DEFINITION OF LEGAL TIMBER
Draft Document on Definition of Legal Timber in Ghana
September2007
Draft Document on Definition of Legal Timber in Ghana
Kwame A. Oduro
Kwame Gyan
September 2007
Definition of Legal Timber
ACRONYMS
CapCaption
CCFChief Conservator of Forests
C & ICriteria and Indicators
CITESConvention on International Trade in Endangered Species
ECEuropean Commission
EUEuropean Union
FCForestry Commission
FLEGTForest Law Enforcement, Governance and Trade
FPSForest Protection Strategy
FSCForest Stewardship Council
FSDForest Services Division
GFTNGlobal Forestand Trade Network
LILegislative Instrument
LIFLog Information Form
LMCCLog Measurement and Conveyance Certificate
NBCSNational Biodiversity Conservation Strategy
NTFPsNon TimberForest Products
NRCDNational Redemption Council Decree
PTLProtected Timber Lands
SFMSustainable Forest Management
SPSalvage Permit
SRASocial Responsibility Agreement
TIDDTimber Industry Development Division
TIFTree Information Form
ToRTerms of Reference
TOSTimber Operational Specifications
TRECTimber Rights Evaluation Committee
TRMATimber Resource Management Act
TRMRTimber Resource Management Regulation
TUCTimber Utilsation Contract
VLCVerification of Legal Compliance
VLOVerification of Legal Origin
VLTPValidation of Legal Timber Programme
EXECUTIVE SUMMARY
Any system for timber legality and monitoring process to succeed, there should be available standards that define legal timber, including criteria for assessment, covering key areas including whether the wood was harvested legally, whether harvesting rights were secured without corruption and whether royalties or taxes related to logging and export were duly paid. The standards, which should be credible and widely supported and accepted by stakeholders, would guide the operations of any monitoring and validation programme. Hence, a clear working definition of legal timber is crucial.
Ghana’ legislation is already designed to promote sustainable forest management and in some cases only minor modifications, are needed. Often the problem has not been with the law itself but in the lack of proper enforcement, detection of infringements and subsequent prosecution of offenders. Consequently, in Ghana, defining timber legality based on the application of all the existing legal criteria would be difficult to realize and would likely take some time
Overseeing the full picture, we see as the most effective way forward is to adopt a stepwise approach towards a national definition of legal timber for Ghana. Accordingly, it is necessary to develop minimum standard for defining timber legality in order to begin the process of implementing any partnership agreement on trade in timber. But there should be on-going efforts to enforce the implementation of all other statutory laws and requirements so that these could, with time and progress, be incorporated into the legality definition. We believe that it will be proper to segregate the definition standards into short, medium and long-term horizons and to implement them in a stepwise manner.
In the short term, the following draft definition is proposed:
Principle 1: Timber originate from legally approved sources
Criterion 1.1: Timber is harvested from areas designated for timber production
1.1.1List (database) of approved timber production areas
1.1.2Boundaries of timber production areas are clearly defined and demarcated
Criterion 1.2:Logger (or TUC holder) has timber harvesting rights over timber production areas. On farm lands and off-reserve areas the farmers and/or other rights holders’ consents have been obtained
1.2.1Valid TUC area documents and/or owners’ written consent
1.2.2Valid documents for areas not subject to TUC
Criterion 1.3.:There is proof of legality of third party
1.3.1Valid documents showing proof of third party’s legality and legality of source of timber
Principle 2:Timber rights allocation
Criterion 2.1:Timber rights is allocated in accordance with one of the three procedures laid down by legislation
2.1.1There is transparent competitive bidding for timber rights allocation in the form of timber utilisation contracts (TUCs)
2.1.2Salvage permit is allocated for an area of land approved for undergoing development by appropriate government authority
2.1.3Timber utilisation permit is allocated to exclusively harvest a specified number of trees in an area of land not subject to TUC.
Principle 3:Timber harvesting operations
Criterion 3.1The Company has timber harvesting rights
3.1.1Company/logger has been awarded TUC or has been issued with salvage permit or TUP
3.1.2Loggers have valid property mark registration with FC
Criterion 3.2Timber harvesting planning and logging operations for timber production areas comply with the requirements in FC’s Logging Manual and manual of procedures.
3.2.1TUC area plan, harvesting schedule and five-year harvesting plan (including compartment logging plan) are prepared and endorsed.
3.2.2Stock surveys (including pre-felling inspections for off-reserve areas) have been conducted resulting in availability of stocking data, including stock maps, yield list and yield maps
3.2.3Logging has not been carried out in areas where harvesting schedules have not been prepared and in areas not designated for timber production.
3.2.4Social Responsibility Agreements have been finalised between community and the contractor
Criterion 3.3There is accurate measurement, reporting and declaration of the values and volumes of timber harvested
3.3.1Every tree harvested is in the approved yield
3.3.2Timber harvested is below or corresponds to the volumes or numbers authorised in the permit or contract
3.3.3Logs are accurately measured and recorded
3.3.4Stumps and logs are marked using the prescribed methods that contain sufficient information to trace each log back to the compartment and to the harvested tree
3.3.5Post-felling inspection is carried out
Criterion 3.4compartment opening and closure
3.4.1Harvesting operations commences only after FC’s approval of compartment opening
3.4.2No harvesting operations take place after compartment closure
Principle 4:Transportation
Criterion 4.1All timber transported has required physical identification
4.1.1Logs transported from harvesting areas are marked with the required physical identification
Criterion 4.2All timber transported has official documentation detailing the origin and corresponds to any physical identification that the timber may carry
4.2.1Valid official documents accompany timber being transported
4.2.2Timber consignment paper work is complete and up to date
Principle 5:Timber processing operations
Criterion 5.1The processing company comply with legal requirements covering its activities
5.1.1Processing company has valid registration and valid licenses to operate
5.1.2Processing company keeps log books to record all wood entering or exiting the facility.
5.1.3Log yard logs to be processed have valid log transportation documents that corresponds to the physical identification carried by ach log
Principle 6:Trade (market and export)
Criterion 6.1All dealers (including exporters) have valid registration license and permit to market timber
6.1.1Dealers have valid licenses to operate
6.1.2Dealers are registered with relevant authorities
Criterion 6.2Companies comply with all legal requirements and regulations covering their activities
6.2.1Shipping company is registered with relevant authority
6.2.2Export documents are valid and up to date
Principle 7:Statutory fiscal obligations
Criterion 7.1All statutory fiscal obligations are met
7.1.1Stumpage fees and other related charges are paid
7.1.2All product-based taxes and fees have been paid
7.1.3Social Responsibility Agreements have been honoured
7.1.4Compensation has been paid for damage to agricultural crops and for tree tending directly to the farmer
There are other issues that need urgent broader stakeholder consultations. These include the legality status of leases/concessions that were supposed to have been converted into TUCs after coming into effect of Act 547, delays in parliamentary ratification of TUCs and whether it is even necessary for parliament to ratify TUCs that have been allocated on transparent competitive basis. It is necessary to give attention to the following when developing the final definition for legal timber in Ghana:
- The focus should be to reinforce positive incentives for SFM rather than penalise or restrict production and trade in timber. The standards must therefore not become trade barriers thereby affecting the external competitiveness of Ghana’s timber industry. The stepwise approach to the implementation of the scheme should address this
- Standard developed should be based on consensus between Ghana and the EU
- Appropriate capacity building in testing and verification of standards and indicators should be ensured
- There must be free flow of information and involvement of all stakeholders in the consultation process.
TABLE OF CONTENTS
ACRONYMS
EXECUTIVE SUMMARY
TABLE OF CONTENTS
1.INTRODUCTION
1.1Objectives of the Study and Terms of Reference (TOR)
1.1.1Structure of the Report
1.2Review of legislation on timber legality in Ghana
1.3The EU’s Forest Law Enforcement, Governance and Trade Action Plan
1.4Voluntary Partnership Agreements (VPAs)
2.DEFINING ILLEGAL LOGGING AND ILLEGAL ACTIVITIES
2.1Limitations of forest certification as a means of verifying legal compliance and tackling illegal logging
3.REVIEW OF EXISTING RELEVANT WORK ON DEFINITION OF LEGAL TIMBER IN GHANA
3.1Defining timber legality
3.1.1The struggle for a definition
3.2VLTP legal study on definition of timber legality in Ghana
3.3Care International work on moving Ghana to legal timber
3.4International Framework used by WWF’s Global Forest and Trade Network (GFTN)
3.5SGS programme
3.6Keurhout legal timber standard
3.7Ghana forest certification standard (GFSC)
4.DRAFT DEFINITION OF LEGAL TIMBER IN GHANA
4.1Draft definition of legal timber in Ghana
4.2Conclusion
REFERENCES
ANNEXES
Annex 1:CONSTITUTIONAL PROVISIONS AND KEY LEGISLATION
Annex 2:CURRENT INITIATIVES THAT ATTEMPTED TO ESTABLISH A STANDARD FOR DEFINING TIMBER LEGALITY IN GHANA
1
Definition of Legal Timber
1.INTRODUCTION
In spite of all efforts of governments to control illegal logging and trade, timber is illegally harvested at a large scale in some parts of the world. The level of illegality with regard to access to timber is quite high in Ghana. It is reported that illegal activities collectively account for about 2.6 million cubic meters of timber harvested. This is a major concern for the Government of Ghana who seeks to combat illegal activities in the country. The long term objective of the Government is to promote the use of legal timber thereby excluding illegal timber from both international and domestic markets.
The unprecedented level of political interest in illegal logging has created a new industry of defining legality. An urgent problem facing any attempt to combat illegal logging, control trade in illegal timber and wood products and to promote the use of legal timber lies in defining what constitutes legality. The illegal activities may relate to violation of all relevant and applicable national laws and regulations. So in a country like Ghana that has a wide range of forestry laws and regulations, a clear definition of legality would mean deciding which aspects of these laws and regulations should apply when checking for compliance. This is important because illegal practices may relate to allocation of timber harvesting rights, the source of timber, harvesting operations, transport, processing, market and export, payment of royalties and taxes, and declaration to customs. Also, a definition of legality may address the issue of sustainability.
Ghana is in the process of negotiating a partnership agreement with the EU on trade in timber. A key part of the agreement is to arrive at a definition of what constitutes legal timber within the Ghanaian context. It is against this definition or standard that the legality or otherwise of a timber product being traded under the partnership agreement would be measured. Products that are unable to measure up to the standard will be unable to enter to the EU block.
The legality definition therefore seeks to set criteria that will empower external actors, as it were, to verify compliance with and enforce laws governing the transactions in the allocation, harvest, transport and trade of timber.
1.1Objectives of the Study and Terms of Reference (TOR)
It is noted that the subject of legality of timber is not altogether new. Considerable work and consultations have been undertaken in the development of the Ghana Certification Standard. A recent workshop adopted the standard as a national document. Additionally, a supporting study that focused on the subject of legality of timber in the context of VPA has been conducted under the CARE International work on “Moving Ghana to Legal Timber”. The WWF/Global Forest Trade Network initiative being undertaken in Ghana and selected producer countries also provide a framework that can form part of the building blocks in defining legal timber.
A consolidation of these different initiatives at capturing the essence of legality is now required as Ghana enters into a trade agreement with the EU.
Specific Tasks
The consultant will be required to undertake the following tasks:
- To carry out a comprehensive analysis and review of the under-listed documents on the definition for legality
a.Legality standards developed in the Ghana Certification Standard
b.Draft legality definition contained in the Care International work on “Moving Ghana to Legal Timber”
c.International framework used by the WWF/GFTN/Traffic in other countries in the area of defining legality
- Consolidate the documents into a composite whole that can be used as a base draft ‘document’ on Ghana’s Legality Definition
- Compliment the efforts of a facilitator and the VPA Steering Committee to conduct stakeholder consultations on the ‘document’ with the aim of arriving at a country-wide consensus on the ‘document’.
- Incorporate the adopted stakeholder comments and concerns into a final draft document.
1.1.1Structure of the Report
This report has four main chapters. Chapter 1 is the introductory. It introduces the problem and provides a historical review of legislation on legality in Ghana. The chapter concludes with an overview of the EU’s FLEGT Action Plan and VPA defining the context within which Ghana’s definition of legal timber is being sought.Chapter 2 looks at defining illegal logging and illegal activities and compiles those definitions that are widely accepted.The chapter concludes with a look at some limitations of forest certification as a means of tackling legal compliance and tackling illegal logging. Chapter 3 dwells on the struggle to find a definition and reviews a number of initiatives that have attempted to establish a standard for defining timber legality and which are relevant to the reflection on how best to define legality. Chapter 4 focuses of consolidating the elements of the various definitions into a draft composite definition for Ghana. Attention is paid to the dilemma of finding the right definition for Ghana.
1.2Review of legislation on timber legality in Ghana
With the abolition of the slave trade in the first half of the 19th century, a growing interest in other export commodities began. The potential wealth forests and minerals seemed to offer were the first to be investigated. European commercial interference in the land use of the moist forest zone dates back to the end of the 19th century when first British and later French companies began harvesting African mahogany (Khaya and Entandrophragma spp. of the Meliaceae). Around 1833 the first stems of African mahogany appear on the British market and from 1878 onwards their importance increases. This trade increased steadily and by 1897 timber had become the third most important export commodity in the country.
With timber extraction by Europeans expanding rapidly since the late 19th century an urgent need arose to regulate these indiscriminate activities. In his book Sketch of the Forestry of West Africa (1887) A. Moloney, Governor of Lagos says : ‘It can be stated without fear that in our possessions on the coast of Africa the timber is rapidly and visibly diminishing, and that ... re-planting and preventing waste, has become worthy of early consideration.' This awareness will lead to the introduction of institutional mechanisms to halt environmental degradation.
The Land Bill 1897 is the first legal regime that sought to provide the contractual basis for timber concessions in Ghana. Under the provisions of the Land Bill 1897, a concession court has the power to make inquiries and interpret the terms of timber concessions or timber utilization contracts. The 1897 Land Bill had to be abandoned due to the extreme opposition that it encountered. However, in 1900, some of its basic principles were incorporated in the Concessions Ordinance that provided similar powers to the concession court to interpret, adjudicate and enforce the contractual terms of concessions. The Concessions court could also review royalty levels.
Following its failure to achieve overall control of land, the Gold Coast Government decided to concentrate its attention on gaining control over the means of production. In 1907 the Timber Protection Ordinance (Cap. 96) was enacted in order to protect immature trees of certain species against felling. Under this Ordinance a Forest Officer was appointed to inspect trees before they could be felled. Cap 96 also stipulated the registration of property marks by all persons engaged in the timber export trade (Douglas 1955).
Due to the increasing interest in timber exploitation, H.N. Thompson, the Conservator of Forests in Southern Nigeria, was invited to visit the then Gold Coast in 1908. The study tour lasted 6 months and a comprehensive report on the high forest zone and parts of the southern savanna woodland was submitted. In the report Thompson (1910) suggested the enactment of forest legislation, the protection of timber trees and the introduction of property marks for fellers. In the course of 1910 a Forest Ordinance was passed to empower the Governor to declare certain lands subject to forest reservation. The aim of this Ordinance was to reserve 1.5 million ha of moist forest. But the Government dared not implement the ordinance in face of local opposition, so its implementation was delayed until 1927 (Taylor 1960).
In 1921 the introduction of the property marks under the Timber Protection Rules took place. In 1925 and 1926 amendments to the Concessions Ordinance of 1900 were made which gave the Chief Conservator of Forest power to regulate operations within concessions, to lay down directions and limitations before work commenced and to prescribe penalties for infringement.
The Forest Ordinance (Cap 157) was passed in 1927, which vested power in the central government to constitute and manage reserves. The power to establish forest reserves by Native Authority by-laws was also recognized. In both instances title remains with landowner, while management is undertaken in trust for landowner. The Ordinance empowered the State to make regulations with respect to timber leases or permits. The Ordinance further outlined the conditions under which concessions could be granted and largely indicated that chiefs and community members had no right of access to trees or land in the reserves except for domestic use pursuant to a permit from the Forestry Department (FD), now Forest Services Division (FSD) of the Forestry Commission (FC).