Document Type: Briefs

Community forestry (CF) is dependent upon Forest Community members being aware of their rights to forest resources; fully appreciating the benefits they derive from their forest resources; and being able to meaningfully participate in the decision-making process over how their forest resources are used. In recognition of this, Section 2.2.(c) of the Community Rights Law of 2009 with Respect to Forest Lands (CRL) establishes, “[a]ny decision, agreement or activity affecting the status or use of community forest resources shall not proceed without the prior, free, informed consent of the said community.” In theory, the requirement for free, prior and informed consent (FPIC) prevents communities from being taken advantage of. This is based on the principle that if communities are aware of the true value of their forest resources, and able to make decisions about how those resources are to be used without being unduly influenced by external actors, they will be able to act in their own best interests.

The high value of forest resources continues to attract the attention of logging companies, who, understandably, seek to profit from the commercial exploitation of timber. As the Public Use Permit (PUP) scandal demonstrated, unscrupulous companies are able and willing to exploit loopholes in the law to avoid consulting and working with communities, if given the opportunity. Sadly, what occurred with PUPs also demonstrated that community leaders could be co-opted to secure commercial terms that benefited logging companies, to the detriment of the majority of community members. Such cases illustrate the need for effective measures to ensure compliance with FPIC in order to protect communities from predatory companies, and from elites that would otherwise seek to exploit the people whose interests they are supposed to represent. This imperative is even more urgent now that it has become clear that many companies are attempting to use the CF program in the same manner as they did PUPs – to circumvent the more stringent regulations for the commercial harvesting of timber, as established under the National Forestry Reform Law (NFRL), the Ten Core Regulations, and the Liberia Code of Timber Harvesting (LCTH).

Forest Communities may very well be interested in commercially exploiting their forest resources – in fact, the CF program assumes they will do so – but they must be given an opportunity to make that choice and to meaningfully influence the decision-making process. And they must be able to benefit from any such arrangement. This policy brief will look at what FPIC means under the CRL, how some companies are attempting to circumvent the legal requirements, and what might be done to improve the current regime.

Liberia has developed a progressive legal and policy framework that recognizes and legitimizes the role of communities in governing the nation’s natural resources. The 1984 Constitution commits to managing natural resources in a way that maximizes the participation of all Liberians, and “advance[s] the general welfare of the Liberian people.”i The 2006 National Forestry Reform Law (NFRL) recognizes communities’ role in forest management and the 2009 Community Rights Law with respect to Forestland (CRL) gives communities ownership rights over forest resources. Most recently, the Land Commission and the Governance Commission presented policies that render customary land rights equal in law to private land rights (Land Rights Policy), and devolves authority from Monrovia to the counties (Draft Local Government Act).

Despite these progressive reforms, more than 50 percent of Liberia’s land base has been placed under agriculture, forest, and mining concessions. The majority of these concessions were granted on customary community land, without the consultation or free and prior informed consent (FPIC) of the affected communities as required by the Public Procurement and Concession Act. ii The contradiction between policy and practices clearly demonstrates the significant gap between law and reality in Liberia. This policy brief draws upon experiences in the community forestry sector implementing the CRL and its Regulations, and presents options and processes to ensure that moving forward the spirit of the law is carried out, and communities receive benefits from the land and resources already mortgaged to concessionaires.

Following passage of the Community Rights Law of 2009 with Respect to Forest Lands (CRL), and the subsequent promulgation of the implementing regulations (“the Regulations”), stakeholders identified numerous inconsistencies between the two legal instruments.1 In response, the Forestry Development Authority (FDA) effectively halted the expansion of the community forestry program until the law and regulations could be harmonized. With support from the Voluntary Partnership Agreement’s (VPA) Joint Implementation Committee (JIC) a Regulations Harmonization Committee (RHC) and a USAID-supported consultant identified inconsistencies between the two instruments, and made recommendations as to how the Regulations should be altered.

The analysis revealed that some of the provisions within the Regulations directly contradict what is written in the CRL, and are therefore unenforceable. Moreover, some of these regulatory provisions were likely intended to protect communities from being unduly influenced and exploited by those with commercial interests in the forestry sector. In response, some stakeholders have called for the CRL to be amended, so the intended protections can be enshrined.

However, the passage of the CRL was tortuous, and the rights of communities hard won, so reopening the process would likely be difficult and there would be no guarantee that the amended legislation would accomplish this objective. This policy brief explores whether it would be more constructive, and effective, to focus upon implementation within the existing legal framework, rather than seek amendment of the CRL.

This brief argues that expansion of the Protected Area system through support from the Norway/Liberia partnership requires careful scrutiny of existing land rights in the proposed Protected Areas. Areas that have been proposed for Protected Area management should be carefully surveyed to identify existing community rights to land so as to provide communities with the option of managing the land as community forests. Alternatively, under the proposed Land Rights Legislation, communities could receive benefits if the land is recognized as customarily owned, but “taken” for inclusion in the Protected Area network. Finally, because of the potential that much of the proposed Protected Areas will fall within community’s customary lands, this brief urges consideration of the option to funnel resources for Protected Area management through community forest management mechanisms.

Political and administrative authority has, from the Liberian Republic’s inception, been concentrated in the capital. As the preamble to the National Policy on Decentralization and Local Governance (“Decentralization Policy”) points out, “since 1847 and throughout the history of Liberia, governance and public administration have remained highly centralized in Monrovia and controlled mainly by institutions and structures of the central state, which have not allowed adequate legal opportunities for the establishment of a system of participatory governance.” The Government of Liberia’s (GoL) Decentralization Policy, which has now been converted into the Draft Local Government Act of 2013 (LGA), aims to address this problem by devolving authority over a range of issues and services to the fifteen counties and other subordinate administrative units.

County Administrations will have new powers to raise their own revenue, plan and implement development projects, and manage natural resources, all of which will affect community forestry (CF). The potential for disruption to the CF program is high, as it was established relatively recently – the Community Rights Law with Respect to Forest Lands (CRL) was passed in 2009, while the implementing regulations (“CRL Regulations”), which are currently being reworked, were promulgated in 2011 – and is still being programmatically developed. At the same time, the decentralization process could greatly benefit CF because local government is, by definition, closer, which means it is potentially more accessible, responsive, and accountable. This policy brief will look at how CF will likely be impacted by the passage of the LGA, and specifically how the Departments of Land, Environment and Natural Resource Management, proposed therein, will need to be considered by the Forestry Development Authority (FDA).

Liberia is home to over half the remaining rainforest in West Africa, with almost 45% of the country, roughly 4.3 million ha, covered by forest. Liberia has made significant efforts to strengthen forest management through legal reform. These reforms provide a framework to improve transparency, good governance and sustainability and provide a strong basis for community rights in relation to forestland management. While these legal reforms have been lauded internationally, actual implementation of the law has been limited by limited capacity and resources in the FDA.

The Voluntary Partnership Agreement (VPA), a bilateral agreement between the European Union (EU) and the Government of Liberia (GOL), aims to reinforce this reform agenda, and improve forest governance overall, by implementing legality standards for timber products and supporting capacity development at the FDA to monitor these standards. The VPA sets the requirements to establish a legally assured system for Liberian timber for both international and domestic markets. The requirements outlined in the VPA will be implemented by the GOL, primarily by the Forestry Development Authority (FDA), through the support of the EU and other bi-lateral donors. To date, engagement under the VPA has been limited to communities that are “affected” by commercial logging contracts, and thus entitled to benefits sharing. These communities have also been engaged through a multi-stakeholder platform to assist in the design and implementation of the VPA. While addressing community benefits from commercial logging operations and participation in forestry governance are positive, and in line with the National Forest Reform Law (NFRL) of 2006, implementation of the VPA has largely left out a key aspect of community involvement, namely communities as owners of the forest resources, with the agency to conduct commercial timber extraction.

PROSPER is currently assisting the Forestry Development Authority (FDA) to implement the “nine steps” required to set up Authorized Forest Communities in eight pilot sites. As is now clear, establishing an Authorized Forest Community will take significant resources, time, and technical expertise. The FDA must verify that a community has met all regulatory requirements, but it is also supposed to assist communities with developing management and administrative structures to govern forest resources. Chapter 5, “Duties And Powers Of The Forestry Development Authority,” of the Community Rights Law (CRL), establishes that the FDA should support communities with “technical assistance and support for management of forest resources” directly, or by helping them identify other suitable partners. It specifically mentions the need to assist communities “document community forest resources,” help establish “forest management structures,” and provide “minimum standards for and assist in drafting model forest management plans, forest rules, forest agreements and other technical documents for use by [Community Forest Management Bodies] CFMBs.”

Given that the FDA is already overburdened, it is sensible to consider how others may be able to assist communities in the “nine steps.” Although the CRL is silent on the issue of whether third parties are permitted to assist communities in this process, the FDA arguably has the power to authorize additional modes of support. The implementing regulations of the CRL (the “Regulations) already provide limited opportunities for “other sources” (Chapter 4, Section 10), “institutions, donors, or individuals with skills in community forest management” (Chapter 8, Section 1), and “donors and third parties” (Chapter 10, Section 2), to assist communities. However, these relate to “preparing Forest Management Plans, enhancing the knowledge and skills of Community Forest Management Body members and implementing community forestry programs” (Chapter 4, Section 10 of the Regulations), all of which take place once the “nine steps” have essentially been completed. This policy brief seeks to determine whether third parties should actually be able to assist communities through the nine steps, and, if so, whether existing arrangements should be altered.

Following passage of the National Forestry Reform Law in 2006, the European Union (EU) and Government of Liberia (GoL) began informal discussions about signing a Forest Law Enforcement, Governance and Trade (FLEGT) Voluntary Partnership Agreement (VPA), as a means to further strengthen the reform process in the commercial forestry sector. The VPA was officially signed on July 27, 2011 and became effective on December 1, 2013. To date, the VPA covers the following contract/permit types: Forestry Management Contracts (FMCs), Timber Sales Contracts (TSCs), Forest Use Permits (FUPs) and Private Use Permits (PUPs). This is understandable, given that these arrangements were – at the time VPA negotiations formally began – the only way in which timber could be commercially exploited. However, the GoL then passed the Community Rights Law of 2009 with Respect to Forest Lands (CRL), establishing a process through which communities could have their customary claims to forest resources formally recognized, allowing them to engage in commercial logging. Unfortunately, the Regulations to the Community Rights Law of 2009 with Respect to Forest Lands (CRL Regulations), which were to provide guidance on how Forest Communities could commercially exploit their timber, were not passed until August 30, 2011 – months after the VPA had been signed – so could not be incorporated into the first iteration of the agreement.

The parties did, however, recognize the need to incorporate community forestry into the VPA, since the CRL explicitly provides for the commercial exploitation of timber. But the timing and nature of the community forestry program’s inclusion was made dependent upon when the CRL Regulations were finalized. It now appears that the CRL Regulations, after initially failing to reflect what was established in the CRL, are close to being harmonized, which will ultimately require the VPA to be updated. This is happening not a moment too soon, as communities will need to be able to understand and comply with the VPA if they want to commercially exploit their own timber; and because the VPA provides an opportunity to establish important safeguards that may help to prevent the emergence of a scandal, similar to that which was associated with PUPs. Although both are relevant, the second issue is more immediately important, as communities interested in commercial timber harvesting will more than likely – based upon their low capacity – have to contract with outside parties, which may seek to exploit communities’ ignorance of the forestry sector. The policy brief will look at measures that could be included in the VPA to achieve the goals of the community forestry program, while protecting communities from predatory practices.

The Government of Liberia (GoL) recently adopted a new land rights policy and is currently developing land administration and land rights legislation. The guiding policy document, endorsed by the President, grants unprecedented land rights to communities. The draft land rights law provides for community-based organizations (CBO) to oversee and administer community customarily owned lands. In developing the community land governance institutions, it would be useful to look at the Community Rights Law (CRL) and its governance institutions as a model for local governance. However, in doing so, it becomes evident that a CRL governance organization may overlap with the responsibilities of a land governance entity. Further, the land governance entity would likely fall under the Ministry of Internal Affairs (MIA) or a newly created Land Management Agency which could lead to issues of jurisdictional authority and murky areas of the law that could be exploited by unscrupulous interests. At this formative time, it is worthwhile to consider the different ways in which customary land management and governance can be streamlined at the local level to avoid duplication of efforts, conflict between different governance institutions, and to provide clarity regarding government agencies’ roles and responsibilities under a land management system that recognizes enlarged community rights.

Through a combination of agricultural, forestry, and mining concessions, it has been estimated that more than 23% of the land mass of Liberia has been granted to commercial entities for management by the Government of Liberia, under the assumption that this land is owned by the government (Land Commission, 2012). However, much of Liberia’s rural land, while categorized as government land, is traditionally held in customary ownership by the local population. The Community Rights Law of 2009(CRL), and more recently the Land Rights Policy (LRP) recognize this customary ownership (see LRP §4.2) and, in the case of the CRL, ownership of forest resources (see CRL §2.2(a)). The passage of the Land Rights Law will further strengthen customary rights by codifying the means by which customary rights can be recognized and secured. While a welcome development, recognition of customary ownership of resource could trigger conflict in areas where there are existing concessions. This will be particularly controversial where concession agreements contain provisions that grant concession holders the right to clear land and sell any merchantable timber without payment of royalties or other payments to the Government of Liberia (GoL).

The case of the Gba Community Forest (CF) in the Arcelor-Mittal Liberia (AML) concession area in northern Nimba County serves to illustrate the potential issues and the inability of policy and law to adequately address ambiguities introduced by an evolving legal framework. The path followed by AML and the Gba Community to bridge the gap created by the absence of legislation or policy, serves as a potential model for the many other concessions in Liberia and future community forest claims therein. This policy brief draws upon this experience to suggest policy directions and questions for decision-makers to ponder as community rights are recognized more fully in Liberia.