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Policy and legal aspects of sustainable forest management

M. -R. de Montalembert and F. Schmithüsen

Marc-René de Montalembert is Director of the Forestry Policy and Planning Division, FAO. Franz Schmithüsen is professor of forest policy and forest economics at the Swiss Federal Institute of Technology, Zurich, Switzerland.

An analysis of the role of policy and legislation in promoting the sustainable conservation and use of forest resources for multiple benefits.

Forest policies must provide a framework for sustainable forest management within the broader context of rural development

Forest management is now faced with the increasingly complex challenge of reconciling the demands of various users: governments wish to mobilize the economic and employment potential of a renewable resource; private owners and entrepreneurs strive to increase the profit generated by their activity and its competitiveness with alternative investment opportunities; local people, particularly in developing countries, rely on the forest as a major source of fuel, construction material, food, fodder and income, and the forest may also constitute the basis of their culture; the public expects the forest to be an important component of a stable and amenable local environment; and concerns have recently been raised regarding the role of forests in global climate change and the conservation of biodiversity.

In discussing major policy and legal aspects of forest management, it is necessary to clarify the shift from the traditional sustained yield concept to that of sustainable forest management for multiple benefits. This shift consists in a significant change from production techniques designed to ensure a sustained commodity flow over time to a broadened focus that encompasses socio-economic impacts, the participation of rural people, environmental benefits and ecological stability in a holistic continuity of multiple benefit flows while maintaining the potential to respond to evolving demands. A concern for sustainability was already present in the sustained yield concept but this concern now embraces systematically the economic, social and ecological roles of forests in development.

To avoid ambiguity, the concept of sustainable forest management must be based on explicit assumptions, among which the following four are fundamental:

i) our underlying concern is sustainable development, i.e. securing improved livelihoods for present generations while maintaining the forest heritage and its future potential;

ii) we place this stable forest potential within the broader context of rural development, thus recognizing that strict physical stability is unrealistic and that, while a balance between forests and other land uses is essential, the dynamics of land use must allow for changes;

iii) we believe that the stability of forests and the sustainability of their management can only be achieved if management responsibilities are clearly identified and if diverse and possibly competing interests are reconciled through a democratic process of dialogue and partnership-building;

iv) we recognize and endorse a shift in emphasis towards the environmental protection function of forests; however, we stress that this must not diminish the value of their productive function or the ability of forestry activities to compete for scarce investment resources.

Our approach builds on the principle, adopted by the United Nations Conference on Environment and Development (UNCED) as part of its non-legally binding authoritative statement on forests, that "National policies and strategies should provide a framework for increased efforts, including the development and strengthening of institutions and programmes for the management, conservation and sustainable development of forests and forest lands". The dynamic nature of development in a world of pressing and competing needs requires that policies, regulations and other institutional arrangements are kept under a continuous process of monitoring and adaptation that ensures an effective incentive framework for sustainable forest management.

The need for a sound policy framework

A sine qua non for sustainable forest management is that broad national policies identify sustainable development as an overall priority across all sectors. This is of particular importance for those activities dealing with renewable natural resources and competing for land.

Forest policies deal specifically with forest resources and their management when treating: socio-economic factors related to increasing the performance of the sector; the role of the forest and tree resource in land use and rural development; and nature conservation and environmental protection. Most existing forest policies have been conceived to address simpler situations than those prevailing today. Lower levels of demand on forests by smaller populations and less competition among land users meant that the need to focus on the stability of forest ecosystems and on the sustainability of their management was less pressing than in the past. Concern for maintaining forest areas often did not go much beyond a declared intention to protect an estate that was seldom well demarcated and, in some cases, was confiscated from local groups who had controlled it from time immemorial. Forest policies focused principally on wood production and, at best, on the concept of sustained yield. This stand, which usually included restrictions on forest uses that were perceived to have potentially negative impacts on commercial timber production, generated conflicting relationships among interested parties (forestry agencies, the private sector, local groups, etc.). Moreover, fiscal, price and contractual policies focused on harvesting rather than on management.

Today forests must be managed in a much more interdependent and complex context which requires a partnership process among all major actors and beneficiaries. For this to happen, it is essential that forest policies recognize the diversity of interests related to forest conservation and utilization as well as the need to involve major interest groups in forest management decisions through consultations in which they can express their expectations and their role in sustainable forest management. The prevailing political system in each country will have to determine how divergent interests are to be harmonized and how the costs and benefits are to be shared among the main actors and beneficiaries. However, the consultative process in itself is already a major incentive for a collective effort in sustainable forest management.

In analysing and, when necessary, modifying a policy framework to provide effective incentives for sustainable forest management, the following aspects are particularly important:

Land-use policies and planning. Forests need to be recognized as a major renewable natural resource of value for present and future generations; consequently, the maintenance and sustainable management of this resource must be an important element in the overall development objective of optimizing land uses while ensuring environmental stability.

Macroeconomic policies and structural adjustment measures. Attention must be given to the identification and assessment of the possible negative impacts of agricultural programmes or privatization policies on forest resource conservation: for example, policies that may result in forest destruction by rural people who migrate to expand subsistence farming or who are encouraged to shift indiscriminately to other crops by price policies or market developments that work against sustainable forest management; or policies that modify forest tenure and use rights, with inequitable impacts on traditional forest-dwelling communities.

Policy interactions between forestry and related sectors such as agriculture, animal husbandry, industry, energy and mining. Of key importance is the monitoring of impacts and interactions, particularly in areas bordering on forests, in order to induce and develop consistency and complementarities with forest management activities and to minimize the negative impacts of pricing and incentive measures in other sectors that may act against sustainable forest management and use.

The conservation and wise utilization of forests must obtain unequivocal recognition as a national priority in the forest policy and, at the same time, be explicitly reflected in national environment and development policies. The forest policy must clearly identify those responsible for the promulgation, administration, enforcement and control of forest management regulations.

The forest policy should focus on the behaviour of the various social groups that share an interest in the use of forest resources, and should encourage actions that support sustainability. The policy must recognize different groups of users who depend on the various outputs of the forest, and it should encourage flexible approaches that promote sustainability across a variety of tenure, use and management regimes in different ecological and socio-economic contexts. It should encourage arrangements that consider all major categories of users and, in particular, protect the interests of forest dwellers.

Forest dwellers and neighbouring communities include indigenous groups and cultural minorities who often constitute the most destitute among rural populations: recognition of their rights of access to the resources on which their livelihood depends is essential. The forest policy must permit the protection of the cultural integrity of their forest heritage and must, therefore, encourage the design and implementation of management approaches that enable local communities (and, within them, both men and women) to be involved as preferential partners and beneficiaries.

Fiscal policies for forestry activities require careful attention; they should not be judged only in terms of the level of revenues accruing to the government through the forestry taxes and fees. More important is the way these policies influence the willingness and ability of the entity in charge of forest management to invest in its sustainability. Many countries with large privately owned forest resources have a favourable taxation system for forest revenues in order to maintain conditions that make continued investment in forest management attractive and competitive compared with other land-use options. Financial grants and compensations may also be considered, particularly grants for activities that are essential for the improvement of long-term production potential: afforestation and reforestation; sylvicultural improvements; the establishment of infrastructure; compensation for costs of specified management measures to be undertaken by the forest owners in the public interest, e.g. improving the stability of special protection forests, construction measures against avalanches and floods or the administration of intensively used recreation forests; and compensation for forest owners' defined losses or foregone benefits resulting from voluntary restrictions of harvesting in certain areas.

Price policies for all marketed forest goods and services are important in determining the economics of forest management, particularly the levels of investment and reinvestment that will be directed to conserving and improving forest resources. The interplay of market forces and competition should drive forest product prices to reflect real economic values effectively but, at the same time, the possible interactions of price differentials with alternative non-forestry products must be monitored. It is essential that the structure of the forest product markets ensure a fair share of revenues to those who are actually responsible for managing the forest, be they government entities, private concessionaires, forest owners, local communities or user groups.

Beyond the above-mentioned policy aspects, there is a need to adapt the policy framework regularly in response to real changes so that it continues to provide an effective incentive for the long-term management of forests for sustainable development.

This requires a process of regular consultations among interested parties for the early identification of issues and possible constraints arising from current policies as well as of the need for reforms or adaptations both in policy formulation and implementation.

Laws and regulations to support sustainable management policies

Policy development must be followed by legally binding norms. Laws and regulations are thus the result of policy formulation processes as well as being the basis for their implementation. Changes in national policies, putting more emphasis on sustainable forest resource development must lead to a systematic review and, in many instances, to a considerable modification of legislation, whether it specifically addresses forests and forestry (nominal forest law) or has an indirect impact on forestry (functional forest law).

Nominal forest law

Existing forest legislation is largely of a regulatory nature. The policy-makers who shaped these laws mainly focused on the immediate benefits from timber production as the resource's major or exclusive output. A basic assumption was that it would be sufficient to regulate the maintenance of the forest cover and prevent destructive utilization practices. Regulatory measures of this kind will certainly remain an important part of the standard pattern of forest laws, but there is ample evidence that implementation of a comprehensive sustainable forest management policy cannot be ensured exclusively through such measures. The following sections treat specific issues that merit consideration in efforts to integrate the principle of sustainability more consistently in forest laws and regulations.

Management issues. Forest laws tend to refer to sustainable forest management if at all - only in the context of wood production. Sustainable forest management as the general principle of forest resource utilization must, however, address the conservation and management of forest ecosystems as a whole as well as present and potential forest uses. This implies that the law provides a clear definition of the concept of sustainability in the context of forest management and that it determines the meaning and relevance of sustainable management with regard to present and potential outputs, including but not limited to:

· the production of firewood and construction timber for local consumption as an input for rural economies; the production of various categories of industrial wood as a basis for an industrial sector economy;

· the supply of a wide range of non-wood products for both local and industrial uses;

· the provision of protective services against the consequences of natural calamities such as avalanches, erosion, landslides and floods;

· the maintenance of the protective role of forest cover for groundwater resources;

· the provision of recreational uses for urban areas and/or tourism development.

Forest policy should recognize the rights and needs of forest dwellers and neighbouring communities

People's participation. Forest laws and regulations currently contain little on public participation in the decision making process. Forest management planning is generally considered a technical issue and responsibility is delegated exclusively to forest owners and forest services. Sustainable and multifunctional forest management aims at integrating private and public interests in forest resource utilization, based on an equitable sharing of costs and investment. Such an approach is feasible only if the community is fully involved (at local, regional and national levels) in the relevant decision-making processes. Legislative revisions may be necessary to:

· formalize processes for forest owners, user groups and political entities to participate in decisions determining the range of forestry outputs, the objectives of management and the measures necessary to achieve such objectives;

· generate the political commitment essential for the implementation of sustainable resource development and to provide the necessary financial means based on an equitable cost-sharing between forest owners and public entities;

· ensure appropriate coordination between sustainable forest utilization and other land uses.

Forest policy must recognize that forests will increasingly be managed in interdependence with other land uses

Incentives. Legislation has to facilitate a balance between the interests of forest owners responsible for the resource and those of the national community which benefits from adequate and multifunctional resource management. Incentive measures can promote sustainable forest uses and, in particular, those practices and benefits that are of concern to the community as a whole. Financial measures to be considered in this context include:

· grants for the improvement of the long-term production potential, for example reforestation and afforestation grants, grants for sylvicultural improvements and grants for the establishment of infrastructure;

· compensation for costs of specified management measures to be undertaken by forest owners in the public interest, for example improving the stability of special protection forests, construction measures against avalanches and floods or the management of intensively used recreation forests;

· compensation for prescribed losses, for example benefits foregone by forest owners because of harvesting reductions in certain areas.

Monitoring and assessment. Legislation can provide an institutional base for evaluation and monitoring. To achieve this, forest law must contain provisions that:

· establish the principle and necessary mechanisms for the regular monitoring of the state of forest resources at national and regional levels;

· assess the impacts of forest management planning, in particular with regard to forest area, biodiversity and the health of forest stands and outputs of public interest;

· provide for the dissemination of monitoring and evaluation data;

· provide for the use of monitoring and assessment data as feedback in the process of policy formulation or modification.

Forest tenure. One of the important institutional prerequisites for sustainable forest management is legislation that establishes appropriate and reliable forms of forest tenure, including various forms of forest ownership and usage rights. Forest laws and regulations must include provisions that determine:

· the categories and nature of forest ownership;

· the rights and obligations of different categories of forest owners;

· the categories and nature of usage rights.

In many countries, government forest tenure is the dominant or exclusive category of forest ownership. If the forest law is geared exclusively to public ownership, it may present considerable obstacles to private initiatives in tree planting. Progress in sustainable resource development calls for a review of such legislation in the aim of:

· abolishing unnecessary forest regulations that prevent private landowners from planting and harvesting trees on part or all of their land;

· introducing provisions that facilitate the utilization of trees in combination with agricultural crops and promote efficient agroforestry practices;

· providing land-use agreements and land leases that permit the practice of private forestry on public land;

· encouraging sustainable private forest management while leaving sufficient flexibility for land users and landowners.

Forest concession systems are the most common mechanism through which governments enter into contract to permit private forestry operations on public land. These systems are gradually moving from a largely exploitative stage to more long-term forest management contracts. This is being supported by changes in legislation that:

· rationalize concession tenure by linking the size of granted forest areas as well as the length of the arrangement more specifically to the type of private operator, the level of raw material processing, the volume of industrial investment and the socioeconomic contribution made by the industry;

· reinforce the long-term management aspects by determining annual timber harvesting volumes instead of relying on area only, by introducing sustainable wood production regimes and by providing incentives for improved utilization standards;

· foster reinvestment in maintaining the productivity of the forest resources, such as the planting of logged areas, sylvicultural improvement cutting, the control of forest fires and the improvement of forest infrastructure;

· contribute to a more systematic integration of requirements to maintain biological diversity and to ensure landscape protection with forest concession regulations;

· provide incentives for the operator to practice improved sustainable resource utilization, particularly by a system of renegotiation at regular intervals, with an option to extend the duration of the contract provided the operator's performance has been satisfactory and the proposals for improved management are mutually agreeable.

Many forest laws acknowledge usage rights as a matter of principle but they often lack adequate provisions to protect forest usage rights and to allow their practice in a sustainable manner and in determined areas. This situation leads to considerable frustration of the local population which may have practiced a wide range of forest uses and developed sustainable management patterns. Legislation is needed that combines the principle of sustainability with a firm commitment to maintaining and developing sustainable uses of forest resources by local people.

The acknowledged and institutionalized access of communities to the use of forest resources is, in many cases, one of the principal factors determining local interest in maintaining forest cover. The various forms of community forest tenure and common property are of considerable interest in the context of sustainable forest resource management. Legislation should regulate:

· the rights and responsibilities of communal forest owners with respect to sustainable uses and management practices;

· the possibility to consolidate forest usage rights by introducing new forms of communal forest ownership;

· the possibility to transfer public forest land into community ownership either by land title registration, by long-term land-use agreements or in the form of land leases.

Functional forest law

Au adequate policy

The term "functional forest law" refers to a wide range of laws and regulations that have an indirect impact on forest conservation and development. Legislation of particular importance to sustainable forest development includes:

· legislation referring to the general and specific aspects of environmental protection, including national environmental protection codes and legislation related to air pollution control and soil and water conservation;

· legislation principally concerned with renewable natural resources, including sector-specific legislation related to agriculture, animal husbandry and fisheries, and with the interfaces between forestry and mixed production systems. It also includes agrarian reform and land colonization laws as well as erosion control and land rehabilitation regulations;

· legislation dealing with social and economic measures for the development of rural areas, including land tenure legislation, land-use planning legislation, regional and national development and investment laws as well as tax legislation;

· legislation on nature protection, including laws protecting flora, fauna and undisturbed landscapes and, to a considerable extent, hunting, wildlife and national parks legislation.

The use of forests and forest land, including the management of timber stands, thus becomes subject to a network of legal provisions that extends significantly beyond specific forest legislation. The growing complexity of legislation requires a thorough analysis of the compatibility of the various laws and regulations.

Particular attention must be paid to a number of issues, including:

· the implications of the expanding system of environmental and nature protection legislation for the evolution of forest legislation in relation to forest management (including the scope for inserting or reinforcing specific forest conservation and management provisions in environmental protection laws);

· the types of benefit for forest management that may derive from the modification of natural resource and rural development legislation;

· the need for modifications of forest management regulations to ensure compatibility with wider-reaching legislation.

Concluding remarks

This article focuses on recognized key policy and legal determinants of forest management performance which has been made far more complex by the new emphasis on ecological and socioeconomic sustainability. The aspects underlined and the issues raised are treated in a general manner and their analysis needs to be expanded in the context of specific situations to allow a more concrete discussion. In some cases it will appear that major reforms of the policy and legal framework may be necessary and the question of their compatibility with macropolicies and their political acceptability may arise. In most cases, however, what is at stake are the attitudes of institutions and people and their willingness or, on the contrary, inertia to change their traditional emphasis and focus on the more comprehensive and partnership-oriented approaches required for sustainable forest management.

The implementation of policies and laws and their impact as an effective incentive and regulatory framework ultimately depend on the attitudes and capacities at national and local levels. This is why any progress in policy and regulations requires a critical examination of the institutional arrangements and the skills of the people involved in developing, disseminating, supporting and implementing more widely sustainable forest management practices. Support needs to be significantly expanded and should concentrate on strengthening capacities in those critical elements brought to forest management through the concept of sustainability, while also monitoring the effectiveness of results. This is precisely what UNCED's Agenda 21 advocates by systematically highlighting capacity-building as a major requirement for combating deforestation.

Last but not least, it must be stressed again that forests will increasingly be managed in situations of complex interdependence and interactions with other land uses and economic and social parameters. This implies that sustainable forest management can only be undertaken and pursued through interdisciplinary approaches within effectively coordinated rural development policies and regulations. No sustainable forest management is feasible unless it benefits from a sound and stable context of consistent developments and converging strategies occurring in related sectors.

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