M.T. Cirelli
Maria Teresa Cirelli is an international lawyer based in Pesaro, Italy. She has collaborated with the FAO Development Law Service on numerous occasions.
A brief analysis of the process of forestry legislation revision, including consideration of the role and impact of international assistance, with the aim of drawing conclusions for increased effectiveness in the future.
The need for a revision of existing forestry legislation may arise for a number of reasons. The main underlying factors are: the emergence of new development patterns, with the redistribution of responsibilities for resource management among central and local governments, local communities and the private sector; and, even more important, the growing concern for sustainability and increasing awareness of the interactions among interdependent activities. In many cases, an overall review of the forestry sector may evidence the need for a policy renewal and, consequently, for new or revised legislation. There may be a need to provide a legal basis for issues that are not dealt with under the existing legislation, for example activities that have become common but lack enabling legal provisions, such as plantation forestry, or activities that are being encouraged, such as community forestry.
Many countries that have undertaken a forestry sector review are former colonies whose forestry legislation was enacted during colonial times. In the past decade, for example, FAO has helped in the development of forestry legislation for, inter alia, Angola, Burkina Faso, Cape Verde, Fiji, Guinea, Malawi, Mali, Morocco, the Niger, Rwanda, Sierra Leone and Togo. In these cases, the incentive for the reform was often the perceived need to give the public and local communities a more significant role in forestry decision-making and activities.
One common reason for the lack of support from local populations for existing forest laws and, therefore, for problems of implementation, is the inadequate recognition in these laws of traditional ownership and usage rights. The accommodation of usage rights in forestry legislation requires a number of adjustments; not only recognition of the rights, but also provisions such as the participation of the right holders in forest management and the multiple use of forest reserves. [Ed. note: see article by Fingleton, p. 16.]
A change of governmental system (for example, in countries in transition towards market economies) may also lead to a revision or replacement of forestry legislation. In these cases, there is often a tendency to replace all of the existing legislation, especially that dealing with issues of landownership and usage, including forestry. This is the case at present in most of the countries of Eastern Europe (FAO helped Albania to improve a draft forest law) as well as in Laos, where FAO assisted in drafting new land, water and forestry legislation. Other examples of changes in political regime that have brought about a renewal of forestry legislation are the democratization and liberalization of African countries, for example Guinea. (See Boxes, p. 11.)
Forestry policy and legislation have to deal with and reconcile a great number of actors, regulatory regimes and property and use rights that interact in the same areas. This simple consideration explains many of the difficulties often encountered in the development of appropriate forestry legislation.
A number of scholars have pointed out that forestry policies may sometimes be the expression of the intentions and aspirations of a restricted group of people either forestry specialists or a single, sufficiently powerful interest group. Legislation that is developed to support such policies is practically bound to be ineffective in that it will remain isolated from the country's larger reality, if it does not arouse outright opposition. The consensus or, at least, involvement of all interested parties should therefore be sought from the early stages of policy formulation throughout its enactment as legislation.
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Albania For the first time in Albania, the new Forest Law of 1992 provides for "private forests", including both natural and plantation forests on private land. In very general terms, the law provides for state financial and technical assistance for private forestry. A number of conditions governing forest use apply only to state and local forests (many other provisions do not make it clear whether they exclude private forests; this may be a consequence of the transitional draft form which should be clarified in the future). The provisions on protection and deforestation' on the other hand, explicitly apply to private forests as well. Laos In Laos, the role of the state is being reduced but private landownership has not been unequivocally recognized. In consequence, private forestry in the draft law is limited to forested parts of agricultural holdings (including bush fallow). At the same time, the subsistence sector has received greater recognition than in the past, with the institution of village concessions on state forest lands and the automatic recognition of defined usage rights (previously, usage rights required a formal grant). Guinea In Guinea, liberalization gave new importance to a careful definition of the rights of individuals and groups. A basis for community forestry already existed in the "forest domain" of local governments, and this was incorporated into the new law. Private landownership, on the other hand, was not formally recognized, so private forestry was dealt with through agreements (concessions) which could be of any duration desired. |
The policy-law continuum
The process of formulation and implementation of policy and law should be considered as a single continuum rather than two isolated stages. During forest policy formulation, legislation should be kept in mind for a number of reasons. First, a policy must not conflict with the constitution or other fundamental laws of a country. Second, consideration of whether and how forestry legislation could be subsequently issued to implement the policy can help in the formulation of the policy in a pragmatic way. A third reason relates to relevant institutions: consideration of their effectiveness in the past can help in the realistic formulation of new policies and laws. Legislation should be designed to facilitate the effective functioning of institutions that exist or may be created. The revision of legislation may be an opportunity for an effective reorganization of institutions.
Finally, legislation facilitates future policy formulation or revision, for example by creating policy advisory bodies that will also eventually propose revisions to legislation. The law may prescribe that the various government and private interests involved be represented in the advisory body and specify cases and issues in which the body must be heard as well as the degree to which its advice must be considered.
Participation
The reconciliation of conflicting interests, which has been posited as a basic challenge for forestry legislation, must be faced throughout policy formulation, legal drafting and implementation. It requires not only identifying interests involved, but also involving them sufficiently in the formulation process so people may be confident that their views have been heard. The process of formulation and the contents of forestry laws are being profoundly affected by the concern for a broad participation and recognition of all interests, although the details vary enormously as might be expected at this experimental stage. Legislation alone is not sufficient to ensure a successful programme to include local communities; this requires the identification of bodies at the local level to represent local populations, which may already exist or may have to be created, and generally the actual implementation of provisions for local participation. Creating legislative provisions for community forestry is therefore one of the greatest challenges facing the forestry lawyer. [Ed. note: see article by Wynter, p. 23.]
Decentralization
There is an increasing trend towards a decentralization of the legislative process itself, as a number of countries delegate lawmaking authority to provinces and rulemaking authority to provincial and local governments. This is particularly important in responding to the various social and physical realities that may characterize forestry in different regions within a country. In this respect, it is important that national forestry legislation not be so prescriptive as to require what amounts to inappropriate behaviour; rather, the national legislation should serve as a framework.
Encouraging private forestry
Encouraging private foresters is frequently a matter of removing obstacles created by existing legislation. Some of the obstacles are controls on cutting, which are designed to prevent destruction of the natural forest but which also leave doubt as to whether or not private planters will be able to harvest their plantation.
When there is no successful private forestry programme already functioning in a country, national forestry officials are understandably reluctant to give up the few means they have to protect existing forests.
Legislation for management planning Forest management planning is assuming a far greater role than that of sylvicultural and working plans. While it includes these aspects, it also serves as a flexible method of classifying forests according to purpose and management regime and of assessing the environmental, social and economic effects of forest activities and public participation. It is difficult to generalize about how much planning is desirable or even possible in different situations, and views are likely to change with experience. In most countries, therefore, the forest law cannot be very precise about the planning process. However, recent laws do frequently contain simple planning provisions, including an obligation to prepare plans-based on inventories which should be kept up to date and a mandate for some sort of consultation.
Penal provisions
Traditional but still sometimes useful elements of legislative revision involve the consideration of penal provisions and of the enforcement powers of forestry officials. The former may involve giving a better definition of each offence, comparing the seriousness of offences with each other and with those included in other pieces of legislation, updating the number and nature of penalties, identifying ways of settling minor offences out of court, etc. The latter may require a review of the country's enforcement capabilities with a view to their being strengthened. A significant step in this field, however, is also the encouragement of a different attitude towards forestry officers, who should no longer be seen simply as guardians of compliance with legislation but rather as having a whole other set of competencies in training and extension. Naturally, this objective cannot be met by the passing of legislation alone, but legislation can at least be improved to facilitate the process.
The legislative drafting process
It is also profitable to consider legislative drafting as a process in itself. Legislative drafting should only start once the reaming process is well advanced. Once a first draft is completed, even if only in a rough form, a meeting of all the various people who have been and will be involved in the process will help to obtain first reactions and comments to work on. Even if the text has been submitted in advance, it is likely that the reactions of the people who are present will not be definitive, but they will at least provide a general indication of problems and issues to be taken into account.
Conflicting attitudes of different government departments or different social groups may appear at this stage, if they have not already done so. It is then the responsibility of the relevant government department (usually the Ministry of Justice or the Attorney General's Office) to vet legislative proposals before they are submitted to parliament or cabinet. In any case, it is essential to remember that it is the parliament or cabinet which actually takes the legal decisions; in fact, the common term for the body of elected officials is "legislature". Forestry legislation, like all other forms, will be debated and often: modified at the parliamentary level, and many a law has been stalled or even rejected during this process. To envision the parliament as a rubber stamp in the technical process of legislative drafting is to court disaster.
Separating laws and regulations
An appropriate separation of provisions between law and regulations is essential for effective forestry legislation but it places special burdens on the drafting process. It is generally agreed that the law should set out basic requirements with a view to implementing the established policy, while rules that specify issues, such as the classification of forest areas, activities prohibited in these areas or detailed management practices, are likely to need frequent revision and should be included in regulations or ministerial orders. However, regulations must be considered even at the early stages of discussing policy to avoid conflicts or difficulties in implementation.
Over the past 20 years, some 50 countries have requested assistance from FAO in developing national forestry legislation. In most cases, the assistance has led to the preparation of proposed legislative texts or amendments to existing ones. In others, assistance was limited to the provision of comments on draft texts prepared independently by the interested country, and it therefore may not have involved field missions. Some countries have obtained similar assistance from other international organizations such as the United Nations Environment Programme (UNEP) and the World Bank; regional development banks; non-governmental organizations (NGOs) such as the World Conservation Union (IUCN); and individual countries under bilateral assistance projects. It is difficult to estimate the volume of this type of assistance, but FAO efforts may be estimated to represent more than half of the total. Notwithstanding the significant number of developing countries that have revised or replaced their forestry legislation, the rate of requests for international assistance in the revision or development of forestry legislation is accelerating.
It's not going to be easy after millennia of precedents!
When international assistance in the development of forestry legislation is requested and granted to a country, in most cases it is provided by selecting an expert in forestry legislation who will visit the interested country and, working in close consultation with the government, be directly involved in the drafting of revised legislation. In the most organized efforts, multidisciplinary missions may be undertaken jointly by experts in forestry policy and law, institutions and forestry technical matters.
Legal experts appointed under international assistance efforts are in most cases "internationals" who have done the same type of work in a number of different countries and will have had useful experience with forest policy implementation through legislation in different legal systems. One reason for using an international expert in legislative revision is to gain a comparative perspective. A specific background in natural resource legislation, as opposed to law in general, is also significant. On the other hand, the insight that may be provided by a national legal consultant on a country's legal system and on many other relevant facts cannot be easily replaced by the research done in the limited period of time available to a visitor. Shortcomings, which are inevitable in the exclusive use of an international consultant, may be partly overcome by constant consultation with local legal and other professionals. Another alternative is the use of a national consultant, with an appropriate interchange with the institution or organization providing the assistance (where normally "international" expertise would be available). The identification of a local expert with suitable experience in drafting resource management law may, however, be difficult.
In FAO's efforts, the legal experts are supported by the Development Law Service at the Organization's headquarters. The Service has a staff of lawyers and employs legal consultants who have direct experience in the development of natural resource legislation and can receive advice from other FAO sectors responsible for technical agricultural, forestry or fisheries matters.
The focus of legislative assistance
Legislative assistance may focus on forestry legislation exclusively or extend to related fields such as wildlife, protected areas or watershed management. This depends on a country's determination to extend the legislative revision to related fields - regardless of whether or not they are or should be part of the same piece of legislation. In any case, a review of legislation carried out with international assistance must cover such related fields and relevant suggestions for the revision of that legislation should be offered. An analysis of government and other institutions dealing with forestry and the necessary revision of relevant legislative provisions on institutions is also usually involved.
The specific issues to be addressed by a consultant are numerous and vary considerably from country to country. No exhaustive instructions as to a consultant's tasks can therefore be given to cover all situations that may be encountered. It is only possible to identify some basic steps which will normally be taken. [Ed. note: see article by de Montalembert and Schmithüsen, p. 3.] Detailed and still generally valid guidance on this topic is also found in an article published in Unasylva more than three decades ago (François, 1961).
The process of legislative assistance
The legal expert should at first become familiar with the facts, i.e. learn as much as possible about forestry and related sectors. In order to do that, he or she should make contacts with public and private persons in both forestry and related sectors and discuss relevant issues with a view to identifying the most appropriate contents of the new legislation. Depending on the availability of government personnel and working relations among them, a small interministerial committee could be formed to help in the process. Otherwise, it will be necessary to obtain information from the various government officers separately. It is usually profitable also to keep in close contact with people outside the government who have proved willing to provide useful information and comments and to consult with them often throughout the process.
In this regard, it is worth mentioning the importance of considering the existing forestry legislation, making factual evaluations of its provisions and their implementation and thereby identifying both legal and institutional elements that may require improvement.
An analysis of existing legislation is obviously insufficient for a full understanding of national conditions, however, and if appropriate suggestions regarding new legislation are to be made, the legal analysis must be accompanied by one of the government policies and their effects, institutions and their effectiveness, social attitudes towards trees and forestry, local uses and rights, etc. A more strictly legal aspect that must be dealt with is an analysis of existing legislation that was designed for other sectors but has an impact on forestry. Legislation regarding land use and tenure is one of the most important subjects of this analysis. Other legislation likely to have a bearing on forests is that relating to environment, wildlife and protected areas, watershed management, rural fires and mining. In most cases, such legislation is not subject to revision on the initiative of the forestry administration and, at the most, it will only be possible to recommend changes. In some countries one may have to consider customary regulations which are recognized as binding.
A lot of the basic legislation of the country will also have to be considered although it may not be directly related to forests. The constitution, if a written one, will normally delineate the legal system and include basic provisions on property and possible limitations to it, exploitation of natural resources, criminal law, public service, etc. Common law countries usually have an "interpretation act" which, inter alia, defines a number of common terms used in the country's legislation and must therefore be considered. The country's criminal law may include provisions relating to all offences, e.g. on attempting to commit or abetting an offense, as well as provisions for offences which are similar to those envisaged under the forestry legislation and which must therefore be considered. The country's legislation on customs, taxation and transport as well as the relevance of these areas to the forest industry will also be pertinent.
An assessment of the actual impact of technical assistance in forestry legislation development is extremely difficult. In practice, FAO has thus far been able to keep informed on the history of the legislative proposals submitted as the outcome of that assistance, i.e. considering whether, when and in what form a proposal has been adopted as legislation. However, the Organization has rarely been able to assess the consequences of completed international assistance further, such as the actual reasons for acceptance or rejection of particular parts of legislative proposals, problems of implementation or unforeseen repercussions. Such an evaluation would require similar activities to those carried out for the original execution of the assistance, i.e. direct investigations in the interested country to analyse old and new facts and the effectiveness of the legislation. Although the experience gained by doing this would be invaluable for the benefit of new efforts, the human and financial resources required are rarely available. Furthermore, where legislation resulting from an international assistance effort is adopted, a significant amount of time would have to pass before a realistic assessment of its effectiveness could be made, and a country would then have to request specifically the same type of assistance again. In the future, it is to be hoped that possibilities will arise in this regard.
In any case, opportunities can always be sought for considering forestry legislation and its effectiveness in different countries whether or not such legislation was suggested as the outcome of an assistance effort. For example, these issues have sometimes been considered within various international fore such as FAO meetings (e.g. the biennial Committee on Forestry, the regional forestry commissions and the FAO Advisory Committee on Forestry Education) or the World Forestry Congresses, jointly organized by FAO and a host country. These provide opportunities for discussion both among countries that have undertaken a revision of forestry legislation and among institutions that have provided assistance in this field. It has sometimes been possible for FAO to return to a country where a forestry law was adopted as the result of an assistance effort and, on that country's request, provide further assistance in drafting regulations. This is also a good opportunity for an assessment of the work done previously.
A final observation is that, even where forestry legislation appears to be satisfactory, or where it has merely been revised in the light of current policies and needs, the most serious problems remain the implementation and the enforcement of that legislation. The fact that forestry legislation recommendations are adopted by a country's legislative body is not sufficient evidence to judge the assistance effort a success; all too often, legislation remains a "dead letter" because it is impossible to implement or is not enforceable. Only forestry legislation that is both theoretically valid and practically viable can contribute significantly to the development of a country's forestry sector.
François, T. 1961. What should a basic forest law contain? Unasylva, 15(3): 140-152.
Further reading: see the series of publications on forest policy and law (Fachbereich Forstökonomie and Forstpolitik), published by the Institute für Wald - und Holzforschung, ETH-Zentrum, Zurich, Switzerland.
