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Final Report: An Analysis of the draft Forest Code

An Analysis of the draft Forest Code By Bureau for Regional Outreach Campaigns (BROC) [13]

The idea of revising the Forest Code and of privatising the forests has been in circulation in Russia for a long time. Equally well-established is the opposition of public opinion to the fundamental approach to forest use proposed by the government. As a result of the gradual destruction of the enormous Forest Service the government has lost specialists able to regulate the use and management of forests in line with the latest thinking. As a result, the most realistic and considered approaches to revising the Code are coming from ecological organisations and lawyers.

One of the newest versions of the Forest Code was unveiled on September 16, 2004, in the Russian Ministry of Economic Development and Trade. NGOs submitted fundamental observations about the draft. Although a significant number of these observations were met with understanding, their basic demand for the proclamation and development of a constitutional norm concerning the role of forest resources as a foundation of the life and activity of the peoples of Russia was decisively rejected. The Economics and Trade Ministry refused to discuss the possibility of totally excluding forest lands from the market economy. This refusal forced citizens to mount a broad campaign of public protest against the privatisation of the forests. In the course of this campaign a number of issues with the new draft of the Forest Code were identified, the most serious of which are reproduced below.

1. The possibility that protected forests, including protected areas and nature reserves, might be privatised. The transfer of forests into private hands might lead to issues of public interest (such as the ecological role of these forests) conflicting with the interests of the owner. This is inevitable, since the owner's responsibility for the ecological and social consequences of his own actions is not prescribed in the current version of the Code. The current version forbids the privatisation of some types of protected forest, but the list is short and does not include fundamental categories of specially-protected natural territories and territories earmarked for the creation of specially-protected natural territories.

2. The biggest ecological problem posed by the current version of the Code is the confusion surrounding the status of specially-protected natural territories (SPNTs). It is unclear whether the authors of the Code are including the forests in SPNTs in the Forest Stock or are treating them like forests on SPNT lands, in accordance with the Land Code. The Forest Code contains clauses which lend support to both points of view. Both approaches entail serious problems, if they are applied to all categories of SPNT. If all SPNT forests are treated as being outside the Forest Stock, this complicates the procedure for creating any wooded SPNTs, as the transfer of lands from the Forest Stock to any other category is extremely complicated. Moreover, this would be a fatal blow to regional SPNTs, created by resolutions of regions of the Russian Federation, which form the bulk of SPNTs in Russia. It would become practically impossible to create them since only the government of the Russian Federation has the right to transfer land from one category to another. This would also give rise to conflicts with other existing laws.

3. Article 34 of the draft obliges the owners of wooded plots to carry out forest husbandry, although the same article acknowledges that many forms of forest use may be carried out without any forest husbandry carried out. The obligation on the part of the owner includes the requirement that he carry out wood-cutting for sanitary and maintenance purposes. Where a significant proportion of Russian forests is concerned, this is simply impractical, because the forests are inaccessible and it would be economically absurd. Moreover, for many categories of SPNT the requirement may conflict with the law on SPNTs and the clauses associated with it. With conservation in mind, this law also restricts the rights of the owner to use the plot belonging to him.

4. In the current version of the Code the procedure according to which lands are transferred out of the Forest Fund into other categories is complex and guarantees an adequate level of protection to forests from large-scale construction projects and other uses unconnected with forest husbandry. At the same time, it is wholly possible for these types of forest use to occur even while the lands remain in the Forest Fund. Moreover it is possible for lands previously covered with woodland to be converted into non-forest. Although Article 28 provides an exhaustive list of the ways in which woodland can be used, a list which excludes construction and the extraction of useful minerals, there is nothing to prevent the construction of villages on rented land, "in order to use the forest for cultural pursuits, health and fitness, tourism and sport." In the same way there is nothing in the current version of the Code to stop the construction of a cottage in the guise of a small hunting lodge on a rented plot "to appreciate fauna". Yet another legal way to build a cottage or prospect for gold in the forest would be to rent a plot on the pretext of "using it for scientific research and educational grounds". The cottage could be declared to be a permanent scientific establishment, and industrial gold mining a geological investigation. True, Article 62 makes these grounds available only to state organisations and institutions, but this does not present a serious obstacle to taking advantage of them.

5. In the current version of the Code the procedure according to which lands are transferred out of the Forest Fund into other categories is complex and guarantees an adequate level of protection to forests from large-scale construction projects and other uses unconnected with forest husbandry. At the same time, it is wholly possible for these types of forest use to occur even while the lands remain in the Forest Fund. Moreover it is possible for lands previously covered with woodland to be converted into non-forest. Although Article 28 provides an exhaustive list of the ways in which woodland can be used, a list which excludes construction and the extraction of useful minerals, there is nothing to prevent the construction of villages on rented land, "in order to use the forest for cultural pursuits, health and fitness, tourism and sport". In the same way there is nothing in the current version of the Code to stop the construction of a cottage in the guise of a small hunting lodge on a rented plot "to appreciate fauna". Yet another legal way to build a cottage or prospect for gold in the forest would be to rent a plot on the pretext of "using it for scientific research and educational grounds". The cottage could be declared to be a permanent scientific establishment and the industrial gold mining, a geological investigation. True, Article 62 makes these grounds available only to state organisations and institutions, but this does not present a serious obstacle to taking advantage of them.

6. Where the responsibilities of those who use the forests and the institutions of state control, the current draft of the Forest Code includes nothing but fastidiously correct verbiage. However the code does review the whole system whereby forest resources are registered and regulated. As a result, all the current methods for controlling wood-cutting turn out to be useless. The implementation of the new monitoring technologies, mainly based on the use of remote technologies, will take years. Until then the wood-cutters will cut as much wood as they see fit, pay no attention to designated wood-cutting areas or other official restrictions, and have nothing to fear.

7. The current edition of the Code continues the tradition of its predecessors by excluding public opinion from the decision-making process where forests are concerned. The only reference to public opinion is in Article 25, which concerns the procedure whereby lands are transferred out of the Forest Fund and into other categories and contains a proposal to conduct public hearings in this regard.

8. The central tragedy of the new Code lies in its liberalisation of forest use and in its granting of considerable freedom of choice as to the methods used to manage the forest. It proposes that once someone using the forest has compiled a forest management plan and formally declared how he intends to manage the forest, he can act completely independently. "State interference in the use of the forest is not permitted, except in circumstances described in this Code and in other federal laws" (Article 34). However the Code explains that the plan must comply with the published forest management system and that any non-compliance may entitle the authorised state organisation not to register the plan. All fundamental types of forest use must be carried out in accordance with technical regulations; if not this may give grounds for the forest use to be suspended (Article 40). According to experts, the contradictory and excessively detailed nature of the current rules and the rigid nature of the forest management system have until now themselves been the cause of some fundamental problems. For example, some of the most ecologically progressive methods of forest management are illegal.

9. Unfortunately, the Code does little to alleviate these problems. Article 75 announces that there is a requirement under the forest management system to look for plots which need wood cutting (for final or intermediate felling) … Article 75 announces that while forest management is being carried out "plots may come to light which need wood-cutting, [final or intermediate felling…], forest restoration, land improvement, conservation and protection, and so may methods for carrying out this work." The owner of the plot may have a different method for cutting wood on the plot in question. His method may be more rational and progressive than that prescribed in the forest management system, if only because the owner knows local conditions and the particular characteristics of the plot better. However, the method stated in his management plan may be deemed "not compliant with the relevant portion of the published forest management system". The decision will depend on the position of the local branch of "the authorised federal organ in charge of the Forest Stock".

10. The draft of the Forest Code reviews the whole system for collecting information about forests, including information necessary to determine the prices of plots of forest for lease or sale. However it "strikes out" all sources of funding for the forest management bodies responsible for the extremely inadequate funding from central government. This is all the more surprising given that this information forms the basis for all administrative decisions.

There is still a danger that the government will privatise the forests in a rapid and disorderly fashion, although it has finally started to listen to the case against privatisation. The authors of the Code continue to use different ploys to leave the way open for such a privatisation. Ultimately the draft is divided into two sections - the Forest Code itself and the federal law enacting it. The text of the Code still contains all the articles which provide a legislative basis for the introduction of private ownership of forests and of the trade in forests. The draft law enacting the code contains articles stating that private ownership cannot be introduced before the passage of special federal law, "concerning the Circulation of the Lands Held in the Forest Fund". In actual fact the majority of Russian laws are passed without such conditions and there is no reason to suppose that any exception will be made for the Forest Code. The little-understood supplementary law required to enact the Forest Code will probably be neither scrutinised by the State Duma, nor signed by the president. If the Forest Code is enacted without it, a legal basis for the privatisation of the forests will have been created, with no clear rules and no demands made on the new owners. From the current version of the Code it follows that privatisation of forest plots may begin rapidly and be carried out by transferring rented plots into ownership, as opposed to selling them. Where all the other ways of receiving rights to use forest land are concerned, the draft Code clearly lays out a mechanism to determine the price, and it is only silent on the subject of how to do this when the land is transferred into ownership. "To all intents and purposes, the Code gives officials in federal and regional departments the right to decide issues about the transfer of the forests into ownership off their own bat and to create new rules of the game to suit them in each case", says Aleksei Yaroshenko, the co-ordinator of the Forests Program of Greenpeace Russia. "And this intolerable situation may go on for years, until a law is passed to govern the circulation of the lands held in the Forest Fund. The government hasn't even started drafting such a law yet."

Privatising the forests may lead to very dangerous consequences. In regions where a significant proportion of the population depends on the forest for its survival, privatising the forests like this may threaten the very existence of hundreds of forest settlements and villages. The Code leaves the rights of ordinary citizens governing their relations with the private owners of forests wholly undefined.

The absence from the Code of straightforward rules governing the use of the forest leads to the conclusion that privately-owned forests under private management will be managed in a barbaric way. This will give rise to more heated conflicts like the ever-increasing scandals engulfing the privatised timber industry.