FORESTS BILL - Explanatory Note

March 2004 Draft Forests Act
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FORESTS BILL
Explanatory Note
The purpose of this Bill is to reform the law relating to the management of the forest resources of
Guyana. The Bill therefore consolidates many of the provisions of predecessor legislation dealing
with forests, timber marketing, timber exports and non-wood forest produce, administered by the
Guyana Forestry Commission (GFC), and amends the law to provide for the sustainable
management of Guyana's forest resources.
PART I
(Preliminary)
This Part contains the usual citation and interpretation provisions and a clause setting forth the
purposes of the Bill. The inclusion in this Part of a clause setting forth the purposes of the Act is in
keeping with contemporary practice and is intended to assist Courts in the interpretation of the
legislation.
PART II
(Forest Estate)
This Part contains clauses, derived from the former Act. Clause 4, which makes provision for the
declaration of State forest, also saves State forest orders made under the former Act. Clause 5 deals
with the State’s ownership of forest produce on public land and forest produce the owner of which
cannot be identified. Clause 6 makes provision for the preparation of Codes of Practices.
PART III
(Forest Conservation )
This Part contain provisions for protection of species; soil and water conservation; fire prevention
and suppression; protection against diseases, pests and exotic species. It also makes provision for
the Commission to enter into afforestation, reforestation and forest rehabilitation activities.
This part of the Bill replaces the environmental protection provisions of the Forest Act, Cap. 67:01
(the former Act), which were very weak. The importance of this aspect of forestry management has
gained greater recognition since 1953, when the former Act was enacted. This is reflected in a
growing body of hard and soft international law to which Guyana subscribes, including Agenda 21,
the action plan agreed to at the United Nations Conference on Environment (UNCED) in 1992. The
measures introduced in this Part are guided by the provisions of Agenda 21 relating to forests.
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Clause 8 combines a prohibition, which existed under the former Act, on certain activities likely to
bring about the degradation of State forests with a new power to set aside areas for the purposes of
soil and water conservation for up to 25 years.
Clause 9 preserves the prohibition on negligent acts which may cause forest fires that existed under
the former Act and enhances protection against forest fires by empowering the GFC to control the
lighting of outdoor fires where this appears to be necessary. Clause 10 preserves the provisions of
the former Act which empower the GFC to compel persons in the vicinity to assist in fighting forest
fires, on payment of compensation for any work performed or injury sustained in the course of this
activity.
Clause 11 introduces controls on activities, occurring on private lands, Amerindian lands and lands
in State forests occupied under this and other legislation, which pose a risk of disease, pestilence, the
unauthorized introduction of non-native species, or other harm to forest resources. Clause 12
provides a mechanism for collaboration between the GFC and other persons in respect of
afforestation, reforestation and forest rehabilitation activities.
PART IV
(Sustainable Utilization of Forest Resources)
This Part of the Bill, which replaces the provisions of the former Act dealing with "Contracts,
Leases, Timber Sales Agreements and Permits for Forest Produce" sets out the machinery for
enabling, whilst regulating, the commercial utilization of the forest resources of Guyana.
Clause 13 preserves the principle, enshrined in the statutes of Guyana since the enactment in 1903
of the State Lands Act, Cap.67:01, that some form of grant must be obtained from the State by any
person who desires to carry out forest operations in forests on public lands, including State forests,
which has been expanded by recent amendments to the former Act to cover exploratory operations
in such forests.
Clause 14, which deals with the classes of persons to whom such grants may be made, and Clause
15, which restricts the transfer of control of corporations which have been given grants, are derived
from the Mining Act 1989 and have been inserted in the Bill to ensure that the law relating to access
to forest resources is consistent with the law relating to access to mineral resources.
Clause 16 and 17, deal with the award of exploratory permits and preserve the new provisions
introduced into the former Act by the Forest (Exploratory Permit) (Amendment) Act, No. 15 of
1997, whereunder persons wishing to carry out exploratory operations prior to investing in forest
operations may obtain a permit to do so, valid for a period up to three years. Such permit are nonexclusive
and confer no right to the award of a grant for forest operations.
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Clause 18 empowers the GFC, with the approval of the Minister, to grant forest concessions.
Clause 19 accommodates the award of forest concessions for the purposes of forest conservation
(including carbon sequestration) in areas classified as production forests, extractive forests, multipleuse
forests and conversion forests, where bids for this use can compete successfully with bids for
commercial forest operations.
Clause 21 provides for the grant by the GFC of forest licences, valid for one year, for the harvesting
and removal of a quota of timber, charcoal, firewood or non-wood forest produce from a specified
area of State forest, in which the licensee will have no exclusive rights.
In recognition of the fact that the forest resources of Guyana have socio-economic value for
activities other than extractive forest operations, including ecotourism, Clause 22, provides for the
issue by the GFC of use permits authorizing entry into State forests for a number of purposes
including scientific research, education, recreation or ecotourism, commercial photography or
movie-making. It should be noted that, where any such activity requires a statutory consent from the
EPA, such consent is a prerequisite to the issue of a use permit to enter State forests by the GFC.
The Bill also recognizes people living in communities in or near to forests as a special interest group,
whose welfare may in some cases be dependent on access to forest resources. Clause 23 makes
provision for the GFC to legitimize such access by entering into agreements with members of these
communities for the management by them of parts of the State forests. In addition to providing new
economic opportunities for rural and hinterland communities, this provision is intended to enable
Amerindian communities who have no title to land to gain exclusive access to specific forest
resources in the areas where they live legally, by constituting a Community Forest Management
Group and entering into a forest management agreement with the GFC. Additionally, it enables
Amerindian communities who already have title to Amerindian lands to gain access to the forest
resources of a "buffer zone" around their lands.
Clauses 24 to 31 preserve various provisions of the former Act dealing with grants and introduce
some new elements. Clause 24 preserves the law, stated in the State Lands Act as well as the former
Act, that the State cannot be compelled to issue any grant or authorisation. Clause 25 imposes the
requirement that grantees comply with occupational health and safety laws. Clause 26 preserves the
powers of the GFC to require that grantees post security bonds. Clause 27 sets out the procedure for
the suspension of grants by the GFC. Clause 28 deals with the transfer of grants. Clause 29 deals
with the procedure on suspension of grants. Clause 30 deals with the revocation and surrender of
grants. Clause 31 deals with the ownership of moveable property remaining in a State forest after
expiry of a grant.
PART V
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(Forests on Amerindian and Private Lands)
Under the former Act the GFC had no role in respect of forests on Amerindian lands, a matter over
which the Amerindian Council has jurisdiction under the Amerindian Act, Cap.29:01, section
29(1)(f). While it is accepted that this should remain the situation in respect of the subsistence use of
forest produce by Amerindians, it is now recognized that measures should be introduced to ensure
that Amerindian communities have access to technical advice and assistance from the GFC and
other agencies in negotiating and enforcing contracts for the commercial utilization of the forest
resources of Amerindian lands by non-Amerindians. The Bill addresses this issue.
Clause 32 provides that any person who wishes to negotiate a commercial forestry contract with an
Amerindian Council must give written notice of this intention to the Minister of Amerindian Affairs,
the EPA and the GFC, as well as the relevant Amerindian Council. Any agreement made between
an Amerindian Council and an investor may provide that the GFC shall monitor the agreed forest
operations, at the request of either the Minister of Amerindian Affairs or the Amerindian Council.
Clause 32 also provides that, if no rules governing forest operations have been made by the
Amerindian Council under the Amerindian Act, the forest operations carried out under any such
contract must conform to standards set for the forestry sector by the GFC.
Historically, the State, which regulates the forestry sector primarily as the custodian of the national
patrimony, has not sought to control forest operations on private lands. Although the transport of
forest produce obtained from private lands was controlled under the former Act, this was done
mainly to facilitate the tracking of forest produce taken from public lands. An additional reason for
this omission in the former Act may be that in Guyana forest resources located on private lands are
insignificant relative to the extensive areas of forests on public lands. However, this approach does
not accord with contemporary thinking, including the philosophy underpinning several international
agreements to which Guyana is a party. Hence, the Bill empowers the State to conserve forests on
private lands, where this is necessary for preventing the wastage of forest resources or environmental
degradation, and provides for the voluntary protection of forests on private lands by landlords.
Clause 33 provides that, where the GFC advises that this is necessary for prescribed reasons, the
Minister may declare a forest conservation area on private land in which certain activities may be
controlled or prohibited by special regulations. The GFC is given the power to enter such areas to
enforce this regime. Provision is made for the payment of reasonable compensation to the
landowner, including the fair value of all forest produce which cannot be utilized as a result of the
status of the area. A mechanism is established for the assessment of the compensation due to the
landlord, which may be awarded in the form of money or by other means. Clause 34 provides that a
landlord may apply to the Commission to sustainably manage forests on private lands and extend the
provisions of the forest legislation to that land.
PART VI
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(Forest Industries)
This Part of the Bill deals with the transport of forest produce, the construction of sawmills and other
primary conversion plants, the operation of primary conversion plants (including portable sawmills
and chainsaws used for milling lumber), the establishment of forest enterprise zones, the marketing
of forest produce, including quality control and the export of forest produce. While some of the
provisions in this Part are new, others consolidate and replace provisions from the former Act, the
Guyana Timber Export Board Act, Cap.67:03, and the Timber Marketing Act, Cap.67:04.
Clause 35 preserves the traditional control over the transportation of forest produce from State and
private forests in Guyana and extends this to forest produce from Amerindian lands. In light of
recent infrastructural improvements which could result in a cross-border traffic in forest produce,
this control is also extended to primary forest produce lawfully originating from other countries.
Clause 36 preserves the jurisdiction of the GFC over the construction of sawmills and extends this to
other types of plants for the primary processing of timber and non-timber forest produce. Clause 37
deals with annual licences for the operation of such plants and of portable sawmills and chainsaws
used for primary conversion purposes.
Clause 38 preserves the requirement that persons engaged in the purchase and resale of forest
produce shall obtain a licence from the GFC and extends this to include exporters. Clause 39
preserves the powers of the GFC to regulate the preservation, drying and grading of timber, and to
issue timber marketing certificates, subject to any conflict of jurisdiction of the Guyana National
Bureau of Standards (GNBS). Clause 40 introduces a requirement that persons purporting to certify
forest produce from Guyana as compliant with international standards must be registered with the
GFC, unless they are accredited to do so by the GNBS. Clause 41 preserves the law that export
certificates must be obtained for all exports of forest produce from Guyana. Clause 42, which is new
law, prohibits transfer pricing and empowers the GFC to make rules for its control.
PART VII
(Forest Charges)
This Part deals with charges payable under the legislation and to whom the revenues generated are
due. The existing regime of area fees, royalties, administrative fees and fines, has been refined and a
distinction has been made between the income streams from forest produce due to the State, as
custodian of the national patrimony, and those related to management of the forest sector, due to the
GFC as the relevant authority. Stakeholders have been involved in the development of the new
revenue system for which the Bill provides.
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Provision is made by Clause 43 and 44 for payment of annual management fees and volume charges
on forest produce. Provision is made for discounts to be given as an incentive for voluntary
compliance with GFC requirements by forest concessionaires and licensees.
Clause 45 provides for the levy of surcharges on specific forest produce, as a disincentive to their
utilization, where this is necessary for the purposes of encouraging sustainable forest management
practices.
Clause 46 provides for the imposition of user fees, payable to the GFC, in connection with the issue
of use permits. Clause 47 deals with administrative fees payable to the GFC for services rendered,
including charges for processing applications and making entries on registers. Clause 48 deals with
the payment of fines in respect of forest offences.
Both Clause 49, which authorizes the designation of fees and charges in freely usable currencies, and
Clause 50, which provides for the indexation of fees and charges to the rate of inflation, are
provisions intended to address the possibility of erosion of the real value of sums prescribed by or
under the Bill. Clause 51 empowers the GFC to charge interest on overdue payments.
PART VIII
(Forest Information)
This Part of the Bill deals with the duties of the Commission and grantees in relation to the provision
of and access to information. Clause 52 outlines the duties of the Commission in relation to the
compilation of information and the provision of information to the Minister and the public. Clause
53 confers upon the Commission the necessary power to collect information. Clause 54 sets out the
duties of grantees in respect of the keeping of records and affording the GFC staff and peace officers
access thereto. Clause 55 confers upon the public a right of access to information in the possession
of the GFC, other than confidential information.
PART IX
(Forest Offences)
Under the former Act the offence-creating provisions were scattered throughout the Act. In the Bill
all these provisions are consolidated under the regulations of this Part. Most of the offences in this
Part are carried over from the former Act, however, some new offences have been created to
penalize breaches of provisions which are new to the Bill, such as breaches of the forest
conservation measures. These provisions relating to forest offences are in Clause 56 of the Bill.
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PART X
(Enforcement)
This Part of the Bill deals with the powers of the GFC and peace officers to enforce the provisions of
the legislation, including powers of entry, interrogation, search and seizure, power to make arrests
without warrant, power to confiscate forest produce, power to carry on administrative inquiries and
to settle matters out of court. These provisions comprise Clause 57 to 60. Most of these provisions
are continued in force from the former Act.
PART XI
(Miscellaneous)
This Part contains various measures which do not fall within the scope of other Parts of the Bill.
Clause 61 confers upon the Minister the power to exempt specific persons or lands from the
provisions of the legislation, with the consent of Parliament. Clause 62 confers immunity on forest
officers for things done in good faith in the administration of the Act.
Clause 63, which protects the rights of Amerindians, and provides that he Minister shall consult with
the Minister of Amerindian Affairs before making any new Regulations affecting the exercise of
these rights in State forests.
Clause 64 preserves the jurisdiction of the GFC over the harvesting of forest produce on State lands
outside State forests, conferred upon the Commissioner in 1977 by an amendment to the State Lands
Act. Clause 66, provides for consultation with the GGMC and EPA regarding the issuance of
mining grants in State forests.
Clause 67 empowers the Minister to make Regulations to give effect to the provisions of the
legislation. Clause 68 saves and continues in force all SFPs, WCLs, TSAs and permits licences and
authorities issued under the former Act and Clause 69 repeals the former Act and related legislation
which are replaced by the Bill. Clause 70 deals with the application of the Bill to the State.