How a VPA can increase legislative and institutional clarity
Why clarity matters
Legislative and institutional clarity means that legal requirements and institutional roles and responsibilities are clear and consistent. Clarity is an important aspect of good forest governance as it enables stakeholders to understand rights, responsibilities and obligations.
Clarity in the legal framework can, for instance, enable countries to adopt simple and consistent regulatory tools, which stakeholders can easily understand. Such clarity depends on a degree of transparency and provides the foundation for accountability.
In contrast, the absence of clarity in a country's forest sector can create social, economic and/or environmental problems. Problems arise, for example, if it is unclear:
- Who has rights to land or trees
- What is legal timber and what is not
- Which of several conflicting laws apply in a given circumstance
- What timber companies are obligated to provide to local communities
- Which institutions are responsible for different aspects of forest governance
Clarity is therefore directly relevant to Voluntary Partnership Agreements (VPAs) and their timber legality assurance systems.
How VPAs can increase clarity
A significant component of a VPA process is a multistakeholder dialogue to agree on what constitutes legal timber. This dialogue involves stakeholders in reviewing existing laws and regulations in a timber-exporting country to identify which to apply in the VPA legality definition. The dialogue provides opportunities for forest stakeholders to identify imprecise and inconsistent legal requirements and/or institutional arrangements.
For a dialogue to take place, stakeholders first need to be able to access and understand existing laws. Stakeholders can then discuss laws, first within their stakeholder groups and then with other stakeholder groups, to highlight inconsistencies and propose solutions. The process to improve clarity, therefore, depends on both participation and a degree of transparency.
To date, multistakeholder deliberations on legality definitions in VPA processes have identified conflicting:
- Legal interpretations of timber felling procedures
- Rules for allocating contracts, with one rule calling for competitive bidding and another rule allowing ministerial discretion
- Responsibilities among government agencies for environmental impact assessments
The process of defining legality often reveals such inconsistencies, contradictions and/or overlaps in a country's laws and regulations. The process can, therefore, identify the legal reforms that are necessary to develop a legality definition that satisfies all stakeholders. For example, VPAs have identified legal and/or regulatory reforms that are required to recognise customary rights, community forests and domestic markets.
In addition to improving legal clarity, a VPA process also improves institutional clarity. The VPA annexes that describe a timber legality assurance system, joint implementation committee, FLEGT licences, independent audit and public information all make clear who is responsible for what. Clear roles and responsibilities are the basis for improved accountability in the forest sector.
Example. Legal clarity in Indonesia
In Indonesia, more than 900 laws and regulations apply in some way to the forest sector. As well as the number of laws, the laws are confusing and at times incoherent.
In 2003, four years before VPA negotiations started, civil society organisations began a process to clarify forest legislation and develop a legality definition. Participation by government and industry in this process increased after VPA negotiations began in 2007. By the end of 2008, a multistakeholder group had presented the government with a legality definition and a proposal for a timber legality assurance system. Within six months, the government and stakeholders had revised the proposals and incorporated them in new legislation.
In place of the hundreds of existing laws, stakeholders had identified a subset of laws and regulations that together provided a legality definition that met their interests. Under the VPA, Indonesia has a single chain of custody standard and legality definitions for seven types of forest land.
The VPA process has made legality in the forest sector much clearer in Indonesia. The VPA provides indicators and verification measures that auditors can use to assess legality. The new legality definitions make it easier for the police to enforce the law and for the justice system to prosecute illegal loggers. The private sector has largely welcomed the new definitions.
Since 2009, Indonesia's timber legality assurance system has been subject to a series of multistakeholder reviews. Reviews consider implementation lessons and the initial results of the EU-Indonesia joint assessment of the system. The reviews have resulted in changes to the 2009 legislation, including revisions that reduce the burden of compliance on small-scale producers of low-risk timber.