7.1 Defining Legal Timber
To direct your organization's sourcing away from the products of illegal logging and toward those in favour of legal operators, you will need to define what you mean by "legal" or acceptable sources. That definition should exclude products or activities that fall within the scope of the problem defined in your policy. The scope of concern may be broad, and thus be difficult to comply with, or narrow, which would run the risk of not addressing key issues. A balance between these extremes needs to be struck.
Verifying that the timber in a product is from a source assessed requires the purchaser to obtain proof that, in addition to having the ownership and access rights, and a legal right to harvest, the harvesting entity complied with the law when harvesting the timber and that the timber was legally traded and exported or imported. The category also requires a higher degree of scrutiny over the chain of custody. Forest management certification systems that require independent chain-of-custody audits can also provide this level of assurance on legal compliance.
You should also be guided by any market based legislation (Lacey etc) – as these laws and regulations will provide more detail as to the scope of legislation they require must be considered.
Which Laws Apply?
There can be challenges in determining what constitutes an illegal act and interpreting global definitions within the context of the legal system of a given producer country. These challenges include the following:
- Unclear line between a significant offence and a minor transgression. For example, how many instances of improper road construction are permitted before a concession holder strays beyond poor harvesting practices into the realm of illegal logging?
- Overly prescriptive regulations. For example, should a forest manager be penalized for adapting practices to fit the local ecosystem of a given forest, while technically breaching a poorly conceived regulation?
- Conflicts with laws from other sectors and levels of government or with administrative procedures. For example, is it illegal to harvest timber according to a timber permit issued by the central forestry authority if that permit conflicts with the land-use planning policy of the local government?
- Conflicts between unwritten customary law and formal laws. For example, is it illegal for a community with usufruct rights that derive from traditional law to harvest timber in a logging concession that fails to recognize these rights?
In many producer countries efforts are underway to better understand and then to define the laws that are relevant to forestry and associated trade. These processes are seeking to also address the apparent contradictions and to provide workable solutions using multi-stakeholder processes, often within international frameworks supported by the relevant Government agencies. A good example of this international process is the Forest Law Enforcement Governance and Trade (FLEGT) process.
In many jurisdictions, rationalization and clarification of such issues are clearly needed to enable effective law enforcement. However, where laws are unclear, best practice for sourcing organizations, suppliers and auditors is to note the flaws in the relevant laws and state clearly the basis on which verification has been assessed, including, where possible, the rationale for the interpretation by the verifier.
In other countries, standards, criteria and checklists relating to legal compliance may have been developed for forest certification purposes. These can serve as useful reference points to interpret the forestry law of a given country.
Addressing "Bad" or "Unfair" Laws
Illegality in the timber extraction business is often a symptom of deeper underlying problems. A narrow focus on illegal activities may perpetuate inequities and corrupt resource allocation processes. Forest laws, or decisions made in purported application of the law, often reinforce unfair relationships or disregard customary forest rights. Arguably, such laws need to be reformed before their enforcement can properly serve the public interest.
The following are some examples of laws that may have undesirable results:
- The law extinguishes traditional rights; for example, where logging concessions or protected areas are created without recognition of traditional rights over the forest resource.
- The law is bad for the forest; for example, outdated silvicultural prescriptions required by regulation may do more harm than good to the forest resource.
- Punishment is severe; for example, in Indonesia some officials have proposed introducing the death penalty for illegal loggers.
- The application of the concession allocation system is corrupt; for example, legal permits are handed out to cronies and bribe payers. This could mean that those holding "legal" rights to harvest have gained their permits through corrupt administration of the law.
- The perpetrators of "illegal logging" are poor and the logging is low impact; for example, "bicycle logging" by local communities.
The key safeguard against associating with unjust but legal outcomes in a supplying country is to position your company's policy within the broader context of corporate social responsibility. Similarly, efforts to avoid the products of illegal logging should be embedded within a broader goal of promoting sustainable forestry.
Legal compliance is best seen as a factor that contributes to responsible forest management rather than as the end game. The GFTN Responsible Sourcing Guide deals with this by positioning legality as one step along the way toward achieving environmentally sound, socially beneficial and economically viable production and sourcing of forest products.
Another safeguard is to have an explicit policy on disputed or controversial decisions by officials—for example, alleged corrupt or improper allocation of forestry concessions. This would allow for the reality that many developing countries lack effective administrative law mechanisms such as complaints procedures; tribunals to review official decisions; and the allocation of permits, freedom-of-information provisions and independent watchdog institutions such as an ombudsman. Where such systems are weak or absent, aggrieved parties cannot easily challenge official decisions made improperly or at odds with legal requirements. Your sourcing policy could include a proviso, for example, that if your organization is made aware of a significant dispute over the process by which the forest manager secured the permit, it will inquire into the status of the dispute and not regard the forest as a legal source until the dispute is resolved.
Another issue to consider when formulating a policy is that illegal logging problems are greatest in countries where forest governance is poor. In such countries the task of strengthening governance and building local regulatory capacity will take time, even where there is the political will to improve.
In the transition phase, purchasers can contribute significantly to improved governance by awarding contracts to legitimate enterprises that are attempting to do a good job under difficult conditions. This helps keep the 'good' operators engaged. It is a more positive way forward than boycotting all business in the country. Such contracts, however, must encourage constant improvement, and contracts with organizations that fail to take positive steps should not be renewed. The stepwise approach to responsible sourcing advocated by WWF's GFTN allows flexibility for your company, encouraging your business to stay engaged and to drive reform in the places where the problems are greatest.
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