Abdul azeez maruf olayemi comparative enviromental law
1. AHMAD IBRAHIM KULLIYYAH OF LAWS
International Islamic University, Malaysia
CONSERVATION OF FOREST:
A Study with a Special Reference to ‘ITTO’ and Tropical Countries
[COMPARATIVE ENVIROMENTAL LAW]
By:
ABDUL AZEEZ MARUF OLAYEMI
2. The Concept of Forest
Forest is generally defined as a ‘large area of land covered by threes and other
plants growing close together .
However, the International Tropical Timber Organization (ITTO) has varieties
of definition for forest due to it varieties.
The organization defines tropical forest as ‘the forest lying between the tropics
of Cancer and Capricorn’, although this definition has been proved difficult to
apply in all cases. For example, many ITTO producer countries have forests at
higher altitudes within the tropics that effectively are temperate forest types
Moreover, several producer countries – Brazil, India, Mexico and Myanmar –
have significant areas of forest outside the tropics.
These countries do not usually distinguish between ‘tropical’ and ‘non-tropical’
in their forest statistics; therefore it has not always been possible to maintain
the distinction. Thus, as the definition implies, tropical forest is of many types
and the said types include the following:
3. Cont…
• Rain Forest:
This can be described as ‘a tall, dense jungle. The reason it is called a "rain" forest
is because of the high amount of rainfall it gets per year. The climate of a rain forest
is very hot and humid so the animals and plants that exist there must learn to adapt to
this climate. However, the largest remaining areas of tropical rain forests are in Brazil,
Congo, Indonesia, and Malaysia. Precipitation generally exceeds 60 inches (150 cm)
per year and may be as high as 400 inches (1000 cm). Lowland rain forests are
among the worlds most productive of plant communities. Giant trees may tower 200
feet (60 m) in height and support thousands of other species of plants and animals.
Montane (mountain) rain forests grow at higher elevations where the climate is too
windy and wet for optimum tree growth.
• Mangrove Forest:
This type of forest grow in the swampy, intertidal margin between sea and shore and
are often considered part of the rain forest complex. The roots of mangrove trees help
stabilize the shoreline and trap sediment and decaying vegetation that contribute to
ecosystem productivity.
4. Cont…
• Dry Forest:
The large areas of tropical dry forests are found in India, Australia, Central
and South America, the Caribbean, Mexico, Africa, and Madagascar. Dry
forests receive low rainfall amounts, as little as 20 inches (50 cm) per year,
and are characterized by species well adapted to drought. Trees of dry
tropical forests are usually smaller than those in rain forests, and many lose
their leaves during the dry season. Although they are still amazingly diverse,
dry forests often have fewer species than rain forest.
Savanna:
Savanna is a transitional type between forest and grassland. Trees are
often very scattered and tend to be well adapted to drought and tolerant of
fire and grazing. If fire is excluded, trees eventually begin to grow and the
savanna is converted to dry forest. With too much fire or grazing, dry forest
becomes savanna. This vegetation type has fewer species of trees and
shrubs but more grasses and forbs than other forest types in the Tropics.
5. Cont…
• Cloud Forest:
This is a rare habitat of tropical mountains which is rich of concentrations of
biodiversity and serve as sources of freshwater. This forest makes up no
more than 2.5 percent of the world’s tropical forests, but they harbor
disproportionately large number of the world’s species. This wealth of
biodiversity includes the wild relatives and sources of genetic diversity of
many of our staple crops, such as beans, potatoes and coffee
Finally, it is worth of mentioning that the world's tropical forests circle the
globe in a ring around the Equator. They are surprisingly diverse, ranging
from lush rain forests to dry savannas and containing millions of species of
plants and animals. Tropical forests once covered some 15.3 billion acres
(6.2 billion ha). In recent times, however, they have been cut at a rapid rate
to make room for agriculture and to obtain their many valuable products.
Between 1985 and 1990, 210 million acres (85 million ha) of tropical forests
were destroyed
6. Cont…
• The Importance of Tropical Forests:
All forests have both economic and ecological value, but tropical forests are
especially important in global economy. These forests cover less than six
percent (6 %) of the Earth's land area, but they contain the vast majority of
the world's plant and animal genetic resources. The diversity of life is
astonishing.
There is also diversity in other life forms: shrubs, herbs, epiphytes,
mammals, birds, reptiles, amphibians, and insects. One study suggests that
tropical rain forests may contain as many as 30 million different kinds of
plants and animals, most of which are insects.
Moreover, tropical forests provide many valuable products including rubber,
fruits and nuts, meat, rattan, medicinal herbs, floral greenery, lumber,
firewood, and charcoal. Such forests are used by local people for
subsistence hunting and fishing. They provide income and jobs for hundreds
of millions of people in small, medium, and large industries
7. DEFORESTATION:
• Having said this, the tropical forest has been threaten by the syndrome named
‘Deforestation’.
• Deforestation is the conversion of forested areas to non-forest land for use such as
arable land, pasture, urban use, logged area, or wasteland.
• Since forests support greater numbers of animals and more species than arable land,
pastures or cities removal or destruction of significant areas of forest cover has
resulted in a degraded environment with reduced biodiversity. In a few countries,
massive deforestation is ongoing and is shaping climate and geography. Deforestation
results from removal of trees without sufficient reforestation, and results in declines in
habitat and biodiversity. This however occurs due to many reasons.
• Reliable studies shows that, before the dawn of agriculture, approximately 10,000
years ago, forests and open woodland covered about 15.3 billion acres (6.2 billion ha)
of the globe. Over the centuries, however, about one-third of these natural forests
have been destroyed. According to a 1982 study by FAO, about 27.9 million acres
(11.3 million ha) of tropical forests are cut each year. Between 1985 and 1990, an
estimated 210 million acres (85 million ha) of tropical forests were cut or cleared. In
India, Malaysia, and the Philippines, the best commercial forests are gone, and cutting
is increasing in South America. If deforestation is not stopped soon, the world will lose
most of its tropical forests in the next several decades.
8. FACTORS BEHIND DEFORESTATION:
The factors that militate against forest are as follows:
1. clearing for agriculture:
In the Tropics, the age-old practice of shifting, sometimes called "slash-and-burn," agriculture has
been used for centuries. In this primitive system, local people cut a small patch of forest to make
way for subsistence farming. After a few years, soil fertility declines and people move on, usually
to cut another patch of trees and begin another garden. In the abandoned garden plot, the
degraded soil at first supports only weeds and shrubby trees. Later, soil fertility and trees return,
but that may take decades. As population pressure increases, the fallow (rest) period between
cycles of gardening is shortened, agricultural yields decrease, and the forest region is further
degraded to small trees, brush, or eroded savanna. Conversion to sedentary agriculture is an
even greater threat to tropical forests. Vast areas that once supported tropical forests are now
permanently occupied by subsistence farmers and ranchers and by commercial farmers who
produce sugar, cocoa, palm oil, and other products.
2. Demand For Firewood:
For millions of rural poor, survival depends on finding enough wood to cook the evening meal.
Every year more of the forest is destroyed, and the distance from home to the forest increases.
Not only do people suffer by having to spend much of their time in the search for wood, but so
does the land. Damage is greatest in dry tropical forests where firewood cutting converts forests
to savannas and grasslands.
9. Cont…
3. The global demand for tropical hardwoods, (timber):
The global demand for tropical hardwoods, (timber) an $8-billion-a-year industry,
also contributes to forest loss. Tropical forests are usually selectively logged rather
than clear-cut. Selective logging leaves the forest cover intact but usually reduces
its commercial value because the biggest and best trees are removed. Selective
logging also damages remaining trees and soil, increases the likelihood of fire, and
degrades the habitat for wildlife species that require large, old trees-the ones
usually cut. In addition, logging roads open up the forests to shifting cultivation and
permanent settlement. In the past, logging was done primarily by primitive means-
trees were cut with axes and logs were moved with animals such as oxen. Today
the use of modern machinery--chain saws, tractors, and trucks -makes logging
easier, faster, and potentially more destructive.
4. The construction of Dual Carriage roads:
Another inevitable factor that militates against forest is the construction of dual
carriage roads, either as an economic tool or as necessity for the implementation of
other infrastructure projects. The construction of roads is rapidly increasing in the
tropical forest worldwide. However, roads are one of the main deforestation drivers
in the tropics. A study that was carryout in the United States of America about the
impact of road investments and constructions on both deforestation and jaguar
habitat loss, in the Mayan Forest gives sufficient analysis of this factor.
10. Cont…
5. Urbanization:
Urbanization is one of the main primary and natural causes of
deforestation. Rapid population growth has resulted to the conversion of
forest areas to non-forest lands for settlement and farming. Together with
this is urbanization and residential area expansion. This takes a significant
loss of forest lands both for harvesting forest products as more people
need more lumber to build their houses and for developing the greater
area their houses, malls, business centers will be built
6. Military Context:
Military context is another reason for deforestation. One example of
deliberate deforestation is that which took place in the U.S.
zone of occupation in Germany after World War II. Before the onset of the
Cold War defeated Germany was still considered a potential future threat
rather than potential future ally. To address this threat, attempts were
made to lower German industrial potential, of which forests were deemed
an element. Sources in the U.S. government admitted that the purpose of
this was the "ultimate destruction of the war potential of German forests."
11. Cont…
7. Cattle Grazing:
Another devastating force behind deforestation is cattle grazing.
With the international growth of fast food chains this seems to be
an evident factor in the clearing of trees today. Large corporations
looking to buy beef for hamburger and even pet food seek cheap
prices and are finding them with the growth of cattle grazing. In
the Amazon region of South America alone there are 100,000
beef ranchers. As the burger giants of industrialized society are
making high demands for more beef, more forests are being torn
down. Statistics from less than a decade ago, 1989, indicate that
15,000 km squared of forests are used expressly for the purpose
of cattle grazing. Once the trees are gone the land is often
overgrazed. In some places the government wants this to
happen. Cattle grazing are big profit that cannot be turned down
12. Cont…
8. Illegal Logging:
The small farmer plays a big role in logging, but it is modern
industry that cuts down the trees.
The logging industry is fueled by the need for disposable products.
11 million acres a year are cut for commercial and property
industries.
The amount of damage that this adds to the forests can not be
measured nor can that of the illegal logging. Some importers may
even be buying illegally logged wood and not even have known it.
According to the report of World Wide Fund “illegal logging” is the
Major Cause of Global deforestation
13. THE IMPACT OF DEFORESTATION ON BIODIVERSITY
- Forests are biological communities-complex associations of trees with other
plants and animals that have evolved together over millions of years.
Because of the worldwide loss of tropical forests, thousands of species of
birds and animals are threatened with extinction. The list includes many
unique and fascinating animals, among them the orangutan, mountain
gorilla, manatee, jaguar, and Puerto Rican parrot. Although diverse and
widely separated around the globe, these specles have one important thing
in common. They, along with many other endangered species, rely on
tropical forests for all or part of their habitat.
- The largest of all primates, the gorilla, is one of man's closest relatives in
the animal kingdom. Too large and clumsy to move about in the forest
canopy, the gorilla lives on the forest floor where it forages for a variety of
plant materials. Loss of tropical forests in central and West Africa is a major
reason for the decreasing numbers of mountain gorillas. Some habitat has
been secured, but the future of this gentle giant is in grave danger as a
result of habitat loss and poaching
- In addition to species that reside in tropical forests year round, others
depend on such forests for part of the year. Many species of migrant birds
journey 1,000 miles or more between their summer breeding grounds in the
north and their tropical wintering grounds. These birds are also threatened
by tropical forest destruction
14. CONSERVATION OF FOREST
- Forests bring tremendous benefits to our world, ranging from social to
economic to environmental. Economically, timber, paper, oil, rubber and
many other important resources which form the pillars of modern industries
are produced in forests. Socially, forests create recreational opportunities
and enrich people’s lives.
- Environmentally, forests minimize soil erosion and flooding. They are also
well known for the tremendous biodiversity, providing wildlife habitat to
home millions of plant and animal species. In addition, forests play a
significant role in maintaining global climate change. Oxygen, which is
produced through photosynthesis, is continuously replenished. On the other
hand, carbon dioxide is taken in by the plants. This continuous process
maintains the amount of gases in the air, which consequently affect our
global temperature.
- As the world is facing forestry problems of deforestation for various
reasons, efforts was therefore made to minimize deforestation directly
through boycotts of multinational corporations responsible for exploitative
logging, the most effective conservation policies have been efforts to relieve
poverty and expand access to education and health care.
- However, the quest for the conservation of forest also leads to the birth of a
very important organization, named International Tropical Timber
Organization (ITTO). The organization is primarily vested with the
responsibility of monitoring and preservation of the forest.
15. ITTO
• International Tropical Timber Organization (ITTO) was not originally
designed to address deforestation per se. Rather; the organization
was designed to facilitate trade in tropical timber.
• Moreover, the International Tropical Timber Agreement (ITTA) --
which established the ITTO -- is the only commodity agreement
dealing with the conservation and management of tropical forests;
and, pending a global forest agreement, it remains the only binding
international agreement concentrating on this subject. As such, the
ITTO provides a unique forum for forest management policy
discussion between producer and consumer countries, and has
become a vehicle for project activities, especially those geared
toward reforestation and conservation. Environmental NGOs in
several countries have exerted extensive pressure, with
considerable success, on the ITTO to focus on environmentally
sustainable forest management and conservation.
16. Cont…
• These policy discussions have resulted in the adoption of the year
2000 target, by which time all timber traded internationally should
come from sustainably managed sources, and the development of
guidelines for natural forest management by the ITTO.
• The ITTA was completed in 1983 and signed by both tropical timber
producing and consuming nations. The ITTA, which sets out the
purposes and constitution of the ITTO, is unique in several respects.
The most notable commodity agreement to be negotiated at the
United Nations Conference on Trade and Development (UNCTAD),
the ITTA, like preceding agreements on coffee, sugar, cocoa and
jutes aims to promote not only tropical timber trade, but, more
importantly, to increase the producer-countries' share of the
benefits.
17. Cont…
• In practice this means a strong emphasis on
both expanding the volume and value of the
trade in tropical timber, and ensuring that a
greater share of the value is retained by the
producers as earnings, profits, and government
revenues. However, another dimension of the
agreement makes it unique: a long-term concern
is explicitly stated for the conservation of both
the forest resource and the forest environment.
18. Cont…
• Origins of the ITTA
• The initial impetus behind ITTA's negotiation was not environmental but Western --
mainly Japanese -- concern for the threat posed by deforestation to sources of
tropical timber supply. When the Japanese, the world's largest importer of tropical
timber in terms of volume, originally proposed a resolution at UNCTAD to create an
ITTO in 1977, they had in mind a commodity agreement of the sort adopted for jute
and rubber, which would be strictly confined to trade considerations.
• However, in discussions, it soon became clear that tropical timber could not be
treated in such a narrowly defined manner. Since tropical timber comes from a wide
variety of tree species growing over a vast area of the world's forests, it cannot be
dealt with as a single commodity. For this reason, the International Institute for
Environment and Development (IIED) forcefully argued that the agreement could not
be limited to the technical and commercial concerns of timber extraction and trade,
but must also provide for the ecological and genetic services provided by forests. As
a result, in the final stages of several years of negotiations of the ITTA, the
environmental role of tropical forests came to feature prominently and the final
wording of the agreement included "sustainable utilization and conservation of
tropical forests and their resources, and maintaining the ecological balance in the
regions concerned" among the objectives of the ITTO.
19. Cont…
• The ITTA, signed in November 1983 after six
years of protracted negotiations, thus emerged
as a unique trade agreement. Environmental
NGOs welcomed the ITTO, perceiving that it
offered an opportunity to enforce sustainable
forest management. To the surprise of many
governments, therefore, the ITTO became the
principal focal point for debate between
conservationists and timber-exporting countries
over the management of their natural forests.
20. Cont…
• Objectives of the ITTO
• The primary stated mission of the ITTO, in carrying out
its mandate as described by the ITTA, is to strike a
balance between the needs of conservation and
development and to secure more sustainable use of
tropical forests and the resources they contain.
Specifically, the ITTA is intended to promote
cooperation, coordinate statistical data, and support
research and development on marketing, utilization,
reforestation, and management of tropical forests. As
stated in the ITTA, the principal objectives of the
organization are:
21. Cont…
• -to provide an effective framework for cooperation between tropical timber
producing and consuming member nations;
• -to promote the expansion and diversification of international trade in
tropical timber and the improvement of structural conditions in the tropical
timber market;
• -to promote and support research and development to improve forest
management and wood utilization;
• -to improve market intelligence with a view to ensuring greater transparency
in the international tropical timber market;
• -to encourage increased and further processing of tropical timber in
producing member countries in order to increase their export earnings;
• -to encourage members to support and develop industrial tropical timber
reforestation and forest management activities;
• -to improve marketing and distribution of tropical timber exports of the
producing members; and
• -to encourage the development of national policies aimed at the sustainable
utilization and conservation of tropical forests and their genetic resources,
and at maintaining the ecological balance in the regions concerned.
22. Cot…
• Projects
• The ITTA has five categories for research and
development projects:
• (1) wood utilization;
• (2) natural forest development;
• (3) reforestation development;
• (4) harvesting, logging infrastructure, or training
of technical personnel; and
• (5) institutional framework and national planning.
23. Cont…
• Target 2000
• At its Eighth Session, held in Bali in May 1990, the Council took a step
toward achieving its goal of sustainable logging by announcing 'Target 2000'
which establishes the year 2000 as the date when all trade in tropical timber
is to be supplied from sustainably managed sources, though the ITTO has
yet to agree on a definition of sustainability.
• Many critics question the feasibility of reaching this goal since the ITTO's
own studies indicate that sustained yield logging is practically nonexistent in
the tropics. In addition, some observers note that the use of trade measures
necessary to achieve this objective is at best inhibited and at worst ruled out
under the terms of the General Agreement on Tariffs and Trade (GATT).
• At the Tenth Session -- held in Quito, Ecuador in June 1991 -- the ITTO
adopted a strategy to facilitate achieving Target 2000 through international
collaboration and national policies and programs. Pursuant to the strategy,
the Council encourages national plans to include the following elements:
24. Cont…
• -forest conservation and management;
• -appropriate economic forest and timber policies (full
cost forest accounting, resources pricing regimes, etc.);
• -incentives for sustainable forest management;
• -investment of forest revenues into sustainable forest
management, regeneration, and expansion of the
forestry estate through plantation development; and
• -enhancement of the ability of local communities within
or near the forest to obtain appropriate returns and other
benefits from sustainably managed forests.
In addition, the strategy recommends a major review of
progress toward Target 2000 for 1995.
25. GUIDELINE FOR THE SUSTANABILITY AND MANAGEMENT OF
NATURAL TROPICAL FOREST
The 1990 session in Bali, the ITTO adopted non-binding guidelines for the
sustainable management of natural tropical forests. Initially, attempts were made to
agree upon binding guidelines for 'best practice', but producer governments rejected
this idea as a violation of their national sovereignty
The sustainable management guidelines are a compilation of principles and 'possible
actions' ranging from general policy to forestry operations issues. Forest policy,
national forest inventory, permanent forest estate, forest ownership, and national
forest services are treated under the heading of Policy and Legislation in the ITTO
Guidelines. The Forest Management section addresses planning, harvesting,
protection, legal arrangements, and monitoring and research; while relations with
local populations, economics, incentives, and taxation are treated under the rubric of
Socioeconomic and Financial Aspects. For example, the first principle, which relates
to forest policy, establishes that "A strong and continued political commitment at the
highest level is indispensable for sustainable forest management to succeed."
Possible action number one, which corresponds to that principle, states that: "A
national land use policy aiming at the sustainable use of all natural resources,
including the establishment of a permanent forest base should be developed and
adopted." The guidelines also include examples of elements for possible inclusion in
national and operational guidelines in its appendices.
26. Cont…
• As a checklist of environmental management aspects,
these guidelines may be especially useful to consumer-
country timber importers in identifying sustainable
sources of tropical timber, since plans to introduce
timber source labeling are often impractical and
susceptible to abuse. With the ITTO's document,
importers can seek assurances that the recommended
'possible actions' are being undertaken at the local level,
and make use of the document's appendices on
categories of forest land, forest inventory, roads,
harvesting, and concession legislation for timber
extraction.
27. Cont…
• Projects and Studies:
• Beyond its target- and standard-setting activities, the ITTO has undertaken
several pilot and study projects. Some pilot schemes initiated by the ITTO,
such as multipurpose forest management, or studying the potential of
lesser-known species, have yielded fruitful and replicable results.
• The ITTO's greatest potential may lie in some of the policy studies it has
initiated, especially those that respond to its sustainable forest utilization
mandate. For example, in 1988, the ITTO commissioned a worldwide survey
of how much forest was being sustainably managed. The survey found only
a negligible amount of forest being managed for sustainable, long-term
timber production (0.08 percent). The resulting report, No Timber Without
Trees, unquestionably alerted many in the media, trade, government, and
public to the virtual absence of any natural forest management and to the
urgent need for measures to introduce it.(29) Study projects of this kind can
have an immense impact. There is little doubt that this study did much to lay
the groundwork for stimulating the Council to endorse Target 2000.
28. Cont…
• Sarawak Mission:
• A fourth significant area of work for the ITTO is its
monitoring function. An example of ITTO activity in this
area was an official investigative mission, led by
England's Lord Cranbrook, to investigate the conflict
between loggers and native peoples in Sarawak,
Malaysia. At the May 1989 meeting in Cote d'Ivoire, the
ITTO resolved to send the mission with the aim of
assessing "the sustainable utilization and conservation of
tropical forests and their genetic resources, as well as
the maintenance of the ecological balance in
Sarawak...with a view to ensuring their optimum
utilization.''
29. Cont…
• The study mission, which reported to the Council the following May, is an example of
the Council's quick response to international environmental pressure. The report
recommended greater emphasis on biological diversity conservation, increases in
protected forest area, and a reduction in the timber harvest from existing levels of 13
million cubic meters to 9.3 million cubic meters per year. However the mission's view
was restricted by its inability to review land rights questions, mainly due to the
absence of legal expertise on the team.
• Thus, the 'Cranbrook mission' report was a disappointment to some, because it failed
to spell out mechanisms to resolve the issue of land rights. Other features of the
report also appeared to conservationists as a step backwards, such as the report's
limited reference to non-timber forest products or the environmental services of the
forest.
• The failure of the Governments of Sarawak and Malaysia to address the mission's
criticisms of the timber extractors has been an additional disappointment to some.
Official reports indicate that rather than a reduction, Sarawak's Forestry Department
has undertaken major increases in annual extraction rates -- estimated to have
reached 18 million cubic meters in 1990. Such increases may be perceived by critics
to reflect an inability of the ITTO to affect positive change.
30. Cont…
• Poor Law Enforcement and It’s Reasons:
• In reality law enforcement actions by the Forestry Administration
(FA) follow one of four courses. The first, giving of a warning, is a
legally valid action under the Forestry Law (FL) which involves no
penalty.
• The other three actions follow different administrative and judicial
pathways: Path I - Transactional Fines, Path II - prosecution through
the Courts, and Path III - seizure of forest products or by-products
without the arrest of an offender. Because these different courses of
action involve different combinations of the stages in the law
enforcement chain, it is necessary to calculate their Enforcement
Disincentives (ED) separately
31. Cont…
1. Warnings:
Issuing of a warning has no ED which can be measured using the Enforcement
Disincentive model. This is because no penalty is applied. However in a law
enforcement regime in which offenders understood (and expected) that a second
offence would lead to significant penalties, there would be some disincentive effect of
the warning process. Unfortunately there is no consistent recording of warnings, or of
consideration of previous warnings in deciding penalties for second offences. In
addition, the low EDs for other pathways further reduces any concern that an offender
might have about being caught again.
2. Transactional Fines:
• Path I - Transactional Fines:
Transactional Fines are applied and processed solely within the FA. Documentation
follows what has been designated as Path I. If the offender does not plead guilty at
the time of arrest then the case is handled through the Courts (Path II).
Documentation prepared during the Path I processing is intended to record the
offence and to assist the FA Director to decide on the level of penalty. The FL
provides a range of penalties, and a set of criteria for helping to determine the level of
any fine which is applied.
32. Cont…
• Path II - Processing Through the Courts:
Cases following Path II are those involving the more serious crimes,
with penalties of up to ten years in prison and confiscation of all
seized evidence, and which are processed through the Provincial or
Municipal Courts. It is no surprise that the ED in relation to this type
of offence is very low - $33.03 if the rate of detection is assumed to
be 100 percent of crimes committed, or $3.30 if a more realistic
detection rate of 10 percent is used. This compares with an average
incentive of nearly $600.
The major weaknesses in the Path II enforcement chain result from
the low probability of arrest once a crime has been detected (0.10),
the relatively low probability of prosecution (0.6), and the fact that
only around 14 percent of convictions actually involved a penalty (1
in 7). The low arrest rate is connected to the excessive percentage
of cases in which evidence is seized but no one is arrested.
33. Cont…
• Significant other weaknesses leading to the low ED are
associated with documentation and Court procedures. The
documentation prepared for Path II cases is essentially the same as
for Path I, even though in the latter pathway there is no need to
prove guilt. There is an urgent need to improve the standard of
documentation of cases going to the Courts, and this should be
implemented in conjunction with a radical improvement in the
investigative skills of JPs.
• Problems in the Courts seem to stem largely from the way in which
offenders are released on “bail”, and then do not return for trial - in
fact if these cases are treated as not having been completed, then
the probability of prosecution falls to 0.4. This low figure is of even
more concern when it is realized that all of the cases brought to
court were flagrant offences – the offenders were caught “in the act”
- and so the rate of successful prosecution should have been 1 (i.e.
100%).
34. Cont…
• Path III - Seizure of Evidence without Arrest:
Path III cases - situations where there was seizure of forest products or by-
products (predominantly timber) - made up 56 percent of all enforcement
cases in the sample, and 77 percent of the cases that went to the Courts.
The incentive in this type of case was $812, significantly higher than either
the Path I or Path II incentives, but the ED resulting from enforcement
efforts was zero. No one was arrested, no penalty was applied. There may
have been some slight disincentive resulting from the loss of the offender’s
expenses in making the illegal harvest, but this would have been more than
offset by one more, successful, offence.
There are likely to be various factors behind the failure to arrest offenders,
the chief among which are likely to be: a lack of political and institutional
willingness to investigate and prosecute all cases, no matter who the
offender is; the general failure of FA Judicial Police to investigate
nonflagrant crimes; and some element of corruption associated with cases
of this type.
Abdul Azeez Maruf Olayemi
35. Cont…
• Path IV - No Action against Significant Crime:
A fourth type of “path” that is sometimes followed is not to take any
action. While there are many valid reasons for not taking action on
the detection of every apparent offence, the types of crimes that are
of most concern in this category are those which do not get into the
official reports or databases. These cases are widely known among
FA and NGO staff, is often reported in the media, and frequently
involve types or volumes of forest products with a high value. They
are also characterized by the involvement of powerful persons or
organizations, often including the military or the bodyguards of high-
level individuals, and generally rely on the fact that FA staff at field
level will not take action either because they know that this is not
expected or out of fear of revenge action against them or their
families.
Abdul Azeez Maruf Olayemi
36. FOREST PRINCIPLES
• The Forest Principles is the informal name given to the
"Non-Legally Binding Authoritative Statement of
Principles for a Global Consensus on the Management,
Conservation and Sustainable Development of All Types
of Forests," a document produced at the 1992 United
Nations Conference on Environment and Development
(UNCED), informally known as the Earth Summit. It is a
non-legally binding document that makes several
recommendations for forestry.
• At the Earth Summit, the negotiation of the document
was complicated by demands by developing nations in
the Group of 77 for increased foreign aid in order to pay
for the setting aside of forest reserves. Developed
nations resisted those demands, and the final document
was a compromise
37. Cont…
• Statement of Principles on Forests:
• By the time of the June 1992 Earth Summit, countries had developed a
series of principles for sustainable forest use. This, the first global
consensus on forests, deals with the needs of people who want to protect
forests for environmental and cultural reasons and with the needs of people
who use trees and other forest life for economic development. The Rio
forest principles may form the basis of further negotiations toward a
binding agreement.
• The Rio statement says that forests, with their complex ecological
processes, are essential to economic development and the
maintenance of all forms of life. They are the source of wood, food and
medicine, and are rich storehouses of many biological products yet to
be discovered. They act as reservoirs for water and for carbon, that
would otherwise get into the atmosphere and act as a greenhouse
gas. Forests are home to many species of wildlife and, with their
peaceful greenery and sense of history, fulfill human cultural and
spiritual needs.
38. Cont…
• Some The Forestry Principles are as follows:
• All countries should take part in "the greening of the world" through forest planting and
conservation.
• Countries have the right to use forests for their social and economic development needs. Such
use should be based on national policies consistent with sustainable development.
• The sustainable use of forests will require sustainable patterns of production and consumption at
a global level.
• Forests should be managed to meet the social, economic, ecological, cultural and spiritual needs
of present and future generations.
• The profits from biotechnology products and genetic materials taken from forests should be
shared, on mutually agreed terms, with countries where the forests are located.
• Planted forests are environmentally sound sources of renewable energy and industrial raw
materials. The use of wood for fuel is particularly important in developing countries. Such needs
should be met through sustainable use of forests and replanting. The plantations will provide
employment and reduce the pressure to cut old-growth forests.
39. Cont…
• National plans should protect unique examples of forests, including old forests and
forests with cultural, spiritual, historical, religious and other values.
• International financial support, including some from the private sector, should be
provided to developing nations to help protect their forests
• Countries need sustainable forestry plans based on environmentally sound
guidelines. This includes managing the areas around forests in an ecologically sound
manner.
• Forestry plans should count both the economic and non-economic values of forests,
and the environmental costs and benefits of harvesting or protecting forests. Policies
that encourage forest degradation should be avoided.
• The planning and implementation of national forest policies should involve a wide
variety of people, including women, forest dwellers, indigenous people, industries,
workers and non-government organizations.
• Forest policies should support the identity, culture and rights of indigenous people
and forest dwellers. Their knowledge of conservation and sustainable forest use
should be respected and used in developing forestry programs. They should be
offered forms of economic activity and land tenure that encourage sustainable forest
use and provide them with an adequate livelihood and level of well-being.
40. Cont…
• Trade in forest products should be based on non-
discriminatory, rules, agreed on by nations. Unilateral
measures should not be used to restrict or ban
international trade in timber and other forest products.
• Trade measures should encourage local processing and
higher prices for processed products. Tariffs and other
barriers to markets for such goods should be reduced or
removed.
• There should be controls on pollutants, such as acidic
fallout, that harm forests
41. FOREST LAW ENFORCEMENT AND
RURAL LIVELIHOODS
• According to the ‘Center for International Forestry Research’
International concern about illegal forestry activities has grown
markedly. Asian and African governments held high-level regional
conferences on forest law enforcement and governance (FLEG).
The United Kingdom and China signed path breaking Memorandum
of Understanding with Indonesia on illegal logging. The G8, the
Convention on Biological Diversity, United Nations Forum on
Forests, and the International Tropical Timber Organization issued
forceful statements on the topic. The European Commission
formulated a European FLEG Action Plan and organized a
workshop to discuss its content. Japan and Indonesia initiated an
Asian Forest Partnership, with illegal logging as its central focus.
Global Witness, the Environmental Investigation Agency,
Transparency International, Greenpeace, Global Forest Watch, and
Friends of the Earth increased public awareness of the problem.
42. Cont…
• There are good reasons for concern. Illegal forestry activities make
governments lose billions of dollars in unpaid tax revenues each
year. They also cause environmental damage and threaten forests
that people depend on for their livelihoods. Forest-related corruption
and widespread violation of forestry laws undermines the rule of law
and discourages investment by legitimate businesses. Under such
conditions the wealthy and powerful have unfair advantages, due to
their high-level contacts and ability to pay larger bribes. Illegal
forestry activities sometimes finance violent conflict.
• Nonetheless, governments will have to take measures to ensure
that efforts to enforce forestry laws do not negatively affect rural
livelihoods. There are several reasons why such efforts might have
such an effect:
43. Cont…
• Existing legislation often prohibits forestry and agroforestry activities that
poor rural households depend on for their livelihoods, including some that
are relatively sustainable (and others that are not);
• · Millions of rural households live in areas that governments have classified
as “forestlands” and claim to own. Existing laws considers these households
encroachers even though in some cases their families have lived on the
land for generations;
• · Most forestry laws make it difficult for small farmers, indigenous people,
and local communities to engage in commercial logging and timber
processing legally since they require large amounts of paperwork and input
from professionals that these groups have no access to;
• · Forestry and wildlife departments often enforce forestry and protected area
legislation more vigorously and with less respect for due process in the case
of poor rural 2 households, since these households are not as well
connected and lack money for large bribes.
• Many of these solutions require major changes in policies or power relations
and will not come quickly or easily. Meanwhile, efforts to tackle the problems
associated with weak law enforcement must proceed.
44. AFRICAN FOREST
• The eleven member countries of the African Timber Organization (ATO) are aware
not only of the economic potential of forest resources but also of the danger of their
uncontrolled depletion. About 7.5 million hectares of closed forest and 3.8 million
hectares of African forests are cleared each year for a variety of purposes and the
Food and Agricultural Organization (FAO), estimates that 13,000 square kilometers of
African forest disappear every year through forest clearing. The West African rain
forests are especially being depleted. FAO predicts that if the present trends
continue, the tropical rainforests of the Ivory Coast, Nigeria and some other West
African rainforests could completely disappear by the year 2020. For this reason,
ATO countries have amended their forest laws since independence in order to obtain
a practical and consistent regulation for the protection of their rainforests, including
trade in wood.
• West African rain forests include tropical moist forests including semi-deciduous
varieties distributed across nine West African countries -- Benin, Ghana, Guinea
Bissau, Guinea, Ivory Coast, Liberia, Nigeria, Sierra Leone and Togo. Population
growth exerts enormous pressure on these forests. One impact is that the rain
forests are being destroyed for the economic benefits of logging and the need for
arable land. In many respects the loss of African trees is not surprising given the
increasing demand for fuel wood and forest products added to these other factors.
45. Cont…
• The African Timber Organization member countries (ATO) eventually
acknowledged the interdependence between rural people and their forest
environment. Customary law gives locals the right to use trees for
firewood, fell trees for construction, and collect of forest products. It also
gives rights for hunting or fishing and grazing or clearing of forests for
subsistence agriculture. All other areas are called "protected forests." The
term "protected" means that uncontrolled clearings and unauthorized
logging are forbidden. Nonetheless, this distinction did not prevent the local
population from exploiting forest land.
• Following World War Two, commercial exploitation increased to such an
extent that no West African forestry department was capable of enforcing
the law. In comparison with rain forests in other parts of the world in 1973,
Africa showed the greatest encroachment although in total volume terms
African timber production measured only one third compared to that of Asia.
The difference was due to the varieties of trees in Africa forests and the
demand for specific wood types in Europe.
46. FORESTRY REGULATIONS IN WEST
AFRICA:
• Forestry regulations in West Africa were first
implemented by colonial administrations, but
they were not stringent enough to deter forest
exploitation. The law of local customary usage
rights equally hindered any effective
implementation of forestry laws. It was not until
the 1970s that the inadequate implementation of
forest regulations appeared as it did elsewhere
in the world.
47. THE TROPICAL FORESTRY ACTION PLAN
• Some help has been provided by other organizations. The Tropical
Forestry Action Plan was conceived in 1987 by the World
Resources Institute in cooperation with the Food and Agriculture
Organization, the United Nations Development Program (UNDP)
and the World Bank with hopes of halting tropical forest destruction.
In its bid to stress forest conservation and development, the World
Bank gave $103 million to developing countries, especially in Africa,
to assist in developing long range forest conservation and
management programs aimed at ending deforestation.
48. THE OVERVEIW OF SOME NOTABLE TROPICAL COUNTRIES
2. Malaysia:
• Status of Tropical Forest Management 2005 25 Malaysia’s forests are generally well
managed, although there are differences between Peninsular Malaysia, which has
the strongest approach, and Sabah and Sarawak; however, all regional forestry
administrations are committed to achieving. The forest sector plays an important role
in the Malaysian economy and is a significant employer. Already a major producer of
value-added, wood-based products in the world market, this part of the sector is
likely to continue to grow. A large part of its furniture manufacturing is based on
rubber wood, which is grown in plantations, while much of the harvest from natural
forests is still exported as plywood, sawn wood and logs. Well-organized and
resourced forestry administrations at both federal and state levels have the capacity
to ensure that concessionaires adhere to prescribed practices and to oversee the
long-term management of the resource
2. Nigeria :
• Status of Tropical Forest Management 2005 21 there are several obstacles to SFM
in Nigeria. These include the discretionary power of government to de-reserve or
harvest the forests; the lack of a coherent forest policy; the prevalence of illegal
logging and harvesting in most of the high-forest states; chronic under-resourcing of
forestry programs and forest management; overlapping responsibilities among
federal, state and local governments and excessive bureaucracy; the lack of
inter-sectoral coordination; and the overall absence of reliable data on which
to base forestry planning and development. Nigeria has a long history of forest
management and the formal goal is to achieve self-sufficiency in all aspects of forest
production; however, the country, once a significant exporter, is now a net importer
of primary forest products and considerable work must be done to achieve this goal.
49. Cont…
3. Indonesia:
Indonesia’s forest resource base is still vast, but it faces many threats that put its
long-term sustainability in jeopardy. These include illegal logging; forest fires;
deforestation through land encroachment; wasteful logging and processing; structural
deficiencies and inefficiencies in forest industries; the indebtedness of forestry
enterprises; unsettled land claims; inefficiencies in public forest administration, in
particular in the process of decentralization; an inadequate base of human resources;
inadequate monitoring and evaluation; and a lack of effective governance. On the
other hand, significant progress has been made in the establishment of
certification systems and information on the management of concessions is
becoming increasingly available.
50. Cont…
6. Colombia
The overall forest management situation in Colombia is not clear.
On the one hand, advances have been made at the policy level in
the priority activities identified under ITTO’s Objective 2000,
including the approval of a forest policy, new forestry legislation and
the formulation of forest management plans. Forests are
administered within the wider context of environmental
management, and existing policy goals emphasize protection and
conservation functions as well as forest restoration and forest land
rehabilitation. However, there is as yet no clear designation of the
PFE and inadequate control of forest resources on the ground, in
particular in the Amazon region; nor are silvicultural methods
applied in natural production forests.
51. MAKING CERTIFICATION ACCESSIBLE TO
COMMUNITY AND SMALL HOLDERS
• When governance is weak the range of actors involved in illegal logging can include the
military, police, forestry agency officers and other power holders. Local people may be
in no position to resist their demands. In other instances, communities themselves may
engage in destructive forestry practices because of the limited opportunities available to
them.
• Alternatives are thus needed that enable local people to build decent livelihoods that do
not undermine the resource base on which they depend. Certification offers the
prospects of enabling local producers to gain a premium price for timber, while allowing
forests to continue serving their ecological, environmental, and social functions. The
hopes for certification in advancing sustainable forest management have been high.
Certification has been described by the WWF as “the most important initiative of the
last decade to promote better forest management”.
• The Indonesian Eco labeling Institute (LEI) has established a certification system
specifically for community-based forest management. Two villages in central Java
received certification for teak and mahogany forests on 22 October 2004. Innovative
group certification models can be found in the Solomon Islands, while in Laos two
provinces could soon receive certification for Village Forestry.
52. INVOLVEMANT OF LOCAL PEOPLE IN
PLANTATION FORESTRY
• Planted forests are seen as having a critical role to play in forestry in the
region. However, past and ongoing research by the Forest Conservation
Project on individual reforestation and afforestation projects suggest that
their potential for promoting sustainable forest management is sometimes
impaired by a lack of local analysis. A consequence of not consulting with
communities in the design and management of planted forests can be that
they have little incentive to preserve forests. In some instances, local people
may even seek to destroy plantations - burning of plantation forests by
disgruntled local people has been acknowledged as one cause of the fires
that ravaged Indonesia in 1998.
• In China, the Forest Conservation Project has been conducting research on
the ‘Land Conversion Program from Cropland to Forest’, the biggest
plantation program in history. Nineteen million hectares were planted
between 1999 - 2004. Despite this remarkable achievement, our research
suggests that the sustainability of the program in some locations may be
jeopardized by a failure to sufficiently consider the concerns of local families
responsible for managing the planted forests. Moreover, potential benefits to
households have been obstructed by regulations that were fashioned
without seeking their input.
53. Cont…
• In Indonesia, research on teak forests examines a very different
setting but is reaching similar conclusions. Teak forests were first
planted by the Dutch at the end of 19th century. The state owned
forestry enterprise PN Perhutani (later renamed Perum Perhutani)
became responsible for the management of forests after Indonesia
won independence. Illegal cutting became prominent from the
1960s, leading to the failure of the plantations. The situation
changed in 2001 when anew forestry regulation provided incentives
for local people to preserve the forests by allowing continuous
intercropping, cultivation under trees, and benefit sharing from
thinning and final cutting. Growing recognition by Perum Perhutani
that collaboration with local people was vital to reduce illegal cutting
led to in-depth discussions and improved relations with farmer
groups
54. “GATT” AND IT’S EFFECT ON
FOREST POLICIES
• The General Agreement on Tariffs and Trade (GATT) is a
multilateral trade agreement that establishes a common set of
ground rules for world trade. The completion of the iteration of the
GATT negotiations the Uruguay Round created the largest, most
comprehensive set of trade agreements in history.
• However, the GATT also has the effect of infringing upon policies
designed to meet environmental goals. For example, the GATT does
not allow countries to ban the import of a product because of the way
it was produced or harvested. This rule therefore prohibits countries
from discriminating against forest products from unsustainably
managed stands. Environmentally related export controls, too, can
be restricted by trade agreements. Indonesia, the Philippines, and
the U.S. are among those countries that have instituted bans or
quotas on exports of unprocessed logs which have been
challenged under the GATT. Subsidies and countervailing duties
on imports two ways to compensate producers for meeting higher
environmental standards than their competitors are also policy
instruments that can be challenged as violations of free trade rules.
55. Cont…
• In one of the disputes to raise concern, in June 1992, Austria
attempted to introduce a 70 percent tax on tropical timber, as well
as a requirement that tropical timber be labeled as such, with an
option to provide a second mark indicating whether or not it came
from a sustainably managed stand. The Association of Southeast
Asian Nations (ASEAN) complained that the Austrian law was a
violation of the GATT because it did not apply to temperate timber
as well.
• In retaliation, the ASEAN countries threatened to embargo all
Austrian exports, jeopardizing $1.8 billion worth of contracts. In
addition, other countries responded to the law by threatening to
exclude Austria from the International Tropical Timber Organization
(ITTO), reject Austrian development aid, and ban Austrian products
in Asian markets. The Austrians experienced especially strong
opposition from Malaysia, Indonesia, and the ITTO, which issued a
decision denouncing the move. The ITTO said it would oppose any
action that would undermine trade in timber products.
56. Cont…
• The GATT also prevents countries from imposing export
bans, which they may want to use to protect their own
forests. For example, a number of signatories to the
ITTA, notably Indonesia and the Philippines, have
instituted bans or quotas on exports of unprocessed logs
with the specific aim of reducing resource depletion while
creating employment and profits by stimulating the
growth of their timber processing industries. The clear
protectionist intent of these measures puts them directly
in contravention of the GATT, and moves were taken to
challenge the Indonesian ban.
57. Cont…
• The potential for using GATT regulations to overturn trade measures which
conserve forests is underlined by the case of restrictions on unprocessed
log exports from the Pacific Northwest. When the U.S. passed a law
banning the export of unprocessed logs originating from federal lands in the
contiguous western United States, Japan protested that the ban violated the
GATT because it represented an attempt to secure supplies for the
domestic industry in the U.S. To avoid the conflict, the U.S. Congress
included language in the law which referred to forests as an exhaustible
natural resource. Though the U.S. log export ban is currently being
successfully implemented, the Japanese government's negotiating position
in the Uruguay Round calls for GATT regulations to be tightened so that
export bans on unprocessed logs could only be applied in conjunction with
restrictions on exports of processed forestry products.
• One added policy instrument that could be challenged as a violation of
free trade rules is the use of subsidies, which are one way to compensate
producers for meeting higher environmental standards than their rivals.
Trade agreements generally discourage subsidies, and provide for
countervailing duties in some cases to compensate for their continued use.
However, in addition to discouraging subsidies, the GATT also prevents
countries from imposing countervailing duties on imports produced under
lower environmental standards than their own.
58. Cont…
• By discouraging the use of trade measures to achieve environmental goals,
the GATT interfere with the achievement of the ITTO's Target, the objective
of an international tropical timber trade based entirely on sustainable forest
management. The use of trade measures necessary to achieve these
objectives is at best inhibited and at worst ruled out under the terms of the
GATT. The established principle of the GATT that trade restrictions cannot
be used to discriminate between "like products" on the basis of the method of
production presents a fundamental contradiction between GATT regulations
and the initiatives being developed by the ITTO to promote the sustainable
management of tropical forests. It means that the signatories to the GATT
cannot use tariffs, quotas, or bans to favor trade in sustainably rather than
unsustainably produced tropical timber.
• The case of export bans also indicates the need to define how sustainable
forest management can be made compatible with the GATT. If the Japanese
proposal for Uruguay Round revision for log export bans is adopted by the
GATT, this amendment would have the effect of reinforcing domestic political
pressure working against restrictions on log exports which serve conservation
purposes by limiting the domestic wood products industry. It would also
further impinge on the sovereignty of producer countries over their own
natural resources, the importance of which is recognized in Article 1 of the
ITTA.
59. FOREST AUDITING
• In US the DNR (Depart. Of Natural Resources) completed a field audit of its forest
management practices and polices, as required by FSC (Forest Stewardship Council)
and SFI (Sustainable Forest Institute) to attain a certificate, during the fall of 2005.
Scientific Certification Systems (the DNR's certification auditors), stakeholders, and
DNR personnel spent two weeks traveling the state conducting the field audit. Over
the course of those two weeks the DNR's auditors traveled 4,500 miles, visited 128
forest management sites, met with 112 DNR field staff, reviewed stacks of DNR forest
management documents, and interviewed stakeholders across the state.
• The field audit is a process where the auditors compared the DNR forest management
practices and policies with the FSC and SFI standards. The auditors were looking for
forest management practices and polices that met the criteria outlined in the
standards and for areas that did not meet the standards. For example, does the DNR
follow the Minnesota Forest Resource Council's site-level guidelines? This
requirement is a criterion in both the FSC and SFI standard.
• The DNR's auditors used the data, documentation, and observations gathered during
the audit to determine if the DNR's forest management met the strict standards set by
FSC and SFI and ultimately, whether to award the DNR forest certification
60. FOREST CONVENTION
There are two distinct schools of thought on the issue of whether to hold
forest convention or not.
The first school of thought under the banner of ‘International Citizen
Declaration Against A Global Forest Convention’ which is comprise of
many governmental agencies and NGO’s from Africa e.g. African Forest
Action Network (AFAN), Asia and Russia e.g. Citizens Alliance for Saving
the Atmosphere and the Earth (CASA) - Japan, America e.g. The Arctic
to Amazonian Alliance - U.S. and Europe, e.g. ARA (Working Group on
Rainforests and Biodiversity) - Germany opposed to the opinion.
• Their opposition is based first and foremost on their concern about the
fate of the world's forests and the people who depend on forests for their
subsistence and survival, the organizations thereby declare their firm
opposition to the negotiation of a global forest convention. They call on
world leaders to reject the convention, and instead to pursue an
alternative strategy to safeguard the world's forests from further decline.
• The second school of thought holds that Global Forest Convention
could ensure comprehensive, sustainable development and
management, and that the convention could ensure a holistic approach to
the sustainable management of forest. One of those who hold this
opinion is Netherlands Environment Minister Nitin Desai
Abdul Azeez Maruf Olayemi
61. ‘EIA’
EIA is a procedure designed to identify and foresee the effects that
laws, regulations, programmes or projects may have on the
environment. EIA therefore, include useful information having a
bearing on those effects, and they also include alternative solutions.
It is an a priori assessment, a costs/benefits analysis for the
environment which can be expected from a given action and its
variants.
In modern times forestry legislation was probably among the first to
promote the idea that development and protection of the
environment must go hand in hand. Laws like the French Code
forestier of 1827 or the Spanish Ley de Montes of 1864 combined
the concepts of production and conservation. They contained
ecological concerns long before the adjective had become part of
everyday vocabulary
62. Cont…
• The Malaysian EIA procedures are comparable to the National
Environmental Policy Act 1969 (NEPA) model in the United States. The
Environmental Quality (Prescribed Activities) (Environmental Impact
Assessment) Order 1987 was gazetted as a project planning tool for new
projects or the expansion of existing ones. Section 34A of the
Environmental Quality (Amendment) Act 1985 requires anyone who intends
to undertake a prescribed activity to first conduct a study to assess the likely
environmental impacts that will occur from that activity and the mitigating
measures that need to be undertaken. The Environmental Quality
(Prescribed Activities) (EIA) Order 1987 specifies some 19 categories of
activities requiring EIA reports prior to implementation.
• It has taken considerable effort on the part of the DOE to improve the
understanding and acceptance of the EIA requirements on the part of state
and federal agencies and private sector developers. The Department has
established offices in state capitals to promote more effective co-ordination
with state government bureaucracy and developers and the processing of
EIA reports has been progressively decentralized to these regional DOE
offices since 1993.
63. Cont…
• In the Sarawak State on the island of Bomeo in Eastern Malaysia
the majority of the EIA reports have been related to petroleum and
related industrial development projects in Bintulu region. The major
constraint on the effectiveness of the Federal government EIA
procedures in Malaysia pertains to constitutional limits on its
jurisdiction with respect to environmental management. Under the
Malaysian Federal Constitution land and water are under the
purview of State governments. Each State is empowered to enact
laws on forestry, water resources, mining, wildlife and fisheries. The
management of these resources is beyond the scope of the EQA
and the role of the DOE. State government decisions over the
allocation and management of these resources tend to be politically
sensitive issues and the Federal government has to tread warily to
avoid being perceived to interfere in State matters. As discussed
below, this is particularly the case with the two Borneo States of
Sarawak and Sabah in Eastern Malaysia on account of their
distinct ethnic identity and the special provisions in the Malaysian
constitution when they became members of the Federation in 1963.
64. Cont…
• Bakun Dam Case
• How ever, conflict ensued between the Federal Government and State of
Sarawak over the …… The constitutional jurisdiction of the State of
Sarawak to undertake an EIA role has proved to be a controversial issue
and has been tested in the Malaysian Courts. The case relate to the
proposed Bakun Dam which was reviewed under the new Sarawak EIA
procedures. It was alleged that the State Government, with the apparent
collusion of the Federal Government, had used the State EIA procedures to
facilitate the path of the controversial Bakun Hydroelectricity Project on
the upper Rajang River in the heart of the remaining vestiges of the
tropical rainforests.
• Credence to this view was provided by the manner in which the amendment
to the Federal EQA was enacted to exempt the State of Sarawak from its
purview and the consequent confusion that arose subsequently about the
manner in which the Bakun EIA reports were reviewed. The Court of
Appeal, however, rejected this Machiavellian explanation in favour of
bureaucratic ineptitude within federal government.
Abdul Azeez Maruf Olayemi
65. Cont…
The High Court had treated the Amendment Order as
the focal point of the case. The Court of Appeal changed
the focus of deliberations from the validity or otherwise of
a Federal or State law to a much narrower ‘question of
interpretation of the Federal Constitution in relation to the
applicability of the EQA to Sarawak.’ (Court of Appeal
Judgment, page 23). Since the place where the power is
to be generated is land and water, and thus the
‘environment’ in question lies wholly within the legislative
and constitutional province of the State of Sarawak, it
concluded that the State has exclusive authority to
regulate by legislation, the use of it in such manner as it
deems fit.
66. Conclusion
• In conclusion, it should be observed from the
discussion that there is a need to fashion out a
better strategy and guideline for the preservation
and conservation of our natural forest to ensure
its sustainability. In this regard the clamour for a
global convention on forest is supported but,
with the caveat that the national sovereignty of
the tropical forest nations will be regarded and
that the local people will be given their
entitlements.