Guidance note

Developing legality definitions in FLEGT VPAs

Legality

Introduction

This document provides guidance for FLEGT practitioners in partner countries and European Union (EU) delegations on the development of their legality definition as part of a Forest Law Enforcement, Governance and Trade (FLEGT) Voluntary Partnership Agreement (VPA) process. It is not meant to be prescriptive but describes useful practice based on the experiences of countries engaged in the development of FLEGT VPA legality definitions.

This document describes lessons, processes, tools and structures from country experiences that have contributed to the completion of a successful legality definition. Successful here means that it is widely accepted by stakeholders; economic, environmental and social issues are represented in the legislative requirements; and it is clear and practical to implement.

This guide will be updated and adapted as new experiences and lessons emerge. It is a complement to FLEGT Briefing Note No. 2 – What is Legal Timber?

The legality definition in FLEGT Voluntary Partnership Agreements

Voluntary Partnership Agreements (VPAs) between timber-producing countries and the European Union (EU) are among the measures for addressing the problem of illegal logging identified in the EU FLEGT Action Plan.

At the heart of these Agreements are timber legality assurance systems (TLAS). These set out the procedures by which timber-exporting countries will ensure that timber and timber products originate from legal sources. The ability to differentiate between legal and illegal timber is fundamental to these systems. Each Agreement must therefore clearly describe legal timber according to the partner country’s national legislation[1]. Within the VPA, this is called a legality definition.

The legality definition identifies legislative requirements taken from a country’s national legislation that must be systematically checked to ensure legal compliance. A multistakeholder process is involved in choosing these requirements so that there is wide consensus about them.

The long-term aim of the EU FLEGT Action Plan is sustainable forest management. Legality definitions are therefore expected to incorporate laws that address the three pillars of sustainability, namely economic, social and environmental objectives. For example, a definition including only laws aimed at economic objectives (such as taxes or fees) would not be sufficient within the VPA. In addition, the definition should present these requirements in a framework that makes it clear what evidence is required to demonstrate compliance so that a FLEGT licence can be issued.

The legality definition is one of five elements in the TLAS that each VPA partner country must establish. The elements of the TLAS are interlinked and combine procedures, documentation and technology. They often involve interagency coordination. The system aims to check that:

  • The forests where timber originates are managed and timber was harvested in compliance with the legislative requirements included in the definition.
  • FLEGT licences are issued only for timber for which such compliance has been verified.

The five elements of the TLAS are as follows:

  1. Legality definition: legislative and regulatory requirements to be systematically fulfilled and verified, without exception, before a FLEGT licence is issued to ensure legal compliance of timber products.
  2. Controlling the supply chain: timber-tracking systems to help demonstrate that timber originates from legal sources. The timber-tracking system covers the entire supply chain from point of harvest or import to point of export.
  3. Verification: the processes and procedures to systematically check compliance with all the requirements in the legality definition and to ensure control of the timber supply chain.
  4. Licensing: the process of issuing FLEGT licences in a VPA country confirming that wood products exported were legally produced.
  5. Independent audit: the use of an independent third party to check that all aspects of the TLAS function as intended.

Developing a legality definition

The development of a legality definition is an iterative process of integration, refinement and modification. Changes to the legality definition may result from stakeholder input or lessons learned from the process of linking the definition to verification procedures. Many of these steps involve several drafts, repeating steps as necessary. There is no blueprint for developing a definition: each country has different stakeholder concerns, forest resources, forestry sector challenges, legislation, systems and frameworks. The time it takes a country to finalise a legality definition varies depending on the issues being discussed, ability to reach consensus and country conditions.

Although each country’s situation is different, there are common steps or tasks involved in completing a legality definition. Countries may not necessarily follow all these steps or in this order. However, the outputs of these steps can lead to a legality definition that is widely accepted by stakeholders and is manageable in practice. Some of the steps may start before formal VPA negotiations with the EU begin.

Each country presents and discusses its legality definition with the EU through formal negotiations and technical sessions. Countries bring a first draft to the EU at different stages. Some countries develop a full draft based on many in-country stakeholder consultations, while others present a very preliminary outline for further discussion.

During these discussions, the EU may suggest the need for further clarification or practicality, or might identify gaps in the definition. This can lead to further refinement. As this is an iterative process, the draft can go through many versions before the legality definition is finalised.

Box 1. Common steps in development of a legality definition

  1. Identify stakeholder groups and establish a stakeholder consultation process.
  2. Establish and agree the development process.
  3. Outline timber harvesting rights and timber sources to be covered by the legality definition.
  4. Collate a ‘long list’ of relevant legislation to consider.
  5. Discuss and decide, through multistakeholder consultation, the content of the legality definition (for example, requirements or evidence needed to prove compliance).
  6. Identify where further analysis or work may be needed (for example to address contradictory legislation, gaps or legal reform).
  7. Link the legality definition to the verification procedures in the TLAS.
  8. Conduct a field test of the legality definition once the draft definition is robust, preferably as part of a comprehensive field test of the TLAS.
  9. Review and address field test comments and finalise the legality definition.
  10. Present the legality definition and related information as an Annex to the VPA.

Step 1: Establish a stakeholder consultation process

Stakeholder involvement is essential for defining timber legality and the other aspects of the TLAS. Without such involvement, a VPA is unlikely to be viewed as credible, either nationally or internationally. Each partner country is responsible for developing, organising and implementing a consultation process that allows stakeholders a fair opportunity to provide their input.

Why does the VPA process require multistakeholder engagement?

Stakeholders are likely to have different perspectives on and experiences of the same issue. Therefore, they will have different priorities including their rights and obligations, enforcement challenges or where legislation is unclear. For instance, social contracts between forestry companies and communities are often identified in VPA dialogues as an area of concern. Communities often feel they do not benefit properly from these contracts, that companies do not fulfil their obligations, or that government agencies do not properly enforce the obligations. Companies, on the other hand, often feel requirements are not clear in legislation or are not properly communicated by the government, which can lead to communities misinterpreting company obligations.

Stakeholders have different perspectives: for example, forest operators must comply with legislation, government agencies enforce legislation, and communities depend on legislation to uphold their rights. Stakeholder consultation allows the different groups’ priorities to be shared so that conflicts can be addressed. These different perspectives result in a stronger, clearer definition that can realistically be implemented and is supported by those most affected.

Stakeholder engagement familiarises stakeholders with current legislation and involves them in choosing the most relevant legal requirements. It thus solidifies local support for the definition and its content. The aim is to agree on requirements that are clear and unambiguous and that address key priorities.

Involving all affected stakeholders establishes an inclusive foundation and builds a common understanding that helps minimise frustration and conflict in the field.

Stakeholder consultation not only facilitates the development of the legality definition, it supports the entire VPA negotiation process. It is also an important conduit for informing in-country negotiation structures about different stakeholder positions beyond the legality definition process.

Who are stakeholders?

Many parties with different interests may want to participate in the VPA process to communicate their needs and agendas. The FLEGT VPA objectives are quite targeted so, at a minimum, it is crucial to include stakeholders who are directly involved or affected by forestry operations.

If affected groups, such as forest operators, forest workers, forest-dependent communities and permit holders, are not given the opportunity to reflect on the legislation and its requirements, the legality definition may not address their preoccupations. This could weaken its objectives and stakeholders’ support for the legislation. If stakeholders’ interests are reflected, the legality definition will be more credible and it is less likely to be contested later.

VPA stakeholder processes to date have involved the following stakeholders:

  • Community members and indigenous groups involved in or living near logging operations
  • Communities and indigenous groups dependent on forest resources for their livelihoods
  • Workers that provide labour for timber, timber transport and timber-processing companies
  • Private sector forest users and others within the timber supply chain (for example, forest companies, private use permit holders, plantation owners, processing companies, mill operators and timber federations)
  • Government agencies at both central and local levels that enforce, verify or relate to forestry operations, timber transport, timber processing and timber export or sales
  • Government agencies that are likely to be involved in the national TLAS (such as ministries of forestry, finance, commerce, customs, environment, health, labour, trade and justice)
  • Political representatives, including traditional authorities, parliamentarians, and local and regional representatives
  • Civil society organisations and other NGOs
  • University representatives or researchers related to the forestry sector and timber trade

Establishing a stakeholder consultation process

A stakeholder consultation process should allow stakeholders the opportunity to provide inputs, raise concerns and offer suggestions on the content of the legality definition. This fosters dialogue between stakeholders to agree which economic, environmental and social requirements should be part of the definition and how these requirements will be verified. Many VPA experiences have shown that involvement, discussions and consensus building help build trust among stakeholders, promote professionalism in their interactions, and improve their skills to communicate with each other.

Stakeholder consultations take time. Stakeholders need time to organise themselves and establish the structures to interact with one another. Governments need time to formalise their consultation structures. For this reason, many consultation processes have been established before formal VPA negotiation sessions began.

Eight main lessons have been drawn from these processes:

  1. Consultation processes require flexibility to evolve. These processes improve through trial and error. They need time and ability to adapt to changing circumstances and new information.
  2. Additional support may be needed for financially weaker groups to ensure an equitable consultation process.
  3. The need for appropriate skills and professional management of the process should be recognised early on. This includes resources and qualified personnel to organise and implement the process.
  4. It is helpful for stakeholders to agree structures, rules and expectations, including roles and responsibilities, so that everyone understands how the consultations will function.
  5. Various techniques may be used to consult and communicate. These might include stakeholder platforms, national workshops, small targeted meetings, notices and requests for comment. It is important to be clear what methods will be used in which circumstances,
  6. Self-selection is more effective than appointment of representatives. For example, stakeholders have often felt that representatives appointed by government do not adequately reflect their interests. To avoid conflict, stakeholder groups can be encouraged to select their own representatives and develop their own positions. This builds trust in the process and leads to local support and input. It also makes stakeholder groups responsible for ensuring their representatives do the job properly.
  7. All stakeholder groups participating in the process should be transparent about the interests they represent and how that representation functions.
  8. What appears to be one stakeholder group (for example civil society, private sector or government) may in fact comprise multiple interests. These interests would be better served by separating them into several stakeholder groups. For instance, civil society is sometimes categorised to include all groups except private sector companies and government agencies. Within this category, there may be indigenous groups, forest-dependent communities, traditional authorities, labour unions, NGOs and university representatives. These groups may have very different interests and perspectives. Understanding the dynamics and interests of the groups will help ensure an effective process.
Local community in Cameroon

Local community in Cameroon

Source: Marc Vandenhaute

Local community in Cameroon

Source: Marc Vandenhaute

Step 2: Agree the process for developing the legality definition

During the development of a legality definition, several different processes actually occur :

  • Internal processes between and among in-country stakeholders. This is often referred to as stakeholder consultation, as outlined above. Stakeholders provide their perspectives and help formulate country positions.
  • Formal, external processes, where countries relay and discuss their positions in negotiations with the EU.

Internal and external processes should be linked to ensure that in-country processes inform negotiations and are not separate standalone activities. To ensure effective linkages between the processes, the following features have proved essential:

  • Openness and transparency of both internal and external processes
  • Clarification of the ways in which external processes will communicate with, and be informed by, internal processes (for example through procedures, responsibilities or time allocated)
  • Consistency of stakeholder representation in both internal and external processes.

 

Transparency helps clarify expectations and avoid misunderstandings

In some processes, delays, frustration and conflict have occurred because stakeholders had different expectations about the ways in which decisions would be made. For example, in some VPA countries, working groups were created to help analyse and develop draft legality definitions. These working groups believed that the positions they put forward would be presented in negotiations. When this did not occur, the working group participants were frustrated and demotivated because it was not clear how their input would be handled or decisions made.

Similar situations have arisen between civil society and government stakeholder groups. Civil society had certain expectations about its participation in the process; government stakeholders had a different expectation. As a result, some stakeholders walked out of the process, causing months of delay and difficulty in bringing the groups back together.

One way to minimise conflict and delay is to clarify, early in the process, the procedures by which information will be communicated, analysed, changed and finalised among stakeholder groups and structures (including committees, negotiating teams, platforms and working groups). This should clarify:

  • How will different groups (such as communities, indigenous groups or small businesses) be fairly represented?
  • Which individuals or groups will develop the draft legality definition?
  • How will drafts allow for stakeholder input? Which stakeholders? By what process?
  • Will each stakeholder group be responsible for its own draft or list of priorities? Or will groups provide comments on existing drafts?
  • How do internal stakeholder processes and discussions link to formal VPA negotiations? How are positions developed? What happens if there is disagreement?
  • What are the timeframes to complete the work?
  • How are final decisions communicated?

To help avoid misunderstandings, it is useful to agree early in the process who will be responsible for draft development, how drafts will be reviewed by the larger stakeholder consultation process and how decisions will be made on requirements and verifiers. Agreement on these processes, before content is discussed, promotes clearer and more realistic expectations for stakeholder input and participation.

Sufficient time and adequate tools must also be provided for stakeholder representatives to interact with their constituencies. Forest-dependent communities, forest workers and indigenous peoples are often located in remote areas. They require time to travel, convene their constituents and receive input on drafts or decisions. Understanding the scheduling needs of the various stakeholders will encourage their input. Documents may need to be articulated in a way that makes it easy for stakeholder input to be captured.

Many stakeholders are likely to be unfamiliar with FLEGT VPA objectives, legality definition tables and terminology such as principles, verifiers and references. Documents may need to be translated, adapted or interpreted, in writing or verbally, so that stakeholders can understand them and respond.

This further reinforces the need for stakeholder groups to choose their own representatives, who can adapt information and enable them to respond. In some cases, external assistance might be needed, especially with groups located in remote areas. This might be provided, for example, by local NGOs, community organisations or international organisations. However, it is important that local groups develop their own positions and external views are not imposed on them.

Several VPA partner countries have learned through experience that inadequate stakeholder representation in the external process of negotiation with the EU resulted in decisions and dialogue not being communicated to in-country internal processes. As a result, internal stakeholder processes discussed out-of-date or incorrect draft legality definitions, causing confusion and frustration.

Consistent stakeholder representation across internal and external processes can greatly facilitate the exchange of information and ensure that stakeholder consultations feed into negotiations. In all countries that have signed a VPA, the stakeholder groups were present in both internal and external processes. In some VPA negotiations, countries initially decided not to include private sector or civil society representatives in the external process with the EU. As difficulties emerged in communicating negotiation results, however, this position changed and representatives were included in negotiations.

Step 3: Outline timber harvesting rights and sources

Timber sources and rights to harvest should be clearly presented in the legality definition. As legislative requirements are often different for each permit type, the legality definition should make clear what requirements correspond to which titles and sources. For example, legal requirements for industrial timber contracts, which usually apply to large harvest areas, may have different environmental, social and economic objectives from individual permits, which usually cover very small areas.

At a minimum, the VPA requires that logs, railway sleepers, sawnwood, veneer and plywood products entering the EU come from legal sources. Therefore, the legality definition needs to include the legal requirements for timber sources and harvest rights where these products originate. By extension, legislative requirements for timber imported into the country and then exported to the EU as one of the products listed above need to be covered in the legality definition.

Many countries have decided to include a broad range of products as part of their VPA, such as furniture, window frames and flooring. This is a political decision based on the country’s trade priorities. If a decision is made to include additional products, then the timber sources for these products need to be reflected in the legality definition.

Some countries include timber sources that do not currently supply wood products for export to the EU, but have potential to do so in future. In anticipation of this growth, these sources are included in the legality definition. For example, if a country exports all its plantation timber to a non-EU market, but hopes to develop markets in the EU for its plantation timber, it may be practical to include plantations in the legality definition.

 

Step 4: Collate a ‘long list’ of relevant legislation

A FLEGT VPA legality definition is based on a subset of the country’s national legislation. This may include laws, regulations, ministerial orders and other regulatory instruments including codes or guides and international treaties ratified by the country.

All VPA processes to date have included legal requirements beyond those contained in forestry legislation. Legality definitions should include legislation covering economic, social and environmental obligations related to forest management and timber trade. This could include legislation outlining the necessary fees and taxes to operate, legal registration in the country, company obligations to communities, forest worker health and safety requirements, other labour regulations, environmental requirements and customs obligations. Many of these obligations are not captured in a country’s forestry legislation, and therefore it is important to look at a broader set of legislation, such as environment or labour codes, or legislation that covers business establishment.

Every legality definition should consider nine areas and the legislation that pertains to them:

  1. Title and permit allocation processes
  2. Granting or compliance with rights to harvest
  3. Forest management and timber processing
  4. Community rights and welfare
  5. Environmental legislation
  6. Labour, health and safety policies
  7. Taxes, import–export duties, royalties and fees
  8. Respect for community and indigenous people’s tenure and use rights
  9. Trade and export procedures
Registering teak logs in Myanmar

Registering teak logs in Myanmar

Source: EU FLEGT Facility

Registering teak logs in Myanmar

Source: EU FLEGT Facility

Step 5: Decide on content of the legality definition through a multistakeholder process

The content of the legality definition varies from one country to another depending on the type of forest, national legislation, administrative procedures and governance challenges. For example, some countries have separate and distinct administrative structures and requirements for different parts of the country, while other countries’ requirements apply across the whole country. The definitions should accommodate such differences while ensuring a consistent approach. The main elements that should be included in the legality definition are:

  • Principles (a useful way to group the intentions of different laws)
  • Requirements (often referred to as indicators)
  • Verifiers (documents, reports or activities that demonstrate compliance with the requirement)
  • Legal references (legislative text justifying the requirement)
  • Timber sources and tenure rights

VPA countries have most effectively presented the content of the legality definition as a table. Table 1 shows an example from the Republic of the Congo.

This legality definition is structured according to forest type. There is one table for all permits and titles relating to harvesting in natural forests and a second table for requirements relating to plantations. Table 1 relates to natural forests.

The Republic of the Congo separated the principles into two categories: principles and criteria. Table 1 shows the criteria below the overarching principle that: ‘The State complies with legislation and regulations relating to the environment, management, forestry, processing of timber and tax.’

Table 1: Example from the Republic of Congo’s legality definition

Principles

Requirements

Verifiers

References

Type of permit

Environmental impact studies have been carried out in accordance with legal and regulatory requirements and mitigating measures formulated have been implemented

 

Indicator 4.1.1 Procedures for carrying out environmental impact studies have been followed.

 

 

Verifier 4.1.1.1 Approval of the office carrying out the study

 

– Law 003-91 of 23 April 1991 (Art. 2); Decree 86/775 of 07 June 1986 (Art. 1, 4); Order 835/MIME/DGE of 6 September 1999 (Art. 4, 5)

CAT (Convention d’aménagement et de transformation), CTI (Convention de transformation industrielle)

Verifier 4.1.1.2

Impact study report

– Law 003-91 of 23 April 1991; Decree 86/775 of 07 June 1986 (Art. 1, 4)

 

 Verifier 4.1.1.3

Minutes of the meeting approving the impact study report

– Law 003-91 of 23 April 1991 (Art. 2)

 

Indicator 4.1.2 Measures contained in the approved impact study reports aimed at protecting biodiversity have been carried out

 

Verifier 4.1.2.1

Land inspection and audit reports

– Law 003-91 of 23 April 1991 (Art. 39); Order 1450/MIME/DGE of 19 November 1999 (Art. 16, 17, 18)

 

Verifier 4.1.2.2 Inspection report by the Departmental Forest Economy Office

– Decree 2002-437 of 31 December 2002 (Art. 37, 82)

 

Verifier 4.1.2.3

Report by the committee monitoring and reviewing the management plan

– Decree approving the management plan

CAT, CTI

Cameroon, in comparison, created eight legality definition tables: one table for each of the seven harvesting titles or licences and one for timber-processing facilities. Three additional timber production titles will be integrated into the legality definition as they are developed. Box 2 lists the eight tables. Table 2 is an example of one of the obligations in Cameroon’s legality definition table for a logging agreement.

Box 2: List of legality definition tables for Cameroon

  1. Logging agreement
  2. Communal forest; state logging
  3. Salvage licence
  4. Harvested timber removal licence
  5. Cut timber sale in the national domain
  6. Community forest; state logging
  7. Special permit; ebony logging in the national domain and the communal forests
  8. Timber-processing units

 

Principles

Principles help categorise requirements into issue areas. Some countries have used the categories outlined in FLEGT Briefing Note 2: What is Legal Timber? and listed in Step 4 of this document. Other countries have created their own lists of principles that follow their legislation more closely.

The categorisation provides a clear overview of a country’s legality definition, enabling the reader to see whether all relevant areas have been addressed.

For example, one country used the principle ‘The logging/processing forest entity meets its social obligations’ and included legislation relating to workers’ rights, employment, social security, workers’ health and safety, and community rights to forest use.

 

Requirements

  • Every requirement included in the legality definition will by systematically checked and verified for compliance.
  • Requirements cannot be ambiguous, open to interpretation or left to anyone’s discretion. Fulfilment of the requirement must be clear.
  • Requirements are based on current legislation including guides, handbooks, codes (where these have legal standing) and international agreements.

A key challenge in preparing legality definitions is deciding what requirements to include. This is not an easy task. The natural inclination is to include as many requirements as possible. However, it is not the aim of the legality definition to be an exhaustive inventory of laws and regulations, and this is often not practical.

Compliance with the requirements must be checked regularly, so requirements should be chosen strategically. This means requirements should be selected to address the most serious threats from illegal logging without overburdening verification processes. An essential part of the dialogue in developing a legality definition is therefore to identify the main challenges and the requirements that most appropriately target them. Every requirement included in the legality definition must be checked for compliance before a FLEGT licence can be issued. For example, if social agreement obligations are often not implemented, or compliance is not monitored, and this issue is known to cause conflict in a country, it might be strategic to include requirements that ensure these commitments are met. There must be compliance with the requirements before a FLEGT licence is issued. This therefore reinforces the country’s goal of ensuring that logging companies are adhere to social requirements.

Selecting a few important requirements, rather than overloading the definition with as many requirements as possible, will make the system easier to implement and follow. In VPA processes to date, many requirements have often been included in early drafts. These were usually reduced by half or more after intense internal dialogue on key governance priorities and verification practicalities.

Tracing logs in a map in Cameroon

Tracing logs in a map in Cameroon

Source: Emmanuel Groutel, WALE

Tracing logs in a map in Cameroon

Source: Emmanuel Groutel, WALE

Table 2: Example from Cameroon’s legality definition

MATRIX 1: LOGGING AGREEMENT

Criterion 1: The logging/processing forestry entity is legally authorised

Indicator 1.1: The forestry entity has legal personality, holds approval as a logger and is registered as a timber processor.

References to legislation, regulations and rules

- Article 41 of Law 94/01 of 20 January 1994

- Articles 35(1), 36, 114 and 140(1), (2), (3), (4) and (5) of Decree 95-531

- Law 98/015 of 14 July 1998 relating to establishments classified as dangerous, unhealthy or obnoxious

- Decree 99/818/PM of 9 November 1999 laying down the provisions for setting up and operating [the establishments in question]

- Order No 013/MINEE/DMG/SL (Ministry of Energy and Water/Mines and Geology Division/SL) of 19 April 1977 repealing and replacing Order No 154 of 28 March 1957 coding dangerous, unhealthy or obnoxious establishments

Verifiers

1.1.1 Certificate of domicile (natural person)

1.1.2 Commercial register maintained at the competent court office

1.1.3 Forestry approval granted by the competent authority

1.1.4 Extract from the registration of the logging hammer stamps with the office of the competent Court of Appeal

1.1.5 Authority to set up and operate a first-class establishment from the Ministry responsible for the industry

1.1.6 Certificate of registration as a timber processor from the Ministry responsible for forests 

 

Verifiers

  • Verifiers are forms of objective evidence that need to be provided to demonstrate compliance with a requirement.
  • Examples of verifiers include field reports, specific documents, photographs from the field, licences and certificates.
  • Verifiers form the basis for verification procedures within the TLAS.

Every requirement identified in the legality definition needs to be checked as part of the TLAS system. Clear, unambiguous requirements make verification on the ground straightforward, minimising conflict and misunderstanding. Experience shows that early drafts often have the following problems:

  • Language in the requirement or verifier is too general.
  • The verifier does not address the requirement.
  • Compliance with the requirement is open to interpretation, and relies on the discretion of the verification team.

For example, an early draft in one VPA outlined the following requirement and verifier:

Requirement: Contract Holders have conducted timber harvesting in accordance with generally accepted silvicultural practices and in accordance with all applicable laws, regulations and guidelines issued by the Authority.

Verifier: Audit Reports

This requirement is very general and it is not clear what ‘generally accepted’ means. This would be impossible to verify without interpretation. The country could rework this requirement and target specific silvicultural practices that are known to be a problem, or highlight key elements in the legislation that reflect certain silvicultural practices.

As a verifier, ‘Audit reports’ is too general. It is not clear which audit report is referred to or whether the audit report addresses the silvicultural practices in question. If the requirement is clarified to specify the silvicultural practices that will be targeted, it is easier to choose a verifier such as a document, activity or report that can demonstrate compliance. The verifier needs to directly reflect compliance with the requirement. For example, if the verifier is a field report, it must demonstrate that the particular silvicultural practices were checked. This might be in written form or through photographs.

 

References

  • References are the legislative provisions justifying the requirement.
  • The actual citation or article number and legislative document need to be indicated.

The legality definition is based on current national legislation of the VPA partner country. All requirements must have a legal justification, demonstrated by clearly indicating the legal document and the corresponding text (for example, article numbers) that support the requirement.

Some VPA stakeholder processes deemed that certain requirements and verifiers were crucial even though legislation was not in place to support them. The requirement and verifier were included in the legality definition table and in the references section, it was noted that a legislative reform process would occur and the legislative reference would be in place before FLEGT licences were issued. Other countries chose not to include such requirements in the legality definition table, but listed the potential requirements as an activity to be implemented in the future. Once the legislative reform process was complete and the legislative text was clear, the requirement could be added. Licensing was therefore not dependent on completion of the legislative reform because the requirement was not deemed crucial and could be added later.  

Step 6: Identify further analysis or work

Many countries encounter difficulties in enforcing forestry legislation because it contradicts other legislation or is confusing in its interpretation. This makes it relatively easy to circumvent the law. The process of developing a legality definition often identifies such inconsistencies and gaps in legislation that warrant further legislative reform, studies or analysis. Countries can indicate their intention to address such inconsistencies and may include them, for example, in the VPA Annex outlining additional measures.

The Additional Measures Annex lists the activities to be completed after negotiations are concluded. In some cases, new requirements need to be added before the TLAS is operational in order to ensure control throughout the supply chain. As new regulations are developed, the legality definition will need to be amended and agreed by both the EU and the VPA country through the Joint Implementation Committee[2].

The aim of the legality definition is not to create a parallel legal framework for forest management. Rather, it provides an opportunity to identify, redress and, in some cases, improve areas of legislation and regulation that are difficult to implement, impractical or confusing. In some countries, it is the first time that such a broad-based review process has been undertaken.

Step 7: Link the legality definition to TLAS development

The legality definition represents one element of a country’s timber legality assurance system (TLAS). As the legality definition forms the basis for other elements of the TLAS such as verification, it is usually the first element to be addressed in FLEGT VPA negotiations. This does not mean, however, that reflection on elements such as verification and the tracking system should be delayed until the legality definition is complete.

Review of the verification procedures can often help inform and refine the legality definition. However, a complete legality definition is needed in order to finalise the description of the verification procedures, because the definition sets out all the requirements that need to be verified.

A discussion about non-compliance with the requirements and corrective actions may also lead to further adjustments to the definition.

The legality definition provides a strong basis for the TLAS. Once countries start to fill in the details on requirements, verifiers and verification procedures, there is often a need to go back and refine or adjust the definition based on this new information.

Step 8: Field test the legality definition

Once a legality definition has been developed, supported by stakeholders and discussed with the EU, it needs to be field tested. The test provides an additional, independent review of the definition to ensure it is applicable in the field.

The objectives of the test are to:

  • Identify inconsistencies, gaps, impractical requirements, verifiers and references
  • Test the applicability and relevance of the requirements and verifiers
  • Assess whether the definition can be upheld, applied and enforced
  • Specify the government departments involved and how they will collaborate in verification
  • Facilitate the development of the TLAS

Some countries have carried out a test that focused only on the content of the legality definition. Other countries have tested the content of the legality definition together with other elements of the TLAS to provide a broader understanding of gaps and inconsistencies across the whole TLAS.

The test is usually implemented by a team of independent experts with professional experience in auditing legality standards, joined by the in-country government professionals who will be involved in verification. In some cases, non-government in-country participants have also been involved. This results in a balance of individuals who are familiar with in-country procedures and people who can provide a fresh, neutral look at the definition and its applicability in the field.

The test is based on visits to a sample of sites that represent the different types of permits or circumstances identified in the legality definition. The team assesses the applicability and relevance of each requirement and verifier in the definition, and provides comments and recommendations for improvement where appropriate. The team may consider questions such as:

  • Can the requirements be implemented by companies and the government?
  • Are the requirements and verifiers practical?
  • Do the verifiers address the requirement?

The team also assesses whether the references are correctly cited and appropriate to the requirement. A report is submitted with recommendations and observations.

As part of the test, the team holds discussions with forest operators, communities and government representatives involved in or affected by forest operations at the field test site. This helps them understand concerns that could indicate gaps in the legality definition.

VPA countries have conducted field tests to ensure requirements and verifiers are clear, unambiguous and practical for the agencies that carry out verification. The tests highlighted requirements or verifiers that could be adjusted, improved or removed. For example, one test identified the need to establish a government procedure to keep a verifier. The verifier was a ‘Health and safety report’ produced by the Ministry of Health, but the document had never been used in practice. The Ministry of Health was not involved in VPA discussions and the test led to discussions with the Ministry of Health to determine what could be done to maintain the verifier. The test provided useful guidance for the verification procedure, which is another element of the TLAS and is often developed in parallel.

Marked log in Indonesia

Marked log in Indonesia

Source: MFP3

Marked log in Indonesia

Source: MFP3

Step 9: Finalise the legality definition

Following the field test, the team completes a report with its findings and recommendations. The partner country is responsible for analysing and assessing the team’s report and, if necessary, modifying the legality definition. In some cases, this has initiated further discussions on particular requirements, development of further government procedures (as in the ‘Health and safety report’ example), or clarification of the legislation. Changes to the legality definition are presented and confirmed in a negotiation session with the EU.

 

Step 10: Present legality definition as an annex to the VPA

The agreed legalityHave  definition is set out in an Annex to the VPA. It is developed through an iterative drafting process and through successive drafts the Legality Definition Annex is refined and clarified. The drafts focus discussion at the level of technical detail to ensure the legality definition is clear, practical and robust. Therefore, development of the Annex occurs during the negotiations and not after discussions about the legality definition are concluded.

The Annex is often divided into two sections:

  • General information
  • Legality definition table or tables presenting the principles, requirements, verifiers and references

The general information section briefly describes the country’s forestry sector and legal framework. It provides basic background and descriptions to help the wider public understand the country’s legality definition development process, the basis for the legality definition tables and any other information on the country’s forestry sector that could be useful to a larger audience. Such information may include:

  • Background information on the forestry sector: legal and institutional framework underlying the definition, such as titles, permits or contracts associated with permanent forest, plantations, timber from agricultural land or non-permanent forest
  • A list of the legislation, regulations, codes, guidelines or any other reference material that has been used for the country’s legality definition
  • A description of how the legality definition was developed, outlining the process (how decisions were made, field tested and so on) and describing the stakeholders involved and structures used (such as committees, technical working groups and stakeholder platforms)

Discussing the legality definition with the EU

Technical and formal negotiation sessions between the EU and a partner country include discussions on the country’s legality definition. Each country develops its own legality definition through its own internal processes, but the EU is able to provide support, guidance and further clarity where needed.

There is no rule on how advanced a legality definition should be before it is discussed with the EU. Countries have brought drafts to the EU at completely different stages. One country spent months developing its legality definition and thought it was bringing a completed definition to the table, only to realise that the definition did not provide the clarity needed to ensure proper implementation. Some countries had barely started developing their legality definition and brought just an outline to negotiations.

Dialogue with the EU early in the process of developing the legality definition is advisable to ensure the definition meets VPA expectations and that the legality definition:

  • Is clear and practical to implement
  • Is balanced and integrates the relevant social, environmental and economic obligations
  • Contains a legal justification for each requirement
  • Is widely accepted by stakeholders
  • Covers all of the necessary issue areas as outlined in FLEGT Briefing Note No 2: What is Legal Timber?

Generally, several iterations of drafts are discussed before agreement is reached on a final Legality Definition Annex. The number of sessions devoted to legality definition development varies from country to country, depending on how easily and quickly a country can organise consultation processes, the number of issues raised and the time required to reach consensus and decision on key elements.

The ultimate aim is to achieve a practical, clear and manageable legality definition.

Frequently asked questions

1. Whose legislation is used to develop a legality definition?

A legality definition is based on legislation of the timber-exporting country, not legislation of any European country.

2. Can draft legislation that is not yet adopted be used in the legality definition?

Yes, but legislation needs to be adopted before the first FLEGT licence is issued. (See Step 5 for more information.)

3. Does the legality definition replace existing legislation?

No, the legality definition is a subset of existing legislation. Legislation that is not included in the definition continues to be valid, but is not checked as part of the FLEGT VPA timber legality assurance System (TLAS).

4. What if stakeholders do not agree with or support the country’s legality definition?

Legality definitions that are not widely supported in the partner country will be difficult to implement and are unlikely to obtain EU agreement. As many of the issues surrounding legality definitions can be contentious, it is all the more important to promote dialogue to find consensus and compromise so that solutions to conflicts can be found rather than ignored. At the same time, complete consensus is unlikely to be possible and some compromises have to be made.

5. Can the legality definition be amended, for example if new legislation is created?

The Legality Definition Annex can be amended and updated to include any changes in the legal framework after the VPA is signed. The process for amending annexes to the VPA is set out in the VPA itself.

6. How can communities and indigenous peoples participate when they live in remote areas?

Consultation processes need to take into account important voices, such as forest-dependent communities and indigenous peoples. The process must set up appropriate structures to enable these groups to participate. Some countries have relied on local organisations to represent community voices; other countries have used representatives from the communities themselves. External support and resources may be needed to facilitate their participation.

7. Can a FLEGT licence be issued if only some of the legality definition requirements are met?

No, a FLEGT licence is issued only if all legal requirements in the legality definition concerning a supply of timber have been met. In practice, this may mean that a forest management unit is periodically checked for compliance. Within that period all supplies verified as originating from that unit are considered to be legal and supply chain controls are deemed to have been successfully implemented.

8. What happens if a requirement is not met? What are the procedures?

Procedures for non-compliance with the legality definition are described in the TLAS. The description includes the principles that frame handling of offences. These principles are likely to include:

  • The judicial procedures applicable to the TLAS
  • Sanction types associated with these procedures
  • How verification bodies report on detected offences
  • Consequences within the TLAS including rectification, corrective actions or possible prohibitions to operate;
  • How to address offences against legal requirements not covered by the TLAS and how such offences affect the TLAS.

9. If a company is privately certified, does it need to meet legality definition requirements?

Every company that produces or exports products covered by the VPA in their country is responsible for meeting the requirements set out in the legality definition of that country. It is the responsibility of each VPA country to decide how private certification schemes fit with its TLAS systems. Some VPA countries have decided to integrate certification schemes by using them as part of their verification processes, accepting only those schemes that fulfil their FLEGT legality definition requirements. This form of integration has the advantage of minimising the duplication of verification procedures. It also helps promote private certification in the country.