‘The rule of law? – not in the forest sector of Guyana’

In November 2009, the Government of Guyana signed a Memorandum of Understanding with Norway that provides for Guyana to demonstrate transparency and improved governance in the forest sector.  The associated Joint Concept Note was revised in March 2011.  The required REDD-plus Governance Development Plan requires movement towards independent forest monitoring, and negotiation towards a voluntary partnership agreement under the European Union’s action plan (2003) for Forest Law Enforcement, Governance and Trade (FLEGT).  A citizen might suppose, therefore, that the Guyana Forestry Commission (GFC) would be working hard to remove and prevent all traces of illegalities in the forest sector.  Indeed, on 26 January 2011 the then junior Minister for Forestry, Robert Persaud, “disclosed that there has been a decrease in infractions and illegalities in the forestry sector indicating a positive trend of compliance. The sector is at a 99 percent level of legality however, 100 percent needs to be achieved”(http://www.agriculture.gov.gy/Bulletins/January%202011/Emphasis%20placed%20on%20sustaining%20legalit...).

Just how the Minister determined that legality was so dominant is not clear.  Contrary to international practice, the Guyana Legality Assurance System (GLAS, available in printed but not electronic form from the Guyana National Bureau of Standards, report GYS 496:2010) does not have a definition of legality.  The numerous defects in the draft GLAS were pointed out by the consultancy firm, Efeca, in its May 2011 report, released in August and handed to the Minister by USAID in mid-October, as reported in a Stabroek News article of 12 October 2011, ‘US report could help enhance Guyana’s forestry’.  This report is not on the GFC’s website.  However, significantly overlapping with Efeca’s study, GFA Consulting Group’s scoping report on independent forest monitoring, released on 16 December and accessible through the GFC website, also encountered many problems (SN news item, 24 December 2011 – ‘Assessment finds several weaknesses in forestry commission practice’).  Efeca noted, but GFA did not, that the GFC’s pretence that the Forests Act 2009 was valid law was misleading.  In legal terms, the Forests Act (cap. 67:01) continues to be the 1953 Act as amended to 1997.

Any GFC practice of using the 2009 Act to define forest offences or to prescribe penalties from the 2009 Act would be incorrect.  Indeed, insofar as the Board of Directors of the GFC has allowed the GFC staff to impose penalties with reference to the 2009 Act, that Board is itself guilty of an offence under Article 44 of the Interpretation and General Clauses Act (cap. 2:01 of 1970) and liable to prosecution.  No doubt the new Attorney General will be aware of this matter.

All logs extracted from concessions in State Forests, from agricultural or mining leases, or from Amerindian lands, should carry GFC-issued bar-coded timber tags.  Half of each tag should be nailed to the tree stump and the other half to the log.  In forests purportedly under sustainable forest management, the GFC should be able to match the log to the stump, and in 2010-11 it claimed to have matched 29 per cent of all issued tags.  In forests not under long-term management, trees and stumps may be cleared by agriculture or mining or road building so that tag matching may be impossible.  Huge amounts of logs supposedly coming from small agricultural leases or conversion forest lands probably include logs felled illegally elsewhere but are reported for GFC removal and transshipment passes as coming from such leases.

Logs can be exported legally only by holders of GFC logging concessions, or agricultural leases or titled Amerindian Village Lands.  The junior Minister’s order in 2009 does not say that the logs must come from trees on those same lands, so it is quite legal for concession holders to buy logs from other sources and to export them.

As shown by the 130 logs intercepted in transit in Jamaica and associated with a cocaine shipment (SN news item, 21 March 2011 – “Timber cocaine switched ships’), surprising quantities of high-value logs are apparently being exported by holders of hinterland agricultural leases and small and short-term logging concessions to enterprises in China and India.  How is it that such rural communities are so well connected to industries in China and India?  Of course, they are not.  The log traders are making use of Article 241 in the Customs Act (Cap. 82:01) that allows a broker to present documents on behalf of a client.  The log traders – who may be citizens of China or Guyana or India, and who may be scrap iron dealers or restaurant owners or have shops selling imported clothes from China – pay in cash for the logs delivered to the roadside or to an address in Georgetown.  The amount paid is about one tenth of the value of the logs landed in China.  The traders also pay a token fee of around US$ 2 per Removal Pass to make use of the name of the concession or lease holder for passing the documents through the GFC and the Customs and Trade Administration of the Guyana Revenue Authority (GRA).

This practice is illegal in that the Forests Act makes no provision for the use of brokers to manage documents in this way, to obtain timber grading or export certificates.  In addition, it is an offence against Article 158 of the Customs Act to make a false declaration.  As the logs have been sold for cash to the log trader/broker, the use of the original owner’s name on the GFC and Customs documents is illegal.

Timber logs worth as much as US$36 million when landed in China are said to have been exported from just one region of Guyana in 2010-11, using these illegal practices.  Could Minister Robert Persaud now justify his claim that Guyana forestry is 99 per cent legal? Is the GRA making any attempt to tax the traders’ income from the sale of logs to China or India?