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Liberia: Analysis

Public Access to Information

Liberia enacted the Freedom of Information Act in October 2010, and policies and laws passed since 2006 relating to forests, land and extractive industries have also included provisions for public access to information, which could suggest that the government is willing to improve access to information in general and transparency and accountability in particular. These laws are progressive and have the potential to encourage citizens to participate in decision making processes on natural resources including the forest sector.

With regard to progress made by the national government towards ensuring transparency, accountability and public access to information, there remain critical barriers to dissemination and public awareness of these laws. Additionally, the lack of resources and capacity within government agencies continue to hamper information delivery by functionaries. For example, the Liberia Extractive Industries Transparency Initiative (LEITI) published its 2009 report in October 2011 on payments made by companies and concessions operating within the country. All forest concession contract information is yet to be hosted on the Forestry Development Authority (FDA) website. The timeliness of information availability and access needs to be urgently addressed by the government. The FDA has also not yet set up an information centre at the FDA central office in Monrovia and the four regional offices as required. However, some requests for information have been satisfied.

Following the enactment of the Freedom of Information (FOI) Act, there has been slow progress on the part of public institutions to implement its provisions. For example, even though the FOI Act has been printed and circulated to government agencies, accessing information from ministries and agencies of government is still very difficult. Some ministries have no system for information delivery while others renege on their obligation to provide information to the public. Additionally, more than a year after the FOI Act was enacted in September 2010, the Independent Information Commissioner has not yet been appointed even though this is an important requirement for kick starting the implementation of the law.

Forest Land Tenure

The Community Rights Law (CRL) enacted in 2009 provides legal recognition of community forest tenure and rights. A step forward towards institutionalizing customary ownership is the definition of customary lands in the CRL as "land, including forest land, owned by individuals, groups, families, or communities through longstanding rules recognized by the community. To be recognized as customary land, it is not necessary for the land to have been registered under statutory entitlements" (CRL Section 1.3: Definitions). However, the regulations adopted for the implementation of the CRL have failed to address the issue of ownership, and further complicated the situation by giving the FDA the power to allocate and grant rights to access, manage, use and benefit from forest resources on community land. For example, under chapter two of the CRL Regulations (CRL Regulation Section 2.4: Procedure for acquisition of community forest), communities have to request permission from the FDA to establish community forests and need authorization from the FDA before exercising their rights.

The FDA therefore acts as the lead government agency in determining community forestry rights. There is no mechanisms in place to oversee how the FDA itself initiates the process of awarding community forestry permits. As a result, it appears to be encouraging some communities into signing Private Use Permits (PUPs) as a means of circumventing the process of awarding logging contracts to companies. The Société Générale de Surveillance (SGS) update in December 2011 confirmed that 16 PUPs have been granted, but the ownership of PUPs is not clear. This creates more confusion on what rights communities have and what they can exercise under the CRL. As a consequence, the practical application of free prior informed consent (FPIC) as enshrined in the CRL is questioned.

There is an urgent need to prioritise land reform that clarifies community land ownership and rights. The Land Commission (LC) was established in 2009 and launched in 2010 with a clear mandate to propose, advocate, and coordinate reforms of land policy, laws, and programmes in the country. It is currently holding consultations nationally and regionally with local communities, civil society organizations, international partners and government agencies, including local government structures, in order to recommend policies and laws for possible enactment. There is potential for recognition of customary land rights as communities become more aware and increase demands for central government to recognize and treat these rights as private property rights.

The current government has placed a moratorium on public land sales until the LC has reviewed and recommended new policies and legislations. At the moment the Land Commission is lobbying the government to impose a moratorium on land-based concessions allocation as land related conflicts are becoming increasingly frequent. According to its 2010 annual report, in its first year of operation the Land Commission documented over 100 land disputes cases in circuit and magisterial courts in five counties (Bomi, Montserrado, Margibi, Nimba and Lofa).

Forest Law and Regulation of User Rights

Liberia initialled a Voluntary Partnership Agreement (VPA) with the European Union (EU) in May 2011. Since the end of the civil war, Liberia has initiated reforms of the forestry sector through a three pronged approach of integrating commercial, conservation and community interests ("the 3C's"). The policy and legislative framework includes the National Forestry Reform Law (2006) and accompanying Ten Core regulations (2007), the National Forest Policy (2006), and the Community Rights Law with Respect to Forest Lands Resources (2009), which taken together provide a firm foundation for achieving sound forest management practices in Liberia. Liberia also signed onto the Extractive Industries Transparency Initiative in 2007 and enacted the Liberia Extractive Industries Transparency Initiative (LEITI) Act the same year.

Nonetheless, existing realities show that these progressive legal instruments have not been properly implemented. Reports by the UN Panel of Experts on Liberia in June 2009, December 2009, June 2010, December 2010 and December 2011 have systematically highlighted several failures in implementation of the forestry legal framework. The December 2010 report stated that "Documented problems include non-payment of fees related to some concessions; cases of non-competitive allocation of large concessions; corruption; and lack of consultation with county authorities, district authorities and affected communities". This situation has remained largely unchanged, as documented in the report by SDI, Forest governance and the Voluntary Partnership Agreement (2011), which cautioned that the role of the EU is critical in implementing the VPA agreement to ensure that all timber and timber products originating from Liberia are from legal sources.

In the 2010 Annual Transparency Report, it was inferred that PUPs had become the primary means of contract allocation since 2008/09 when seven Forest Management Contracts (FMCs) were awarded. Following a series of inquiries made to the FDA that received inadequate responses, the SGS confirmed in December 2011 that 16 PUPs had been awarded. The sizes of these permits remain unknown or are been verified because there is insufficient data to substantiate them. The PUPs are not subject to a tendering and bidding processes, and the lack of transparency is a concern given their potential size. The holders of PUPs have paid their contract administration fees, meaning they are now bonafide contract holders according to Regulations 107-07 Part Three, Section 32. Making this payment before determining the actual size of the permit is also a breach in procedure. This represents a danger for community forestry as it could undermine or compromise the practice of community forestry in Liberia. The opaque manner in which PUP allocations have been handled undermines the transparency provisions in forest laws.

Participation in Decision Making

Forest governance in Liberia is undergoing a transformation as local communities increasingly become more involved in decision making processes. Community Forestry Development Committees (CFDCs) form part of committees at the national level. Local communities and civil society organizations participated directly and actively in the discussions on the Voluntary Partnership Agreement (VPA) negotiated with the European Union (EU), and six CFDC members are serving on the National Benefit Sharing Trust Board (NBSTB). Additionally, CFDCs and communities are increasingly engaging logging companies and the FDA to hold them to account as required in social agreements signed with the affected communities. For example, all logging companies are required to hold quarterly meetings with affected communities as part of their social agreements, which brings them together to discuss issues and improve mutual respect as a consequence. However, in practice such meetings have occurred irregularly between the different concession holders and communities, and in some instances these meetings have not been held at all.

It should be noted that local communities and civil society have been involved in forest governance at different intervals since 2006, but there have been challenges in ensuring that the forestry authority complies with its legal requirements. For example, consultations carried out by the FDA for the first round of concession allocations in 2008/2009 did not follow the required provisions in the forestry legal framework. These consultations were poorly conducted and marred by questionable activities. In 2011, the FDA continued to ignore requests by civil society to develop separate prequalification procedures for PUPs as required by the forestry law (NFRL Section 5.2 [iii]). In a letter dated 26 August 2011 (Ref: MD/132/2011/-1), the FDA argues that PUPs are adequately covered under provisions in the forestry law.

On another front REDD+ associated activities are progressing parallel to logging related forestry activities. While there seemed to be consultation during the development of the REDD+ Readiness Programme Proposal (R-PP), the World Bank Forest Carbon Partnership Facility (FCPF) has emphasised the need for full participation of Liberian stakeholders, civil society and cross-sector agencies including the Ministry of Agriculture, the Ministry of Lands Mines and Energy, and the Land Commission, in order to ensure that the solutions are owned by everyone and benefit the communities. The reports of the regional and national level consultations are contained in the R-PP document which was approved in June 2011 for funding by the World Bank FCPF. However, the R-PP does not include any documentation of a public vetting for the 60 days period as required by Section 19.2 of the National Forestry Reform Law.

Fiscal and Funding regimes

Affected communities are entitled to 30% of Land Rental Fees for each logging concession (the government receives 40% and counties 30%). Additionally, under Ten Core Regulations 107-07 Part Three Section 33, each affected communities receives $1.25 per cubic meter of timber harvested from Timber Sales Contracts and $2.50 per cubic meter for timber harvested from Forest Management Contracts. The community share of land rental fees is managed by the National Benefit Sharing Trust Board (NBSTB), which was finally constituted in January 2011. The NBSTB is comprised of representatives from communities, private sector, government and civil society. Regulations for benefit sharing were also approved in June 2011 by the FDA Board of Directors. The NBSTB is setting up a Secretariat, opening an account, and commencing a process for affected communities to apply for their funds to undertake community development projects.

The SGS circulates monthly payment updates to forest stakeholders on its email circulation list. This information enables organisations and individuals with an interest in the sector to find out how much has been paid, which companies have met their financial obligations and which are still in arrears. International NGOs such as the Associates of Rural Development (through its Land Rights and Community Forestry Project) and local NGOs such as SDI are disseminating this important information at the community level, mainly to CFDCs. This information is enabling communities to request their share of financial benefits related to cubic meters of harvested timbers and land rental fees. In mid 2011 communities began receiving payments related to cubic meter fees: for example it was reported in community meetings on 18 and 19 November 2011 in Rivercess County in FMC B and C areas that the CFDCs had received $12,731 and $50,700 respectively.

Now that local communities have started to receive direct revenue from logging operations, there is concern over how some representatives could use funds in a way that is not in the interest of all of the affected communities. To date, the FDA has not put in place any mechanism to monitor community use of funds. The only support that local communities have received so far has come from civil society in the form of assistance to develop community by-laws, file articles of incorporation with the government, and open community bank accounts. Local communities need to be assisted to develop guidelines for project selection and subsequent funding.

SGS records in the first week of December 2011 indicated that the total amount owed by logging companies to the Liberian government was more than US$24 million including Areas fees and the Land Rental Bid Premium. The share allocated to communities, based only on Areas Fees amounted to $772,324, according to the SGS Chain of Custody Financial update on 7 December 2011. If affected communities can receive their additional share from the Land Rental Bid premium, then communities' share of revenue will significantly increase as this makes up the largest portion.

This possibility could be brought into question if President Sirleaf goes ahead and signs into law the bill to cancel the Land Rental Bid Premium, which would result in a loss of over US$200 million in government and community revenue. This bill, An Act to Abolish the Payment of Annual Land Rental Bid Premium on Contract Areas in the Forestry Sector of the Economy, was enacted by the House of Representatives and Senate but was not signed by the President of Liberia.

Extra-Sectoral Activities and Emerging Issues

Other threats to forests and communities in Liberia include the emerging development of carbon sequestration projects in forests, and the expansion of large scale agriculture plantations in forested regions across the country. The latter in particular has implications for deforestation and forest degradation. The government has begun allocating large scale oil palm concessions in South-Eastern Liberia, where there is a significant portion of the remaining unbroken forest blocks in the country. The central government has targeted this area due to its low population density. One such company is Golden Veroleum, linked to a Malaysian company Sinar Mas, which is alleged to have destroyed primary forest in Southeast Asia to establish oil palm plantations. Golden Veroleum has been allocated a gross area of 311,187 hectares of land for oil palm development. The government has assured citizens that the concession area largely consists of degraded land but it is unlikely that one can find degraded land of this size in Southeast Liberia. Even Sime Darby, which has palm oil concessions in three counties in western Liberia and closer to Monrovia, may also deforest the region. Large scale agriculture plantations are gradually becoming an additional threat to the remaining primary forest of Liberia.

In June 2011 the Liberia REDD+ Readiness Preparation Proposal (R-PP) was approved by the World Bank Forest Carbon Partnership Facility, and the REDD Technical Working Group is expected to facilitate the preparation phase. Civil society faced considerable difficulties in understanding and contributing to the development of the R-PP. Since the existing legal framework makes no reference to REDD+ or environmental services in general, it will be prudent to begin a discussion about the national context framing the policy direction on REDD+. The key consideration pertains to the technical and legal approaches that Liberia adopts to ensure that it is contributing to reducing emissions from deforestation and forest degradation. One way forward is to formulate a national policy on the financing mechanism, whether it is a carbon market or fund based one. The difference is important in determining our national response to using REDD+ as a vehicle for reducing emissions using forest based interventions. As we consider available options for moving forward, it is important to consider the assertion that safeguards for ensuring rights of communities and adequate benefit sharing are more difficult to include or achieve in a carbon market framework than a fund based arrangement. The Environmental Development Agency needs to develop a strategy in collaboration with all of the key stakeholders which takes forward REDD+ through transparent decision-making and benefit-sharing.

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