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.