In the light of the public outrage at the extent to which certain foreign companies are reported to be carrying out logging operations in Guyana and exporting logs, I have decided to examine the Forests Act 2009 to have a better understanding of it and to share that understanding with readers. In this way, we would be able to ascertain whether the operations of these companies are consistent with the law, especially in the midst of conflicting reports highlighted in the print media over the last few weeks.
The Forests Act 2009 was assented to on 12 October 2010. It consolidates and amends the law relating to, among others, the sustainable management and conservation of forest resources. The Act is long and complicated. As such, I ask that readers bear with me if my examination of the Act takes several columns. I hope that at the end, I would be able to make some conclusions as regards the operations of these foreign companies.
Section 5: Restrictions on
Activities in State Forests
Only persons with State forest authorizations, petroleum licences or mineral licences are permitted to have access to State forests and to engage in activities consistent with their authorizations or licences. Of course, persons can travel through a State forest for the purpose of their journeys. The restriction also does not apply to Amerindian villages and communities once access and use are in relation to sustainable non-commercial practices.
Sections 6-8: Forest
Concession Agreement
Persons may apply to the Guyana Forestry Commission for the grant of a forest concession. A concession is granted if the Commission determines that the applicant: (a) meets the financial and technical requirements in addition to history of compliance; and (b) has good faith intention as well as the competence and resources. A legally binding agreement is then entered into, specifying the quantity and kind of forest produce to be harvested, as well as a commitment to engage in conservation activities. A concession may also be granted to carry out forest conservation operations in an area even if forest produce suitable for commercial use occurs in the area. The expiry date of a concession is per agreement or for 40 years whichever is earlier. There is provision for the renewal of a concession only if the holder does not default in the earlier agreement.
There is also provision for the grant or renewal of smaller concessions based on a public notice, or other forms of publicity, inviting interested persons to apply. A smaller concession is defined as having the size of 8,097 hectares (approximately 20,000 acres or 31 square miles) or less. In relation to a forest area larger than 8,097 hectares, a concession can only be granted if the applicant is the holder of an exploratory permit; or if the applicant has satisfied compliance and other requirements to carry out forest conservation operations in the area concerned. A key requirement is for there to be in place a forest management plan of at least five years’ duration as well as an annual operations plan, duly approved by the Commission.
Section 9: Exploratory Permits
A person may apply for the grant of a permit to carry out exploratory operations within a specified area of State forest with a view to subsequently applying for a concession in that area. The application must be in response to a public notice or other forms of publicity, as the Commission deems necessary to bring to the attention of persons interested in applying for an exploratory permit.
The Commission is required to evaluate the technical and financial qualifications as well as history of compliance of applicants. If it is satisfied that an applicant meets these requirements, the Commission invites the applicant to submit a bid specifying the premium he/she is offering to pay for the permit. The premium must be above the minimum value specified by the Commission. If more than one applicant qualifies, the permit is granted through negotiations with the qualified applicants, or the permit is offered through competitive bidding in accordance with the regulations.
Once the exploratory permit is granted, the holder is only allowed to do the following:
To cut and take specified kinds and quantities of forest produce from the exploratory area for testing, research and limited commercial purposes to the extent necessary to recoup no more than the appointed percentage of the costs and expenses (excluding capital expenditure) incurred in the exploratory operations during the life of the permit.
Appointed percentage is defined as the percentage prescribed by regulations, or where no percentage is prescribed, 25 per cent. It is important to emphasise that capital costs, such as the purchase of vehicles and equipment, are excluded from the calculation. This would require the holder of the permit to submit periodic financial returns attesting to its operational costs. The Commission in turn will have to put in place mechanisms to ensure that the holder does not exceed the percentage requirement.
An exploratory permit expires on the earlier of the expiry date contained in the permit or on the third anniversary of the permit. In other words, an exploratory permit is valid only for a maximum of three years. The law does not allow for the renewal of an exploratory permit. However, while the permit is in force, the holder may apply for a concession in respect of all or part of the exploratory area.
Section 10: Use Permit
This section provides for persons to apply to the Commission for the grant of a Use Permit to carry out one or more of the following: scientific research; education training; recreation or eco-tourism; taking photographs, making films or videos and sound recordings; or any other purpose after public notification. The permit is granted after due consultation with the relevant stakeholders.
The holder of a permit cannot cut or take any forest produce unless needed for bone fide scientific research in which case the permit will specify the quantity and kind of produce to be cut and taken. The permit expires on the date specified in the permit or at the end of the calendar year in which it was issued. However, a permit can be renewed before it expires.
Section 11: Community
Forest Management
Communities are permitted to use forest resources to meet local needs in terms of income generation and economic development on a sustainable basis and with due consideration to the enhancement of environmental stability. Upon application by a community group, the Commission may enter into a forest management agreement authorizing the group to undertake activities consistent with the agreement.
The Commission has to be satisfied that the persons involved have been given a free and fair opportunity to join or otherwise participate in the affairs of the group. They must also be living in close proximity to the specified forest area in addition to strong traditional ties with the area. The agreement expires on the date stated in the agreement or on the second anniversary of the agreement, whichever is earlier.
Section 12: Afforestation Agreement
After consultation with the relevant stakeholders, the Commission upon application may enter into an agreement with a person authorizing him/her to plant specified trees and plants in a specified area of a State forest and to manage the planted area in accordance with a forestry management plan approved by the Commission.
Section 13: Security Bond
A holder of a State forest authorization (other than a community forest management agreement) must execute and pay a bond as security for: (a) performance and observance of the conditions stipulated in the authorization; and (b) fulfillment of all his/her responsibilities under the Act, including payment of any fine, charge levy, premium, fine, penalty, costs, expense or other moneys. The holder must also replenish the bond from time to time, if part or all of it is forfeited.
The requirement for the execution of a bond is mandatory for the grant or renewal of all concessions and exploratory permits. However, in exceptional circumstances, the Commission may waive this requirement by public notification and must state the reason(s) for doing so.
