The intent and purpose of the CRL appears to be to recognize the inherent rights of communities over their forest resources, so that they make autonomous decisions about how forest resources are used, in accordance with management and technical standards established by the FDA. In this manner, the collective rights of communities over their forest resources are both recognized and regulated – a delicate balancing act.
The Regulations, in many respects, reflect this. However, there are various provisions within the Regulations that disrupt this equilibrium by awarding the FDA more authority than is envisaged in the CRL. On other occasions, the Regulations establish requirements or prohibitions, which, on their face, contradict what is written in the CRL. These inconsistencies can partly be explained as an attempt to remedy faults in the CRL, belatedly identified, following its passage.
Despite the apparent well-intentioned rationale, these actions are more than likely in contravention of the law. The deficiencies of the CRL cannot, in the majority of cases, be addressed through the promulgation of regulations. Regulations must conform to both the letter and the spirit of the law from which they are developed. The following analysis and recommendations aim to ensure that the Regulations are harmonized with the CRL, and that, where possible, the apparent concerns of the FDA are addressed.
Structure of Report
The report separates the harmonization of the Regulations and CRL into two parts: (1) conceptual inconsistencies between the CRL and the implementing regulations; and (2) operational inconsistencies between the CRL and the implementing regulations. Each inconsistency is identified and explained, followed by recommendations as to how the Regulations could be harmonized with the CRL. Once this has been completed, the report will address (3) inconsistencies between the CRL, Regulations and other laws; (4) inconsistencies within the CRL itself; and (5) provisions within the Regulations that are unclear or ambiguous.