Technical paper

Independent field test of FLEGT VPA legality definitions

Legality

Background

During the process of developing a legality definition, an independent review is a useful tool to ensure that the definition is practical and applicable in the field. All VPA countries to date have carried out this independent review, including Cameroon, Central African Republic, Indonesia, Liberia and Republic of the Congo. The only exception to this was Ghana, which was the first country to negotiate a VPA. Ghana has subsequently identified gaps in the legality definition, which need to be rectified during the implementation phase.

Following Ghana’s experience, other VPA countries and the European Union realised that a review of the draft legality definition early in the process is important to ensure indicators, requirements and verifiers are practical and applicable in the field. Doing this early enough, during negotiations when the legality definition is being developed, allows changes to the definition to be more easily accommodated.

The concept of a legality definition review thus built on this early experience. All other VPA countries have used the review to help them strengthen the definition by identifying where more clarity is needed for verification purposes, and highlighting ambiguities and gaps. The review process also strengthens understanding among stakeholders about the Legality Definition. 

Objectives of the legality definition field test

The legality definition field test aims to assess whether the Legality Definition is a practical and usable tool. It is not intended to assess companies or the government, or their current ability to comply with the Legality Definition. For example, it provides answers to questions such as:

  • Are the components of the legality definition clear and unambiguous? These might include principles, requirements, verifiers or legislative references.
  • Are the requirements justified by legislation?
  • Are the requirements adequate to address legality of timber and timber products?

Do stakeholders have questions or concerns about the requirements? Once a strong draft of the legality definition has been developed, and is supported by stakeholders, an independent field test provides an additional, independent analysis to ensure it is applicable in the field.

The objectives of the field test are to:

  • identify inconsistencies, gaps and impracticalities in the requirements, verifiers and references
  • test the applicability and relevance of the requirements and verifiers
  • assess whether the legality definition can be upheld, applied and enforced
  • highlight the different government departments that are involved and identify how they will collaborate in the verification
  • facilitate the development of timber legality assurance system (TLAS).

 

Who conducts the review?

The review is usually carried out by a team of independent experts who have professional experience in auditing legality standards, together with in-country government professionals that will be involved in the verification of the TLAS. In some cases, non-governmental, in-country participants have also been involved. This has ensured there is a balanced combination of individuals familiar with in-country procedures and those that provide a fresh, neutral look at the legality definition and its applicability in the field.

What are the principal activities of the review?

The review is based on visits a sample of sites that represent the different types of permits or circumstances included in the definition. For example, these might include forest industrial concession areas, community forests, individual permits and different processing facilities. The team assesses the applicability and pertinence of each requirement and verifier in the legality definition and provides comments and recommendations for improvement where appropriate. The team will consider, for example: 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 checks whether references are correctly cited and are appropriate to support a requirement.

As part of the review, the team meets with forest operators, and representatives of communities and the government that are involved in or affected by the forest operation at the test site. These discussions help the team to understand stakeholders’ concerns, which could indicate possible gaps in the definition.

VPA countries have used independent reviews to ensure that the requirements and verifiers are clear, unambiguous and practical for the control agencies that are responsible for verification. The reviews identified where legality definition requirements or verifiers could be adjusted, improved or removed. For example, one review identified the need to establish a government procedure to keep a verifier. The verifier was a Health and Safety report from the Ministry of Health, but in practice the document had never been used. The Ministry of Health had not been involved in VPA discussions. The review led to discussions with the Ministry of Health to determine what could be done to maintain the verifier. The field test therefore provided useful guidance for the development of the verification procedure – another element of the TLAS that often takes place in parallel with the legality definition development.

Following the review, the team submits its report, with findings, recommendations and observations. The partner country analyses and assesses the team’s report and, if necessary, modifies the Legality Definition. In some cases, this has initiated further stakeholder consultation on the requirements, new government procedures (as in the above example) or clarification of the legislation. Changes to the legality definition are presented and confirmed in a negotiation session with the EU.

Reflection on the verification procedures can often help inform and lead to further refinement of the legality definition. A final legality definition is, however, needed in order to finalise the verification procedures, as it is the definition that sets out the requirements that need to be verified in the VPA.