: Argentina, Bhutan, Bolivia, Brazil, Cameroon, Cambodia, Chile, Ecuador, Gambia, Guatemala, Indonesia, Kenya, the Lao People's Democratic Republic, Malawi, Mexico, Mozambique, Myanmar, Nepal, Paraguay, the Philippines, Senegal, the United Republic of Tanzania and Viet Nam (FAO, 2004a).
The use of simpler criteria and requirements for planning, harvest and resource assessments greatly facilitates compliance and eases enforcement and monitoring by forest guards (Boxes 26 and 27). However, forest extension services need to play a key role in this process as facilitators, communicators and technicians, assisting local communities and small-scale operators to develop their forest management capacity.
Rules and regulations can also be simplified for the system of concession and logging fees (Box 28).
Illegal forest operations are often the result of poor or non-existent control over resources. Security of tenure is therefore one of the most important mechanisms to ensure accountability and control of forestry operations at the local level. Tenure rights need to be supported by adequate capacity and an empowering legal framework.
In recent years, stronger tenure rights in forests for local people have been promoted for a number of reasons - most prominently as a way of improving local livelihoods and recognizing legitimate local claims to rights over land and resources, and as part of a general trend towards devolving or decentralizing various governance functions.
It is also increasingly recognized that unless local people have a significant stake in the management of local forest resources, the efforts of under-staffed and poorly financed forest officials to patrol and protect forests will often be futile. The absence of such a stake both reduces the incentives of local people to comply with the law, and prevents them from insisting on the compliance of outsiders, including government officials themselves.
Throughout history, national legislation has generally been unfriendly to local forest tenure rights. In many parts of the world, the overall trend has been an inexorable assertion of governments' legal control over forests at the expense of local practices and local perceptions. While local usage rights have frequently been given some recognition, forest laws have provided little scope for local people to play a meaningful part in the planning, management and allocation of forest resources on which they may have depended for generations - and which, in numerous cases, they may have actively managed and protected on a de facto basis, even though they have no de jure rights to do so. Frequently, the state has taken on the management role itself through the creation of state forests. In other contexts, national law may have left the tenure status of forest areas unclear, giving little or no legal protection to existing community-based systems and providing no alternative mechanisms through which local groups or individuals might assert effective control. Furthermore, given that state institutions are frequently ill-equipped or unmotivated to exercise the legal power they have assumed, the result is often an open-access situation. Recent legal changes have taken many forms, including the following (Lindsay et al ., 2002).
It should be noted that the emergence of new legal techniques in a number of countries to support greater local tenure rights in forests has not always resulted in more robust rights in practice. Where legal frameworks have been reformed, the results have often been ambiguous, technically unsound, contradictory and/or not supported by enough political and social will to make a substantial difference on the ground. Where political, social, economic and ecological conditions are unfavourable for motivating and sustaining local management, a supportive legal framework may not make much difference. And of course, community members themselves are not inherently immune to temptations to engage in corrupt or destructive activities, and the strengthening of property rights or other stakes in forest management may not always be sufficient to dispel such temptations. Nonetheless, despite the mixed track record of community-based initiatives over the last decade or so, the underlying rationale for real local involvement remains persuasive and urgent.
The Cambodian and Indonesian experiences show that the expansion of the wood processing capacity well beyond the available national supplies of raw material provides an incentive for forest crime. In some cases, the option to obtain the shortfall from imports and thus abstain from buying illegal wood from local producers has been financially prohibitive, particularly for industrial production lines that require large wood volumes.
The following are a few examples of best practices that promote a balance between industrial demands and sustainable supplies from the country's forests.
The impacts of policy and legislation in related sectors such as transport, mining, agriculture and energy can have a profound effect on forests, forest management, illegal activities in the forest sector and the livelihoods of forest-dependent people. A better understanding of the linkages between different sectors and a coherent and overarching approach to forest issues can help reduce uncertainty, maximize synergies and minimize the occurrence of illegal practices in the forest sector. Three levels of coordination may be defined (FAO, 2003):
Strong political will and commitment to better interagency cooperation is needed in order to increase successful cooperation among various levels of governments. For instance, in Ecuador, the decision to establish a system of law enforcement involving the police and the military, along with other government agencies, the private sector and civil society was feasible only thanks to strong political commitment at the highest levels. The following best practices facilitate intersectoral coordination:
One of the root causes of organized illegal activity in the forest sector is the profitability of forest crime compared to legal logging and associated legal trade. For example, illegal loggers do not pay taxes or fees for the standing wood, do not bear forest management and post-harvest operation costs and do not have to dedicate efforts, money and time to comply with bureaucratic requirements. Furthermore, illegal loggers often focus on the most valuable species of wood, further boosting the profitability of illegal logging. With higher profits, a low chance of detection and negligible penalties, illegal activities have a strong financial appeal.
Detecting and penalizing illegal activities through the following actions will limit the financial appeal of breaking the law.
Some of the tools that can be used to increase the profitability and competitiveness of legal operations include:
Effective implementation of forestry laws requires a reasonably functioning judiciary, both to hold law-breakers accountable for their actions and to protect the legal rights of various stakeholders. However, the reality in many countries is that courts function poorly for a variety of reasons. They are often understaffed and underfinanced, and face caseloads that greatly exceed their financial and human capacity to cope efficiently. The training of judges, particularly at the level of courts that deal with typical forest-related cases, may be weak in general and will usually not involve any specific training in forestry laws. The lack of separation of the judiciary function of the state from executive and legislative branches is a common problem in some countries, leading to widespread interference in the affairs of the judiciary and corruption at all levels, including in the forest sector.
Achieving judicial independence in order to ensure impartiality in judicial decisions is a complex undertaking. There are various ways in which countries have sought to attain this goal and the following general guidelines can assist in such a process (United States Agency for International Development [USAID] 2002):
It should be recognized, of course, that broad reforms to the judicial system are well beyond the mandate of forestry governance institutions to initiate or lead, though they can be effective lobbyists and supporters for such a process. In any case, there are other forestry-specific interventions that can be helpful. One is to target the often weak knowledge and appreciation of forestry law issues among the judiciary through professional training programmes. FAO has been supporting this type of strategy in Mozambique through a programme of training in forestry and related natural resource laws for rural resource managers and their advocates, judges, lawyers and administrators, and non-governmental organizations. For most of the district judges, this is the first formal instruction in these laws that they have received. With the skills developed during these courses, judges are much better equipped to deal consistently and professionally with forest-related cases that come before them (Box 34).
Another option, which would enhance the capacity of the judiciary in forest issues, is to make public and include in concession contracts the mechanisms by which fines are calculated and then to transparently apply the formula (see section in this chapter on increasing the competitiveness of legal operations). This would largely eliminate the discretionary power of the forest authority in assessing fines, and would significantly reduce the number of cases which cannot be resolved through a straightforward administrative process and actually need a judge.
A number of steps can be taken in order to streamline and rationalize forest policies and laws, including to:
After the approval of a new Forestry Law in Bolivia in 1996, there was considerable debate surrounding the financial viability of sustainable forest management in the context of the new regulations which established new forest fees. An economic analysis of the financial implications of the new rules was carried out and it was found that while sustainable forest management practices following the new regulations were still capable of earning positive rates of return, they were less profitable than traditional logging practices. The new regulations had imposed additional burdens on forest operators that reduced their profitability. The analysis concluded that loggers would therefore not be motivated to comply with the new law, and raised doubts about the chances of the forest sector as a whole following the law. This kind of impact analysis should be carried out in all countries to test the feasibility of new legal prescriptions.
Source: Bojanic and Bulte, 2002
A recently released report, Implementing the natural forest protection program and the sloping land conversion program: lessons and policy recommendations , found that the blanket application of the logging ban by several provinces in China is not the best way to conserve forests, but that a more fine-tuned, location-specific approach (including financial and institutional measures) would yield better results. Among other recommendations, the report found that it would be more effective to limit illegal forestry operations and improve rural livelihoods by: removing the ban on logging from collectively owned forests where appropriate; developing an exit strategy to move from the logging ban on state-owned forests to their sustainable management; and developing a forest land use plan which ensures protection of old growth natural forests. Calling for the active participation of local officials (including from other sector agencies) and representatives of stakeholders, the report advises improving the targeting and implementation of the program by adopting specific environmental targeting criteria and more market-based mechanisms.
Source: China Council for International Cooperation on Environment and Development (CCICED), 2002
In the last decade, Mozambique has been engaged in a participatory process to completely review and transform the policy and legal framework for the forest and wildlife sector, in order to guarantee its effective contribution to poverty reduction and sustainable development. The forest policy/legal reform has produced an advanced and sound legislation for this sector. Various systems of forest use are now in place, ranging from the award of long-term (50 year) secure concessions to loggers, to community-managed resources and fully protected areas. Although there are still several regulatory measures yet to complete, their preparation is going ahead. Once this process is concluded Mozambique will have adequate legal provisions for tackling illegal forest acts through a strategy based on prevention, detection and suppression, while contributing to poverty alleviation. The current challenges for improving forest law compliance in Mozambique do not concern the policy/legal framework, but rather the capacity to monitor forest production and trade.
Source: Del Gatto, 2003
In 1998/99 the government organized a nation-wide multisectoral process to review the 1995 forestry policies and turn them into immediate and concrete action strategies. By mid-1999, the Sustainable Forestry Development Strategy of Ecuador was established following a consensus between several actors in the forestry sector, including environmental and industry interests, local and indigenous peoples and communities, professional associations and academics. This new forestry strategy defines the forestry policy as the "guiding framework in order for all the actors, institutions, organizations, groups or individuals involved, to be able to follow and determine, accordingly, future decisions related to the forestry sector. The base for sustainability along this policy implementation is the active participation of civil society in the different institutions and at the different decision levels." The forestry policy consists of a set of objectives, strategies and actions for implementation over the next 20 years.
It also contains the following set of innovative guiding principles, which must be reflected in the legislation and the institutional setting in order to promote cohesion and consistency:
Source: Thiel, 2004
The draft of the new Honduran forest law is the product of an extensive multistakeholder dialogue begun in 1999 involving farmer trade unions, indigenous peoples, timber producer associations, professional forest associations, municipalities, academics, parliamentarians and other stakeholders, within the framework of the Honduran Forestry Agenda (AFH). This multistakeholder dialogue has reshaped the forest sector by increasing the participation and influence of civil society in forest-related decision-making processes. Around 1000 people from 138 organizations have participated in about 100 meetings to debate and build consensus on sustainable forestry in Honduras.
In Ecuador the first draft of the Norms for the Sustainable Forest Management for Timber Harvesting was prepared by a multistakeholder expert group. The norms were enacted in mid-2000 following an intense consultation process. They were later modified to better reflect the reality of forest dwellers through a process in which forest users and regulators participated actively. As a result in January 2001 and later in June 2004 new, improved and enriched versions of these norms were issued.
Sources: Wells et al., 2004; Zapata, 2005; Thiel, 2004; H. Thiel, personal communication, 2005
The stock-taking workshop on African Forest Law Enforcement and Governance (AFLEG) held in March 2005 in Ghana used a tripartite approach involving government, civil society and the private sector. This was the first open and honest dialogue between the key stakeholders of the Ghana Forest Sector on corruption since the signing of the AFLEG declaration in Yaounde, 2003. A level playing field during the discussions was ensured through independent, third party facilitation.
The various participants voiced many concerns regarding forest law enforcement and governance in Ghana, including:
Some concrete actions were suggested by the workshop participants to increase coordination among all interested parties, including:
A draft action plan, with priorities, roles and responsibilities was drawn up, which could be used as a blueprint for further actions. Providing space for tripartite engagement has proven to strengthen prospects for credible outcomes and their implementation through increased ownership of the processes and results for a wide range of actors.
Source: M.Laurie, IUCN, personal communication, 2005.
The Bolivian Forest Superintendence (Superintendencia Forestal), which is the governmental forest management monitoring body, is required by law to hold annual public hearings to report on its work and to provide an opportunity for the public to raise questions about its performance. Citizens can request copies of official documents. Likewise, the Ministry of Sustainable Development can only modify regulations under its jurisdiction (technical regulations) in consultation with interested parties through public hearings. Open auctions must govern the allocation of timber concessions and the sale of forest products seized from illegal operators.
Source: Pacheco, 2004
The Government of Cameroon has improved disclosure of information to forest stakeholders about illegal acts and has published several lists of companies that have committed illegal forest acts and been fined. An analysis of the published statements highlights the discrepancies between the total value of penalties levied and the proportion paid so far:
This indicates that additional measures are needed to ensure the government's timely response to illegal acts and more transparency in the disclosure of such information.
Sources: Amariei, 2005; Global Witness, 2005a
In Bolivia, the decisions of the head of the forest administration ( Superintendente Forestal ) were often guided by political pressure from the ruling party or by private interests channelled through the Minister, who had great discretionary powers to remove someone from his/her position. The new legal framework issued in 1996 dictates that the head of the forest administration be appointed by the President of the Republic, who must choose from a shortlist of three candidates proposed by Congress. Appointment is for six years, thus straddling the presidential five-year mandate. The head of the administration can only be removed after an open institutional procedure, which must prove either gross inefficiency or corruption. As a result, the first head of the forest administration to have been appointed under the new system held the position for several years, a drastic change from the revolving door appointments of the past. The administration was also able to attract more qualified candidates and to give more weight to the management of staff based on professional merit. However, the appointment of the new Superintendente Forestal was delayed because political parties were unable to reach an agreement about who should be appointed.
Source: Contreras-Hermosilla and Vargas Rios, 2002
The first concession right was issued in 1994 and within three years there were 33 concessions operating in near anarchy and covering nearly 7 million hectares of Cambodia's estimated 10.7 million hectare forest estate. In 2002, the government started to restructure the concession system and made the approval of concessions dependent upon more stringent rules, especially regarding environmental and social impacts and the sustainability of forest management applied in forest concessions. As a result of this process, of 33 concessions awarded initially, only six remained in the race for a final approval based on the updated requirements. Three years later however, these six companies have failed to provide adequate forest management plans and therefore there continues to be a full suspension of forest concession allocations in Cambodia.
Sources: Amariei, 2004; D. Young, Global Witness, 2005
Some of the measures adopted to tackle illegal acts in the Cameroon forest sector are related to how government institutions process information and make decisions with regards to the implementation of specific legislation. In this regard, the Cameroon government implemented some important changes relating to forest law enforcement, such as the creation of the Unité Centrale de Contrôle (Central Control Unit), bypassing the risk of influence from the forest administration and reporting directly to the Minister. The Unit is assisted by an independent observer, whose services have been established through a contractual agreement between the Government of Cameroon and Global Witness, an environmental NGO acting as watchdog since 2001 (pilot phase) to date. The contract is expected to continue for another three years.
Source: Amariei, 2005
The new draft forest law recently submitted to the Parliament of Honduras seeks to harmonize and consolidate in one single legal body all existing legislation governing the management of forests, protected areas and wildlife, including harvesting, conservation, protection, rehabilitation and development activities. This draft law explicitly aims to reduce much of the previous legal complexity and confusion that discouraged legality and good governance (such as the disparity of harvesting rates in management plans and in the state forest administration regulations). The new draft law is the result of a comprehensive review of the forest regulatory framework. It promotes institutional reforms to reduce the current deforestation rates and the numerous violations of forest regulations and to strengthen institutional capacities. It proposes the establishment of a new Ministry for Forests to help strengthen the forest administration, to foster the implementation of the forest law and to increase political commitment to sustainable forest management. The new institutional arrangement should also contribute to achieving the country's overall development goals.
Sources: Wells et al., 2004; Zapata, 2005
The review, commissioned by the Joint Coordinating Committee of Government and Donors in 2003, addressed a wide range of forest-related issues ranging from forest management to tenure issues, institutional arrangements and stakeholder involvement by using a holistic approach. Attempts were made to determine the importance of each issue within an overall policy framework rather than considering them as separate issues. The numerous and profound links to other sectors were taken into account, along with the broader picture of the democratization process in Cambodia. One of the conclusions of the review was that the concession system should be discontinued and that community forestry should be promoted. It also proposed partnership forestry based on a partnership between the state and municipalities (see Chapter 5 for more information on partnerships).
Source: Amariei, 2004.
The 1996 Forestry Law transferred some power to regional and local administrations in line with the process of Popular Participation initiated in 1994. Regional administrations are now responsible for supervising public forest-related investments, formulating regional-level forest policies and developing technical capacity-building programmes. Municipalities assist the national forest agency ( Superintendencia Forestal ) in monitoring logging activities, complying with clear cutting permits and inspecting raw material supplies to sawmills located under their jurisdiction. In theory, these new forest-related tasks should be entirely financed with the revenues from concession and clear cutting fees allocated to regional and local administrations. In order to limit the risk of corruption at the regional and local levels, the decentralization process included giving local civil society organizations the power to elect oversight committees to monitor municipal finances. These mechanisms have had varied outcomes. In some cases, they have strengthened local participation, made municipal governments more democratic, increased municipal expenditures in the forest sector and expanded services to local forest users on forest management issues. In other cases, however, they have reinforced the power of local elites and contributed little to increasing the voice of marginalized people, with the forest sector remaining low on the municipal governments' list of priorities. The disparate responses mostly depend on the importance of forest resources in the municipal economy, the strength of community organizations and the political will of elected local authorities. Oversight committees have sometimes been co-opted by political parties; in other cases they actively exert their watchdog functions, especially when local community organizations are involved in local politics. Furthermore, the financial resources expected to be transferred to municipal governments to implement their new functions have shrunk over time due to the reduction of forest fees from which they receive a portion. Despite these problems, decentralization in Bolivia has greatly contributed to establishing more transparent and accountable decision-making processes in the forestry sector.
Source: Pacheco, 2004
A new Instruction issued in March 2005 includes provisions that begin to address the crucial problem of legally disputed district licensed timber felling units, which in 2002 comprised 45 percent of the intake of (and presumably, export from) Indonesia factories.
Provision 2.9(a) and 2.10(a) require governors and district heads, respectively, to "revoke and revise . decrees that are in contravention of legislation in the sector of forestry". This means that governors and district heads are required to repeal overarching provincial or district laws which contravene PP 34/2002. Thus, regional laws which allow provincial or district authorities to unilaterally issue timber concessions inside the national forest estate (without prior approval from the national level) must be immediately struck from the books, according to the new Presidential Instruction.
Provisions 2.9(c) and 2.10(c) of the Presidential Instruction also require provincial and district governments to "revoke issued business licences related to [timber concessions] that are in contravention of the prevailing legislation". That is to say, province- and district-issued timber concessions inside the national forest estate must be cancelled.
Finally, the Presidential Instruction requires provincial and district governments to "revoke business licences for wood processing industries using the illegal wood and deal with them according to their authority", this according to provisions 2.9(d) and 2.10(d). In plain terms, this means that according to the President, mills that consume illegal timber must be shut down by provincial and district authorities.
This new law appears to provide a powerful new tool for combating one of the major drivers of illegal logging in Indonesia, namely, provincial and district authorities who issue unsustainable, industrial scale, timber felling permits inside the national forest estate, purportedly on behalf of local people, although this is rarely the case.
Source: H. Speechly, DFID, personal communication, 2005; D.W. Brown, personal communication, 2005
In Gambia, the Forest Bill (1998) defines the procedures and legal requirements for creation of community forests and designation of community controlled state forests. The accompanying Field Manual describes the simplified procedures for harvesting, resource assessment and management agreements, including the following.
Simple harvest guidelines
These are based on canopy cover percentage instead of an annual allowable cut for which an inventory would be needed. With canopy cover of less than 30 percent no live tree harvesting is allowed. If canopy cover is more than 30 percent and if the trees are non-valuable, species exploitation can take place providing canopy closure remains above 30 percent. For valuable species, exploitation is possible but has to follow a simple diameter limit for felling, regeneration and density of standing trees.
Inventory is not required in the three-year and five-year management plans which the forest committees have to develop. This reduces the burdens that the forest committees have to bear in terms of labour, costs and technical skills. As an alternative, a map is required for forest management planning purposes and the existing forest resource is assessed through resource mapping based on participatory learning and action (PLA) exercises including transect walks and participatory mapping.
The Community Forest Management Agreement (CFMA) is developed through a two-tier process consisting of a preliminary Community Forest Management Agreement (PCFMA), followed by a five-year Community Forest Management Agreement (CFMA). Local forest management rules are recognized in forest management plans. The former is a three-year probation period before the official handover gives permanent ownership rights over forest resources and serves as a period for institution building; management planning; capacity building and confidence building of both parties (local forest committee and the forest department). Local by-laws are created as legal instruments for implementing simpler forest management plans. These by-laws can be oral and are endorsed in a flexible way.
Source: FAO, 2004a
Source: FAO, 2004a
The 1996 Bolivian Forest Law established a single concession fee of US$1 per hectare per year. This is markedly different from previous complex norms, which set concession fees according to a wide range of criteria (quality of species harvested, volumes, log quality, etc.) and which left not only too much room for misinterpretation, misclassification and measurement errors, but also for tax evasion and corruption. The new rule limits possibilities of arbitrary interpretations, discretionary decisions or modifications of the fee. It also greatly facilitates the monitoring of compliance and prosecution of operators who do not pay the fee. Likewise, clear cutting fees are set in a clear and transparent way: US$15 per hectare plus the equivalent of 15 percent of the value of the timber logged. However, this law created a new set of problems and was heavily criticized by the private sector. Operators were required to pay fees on the basis of the size of their entire concession area, in contrast to other forest users (such as indigenous and small-scale loggers) who continued to pay fees based only on their annual harvested areas. The private sector argued that forest fees represented an important portion of the timber companies' operational costs, and in 2003 this system of taxation was amended to the annual harvested area for all forest users. The justifications for this change were to help some timber companies to overcome critical financial situations, and also to avoid unfair competition among different forest users.
Sources: Contreras-Hermosilla and Vargas, 2002, and P. Pacheco, personal communication, 2005
In some countries governments have begun to shift towards community access and ownership in the last decade, partly in recognition of the legitimate claims of indigenous and other local communities and the limits of public forest governance. At least ten forest countries have implemented new legislation to strengthen indigenous ownership in this period. Approximately 57 percent of the legal rights over the some 380 million hectares now owned by, or reserved for, communities have been transferred in the last 15 years. For instance, in Bolivia, a legal reform implemented in 1996 recognizes that ancestral rights of community groups have precedence over forest concessions holders where these rights overlap. Subsequent laws have strengthened community rights. In Mozambique, titles for customary rights became available in 1997. In Tanzania, customary tenure has been given statutory protection (whether registered or not) since 1999. Indonesia established a new regulatory process in 2000 by which customary ownership can be recognized.
Source: White and Martin, 2002
The Mayan Biosphere reserve is the largest area of natural forest in Guatemala. Encroachment and illegal logging have long been major threats. In 1998 the National Council of Protected Areas issued at least four forest management concessions to local communities that were supported by partner NGOs providing technical and administrative expertise. The concessions range from 7 000 to 55 000 hectares. Timber and non-timber resources are managed under a single plan. Satellite images recently revealed that illegal logging and the agricultural frontier have continued to expand in protected areas, while in the community concession areas logging has decreased.
Source: Ortiz, 2000
In 2001, Indonesia's Ministry of Forestry, responding to the over-capacity of its forest processing industry, created an industrial restructuring working group (IRWG), including representatives from donor agencies, the timber industry and an international research institute.
The group used estimates of the total industrial wood demand and compared the figures with the availability of domestic wood supplies. As expected, this exercise revealed a wide gap between demand and supply levels. The estimated deficit of raw material stimulated proposals to stop further expansion of the wood processing capacity and close down plants operating illegally.
In 2002, the IRWG developed a set of protocols to investigate the origins of timber in large mills. At the time, the government was committed to reducing the processing capacity of the timber industry and to closing down mills operating illegally. In 2003, the protocols were used by an independent team sponsored by the United Kingdom Department for International Development's Multistakeholder Forestry Programme (MFP), to investigate a large mill in East Java. The Indonesian Ministry of Forestry also used the protocols to investigate seven other large mills. Although the Ministry of Forestry has only made three mill inspections since June 2003, other organizations have begun to use its protocols. For example, the protocols are now being used by the Tropical Forest Trust and WWF Indonesia to identify mills operating illegally. The British industry is purchasing raw material from the mills which, thanks to the protocols, have been identified as acting most within the law. The Ministry of Forestry protocols have also been put to other uses. They have, for instance, had an influence on the definition of legality that is currently being developed under the Indonesia-United Kingdom Memorandum of Understanding on Illegal Logging (see Annex 3 for more details).
Source: Richards, 2004; D.W.Brown, DFID, personal communication, 2005
A new forest regulation, which is being implemented through a resolution of the Ministry of Agriculture, National Institute of Natural Resources (INRENA), stipulates a reduction of the fees paid by concession holders who commit themselves to more sustainable forest production. A 25 percent reduction of the concession fee is granted to those concessions that integrate harvesting, transformation and processing in the concession area. An additional 25 percent reduction is given to concessions with voluntary forest certification and up to 25 percent more for setting aside high value forest areas within the concession boundaries for conservation purposes.
In addition, the new Fund for the Promotion of Forestry Development (Fondebosque) has been designed to finance private forestry sector projects, promote reforestation and sustainable forest management, capacity building, research projects and projects to control illegal logging and conserve threatened species.
Source: Sociedad Peruana de Derecho Ambiental, 2003
Public monitoring of the judiciary process is important to improve forest law compliance. An important recent development has been the establishment of watchdog groups to monitor the judiciary process in West Kalimantan and Jikalahari. These groups are composed of voluntary NGO and government representatives, and have come together following commitments made at multiple stakeholder consultations on forest crime. However, these fledgling organizations lack financial resources and expertise, and rely on voluntary staffing, so their sustainability is doubtful. Under the Indonesia-United Kingdom Memorandum of Understanding (see Box 42), NGOs in West Kalimantan will receive support for monitoring cases against illegal logging offenders.
Source: Richards, 2004; H. Speechly, DFID, personal communication, 2005
An FAO-supported project is conducted through the Centre for Legal and Judicial Training (CFJJ) in Mozambique in order to promote the effective implementation of new laws related to land and natural resource management. The activities fall into four clusters.
Training of District Judges
The CFJJ and national legal experts have designed a training methodology and prepared training manuals covering each of the three new laws on Land (1997), Environment (1997) and Forestry and Wildlife (1999). Over a three-year period, a total of ten two-week training courses were organized with participation of around 85 percent of Mozambique's over 200 District Judges. Training manuals were published and distributed to law schools. In addition to providing judges with information on the legal principles and details of the new laws, the courses have aimed to provide a greater understanding of the social, economic and environmental issues that lie behind the law reforms.
Production of legal reference books on each of the three subject areas
In addition to the training manuals, three in-depth legal reference books or interpretative guides/treatises were produced and distributed to the judiciary, legal professionals, law students and legal academics.
Study tour to Brazil and return visit of Brazilian experts to Mozambique
Members of the Mozambique Supreme Court travelled to Brazil to learn from the Brazilian experiences in legal education, special courts, judicial restructuring and adjudication of land and environmental issues. Following this study tour, judicial specialists from Brazil travelled to Mozambique to assess the court system and possible methods for strengthening the Mozambique procedures in addressing land and environmental cases.
Enhanced understanding of the role and training needs of community-level institutions
Socio-legal field research into the role and functioning of community tribunals and other community-based institutions was conducted in order to assess their relationship to the formal judiciary and their training needs regarding land, environmental, forestry and wildlife law issues. A research capacity is being established at the CFJJ focusing on land and natural resources issues to monitor and assess the performance of tribunals in these areas, and the relationships between communities and the state at local level.
Source: FAO, 2004b