Sunday, June 17, 2007

Systematic Effort to “Downgrade Criteria” of Wood Legality Disregard Social Aspect

Critical Notes on the Process of Development of “Wood Legality” Criteria and Standard
Rully Syumanda

The Government of Indonesia, forestry business institutions and wood buyers in other countries responded to the issue of destructive logging by focusing on illegal logging and developing wood legality criteria. The government system developed in Indonesia in 2002 is known as BRIK (Forestry Industry Revitalization Body) criteria. However, these criteria did not receive a positive response from the European market or NGO support since it ignores many legality issues related to tenure and local communities.

Some conservation NGOs, the UK Government and the Government of Indonesia initiated discussions on developing a legality standard for Indonesian forestry which are more acceptable socially, economically and environmentally. The development of a standard for wood legality was based on a bilateral agreement between Indonesia and the United Kingdom. The process has been under development since 2004 with three draft versions of the criteria and indicators, numerous workshops and field tests. Unfortunately, the process of developing the legality standard has not been publicized widely, and has not systematically drawn on the society’s knowledge in building such criteria.

WALHI has observed a systematic effort of certain parties to downgrade the criteria of the legality standard, particularly social aspects (FPIC and Forest Zone Determination/Penetapan Kawasan Hutan), with the purpose to release timber for large scale forestry business. This paper tries to overview the mandate has been given to the small team and what they have been done as well as to compare the latest draft, 3.2 with draft 2 and to review the special study on the legality standard presented by Dr. Marcus Colchester in 2005 .

It is hoped that this paper will make everyone aware of what has and is happening in the process of establishing a legality standard for a fair and sustainable system forestry management.

Downgrading Criteria of Two Important Social Aspects
Two social aspects relevant to the forestry licensing processes are Free and Prior Informed Consent (FPIC) and Forest Zone Determination (Penetapan Kawasan Hutan). These two aspects are important and should not be skipped, since they have a legal basis in the licensing of forest concessions.

1. Forest Zone Determination/Penetapan Kawasan Hutan is the process to prove that a particular forest zone is without any pre-existing rights or obligations, as mentioned in forestry law (UUK). It is a guarantee that there are no management overlaps in the forest area and that it is clearly designated as permanent forest zone/kawasan hutan tetap. Forest Zone Determination (Penetapan Kawasan Hutan) is conducted through a process that includes forest area designation by the Minister of Forestry, forest zone boundary determination (by local government and the community) and forest zone determination after the boundary has been defined (by the Minister). These processes are defined in various forestry regulations including UUK (Forestry Law), Government Regulation No. 44/2004 regarding Forest Planning, MoF Decree No 32/2001 and MoF Decree No. 70/2001 as well as other policies related to the existence of a Boundary Committee (community, Land Office/BPN, and relevant bodies as its members). It is also in line with one of priority policies of the Ministry of Forestry, which is forest zone consolidation/pemantapan kawasan hutan (speeding up the process of determining the forest zone).

Forest zone determination is followed by a process to align the working area boundaries of a Forest Management Unit (MU), to ensure the omission of unproductive lands and address local community claims over Forestry Management Unit areas as well as to estimate the annual allowable cut allocation of a given management unit.

How is the forest determination zone issue translating in the draft legality criteria?
From the first to the third version of the criteria, there have been some significant changes:
  • Draft 1 clearly describes that the issue is important legality and is included in the first criterion (land acquisition and use right). It is clearly described that the legal means by which the area is designated as a permanent forest zone (kawasan hutan tetap) must be proved with means of verification of the Letter of Minister of Forestry regarding the determination of forest zone in the form of a forest group and proved with consistency of determination of forest zone with BATB document acknowledged by the community.
  • Draft 2 downgrades this part of the standard by saying that the legal issue is the forest zone which has been delineated and proved with BATB (Berita Acara Tata Batas) document.
  • Draft 3 further downgrades the issue to the license holders’ ability to show their IUPHK license. In contrast, there are numerous licenses issued over undesignated forest area as State Forest and the areas have no distinct boundaries, creating disorientation of the forest status between community land and the permanent forest zone/kawasan hutan tetap.

With the downgrading the of legality standard, it is clear that the standard is not sufficient to declare wood legality on the basis of land acquisition. It has to return to preceding status of the area designated as permanent forest/kawasan hutan tetap proved with means of verification, which requires a Ministerial Decree regarding the permanent forest establishment in the form of a properly comprised forest group and proved by consistency of the forest zone establishment with a community-recognized BATB document .

The delineation issue does not receive adequate attention by the government, although the issue often triggers conflicts with local communities. The delineation concept is an instrument that can potentially reduce environmental impact through change of land use into forest plantations.

  • Macro and micro delineation is a single legal instrument in valuating and delineating forest plantation concession area.
  • The instrument proportionally accommodates economic, ecological, social and ethical aspects.
  • Forest areas referred to macro and micro delineation have assurance on which boundaries should be conserved and which areas should not be extracted in regards to community claim.

In a delineated area, all forest plantation concession holders – which are then approved and legalized by the MoF, have area certainty. Such conditions must be followed and further, can become the primary basis in accelerating forest plantain development.

Boundary determination of the Management Unit working area is also not properly addressed in the criteria and even completely disappears in the latest draft 3.2. Such boundary determination should be emphasized to guarantee that all working areas include only productive areas for forest business and do not occupy unproductive areas, such as irrigated and unirrigated agriculture fields, farmlands, settlements and roads. Such lands are required to maintain local community businesses, and should be protected from land claim disputes with the forestry management unit. This determination process is also to ensure that all working areas are exclusively inside permanent forest areas.

2. Free, Prior, Informed and Consent. The issue of FPIC is very important to ensure community consent for forestry businesses that will be developed in areas where communities have had customary use and management, of forests. Negotiations based on FPIC should take place in a region before the business starts and should be free of any kind of intimidation or repression . If FPIC from a community is not sought, there is no guarantee that a community has freely given its approval for a forestry business, without being subject to pressure from the military, police or other government apparatus. FPIC also ensures that the community recognizes the potential impact of the business, including environmental and social impacts as well as its legal consequences. It is clearly described in criteria 1 and 3 of draft 2, which is called as PADIATAPA (unforced approval based on baseline information).

How was this issue translated in the indicator criteria in version 3?

From the first to third version we can observe a systematic effort to downgrade the standard as follows:

  • Draft 1 and the study conducted by Marcus Colchester in 2005 explained the importance of PADIATAPA process and required a guideline to run PADIATAPA. The issue was also proposed during the seminar in Hotel Salak (Bogor, 2005) to prepare the guideline in form of testable steps. However, it is not include in the following drafts. In draft 2 it is described weakly in criteria 3.1 with the addition of words that business can conduct the PADIATAPA. Elementary change has occurred in changing the PADIATAPA process from one that requires documentation of the approval process to merely demonstrating an effort of the forestry business to conduct a PADIATAPA.
  • Draft 3 downgrades the concept of PADIATAPA further by only including consideration of community opinion (criteria 1 verifier 1.3). The change from community approval into community consideration is a radical downgrading that ignores the guarantee of local community consent for forestry businesses operating in their neighborhood.

The absence of the FPIC process, which is for instance found in FSC principle no 3, makes the criteria meaningless since it does not give a community the right to give their approval on the forestry business in the neighborhood. It is also can not guarantee that a community is consciously and without pressure recognizing and agreeing to all legal, environmental and social impacts on their customary lands. The issue should be repositioned by returning the PADIATAPA principle into principle no. 3 (Relationship with the community and Labor rights) as mentioned in draft 2.

Loss of Principles as the Spirit of Wood Legality Certification
Beside the principle and criteria, there is also a radical change in the development of version 3, which omits the seven Principles that support all the legality processes, which are:

  1. P1. Land Acquisition and Forest Concession (accommodated in version 3 partially)
  2. P2. Physical, Social and Environmental Impacts
  3. P3. Relationship with Community and Labor Rights
  4. P4. Law and Regulation regarding Timber Harvesting
  5. P5. Forestry Tax
  6. P6. Chain of Custody
  7. P7. Timber Processing

Those principles developed in draft 1 were rearranged by the small team, who seem to have acted beyond their authority. The team was only authorized to rephrase, restructure and reformat the standard by adopting common terminology, not to downgrade as well as omit essential issues.

Increased Tolerance of Illegal Activity
Another issue that should be considered is the effort of businesses involved in this process to give different emphasis to each verification point. This activity of business participants is strongly unacceptable. Adding weight to only some verification points promotes a system of gradual legality certification. The legal status of timber will finally be determined from a percentage of how many verifiers it meets. All parties should see this issue as a very serious problem. Legality could not be degraded. The final output of a legality evaluation is only two options: the operation and the wood it produces is either legal or illegal.

Sustaining the forest area can not be guaranteed while there is a grading in legality certification. The Legality standard should be considered as an effort to help producers and consumers to determine legality without regard to the current critical condition of forestry sector.

Closing Comments
  1. Keep reforming forest policy. It was identified during the transition (reformasi) era as well as in the TAP MPR no IX/2001 which mandated an examination of policy related to Agrarian and Natural Resources issues. The result of the policy examination should be followed by the withdrawal and revision of existing policies, and thus the policy will keep changing. Standard criteria of wood legality must be adapted with this transitional situation. It has been intensively discussed during preceding seminars and workshops. With such consequences, it will clearly promote changes towards upgrading the criteria and standard to match changes in legislation, not a downgrading of the criteria, as had occurred in the recent process.
  2. Trial for Small Team and LEI. Facilitating the process will become a trial for LEI and small team to work transparently, leaving aside other interests tow work towards fair and sustainable forest management. The process should be publicly monitored by various stakeholders or the institution’s credibility will be at risk.
  3. Field Work. Previous field assessments were not conducted transparently, as field teams did not present their findings to public meetings, and independent groups could not monitor the process. The field trial which is to be conducted in August 2006 can be structured to regain the lost trust by transparent approaches from the trial team and public presentations of their findings. Support to conduct independent verification from various stakeholders is also highly required.
  4. Two buried criteria. FPIC and Determination of Forest Zone (Penetapan Kawasan Hutan) must be revitalized within principles 1 - 4 re-established as in previous versions, to give protection to communities over forestry business seeking to operate in their neighborhood. Criteria 4 must be able to accommodate policy change such as the ratification of the covenants of EKOSOB and SIPOL in Indonesian law in early 2006. It is proper to change the effort from a downgrading to an upgrading of criteria and indicators and rearrange its means of verification.
  5. Authentication behind Paper Legality. In the effort to conduct field verification, a more credible means of verification is needed beyond administrative verification. Field verification should examine legality through process notes, interviews with key informants and other forms of cross checking. Means of verification of administrative credentials could be categorized as initial administrative means of verification to explore wider verification process through cross check process.

WALHI believes that if the abovementioned notes are considered and develop publicly, seriously and consistently by the small team, then fair and sustainable forest management can be achieved and will provide benefits to as many as possible, primarily to people living in and around the forest.

Further information:
Rully Syumanda, +6281319966998,

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