Submission to the National Assembly

GUYANA

COUNTY OF DEMERARA

In the matter of the WITHDRAWAL of
Bill number 21 of 2007:
Forest Bill 2007

SUBMISSION

TO:
The Clerk of Committee
Special Select Committee of the National Assembly
(Forests Bill 2007 - Bill No. 21 of 2007)
Committees Division
Parliament Office
Public Buildings
Brickdam
Georgetown.

THE HUMBLE SUBMISSION of we the undersigned citizens of Guyana who
respectfully request the withdrawal of Bill Number 21 of 2007, Forest
Bill 2007, is set out in three parts. Part 1 lists some observations on
individual sections in the Forest Bill 2007, with cross-reference to
the 6 February 2004 version. It notes a number of the sections and
clauses of the Draft Forests Act 2004 which have been excised from the
Forest Bill 2007 without explanation and justification for the
deliberate removal of some, and insertion of new clauses and sections
which, taken together, weaken the Forest Bill 2007. Part 2 sets out 15
general principles which we believe should guide the revision of the
Forests Act 1953 and all legislation. Part 3 lists some examples of the
many errors in Bill No. 21 of 2007, by way of illustrating the thorough
overhaul needed on this Forest Bill 2007 and which should now be
undertaken by competent technical persons.

The Special Select Committee of the National Assembly should ensure
that the key natural resources of our country, on which the future
sustainable development of Guyana hinges, are managed as required by
Article 36 in the National Constitution 1980 and so as to maximize the
net social benefit.

The purpose of the Submission (Parliamentary Standing Order 94 (13)(a)

This Submission calls for a complete overhaul of the Forest Bill number
21 of 2007 in order to:

a. restore Ministerial / National Assembly oversight
of the Guyana Forestry Commission which is entrusted with the
stewardship of the national public forest assets to be managed
according to Article 36 of the National Constitution 1980. It is
contrary to best international practice for a civil service
organization to have powers to allocate to others substantial areas of
national forest for decades without provision for democratic review of
the appropriateness of such allocations and the effectiveness and
efficiency of the management of such allocated forest. At the least,
State Forest authorisations of all kinds should be given under the
hand of the Minister.

b. correct those features in legal drafting which
weaken the law in comparison with previous draft.

c. correct those features in legal drafting which are
contrary to best international practice.



Background

More than half a century has passed since the 1953 Forests Act was
drawn up by the lawyer-forester W.A. Gordon to address the particular
problems of that era – primarily to create the classification of Crown
Forests (now State Forests), harmonise forestry-related legislation
scattered throughout other Acts with those in the new Act, de-link the
conservation and administration of forests from the revenue collection
focus of the Department of Lands and Mines, and create a Forest
Department.

The process of revising that 1953 Forests Act underwent several
iterations from the mid-1990s. The final publicly-available draft
Forests Act 2004 benefited from the vision for the forestry sector set
out in the National Development Strategy 2000-2010 and from broad
stakeholder consultations and international best practice at that time.
However, the legislative revisions of 1995-6 are now insufficient to
adjust to the newer international imperatives concerning trade in
tropical timbers and the need for independently verifiable proof of
legal and sustainable production.


The special hazard of Forest Bill 2007
Unlike the Draft Forests Act 2004, there are few safeguards in the
draft Forest Bill 2007 against a bureaucracy captured by special
interests. This change, a reflection of the exceptional profits to be
made from expanded Asian demand for raw materials especially in the
booming economies of China and India, deprives Guyana of the
opportunities to secure for our country a greater share in those
profits and without detriment to our long-term productivity. To make
that happen, we must ensure that the bureaucracy does not take to
itself discretionary powers without public oversight. Best
international practice is indeed in quite the opposite direction: to
capture excess rent through transparently-set charges, to reduce
discretion from bureaucrats, to insist on published criteria for
exceptional cases, and to increase public oversight especially through
parliamentary processes. Public notice has been reduced and highly
circumscribed. The draft Forest Bill 2007 was circulated only to the
Members of the National Assembly, on 2 August 2007 and only in printed
format. The draft Forest Bill 2007 and the ‘Final GFC Bill – Nov 2006’
– were only placed on the GFC website sometime after 15 August 2007.
The Draft Forests Act 2004 was more widely available in print and
electronic formats.

We note the simplicity and clarity of the Forests Act 1953 in
comparison with the convoluted and unclear wording in the Forest Bill
2007. This lack of clarity alone should cause this Bill to be sent
back for a thorough re-drafting.

We respectfully remind you of the historic responsibility before you to
review the Forest Bill 2007 section by section, clause by clause,
against the Draft Forests Act 2004, against the backdrop of the
changing circumstances of the forestry sector in our country today. We
urge you to be mindful of the urgent need to safeguard our sovereignty,
as well as seeking to ensure good governance, transparency in decision
making and accountability for decisions in all public institutions
charged with the administration of national patrimony. You may wish to
take note of a recent World Bank caution with respect to the award of
forest concessions, “Where the concession in effect transfers a public
property right into private hands, there may be traditional or
constitutional reasons to require higher-level approval, such as action
by the legislature, the head of government, or the head of state”
(Forest Law and Sustainable Development: addressing contemporary
challenges through legal reform. Law, Justice, and Development Series.
2007, p. 57. Washington D.C.: The World Bank).

We urge you to examine the systematic culling of all participatory
processes, oversight and best practice from the Draft Forests Act 2004,
including but not limited to the following fundamental revisions:

Part 1
Some observations on individual sections in the Forest Bill 2007, with
cross-reference to the 6 February 2004 version

1.1 Vesting of wide discretion and monopoly power in “the Commission”

1.1.1 There are over a dozen references in the Draft Forests Act 2004
to the Board of Directors of the Guyana Forestry Commission (GFC) and
none in the Forest Bill 2007. In its place, broad discretionary powers
are vested exclusively in the “Commission”. . Placing limits on a
discretionary power is a trend in modern legislation, aimed at making
public officers more accountable. The Forest Bill 2007 transfers and
enlarges broad powers to the “Commission” without criteria for their
use. There is no reason why the GFC should have any discretion when no
test criteria are proposed.

1.1.2 The over 30 references to the Minister in the Draft Forests Act
2004 have been reduced to fewer than five, thereby eliminating even the
nominal control by elected Ministers.

1.1.3 The practical effect of this Bill depends very much upon the
nature of the forest regulations. It is unusual for the Bill to be
presented for parliamentary consideration without the draft regulations
being available at the same time. This suggests that the National
Assembly’s Select Committee on Natural Resources should insist upon the
draft regulations being made available from the start of any review by
the Select Committee.


1.1.4 The procedures for competitive bidding for a forest concession
set out in 16 (6) of the Draft Forests Act 2004 have been neutered.
Section 8 of the Forest Bill 2007 vests the power to grant or renew
large-scale concessions in the 'Commission'; power which is now held by
the Minister of Forestry. This means that the issuing of large-scale
concessions (the former TSAs and WCLs) is now under sole GFC (civil
service) control; with no input from Parliament or the more broadly
constituted Government. Such Parliamentary process is usual when
concessions are long-term and/or large-scale. In this case, long-term
means up to 40 years, and large-scale means over 8,000 hectares. Such
resources are tremendously valuable, including as collateral for bank
loans, and so should be subject to political oversight, not just civil
service administrative procedure, especially when the supervision
prescribed in this draft Forest Bill 2007 is undemanding.

1.1.5 The provisions for indexation against inflation of volume charges
and levies on forest produce and administrative fees set out in s.
50(1) and (2) of the Draft Forests Act 2004 have been excised, with the
exception of Schedule 1 – Penalties for Offences – and there is no
provision for adjusting charges affected by currency movements. The
charging of interest on arrears (s. 51) of the Draft Forests Act 2004
has been replaced by Section 74 of Forests Bill 2007. The latter deals
only with the charging of interest on fees due to the Commission, and
not to fees due to the Consolidated Fund which was in the 2004 version.


1.1.6 Guyana has traditionally charged very low royalty rates for
timber extracted from its natural forests. All, or almost all,
consultancy reports on Guyana’s forest revenues advocate that there
should be a much simplified system and that the intrinsic rent should
be captured for central government Consolidated Fund. The major charge
in State Forest authorisations should be that in section 80 (1) (e),
the area concession rental, to be paid directly into the Consolidated
Fund. The justification for royalty (section 80 (1) (d)) is weak. The
proposal to pass this weakly justified charge to the Consolidated Fund
and to allow the GFC to retain all the other complex maze of charges is
contrary to repeated recommendations and to best practice, and should
not be supported in the Forest Bill 2007. Fees for all applications
under the Bill are dealt with in clause 80 – but are left to be
determined by the Minister as components of the Forest Regulations
which should be presented to the National Assembly in parallel with
this Forest Bill 2007; see 1.1.3 above. The application fee of US
$20,000 for an Exploratory Permit (in 16 (2) of the Draft Forests Act
2004) has been removed.

1.1.7 Discretionary power is granted in s. 13 (2) of the draft Forest
Bill 2007 to the Commission to waive a security bond; such a bond
provides the State with financial cover against environmental damage
and non-payment of charges, and was spelled out in s. 26 of the draft
Forests Act 2004. There should be no waiver.


1.2 Restriction of activities / Amerindian customary rights in State
Forests
1.2.1 Section 5 (2) (e) – introduces definitions which are
inappropriate in forest legislation and should be dealt with, if at
all, under Amerindian legislation. Consequently, sub-section (3)
should also be deleted, and anyway is not appropriate in forest
legislation. Definitions concerning Amerindians should refer to the
Amerindian Lands Commission Act 1966 or the Amerindian Act 2006, or to
international conventions concerning indigenous and traditional
peoples. Section 5. (2)(e) in the Forest Bill 2007 permits the granting
of a concession on claimed Amerindian land, thereby removing the
safeguard provided in the Forests (Amendment) (Exploratory Permits) Act
1997. The saving of Amerindian customary rights, set out in Clause
17(3) of the Draft Forests Act 2004 appears to have been excised.

1.2.2 Section 5. (2)(e) amounts to a saving of traditional Amerindian
rights in State forests, but there are two objectionable features to
it:

First, only rights, etc. held immediately before the coming into force
of the legislation will be saved. This freezes traditional rights at a
particular date, whereas the customs, practices and traditions of any
community of people are not static. If indigenous peoples were not able
to evolve and adapt to changing circumstances then they would have long
since become extinct. The restriction in this clause denies them that
freedom to adapt.

Second, only rights, etc. that are “exercised or performed sustainably
in accordance with the spiritual relationship of the group with the
land” are saved under this provision. Best practice, as in Australia
and Canada, makes broader provision.


1.3 General saving of Amerindian rights – omitted
Clause 63 in the 2004 draft Forests Act has not been reproduced in the
draft Forest Bill 2007. That clause provided:
“63(1) For the purposes of this Act, all lands in State forests
occupied or used by Amerindian communities and all land necessary for
the quiet enjoyment by the Amerindians of any Amerindian settlement,
are deemed to be lawfully occupied by them.
(2) Nothing in this Act shall be construed to prejudice, alter, or
affect any right or privilege heretofore legally possessed, exercised
or enjoyed by any Amerindian in Guyana.”

This savings clause, in one form or another, has been in natural
resources legislation in Guyana from since the mid-nineteenth century.
The 2004 draft Forests Act, based on the 1989 Mining Act provision, is
strongly worded and could be construed as saving traditional rights
even in granted State forests.

Although clause 5(2)(e) of the draft Forest Bill 2007 saves traditional
rights in State forests, the omission of a clause comparable to 63(2)
set out above means that there is nothing to prevent the State from
issuing forest concessions on untitled Amerindian lands. The avoidance
of State Forest Exploratory Permits being issued over land subject to
Amerindian land claims has been omitted from the Forest Bill 2007, an
omission potentially conflicting with the Amerindian Lands Commission
Act 1966.

Further, although the Amerindian Act 2006 saves traditional Amerindian
rights in State lands/forests, this is expressly confined to the
provisions of that Act. Finally, the omission of any such general
savings clause means that the provisions authorizing the issue of a
forest concession will probably operate to terminate pre-existing
rights over the area comprising the grant, at least in relation to
obtaining forest produce.

Guyana is unusual in not having a formal settlement procedure
associated with government attempts to declare public land as State
Forest or an area protected for conservation of (forest) habitat or
biodiversity. In the absence of integrated land use planning, as
recommended in the National Development Strategy 2001-2010, such
declarations can appear arbitrary and unjust. There are ample and
detailed descriptions in the technical literature on the operation of
long-tested reservation and settlement processes, which should be built
into the revised Forest Bill. That should help to clarify customs,
privileges and rights associated with previous and current use of
natural resources. It could also provide the equivalent of a
roundtable for considering the increasing demands on natural resources,
and the conflicts which arise from increasing demographic pressure.

1.4 Rights of passage over public lands
Section 5 (1) (a) – Amerindians have rights of passage over public
lands, and anyone can use a road on public land if there is no trespass
(causing damage; see the Public Lands (Private Roads) Act, cap.62:03).
These rights should be recognised in this Bill. It is unclear why
there is not a general permission for any person to enter State Forest
as a publicly owned asset, provided that such entry does not constitute
trespass (that is, no damage is caused).


1.5 Private trading of public forest assets – s. 6
Clause 6. (1) among others in the Forest Bill 2007 could lead to the
legalization of the current illegal trading of forest concessions,
instead of requiring the GFC to develop and implement a Strategic Plan
for concession allocation and recision before advertising new or repeat
areas (National Forest Policy of October 1997 (section III B 1 b) and
the National Forest Plan of February 2001 (section NFP320).

Given the present illegal trading of concessions, which has now
resulted in the concentration of the best stocked and the lion’s share
of State forests under the control of a few foreign companies, the
Forests Act should limit the transferability of concessions. The draft
Forest Bill 2007 does the opposite.


1.6 Grant/renewal of larger concessions – s. 8
The Commission is empowered to renew long-term large-scale forest
concessions in spite of their non-compliance with the terms of the
concession award (Section 6.(8)). This is predicated upon the approval
of a forest management plan and an annual operations plan for the
concession area sought. The rest of Forest Bill 2007 is entirely silent
as to substance or procedure applying to this requirement.

1.7 Exploratory permit – s. 9
The safeguards set out in the Forests (Amendment) (Exploratory Permits)
Act 1997 have been rendered useless as a block on piratical logging.
Clauses 9. (1), 9.(2)(b) among others in the Forest Bill 2007 allows
commercial logging during the period of an exploratory award (SFEP) so
as to recover a proportion of the investors' application fee and other
non-capital costs associated with gaining and operating the SFEP. As no
criteria are given, the investor can inflate costs to the point at
which the SFEP becomes indistinguishable from a Timber Sales Agreement.
Section 9 (3) (a) – should read “invite applications to bid for an
exploratory permit . . .”. It is contrary to the intentions of the
SFEP that it should be awarded administratively to a single applicant.
This suggests an intention to evade wide advertisement and competitive
bidding, entirely negating the intentions behind SFEPs. Section 9 (7)
is redundant because all SFEPs should be subject to multiple bids.
Administrative negotiation is absolutely contrary to best international
practice, because it constitutes a major entry point for corrupt
practices.

1.8 Transfer of permits, concessions and licences – s. 15 and 16
This section needs revision to take account of the rampant illegal
sub-contracting of concessions which brings no economic or social
benefit to Guyana. It is unclear why the wording of section 16 is so
convoluted compared with the much simpler wording in section 15 in the
February 2004 version. What is important is the prevention of rentier
behaviour (sub-letting) which negates the principle of open tenders and
bidding for rights to access publicly-owned assets. This
under-the-table consolidation of public assets is nowhere sanctioned in
law or policy in Guyana.

1.9 Community Forest Management Agreement (CFMA) – s. 11
What is striking about this clause is its obfuscation. It omits any
mention of rights to utilize forest produce in community forests, but
the substituted language does not spell out exactly what would be
permitted therein. Under sub-clause (2) it is provided (guardedly) that
a CFMA may help communities “benefit” from local forests but there is
no indication of how such benefits will come about. That some kind of
commercial activity is contemplated is clear because of the rest of the
provision that speaks of economic development and income generation.

This clause is also unconstitutional, at least insofar as it sanctions
the uncompensated appropriation of untitled Amerindian lands. Under
sub-clause (4) persons “having strong traditional ties to use of the
forest” must be given “a free and fair opportunity to join…” the group.
Since this formulation captures Amerindians who live on untitled lands
and possess traditional rights as recognised under the common law, the
law must provide for consultation with them, and in the event that they
(the Amerindians) do not wish to join the group, then the forest can
only be granted to third parties if said Amerindians are compensated
for the loss of their traditional rights.

The draft must therefore specify a procedure consistent with the
Constitution whereby persons fitting the description in 11(4) may be
promptly and adequately compensated if they withhold their consent –
which it fails to do [see recommendation for a formal settlement
procedure in 1.3 above].

1.10 Conservation on private lands – s. 31
What is proposed here is effectively expropriation of private property
without prior independently-chaired public inquiry into the
justification. Much of the reasoning given in sub-section (2) pertains
to the EPA, not to the GFC. It would be more appropriate to manage
conservation on private land through the in-draft legislation on the
Guyana Protected Area System. It is not clear whether the provision
requiring payment of compensation [sub-clause (6)] meets the
constitutional standard. In this respect the Constitutional provision
as amended in 2003 waters down the 1980 version, but even in its
attenuated form the standard does not seem to be met.

Under Article 142 of the Constitution as amended any law providing for
expropriation must require the “prompt payment of adequate
compensation”, but Forest Bill 2007 (s. 31) merely requires the payment
to the owner and lawful occupier “reasonable” compensation. These seem
to impose different standards (i.e., no mention at all of promptness –
an issue in expropriation cases in the Caribbean; and reasonableness
may be judged from a wider variety of considerations than adequacy).

Also, is a declaration under this provision intended to operate
indefinitely?

1.11 Code of Practice – s. 35
Any code of practice to be adopted will be an important document – it
will seek to regulate forest operations, breach of the code being a
criminal offence. This is a good thing, but to what extent will
stakeholders and rights-holders be able to contribute meaningfully to
the content of any such code of practice?

In answering this question, one is hampered by the guarded language of
the provision. 35(2)(a)(ii) merely provides that the Minister shall
notify the public of the “purport” of the proposed code and shall
receive written submissions thereafter. Written submissions are limited
to three aspects: the fact that a proposed code has been submitted to
the Minister, the purport of the proposed code and the location where
the proposed code may be inspected [see 35(2)(c)].

“Purport” means “purpose” or “intention” – this is not the same as
contents. Therefore on a very strict interpretation, does this
provision impose an obligation on the government to receive submissions
on the contents of the Code, as opposed to its mere intention or
purpose?

Semantics aside, and assuming that people are allowed to make
submissions on content, there is still no real obligation on the
government to take on board any comments so received. The government
has complete control over what goes into the Code – the GFC comes up
with it, they must “invite and receive” written submissions but do NOT
necessarily have to hold public hearings thereon, and thereafter
consultation is with the Minister. Nowhere in this is there a process
whereby non-governmental entities or persons can have a more meaningful
input. At the end of the day, all submissions can be rejected (i.e.,
consultation does not equal acceptance) for as the provision makes
clear, the Minister may either (a) adopt the code as is, (b) adopt it
with changes or (c) reject it.
Finally, although the Code is subject to negative resolution in
Parliament, in a situation of majority rule that is no protection.

And by the way, what happens if the Minister decides to reject the
Code? The draft is completely silent on this point – will it be subject
to further consultation or what?

1.12 Quality control – s. 42
Note that in coming up with guidelines by which timber is to be graded
and marked, the GFC may “exempt any class of persons, activities or
land”. [42(4)(c)]. This is yet another instance of discretionary powers
which do not spell out the reason for their existence. The provision
itself should give reasons defining the Commission’s power to make
exemptions.

1.13 Transfer pricing – s. 45
It is unclear how a prescribed body would determine “true market
value”. This section appears to be unwarranted government interference
in normal commercial practice, and is not in accordance with best
international practice. The performance of the Forest Products
Marketing Council (FPMC) so far suggests that it would be incompetent
in any such role. It is the responsibility of the Customs
Administration of the Guyana Revenue Authority to detect and prevent
under-invoicing, mis-declaration and under-declaration of export goods.
It is unclear why the GFC should seek a parallel role.

1.14 Forest Officer – s. 53
Under 53(4)(a) a forest officer may “at any time, after being afforded
natural justice, be removed from office at the discretion of the
Commissioner”.

This provision is either poorly drafted or reflects retrograde policy.
Perhaps the Commissioner’s discretion to remove is constrained by the
results of the hearing, but the phrasing of the provision does not
necessarily suggest this. In any event, since Guyana already has
legislation governing employment and labour why is the Commissioner of
Forests being given a discretionary power such as this?

1.15 Powers to enter premises and conduct searches – ss. 54 et. seq.
Note all the powers to enter and search without a warrant. Since the
ammunition and narcotic offences of the late 1980s, this has been the
trend of legislation in Guyana – to whittle away at established common
law protections.

Allowing the police to stop and search individuals and vehicles or to
enter and search premises merely on reasonable suspicion opens the door
to abuse; in this draft Forest Bill 2007 the power is extended to
forest officers. This is an unjustifiable assault on civil liberties.


1.16 Powers to require answers – s. 61
Under this provision suspects must answer questions and even give a
signed statement. Do not be fooled by 61(2) since if one refuses to
answer under this apparent exception then such a course will impact
negatively on the suspect (i.e., an indication of guilt). This is
reinforced by the failure to make any such refusal to answer
inadmissible at trial.

This is a retrograde provision. However tough a stance towards criminal
activity it may encompass, it is against the trend in most civilized
countries where the right to silence (which includes the right to
remain silent during pre-trial questioning) forms a core component of
fair criminal investigations and a fair trial.

Given our oppressive history of policy brutality and forced
confessions, we should not be creating these powers. Let the State do
its investigative work and not invade the liberty of the subject.


1.17 Orders to desist – s. 62
Superficially read, this provision seems to operate as a substitute for
trial. On the mere suspicion of having committed an offence, a forest
officer can order a suspect to cease offending. Failure to abide by any
order made is an offence [see s. 68(a)(ix)]. But what happens to
persons who have rights under this or any other piece of legislation?
What procedure exists for establishing one’s legitimacy? How long does
an order made under this provision last? None of these issues is
addressed in this clause. In other words, what this provision means is
that persons may be deprived of legal rights upon the summary decision
of a State official, which is unlawful and unconstitutional.

Any order to desist should only be issued after an investigation is
conducted, and should in fact be issued by a neutral entity
(magistrate, not forest officer).

1.18 Exemptions – s. 76
Another discretionary power: i.e, it gives the government power to
create special regimes outside of the protections conferred by this
Act.


1.19 Net forest revenue to the Consolidated Fund – s. 80
Clauses 80 (1)(d) and 80 (3) provides for only the royalties from small
concessions, the current State Forest Permissions, to be paid into the
Consolidated Fund. All the other forest charges would remain with the
GFC. This is just the opposite of repeated recommendations that the
GFC should have transparent and simplified charges, with the surplus,
net of operational expenses, to be paid into the Consolidated Fund.
The long-term GFC failure to pass over its surplus to the Ministry of
Finance provides an indication of the future fate of national wealth.


1.20 Section 81 – the obligation on the Minister to act positively
requires the words “may make regulations” to “shall make regulations”.
No regulation, qualification or restriction, or qualification or
restriction in the regulations, shall change the meaning or intention
in the Act itself. In particular, the regulations must prevent
under-the-table transfers in effective managerial or financial control
of a State Forest authorisation. A holder becoming technically or
financially unable or unwilling to manage the authorised area in
accordance with the laws, regulations and specific terms of the
authorisation must surrender the authorisation forthwith, and that area
shall be returned to the strategic reserve of State Forest for
competitive allocation in accordance with the concession strategy
required by the National Forestry Policy 1997 and the National Forest
Plan 2001. This is to control the widespread abuse of the concession
system which the GFC has been unwilling or unable to control during the
last decade.



Part 2 – General principles that should guide the legislative process

2.1 Formulation of legislation by a participative process open to all
stakeholders (legitimately interested parties, not restricted to
primary stakeholders whose economic interests might be affected
positively or negatively by the legislation). The concentration of
previous discussions on bilateral debate between the Forest Products
Association (FPA) and the Guyana Forestry Commission (GFC), without an
independent chairman or professional facilitator, lengthened the
consultation period into years. As a result, the Forest Bill 2007 has
failed to adjust to the newer international imperatives concerning
trade in tropical timbers and the need for independently verifiable
proof of legal and sustainable production; these features were little
discussed at the time of the original formulation of the legislative
revision of 1995-6.

2.2 Given the geographic dispersion of forest-related stakeholders, a
concentration of consultation in Georgetown and restricted to industry
does not conform to best international practice.

2.3 Use of transparent process, with all relevant documents being
available on request to all stakeholders, perhaps for a nominal
administrative charge to avoid waste. The only justifications for
restriction of documents would be national security and commercial
confidentiality, with criteria defined and published openly prior to
the start of the legislative process.

2.4 During the consultations, participants treat each other
respectfully and have equal voices. Government agencies do not
over-rule other participants and do not have weighted votes. The
setting of some ground rules may be appropriate – for example, outside
the consultations, participants do not attribute views or statements
made during the consultations to named individuals or organisations.

2.5 Legislation and regulations are drafted with clarity of language,
using the simplest possible terms which are compatible with legal
specificity. The complex and at times ungrammatical language of the
Forest Bill 2007 needs to be thoroughly overhauled to improve clarity.

2.6 Technical wording and guidance can be drawn from FAO Forestry
Papers, the FAO Development Law Service and recent World Bank
documents, whose use should be conducive to greater clarity.

2.7 Harmonisation with other Laws of Guyana, avoiding duplication,
avoiding adding definitions unnecessarily – for example, on Amerindian
rights, privileges and customs – and removal of inconsistencies between
laws. There would be obvious advantages in harmonising forestry and
mining laws, especially as regards administration of concessions.

2.8 Providing for greater integration of laws, regulations and
procedures, especially in relation to integrated land use planning, an
integrated hinterland road network and the rehabilitation of a publicly
accessible integrated geographic information system – GINRIS, the
Guyana Integrated Natural Resources Information System, pioneered in
the late 1990s. Given the loss of maps and aerial photographs at the
GFC Head Office through neglect and flooding, the law should provide
for such maps (with associated textual descriptions) and GIS
(geographical information system) to be duplicated at regular and
frequent intervals in the National Archive. Public access and use
should be reserved only if explicit tests of national security or
commercial confidentiality can be proved; criteria should be built into
the law. Bearing in mind the increasing sophistication of Google Earth
and the international accessibility of such imagery, it would be
pointless for the government to seek to prevent access to what can be
obtained internationally. In particular, all State Forest boundary and
block maps, and all concession boundary maps, should be publicly
available. Such access will in any case be required for independent
forest monitoring if Guyana should seek a voluntary partnership
agreement with the European Union (EU) trading bloc for continued
exports of timber from Guyana into EU countries; under the EU Forest
Law Enforcement, Governance and Trade (FLEGT) process.

2.9 In best international practice, administrative discretion in law is
minimised. Where discretion is the alternative to prescriptions
covering a wide range of situations, criteria for the use of that
discretion should be included in the law. These criteria should be
explicit, objective and transparent. There should also be a public
appeals process associated with each instance of discretion in the law.
An appeals panel or tribunal should include at least two people not
employees of or associated with the national forest service;
association by membership of the Board of Directors or by employment as
an external consultant within the last two years would be examples of
disqualification from participation in such a panel or committee.
These provisions should apply to all levels of discretion, including
the Minister of Forestry, the Minister for Forestry, and the Guyana
Forestry Commission.

2.10 There are numerous instances in the draft Forest Bill 2007 which
state that “the Commission may . . .” without providing any reason why
the action should be conditional. Without explanation of the need for
conditionality, and without associated criteria for the application of
discretion, the word “may” should be replaced by “shall”. In other
words, the Commission must deliver the action without delay or
equivocation. Examples are in relation to the provision of various
kinds of State Forest authorisations. It is similarly wrong to allow
the GFC to apply “any conditions it thinks fit” without explaining why
such discretion is necessary or what transparent and objective criteria
will be applied.

2.11 Guyana is unusual in not having a formal settlement procedure
associated with government attempts to declare public land as State
Forest or an area protected for conservation of (forest) habitat or
biodiversity. In the absence of integrated land use planning, such
declarations can appear arbitrary and unjust. There are ample and
detailed descriptions in the technical literature on the operation of
long-tested reservation and settlement processes, which should be built
into the revised Forest Bill. That should help to clarify customs,
privileges and rights associated with previous and current use of
natural resources. It could also provide the equivalent of a
roundtable for considering the increasing demands on natural resources,
and the conflicts which arise from demographically increasing
Amerindian communities but rather static methods of agricultural
production, and the so far unresolved conflicts between mining and
other forms of land use, including forestry. The forest law should
have regard to the provisions in the National Constitution for
compensation for expropriated land. [this paragraph expands 1.3]

2.12 The revised forest law should include wording which responds to
forest provisions in the UN Framework Convention for the Conservation
of Biological Diversity (CBD, which Guyana has signed/ratified) and the
Convention on International Trade in Endangered Species (CITES), where
such provisions are not already found in the Environmental Protection
Act of 1996.

2.13 “There must be clear tests of evidence (i.e. criteria and
indicators) to determine compliance with each law or regulation . . .
There should be practical ways to carry out such tests in the field”
(from the European Commission’s FLEGT Briefing Note 02, series 2007
“What is legal timber?”).

2.14 Generally, provisions for extension or renewal of State Forest
authorisations and all other kinds of permits are poorly described. As
noted in 2.10 above, the GFC should have no right to impose
unrestricted conditions. Monitoring of performance should be standard
before considering extensions or renewals. The management charge
(section 80 (1) (c)) should be sufficient for and applied to such
monitoring.

2.15 The Select Committee should benefit from a review of the
publication issued by Forest Trends in January 2008 titled ‘Investment
in the Liberian Forest Sector: a road map to legal forest operations in
Liberia’ (url = http://www.forest-trends.org/) which sets out a series
of simple best practice measures for good forest governance, and lists
URLs for documents including Liberia’s Forest Regulations and Public
Procurement and Concessions Act. Liberia has been assisted
internationally to incorporate best practices in law and regulation,
and has incorporated several lessons relevant to good governance in
procurement (concessions), in transparency of procedures and
communications, and in anti-corruption measures. This set of
legislation is notably simpler in wording than the convoluted phrasing
of the Forest Bill 2007.

Part 3
Some observations on individual sections in the Forest Bill 2007, with
cross-reference to the 6 February 2004 version.

Section 2 – interpretation

This section is poorly arranged. The suffix “State Forest” has been
used to separate items which should be grouped together. For example,
it does not make sense to have “forest concession agreement” in one
place under F and “State Forest authorisation” in another place under
S.

Compliance history – if there is no means of checking compliance
history from other countries, why mention “and elsewhere”? The
definition appears to include car parking offences and speeding
charges. Presumably the intention concerns criminal offences.

Forest – (b) (iii) should explicitly include the genetic resources.

Forest conservation operations – (b) should include habitat and
landscape features.

Forest produce – (c) includes (a) and (b), making (a) and (b)
redundant. Include genetic resources in this definition.

Kaieteur National Park – the date of the Act is missing.

Publicly notify and public notice – should include posting to websites
and, as appropriate for large-scale, long-term concessions, notices
published outside Guyana.

Sawpit – is not defined.

Sustainable forest management – the word “amenities” is undefined, and
should be substituted by terms defined previously.

Section 3 – declaration of State Forest

See general comment number 2.11 above. Guyana needs a conventional
reservation and settlement procedure, to replace this land-grabbing
intention.

Section 4 – purpose of Part 2

Should reference Article 36 in the National Constitution about the
management of Guyana’s natural resources.

Section 5 (1) (a) – Amerindians have rights of passage over public
lands, and anyone can use a road on public land if there is no trespass
(causing damage; see the Public Lands (Private Roads) Act, cap.62:03).
These rights should be recognised in this Bill. It is unclear why
there is not a general permission for any person to enter State Forest
as a publicly owned asset, provided that such entry does not constitute
trespass (that is, no damage is caused). This would be the equivalent
of the Scandinavian “right to roam”.

Section 5 (2) (e) – introduces definitions which are inappropriate in
forest legislation and should be dealt with, if at all, under
Amerindian legislation. Consequently, sub-section (3) should also be
deleted, and anyway is not appropriate in forest legislation.
Definitions concerning Amerindians should refer to the Amerindian Lands
Commission Act 1966 or the Amerindian Act 2006, or to international
conventions concerning indigenous and traditional peoples.

Section 6 (2) (d) – as loosely worded now, could allow a concession
holder to infringe the rights and degrade the resources held by another
concession holder.

Section 6 (3) – the words “even if” are presumably inserted because the
GFC has failed by 2007 to implement the National Forest Policy 1997 and
the National Forest Plan 2001 which require strategic planning for
allocation of concessions and which ought to assign priorities in use
such that conflicts between harvest and no-harvest operations are
avoided. The law should not provide excuses for performance failures
by the GFC.

Sections 6 (4) and (5), and 9 (5) – no criteria are given for the GFC
to carry out evaluations. “Every person” is meaningless in relation to
transnational corporate entities.

Section 6 (6) – it is inappropriate to set time limits in the law.
These should be in regulations. Moreover, it is wrong to prescribe
awards of national public assets to private enterprises without
provision for prescribed reviews and performance indicators at frequent
intervals – the 1993 concession policy requires the GFC to carry out
audits at frequencies of two years.

Sections 6 (7), and 10 (4), and 25 (3), and 46 (c), and 72 (6) –
delete the unqualified discretionary power of the GFC; see general
point number 2.10 above.

Section 6 (8) – no criteria are given to interpret “not substantially
complied with”. No examples are given of the special circumstances
which could be invoked. The Guyanese people are entitled to expect
that special care and transparent decision making will be applied to
the management of public assets such as natural resources.

Sections 7 (1) (a), and 9 (3) (a) and (b) – no description is given as
to what “public notice” means. Clearly, in relation to Foreign Direct
Investment (FDI) policy, public notice should include international
advertisement, as envisaged in 1996-2002 for the State Forest
Exploratory Permits (SFEP).

Sections 7 (2), and 9 (3) (b) – “at its offices” – means all GFC
stations all over the country, but no provision for overseas bidders?
Why should documents always be priced? Why should they not be free of
charge to interested parties, with the cost covered by the application
fees? The latter would be much simpler and cheaper to administer. Why
should the GFC determine which documents are relevant? – that should be
the judgement of the applicants, some of whom may need more information
than others. This is another example of attempts at arbitrary GFC
control over matters which it does not understand.

Section 8 (1) (b) – no definition of “duly constituted”.

Section 8 (2) – no provision for transitional arrangements, given that
few Timber Sales Agreement (TSA) holders currently comply with this
provision.

Sections 9 (1) and (2) (b) – the provision for recovery of costs by
commercial logging is entirely contrary to the intention of the State
Forest Exploratory Permits (SFEP) in 1995-7, and is incompatible with
the requirements of sections 6 (4) and (5) (b) “the person . . . has
the competence and resources to carry out the operations”. Moreover,
no criteria are given for determining what costs and expenses would be
allowable. Given that no forest management plan is required, the
exploratory operations could be indistinguishable from commercial
unsustainable logging.

Section 9 (3) (a) – should read “invite applications to bid for an
exploratory permit . . .”. It is contrary to the intentions of the
SFEP that it should be awarded administratively to a single applicant.
This suggests an intention to evade wide advertisement and competitive
bidding, entirely negating the intentions behind SFEPs. Section 9 (7)
is redundant because all SFEPs should be subject to multiple bids.
Administrative negotiation is absolutely contrary to best international
practice, as a major entry point for corrupt practices.

Section 9 (10) – applications for concessions by SFEP holders should be
subject to verified satisfactory completion of all the specified
activities required in an exploratory permit, for the whole area of the
SFEP. Partial completion in time or space should not be allowed; the
opportunities for abuse are quite evident.

Section 10 (1) - change “The Commission may . . . “ to “The Commission
shall . . .”; see general point number 2.10 above. There is no reason
why the GFC should have any discretion when no test criteria are
proposed. The GFC needs to think out more clearly which activities
could be carried out simultaneously in a forest and which require, by
their nature, exclusive use; see also sections 14 (1) (f) and (2). Is
hunting differentiated from wildlife capture, which is regulated by
another law? Provision for hunting in section 10 (1) (c) appears to be
incompatible with section 10 (2).

Section 11 (1) (a) – “registered community forestry organization” is
undefined.

Sections 11 (2) and (5) – sustainable management is incompatible with a
duration limited to two years. The absence of requirement for a forest
management plan appears to open a door for illegal logging

Section 11 (4) – “free and fair opportunity” is undefined.
Manipulation of associations of small-scale loggers by the GFC
indicates no empathy for community dynamics or support for the
community-benefitting business development of the associations. It is
questionable if the GFC has any right to pass judgement on these
associations per se. It would be preferable for the associations to be
treated like all other applicants for State Forest authorisations,
leaving business support services such as the Linden Economic
Advancement Project (LEAP) and the Trades Union Congress (TUC) to
advise on and support the development of the associations.
Compensation would be needed for Amerindians with claims over State
Forest who do not wish to join a community forestry organization.

Section 12 - change “The Commission may . . . “ to “The Commission
shall . . .”; see general point number 2.10 above. There is no reason
why the GFC should have any discretion when no test criteria are
proposed. This is a poorly conceived section of the Forest Bill 2007.
Unlike the scrutiny of applicants for concessions, no checks are
proposed on applicants for afforestation agreements, nor are
obligations imposed, nor time limits set, nor provision for planning or
monitoring, etc. There should be explicit prohibition on clear-felling
or burning of forest (as defined in section 2) in order to create or
maintain the specified plants.

Section 13 (1) - change “The Commission may require . . . “ to “The
Commission shall require . . .”; see general point number 2.10 above.
There is no reason why the GFC should have any discretion when no test
criteria are proposed. In best practice, all holders of State Forest
authorisations should deposit a security bond. Criteria for the size
of the bond should be stated. The provision for a waiver in section 13
(2) should be justified. What sort of “exceptional circumstances” does
the GFC have in mind? What are the criteria for assessing an
application for a waiver? As a general rule, waivers should not be
granted when the original rationale is so sound. As in other cases of
GFC discretion, there should be provision for appeal by the applicant
against a negative decision.

Section 14 (1) (d) – “land that is lawfully occupied” is not defined.
Terminology should be that already found in the land laws of Guyana.

Section 14 (2) – see section 10 (1) above.

Sections 15 and 16 – should have been placed earlier in the structure
of the law, grouping eligibility clauses together. It is unclear why
the wording of section 16 is so convoluted compared with the much
simpler wording in section 15 in the February 2004 version. What is
important is the prevention of rentier behaviour (sub-letting) which
negates the principle of open tenders and bidding for rights to access
publicly-owned assets. This under-the-table consolidation of public
assets is nowhere sanctioned in law or policy in Guyana. Section 16
should be entirely simplified and re-written; excepting sub-sections
(6) – (8).

Section 18 – it is against natural justice for a government agency
(other than a public security agency) to be allowed to interrupt on
suspicion alone the activities of a private enterprise. This section
needs to incorporate safeguards against sloppy or vindictive government
actions. Safeguards should include provision for adequate and prompt
compensation in the event of wrongful suspicions.

Section 18 (2) – it is unclear why holders of larger concessions should
be allowed to remedy or rectify, but holders of smaller concessions are
denied this opportunity.

Section 18 (3) – criteria should be given for this exercise in GFC
judgement.

Section 19 – there must be safeguards against inequitable amendments
and any changes which are or could be negative with respect to
sustainable forest management.

Section 21 (2) - change “The Commission may . . . “ to “The Commission
shall . . .”; see general point number 2.10 above. There is no reason
why the GFC should have any discretion when no test criteria are
proposed.

Section 22 (1) – should be expanded to cover genetic resources and
environmental services generally (including habitat protection and
carbon sequestration).

Section 23 – it is unclear why the EPA (or the GFC) should be allowed
to make long-term decisions affecting use of specific lands without a
public enquiry and settlement process. The discretionary provision at
sub-section (2) (d) should be replaced by an obligation. Only reasons
of national security should allow the government to operate with
administrative discretion in reserving land or other public resources.

Section 23 (3) – it should not be the GFC which decides which documents
should be made available; that would be for the affected stakeholders
to decide. Moreover, it should be for the EPA to make documents
available, not the GFC.

Sections 23 (5), and 30 (3), and 31 (4) – what is the purpose of these
sub-sections? Presumably no person should breach any properly
promulgated government order, so why include these sub-sections?

Section 25 (3) – administrative discretion should be replaced by
challengeable criteria, with an appeals process as mentioned above for
all cases of non-mandatory action by the GFC.

Section 29 (2) – compensation should be paid according to labour laws,
not at the discretion of the GFC.

Section 30 – the GFC must publish challengeable criteria under which a
tree protection order shall be made. Sub-section (1) (b) (ii) should
mention timber and roots.

Sections 30 (2), and 31 (3) – challengeable criteria for exemptions
should replace this blanket authority for GFC discretion.

Section 30 (5) – does not make sense and should be deleted.

Section 31 – what is proposed here is effectively expropriation of
private property without prior independently-chaired public inquiry
into the justification. Much of the reasoning given in sub-section (2)
pertains to the EPA, not to the GFC. It would be more appropriate to
manage conservation on private land through the in-draft legislation on
the Guyana Protected Areas System. The provisions in the National
Constitution for expropriation of land should be used or referenced,
especially with reference to sub-section (6)..

Section 32 – there is ample international experience of managing risks
of disease and pestilence. The dictatorial provisions in this section,
with no requirement for public justification, appeal, or compensation
for wrongful interference with private property, should be replaced by
more conventional wording.

Section 33 (3) – does not make sense and should be deleted.

Section 34 (1) – what are the relevant international legal obligations?
– spell them out.

Section 34 (2) (b) – why is Kaieteur National Park mentioned but not
Iwokrama?

Section 35 –clumsy wording which appears to go through the motions of
public consultation but avoids dealing with the substance of a code of
practice. A pointless exercise, as currently worded. Best and common
international practice is to develop any such code in an open,
participatory forum in which the GFC does not dominate. There should
be transparent and reliable use of the GFC website in the development
of any such code, its promotion and its revision. Field testing should
include several rounds, and a diversity of geographic locations; test
design should counter Georgetown bias. Monitoring of the utility and
effect of the code, and provision for revision, should be built into
the law.

Section 35 (6) (b) – a code of practice having such legal force would
need to be phrased quite differently from the guideline approach used
in the sometimes-available on the GFC website of the Code of Practice
for Timber Harvesting (second edition, November 2002).

Section 35 (9) – this sub-section appears to say that Regulations and
Orders have higher legal force than a Code of Practice. What does this
mean?

Section 36 (2) – no regulations are annexed or presented to the
legislature in parallel with this draft Forest Bill 2007, so the effect
of this sub-section is unclear and consequently may have no legal
effect? If eligibility for a removal permit is demonstrated, the GFC
shall issue such a permit, and that obligation on the GFC should be
included in sub-section (2).

Section 37 – congratulations to the GFC. This clear wording should be
copied in other countries.

Section 42 – the same objections to the framing of section 35 on codes
of practice apply equally to section 42 on timber grading

Section 43 – importing countries and enterprises may choose to certify
forest produce from Guyana, or may be required to do so by national or
international trading rules, over which the Guyana National Bureau of
Standards could have no influence. As written, this section is
unenforceable.

Section 43 (2) – no criteria are mentioned by which the GNBS or the GFC
could assess for accreditation a conformity assessment body. The GFC
has no direct experience of international standards, how they are
developed or operated, and should not seem to legislate on such a
matter without gaining knowledge about the subject.

Section 44 – if there is no relevant or usable GNBS standard then no
forest produce can be exported from Guyana? Does the GNBS have a
standard for timber logs?

Section 45 – it is unclear how a prescribed body would determine “true
market value”. This section appears to be unwarranted government
interference in normal commercial practice, and is not in accordance
with best international practice. The performance of the FPMC so far
suggests that it would be incompetent in any such role. It is the
responsibility of the Customs Administration of the Guyana Revenue
Authority to detect and prevent under-invoicing, mis-declaration and
under-declaration of export goods. It is unclear why the GFC should
seek a parallel role.

Sections 46 and 47 – as elsewhere in the draft Forest Bill 2007,
sections on eligibility and applicability should come at the beginning
of the relevant Parts, not scattered or, as here, at the end of a Part.

Section 48 – the wording should be checked for overlap, duplication or
contradiction with the revised GFC Act 2007. Article 13 of the
National Constitution, on open governance, implies that all government
records should be open to the public unless there are
constitutionally-approved reasons (such as national security or
commercial confidentiality) why the records should not be open-access.
This section does not conform to such principles and should be revised.
Such assess will be required in any internationally-acceptable legality
assurance scheme.

Section 49 – as for section 48. Previous sections of this Act do not
refer to “the Commissioner”, so that reference should be deleted from
section 49 (a).

Section 49 (c) – is it constitutional to include such a vague but
threatening obligation in a forest law?

Sections 50 (3), and 55 (2) (c), and 57 (d), and 58 (2) – an official
receipt should be issued to the holder for any document taken, copied
or otherwise reproduced, or any thing seized by a forest officer.

Section 51 – this wording seems OK, but there should be provision for
appeal against a negative decision. The contents of section 51 should
be placed adjacent to section 48.

Part 6 – this Part should be checked against the revised GFC Act 2007.
All references in this Part to the Commissioner should be replaced by
reference only to the Commission (for example, in sections 58 (3) and
(5) (c), and section 65, and section 69, and section 81 (o)) unless
there is a grammatical reason for referring to the Commissioner. This
Part should provide for compensation for actions of the Commission or
its forest officers which are unlawful, malicious or vindictive, or
because of the negligent actions or inactions by the Commission or its
forest officers. Offended person should be able to claim if they can
demonstrate financial, material or other kinds of loss or distress from
such cause(s). Such compensation should include civil damages, and
payment of all legal costs incurred by the offended person in defence
of his/her case against the Commission or its forest officers. This
would be the natural justice equivalent of sections 58 (8) and 77 which
protect the forest officers of the GFC.

Presumably there are other laws in Guyana which provide for financial
and other recourse in the event of wrongful prosecution?

Section 52 – it is unclear what antique document has been used as a
source for this section, but it should be brought up to date by
inclusion of more modern methods of transport; including diesel-powered
tractors and trucks and trailers, tugboats, towed and self-powered
barges, cranes and container handling equipment. There is a redundant
quotation mark at the end of section 52.

Section 53 (4) (a) – it is unclear why GFC employment matters should be
treated specifically in the Forest Bill 2007 when they should fall
within general government or national employment legislation. Sacking
someone without having to give a reason is surely against other
Guyanese law?

Section 53 (5) – then to whom does the Commissioner surrender his
instrument of appointment? Why is any of section 53 in the Forest Bill
instead of in the GFC Act?

Section 54 (2) (b) – should include “State Forest authorisation”
alongside permit, licence, or certificate.

Section 56 – such entry is explicitly confined to the purpose of the
search prescribed in the warrant. Any other entry would be an act of
trespass.

Section 61 (1) (b) – this seems to be a highly intrusive requirement.
If an offence is suspected, then the GFC should charge the offender
under section 68 and present a court case. This section is an open
door to corruption.

Section 65 – the entirely internal investigation proposed in this
section is unlikely to satisfy any complainant, and does not accord
with best international practice; see general point 2.9 above.

Section 66 (3) – should go on to prescribe what happens to an arrested
person.

Section 67 – substantially and unnecessarily duplicates section 14.

Section 69 (3) and (4) – these provisions seem to be against natural
justice, and should be deleted.

Section 71 – the provision for compounding of offences is inadequately
circumscribed and liable to be an open door to corruption. The range
of offences which may be compounded should be prescribed in law,
penalties should be fixed (but subject to inflation by the official
cost of living index), two forest officers should sign and date the
prescribed form for each offence, the suspect may choose a court case
instead of accepting the offer to compound, one third of the fixed
compound fee shall be payable to the forest officer who detects the
offence which is subsequently admitted by the offender, etc. – there is
ample literature on the proper operation of compounding.

Section 74 (2) – interest rates should be determined and published by
the Minister of Finance.

Section 75 – if an application has been submitted in prescribed form,
and the applicant is eligible and conditions have been fully satisfied,
and if application fees have been paid, the applicant may sue the
Commission if a State Forest authorisation (or other kind of permit) is
not issued promptly.

Section 76 – provisions for blanket exemptions are liable to political
abuse and so deprecated in international best practice. If they offer
a defence against errors in drafting the legislation, the solution is
to amend the legislation, not to make exemptions which can appear to be
inequitable and perhaps open doors to corruption.

Section 79 (1) – what is the nature and purpose of such consultation?
This provision seems to be a weak defence of the rights of the GFC to
act as stewards of Guyana’s State Forest resources in the public
interest. It seems to parallel the curious provision for the GFC to
infringe the mandate of the EPA.

Section 80 (1) (3) – Guyana has traditionally charged very low royalty
rates for timber extracted from its natural forests. All, or almost
all, consultancy reports on Guyana’s forest revenues advocate that
there should be a much simplified system and that the intrinsic rent
should be captured for central government Consolidated Fund. The major
charge in State Forest authorisations should be that in section 80 (1)
(e), the area concession rental, to be paid directly into the
Consolidated Fund. The justification for royalty (section 80 (1) (d))
is weak. The proposal to pass this weakly justified charge to the
Consolidated Fund and to allow the GFC to retain all the other complex
maze of charges is contrary to repeated recommendations, and should not
be supported in the Forest Bill 2007.

Section 80 (1) (a) and (b) – application fees are intended to be used
for the administration of those applications. Where the GFC is not
using these fees for such purpose, but is instead adding such fees to a
pool of income, then applicants should have the right to reclaim those
fees; and to sue for mal-administration? In particular, the
application fees for State Forest authorisations are intended to cover
the costs of expert evaluation of the technical competence and
financial status of the applicants. There is no evidence that the GFC
have ever used such fees for the intended purpose.

Section 81 – the obligation on the Minister to act positively requires
the words “may make regulations” to be changed to “shall make
regulations”. No regulation, qualification or restriction, or
qualification or restriction in the regulations, shall change the
meaning or intention in the Act itself. In particular, the regulations
must prevent under-the-table transfers in effective managerial or
financial control of a State Forest authorisation. A holder becoming
technically or financially unable or unwilling to manage the authorised
area in accordance with the laws, regulations and specific terms of the
authorisation must surrender the authorisation forthwith, and that area
shall be returned to the strategic reserve of State Forest for
competitive allocation in accordance with the concession strategy
required by the National Forestry Policy 1997 and the National Forest
Plan 2001. This is to control the widespread abuse of the concession
system which the GFC has been unwilling or unable to control during the
last decade.

Section 81 (1) (d) – the criteria to be specified shall be applied, not
merely considered.

Section 81 (1) (h) – this section should also cover forest management
plans required under sections 8 (2) (a) and 12 (b).

Sections 81 (1) (k) and (l) – this has already been done through
sections 68 and 70. Why does it need to be repeated for the
regulations, instead of referring back to the Act itself?

Section 81 (1) (m) – duplicates requirements in section 50.

Section 81 (2) –should be covered by the regulation for measurement of
forest produce at section 81 (1) (j). And this regulation should cover
assessment of forest services, as well as forest goods.

Section 81 (3) – this section for arbitrary and discretionary
activities should be deleted, as contrary to international best
practice.

Section 82 (2) –What does this section mean?

Section 91 (2) – persons and organisations other than the GFC should
also have the right to make application to the High Court, in the same
kinds of circumstance.

Schedule 1 – to be checked by a lawyer for comparability with other law
in Guyana.

Schedule 2 – references to the Forests Act 2006 should be updated.

Schedule 2, Public Lands (Private Roads) Act, section 3 – what is the
purpose and legal significance of such consultation?

Schedule 2, Public Lands (Private Roads) Act, regulation 3 – section
numbers need to be updated.



Signatories:

Dated: 29 February 2008