A Review of the Regulatory Framework- GTLAS Agencies

Introduction

• The purpose of the Consultancy was to review and compare Institutional Acts, procedures and mandates, of GTLAS Agencies to identify potential overlaps and gaps with respect to the implementation of the GTLAS and the Legality Definition.

• A total number of ten findings were raised with regard to the review of the regulatory framework of the VPA. The effect of these findings is that the Legality Definition will require some minor amendments to ensure that the VPA can be ratified and brought into force. A number of findings require attention, however these do not affect the implementation of the VPA

Limitation

• Participation of stakeholders including agencies.

Finding 1

• Finding 1: Village Council lawfully appointed in accordance with the Amerindian Act Cap 29:01
• The Village Council although it is the lawful authority according to section 10 of the Amerindian Act, Chapter 29:01, mandated to manage the affairs of the village, it is not the legally constituted entity to be regarded as an FSO to engage in forest sector operations.

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To be classified as an FSO the Village Council should:

• Incorporate a company according to section 8 of the Companies Act, Chapter 89:01; or
• Register as a business name according to section 5 of the Business Names (Registration) Act Chapter 90:05; or
• Register as a Co-operative society according to section 7 and section 9 of the Co-operative Societies Act, Chapter 88:01.

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Finding 2

The Friendly Society has an Acknowledgment of Registration

The VPA requires that all FSOs be able to legally conduct forest sector operations. To comply with this requirement, an FSO whether it is a natural person or body corporate, must be registered either as a:

• business name according to the Business Names (Registration) Act, Chapter 90:05, a Partnership according to the Partnership Act, Chapter 89:02,
• Company according to the Companies Act, Chapter 89:01, a Co-operative Society according to the Co-operative Societies Act, Chapter 88:01 or
• Friendly Society according to the Friendly Societies Act, Chapter 36:04.

While all the forms of registration allow for the creation of a legal entity, the entity created by the Friendly Societies Act, Chapter 36:04 is usually for charitable purposes as only certain classes of friendly societies can be created under the Act. There is no provision under the Friendly Societies Act for friendly Societies to be engaged in logging on a commercial scale.

Recommendation

Where there are FSO’s registered under the Friendly Societies Act, Chapter 36:04 should review their registration and FSO’s registered as a Friendly Society change their registration to operate as a Business Name, Company, Partnership or Co-operative Society.

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Finding 3

• Definition of "traditional rights" as defined within the Amerindian Act 2009.
• There were concerns by some FSOs, particularly Iwokrama and Demerara Timbers whose forest concessions borders with Amerindian Villages, that the definition of “traditional rights” as set out in section 2 of the Amerindian Act, Chapter 29:01 is too vague and it leads to abuse at times by Amerindians indiscriminately cutting trees within their concessions without their consent, who then claim that they have a traditional right to do so.
• Section 2 of the Amerindian Act, Chapter 29:01 does not itemise the actions or rights that may be considered “traditional” but does speak to a right or privilege that was in existence before the Amerindian Act came into force.

Recommendation

• A committee of Amerindian leaders (Guyana Forestry Commission, Ministry of Legal Affair, Ministry of Amerindian Affairs, The National Toshaos’ Council, and Amerindian NGOs) and relevant interest groups be established and meet to set clear guidelines as to what practices are considered traditional practices within the different Amerindian communities as these may vary from community to community.

Finding 4

• Application of Security Bond
• The GFC confirms that it is currently not requiring FSOs to execute and pay a security bond which is a mandatory requirement of section 13 of the Forest Act 2009. The GFC indicated that the application of the security bond can be a financial burden on FSOs entering the forest sector. It was indicated by the GFC that the imposition of the provisions section 68 of the Forest Act 2009 counterbalances the GFC’s non-implementation of the security bond.

Recommendation

• The application of the security bond is a mandatory requirement of section 13 of the Forest Act 2009 and the GFC can only refuse to implement the provisions of section 13 if it follows the guidelines set out therein which require that:
• there must be exceptional circumstances that prevent the application of the security bond, and
• where such exceptional circumstances exist the GFC may waive the requirement for the security bond. However, before this is undertaken the GFC must publicly notify that the waiver was granted and the Commission's reasons for granting it

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Finding 7

• Issuance of State Forest authorization without statutory authority/ compliance
• The issuance of State Forest Authorization to Forest Sector Operators pursuant to section 6 and section 8 of the Forest Act 2009 by the GFC without the EPA first issuing the Environmental Permit pursuant to section 11 of the Environmental Protection Act Chapter 20:05 is a cause for concern as this affects the legal validity of all timber produced within Guyana. This practice by the Guyana Forestry Commission is a breach of the Environmental Protection Act, Chapter 20:05 and it should cease immediately.

Recommendation

• The GFC should only issue new SFA’s or renew a SFA pursuant to sections 6 and section 8 of the Forest Act 2009 where it is in receipt of an environmental permit from the FSO which has been issued by the EPA pursuant to section 11 of the Environmental Protection Act, Chapter 20:05.
• EPA should ensure that it completes the necessary investigation within the six weeks period allowed by the Environmental Protection Act and issue the environmental permit within that timeline.

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Other Findings/Next steps

• Finding 5: Mining and its impact on forestry – is there a better way of allowing timber cleared for mining to be removed in a more efficient way
• Finding 6: Information sharing between land management agencies
• Efforts are being made for land management agencies to meet to agree on the best way forward.

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Next Steps

FGMC2 will fund a review

• Have another review (2^nd opinion); especially since there was some limited participation of stakeholders
• What approaches will operationalize the recommendation and still meet the needs of the VPA; Board Review
• Harmonization of the legislation.

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