Last week, we commenced our discussion of the Forests Act 2009 that the National Assembly approved on 22 January 2009. However, it was not until 12 October 2010 that the then President assented to it. In addition, the concerned Minister did not sign the related Order to bring the Act into operation until 8 August 2012. The total delay was therefore over three and one half years, an unsatisfactory state of affairs by any standards, given the importance of this legislation. The predecessor Act was the Forests Act 1953, Chapter 67:01, as amended from time to time. Therefore, the 1953 Act was applicable until 7 August 2012, as pointed out by two forestry experts, Janette Bulkan and John Palmer.
The main point about last week’s article relates to exploratory permits. The holder of such a permit is only allowed to cut and take specified kinds and quantities of forest produce from the exploratory area for testing, research and limited commercial purposes. The extent to which this could happen is to recoup no more than a certain percentage of the costs and expenses incurred in the exploratory operations during the life of the permit. That percentage is specified by regulations or where no percentage is prescribed, 25 per cent. We now learn that to date no regulations have been made under the new Act and therefore the latter applies. It is also important to note that capital expenditure, such as the purchase of vehicles and equipment, is not included in the computation.
An exploratory permit expires on the earlier of the expiry date contained in the permit or on the third anniversary of the permit. 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.
State Forest Authorizations
A State forest authorization is an exploratory permit, a concession, a use permit, an afforestation agreement, or a community forest management agreement. It does not give exclusive right of occupation over the area unless specified in the authorization nor does it permit the holder to occupy or take any forest produce from any land that is lawfully occupied by any person or group. Where such an authorization is in force in respect of any forest produce in any area, no other authorization can be granted in respect of the same kind of forest produce in that area.
A State forest authorisation cannot be granted to two or more persons associated together in a joint venture unless each of them qualifies under the Act for the grant of such an authorization. In addition, the holder cannot engage or be involved in any act that results or is likely to result in a change of effective control, including transferring the authorisation or entering into a sub-contracting, sub-letting arrangement. If this happens, the holder has to give written notice to the Commission and surrender the authorisation. Any such transfer, sub-contracting or sub-letting arrangement is void, and the authorization is deemed revoked.
A State forest authorization may be suspended at any time if the Commissioner believes that the holder: (a) commits an offence under the Act or has breached the Act; or (b) is incapable of carrying out operations in accordance with the authorization, any applicable forest management plan or annual operations plan. For authorizations covering more than 8,097 hectares, the holder is given reasonable opportunity to remedy or rectify the matter(s) giving rise to the suspension. However, an authorization can be suspended if the Commissioner is satisfied that the delay can result in irreversible degradation of or irremediable damage to the forest concerned.
The suspension of a State forest authorization lapses after six months unless the Commission has made a decision on the matter giving rise to the suspension. However, a suspension cannot exceed one year, and there is provision for amendment to the authorization or for revoking it. Notwithstanding this, at any time the Commission may amend a State forest authorization by written agreement with the holder. A holder can also surrender his/her authorization at any time by giving written notice to the Commission. All movable property is to be removed with 90 days after expiry, surrender or revocation of a State forest authorization.
Forest Conservation
The purpose of this section is to provide for the protection and conservation of forests, including measures to: (a) conserve biodiversity; (b) protect specific trees and plants; (c) conserve soil and water resources; and (d) protect forests against degradation, fires, pests and diseases.
The Environmental Protection Agency (EPA) may, by public notice, make an order declaring a specified area of State forest to be a specially protected area for a specified period not exceeding 25 years. Any such order prohibits any disturbance of the soil, vegetation, rivers or creeks in that specially protected area. However, before making the order, the EPA must publicly give notification of the proposed order and the reason(s) for making it.
In addition, the EPA is required to provide other forms of publicity to bring it to the attention of all persons who may be affected. It must also invite written submissions, hold public hearings, and consult with the Commission in relation to the proposed order. Further, the concerned Minister has to give his/her approval after considering the advice of the Commission. The order is subject to negative resolution of the National Assembly.
Sections 26-29 deal with procedures relating to fire prevention, fire protection area, exemption for protection and management of state forest, duty to report fires, duty to put out fires, and assistance in fire and natural disasters. These provisions are very much straightforward and need not detain us.
On the advice of the Commission, the Minister by public notice may make an order declaring any species of tree or plant to be a protected species, and cutting, damage and removal are either prohibited or restricted. The Minister may also issue a similar order in respect of any forest on private land. In this case, the prohibition or restriction includes other forest operations; exploratory operations; clearing and cultivating of land; and grazing and pasturing of livestock, among others. When this happens, the State is required to provide adequate compensation to the owner and lawful occupier of any such land for the disturbance of their rights, including fair value of all forest produce the owner or occupier is entitled to remove from the land. Both orders are subject to negative resolution in the National Assembly.
Code of Practice for Forest Operations
The Commission is required to submit to the Minister a proposed code of practice to regulate any class or description of forest operations. The Minister in turn must notify the public of this and invite written submissions. He/she then consults with the Commission based on submissions received, after which public hearings are held. After due consideration, the Minister adopts the code of practice, with or without any changes. The code is subject to negative resolution of the National Assembly.
The Commission must notify the public of the adoption of the code of practice. No person shall carry out any forest operations in breach of the code. If a code is inconsistent with a regulation or an order, to the extent of the inconsistency, that code is of no effect. The Commission may at any time submit to the Minister proposed amendments to the code, and the same procedures are followed in terms of informing the public, receiving written submissions and the holding of hearings.
Removal of Forest Produce
Removal and conveyance of forest produce cannot take place except in accordance with a removal permit. Such a permit is granted to a person who is entitled to take forest produce on the land concerned or to any other person acting under that person’s authority. In addition, as regards the removal of forest produce from an entry point in Guyana, a permit is granted to the person importing the produce or any other person acting on that person behalf.
The importation of any forest produce from any country is strictly prohibited unless the Minister grants an import licence. No importation can take place if the produce is obtained unlawfully from another country. Should there be a prosecution in this regard, the burden of proof rests with the defendant.
