AHMAD IBRAHIM KULLIYYAH OF LAWSInternational Islamic University, Malaysia

CONSERVATION OF FOREST: A Study with a Special Reference to ‘ITTO’ and Tropical Countries

[COMPARATIVE ENVIROMENTAL LAW]

By:

ABDUL AZEEZ MARUF OLAYEMI

The Concept of Forest The Concept of Forest

Forest is generally defined as a ‘large area of land covered by threes and other plants growing close together .

However, the International Tropical Timber Organization (ITTO) has varieties of definition for forest due to it varieties.

The organization defines tropical forest as ‘the forest lying between the tropics of Cancer and Capricorn’, although this definition has been proved difficult to apply in all cases. For example, many ITTO producer countries have forests at higher altitudes within the tropics that effectively are temperate forest types

Moreover, several producer countries – Brazil, India, Mexico and Myanmar – have significant areas of forest outside the tropics.

These countries do not usually distinguish between ‘tropical’ and ‘non-tropical’ in their forest statistics; therefore it has not always been possible to maintain the distinction. Thus, as the definition implies, tropical forest is of many types and the said types include the following:

Cont…Cont…• Rain Forest:

This can be described as ‘a tall, dense jungle.  The reason it is called a "rain" forest is because of the high amount of rainfall it gets per year.  The climate of a rain forest is very hot and humid so the animals and plants that exist there must learn to adapt to this climate. However, the largest remaining areas of tropical rain forests are in Brazil, Congo, Indonesia, and Malaysia. Precipitation generally exceeds 60 inches (150 cm) per year and may be as high as 400 inches (1000 cm). Lowland rain forests are among the worlds most productive of plant communities. Giant trees may tower 200 feet (60 m) in height and support thousands of other species of plants and animals. Montane (mountain) rain forests grow at higher elevations where the climate is too windy and wet for optimum tree growth.

• Mangrove Forest:

This type of forest grow in the swampy, intertidal margin between sea and shore and are often considered part of the rain forest complex. The roots of mangrove trees help stabilize the shoreline and trap sediment and decaying vegetation that contribute to ecosystem productivity.

Cont…Cont…• Dry Forest:

The large areas of tropical dry forests are found in India, Australia, Central and South America, the Caribbean, Mexico, Africa, and Madagascar. Dry forests receive low rainfall amounts, as little as 20 inches (50 cm) per year, and are characterized by species well adapted to drought. Trees of dry tropical forests are usually smaller than those in rain forests, and many lose their leaves during the dry season. Although they are still amazingly diverse, dry forests often have fewer species than rain forest.

Savanna:

Savanna is a transitional type between forest and grassland. Trees are often very scattered and tend to be well adapted to drought and tolerant of fire and grazing. If fire is excluded, trees eventually begin to grow and the savanna is converted to dry forest. With too much fire or grazing, dry forest becomes savanna. This vegetation type has fewer species of trees and shrubs but more grasses and forbs than other forest types in the Tropics.

Cont…Cont…• Cloud Forest:

This is a rare habitat of tropical mountains which is rich of concentrations of biodiversity and serve as sources of freshwater. This forest makes up no more than 2.5 percent of the world’s tropical forests, but they harbor disproportionately large number of the world’s species. This wealth of biodiversity includes the wild relatives and sources of genetic diversity of many of our staple crops, such as beans, potatoes and coffee

Finally, it is worth of mentioning that the world's tropical forests circle the globe in a ring around the Equator. They are surprisingly diverse, ranging from lush rain forests to dry savannas and containing millions of species of plants and animals. Tropical forests once covered some 15.3 billion acres (6.2 billion ha). In recent times, however, they have been cut at a rapid rate to make room for agriculture and to obtain their many valuable products. Between 1985 and 1990, 210 million acres (85 million ha) of tropical forests were destroyed

Cont…Cont…• The Importance of Tropical Forests:

All forests have both economic and ecological value, but tropical forests are especially important in global economy. These forests cover less than six percent (6 %) of the Earth's land area, but they contain the vast majority of the world's plant and animal genetic resources. The diversity of life is astonishing.

There is also diversity in other life forms: shrubs, herbs, epiphytes, mammals, birds, reptiles, amphibians, and insects. One study suggests that tropical rain forests may contain as many as 30 million different kinds of plants and animals, most of which are insects.

Moreover, tropical forests provide many valuable products including rubber, fruits and nuts, meat, rattan, medicinal herbs, floral greenery, lumber, firewood, and charcoal. Such forests are used by local people for subsistence hunting and fishing. They provide income and jobs for hundreds of millions of people in small, medium, and large industries

DEFORESTATION:DEFORESTATION:• Having said this, the tropical forest has been threaten by the syndrome named

‘Deforestation’.

• Deforestation is the conversion of forested areas to non-forest land for use such as arable land, pasture, urban use, logged area, or wasteland.

• Since forests support greater numbers of animals and more species than arable land, pastures or cities removal or destruction of significant areas of forest cover has resulted in a degraded environment with reduced biodiversity. In a few countries, massive deforestation is ongoing and is shaping climate and geography. Deforestation results from removal of trees without sufficient reforestation, and results in declines in habitat and biodiversity. This however occurs due to many reasons.

• Reliable studies shows that, before the dawn of agriculture, approximately 10,000 years ago, forests and open woodland covered about 15.3 billion acres (6.2 billion ha) of the globe. Over the centuries, however, about one-third of these natural forests have been destroyed. According to a 1982 study by FAO, about 27.9 million acres (11.3 million ha) of tropical forests are cut each year. Between 1985 and 1990, an estimated 210 million acres (85 million ha) of tropical forests were cut or cleared. In India, Malaysia, and the Philippines, the best commercial forests are gone, and cutting is increasing in South America. If deforestation is not stopped soon, the world will lose most of its tropical forests in the next several decades.

FACTORS BEHIND DEFORESTATION:FACTORS BEHIND DEFORESTATION:

The factors that militate against forest are as follows:

1. clearing for agriculture:

In the Tropics, the age-old practice of shifting, sometimes called "slash-and-burn," agriculture has been used for centuries. In this primitive system, local people cut a small patch of forest to make way for subsistence farming. After a few years, soil fertility declines and people move on, usually to cut another patch of trees and begin another garden. In the abandoned garden plot, the degraded soil at first supports only weeds and shrubby trees. Later, soil fertility and trees return, but that may take decades. As population pressure increases, the fallow (rest) period between cycles of gardening is shortened, agricultural yields decrease, and the forest region is further degraded to small trees, brush, or eroded savanna. Conversion to sedentary agriculture is an even greater threat to tropical forests. Vast areas that once supported tropical forests are now permanently occupied by subsistence farmers and ranchers and by commercial farmers who produce sugar, cocoa, palm oil, and other products.

2. Demand For Firewood:

For millions of rural poor, survival depends on finding enough wood to cook the evening meal. Every year more of the forest is destroyed, and the distance from home to the forest increases. Not only do people suffer by having to spend much of their time in the search for wood, but so does the land. Damage is greatest in dry tropical forests where firewood cutting converts forests to savannas and grasslands.

Cont…Cont…3. The global demand for tropical hardwoods, (timber):

The global demand for tropical hardwoods, (timber) an $8-billion-a-year industry, also contributes to forest loss. Tropical forests are usually selectively logged rather than clear-cut. Selective logging leaves the forest cover intact but usually reduces its commercial value because the biggest and best trees are removed. Selective logging also damages remaining trees and soil, increases the likelihood of fire, and degrades the habitat for wildlife species that require large, old trees-the ones usually cut. In addition, logging roads open up the forests to shifting cultivation and permanent settlement. In the past, logging was done primarily by primitive means-trees were cut with axes and logs were moved with animals such as oxen. Today the use of modern machinery--chain saws, tractors, and trucks -makes logging easier, faster, and potentially more destructive.

4. The construction of Dual Carriage roads:

Another inevitable factor that militates against forest is the construction of dual carriage roads, either as an economic tool or as necessity for the implementation of other infrastructure projects. The construction of roads is rapidly increasing in the tropical forest worldwide. However, roads are one of the main deforestation drivers in the tropics. A study that was carryout in the United States of America about the impact of road investments and constructions on both deforestation and jaguar habitat loss, in the Mayan Forest gives sufficient analysis of this factor.

Cont…Cont…

5. Urbanization:

Urbanization is one of the main primary and natural causes of deforestation. Rapid population growth has resulted to the conversion of forest areas to non-forest lands for settlement and farming. Together with this is urbanization and residential area expansion. This takes a significant loss of forest lands both for harvesting forest products as more people need more lumber to build their houses and for developing the greater area their houses, malls, business centers will be built

6. Military Context:

Military context is another reason for deforestation. One example of deliberate deforestation is that which took place in the U.S. zone of occupation in Germany after World War II. Before the onset of the Cold War defeated Germany was still considered a potential future threat rather than potential future ally. To address this threat, attempts were made to lower German industrial potential, of which forests were deemed an element. Sources in the U.S. government admitted that the purpose of this was the "ultimate destruction of the war potential of German forests."

Cont…Cont…7. Cattle Grazing:

Another devastating force behind deforestation is cattle grazing. With the international growth of fast food chains this seems to be an evident factor in the clearing of trees today. Large corporations looking to buy beef for hamburger and even pet food seek cheap prices and are finding them with the growth of cattle grazing. In the Amazon region of South America alone there are 100,000 beef ranchers. As the burger giants of industrialized society are making high demands for more beef, more forests are being torn down. Statistics from less than a decade ago, 1989, indicate that 15,000 km squared of forests are used expressly for the purpose of cattle grazing. Once the trees are gone the land is often overgrazed. In some places the government wants this to happen. Cattle grazing are big profit that cannot be turned down

Cont…Cont…8. Illegal Logging:

The small farmer plays a big role in logging, but it is modern industry that cuts down the trees.

The logging industry is fueled by the need for disposable products. 11 million acres a year are cut for commercial and property industries.

The amount of damage that this adds to the forests can not be measured nor can that of the illegal logging. Some importers may even be buying illegally logged wood and not even have known it.

According to the report of World Wide Fund “illegal logging” is the Major Cause of Global deforestation

THE IMPACT OF DEFORESTATION ON BIODIVERSITYTHE IMPACT OF DEFORESTATION ON BIODIVERSITY- Forests are biological communities-complex associations of trees with other

plants and animals that have evolved together over millions of years. Because of the worldwide loss of tropical forests, thousands of species of birds and animals are threatened with extinction. The list includes many unique and fascinating animals, among them the orangutan, mountain gorilla, manatee, jaguar, and Puerto Rican parrot. Although diverse and widely separated around the globe, these specles have one important thing in common. They, along with many other endangered species, rely on tropical forests for all or part of their habitat.

- The largest of all primates, the gorilla, is one of man's closest relatives in the animal kingdom. Too large and clumsy to move about in the forest canopy, the gorilla lives on the forest floor where it forages for a variety of plant materials. Loss of tropical forests in central and West Africa is a major reason for the decreasing numbers of mountain gorillas. Some habitat has been secured, but the future of this gentle giant is in grave danger as a result of habitat loss and poaching

- In addition to species that reside in tropical forests year round, others depend on such forests for part of the year. Many species of migrant birds journey 1,000 miles or more between their summer breeding grounds in the north and their tropical wintering grounds. These birds are also threatened by tropical forest destruction

CONSERVATION OF FORESTCONSERVATION OF FOREST- Forests bring tremendous benefits to our world, ranging from social to

economic to environmental. Economically, timber, paper, oil, rubber and many other important resources which form the pillars of modern industries are produced in forests. Socially, forests create recreational opportunities and enrich people’s lives.

- Environmentally, forests minimize soil erosion and flooding. They are also well known for the tremendous biodiversity, providing wildlife habitat to home millions of plant and animal species. In addition, forests play a significant role in maintaining global climate change. Oxygen, which is produced through photosynthesis, is continuously replenished. On the other hand, carbon dioxide is taken in by the plants. This continuous process maintains the amount of gases in the air, which consequently affect our global temperature.

- As the world is facing forestry problems of deforestation for various reasons, efforts was therefore made to minimize deforestation directly through boycotts of multinational corporations responsible for exploitative logging, the most effective conservation policies have been efforts to relieve poverty and expand access to education and health care.

- However, the quest for the conservation of forest also leads to the birth of a very important organization, named International Tropical Timber Organization (ITTO). The organization is primarily vested with the responsibility of monitoring and preservation of the forest.

ITTOITTO• International Tropical Timber Organization (ITTO) was not originally

designed to address deforestation per se. Rather; the organization was designed to facilitate trade in tropical timber.

• Moreover, the International Tropical Timber Agreement (ITTA) -- which established the ITTO -- is the only commodity agreement dealing with the conservation and management of tropical forests; and, pending a global forest agreement, it remains the only binding international agreement concentrating on this subject. As such, the ITTO provides a unique forum for forest management policy discussion between producer and consumer countries, and has become a vehicle for project activities, especially those geared toward reforestation and conservation. Environmental NGOs in several countries have exerted extensive pressure, with considerable success, on the ITTO to focus on environmentally sustainable forest management and conservation.

Cont…Cont…• These policy discussions have resulted in the adoption of the year

2000 target, by which time all timber traded internationally should come from sustainably managed sources, and the development of guidelines for natural forest management by the ITTO.

• The ITTA was completed in 1983 and signed by both tropical timber producing and consuming nations. The ITTA, which sets out the purposes and constitution of the ITTO, is unique in several respects. The most notable commodity agreement to be negotiated at the United Nations Conference on Trade and Development (UNCTAD), the ITTA, like preceding agreements on coffee, sugar, cocoa and jutes aims to promote not only tropical timber trade, but, more importantly, to increase the producer-countries' share of the benefits.

Cont…Cont…

• In practice this means a strong emphasis on both expanding the volume and value of the trade in tropical timber, and ensuring that a greater share of the value is retained by the producers as earnings, profits, and government revenues. However, another dimension of the agreement makes it unique: a long-term concern is explicitly stated for the conservation of both the forest resource and the forest environment.

Cont…Cont…• Origins of the ITTA• The initial impetus behind ITTA's negotiation was not environmental but Western --

mainly Japanese -- concern for the threat posed by deforestation to sources of tropical timber supply. When the Japanese, the world's largest importer of tropical timber in terms of volume, originally proposed a resolution at UNCTAD to create an ITTO in 1977, they had in mind a commodity agreement of the sort adopted for jute and rubber, which would be strictly confined to trade considerations.

• However, in discussions, it soon became clear that tropical timber could not be treated in such a narrowly defined manner. Since tropical timber comes from a wide variety of tree species growing over a vast area of the world's forests, it cannot be dealt with as a single commodity. For this reason, the International Institute for Environment and Development (IIED) forcefully argued that the agreement could not be limited to the technical and commercial concerns of timber extraction and trade, but must also provide for the ecological and genetic services provided by forests. As a result, in the final stages of several years of negotiations of the ITTA, the environmental role of tropical forests came to feature prominently and the final wording of the agreement included "sustainable utilization and conservation of tropical forests and their resources, and maintaining the ecological balance in the regions concerned" among the objectives of the ITTO.

Cont…Cont…

• The ITTA, signed in November 1983 after six years of protracted negotiations, thus emerged as a unique trade agreement. Environmental NGOs welcomed the ITTO, perceiving that it offered an opportunity to enforce sustainable forest management. To the surprise of many governments, therefore, the ITTO became the principal focal point for debate between conservationists and timber-exporting countries over the management of their natural forests.

Cont…Cont…• Objectives of the ITTO• The primary stated mission of the ITTO, in carrying out

its mandate as described by the ITTA, is to strike a balance between the needs of conservation and development and to secure more sustainable use of tropical forests and the resources they contain. Specifically, the ITTA is intended to promote cooperation, coordinate statistical data, and support research and development on marketing, utilization, reforestation, and management of tropical forests. As stated in the ITTA, the principal objectives of the organization are:

Cont…Cont…• -to provide an effective framework for cooperation between tropical timber

producing and consuming member nations; • -to promote the expansion and diversification of international trade in

tropical timber and the improvement of structural conditions in the tropical timber market;

• -to promote and support research and development to improve forest management and wood utilization;

• -to improve market intelligence with a view to ensuring greater transparency in the international tropical timber market;

• -to encourage increased and further processing of tropical timber in producing member countries in order to increase their export earnings;

• -to encourage members to support and develop industrial tropical timber reforestation and forest management activities;

• -to improve marketing and distribution of tropical timber exports of the producing members; and

• -to encourage the development of national policies aimed at the sustainable utilization and conservation of tropical forests and their genetic resources, and at maintaining the ecological balance in the regions concerned.

Cot…Cot…

• Projects• The ITTA has five categories for research and

development projects:• (1) wood utilization; • (2) natural forest development; • (3) reforestation development; • (4) harvesting, logging infrastructure, or training

of technical personnel; and • (5) institutional framework and national planning.

Cont…Cont…• Target 2000• At its Eighth Session, held in Bali in May 1990, the Council took a step

toward achieving its goal of sustainable logging by announcing 'Target 2000' which establishes the year 2000 as the date when all trade in tropical timber is to be supplied from sustainably managed sources, though the ITTO has yet to agree on a definition of sustainability.

• Many critics question the feasibility of reaching this goal since the ITTO's own studies indicate that sustained yield logging is practically nonexistent in the tropics. In addition, some observers note that the use of trade measures necessary to achieve this objective is at best inhibited and at worst ruled out under the terms of the General Agreement on Tariffs and Trade (GATT).

• At the Tenth Session -- held in Quito, Ecuador in June 1991 -- the ITTO adopted a strategy to facilitate achieving Target 2000 through international collaboration and national policies and programs. Pursuant to the strategy, the Council encourages national plans to include the following elements:

Cont…Cont…• -forest conservation and management; • -appropriate economic forest and timber policies (full

cost forest accounting, resources pricing regimes, etc.); • -incentives for sustainable forest management; • -investment of forest revenues into sustainable forest

management, regeneration, and expansion of the forestry estate through plantation development; and

• -enhancement of the ability of local communities within or near the forest to obtain appropriate returns and other benefits from sustainably managed forests.

In addition, the strategy recommends a major review of progress toward Target 2000 for 1995.

GUIDELINE FOR THE SUSTANABILITY AND MANAGEMENT OF GUIDELINE FOR THE SUSTANABILITY AND MANAGEMENT OF NATURAL TROPICAL FORESTNATURAL TROPICAL FOREST

The 1990 session in Bali, the ITTO adopted non-binding guidelines for the sustainable management of natural tropical forests. Initially, attempts were made to agree upon binding guidelines for 'best practice', but producer governments rejected this idea as a violation of their national sovereignty

The sustainable management guidelines are a compilation of principles and 'possible actions' ranging from general policy to forestry operations issues. Forest policy, national forest inventory, permanent forest estate, forest ownership, and national forest services are treated under the heading of Policy and Legislation in the ITTO Guidelines. The Forest Management section addresses planning, harvesting, protection, legal arrangements, and monitoring and research; while relations with local populations, economics, incentives, and taxation are treated under the rubric of Socioeconomic and Financial Aspects. For example, the first principle, which relates to forest policy, establishes that "A strong and continued political commitment at the highest level is indispensable for sustainable forest management to succeed." Possible action number one, which corresponds to that principle, states that: "A national land use policy aiming at the sustainable use of all natural resources, including the establishment of a permanent forest base should be developed and adopted." The guidelines also include examples of elements for possible inclusion in national and operational guidelines in its appendices.

Cont…Cont…• As a checklist of environmental management aspects,

these guidelines may be especially useful to consumer-country timber importers in identifying sustainable sources of tropical timber, since plans to introduce timber source labeling are often impractical and susceptible to abuse. With the ITTO's document, importers can seek assurances that the recommended 'possible actions' are being undertaken at the local level, and make use of the document's appendices on categories of forest land, forest inventory, roads, harvesting, and concession legislation for timber extraction.

Cont…Cont…• Projects and Studies:

• Beyond its target- and standard-setting activities, the ITTO has undertaken several pilot and study projects. Some pilot schemes initiated by the ITTO, such as multipurpose forest management, or studying the potential of lesser-known species, have yielded fruitful and replicable results.

• The ITTO's greatest potential may lie in some of the policy studies it has initiated, especially those that respond to its sustainable forest utilization mandate. For example, in 1988, the ITTO commissioned a worldwide survey of how much forest was being sustainably managed. The survey found only a negligible amount of forest being managed for sustainable, long-term timber production (0.08 percent). The resulting report, No Timber Without Trees, unquestionably alerted many in the media, trade, government, and public to the virtual absence of any natural forest management and to the urgent need for measures to introduce it.(29) Study projects of this kind can have an immense impact. There is little doubt that this study did much to lay the groundwork for stimulating the Council to endorse Target 2000.

Cont…Cont…• Sarawak Mission:

• A fourth significant area of work for the ITTO is its monitoring function. An example of ITTO activity in this area was an official investigative mission, led by England's Lord Cranbrook, to investigate the conflict between loggers and native peoples in Sarawak, Malaysia. At the May 1989 meeting in Cote d'Ivoire, the ITTO resolved to send the mission with the aim of assessing "the sustainable utilization and conservation of tropical forests and their genetic resources, as well as the maintenance of the ecological balance in Sarawak...with a view to ensuring their optimum utilization.''

Cont…Cont…• The study mission, which reported to the Council the following May, is an example of

the Council's quick response to international environmental pressure. The report recommended greater emphasis on biological diversity conservation, increases in protected forest area, and a reduction in the timber harvest from existing levels of 13 million cubic meters to 9.3 million cubic meters per year. However the mission's view was restricted by its inability to review land rights questions, mainly due to the absence of legal expertise on the team.

• Thus, the 'Cranbrook mission' report was a disappointment to some, because it failed to spell out mechanisms to resolve the issue of land rights. Other features of the report also appeared to conservationists as a step backwards, such as the report's limited reference to non-timber forest products or the environmental services of the forest.

• The failure of the Governments of Sarawak and Malaysia to address the mission's criticisms of the timber extractors has been an additional disappointment to some. Official reports indicate that rather than a reduction, Sarawak's Forestry Department has undertaken major increases in annual extraction rates -- estimated to have reached 18 million cubic meters in 1990. Such increases may be perceived by critics to reflect an inability of the ITTO to affect positive change.

Cont…Cont…• Poor Law Enforcement and It’s Reasons:

• In reality law enforcement actions by the Forestry Administration (FA) follow one of four courses. The first, giving of a warning, is a legally valid action under the Forestry Law (FL) which involves no penalty.

• The other three actions follow different administrative and judicial pathways: Path I - Transactional Fines, Path II - prosecution through the Courts, and Path III - seizure of forest products or by-products without the arrest of an offender. Because these different courses of action involve different combinations of the stages in the law enforcement chain, it is necessary to calculate their Enforcement Disincentives (ED) separately

Cont…Cont…1. Warnings:

Issuing of a warning has no ED which can be measured using the Enforcement Disincentive model. This is because no penalty is applied. However in a law enforcement regime in which offenders understood (and expected) that a second offence would lead to significant penalties, there would be some disincentive effect of the warning process. Unfortunately there is no consistent recording of warnings, or of consideration of previous warnings in deciding penalties for second offences. In addition, the low EDs for other pathways further reduces any concern that an offender might have about being caught again.

2. Transactional Fines:

• Path I - Transactional Fines: Transactional Fines are applied and processed solely within the FA. Documentation follows what has been designated as Path I. If the offender does not plead guilty at the time of arrest then the case is handled through the Courts (Path II). Documentation prepared during the Path I processing is intended to record the offence and to assist the FA Director to decide on the level of penalty. The FL provides a range of penalties, and a set of criteria for helping to determine the level of any fine which is applied.

Cont…Cont…• Path II - Processing Through the Courts:

Cases following Path II are those involving the more serious crimes, with penalties of up to ten years in prison and confiscation of all seized evidence, and which are processed through the Provincial or Municipal Courts. It is no surprise that the ED in relation to this type of offence is very low - $33.03 if the rate of detection is assumed to be 100 percent of crimes committed, or $3.30 if a more realistic detection rate of 10 percent is used. This compares with an average incentive of nearly $600.

The major weaknesses in the Path II enforcement chain result from the low probability of arrest once a crime has been detected (0.10), the relatively low probability of prosecution (0.6), and the fact that only around 14 percent of convictions actually involved a penalty (1 in 7). The low arrest rate is connected to the excessive percentage of cases in which evidence is seized but no one is arrested.

Cont…Cont…• Significant other weaknesses leading to the low ED are

associated with documentation and Court procedures. The documentation prepared for Path II cases is essentially the same as for Path I, even though in the latter pathway there is no need to prove guilt. There is an urgent need to improve the standard of documentation of cases going to the Courts, and this should be implemented in conjunction with a radical improvement in the investigative skills of JPs.

• Problems in the Courts seem to stem largely from the way in which offenders are released on “bail”, and then do not return for trial - in fact if these cases are treated as not having been completed, then the probability of prosecution falls to 0.4. This low figure is of even more concern when it is realized that all of the cases brought to court were flagrant offences – the offenders were caught “in the act” - and so the rate of successful prosecution should have been 1 (i.e. 100%).

Cont…Cont…• Path III - Seizure of Evidence without Arrest:

Path III cases - situations where there was seizure of forest products or by-products (predominantly timber) - made up 56 percent of all enforcement cases in the sample, and 77 percent of the cases that went to the Courts. The incentive in this type of case was $812, significantly higher than either the Path I or Path II incentives, but the ED resulting from enforcement efforts was zero. No one was arrested, no penalty was applied. There may have been some slight disincentive resulting from the loss of the offender’s expenses in making the illegal harvest, but this would have been more than offset by one more, successful, offence.

There are likely to be various factors behind the failure to arrest offenders, the chief among which are likely to be: a lack of political and institutional willingness to investigate and prosecute all cases, no matter who the offender is; the general failure of FA Judicial Police to investigate nonflagrant crimes; and some element of corruption associated with cases of this type.

Abdul Azeez Maruf Olayemi

Cont…Cont…• Path IV - No Action against Significant Crime:

A fourth type of “path” that is sometimes followed is not to take any action. While there are many valid reasons for not taking action on the detection of every apparent offence, the types of crimes that are of most concern in this category are those which do not get into the official reports or databases. These cases are widely known among FA and NGO staff, is often reported in the media, and frequently involve types or volumes of forest products with a high value. They are also characterized by the involvement of powerful persons or organizations, often including the military or the bodyguards of high-level individuals, and generally rely on the fact that FA staff at field level will not take action either because they know that this is not expected or out of fear of revenge action against them or their families.

Abdul Azeez Maruf Olayemi

FOREST PRINCIPLESFOREST PRINCIPLES• The Forest Principles is the informal name given to the

"Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests," a document produced at the 1992 United Nations Conference on Environment and Development (UNCED), informally known as the Earth Summit. It is a non-legally binding document that makes several recommendations for forestry.

• At the Earth Summit, the negotiation of the document was complicated by demands by developing nations in the Group of 77 for increased foreign aid in order to pay for the setting aside of forest reserves. Developed nations resisted those demands, and the final document was a compromise

Cont…Cont…• Statement of Principles on Forests:

• By the time of the June 1992 Earth Summit, countries had developed a series of principles for sustainable forest use. This, the first global consensus on forests, deals with the needs of people who want to protect forests for environmental and cultural reasons and with the needs of people who use trees and other forest life for economic development. The Rio forest principles may form the basis of further negotiations toward a binding agreement.

• The Rio statement says that forests, with their complex ecological processes, are essential to economic development and the maintenance of all forms of life. They are the source of wood, food and medicine, and are rich storehouses of many biological products yet to be discovered. They act as reservoirs for water and for carbon, that would otherwise get into the atmosphere and act as a greenhouse gas. Forests are home to many species of wildlife and, with their peaceful greenery and sense of history, fulfill human cultural and spiritual needs.

Cont…Cont…• Some The Forestry Principles are as follows:

• All countries should take part in "the greening of the world" through forest planting and conservation.

• Countries have the right to use forests for their social and economic development needs. Such use should be based on national policies consistent with sustainable development.

• The sustainable use of forests will require sustainable patterns of production and consumption at a global level.

• Forests should be managed to meet the social, economic, ecological, cultural and spiritual needs of present and future generations.

• The profits from biotechnology products and genetic materials taken from forests should be shared, on mutually agreed terms, with countries where the forests are located.

• Planted forests are environmentally sound sources of renewable energy and industrial raw materials. The use of wood for fuel is particularly important in developing countries. Such needs should be met through sustainable use of forests and replanting. The plantations will provide employment and reduce the pressure to cut old-growth forests.

Cont…Cont…• National plans should protect unique examples of forests, including old forests and

forests with cultural, spiritual, historical, religious and other values.

• International financial support, including some from the private sector, should be provided to developing nations to help protect their forests

• Countries need sustainable forestry plans based on environmentally sound guidelines. This includes managing the areas around forests in an ecologically sound manner.

• Forestry plans should count both the economic and non-economic values of forests, and the environmental costs and benefits of harvesting or protecting forests. Policies that encourage forest degradation should be avoided.

• The planning and implementation of national forest policies should involve a wide variety of people, including women, forest dwellers, indigenous people, industries, workers and non-government organizations.

• Forest policies should support the identity, culture and rights of indigenous people and forest dwellers. Their knowledge of conservation and sustainable forest use should be respected and used in developing forestry programs. They should be offered forms of economic activity and land tenure that encourage sustainable forest use and provide them with an adequate livelihood and level of well-being.

Cont…Cont…• Trade in forest products should be based on non-

discriminatory, rules, agreed on by nations. Unilateral measures should not be used to restrict or ban international trade in timber and other forest products.

• Trade measures should encourage local processing and higher prices for processed products. Tariffs and other barriers to markets for such goods should be reduced or removed.

• There should be controls on pollutants, such as acidic fallout, that harm forests

FOREST LAW ENFORCEMENT AND FOREST LAW ENFORCEMENT AND RURAL LIVELIHOODSRURAL LIVELIHOODS

• According to the ‘Center for International Forestry Research’ International concern about illegal forestry activities has grown markedly. Asian and African governments held high-level regional conferences on forest law enforcement and governance (FLEG). The United Kingdom and China signed path breaking Memorandum of Understanding with Indonesia on illegal logging. The G8, the Convention on Biological Diversity, United Nations Forum on Forests, and the International Tropical Timber Organization issued forceful statements on the topic. The European Commission formulated a European FLEG Action Plan and organized a workshop to discuss its content. Japan and Indonesia initiated an Asian Forest Partnership, with illegal logging as its central focus. Global Witness, the Environmental Investigation Agency, Transparency International, Greenpeace, Global Forest Watch, and Friends of the Earth increased public awareness of the problem.

Cont…Cont…• There are good reasons for concern. Illegal forestry activities make

governments lose billions of dollars in unpaid tax revenues each year. They also cause environmental damage and threaten forests that people depend on for their livelihoods. Forest-related corruption and widespread violation of forestry laws undermines the rule of law and discourages investment by legitimate businesses. Under such conditions the wealthy and powerful have unfair advantages, due to their high-level contacts and ability to pay larger bribes. Illegal forestry activities sometimes finance violent conflict.

• Nonetheless, governments will have to take measures to ensure that efforts to enforce forestry laws do not negatively affect rural livelihoods. There are several reasons why such efforts might have such an effect:

Cont…Cont…• Existing legislation often prohibits forestry and agroforestry activities that

poor rural households depend on for their livelihoods, including some that are relatively sustainable (and others that are not);

• · Millions of rural households live in areas that governments have classified as “forestlands” and claim to own. Existing laws considers these households encroachers even though in some cases their families have lived on the land for generations;

• · Most forestry laws make it difficult for small farmers, indigenous people, and local communities to engage in commercial logging and timber processing legally since they require large amounts of paperwork and input from professionals that these groups have no access to;

• · Forestry and wildlife departments often enforce forestry and protected area legislation more vigorously and with less respect for due process in the case of poor rural 2 households, since these households are not as well connected and lack money for large bribes.

• Many of these solutions require major changes in policies or power relations and will not come quickly or easily. Meanwhile, efforts to tackle the problems associated with weak law enforcement must proceed.

AFRICAN FORESTAFRICAN FOREST• The eleven member countries of the African Timber Organization (ATO) are aware

not only of the economic potential of forest resources but also of the danger of their uncontrolled depletion. About 7.5 million hectares of closed forest and 3.8 million hectares of African forests are cleared each year for a variety of purposes and the Food and Agricultural Organization (FAO), estimates that 13,000 square kilometers of African forest disappear every year through forest clearing. The West African rain forests are especially being depleted. FAO predicts that if the present trends continue, the tropical rainforests of the Ivory Coast, Nigeria and some other West African rainforests could completely disappear by the year 2020. For this reason, ATO countries have amended their forest laws since independence in order to obtain a practical and consistent regulation for the protection of their rainforests, including trade in wood.

• West African rain forests include tropical moist forests including semi-deciduous varieties distributed across nine West African countries -- Benin, Ghana, Guinea Bissau, Guinea, Ivory Coast, Liberia, Nigeria, Sierra Leone and Togo. Population growth exerts enormous pressure on these forests. One impact is that the rain forests are being destroyed for the economic benefits of logging and the need for arable land. In many respects the loss of African trees is not surprising given the increasing demand for fuel wood and forest products added to these other factors.

Cont…Cont…• The African Timber Organization member countries (ATO) eventually

acknowledged the interdependence between rural people and their forest environment. Customary law gives locals the right to use trees for firewood, fell trees for construction, and collect of forest products. It also gives rights for hunting or fishing and grazing or clearing of forests for subsistence agriculture. All other areas are called "protected forests." The term "protected" means that uncontrolled clearings and unauthorized logging are forbidden. Nonetheless, this distinction did not prevent the local population from exploiting forest land.

• Following World War Two, commercial exploitation increased to such an extent that no West African forestry department was capable of enforcing the law. In comparison with rain forests in other parts of the world in 1973, Africa showed the greatest encroachment although in total volume terms African timber production measured only one third compared to that of Asia. The difference was due to the varieties of trees in Africa forests and the demand for specific wood types in Europe.

FORESTRY REGULATIONS IN WEST FORESTRY REGULATIONS IN WEST AFRICA:AFRICA:

• Forestry regulations in West Africa were first implemented by colonial administrations, but they were not stringent enough to deter forest exploitation. The law of local customary usage rights equally hindered any effective implementation of forestry laws. It was not until the 1970s that the inadequate implementation of forest regulations appeared as it did elsewhere in the world.

THE TROPICAL FORESTRY ACTION PLANTHE TROPICAL FORESTRY ACTION PLAN• Some help has been provided by other organizations. The Tropical

Forestry Action Plan was conceived in 1987 by the World Resources Institute in cooperation with the Food and Agriculture Organization, the United Nations Development Program (UNDP) and the World Bank with hopes of halting tropical forest destruction. In its bid to stress forest conservation and development, the World Bank gave $103 million to developing countries, especially in Africa, to assist in developing long range forest conservation and management programs aimed at ending deforestation.

THE OVERVEIW OF SOME NOTABLE TROPICAL COUNTRIESTHE OVERVEIW OF SOME NOTABLE TROPICAL COUNTRIES

2. Malaysia:• Status of Tropical Forest Management 2005 25 Malaysia’s forests are generally well

managed, although there are differences between Peninsular Malaysia, which has the strongest approach, and Sabah and Sarawak; however, all regional forestry administrations are committed to achieving. The forest sector plays an important role in the Malaysian economy and is a significant employer. Already a major producer of value-added, wood-based products in the world market, this part of the sector is likely to continue to grow. A large part of its furniture manufacturing is based on rubber wood, which is grown in plantations, while much of the harvest from natural forests is still exported as plywood, sawn wood and logs. Well-organized and resourced forestry administrations at both federal and state levels have the capacity to ensure that concessionaires adhere to prescribed practices and to oversee the long-term management of the resource

2. Nigeria :• Status of Tropical Forest Management 2005 21 there are several obstacles to SFM

in Nigeria. These include the discretionary power of government to de-reserve or harvest the forests; the lack of a coherent forest policy; the prevalence of illegal logging and harvesting in most of the high-forest states; chronic under-resourcing of forestry programs and forest management; overlapping responsibilities among federal, state and local governments and excessive bureaucracy; the lack of inter-sectoral coordination; and the overall absence of reliable data on which to base forestry planning and development. Nigeria has a long history of forest management and the formal goal is to achieve self-sufficiency in all aspects of forest production; however, the country, once a significant exporter, is now a net importer of primary forest products and considerable work must be done to achieve this goal.

Cont…Cont…3. Indonesia:

Indonesia’s forest resource base is still vast, but it faces many threats that put its long-term sustainability in jeopardy. These include illegal logging; forest fires; deforestation through land encroachment; wasteful logging and processing; structural deficiencies and inefficiencies in forest industries; the indebtedness of forestry enterprises; unsettled land claims; inefficiencies in public forest administration, in particular in the process of decentralization; an inadequate base of human resources; inadequate monitoring and evaluation; and a lack of effective governance. On the other hand, significant progress has been made in the establishment of certification systems and information on the management of concessions is becoming increasingly available.

Cont…Cont…6. Colombia

The overall forest management situation in Colombia is not clear. On the one hand, advances have been made at the policy level in the priority activities identified under ITTO’s Objective 2000, including the approval of a forest policy, new forestry legislation and the formulation of forest management plans. Forests are administered within the wider context of environmental management, and existing policy goals emphasize protection and conservation functions as well as forest restoration and forest land rehabilitation. However, there is as yet no clear designation of the PFE and inadequate control of forest resources on the ground, in particular in the Amazon region; nor are silvicultural methods applied in natural production forests.

MAKING CERTIFICATION ACCESSIBLE TO MAKING CERTIFICATION ACCESSIBLE TO COMMUNITY AND SMALL HOLDERSCOMMUNITY AND SMALL HOLDERS

• When governance is weak the range of actors involved in illegal logging can include the military, police, forestry agency officers and other power holders. Local people may be in no position to resist their demands. In other instances, communities themselves may engage in destructive forestry practices because of the limited opportunities available to them.

• Alternatives are thus needed that enable local people to build decent livelihoods that do not undermine the resource base on which they depend. Certification offers the prospects of enabling local producers to gain a premium price for timber, while allowing forests to continue serving their ecological, environmental, and social functions. The hopes for certification in advancing sustainable forest management have been high. Certification has been described by the WWF as “the most important initiative of the last decade to promote better forest management”.

• The Indonesian Eco labeling Institute (LEI) has established a certification system specifically for community-based forest management. Two villages in central Java received certification for teak and mahogany forests on 22 October 2004. Innovative group certification models can be found in the Solomon Islands, while in Laos two provinces could soon receive certification for Village Forestry.

INVOLVEMANT OF LOCAL PEOPLE IN INVOLVEMANT OF LOCAL PEOPLE IN PLANTATION FORESTRYPLANTATION FORESTRY

• Planted forests are seen as having a critical role to play in forestry in the region. However, past and ongoing research by the Forest Conservation Project on individual reforestation and afforestation projects suggest that their potential for promoting sustainable forest management is sometimes impaired by a lack of local analysis. A consequence of not consulting with communities in the design and management of planted forests can be that they have little incentive to preserve forests. In some instances, local people may even seek to destroy plantations - burning of plantation forests by disgruntled local people has been acknowledged as one cause of the fires that ravaged Indonesia in 1998.

• In China, the Forest Conservation Project has been conducting research on the ‘Land Conversion Program from Cropland to Forest’, the biggest plantation program in history. Nineteen million hectares were planted between 1999 - 2004. Despite this remarkable achievement, our research suggests that the sustainability of the program in some locations may be jeopardized by a failure to sufficiently consider the concerns of local families responsible for managing the planted forests. Moreover, potential benefits to households have been obstructed by regulations that were fashioned without seeking their input.

Cont…Cont…• In Indonesia, research on teak forests examines a very different

setting but is reaching similar conclusions. Teak forests were first planted by the Dutch at the end of 19th century. The state owned forestry enterprise PN Perhutani (later renamed Perum Perhutani) became responsible for the management of forests after Indonesia won independence. Illegal cutting became prominent from the 1960s, leading to the failure of the plantations. The situation changed in 2001 when anew forestry regulation provided incentives for local people to preserve the forests by allowing continuous intercropping, cultivation under trees, and benefit sharing from thinning and final cutting. Growing recognition by Perum Perhutani that collaboration with local people was vital to reduce illegal cutting led to in-depth discussions and improved relations with farmer groups

““GATT” AND IT’S EFFECT ON GATT” AND IT’S EFFECT ON FOREST POLICIESFOREST POLICIES

• The General Agreement on Tariffs and Trade (GATT) is a multilateral trade agreement that establishes a common set of ground rules for world trade. The completion of the iteration of the GATT negotiations the Uruguay Round created the largest, most comprehensive set of trade agreements in history.

• However, the GATT also has the effect of infringing upon policies designed to meet environmental goals. For example, the GATT does not allow countries to ban the import of a product because of the way it was produced or harvested. This rule therefore prohibits countries from discriminating against forest products from unsustainably managed stands. Environmentally related export controls, too, can be restricted by trade agreements. Indonesia, the Philippines, and the U.S. are among those countries that have instituted bans or quotas on exports of unprocessed logs which have been challenged under the GATT. Subsidies and countervailing duties on imports two ways to compensate producers for meeting higher environmental standards than their competitors are also policy instruments that can be challenged as violations of free trade rules.

Cont…Cont…• In one of the disputes to raise concern, in June 1992, Austria

attempted to introduce a 70 percent tax on tropical timber, as well as a requirement that tropical timber be labeled as such, with an option to provide a second mark indicating whether or not it came from a sustainably managed stand. The Association of Southeast Asian Nations (ASEAN) complained that the Austrian law was a violation of the GATT because it did not apply to temperate timber as well.

• In retaliation, the ASEAN countries threatened to embargo all Austrian exports, jeopardizing $1.8 billion worth of contracts. In addition, other countries responded to the law by threatening to exclude Austria from the International Tropical Timber Organization (ITTO), reject Austrian development aid, and ban Austrian products in Asian markets. The Austrians experienced especially strong opposition from Malaysia, Indonesia, and the ITTO, which issued a decision denouncing the move. The ITTO said it would oppose any action that would undermine trade in timber products.

Cont…Cont…• The GATT also prevents countries from imposing export

bans, which they may want to use to protect their own forests. For example, a number of signatories to the ITTA, notably Indonesia and the Philippines, have instituted bans or quotas on exports of unprocessed logs with the specific aim of reducing resource depletion while creating employment and profits by stimulating the growth of their timber processing industries. The clear protectionist intent of these measures puts them directly in contravention of the GATT, and moves were taken to challenge the Indonesian ban.

Cont…Cont…• The potential for using GATT regulations to overturn trade measures which

conserve forests is underlined by the case of restrictions on unprocessed log exports from the Pacific Northwest. When the U.S. passed a law banning the export of unprocessed logs originating from federal lands in the contiguous western United States, Japan protested that the ban violated the GATT because it represented an attempt to secure supplies for the domestic industry in the U.S. To avoid the conflict, the U.S. Congress included language in the law which referred to forests as an exhaustible natural resource. Though the U.S. log export ban is currently being successfully implemented, the Japanese government's negotiating position in the Uruguay Round calls for GATT regulations to be tightened so that export bans on unprocessed logs could only be applied in conjunction with restrictions on exports of processed forestry products.

• One added policy instrument that could be challenged as a violation of free trade rules is the use of subsidies, which are one way to compensate producers for meeting higher environmental standards than their rivals. Trade agreements generally discourage subsidies, and provide for countervailing duties in some cases to compensate for their continued use. However, in addition to discouraging subsidies, the GATT also prevents countries from imposing countervailing duties on imports produced under lower environmental standards than their own.

Cont…Cont…• By discouraging the use of trade measures to achieve environmental goals,

the GATT interfere with the achievement of the ITTO's Target, the objective of an international tropical timber trade based entirely on sustainable forest management. The use of trade measures necessary to achieve these objectives is at best inhibited and at worst ruled out under the terms of the GATT. The established principle of the GATT that trade restrictions cannot be used to discriminate between "like products" on the basis of the method of production presents a fundamental contradiction between GATT regulations and the initiatives being developed by the ITTO to promote the sustainable management of tropical forests. It means that the signatories to the GATT cannot use tariffs, quotas, or bans to favor trade in sustainably rather than unsustainably produced tropical timber.

• The case of export bans also indicates the need to define how sustainable forest management can be made compatible with the GATT. If the Japanese proposal for Uruguay Round revision for log export bans is adopted by the GATT, this amendment would have the effect of reinforcing domestic political pressure working against restrictions on log exports which serve conservation purposes by limiting the domestic wood products industry. It would also further impinge on the sovereignty of producer countries over their own natural resources, the importance of which is recognized in Article 1 of the ITTA.

FOREST AUDITINGFOREST AUDITING• In US the DNR (Depart. Of Natural Resources) completed a field audit of its forest

management practices and polices, as required by FSC (Forest Stewardship Council) and SFI (Sustainable Forest Institute) to attain a certificate, during the fall of 2005. Scientific Certification Systems (the DNR's certification auditors), stakeholders, and DNR personnel spent two weeks traveling the state conducting the field audit. Over the course of those two weeks the DNR's auditors traveled 4,500 miles, visited 128 forest management sites, met with 112 DNR field staff, reviewed stacks of DNR forest management documents, and interviewed stakeholders across the state.

• The field audit is a process where the auditors compared the DNR forest management practices and policies with the FSC and SFI standards. The auditors were looking for forest management practices and polices that met the criteria outlined in the standards and for areas that did not meet the standards. For example, does the DNR follow the Minnesota Forest Resource Council's  site-level guidelines? This requirement is a criterion in both the FSC and SFI standard.

• The DNR's auditors used the data, documentation, and observations gathered during the audit to determine if the DNR's forest management met the strict standards set by FSC and SFI and ultimately, whether to award the DNR forest certification

FOREST CONVENTIONFOREST CONVENTIONThere are two distinct schools of thought on the issue of whether to hold forest convention or not.

The first school of thought under the banner of ‘International Citizen Declaration Against A Global Forest Convention’ which is comprise of many governmental agencies and NGO’s from Africa e.g. African Forest Action Network (AFAN), Asia and Russia e.g. Citizens Alliance for Saving the Atmosphere and the Earth (CASA) - Japan, America e.g. The Arctic to Amazonian Alliance - U.S. and Europe, e.g. ARA (Working Group on Rainforests and Biodiversity) - Germany opposed to the opinion.

• Their opposition is based first and foremost on their concern about the fate of the world's forests and the people who depend on forests for their subsistence and survival, the organizations thereby declare their firm opposition to the negotiation of a global forest convention. They call on world leaders to reject the convention, and instead to pursue an alternative strategy to safeguard the world's forests from further decline.

• The second school of thought holds that Global Forest Convention could ensure comprehensive, sustainable development and management, and that the convention could ensure a holistic approach to the sustainable management of forest. One of those who hold this opinion is Netherlands Environment Minister Nitin Desai

Abdul Azeez Maruf Olayemi

‘‘EIAEIA’ ’ EIA is a procedure designed to identify and foresee the effects that laws, regulations, programmes or projects may have on the environment. EIA therefore, include useful information having a bearing on those effects, and they also include alternative solutions.

It is an a priori assessment, a costs/benefits analysis for the environment which can be expected from a given action and its variants.

In modern times forestry legislation was probably among the first to promote the idea that development and protection of the environment must go hand in hand. Laws like the French Code forestier of 1827 or the Spanish Ley de Montes of 1864 combined the concepts of production and conservation. They contained ecological concerns long before the adjective had become part of everyday vocabulary

Cont…Cont…• The Malaysian EIA procedures are comparable to the National

Environmental Policy Act 1969 (NEPA) model in the United States. The Environmental Quality (Prescribed Activities) (Environmental Impact Assessment) Order 1987 was gazetted as a project planning tool for new projects or the expansion of existing ones. Section 34A of the Environmental Quality (Amendment) Act 1985 requires anyone who intends to undertake a prescribed activity to first conduct a study to assess the likely environmental impacts that will occur from that activity and the mitigating measures that need to be undertaken. The Environmental Quality (Prescribed Activities) (EIA) Order 1987 specifies some 19 categories of activities requiring EIA reports prior to implementation.

• It has taken considerable effort on the part of the DOE to improve the understanding and acceptance of the EIA requirements on the part of state and federal agencies and private sector developers. The Department has established offices in state capitals to promote more effective co-ordination with state government bureaucracy and developers and the processing of EIA reports has been progressively decentralized to these regional DOE offices since 1993.

Cont…Cont…• In the Sarawak State on the island of Bomeo in Eastern Malaysia

the majority of the EIA reports have been related to petroleum and related industrial development projects in Bintulu region. The major constraint on the effectiveness of the Federal government EIA procedures in Malaysia pertains to constitutional limits on its jurisdiction with respect to environmental management. Under the Malaysian Federal Constitution land and water are under the purview of State governments. Each State is empowered to enact laws on forestry, water resources, mining, wildlife and fisheries. The management of these resources is beyond the scope of the EQA and the role of the DOE. State government decisions over the allocation and management of these resources tend to be politically sensitive issues and the Federal government has to tread warily to avoid being perceived to interfere in State matters. As discussed below, this is particularly the case with the two Borneo States of Sarawak and Sabah in Eastern Malaysia on account of their distinct ethnic identity and the special provisions in the Malaysian constitution when they became members of the Federation in 1963.

Cont…Cont…• Bakun Dam Case

• How ever, conflict ensued between the Federal Government and State of Sarawak over the …… The constitutional jurisdiction of the State of Sarawak to undertake an EIA role has proved to be a controversial issue and has been tested in the Malaysian Courts. The case relate to the proposed Bakun Dam which was reviewed under the new Sarawak EIA procedures. It was alleged that the State Government, with the apparent collusion of the Federal Government, had used the State EIA procedures to facilitate the path of the controversial Bakun Hydroelectricity Project on the upper Rajang River in the heart of the remaining vestiges of the tropical rainforests.

• Credence to this view was provided by the manner in which the amendment to the Federal EQA was enacted to exempt the State of Sarawak from its purview and the consequent confusion that arose subsequently about the manner in which the Bakun EIA reports were reviewed. The Court of Appeal, however, rejected this Machiavellian explanation in favour of bureaucratic ineptitude within federal government.

Abdul Azeez Maruf Olayemi

Cont…Cont…The High Court had treated the Amendment Order as the focal point of the case. The Court of Appeal changed the focus of deliberations from the validity or otherwise of a Federal or State law to a much narrower ‘question of interpretation of the Federal Constitution in relation to the applicability of the EQA to Sarawak.’ (Court of Appeal Judgment, page 23). Since the place where the power is to be generated is land and water, and thus the ‘environment’ in question lies wholly within the legislative and constitutional province of the State of Sarawak, it concluded that the State has exclusive authority to regulate by legislation, the use of it in such manner as it deems fit.

Conclusion

• In conclusion, it should be observed from the discussion that there is a need to fashion out a better strategy and guideline for the preservation and conservation of our natural forest to ensure its sustainability. In this regard the clamour for a global convention on forest is supported but, with the caveat that the national sovereignty of the tropical forest nations will be regarded and that the local people will be given their entitlements.

Wallahu Ta’ala a’alam

Thank you for the audience

Abdul Azeez Maruf Olayemi