DEFINITION OF LEGAL TIMBER
DEFINITION OF LEGAL TIMBER
Draft Document on Definition of Legal Timber in Ghana
September 2007
Draft Document on Definition of Legal Timber in Ghana
Kwame A. Oduro
Kwame Gyan
September 2007
ACRONYMS
Cap Caption
CCF Chief Conservator of Forests
C & I Criteria and Indicators
CITES Convention on International Trade in Endangered Species
EC European Commission
EU European Union
FC Forestry Commission
FLEGT Forest Law Enforcement, Governance and Trade
FPS Forest Protection Strategy
FSC Forest Stewardship Council
FSD Forest Services Division
GFTN Global Forest and Trade Network
LI Legislative Instrument
LIF Log Information Form
LMCC Log Measurement and Conveyance Certificate
NBCS National Biodiversity Conservation Strategy
NTFPs Non Timber Forest Products
NRCD National Redemption Council Decree
PTL Protected Timber Lands
SFM Sustainable Forest Management
SP Salvage Permit
SRA Social Responsibility Agreement
TIDD Timber Industry Development Division
TIF Tree Information Form
ToR Terms of Reference
TOS Timber Operational Specifications
TREC Timber Rights Evaluation Committee
TRMA Timber Resource Management Act
TRMR Timber Resource Management Regulation
TUC Timber Utilsation Contract
VLC Verification of Legal Compliance
VLO Verification of Legal Origin
VLTP Validation 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. List (database) of approved timber production areas
2. Boundaries 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. Valid TUC area documents and/or owners’ written consent
2. Valid documents for areas not subject to TUC
Criterion 1.3.: There is proof of legality of third party
1. Valid 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
1. There is transparent competitive bidding for timber rights allocation in the form of timber utilisation contracts (TUCs)
2. Salvage permit is allocated for an area of land approved for undergoing development by appropriate government authority
3. Timber 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 3.1 The Company has timber harvesting rights
1. Company/logger has been awarded TUC or has been issued with salvage permit or TUP
2. Loggers have valid property mark registration with FC
Criterion 3.2 Timber harvesting planning and logging operations for timber production areas comply with the requirements in FC’s Logging Manual and manual of procedures.
1. TUC area plan, harvesting schedule and five-year harvesting plan (including compartment logging plan) are prepared and endorsed.
2. Stock 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. Logging has not been carried out in areas where harvesting schedules have not been prepared and in areas not designated for timber production.
4. Social Responsibility Agreements have been finalised between community and the contractor
Criterion 3.3 There is accurate measurement, reporting and declaration of the values and volumes of timber harvested
1. Every tree harvested is in the approved yield
2. Timber harvested is below or corresponds to the volumes or numbers authorised in the permit or contract
3. Logs are accurately measured and recorded
4. Stumps 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
5. Post-felling inspection is carried out
Criterion 3.4 compartment opening and closure
1. Harvesting operations commences only after FC’s approval of compartment opening
2. No harvesting operations take place after compartment closure
Principle 4: Transportation
Criterion 4.1 All timber transported has required physical identification
4.1.1 Logs transported from harvesting areas are marked with the required physical identification
Criterion 4.2 All timber transported has official documentation detailing the origin and corresponds to any physical identification that the timber may carry
1. Valid official documents accompany timber being transported
2. Timber consignment paper work is complete and up to date
Principle 5: Timber processing operations
Criterion 5.1 The processing company comply with legal requirements covering its activities
1. Processing company has valid registration and valid licenses to operate
2. Processing company keeps log books to record all wood entering or exiting the facility.
3. Log 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 6.1 All dealers (including exporters) have valid registration license and permit to market timber
1. Dealers have valid licenses to operate
2. Dealers are registered with relevant authorities
Criterion 6.2 Companies comply with all legal requirements and regulations covering their activities
1. Shipping company is registered with relevant authority
2. Export documents are valid and up to date
Principle 7: Statutory fiscal obligations
Criterion 7.1 All statutory fiscal obligations are met
1. Stumpage fees and other related charges are paid
2. All product-based taxes and fees have been paid
3. Social Responsibility Agreements have been honoured
4. Compensation 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 iii
EXECUTIVE SUMMARY iv
TABLE OF CONTENTS vii
1. INTRODUCTION 1
1.1 Objectives of the Study and Terms of Reference (TOR) 1
1.1.1 Structure of the Report 2
1.2 Review of legislation on timber legality in Ghana 2
1.3 The EU’s Forest Law Enforcement, Governance and Trade Action Plan 5
1.4 Voluntary Partnership Agreements (VPAs) 6
2. DEFINING ILLEGAL LOGGING AND ILLEGAL ACTIVITIES 7
2.1 Limitations of forest certification as a means of verifying legal compliance and tackling illegal logging 9
3. REVIEW OF EXISTING RELEVANT WORK ON DEFINITION OF LEGAL TIMBER IN GHANA 11
3.1 Defining timber legality 11
3.1.1 The struggle for a definition 11
3.2 VLTP legal study on definition of timber legality in Ghana 13
3.3 Care International work on moving Ghana to legal timber 13
3.4 International Framework used by WWF’s Global Forest and Trade Network (GFTN) 14
3.5 SGS programme 14
3.6 Keurhout legal timber standard 15
3.7 Ghana forest certification standard (GFSC) 16
4. DRAFT DEFINITION OF LEGAL TIMBER IN GHANA 17
4.1 Draft definition of legal timber in Ghana 17
4.2 Conclusion 22
REFERENCES 24
ANNEXES 25
Annex 1: CONSTITUTIONAL PROVISIONS AND KEY LEGISLATION 25
Annex 2: CURRENT INITIATIVES THAT ATTEMPTED TO ESTABLISH A STANDARD FOR DEFINING TIMBER LEGALITY IN GHANA 30
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.
1.1 Objectives 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:
1. 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
2. Consolidate the documents into a composite whole that can be used as a base draft ‘document’ on Ghana’s Legality Definition
3. 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’.
4. Incorporate the adopted stakeholder comments and concerns into a final draft document.
1.1.1 Structure 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.
1.2 Review 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).
Timber harvesting increased in the 1930s and in order to regulate the operations of timber contractors, a Concessions Ordinance (Cap 136) was promulgated in 1939. The Concessions Ordinance introduced a system of timber harvesting rights, and revenues. The Ordinance also mandated the Chief Conservator of Forests (CCF) to prescribe conditions, restrictions, limitations and directions of concession operations like the tolerable level of forest destruction due to logging, construction of logging roads and landing areas, diameter limits and species of trees that could be felled. It also provided for natives’ rights with respect to lands, and agreements relating to rights such as timber and to a limited extent empowered chiefs to grant concessions on their lands.
Subsequently, two other ordinances related to the regulation of the timber trade were promulgated, namely; the Trees and Timber Ordinance (Cap 158), 1950 and the Forest Offences (Compounding of Fines) Act, 1959. These two ordinances made general provisions for protecting and dealing with offences relating to trees and timber in forests and reserves by compounding fines in certain cases.
In addition, a Trees and Timber Ordinance (Cap 158) was promulgated in 1950 to control or prohibit the cutting or felling of any trees of small girth. It also provided for the registration of property marks before exploitation of timber. A series of regulations and amendments to this Ordinance, including the Trees and Timber Lands Act, 1959 were enacted between 1950 and 1961 to ensure that timber was exploited sustainably.
The post-war expansion of the timber industry was colossal. Between 1945 and 1955, timber production moved out of the hands of the pit sawyers and into the ambit of large, foreign owned concerns. The low royalty rates being negotiated with the chiefs and the low export duties being maintained on timber by the government further encouraged the European prospectors. To counter-balance these dramatic developments the Protected Timber Lands Act (Act No.39 of 1959) was enacted to give the Government the power to declare off-reserve areas “which consisted wholly or mainly of standing timber” temporarily protected as Protected Timber Lands (PTL). The next year it was followed by the Forest Improvement Fund Act 1960, which essentially mandated the CCF to collect royalties and other timber fees on certain Stool lands.
In addition, in a move to further strengthen the control over the timber trade, a Concessions Act, 1962 (Act 124), which amended the Concessions Ordinance, was passed. Act 124 divided forests and protected areas into concessions for the purpose of timber exploitation. It also dealt with forest fees, timber leases and licences. The Concessions Act 1962 (Act 124) vested timber rights on all forest land in the “President” in trust for the owners. The President acting as the trustee, is to implement the provisions of the Act through the relevant Ministers with jurisdiction on land and forest issues (normally the Minister of Land and Forestry). The designated Ministry negotiates forest utilization contracts with concession applicants on behalf of the Stool and the Government. By mandating the assigned Ministry to negotiate, regulate and enforce concession terms and obligation, the Concession Act of 1962, transferred the rights and responsibilities of concession management from the judiciary (Concessions Court) to the executive. With the passing of the Concessions Act (124) and the Administration of Lands Act (123) the State gained control over administration and allocation of all timber resources and forest reserves. The Acts together vested all timber trees and forest reserves in the President in trust for the stools concerned. This has continued to the present case, where concession administration and collection of timber royalties and fees in both forest reserves and off-reserve areas have been under the jurisdiction of the Forestry Services Division (FSD) of the FC.
Act 124 was however amended in 1974 by the Trees and Timber Decree, 1974 (NRCD 273). The decree was aimed at regulating the commercial exploitation of reserved and unreserved lands. Besides these, the Forest Improvement Fund Act, 1960 and the Timber Industry (Government Participation) Decree, 1972 (NRCD 139) were all passed to ensure that forest resources were used judiciously (c.f. Agyeman, 1993).
To guarantee forest communities access to non-timber forest products (NTFPs) the provisions of the 1959 Protected Timber Lands Act were repealed by a Trees and Timber Decree 1974 (NRCD 273). The Decree provided for a regulated access and made it illegal to fell trees or farm in a Protected Area without license. NRCD 273 was supported by the Forest Protection Decree, 1974 (NRCD. 243). Under these decrees, the penalties for conviction for forest offences were enhanced. The Decrees, which were passed during military rule in the country, consolidated the State control over forest resources, which were introduced before independence.
Unfortunately, the implementation of all these Decrees resulted in an increase in the number of concessions granted and political patronage. A resultant effect was the spill over of concession from forest reserves into off reserve areas. The Decrees made an offence to conduct timber operations without valid property mark and prohibited any activity in forests without the consent of the Forestry Department.
In order to curb the increased activities of concessionaires especially in areas outside forest reserves and its attendant conflicts of interest between forest communities and concessionaires an Economic Plants Protection Decree 1979 (AFRCD. 47) was passed to prohibit the granting of felling rights to timber trees located in particularly cocoa farms. Although the Economic Plants Protection Decree prohibited the felling of timber in cocoa farms, it did not specifically and explicitly provide similar protection for farms where other crops are grown. The Decree also did not prevent the establishment of farms within timber concessions.
In 1995, the “Interim Control Measures” on exploitation and transportation of trees off-reserve was instituted. These measures, which involved local community participation in monitoring and management, was meant to ensure that social responsibility, environmental and ecological issues were addressed in order to ensure sustainability of wood supplies from off-reserve areas (Gronow 1997). The second step under the “Interim Control Measures” was a shift from the policy of “liquidation” to sustained management of off-reserve areas. The ensuing chainsaw permit system has been grossly abused by the communities, the District Assemblies and some of the FC officials so much that even today it can be considered to be out of control. Neither the “Interim Measures” instituted in 1995 nor the Task Forces formed in 1996 to crack down on the abuses of the system have made any significant impact. Chain-sawing was consequently outlawed in 1997, and the Timber Resources Management Act, 1997 (Act 547) and the related LI 1649 (section 32 (1 and 2)) enacted to ban chain-sawing.
The legal reform of the concession system was introduced through the Timber Resources Management Act, (Act 547) of 1997 and the accompanying Timber Resources Management Regulations (LI 1649) of 1998. Act 547 and the Forestry Commission Act (Act 571) provide at present the legal framework supporting the 1994 Forest and wildlife Policy for the sector. Timber concessions or rights are allocated on both forest reserve and off-reserve areas. Timber concessions are replaced by Timber Utilisation Contracts (TUC) in both forest reserve and off-reserve areas. TUC is new legal contract between the State, holder of timber rights and landowner, which gives greater ability to enforce regulations on established terms and conditions including compliance with forest management specifications, and periodic audits, or to revoke the contract for non-compliance. The Act formalises the rights of other stakeholders to be consulted. Also, applications for timber rights have to be submitted with ‘proposals to assist in addressing social needs of the communities who have interest in the applicant’s proposed area of operations’ (Social Responsibility Agreements).
In 2002 both the TRMA and TRMR were amended by Timber Resources Management (Amendment) Act, 2002 (Act 617), and Timber Resources Management (Amendment) Regulations, 2002 (LI 1715) to exclude the granting of timber rights on land with private forest plantations or land with any timber grown or owned by individuals or groups of individuals, and introduced competitive bidding for timber rights. The reforestation obligation was dropped at the same time. Presently, forest reserves which were created under the Forest Ordinance 1927 (Cap. 157), protected under the Forest Protection Decree 1974 (NRCD 243) and regulated under the Timber Resources Management (TRM) Act of 1997 (Act 547), Timber Resources Management Regulations, 1998 (LI 1649), TRM (Amendment) Act of 2002 (Act 617), TRM (Amendment) Regulations (LI 1721) form the basis of forestry in Ghana
1.3 The EU’s Forest Law Enforcement, Governance and Trade Action Plan
At the basis of Ghana’s negotiations with the EU stands the EU’s Action Plan for Forest Law Enforcement, Governance and Trade (FLEGT), which sets out a process and a package of measures through which the European Commission (EC) proposes to address the growing problem of illegal logging and related trade. The Action Plan (see EU 2003, Lammerts van Bueren 2004) is one of the EU’s priorities in the follow-up to the 2002 World Summit on Sustainable Development (WSSD).
The Action Plan sets out a new and innovative approach to tackling illegal logging, linking good governance in developing countries with the legal trade instruments and leverage offered by the EU’s internal market. The Action Plan is the start of a process which places particular emphasis on governance reforms and capacity building, supported by actions aimed at developing multilateral cooperation and complementary demand-side measures designed to reduce the consumption of illegally harvested timber in the EU. The Action Plan distinguishes six areas of actions:
• Development co-operation Partnership Agreements: Memoranda of Understanding (MoU) are envisaged between the EC and individual exporting countries. The MoU’s comprise the support with forest law reform, where needed, the development and implementation of a system of verification of legality in the producing countries, a voluntary license scheme (certificate) for exporters and importers of legal timber and wood products. The EC will invest in monitoring and capacity building in the MoU countries.
• Trade in timber: The EC will review options including the feasibility of legislation to control the imports of illegally produced timber into the EU.
• Public procurement: Practical information will be provided to guide contracting authorities on how to deal with legality when specifying timber in procurement procedures.
• Private sector initiatives: Measures are proposed to encourage private sector initiatives for good practice in the forest sector, including the use of voluntary codes of conduct to source only legal timber.
• Financing and investment safeguards: Banks and financial institutions which invest in the forest sector should be encouraged to develop due diligence procedures which take account of the environmental and social impact of forest sector lending; including conformity with relevant legislation. Export Credit Agencies should be encouraged to develop guidance on improved project screening procedures and codes of practice for forest sector projects.
• Implementation: To support implementation of the above activities, a co-ordinated EU response is proposed, drawing on the different strengths and capacities of the Commission and EU Member states. A joint work programme will be prepared with Member States to facilitate this.
One of the challenges for the implementation of the FLEGT action program is a mutual agreement on a workable definition of legality. The EC envisages to agreeing on a definition of legality with each partner country on an individual basis. The definition will then form part of that country’s Partnership Agreement. Another point is that the licenses proposed in the Action Plan would initially cover a limited range of solid wood products (roundwood and rough sawnwood). This is because of the complexities and difficulties of checking the origin (and thus the legality) of processed timber products.
1.4 Voluntary Partnership Agreements (VPAs)
At the core of the Action Plan are Voluntary Partnership Agreements with timber-producing countries that wish to eliminate illegal timber from their trade with the EU. These agreements will involve establishment of a licensing scheme to ensure that only legal timber from producing countries (“Partner Countries”) is allowed into the EU. That is, exports of timber products from partner countries will be accompanied by a legality license providing an assurance that the timber is legal. Unlicensed consignments from Partner Countries would be denied access to the European market under the scheme. The FLEGT Partnerships may require capacity building in order to improve transparency and accountability, develop timber tracking systems and audit/ monitoring capabilities as well as providing support for legal and forest governance reform, in many cases.
Each Voluntary Partnership Agreement will require a definition of “legal timber” and the means to verify that wood products destined for the EU have been produced in line with the requirements of this definition. Both the definition of legality and the verification system should be appropriate to circumstances in the Partner Country. In each country, the VPA will need to take account of the inherent differences of national forest governance issues, forest-related legislation, the nature of forest and land rights, nature of timber trade, current forest sector initiatives and the capacity to implement agreements. Details of these will be negotiated between each Partner Country and the EU. Where needed, EU development assistance will be provided to help establish licensing schemes.
The FLEGT partnerships represent a delicate balance between different interests: a mechanism to ensure only legally harvested timber enters the EU; a mechanism to promote improved forest governance and management; an opportunity to address shortcomings and controversy in legal and regulatory frameworks; an appreciation of the sovereignty of partner governments to determine their law; but recognition that credibility with the public rests on the VPA's including an agenda of positive change for forest governance and management.
2. DEFINING ILLEGAL LOGGING AND ILLEGAL ACTIVITIES
To begin with, a distinction should be made between the terms “illegal logging” and “illegal activities” in the forestry sector. Smith (2002) uses the term illegal logging to refer to “timber harvesting-related activities that are inconsistent with national (or sub-national) laws.” The Confederation of European Paper Industries (CEPI) (2002) considers illegal logging to be “when timber is harvested in violation of national laws.” FERN (2002) and Brack and Hayman (2001) define illegal logging as follows: “ Illegal logging takes place when timber is harvested, transported, bought or sold in violation of national laws. The harvesting procedure itself may be illegal, including corrupt means to gain access to forests, extraction without permission or from a protected area, cutting of protected species or extraction of timber in excess of agreed limits. However, because the term “illegal logging” was too controversial for some countries, the term “unauthorized harvesting” was used during the Sixth Conference of the Parties of the Convention on Biological Diversity (Brack and al., 2002).
“Illegal forest activities,” is a broad term that includes illegal logging; and it is used to refer to activities broader than just harvesting, transport, processing and trade (Smith, 2002). Brack and Hayman (2001) mention that illegalities may also occur “during transport, including illegal processing and export, misdeclaration to customs, and avoidance of taxes and other monies.” In addition, illegal forest activities are linked to the inability of governments to enforce their laws and from the corruption that flourishes among a country’s politicians and civil servants (FAO, 2001).
The starting point for a specific policy on legality is to clearly identify the problem that it is meant to address. The content of the policy, and procedures created to support it, should ultimately target the problem identified. Numerous studies have documented what constitute the legal and operational definitions, or range of definitions, of illegal logging and illegal timber in trade. As illustrated in the Box 1 below, illegality in the forestry sector is very wide ranging in its potential application and can refer to the entire trade chain from the stump to the end consumer. We compile in this section those definitions that are widely accepted. Most organizations aspire to full legal compliance on the part of all actors involved in the supply and manufacture of the products traded.
Box 1. Examples of types of illegal practice in the forestry sector (Chen 2006)
|Illegal occupation of forest lands |
|A1. Invasion of public forested lands by rural families, communities or private corporations in order to convert to |
|agriculture or other uses |
|A2. Practice of slash and burn agriculture on invaded lands |
|A3. Landless peasants illegally occupying forested areas to force governments to grant land ownership rights to them and buying |
|land from peasants |
|A4. Obtaining logging concessions through bribes |
|Illegal logging |
|B1. Logging protected species |
|B2. Logging outside concession boundaries |
|B3. Logging in protected areas |
|B4. Logging in prohibited areas other than B3 – e.g. steep slopes, river banks, catchments areas |
|B5. Removing under/over-sized trees |
|B6. Extracting more than the allowable harvest |
|B7. Logging without authorization |
|B8. Logging when in breach of contractual obligations |
|Illegal timber transport, trade and smuggling |
|C1. Export/import of timber from protected/restricted species |
|C2. Log export/import in defiance of trade ban |
|C3. Illegal export/import of restricted timber other than C1 and C2 |
|C4. Other unauthorized movement of timber across State, national or international boundaries |
|C5. Unauthorised domestic movement of timber (usually illegally harvested timber) |
|C6. Exporting and importing specimens of tree species banned under international law, such as CITES, or those traded without proper|
|documentation across international boundaries |
|Transfer pricing and other illegal accounting practices |
|D1. Declaring lower values and volumes on exports… |
|D2. …on imports |
|D3. …on provision of services, including manipulating debt cash flows to transfer money to a subsidiary or parent company, e.g. |
|inflating debt repayment to avoid taxes on profits |
|Under-grading, under-measuring, under-valuing |
|E1. Under-grading timber |
|E2. Under-declaration of volume/quantity |
|E3. Under-valuing export or domestic price of timber |
|Misclassification of species |
|F1. Misclassification of species to avoid higher taxes, royalties or duties |
|F2. Misclassification of species to circumvent species-specific harvest and/or trade restrictions |
|F3. Classification of lesser-used species as accepted market species in order to gain market access |
|Illegal processing of timber |
|G1. Operating without a processing license |
|G2. Ignoring environmental, social and labour laws and regulations |
|G3. Using illegally obtained wood in industrial processing |
Miller et al. (2006) provide some examples of how other organizations have defined the illegal logging problem. The variety of definitions is an indication of the complexity of the issue. The tipping point at which activities become illegal tends to be a reflection of the philosophy of the organization concerned, combined with any specific geographical considerations.
American Forest Products Association (2004)
• Theft of timber or logs; cutting in parks, reserves or similar areas; and cutting where government approvals are obtained by corrupt practices.
European Commission (2004)
• Harvesting timber in violation of national laws is illegal. Illegal harvesting may include not only using harvesting practices that contravene the regulations but also using corrupt means to gain harvesting rights, extraction without permissions or from protected areas, cutting protected species or extracting timber in excess of agreed limits. Beyond harvesting, illegal practices may also extend to transport infringement, illegal processing and export, non-payment of taxes or charges, and mis-declaration to customs.
Greenpeace (2005)
• Illegal logging takes place when timber is harvested, processed, transported, bought or sold in violation of national laws. Laws can be violated at many different stages of the supply chain and can include:
▪ Obtaining concessions illegally (for example, via corruption and bribery)
▪ Cutting protected tree species or extracting trees from a protected area
▪ Taking out more trees and more undersized and oversized trees than is permitted or trees outside an agreed area
▪ Illegal processing and export
▪ Fraudulent declaration to customs of the amount of timber being exported
▪ Nonpayment or underpayment of taxes
▪ Use of fraudulent documents to smuggle timber internationally.
FSC (2004)
• Wood that has been harvested and does not comply with national regulations including the acquisition of the harvesting rights from the rightful owner, the harvesting methods used and payment of all relevant fees and royalties.
Malaysian Timber Council (2004)
In Peninsular Malaysia, three categories are used to classify forest offences:
• Category 1 covers offences involving logging without license, logging outside licensed area and unauthorized construction of infrastructure and forest roads.
• Category 2 covers encroachment of forest reserves for agricultural activities and settlement.
• Category 3 covers other forest offences that involve felling of unmarked trees, cutting trees below the cutting limit, unlicensed workers, contractors with no valid sub-license, unregistered machinery plus other breaches of rules and regulations committed within and outside the forest reserve.
Supreme Court Decision in Russia. Resolution No.14, Russian Federation Supreme Court 1998. The definition is related to the application of Article 260 of the Criminal Code of the Russian Federation.
• An illegal forest felling operation (cutting) is cutting of trees, bushes and lianas without a harvesting license or authority, cutting with a harvesting license or authority issued with abuse of the existing cutting-practice rules, cutting carried out at the wrong site, beyond a site’s borders or exceeding the set quantities cutting of species or of trees, bushes and lianas that are not covered by the harvesting licence or authority, cutting before and after the logging period fixed in the harvesting licence or authority, cutting trees, bushes and lianas that are forbidden by Resolution No. 155 of the Government of the Russian Federation June 1, 1998, cutting after the announcement of a temporary prohibition, restriction or complete discontinuation of forest user activities or the right to use a forest area.
World Business Council on Sustainable Development (2005)
• Sourcing of illegal wood takes place when unprocessed wood is procured in the absence of the seller’s legal right to sell or harvest. Illegal logging takes place when timber is harvested in violation of relevant forestry and environmental laws and regulations. Illegal forest products trade involves the procurement, processing, distribution and marketing of products made from wood that has been obtained by illegal sourcing or illegal harvesting and/or are not in compliance with relevant national and international trade laws.
CITES (2006)
CITES has particularly powerful text in its Articles relating to the legality of trade in species listed in its Appendices I, II and III, stating that:
• …the export of any specimen of a species included in Appendix [I. II or III] shall require the prior grant and presentation of an export permit. An export permit shall only be granted when.....a Management Authority of the State of export is satisfied that the specimen was not obtained in contravention of the laws of that State for the protection of fauna and flora……
2.1 Limitations of forest certification as a means of verifying legal compliance and tackling illegal logging
There is a general believe that forest certification might be a tool to guarantee both good forest management and being applied for legality verification at the same time (see Contreras and Peter 2005). However, forest certification is a voluntary market mechanism designed to assess the sustainability of forest operations against a certification standard while it is poorly designed to address legal compliance. Several limitations are evident:
• Certification does not prevent illegal logging or poor management outside certified areas because it is not a universal tool for detection or suppression of illegal activity.
• By design, certification cannot be used as a detection tool: although "respect of all national and local laws and administrative requirements … and of all the provisions of binding international agreements …" is part of FSC principles 1.1 to 1.5 (Bourke 2002), certification audits do not involve probing, in-depth investigation for fraud. Legality is not the primary concern.
• Certification is a quality assurance approach and demands trust and goodwill. Initial assessments and surveillance visits are limited in time, frequency and area. Current chain-of-custody requirements and audit systems under forest certification are therefore vulnerable to abuse. Since certification processes are not designed to address legal compliance in any detail, certification is not a robust legal compliance verification system. It could even be suggested that the whole set of certification principles will only be satisfactorily fulfilled if the legal compliance principles are properly verified in the first instance through independent verification of legal origin (VLO), for the products, and verification of legal compliance (VLC) for the production methods as described by Beeko et al. (2006). Under this approach VLO/VLC becomes a prerequisite for certification.
• Being a voluntary process certification only affects the companies and forest owners that sign up for it. Being site-based, it cannot address the problems of illegal activity or poor management outside or sometimes even inside the areas under certification. The legitimate yet uncertified concessions often continue to be managed simply for short-term profits.
• A further issue is that certification was not designed to compile and cross-check data at the country or province level for information consistency on timber flows, which is the only way to understand and control the real origin and destination of timber products. Leakages at the domestic market which are apparent in Ghana (see Parren et al. 2007) can according not be addressed by certification alone.
Nor can certification be used as a punishment tool, to aid law enforcement by governments:
• Certification requirements are usually wider in scope and more comprehensive than regulatory ones, hence forest authorities cannot use the results of the certification process to apply any kind of legal sanction. Moreover, voluntary certification schemes do not have any legal status in the country in which they operate (Bourke 2002).
• Certification could be made compulsory: i.e. possession of a certificate would be made a condition of obtaining or keeping a concession. However, gaining a certificate of Sustainable Forest Management (SFM) can take several years (whereas legal compliance can be checked from the first day of activities), it is unrealistic to include a mechanism with such a transitional period (without a certificate being issued and in the absence of any other form of control) in a legally-enforceable regime.
• Then, what happens during the life of the certificate? While certificates can be suspended or withdrawn once awarded, denial or withdrawal of a certificate may prove to be counter-productive in trying to compel producers to practise responsible management. Scaled financial penalties, based on government control of non-compliance with laws and regulations, are needed before withdrawing the concession agreement; which should only ever be used as a last resort.
Given the above it is clear that governments cannot use a market-driven instrument such as forest certification as a means of controlling compliance with legal and regulatory requirements. Adding in VLO/VLC requirements to the public procurement codes of producer countries, especially where it relates to the correct use of government and donor funding, could have some positive impact on illegal logging and help promote SFM and change mentalities locally. It may be that domestic markets are often neglected just because of the importance of un-recorded transactions. However, local public procurement markets are becoming more important in producer countries. Local legally verified timber procurement guidelines are now proposed for Ghana by Parren et al. (2007) to curb the domestic illegal timber trade.
3. REVIEW OF EXISTING RELEVANT WORK ON DEFINITION OF LEGAL TIMBER IN GHANA
3.1 Defining timber legality
Most works done on definition have mainly focused on definition for sustainable forest management (FAO, 1993; ITTO, 1998, 2005; UNCED, 1992). Seven common thematic areas of sustainable forest management have emerged based on the criteria of the nine ongoing regional and international criteria and indicators initiatives. The seven thematic areas are:
i. Extent of forest resources
ii. Biological diversity
iii. Forest health and vitality
iv. Productive functions of forest resources
v. Protective functions of forest resources
vi. Socio-economic functions
vii. Legal, policy and institutional framework.
This consensus on common thematic areas effectively provides a common, implicit definition of sustainable forest management. However, there is no comprehensive definition of timber legality. This lack of definition is due to the complexity of the issue itself. Some few studies have tried to define timber legality in terms of compliance with certain requirements regarding:
i. Origin of timber resources
ii. Land tenure and forest access rights
iii. Logging permits
iv. Harvesting operations
v. Transportation
vi. Processing
vii. Fiscal regime
viii. Trade and export procedures.
3.1.1 The struggle for a definition
The crucial question is: how to define legality in the context of curbing illegal timber? In all the processes regarding implementation of FLEG policies and the development of verification tools this question comes up. As van Bueren (2004) rightly puts it, the world is struggling with this issue. Originating from the concern of huge volumes of trees harvested indiscriminately and without permits in production forests and even in protected areas, the concept of legality has evolved to encompass all legislation pertaining to forest and forest operations. As a result, a frequently referred to, notably by NGOs, definition of legal timber is: timber that has been logged, transported, processed, purchased or sold in compliance with national, regional and local laws and regulations (van Bueren, 2004)
The first step towards standardising a definition of legality has been the work carried out by The Nature Conservancy (TNC), based on the memorandum of understanding (MoU) between the governments of Indonesia and the UK (see Chen 2006, Jurgens 2006). The latter MoU came up with the following draft definition:
Timber is legal when the validity of its origin, logging permit, logging system and procedures, administration and transport documentation, processing and trade or transfer are verified as meeting all applicable legal requirements.
Such a definition is comprehensive as the laws of the country of origin are considered to be the bench mark for the legality proof on activities, which are taking place before the timber is exported. However, in many countries it is also common to see that legislation is contradictory and inequitable. To overcome these deficiencies mutual agreements between importing and exporting countries are being established to define the legality more unambiguously. Definitions have the tendency to be translated to conform to requirements for full compliance with legal and sustainable forest management (SFM certification). The wide scope makes these definitions less appropriate to distinguish between timber from trees harvested according to legal permits and timber that does not originate from a legal source. That is where for instance the Keurhout Protocol (see section 3.6), distinguishes two levels of legal compliance each with their proper set of Criteria & Indicators to separate the SFM legal requirements from the legal timber verification requirements.
An instructive analysis is presented by Dijkstra et al., 2002. The designers of any system to verify legal compliance in the forest products industry must identify the scope of concern of likely users and judge which aspects of legality warrant inclusion. Systems to verify legality must therefore balance scope in covering the range of issues of concern to different stakeholders, with the practicalities of designing a system that makes the right distinction and that is affordable and workable.
Approaches to finding this balance include:
1. Limiting the scope of inquiry to one or more specific aspects of production, (for example, the circumstances under which the wood is harvested).
2. Concentrating routine enquiries on what can be readily verified (for example, existence of a valid permit to harvest in the area where the wood was sourced), while investigating forms of illegality that are harder to pinpoint (for example, fraudulent transfer-pricing schemes) if and when a suspicion is raised.
3. Stepwise approaches, starting off with simple checklists and progressively adding complexity as experience and confidence are gained (e.g. an initial focus on whether forest management and processing have been properly licensed and later extend this to include compliance with all national laws).
In practice approaches are being developed along these lines.
The Tropical Forest Trust (TFT) is striving to expand the area of natural forest certified by FSC. TFT has developed a guide “Good Wood, Good Business” which supports companies in building a system to give maximum assurance that no illegal wood can penetrate in their chain of custody. The Wood Control System has seven key elements. One element is the chain of custody and another is Wood Origin Control (WOC). The latter refers to four indicators which:
• Establish legality that is confined to the legal license permit,
• Checks on whether the right trees have been harvested.
Proforest has developed a Modular Implementation and Verification system to achieve sustainable management. The first three modules concern legal compliance:
• Resource rights
• Operating legality
• Control of unauthorised activities
According to Proforest, most people differentiate different types of levels of legality. The levels are roughly:
• Stolen timber which means”
o Timber taken from forest where the logger had no right to cut
o Timber cut by a concessionaire/owner from protected zones in their forests
o Timber cut by a concessionaire/owner which should not have been cut because it is below the diameter limit, a protected species, etc
• Timber with serious failure to meet laws pertaining operations, environmental protection, health and safety, etc in the forest. Timber for which fees, royalties taxes etc have not been paid
• Timber originating from operations with the minor infringements of laws (e.g. overloading and occasional non-compliances in the forest).
Within the Ghanaian context, there are a number of initiatives that have attempted to establish a standard for defining timber legality and which are relevant to the reflexion on how best to define legality. These are discussed below.
3.2 VLTP legal study on definition of timber legality in Ghana
Agyeman et al. (2007) reviewed the existing policies and legislation that are related to the definition of legal timber in Ghana. Their review of the Acts, Legislative Instruments (LIs) and other documents regulating forestry and the timber industry came up with the following draft definition:
Timber is legal in Ghana when it meets certain criteria covering (1) the source, (2) timber rights allocation, (3) timber harvesting operations, (4) transportation, (5) timber processing, (6) marketing, and (7) fiscal regulatory systems (Annex 4, Box 1) .
This definition provides a good summary of the criteria for defining legality contained in the various Acts and LIs that regulates forestry and the timber industry. However, a major difficulty with this definition is the long-term history of non-compliance that exists in the country. The existing non-compliance is linked to the inability of government to enforce the laws and from the corruption that flourishes among some officials, timber company workers, politicians and civil servants. The reasons explain government’s inability to enforce compliance with the laws and corruption are far too numerous and will not be dealt with in this report.
Another problem with this definition is that, the provisions governing the criteria for defining timber legality are scattered in the different Acts and LIs making it difficult for the industry to comply. In addition, there are major concerns about access rights, benefit sharing and ownership of the resource that are still not resolved in the existing legislation.
3.3 Care International work on moving Ghana to legal timber
Care International’s (2005) report on “’Legal Timber’ in Ghana” reviewed sources of definitions of legality existing within the Ghanaian laws and regulations; and facilitated an early consultation workshop between decision makers and stakeholders to discuss and help build consensus on a national definition of timber legality. The report catalogued the current legal requirements for harvesting, processing, transporting and exporting timber or wood products in Ghana as well as the other legal requirements timber companies are required to comply with under statutes of general application. These were then analysed in terms of the process flow of the timber industry.
The report notes that defining timber legality will contribute to at least three wider policy objectives that all require implementation of the legality concept. These are:
a. Sustainable management of forests,
b. Poverty reduction and equity, especially forest owning and dependant communities and optimisation of forestry’s contribution to national development objectives, and
c. Transparency and accountability of sector governance.
The report presents two options for defining timber legality in Ghana. The first option is the “crude definition” of timber legality based on all the relevant legislation. According to this definition:
Timber is legal when the validity of its origin, logging permit, logging operations, transportation operations, processing operations, trade or transfer are verified as having met all applicable legal requirements (Annex 4-Box 2).
The second definition is the “narrow definition” of timber legality, i.e. a set of rules (referring to specific provisions of only the Timber Resources Management Act and the Trees and Timber Decree) that apply exclusively to the conduct of timber companies. According to this definition:
Timber companies are operating legally when their logging permits, logging operations, transportation operations, processing operations and trade or transfer processes meet all applicable legal requirements (Annex 4-Box 3).
The dual definition fails to provide unified definitive criteria for determining timber legality, and thereby fails to achieve what is required to satisfy Ghana’s objectives under the VPA negotiations. The “crude definition” in material respects places Ghana on a slippery slope, especially regarding assuring compliance since some of the criteria and indicators are far too remote from timber and related matters.
3.4 International Framework used by WWF’s Global Forest and Trade Network (GFTN)
This is a framework for principles, criteria and indicators (PCI) of legality for forestry operations and timber processing in Ghana that specifies legal requirements relating to land tenure; environmental impact; community relations and workers right; timber harvesting; forest taxes; log identification, transfer and delivery; and processing and shipping. A similar framework has been used by WWF and the government of Vietnam where the framework consisted of seven broad principles of legality supported by 20 criteria and 50 sub-criteria or indicators. The framework makes provision for separate guidance notes to assist auditors in verifying compliance with the criteria. This framework presents largely comprehensive criteria for defining legality (Annex 4-Box 4).
In addition, the WWF’s GFTN issued guidance designed to support the implementation of programmes aimed at improving the environmental and social performance of the supply base by ending the purchase of forest products from illegal or controversial sources, and by continuously increasing the proportion of those products purchased from credibly certified forests. This involves a progression through four categories: 1) known source that complies with policy; 2) legal source; 3) source in progress to certification; and, 4) credibly certified source. The types of documentation to demonstrate the compliance with legal requirements will vary from one country to another. Nevertheless, there are basic requirements to show legal source, such as evidence of the legal right to harvest (land tenure and resource rights), revenue payments, a timber harvesting plan or equivalent document, compliance with forest operations’ requirements, timber transport and timber processing, and export permission, if appropriate.
This scheme suggests a step-wise approach and makes it easier for loggers and timber companies to comply with forestry regulations. The rationale is that these types of gradual compliance systems would lead to more sustainable forest management practices. The guidance notes the difficulties of verifying legality because of, for example, fraud, bribery, corruption and tax evasion and therefore provides a checklist (Annex 4-Box 5) that can be used for considering whether illegality has occurred.
3.5 SGS programme
SGS has also recently developed a Verification of Legal Origin (VLO) programme for national governments. The programme is designed to provide assurance that timber derives from a legal, valid and locally approved source, with all changes of ownership documented and validated, product specifications compliant with regulations and all royalties and other fees paid. VLO also provides assurance that the producer is not over-harvesting (SGS Global Trade Solutions 2003).
Verification of Legal Origin can be further enhanced through Verification of Legal Compliance (VLC). This requires the producer to respect all regulations relating to forest management and logging. If a producer has both the VLO and VLC, the products can qualify as ‘Validated Legal Timber’. The purchaser and his customers are then assured that the timber has been obtained entirely legally. The design of the programme includes the principle that monitoring and verification activities must cover raw logs, processed products and export/domestic trade flows. The definitions of legality that the programme proposes are presented in Annex 4-Box 6.
Thus, under the SGS scheme, verification of legality is separated into two main categories with each consisting of several modules. These are:
Verification of Legal Origin (VLO) demonstrating that logs and timber products in question have been legally sourced and are legally owned; and Verification of Legal Compliance (VLC) that demonstrates that logs and timber products have been legally produced
VLO and VLC modules can be introduced as the programme is gradually implemented in a country. An essential element of the programme is the export permit system, defining which modules and criteria must have been adhered to, at any stage of the implementation of the programme, in order to authorise the export of a consignment of timber. Eventually, the programme can be applied to the domestic market as well.
3.6 Keurhout legal timber standard
In 2006, the Netherlands Timber Trade Association approved a so-called Keurhout Protocol (Keurhout 2006). The Keurhout Protocol (KP) has been established based on the great concern about the harvest of large volumes of trees which according to legislation were not supposed to be harvested. Therefore, the KP for the Validation of Claims of Legal Timber has been developed in order to be able to distinguish between timber with a demonstrable legal origin, and timber that does not satisfy that requirement (see van Bueren, 2004).
The validity of a claim of legal (origin) timber is to be made against the standard (Criteria & Indicators) consisting of five Aspects (Annex 4-Box 7). The effective implementation of the Protocol requires the availability of evidence to assess the legality of origin of the timber. The protocol’s philosophy is that timber with a legal origin should meet the requirement that it has been harvested in compliance with relevant rules and legislation related to legality of permits, and that protected zones and species, tree dimensions and volumes per ha are respected. Rules and legislation refers to laws, rules, sub-national legislation, and Governmental prescriptions in the country of origin, including laws and rules pertaining to international Treaties and Agreements ratified by the country or for which compliance is required under international law.
Furthermore, securing legal origin is an indispensable prerequisite for responsible forest management. Therefore the first level of legal compliance assures that trees and timber have not been stolen i.e. timber comes from a Legal Origin. The second level of legal compliance is reached when forest management meets all the requirements of relevant international, national and local legislation and rules pertaining to sound forest management including environmental and labour conditions and customary rights.
Thus, the KP for the validation of the legality of logs and timber products has been developed as a tool to assess the content and the reliability of written claims of legal timber issued by an independent third party. Validation of legality entails two activities:
• Verification of the legality of the origin of the timber
• Verification of the system to trace the timber back to its origin, i.e. the chain of custody.
The validation Protocol is directed at the appraisal of:
• The quality and reliability of the independent third party, which issues the claim of legality and or the certificate for meeting the requirements of the chain of custody
• The quality of the legality verification scheme operated by the independent third party
• The standard (set of C&I) against which the legality of the timber has been verified and the standard against which the chain of custody has been audited.
The Protocol comprises of an assessment scheme and a normative part against which conformity is assessed. The normative part is divided into two components. One component sets the criteria and indicators for the legality of timber and the other component contains the requirements for the chain of custody.
Keurhout will at least for the time being, work with three protocols. All three protocols deal with the forest management issue as well as the chain of custody. The three protocols address respectively:
• Validation of the claimed legality of timber
• The reliability and quality of SFM certificates
• The quality and reliability of certification systems (van Bueren, 2004).
3.7 Ghana forest certification standard (GFSC)
This national document contains standards that are structured to follow the FSC format for SFM certification. It is a comprehensive document with 10 principles and about 53 criteria and several indicators. The standard for defining timber legality as contained in this document is presented in Annex 4-Box 8.
4. DRAFT DEFINITION OF LEGAL TIMBER IN GHANA
4.1 Draft definition of legal timber in Ghana
The standards for defining timber legality in Ghana as discussed in chapter 3 above include phases of the timber industry and forest management operations. Other elements included in some definitions relate to violations of tax and fiscal legislation, as well as social and labour legislation, bribery and corruption. It has been observed that for any (institutional) 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.
An important task is to clarify what is legal in case of non-compliance of existing laws and regulations. In doing so we need to determine which laws are more relevant in the context for which the definition will be applied. We present in Box 2 a draft of the current composite criteria for defining legal timber in Ghana. This is based on the various initiatives discussed in chapter 3 of this report. The composite criteria comprise 12 main criteria each with the relevant procedures or requirements that would indicate compliance with that criterion. Some comments are given concerning the constraints/challenges to achieving legality based on compliance to the draft composite criteria for defining legal timber in Ghana.
It is clear that legislation in Ghana 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, issues such as designation of timber production areas, registration and licensing of harvesting and processing companies, issuance of permits, timber rights allocation, log identification and transportation as well as evidence of payments of fees and taxes could be considered. In the medium term, issues concerning field inspections, environmental impact assessment, fiscal regime, timely disbursement of royalties and social and labour laws could be tackled. In the long term, all applicable national laws should be applicable.
In the above regard, we propose in the short term a draft definition of legal timber for Ghana in Box 3.
Box 2: Current criteria for defining legal timber
| |Criteria/Standard |Procedures/Requirements |Some challenges to achieving legality based on compliance to the requirements of the |Remarks |
| | | |current criteria | |
| | | | | |
|1 |Definition of legal timber|Resource assessment is carried out in |Field inspections are costly and time-consuming. DCEs, farmers and chiefs do not always | |
| |resources |designated productive forest reserves/areas and|participate in them. | |
| | |stakeholders apprised of resource situation. | | |
| | | | | |
|2 |Source of timber |Timber is sourced from designated productive |The Forest Protection and National Biodiversity Conservation Strategies outline | |
| | |forest reserves; off-reserve areas not within a|protected areas that do not qualify to be placed under timber rights. However these | |
| | |distance of 50m from any stream or river; and |strategy documents have not yet been effectively mainstreamed into FC’s management | |
| | |an area approved for undergoing development |operation; and harvesting sometimes occurs in protected areas. | |
| | |such as road construction, expansion of human |The salvage felling system as applied to off-reserve areas has been subjected to abuse | |
| | |settlement or cultivation of farm |and corruption to facilitate commercial logging. The high number of salvage permits | |
| | | |issued challenges the regulatory system, and somehow provide gateways for “whitewashing”| |
| | |Timber is sourced from productive forest zones |of illegal logs from unapproved sources | |
| | |as stipulated in forest reserve management | | |
| | |plans | | |
| | | | | |
| | |Environmental impact assessment is conducted | | |
| | |for the TUC area and restrictions or |In most cases, environmental impact assessment is not carried out. | |
| | |requirements related to protected areas; |Most loggers do not possess environmental license or permit to harvest trees | |
| | |endangered forest flora and fauna species are | | |
| | |respected. | | |
| | | | | |
|3 |Land tenure and forest |Ownership and management rights of TUC areas | | |
| |access rights |are clearly defined and respected. | | |
| | |Logger has timber harvesting rights over TUC | | |
| | |areas, privately grown plantations, alienation | | |
| | |holdings and dedicated forest schemes. On farm | | |
| | |lands and off-reserve areas the farmers or | | |
| | |other rights holders’ consents have been | | |
| | |obtained. | | |
| | | | | |
|4 |Community relations and |The company provides local communities living |There are instances where temporary employment does exceed 6 months at a time | |
| |workers right |in or around the TUC areas opportunities for |Many workers do not respect health and safety standards | |
| | |employment and other services as agreed in the | | |
| | |social responsibility agreement (SRA). | | |
| | |Industrial relations practices including those | | |
| | |of health and safety, workers’ rights to join | | |
| | |labour unions, conditions of employment, etc | | |
| | |all conform to legal standards | | |
| | | | | |
|5 |Management plan |A management plan -- appropriate to the scale |Forest Protection Strategy and the National Biodiversity Conservation Strategy have not | |
| | |and intensity of the operations – is written, |been effectively mainstreamed into management operations | |
| | |implemented, and kept up to date. The long term| | |
| | |objectives of management, and the means of | | |
| | |achieving them, are clearly stated | | |
| | | | | |
|6 |Timber rights allocation |Timber rights allocation is done by one of the |There are delays in parliamentary ratification of TUCs and hence logging has commenced. |There are concerns as to the |
| | |methods approved by legislation namely | |rationale behind |
| | |competitive bidding for timber rights, timber |The termination of all concessions or lease after a period of six months after coming |parliamentary ratification of|
| | |utilisation permits, and salvage felling. |into operation of Act 547 has not been done and concession holders who applied for |TUCs. Why should TUCs that |
| | |TUCs are ratified by parliament |conversion has also not been converted. |have been allocated on |
| | |Allocation of yield is based on an accepted |This has resulted in major concerns which require broader stakeholder consultation. |competitive basis still |
| | |yield formula, which takes into consideration | |require ratification from |
| | |the felling limit of trees, forest condition | |parliament? |
| | |score and the FC’s fine-grained environmental | | |
| | |protection standards | | |
| | | | | |
|7 |Logging permits |Loggers are qualified to undertake logging |Chainsaw operators do not have any environmental license or logging permit but they do |There appears to be a |
| | |operations and have valid permits to operate. |carry out logging activities |long-term history of |
| | |Operations meet the requirements and | |non-compliance to regulations|
| | |stipulations of permits | | |
| | | | | |
|8 |Timber harvesting |The prescribed code of timber harvesting |Trees not forming part of the yield and those that are below the felling limits are |FSD personnel are not always |
| |operations |practice for all holders of timber utilisation |harvested; trees are harvested from areas not demarcated as productive areas (e.g. |at felling sites due to |
| | |rights are adhered to. |harvesting from protected areas); and there is poor monitoring of compliance with the |understaffing and inadequate |
| | |Harvest plans for TUC areas have been approved |logging Manual. Felling in the districts exceed quotas set for the districts |logistics |
| | |by appropriate authority and have clearly | | |
| | |defined boundaries, in both field and on map | |The district felling quota |
| | |that show areas where harvesting operations are| |system has become a roadblock|
| | |allowed and areas not allowed such as protected| |to legality since any timber |
| | |areas. | |harvested outside the quota |
| | |There is accurate measurement, reporting and | |becomes illegal |
| | |declaration of the values and volumes harvested| | |
| | | | | |
|9 |Log identification and |All logs transported from the TUC area have the|Most log markings (if present) do not meet the legal specifications. | |
| |transportation of logs and|required physical identification, have |Logs are sometimes transported without valid conveyance certificates and other valid | |
| |timber products |associated correct documentation and are |documents. | |
| | |transported in vehicles that conform to legal |In most cases, chain saw logs are transported at night (unapproved periods). Such logs | |
| | |standards at the approved period |do not carry any physical identification | |
| | | | | |
|10 |Timber processing |Timber processing facilities have valid |The local timber market is “flooded” with chainsaw processed timber. Timber companies |It is a difficult challenge |
| |operations |licenses and registration with FC and comply |also process chainsaw lumber |to control or prevent |
| | |with all legal requirements for their | |processing and use of timber |
| | |activities. | |from illegal activities |
| | |Industrial relations practices conform to legal| | |
| | |standard. Mills process logs with valid | | |
| | |documentation in line with chain of custody | | |
| | | | | |
|11 |Market and export |All dealers (including exporters) have valid |Domestic timber trade is mostly served by the chainsaw operators who operate without any| |
| | |registration license to market timber and |legal authority or license | |
| | |comply with all other legal requirements | | |
| | |covering their activities | | |
| | |Exporters have valid permit to export | | |
| | | | | |
|12 |Statutory fiscal |All applicable fees, royalties, taxes and other|Logging/processing companies are in arrears but are still operating |Operators have 30 days grace |
| |obligations |charges relating to the TUC areas, timber |Generally, penalty interest is not charged on late payments as required by law. Timber |period to pay up stumpage |
| | |extracted from TUC areas and timber products |Rights Fees provided for in LI 1649 has not been paid but logging has however started |fees, but in practice the |
| | |are paid | |process of invoicing and |
| | | | |receiving payment of stumpage|
| | | | |fees take longer in a number |
| | | | |of Districts. |
| | | | | |
Box 3: Draft Definition of Legal Timber in Ghana
|Principle |Criteria |Indicators |
| | |1.1 |Timber is harvested from an area designated |List (database) of approved timber production areas |
|1 |Timber originate from | |for timber production |Boundaries of timber production areas are clearly |
| |legally approved | | |defined and demarcated |
| |sources | | | |
| | |1.2 |Logger (or TUC holder) has timber harvesting |Valid TUC area documents, owners’ written consent |
| | | |rights over timber production areas. On farm |Valid documents for areas not subject to TUC |
| | | |lands and off-reserve areas the farmers or | |
| | | |other rights holders’ consents have been | |
| | | |obtained. | |
| | |1.3 |There is proof of legality of third party |Valid documents showing proof of third party’s |
| | | | |legality and legality of source of timber |
| | |2.1 |Timber rights is allocated in accordance with|There is transparent competitive bidding for timber |
|2 |Timber rights | |the procedure laid down by legislation |rights allocation in the form of timber utilisation |
| |allocation | | |contract (TUC) |
| | | | |Salvage permits is allocated for an area of land |
| | | | |approved for undergoing development by appropriate |
| | | | |government authority |
| | | | |Timber utilisation permit is allocated to exclusively|
| | | | |harvest a specified number of trees in an area of |
| | | | |land not subject to TUC. |
| | | | | |
| | | | | |
| | |3.1 |The company has timber harvesting rights |Company/logger has been awarded TUC or has been |
|3 |Timber harvesting | | |issued with salvage permit or TUP |
| |operations | | |Loggers have valid property mark registration with |
| | | | |the FC |
| | |3.2 |Timber harvesting plans and logging |TUC are plan, harvesting schedule and five-year |
| | | |operations for timber production areas comply|harvesting plan (including compartment logging plan) |
| | | |with the requirements in FC’s Logging Manual |are prepared and endorsed by FC. |
| | | |and manual of procedures |Stock surveys (including pre-felling inspections for |
| | | | |off-reserve areas) have been conducted resulting in |
| | | | |availability of stocking maps, yield list and yield |
| | | | |maps |
| | | | |Logging has not been carried out in areas where |
| | | | |harvesting schedules have not been prepared and areas|
| | | | |not designated for timber production |
| | | | |Social Responsibility Agreements have been finalised |
| | | | |between community and the contractor |
| | |3.3 |There is accurate measurement, reporting and |Every tree harvested is in the approved yield |
| | | |declaration of the values and volumes of |Logs are accurately measured and recorded |
| | | |timber harvested |Timber harvested is below or corresponds to the |
| | | | |volumes or numbers authorised in the permit or |
| | | | |contract |
| | | | |Stumps 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 |
| | | | |Post-felling inspection is carried out |
| | |3.4 |Compartment opening and closure |Timber harvesting operations commences only after |
| | | | |FC’s approval of compartment opening |
| | | | |No timber harvesting operations take place after |
| | | | |compartment closure |
| | | | |Logs transported from harvesting areas are marked |
|4 |Transportation |4.1 |All timber transported has required physical |with the required physical identification |
| | | |identification | |
| | |4.2 |All timber transported has official |Valid official documents accompany timber being |
| | | |documentation detailing the origin and |transported |
| | | |corresponds to any physical identification |Timber consignment paper work is complete and up to |
| | | |that the timber may carry |date |
|5 |Timber processing |5.1 |The processing company comply with legal |Processing company has valid registration and valid |
| |operations | |requirements covering its activities |licenses to operate |
| | | | |Processing company keeps log books to record all wood|
| | | | |entering or exiting the facility |
| | | | |Log yard logs to be processed have valid log |
| | | | |transportation documents that corresponds to the |
| | | | |physical identification carried by each log |
| | | | | |
| | | | | |
| | |6.1 |All dealers (including exporters) have valid |All dealers have valid licenses to operate |
|6 |Trade (market and | |registration license and permit to market |Dealers are registered with relevant authorities |
| |export) | |timber | |
| | |6.2 |Companies comply with all legal requirements |Shipping company is registered with relevant |
| | | |and regulations covering their activities |authority |
| | | | |Export documents are valid and up to date |
| | | | | |
|7 |Statutory fiscal |7.1 |All statutory fiscal obligations are met |Stumpage fees and other related charges are paid |
| |obligations | | |All product-based taxes and fees have been paid |
| | | | |Social Responsibility Agreement (SRA) have been |
| | | | |honoured |
| | | | |Compensation has been paid for damage to agricultural|
| | | | |crops and for tree tending directly to the farmer |
| | | | | |
| | | | | |
4.2 Conclusion
As shown in this report, designing any scheme to define legal timber for Ghana should built on existing initiatives. Currently, the challenge is to decide which aspects of the existing laws and regulations should apply when checking for compliance. The criteria for defining legality need to take into account the concerns of EU and that of Ghana’s stakeholders and therefore should be developed in a participatory way. To start with it is important to develop a set of minimum criteria that could be used by the EU and Ghana as a basis for the agreement. However, Ghana should be free to include other criteria as progress is made.
There are other issues that need urgent broader stakeholder consultations. For example, there are major concerns about the legality status of leases/concessions that were supposed to have been converted into TUCs after coming into effect of Act 547. Some argue that since the lease holders (concessionaires) already had timber rights over their concessions, they should be considered legal if they had applied within the six months period stated in Act 547. For such ones it is argued that they are not required to pay the timber rights fee. However, lease holders who failed to apply within the six months period are required to meet all the requirements of the new legislation.
Other major issues concern 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.
Finally, the following principles should be given attention in 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.
REFERENCES
Agyeman, V.K. (1993). Land, tree and forest tenure systems: Implications for forestry development in Ghana. Report submitted to the African Development Foundation, USA. 132pp.
Agyeman, V.K., Oduro, K.A and Gyan, K. (2007). Review of Existing Policy and Legislative Documents on Definition of Timber Legality in Ghana. VLTP Background Paper No. 4. Validation of Legal Timber Programme, Forestry Commission, Accra, Ghana.
American Forest & Paper Association (2004). Illegal logging and global wood markets: The competitive impacts on the US wood products industry. American Forest & Paper Association Prepared by Seneca Creek Associates and Wood Resources International. (. info/papers/afandpa.pdf ).
Arthur, E., Dzakpasu, E., Katako A. and K. Opoku (2005). “Legal Timber” in Ghana. Ghana Land and Forestry Policy Support Facility. Sub-Project Number 1. Care International, Accra, Ghana, 47 pp.
Chen, H.K. (2006). The role of CITES in combating illegal logging ~ current and potential. TRAFFIC Online Report Series No. 13. TRAFFIC International, Cambridge, UK, 47 pp.
Douglas, H.F. (1955). Report on the Gold Coast. In Gordon, W.A. (ed.), The Law of Forestry, pp. 435–442.
Jurgens, E. (2006). Learning lessons to promote certification and combat illegal logging in Indonesia: September 2003 to June 2006. CIFOR, Bogor, Indonesia, 50 pp.
Keurhout (2006). Keurhout Protocol for the validation of claims of legal timber with a view on legal origin. Third Working Edition. Netherlands Timber Trade Association, Almere, The Netherlands, 15 pp.
Lammerts van Bueren, E. (2004). Introduction to the legal timber issue and the Keurhout Protocol for the validation of claims of legal timber. ISAFOR, Scherpenzeel, The Netherlands; Netherlands Timber Trade Association, Almere, The Netherlands, 21 pp.
Miller, F, Taylor, R. and White, G. (2006). Keep it legal. Best practices for keeping illegally harvested timber out of your supply chain. Global Forest & Trade Network (GFTN), WWF International, Gland, Switzerland, 60 p.
Taylor, C.J. (1960). Synecology and silviculture in Ghana. Accra, Ghana, Legon University; Edinburgh, U.K., Thomas Nelson and Sons Ltd., 418 pp.
Thompson, H.N. (1910). Gold Coast. Report on forests. British Parliamentary Papers No. 65, HMSO, London. U.K., 238 pp.
White, G. and Sarshar, D. 2004. Responsible Purchasing of Forest Products. WWF International,
Gland, Switzerland
ANNEXES
Annex 1: CONSTITUTIONAL PROVISIONS AND KEY LEGISLATION
CONSTITUTIONAL PROVISIONS, 1992
1. Article 258 Establishes a Lands Commission and prescribes the functions of the Commission.
2. Article 267(1) Vests stool lands in the appropriate stools in trust for their subjects in accordance with customary law and usage.
3. Article 266 Limitations on the rights and interest in land that could be granted
to a non-citizen of Ghana.
4. Article 267(2) Established the Office of Administrator of Stool Lands and prescribes its functions.
5. Article 267(6) Provides for the disbursement formula for stool land revenue.
6. Article 268 Requirement of Parliamentary ratification of agreements relation to the grant of a right or concession for the exploitation of any natural resources.
7. Article 269 Establishment of natural resources commissions [Forestry Commission] which “shall be responsible for the regulation and management of the utilization of the natural resources concerned and the co-ordination of policies in relation to them”
8. Article 295 Definition of Stool lands.
LIST OF PRIMARY LEGISLATION
1. Concessions Act 1962 (Act 124) – This Act vested in the President on behalf of the stools, all timber or trees on any land identified as concessions and also granted the state the power to allocate timber felling rights. Has been very substantially amended.
2. Concessions Ordinance, 1939 (Cap 136) - This Act provided for the regulation of the granting of timber felling rights by stools or “natives” and the endorsement of such grants by the issuance of Certificate of Validity by the courts.
3. Concessions (Amendment) (Cap 136A)
4. Concessions (Amendment 1953 (No. 11)
5. Concessions (Amendment) Ordinance 1955 (No.21)
6. Concessions (Ashanti) Ordinance (Cap 146)
7. The Ghana Forestry Commission Act, 1980 (Act. 405) – This Act provided for the establishment of a Commission in line with the 1979 Constitution of Ghana to among others to manage, maintain and protect forests as an economic resource in perpetuity. The existing forestry sector agencies were made Divisions of the Commission.
8. Forestry Commission Act, 1993 (Act 453) – This Act repealed Act 405 and re-established the Commission as an advisory body. The existing forestry sector agencies were also granted independence to once again operate separately.
9. Forestry Products Inspection Bureau Law, 1985 (P.N.D.C.L. 117) – This Act established an agency to enforce timber grading rules and ensure quality control standards were maintained in the exports of wood and wood products.
10. Forest Protection Decree, 1974 (N.R.C.D. 234) – This Act defined forest offences and prescribed sanctions and or penalties for such offences.
11. Forest Protection (Amendment) Law, 1986 (P.N.D.C.L. 142) – This law reviewed the penalties/ fines for forest offences.
12. FORESTS Ordinance (Cap 157) –This Act provided guidelines for constitution of forest reserves and the protection of forests.
13. Forests (Amendment) Ordinance (Cap 157A)
14. Forests (Amendment) Act 1957 (No. 10)
15. Forests Improvement Fund Act 1960 (No. 12) – This Act provided for the establishment of an improvement fund for forest reserves and also provided for the control of the revenue derived from the forest reserves.
16. Forests Improvement Fund (Amendment) Act 1962 (Act 144) – This Act re-enforced the 1960 Act (No. 12) by widening the definition of forest revenue to include rents, dues and royalties from forest produce, fees for sivilcultural work, including works made necessary by mining or digging for minerals and fines.
17. Ghana Timber Marketing Board (Recovery of Loans) Decree 1968 (N.L.C.D. 294)
18. Timber Concessions (Revesting) Law, 1982 (P.N.D.C. L. 17) – This law terminated the Timber Leases of 15 concessions and revested them to the state.
19. Timber Concessions (Revesting) (Amendment) Law, 1982 (P.N.D.C.L. 35)
20. Timber Export Development Board Law, 1985 (P.N.D.C.L. 123) – This law provided for the establishment of a Board to provide for market intelligence/ information for wood and wood products.
21. Timber Industry and Ghana Timber Marketing Board (Amendment) Decree 1977 (S.M.C.D. 128) – This law provided for the regulation and development of the Timber industry.
22. Timber Operations (Government Participation) Decree, 1972 (N.R.C.D. 139) – This law empowered the state to acquire majority shares in some major privately owned timber processing companies as a matter of government policy to capture the “commanding heights of the economy”.
23. Timber Operations (Government Participation) (Amendment) Decree, 1976 (SMCD. 9)
24. Trees and Timber Decree 1974 (N.R.C.D. 273) – This law prescribed guidelines for participation in the logging/ timber industry and provided for the payment of fees as well as sanctions for non- compliance with the guidelines for participation.
25. Trees and Timber (Amendment) Act 1994 (Act 493) – This Act reviewed the fees and fines upwards and also introduced export levy for air-dried lumber and logs.
26. Timber Resources Management Act 1997 (Act 547) – This repealed the Concessions Act, 1962 (Act. 124) and provided for the grant of timber rights in a manner that secures the sustainable management and utilization of timber resources.
27. Forestry Commission Act, 1999 (Act, 571) – This Act repealed ACT 453 and re-establish the Forestry Commission as a semi-autonomous corporate body and also brought under the Commission, the forestry sector agencies implementing the functions of protection, development, management and regulation of forest and wildlife resources.
28. Forest Plantation Development Fund Act, 2000 (Act 583) – This Act provided for the establishment of a Fund to provide financial assistance and the management of such funds for the development of private commercial forest plantations in the country.
29. The Forest Protection (Amendment) Act 2002 (Act 624) – This Act repealed the Forest Protection (Amendment) Law, 1986 (PNDCL. 142), reviewed forest offences fines upwards and introduced joint liability in the commitment and prosecution of forest offences.
30. The Forest Plantation Development Fund (Amendment) Act 2002 (Act 623) – This Act amended ACT 583 to enable plantation growers, both in the public and private sectors to participate in forest plantation development.
31. Timber Resources Management (Amendment) Act 2002 (Act 617) – This Act amended ACT 547 to exclude from its application, land with private forest plantation, to provide for maximum duration, and maximum limit area for timber rights and to provide for incentives and benefits for investors in the forestry and wildlife sector.
32. Factories, Offices and Shops Act, 1970 (Act 238) – This act provides for the registration of factories, welfare and safety of employees in factories and other places of work.
33. Social Security Law, 1991 (PNDCL. 247 – This law establishes a trust fund to provide social protection to the working population.
34. Internal Revenue Act, 2000 (Act 592) – Provide for taxation of individuals and other entities and for related matters.
35. Value Added Tax Act, 1998 (Act 546) – Provide for the imposition of a VAT on specified transactions and activities.
36. Foreign Exchange Decree, 1972 (NRCD. 44) – Provides for the regulation of foreign exchange transactions and related matter and prescribes offences.
LIST OF SUBSIDIARY LEGISLATION
1. LI. 889 Forest Reserve Rules, 1925 – This Regulation provided guidelines for the management of forest reserves.
2. LN 388 The Trees and Timber (Measurement) Regulations, 1958. – This
Regulations established the procedures for measuring trees/timber
3. LN 311 The Timber Lands (Protected Areas) Regulations, 1959 – This
regulation declared timber concession areas as protected areas from agricultural purposes and required concession holders in such areas to comply with the directions of the Chief Conservator of Forests.
4.. L.I. 23 The Trees and Timber (Control of Measurement) Regulations, 1960
- This Regulation introduced Log Measurement/ Grading Certificate to monitor the harvesting of timber from the forests.
5. L.I. 130 Trees and Timber (Control of Export of Logs) Regulations, 1961 –
This Regulation empowered the Ghana Timber Marketing Board manage the export of logs and also provided guidelines for the exports.
6. L.I. 141 Trees and Timber (Measurement) (Amendment) Regulations, 1961
– This Regulation amended LN 388 and L.I. 23 by revising the measurement of trees.
7. L. I. 229 The Timber leases and Licences Regulations, 1962 – This
Regulation provided guidelines for the granting of timber leases and
licences.
8. LI. 284 Forest Reserves Regulations, 1927
9. LI. 99 Concessions (Exemption) Order
10. LI. 368 Trees and Timber (Control Cutting) Regulations
11. LI. 95 Timber and Woodworkers Union (Extension of Collective Agreement)
Order 1961
12. LI. 130 Trees and Timber (Control of Export of Logs) Regulations 1961
13. LI. 228 Concessions Regulations, 1962
14. LI. 455 State Timber Products Corporation (Amendment)
Instrument, 1965
15. L.I. 495 Timber Royalties Regulations, 1965 – This regulation
introduced the standardization in the payment of royalties
16. LI. 1047 Concessions (Amendment) Regulations 1975
17. L.I. 1089 Forest Fees Regulations, 1976 – This Regulation revised the
upwards the payment of royalties and introduced the payment of concession rent on per hectare basis.
18. L.I. 1090 Trees and Timber (Control of Measurement) (amendment)
Regulations, 1976 – This Regulation amended L.I. 23 and revised upwards the fees for Log Measurement Certificate.
19. L.I. 1279 Trees and Timber (Control of Measurement) (Amendment)
Regulations, 1983 – This Regulation amended L.I. 1090 and revised the fees for Log Measurement Certificate upwards.
20. L.I. 1518 Trees and Timber (Chain Saw Operations) Regulations, 1991 –
This Regulation regularized and decentralized chain saw timber operations to District Assemblies.
21. L.I. 1483 The Forest Fees (Amendment) Regulations, 1989 – This
Regulation amended L.I. 1090 and reviewed the payment of forest fees upwards
22. L. I. 1576 The Forest Fees (Amendment) Regulations, 1993 – This
Regulation revoked L.I. 1483 and adjusted the payment of forest fees upwards.
23. LI. 1649 Timber Resources Management Regulations 1998 – This
Regulation prescribed the procedures for the granting of timber felling rights on competitive allocation basis based on a prescribed set criteria.
24. LI 1721 Timber Resources Management (Amendment), Regulations, 2003
– This regulation seeks to granting timber felling rights on the competitive bidding on the basis price. It also amended Schedule 3 in L.I. 1649 by deleting stumpage rate for each timber species as percentage specified in the said schedule. In addition Regulation 22 and schedule 2 were revoked. These amendments paved way for automatic adjustment of stumpage fees whenever there were changes in FOB prices of timber.
Annex 2: CURRENT INITIATIVES THAT ATTEMPTED TO ESTABLISH A STANDARD FOR DEFINING TIMBER LEGALITY IN GHANA
Box 2: Relevant legislation to define of legal timber in Ghana (Agyeman et al., 2007)
|Source of timber |
|Timber is sourced from designated productive forest reserves managed in accordance with existing management plan and off-reserve |
|areas that are not within a distance of 50 m from any stream or river (1994 FWP, 1996 FDMP, Cap 157, Act 547, Act 617, LI 1649 and |
|the Manuals of Procedures, local authority bye-laws). |
| |
|Resource allocation |
|Allocation of timber rights is according to one of the three methods approved by legislation namely: |
|Competitive bidding for timber rights in the form of Timber Utilisation Contracts (TUCs) on lands that are subject to TUCs; and on |
|farms, with the consent of the farmer/s (1994 FWP, Act 547, LI 1649 and LI 1721) |
|Timber utilisation permits for non commercial purposes only (LI 1649) |
|Salvage felling for an area of land undergoing development such as road construction, expansion of human settlement or cultivation |
|of farms (LI 1649) |
|All TUCs are ratified by parliament (LI 1649). |
| |
|Harvesting operations (NRCD 273, Act 547, Act 493, Act 490, LI 1652, LI 1649, Logging Manual |
|Loggers have properly registered property mark by Forestry Commission and environmental permit or license (NRCD 273, Act 493). |
|Harvesting schedule is prepared for areas to be logged (Logging Manual) |
|Pre-felling inspections and stock surveys are conducted resulting in availability of stocking data, including stock maps, yield |
|list and yield maps ( LI1649, Act 547, Logging Manual) |
|Allocation of yield is based on the yield formula, which takes into consideration the felling limit of trees, forest condition |
|score and the FC’s fine-grained environmental protection standards (LI 1649, Logging manual) |
|A 5-year harvesting plan and compartment logging plan, which outlines timber harvesting standards and specifications for operations|
|such as road and bridge construction, felling, skidding and log markings are prepared. |
|Tree Information Forms (TIFs) and Log Information Forms (LIFs) are completed. |
| |
|Transportation |
|Transportation of any timber or timber product is carried out between the hours of 6 am and 6 pm on a working day unless otherwise |
|permitted by the FC (LI 1649). |
|Valid conveyance certificate covers logs being transported (NRCD 243, LI 1649). |
|Availability of documents showing that logs/timber being transported was harvested legally (Act 547). |
|Properly marking of logs being transported as required by law. |
| |
|Processing operations |
|Timber companies have valid registration with the FC (Act 571). |
|Mills follow safety and industrial processing standards and trade guidelines during its processing operations (Act 571, NRCD, 243, |
|Cap 110). |
|Mills do not process chain-sawn lumber. Logs to be processed are covered by necessary documents/certificates (LI 1649, NRCD. 243, |
|Cap 110). |
| |
|Markets and export (Act 571, SMCD 128, NRCD 243, NRCD 273, LI 1649) |
|Timber to be exported is marked with the logger’s valid property mark and markings on logs or timber is not defaced. |
|All dealers (including exporters) have valid registration license to market timber. |
|Availability of export permits as a result of pre-shipment inspections and examination of timber, and wood products. |
| |
|Fiscal regime (Acts 124, 493, 547, NRCD 273, CAP 136, Logging Manual). |
|All tax obligations of TUC holder are fully met. |
|Loggers are not in arrears with respect to payment of fees and charges. |
|Loggers pay all stumpage fees with respect to harvested trees |
Box 3: Crude definition of timber legality in Ghana based on Care International study
|Principle |Criteria |Indicators |
| | |1.1 |Resource assessment is carried out and |Computerised stock database / registry of trees available |
|1 |Definition of | |identification system is established |for TUC area (NRCD 273, VLTP) |
| |timber resources | |and maintained |Bar coded / computer readable tags assigned to each tree |
| | | | |in TUC area (VLTP) |
| | |1.2 |Stakeholders apprised of resource |District Chief Executives participated in Timber |
| | | |situation |Inventory taking (LI 1649) |
| | | | |Chiefs, farmers representatives, unit committee members |
| | | | |participate in field inspection prior to declaration of |
| | | | |area as TUC area (LI 1649) |
| | |2.1 |Ownership, user and management rights |The TUC does not affect “private plantations” or trees |
|2 |Land tenure & | |over TUC areas are clearly defined and |“owned or grown by any person” (Act 547) |
| |forest access | |respected. If TUC area is off reserve, |The TUC does not affect farmlands or alienation holdings |
| |rights | |then owners and other rights holders |unless farmers or alienation holders’ consents to logging |
| | | |have been identified and the |have been obtained (act 547) |
| | | |appropriate consents have been |If the TUC area falls within a Forest Reserve then water |
| | | |obtained. Conditions of access, |sources, admitted agriculture and admitted supplies of non|
| | | |explicit or implied have been observed.|timber forest products to local communities have been |
| | | |Alternatively competing ownership |preserved / protected and the State has prevented illegal |
| | | |claims are before competent tribunal |and non-forest use (Cap 157, Cap 136, NRCD 243) |
| | | |and escrow arrangements put in place |Social responsibility agreements made with inhabitants |
| | | |(Act 547, LI 1649) |(Act 547) |
| | |2.2 |Reservation objectives explicit or | |
| | | |implied have been observed | |
| | |3.1 |Loggers are qualified to hold TUC. |Logger had a property mark issued or renewed by Forestry |
|3 |Logging permits | | |Commission not less than 6 months prior to felling (NRCD |
| | | | |273) |
| | | | |Logger was pre-qualified to bid for TUCs (Act 547) |
| | |3.2 |Loggers have appropriate permit |Logging permit is a TUC issued after September 1998 (Act |
| | | |confirmed by all authorities designated|547) |
| | | |by law after completion of designated |TUC bid was advertised in Lands Bulletin and two daily |
| | | |procedures. |newspapers prior to bidding (LI 1649) |
| | | | |Timber Rights Evaluation Committee published a prospectus |
| | | | |stating the time and place at which the bids will be |
| | | | |opened for and including a timber harvest schedule; |
| | | | |required Performance Bond; management requirements and |
| | | | |restrictions specific to the contract (LI 1649) |
| | | | |TREC evaluated competing bids fairly and awarded to |
| | | | |highest bidder that at least matched reserve bid (LI 1649)|
| | | | |TUC does not exceed term limits set established by law |
| | | | |(Act 547) |
| | | | |Award of TUC does not lead logger to exceed size |
| | | | |limitations set out in TRMA unless formally waived by |
| | | | |Parliament on recommendation of FC (Act 547) |
| | | | |Logging Company has concluded SRA with inhabitants of TUC |
| | | | |area; paid Timber Rights Fees to FC; posted a performance |
| | | | |bond; and concluded operational plans in accordance with |
| | | | |“manual of procedures” (Act 547) |
| | | | |TUC has been formally approved by parliament (Act 547) |
| | |4.1 |Harvesting was conducted to minimum |Harvesting conducted in accordance with FC’s Logging |
|4 |Harvesting | |environmental conservation standards |Manual and other FC “Manuals of Procedures” (Act 547) |
| |operations | | |Harvesting takes place in daylight hours on a weekday and |
| | | | |lumber not produced by chain saw (LI 1649) |
| | | | |Stumps properly marked with property mark and stump number|
| | | | |and logs marked with property mark, stump number and log |
| | | | |number (NRCD 273 / VLTP) |
| | | | |LIF completed demonstrating that felling accords with |
| | | | |harvesting plan (VLTP). |
| | | | |Log Measurement & Conveyance Certificate issued (LI 1649) |
| | |4.2 |Harvesting was conducted in a manner |Farmers consent obtained and fair compensation is |
| | | |that respects personal and community |negotiated and promptly paid to farmers; loggers do not |
| | | |rights of inhabitants and Loggers’ |destroy public infrastructure or interrupt public services|
| | | |personnel |or cause nuisance to communities including damage to |
| | | | |places of worship (1992 Constitution) |
| | | | |Loggers do not abuse community rights in TUC area |
| | | | |Loggers made SRA payments scrupulously (LI 1649). |
| | | | |Loggers pay social security and PAYE in respect of their |
| | | | |employees (Internal Revenue Act, Act 592; Social Security |
| | | | |Law, 1991, PNDCL 247) |
| | | | |Loggers provide a reasonably safe working environment for |
| | | | |their employees in accordance with Labour Laws and Factory|
| | | | |Offices and Shops Act during logging. |
| | |5.1 |Vehicle specifications |Vehicle / vessel was licensed to carry weights and bulk of|
|5 |Transporting | | |cargos (Cap 52) |
| | | | |Driver / master and crew were licensed to operate |
| | | | |designated means of transport (Cap. 52) |
| | |5.2 |Periods of transportation |Logs were not transported after 1800 and were not |
| | | | |transported on weekends (LI 1649) |
| | |6.1 |Mill is designed, operated and |Factory Inspectorate certificates in place for |
|6 |Processing | |monitored in conformance with the |cleanliness, adequacy of working space, ventilation, |
| | | |Factory Offices & Shops Act, 1971 and |washing facilities, lighting, drainage, sanitary |
| | | |is approved by FC. |conveniences, drinking water, accommodation for clothing, |
| | | |Mill registration with FC is current |sitting facilities, removal of dust and fumes, taking of |
| | | | |meals, protective clothing and safety appliances, noise |
| | | | |and vibrations, prohibition against lifting heavy weights,|
| | | | |provision of first aid kits |
| | |6.2 |Industrial relations practices conform |Miller has written agreements regarding remuneration for |
| | | |to legal standard |services that conform to minimum wage requirements and |
| | | | |observes these agreements (Act 651). |
| | | | |Miller provides adequate training to enable employees to |
| | | | |perform their assigned duties. |
| | | | |Miller does not expose employees to avoidable risk of |
| | | | |personal injury or damage to health in course of work or |
| | | | |while lawfully on premises. |
| | | | |Miller pays equal wages for equal work done. |
| | | | |Miller does not interfere with Workers right to form or |
| | | | |join trade unions. |
| | | | |Miller gives workers a minimum of 15 days paid leave every|
| | | | |year. |
| | | | |Working hours do not exceed 8 hours a day or 40 hours a |
| | | | |week even for shift workers. |
| | | | |Workers are paid for any overtime work done |
| | | | |Workers rest for a period of at least 12 hours within |
| | | | |every 2 days working period. |
| | | | |Workers receive rest period of 2 days in each week. |
| | | | |Women are not compelled to undertake night work. Pregnant |
| | | | |women are not compelled to undertake overtime. |
| | | | |Young persons are not employed in hazardous work. |
| | | | |Temporary employment does not exceed 6 months in any |
| | | | |instance. |
| | | | |Mills do not use forced labour |
| | |6.3 |Mills do not process illegal timber |VLTP system tracks log feed to mills and reconciles mill |
| | | | |outputs to ensure that illegal timber is not introduced |
| | | | |and “laundered”. |
| | | |Loggers are in good standing with the |25% deposit on TRF paid prior to award of TUC and bond put|
|7 |Fiscal regime | |state agencies |in place for outstanding TRFs |
| | | | |Loggers stumpage, income tax, and levies payments are up |
| | | | |to date |
| | | |Revenues collected by FC are |FC management costs do not exceed 1/3 of revenue from |
| | | |distributed in accordance with law |forests (Cap 157); |
| | | | |“Landowners” take is distributed 10% to AOSL, 49.5% to |
| | | | |District Assemblies, 22.5% to the stools and 18% to |
| | | | |traditional authorities (Constitution Art. 267) |
| | | | | |
Box 3: Narrow definition of timber legality in Ghana based on Care International study
|Principle |Criteria |Indicators |
| | |1.1 |Loggers are qualified to hold TUCs. |Logger has a current (not more than 6 months old) property|
|1 |Logging permits | | |mark issued by FC (NRCD273) |
| | | | |Logger is pre-qualified to bid for TUCs (Act 574) i.e. |
| | | | |Logger is a limited liability company or incorporated |
| | | | |partnership whose membership is declared to FC; is current|
| | | | |regarding payment of forest levies where applicable; has |
| | | | |current on income tax and social security obligations; has|
| | | | |(where necessary) demonstrated capacity to undertake |
| | | | |“reduced impact logging” |
| | |1.2 |Loggers have valid TUCs |Logging permit is a TUC issued after September 1998 (Act |
| | | | |547) |
| | | | |TUC bid was advertised in Lands Bulletin and two daily |
| | | | |newspapers prior to bidding (LI 1649). |
| | | | |Timber Rights Evaluation Committee (TREC) published a |
| | | | |prospectus stating the time and place at which the bids |
| | | | |will be opened and including a timber harvest schedule; |
| | | | |required Performance Bond; and management requirements and|
| | | | |restrictions specific to the contract (LI 1649) |
| | | | |TREC awarded TUC to highest qualified bidder that at least|
| | | | |matched reserve bid. (LI 1649). |
| | | | |TUC does not exceed term limits set established by law |
| | | | |(Act 547). |
| | | | |Bidders aggregate holding do not exceed size limitations |
| | | | |set out in TRMA unless formally waived by Parliament on |
| | | | |recommendation of FC (Act 547) |
| | | | |Logger has concluded SRA with inhabitants of TUC area (Act|
| | | | |547). |
| | | | |Logger has paid Timber Rights Fees to FC and has posted a |
| | | | |performance bond to FC (Act 547) |
| | | | |Logger has concluded operational plans in accordance with |
| | | | |“manual of procedures” |
| | | | |Parliament has formally ratified TUC (Act 547). |
| | |2.1 |Harvesting operations conform to basic |Harvesting was conducted in accordance with FC’s Logging |
|2 |Harvesting | |environmental and social standards |Manual (Act 547) and other FC “Manuals of Procedure” (LI |
| |operations | | |1649) |
| | | | |Harvesting takes place in daylight hours on a working day |
| | | | |(LI 1649). |
| | | | |Lumber not produced by chain saw (LI 1649) |
| | | | |Stumps properly marked with property mark and stump number|
| | | | |(NRCD 273) |
| | | | |Logs marked with property mark, stump number and log |
| | | | |number (NRCD 273) |
| | | | |Log Measurement & Conveyance Certificate issued (LI 1649).|
| | |3.1 |Vehicle /vessel specifications |Vehicle / vessel was licensed to carry weights and bulk of|
|3 |Transporting | | |cargos (Cap 52) |
| | | | |Driver / master and crew were licensed to operate |
| | | | |designated means of transport (Cap. 52) |
| | |3.2 |Periods of transportation |Logs were not transported after 1800 and were not |
| | | | |transported on weekends (LI 1649) |
| | |4.1 |Mills do not process illegal timber |VLTP system tracks log feed to mills and reconciles mill |
|4 |Processing | | |outputs to ensure that illegal timber is not introduced |
| | | | |and “laundered” |
|5 |Fiscal regime |5.1 |Loggers are in good standing with the |Loggers’ stumpage payments are up to date |
| | | |FC |Loggers’ levies payments are up to date |
| | | | | |
Box 4: International framework used by WWF’s GFTN for defining legality
|Principle |Criteria |Indicators |
| | |1.1 |The company must have land use rights |Property and/or customary rights are respected and there |
|1 |Land tenure and | |and forest use rights over TUC areas. |is no dispute over property/customary rights |
| |user rights | |In off-reserve areas owners and other | |
| | | |rights holders consents have been | |
| | | |obtained | |
| |Physical and |2.1 |The company harvesting forest products |Loggers have environmental permit or license issued by the|
|2 |social | |must have conducted an environmental |relevant government authority |
| |environmental | |impact assessment | |
| |impact | | | |
| | |2.2 |Loggers do not operate in protected |The company complies with legal provisions for endangered |
| | | |areas and other restricted areas; |timber species |
| | | |requirements related to endangered |Logging is not carried out within 50 m of streams or |
| | | |forest flora and fauna species are |rivers |
| | | |respected | |
| | |2.3 |The Company implements suitable | |
| | | |procedures in order to minimize the | |
| | | |risk of forest fires | |
| | |3.1 |The company provides local communities |Company must conclude SRA with local communities with the |
|3 |Community | |living in or around the TUC areas |TUC area |
| |relations and | |opportunities for employment and other | |
| |workers right | |services | |
| | |3.2 |The Company respects its employees’ |The Company permits its employees to join recognized |
| | | |rights to join labour unions, and |labour unions and can demonstrate that it does not |
| | | |negotiates with the union representing |discriminate against labour union members when making |
| | | |its workers |employment decisions |
| | |3.3 |The Company complies with manpower |The company has written agreements regarding remuneration |
| | | |regulations regarding worker safety and|for services that conform to minimum wage requirements and|
| | | |health, benefits in kind, minimum |observes these agreements. |
| | | |salary, termination and contractors’ |The company implements clearly defined safety procedures |
| | | |conditions, as specified in the Labour |as prescribed by law. |
| | | |Law and associated legislation as |The company does not expose employees to avoidable risk of|
| | | |applicable |personal injury or damage to health in course of work or |
| | | | |while lawfully on premises. |
| | | | |Company pays equal wages for equal work done. |
| | | | |Company does not interfere with Workers right to form or |
| | | | |join trade unions. |
| | | | |The Company does not require any of its employees to work |
| | | | |more than 8 hours per day, pays employees correct overtime|
| | | | |rates and allows each employee to take paid annual leave |
| | | | |in addition to statutory holidays as governed by the |
| | | | |Labour Law and associated legislation. |
| | | | |Women are not compelled to undertake night work. Pregnant |
| | | | |women are not compelled to undertake overtime. |
| | | | |Young persons are not employed in hazardous work. |
| | |4.1 |Harvest plans for TUC areas have been |Harvesting plans for TUC areas have been approved by the |
|4 |Timber harvesting | |approved by the appropriate government |appropriate government authority |
| |laws and | |authority and have clearly defined | |
| |regulations | |boundaries, in both the field and on | |
| | | |the map, that show areas where | |
| | | |harvesting is allowed and areas that | |
| | | |must be protected | |
| | |4.2 |The Company implements harvest |Harvesting operations for TUC areas comply with the |
| | | |operations for TUC areas in accordance |requirements listed in FC’s Logging Manual and other FC |
| | | |with the legally prescribed |“Manuals of Procedures” |
| | | |silvicultural system and relevant |All boundaries of licensed harvesting areas for TUC areas |
| | | |legislation |are clearly demarcated on maps of an appropriate scale and|
| | | | |on the ground |
| | | | |LIF completed demonstrating that felling accords with |
| | | | |harvesting plan |
| | | | |No harvesting operations have been carried out in any |
| | | | |exclusion areas as shown in the approved Harvest Plan for |
| | | | |TUC areas |
| | | | |Post-felling inspection is carried out |
| | |5.1 |The Company demonstrates that it has |The Company demonstrates that all payments for fees |
|5 |Forest taxes | |paid all applicable fees and taxes for |(management plan, harvesting plan and EIA design) and |
| | | |its license covering the TUC area and |taxes (land use tax and natural resource tax) are current |
| | | |the timber extracted from it. |The Company demonstrates that payments for Value Added Tax|
| | | | |(VAT), import/export tax (where appropriate) and income |
| | | | |tax are current. |
| | |6.1 |The Company ensures that all logs |All logs transported from harvesting areas are marked |
|6 |Log | |transported from the TUC area have the |using the prescribed methods that contain sufficient |
| |identification, | |required physical identification |information to trace each log back to the compartment and |
| |transfer and | | |to the harvest tree. |
| |delivery | | | |
| | |6.2 |The Company ensures that all logs |The Company records the transport of logs to the |
| | | |transported from the TUC area are |processing facility with the correct documentation that is|
| | | |properly documented. |issued before those logs leave the TUC area. |
| | |6.3 |All organizations transporting timber |Organizations operating vessels or trucks for transporting|
| | | |products have valid transportation |forest products outside the TUC area have licenses issued |
| | | |documents. |by relevant authority |
| | | | |Timber consignment paperwork is complete and current |
| | | | |Organizations transporting timber must carry the required |
| | | | |documents in the vehicle of transportation |
| | |7.1 |Timber processing facilities, and |The timber processing (and trading) facility has the |
|7 |Timber processing | |organizations engaged in trading, |requisite legal (business) licenses to operate |
| |and shipping | |export or import of forest products |The timber processing and trading facility has wood log |
| | | |must comply with all legal requirements|books to record all wood entering or exiting the facility.|
| | | |for their activities |All raw material received by the wood processing facility |
| | | | |must be accompanied by sale contracts and official tax |
| | | | |invoices. |
| | | | |All logs in the log yard are accompanied by valid log |
| | | | |transportation documents, and the information within these|
| | | | |documents corresponds to the physical characteristics of |
| | | | |each log |
| | |7.2 |Organizations engaged in shipping of |Each shipping company and its vessels are registered with |
| | | |timber for export can demonstrate their|the relevant authorities |
| | | |compliance with government regulations |Export documents are valid and up to date |
| | | | | |
Box 5: GFTN checklist for considering legality
|Legal source |
|Tenure: |
|the logging contractor/operator is authorised to be there by the proprietor |
|property and/or customary rights are respected |
|there is no dispute over property/customary rights |
|All government-required approvals are in place, including harvesting permits, cutting licenses and annual allowable-cut permits. |
|Operations meet the requirements and stipulations of the permits. |
|There are no credible allegations of corruption in the bidding and award process. |
|Revenue payments |
|Stumpage fees and other required revenue payments are paid. |
|The timber extracted corresponds to the volumes authorized in the license or contract |
|There is accurate measurement, reporting and declaration of the values and volumes extracted or transported |
|Forest operations |
|There is no commercial logging in protected areas. |
|There is no logging |
|in prohibited zones, such as steep slopes, riverbanks and water catchment areas; |
|of protected species; |
|outside TUC areas; or |
|of undersized trees |
|There is no girdling or ring-barking to kill trees so that they can be legally logged. |
|Related forest crime |
|There is no credible suspicion of transfer pricing irregularities such as: |
|inaccurate declaration of purchase prices for inputs such as equipment or services from related companies; or |
|manipulation of debt cash flows in order to transfer money to a subsidiary or parent company, for example, by inflating debt |
|repayment to avoid taxes on profits |
|Log transportation |
|All timber transported has official documentation |
Box 6: SGS definition for legality
|Principle 1. Authorisation of the company to conduct business |
|Criterion 1.1. The company is formally registered with relevant government authorities |
|Criterion 1.2. The company is not the subject of litigation by national or local authorities that could suspend the company |
|activity temporarily or definitively. |
|Principle 2. Rights of workers and local communities |
|Criterion 2.1. Respect of worker’s rights |
|Criterion 2.2. Respect for the rights of local communities |
|Principle 3. Approval for forestry activities |
|Criterion 3.1. The company has obtained the necessary approvals for its forest operations |
|Criterion 3.2. The company holds the right to access and/or undertake operations in the area |
|Criterion 3.3. The company possesses valid authorisations prescribed for their various activities |
|Criterion 3.4. The company operates in accordance with its official obligations in the development, approval and implementation of |
|the management plan in the time period prescribed |
|Criterion 3.5. The company has evidence to verify its approval(s) for forest operations was (were) properly obtained in accordance |
|with relevant legal processes. |
|Principle 4. Regulation of forest declarations and taxes |
|Criterion 4.1. The official declarations accurately reflect the company’s operations |
|Criterion 4.2. The company submits its official declarations to the appropriate authorities within the prescribed time period |
|Criterion 4.3. Duties and taxes payable by the company have been paid to the appropriate authority within the prescribed time |
|period |
|Principle 5. Forest harvesting regulations |
|Criterion 5.1. The authorised harvesting areas are clearly identified in accordance with current regulations |
|Criterion 5.2. Harvesting is strictly limited to the authorised area |
|Criterion 5.3. The felling is strictly limited to trees that represent the characteristics authorised by any applicable |
|international conventions, by national or local regulations and by the management plan |
|Criterion 5.4. Marking and recording of stumps, butt ends, top ends and logs is completed in accordance with current regulations |
|Criterion 5.5. The volume or quantity harvested is consistent with the authorised amounts agreed for the time period in |
|consideration |
|Criterion 5.6. The abandonment of trunks or portion of trunks is consistent with applicable regulatory requirements |
|Criterion 5.7: Responsible staff take adequate measures to observe, identify and prevent any illegal logging and other unauthorised|
|activities by third parties. |
|Principle 6. Marketing and timber processing regulations |
|Criterion 6.1. The company ensures that the delivery of products to the customer complies with relevant legal requirements |
|Criterion 6.2. The company ensures by suitable means that goods and services procured from third parties are covered by relevant |
|legal guarantees. |
|Criterion 6.3. The company makes sure that the losses during transport or during processing are accurately reported and are within |
|any limits set by relevant authorities |
|Box 7: Keurhout Protocol Standard for claim of legal (origin) timber |
|Aspect 1: Legal registration of logging company |
|Criterion 1.1. The company which processes a harvesting permit and claims legal origin is registered according to national |
|legislation and regulations. |
|Indicator 1.1.1. Legally authorised registration form and number showing that the company legally exists and meets the legal |
|requirements to operate. |
| |
|Criterion 1.2. Subsidiary companies and contractors operating on behalf of the company with the harvesting permit are registered |
|according to national legislation and regulations, and therefore have a valid licence to operate. |
|Indicator 1.2.1. An authorised registration form and number can be provided showing that the subsidiary company or contractor |
|legally exists and meets the legal requirements to undertake harvesting activities. |
|Aspect 2: Lawful permit for logging |
|Criterion 2.1. The entity (licence-holding company, owner of the land, community) which claims to have (the) timber harvesting |
|rights on the area, can prove that it has valid and legally obtained rights to access and use the forest land. |
|Indicator 2.1.1. The concessionaire, owner or community holds a legally authorised harvesting licence and permit for a specified |
|area. . |
|Indicator 2.1.2. Licence has been issued by the proper competent administrative authority, and, if legally required, through a |
|transparent public procedure. (In case another governmental authority challenges the competence of the authority, the independent |
|third party should verify and report in what way the matter has been resolved. If deemed desirable, an agreement between the |
|government of the exporting country and the government of the importing country may be reached to establish mutual understanding of|
|the competent authority). |
|Indicator 2.1.3. The anticipated issuing of the licence has been publicly announced (if legally required). |
|Indicator 2.1.4. Licence holder meets the legal and publicly available generic requirements (organisational structure, financial |
|position, professionalism, etc.). |
| |
|Criterion 2.2. Boundaries of the licence area are clearly defined and do not conflict with land-use classifications in which |
|timber harvesting is forbidden, such as protected areas. |
|Indicator 2.2.1. The relevant forest area (licence area, ownership, customary rights area) is clearly indicated on a map with a |
|scale of at least 1: 25,000. |
|Indicator 2.2.2. The boundaries do not straddle areas where timber harvesting is prohibited. |
|Indicator 2.2.3. The boundaries are marked in the forest at trails, skid roads and logging roads. |
|Indicator 2.2.4. The boundaries are officially recognized, if the law so requires. |
| |
|Criterion 2.3. Impact assessments (if legally required). |
|Indicator 2.3.1. Social and environmental impact assessment prepared and accepted by the competent authority. |
| |
|Criterion 2.4. Area-based royalties and timber fees have been declared and paid. |
|Indicator 2.4.1. Official central and local government documents showing the royalties and fees to be paid, including dues to local|
|communities. |
|Indicator 2.4.2. Paid royalties, fees and dues that appear in the administration of the licence holder and of the recipient. |
|Indicator 2.4.3. Acknowledgement of receipt of royalties, fees and dues by beneficiaries. |
| |
|Aspect 3: Customary cutting rights (in and outside concession areas). |
|Criterion 3.1. Customary cutting rights are accepted or recognized. |
|Indicator 3.1.1. Agreements with the relevant community(-ies) have been established on volumes to be cut under customary rights. |
|Timber harvested under these agreements is considered to be legal. |
|Aspect 4: Process of selecting trees to be logged. |
|Criterion 4.1. The process of selecting the trees to be logged respects legally required ‘no-go areas’ within the licence area, |
|such as protection and buffer zones, steep slopes and areas of cultural significance. |
|Indicator 4.1.1. ‘no-go areas’ are properly identified and respected. |
|Indicator 4.1.2. ‘no-go areas’ are indicated on a map with a scale of at least 1:25,000. |
|Indicator 4.1.3. ’no-go areas’ are marked in the forest, particularly in cases where harvesting is planned or taking place in the |
|vicinity. |
| |
|Criterion 4.2. Process of selecting trees to be logged respects protected species. |
|Indicator 4.2.1. Protected species and species listed by CITES are marked during inventories. |
|Indicator 4.2.2. The harvesting and felling plan, and the harvesting operations are designed in such a manner as to avoid damage to|
|protected trees. |
|Indicator 4.2.3. Protected species are not among the harvested trees. Harvested trees belonging to species which appear on one of |
|the CITES lists are labelled as such and should follow the CITES protocol in case of export. |
| |
|Criterion 4.3. Harvested trees have been selected in compliance with legal tree dimension limits and volumes per ha standards, and|
|with approved timber harvesting plans (pertaining to the inventory and identification of trees to be harvested) and/or, as far as |
|legally required, operational plans. |
|Indicator 4.3.1. Timber harvesting plans and/or operational plans meet legal requirements with respect to the inventory and |
|identification of trees to be harvested and have been approved by the competent forest authority. |
|Indicator 4.3.2. Trees selected for harvesting are marked on maps or listed in a felling register. Trees exceeding the allowable |
|diameter range are not included. |
|Indicator 4.3.3. All trees that have been harvested come from the legally agreed upon annual cutting area and comply with the |
|marked trees on the map and/or the felling register. Trees beyond the allowed diameter range are not among the harvested trees. |
|Indicator 4.3.4. The aggregated volume for each tree species to be harvested is within the authorised volume of the specified |
|annual operational area (reference: timber harvesting plan and operational plans). |
|Indicator 4.3.5. The aggregated volume of trees actually being harvested is within the authorised volume of the specified annual |
|cutting area. Log measurement is in accordance with the prevailing rules and legislation. |
|Indicator 4.3.6. Harvested trees/logs are numbered/marked and registered in accordance with legal requirements. |
|Indicator 4.3.7. All logs have been registered on the cutting register and can reliably be traced back to the stump, which should |
|have the same number, with the assistance of an accurate administrative system. |
|Indicator 4.3.8. Adequate provisions are taken to prevent harvesting, by any party, of other trees than the legally authorised ones|
|within the licence area. |
| |
|Criterion 4.4. All wood in the licence area has been legally acquired. |
|Indicator 4.4.1. All timber harvested within the license area and that has been brought to the area from elsewhere for further |
|transport or processing comply with the criteria in this standard applied to the origin area of the wood and the license holder of |
|the origin area. |
|Aspect 5: Monitoring and corrective actions. |
|Criterion 5.1. The licence holder monitors compliance with the full scope of legal origin requirements (this standard). |
|Indicator 5.1.1. Monitoring system is in place and implemented. |
|Indicator 5.1.2. Management actions are taken in response to monitoring results. |
| |
In addition, the Keurhout Protocol has established a set of Criteria & Indicators for appraisal of standards against which the Chain of Custody is to be assessed:
|Aspect 1: Legal registration |
|Criterion 1.1. The parties in the CoC are registered according to national legislation and regulations and have a valid licence to |
|operate. |
|Indicator 1.1.1. Legally authorised registration form and number showing that the parties legally exist and meet the legal |
|requirements to operate. |
| |
|Aspect 2: Management system certification |
|Criterion 2.1. The party in the CoC has ISO 9001 certificate or has an internal management system that meets the requirements of |
|ISO 9001. |
|Indicator 2.1.1. An (internal) management system for sound tracking of third party verified legal timber products is documented. |
|Indicator 2.1.2. The management system for sound timber product tracking is implemented. |
|Aspect 3: Separation of flows of timber |
|Criterion 3.1. Flows of third party verified legal logs, sawn timber or other wood products which have been fed in the system are |
|physically and administratively identified and separated from not verified logs all the way through the system. Indicator 3.1.1. |
|Individual pieces of timber or bundles are marked, followed, and kept separately during the full handling, transport and storage |
|process with each party in the chain of custody. |
|Indicator 3.1.2. Individual pieces of timber or bundles are adequately registered. |
|Indicator 3.1.3. Verified legal logs, sawn timber or other wood products show the evidence of its validated legal origin on |
|accompanying documents. |
Box 8: Ghana forest certification standard
|Principle |Criteria |Indicators |
| | |1.1 |Forest management shall respect all |Forest managers maintain an up to date register of all |
|1 |Compliance with laws| |applicable national and local laws and |statutes relating to forestry and land and possess copies |
| | | |administrative requirements (1994 FWP, |of all relevant regulations |
| | | |Act 547, Act 617, Act 571, Act 493, |Forest managers demonstrate an understanding of and |
| | | |companies code 1963, Manual of |compliance with relevant codes of practice, guidelines and|
| | | |procedures) |agreements and with their spirit and intent |
| | | | | |
| | | | |Forest managers document and implement procedures to |
| | | | |monitor compliance with laws and regulations and for |
| | | | |taking corrective action if/when any non-compliance is |
| | | | |detected |
| | | | | |
| | | | |The TUC has been awarded in accordance with due procedures|
| | | | |laid down in the Timber Resource Management Regulations |
| | | | |1998 |
| | | | |There are no substantiated outstanding claims of |
| | | | |non-compliance with national and local laws, regulations |
| | | | |or administrative requirements related to forest |
| | | | |management |
| | |1.2 |All applicable and legally prescribed |Forest managers provide evidence that applicable fees, |
| | | |fees, royalties, taxes and other |royalties, taxes and other applicable charges have been |
| | | |charges shall be paid (LI 1649) |paid |
| | |1.3 |Forest management shall respect all |Forest managers are aware of the implications of the |
| | | |applicable international treaties and |Convention on International Trade in Endangered Species |
| | | |agreements to which the country is a |(CITES) in the region, and have implemented appropriate |
| | | |signatory |measures or controls to ensure that its provisions are |
| | | | |respected |
| | | | | |
| | | | |Forest managers adhere to Ghana’s Labour Laws and ILO |
| | | | |conventions applicable in Ghana and implement appropriate |
| | | | |measures to ensure that their provisions are respected |
| | | | |Forest managers are aware of implications of the |
| | | | |Convention on Biological Diversity applicable in their |
| | | | |region, and implement appropriate measures to ensure that |
| | | | |its provisions are respected |
| | | | |Forest managers are aware of the implications of |
| | | | |International Conventions on Climate Change and |
| | | | |Desertification |
| | |1.4 |Forest management areas should be |Documentation exists which identifies any admitted farms |
| | | |protected from illegal harvesting, |and alienated land and which specifies terms and |
| | | |settlement and other unauthorized |conditions of admittance or ownership |
| | | |activities. | |
| | | | |Terms and conditions of occupation are adhered to |
| | | | | |
| | | | |The DFA/FMU shall be clearly identified, demarcated, |
| | | | |described and protected against unauthorized human |
| | | | |activities |
| | |2.1 |Clear evidence of long-term forest use |Adequate records detailing the ownership of the land |
|2 |Tenure and use | |rights to the land (e.g. land title, |comprising the DFA are maintained by the Forest Service |
| |rights and | |customary rights, or lease agreements) |and/or the holder of the TUC |
| |responsibilities | |shall be demonstrated | |
| | |2.2 |Local communities with legal or |Responsibilities and rights of the owners, managers and |
| | | |customary tenure or use rights shall |other stakeholders are clearly established and made clear |
| | | |maintain control, to the extent |to all stakeholders (Act 547) |
| | | |necessary to protect their rights or | |
| | | |resources, over forest operations | |
| | | |unless they delegate control with free | |
| | | |and informed consent to other agencies | |
| | |2.3 |Appropriate mechanisms shall be |Adequate processes exist within the management system to |
| | | |employed to resolve disputes over |identify and address suggestions and complaints from |
| | | |tenure claims and use rights. The |stakeholders |
| | | |circumstances and status of any | |
| | | |outstanding disputes will be explicitly|Adequate systems and procedures have been formulated to |
| | | |considered in the certification |resolve grievances and ensure compensation in the case of |
| | | |evaluation. Disputes of substantial |loss or damage arising from management activities within |
| | | |magnitude involving a significant |the DFA that affect customary or traditional rights |
| | | |number of interests will normally | |
| | | |disqualify an operation from being | |
| | | |certified | |
| | | | | |
| | |3.1 |should meet or exceed all applicable |Health and safety measures comply with national minimum |
|3 |Community relations | |laws and/or regulations covering health|requirements |
| |and worker's rights | |and safety of employees and their |Managers have assessed the risk to workers of particular |
| | | |families |tasks and equipment and take all reasonable measures to |
| | | | |reduce or eliminate such risks. |
| | | | |Operators and contractors know the health and safety |
| | | | |guidelines that are relevant to them. |
| | | | |All workers receive training in safe working practices and|
| | | | |are provided with and use safety equipment and clothing |
| | | | |appropriate to their workplace situation. |
| | | | |Workers have access to appropriate health facilities |
| | |3.2 |The rights of workers to organize and |Employees of the forest managers, concession holders and |
| | | |voluntarily negotiate with their |contractors are permitted to organise and voluntarily |
| | | |employers shall be guaranteed as |negotiate with their employers as guaranteed in the |
| | | |outlined in Conventions 87 and 98 of |Constitution and labour laws of Ghana |
| | | |the International Labour Organisation |The employees of the forest managers, concession holders |
| | | |(ILO). |and contractors receive benefits commensurate with their |
| | | | |responsibilities |
| | |3.3 |Management planning and operations |Forest management includes systems to monitor the social |
| | | |shall incorporate the results of |impacts of harvesting and other operations. |
| | | |evaluations of social impact. |Timber Operational Specifications (TOS) lay down clear and|
| | | |Consultations shall be maintained with |unambiguous conditions and technical specifications. |
| | | |people and groups (both men and women) |Social Responsibility Agreements with appropriate and |
| | | |directly affected by management |relevant conditions for the DFA/FMU have been established |
| | | |operations |and these are adhered to, in spirit and in deed by all |
| | | | |parties |
| | |4.1 |The rate of harvest of forest products |Calculation of yield or yield regulation method is |
|4 |Benefits from the | |shall not exceed levels which can be |rational and scientifically based. |
| |forest | |permanently sustained. |The yield selection methods and limits on harvesting are |
| | | | |clearly stated in one or more of the management documents |
| | | | |available to TUC holder |
| | | | |Harvesting is conducted according to stipulated |
| | | | |regulations and guidelines which ensure that the levels of|
| | | | |harvesting do not exceed stipulated levels |
| | | | |Forest managers respect controls on logging and harvesting|
| | | | |practice to prevent over-exploitation |
| | |5.1 |Safeguards shall exist which protect |Management plans contain clear and unambiguous objectives |
|5 |Environmental impact| |rare, threatened and endangered species|or goals for protection and conservation of flora and |
| | | |and their habitats (e.g., nesting and |fauna within forest reserves. |
| | | |feeding areas). Conservation zones and|The DFA/FMU is covered by clearly defined and formulated |
| | | |protection areas shall be established, |strategies to ensure the conservation of existing flora |
| | | |appropriate to the scale and intensity |and fauna, including the identification of conservation |
| | | |of forest management and the uniqueness|zones to protect rare, threatened and endangered species |
| | | |of the affected resources. |and their habitats (e.g., nesting and feeding areas). |
| | | |Inappropriate hunting, fishing, |Management has adopted genetic heat index and star colour |
| | | |trapping and collecting shall be |coding of individual species in the calculation of yield |
| | | |controlled. |and the selection of trees to be felled |
| | | | |Management has adopted appropriate limits or precautionary|
| | | | |measures are in place |
| | | | |The TUC holder demonstrates a commitment to adopting and |
| | | | |adhering to protection measures and the spirit of the |
| | | | |protection strategy |
| | | | |Inappropriate hunting, fishing, trapping and collecting is|
| | | | |controlled |
| | |5.2 |Written guidelines shall be prepared |Forest managers shall produce written guidelines to cover |
| | | |and implemented to: control erosion; |all aspects of management that impact on the forest to |
| | | |minimize forest damage during |include road design and construction, preparation of log |
| | | |harvesting, road construction, and all |skidding, tree felling, skidding among others aimed at |
| | | |other mechanical disturbances; and |minimising onsite impact. |
| | | |protect water resources. |The road network and related constructions are properly |
| | | | |constructed and maintained. |
| | | | |Felling and extraction are executed according to the |
| | | | |logging plan |
| | | | |Management provides detailed instructions and minimum |
| | | | |standards for the design, construction and maintenance of |
| | | | |roads and extraction tracks |
| | | | |Felling direction of trees and/or extraction route marked |
| | | | |on map prior to felling |
| | | | |Felling and extraction equipment has been specifically |
| | | | |selected to minimise environmental impact |
| | |6.1 |A management plan -- appropriate to the| |
|6 |Management plan | |scale and intensity of the operations | |
| | | |-- shall be written, implemented, and | |
| | | |kept up to date. The long term | |
| | | |objectives of management, and the means| |
| | | |of achieving them, shall be clearly | |
| | | |stated | |
| | | | | |
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