Forests Sourcebook - HCV Resource Network

equirements that phase in over time, so that the government
and forest users have the opportunity to adapt to the
new regulatory system.
Improving capacity and law through good process
The process of reforming the law often gives the World Bank
opportunities to address the other avenue of strengthening
legal frameworks: increasing the legal capacity of government
and stakeholders. These activities can be synergistic.
Compiling existing forest laws. A first step in legal
reform is to compile the texts of the existing forest laws and,
often, also property, administrative, criminal, and other
general laws that affect forest management. In some countries,
no one will have seen such a collection before. The forest
laws may have been amended many times over the years,
but no one may have published a version with all the
amendments. The government may have produced many
forest regulations but never have organized them into a single
collection. The officials in the field charged with implementing
and enforcing the law may have little idea what it
looks like, and the forest-dependent people affected by the
law may have no easy way to know what the law is.
Understand legal context and legal practice linked
to forests. A second step is to investigate the legal context
of the country and the legal practices associated with the
forests. This may expose any number of legal capacity
issues, directly or indirectly linked to reform of the law. For
example, forest officers may lack an understanding of basic
policing skills and may not be properly preserving evidence
of unlawful activities. Prosecutors and judges may lack a
basic understanding of forest issues and may not be giving
proper weight to the suppression of forest crimes. Land
records may be incomplete or nonexistent, making it difficult
to determine tenure rights. A law reform project is seldom
tasked with addressing problems like these, but it can
flag them for other projects and donors to address.
The most important capacity-building effort of a law
reform project is typically also the most important step in
improving the substance of the law: vetting proposals for the
new law with government officials and local stakeholders.
LESSONS LEARNED AND RECOMMENDATIONS
FOR PRACTITIONERS
The forest legal framework must be responsive to
change. History teaches that the social demands on the forest
are slowly but constantly changing, and no one can possibly
anticipate all the situations that will come before the
law. It follows that for the legal framework to function, it
must have flexibility.
Incentives and feedback mechanisms. Experience has
demonstrated that the best legal systems achieve their goals
through structures that contain incentive and feedback
mechanisms. The hallmarks of those systems are transparency,
accountability, and public participation. The true
art of legal reform is to create a framework that is consistent
with social change but that also drives institutions to
change, striving for better governance of the forest.
Reflecting current values is important. Forest law
reform efforts typically share some common challenges.
One is incorporating modern values into forest laws.
Forestry as a profession has long embraced sustainability,
but notions of what resources the forester must conserve
have changed as society’s knowledge and interests have
changed. Now society may be as interested in biodiversity
conservation and carbon sequestration as in fuel and fiber
production, and ideally governments want their laws to
reflect current values.
Values determine not only what resources the forester
should conserve but who should have access to those
resources. The present trend is greater recognition of
indigenous, aboriginal, traditional, and community uses,
which centralized forest management agencies have often
marginalized. Writing modern standards that can coexist
with uncodified traditional rights and expectations can be
difficult. The drafter is often tempted to focus on commercial,
large-scale forest use, but slighting traditional uses can
promote conflict and disrupt forest-dependent communities.
A project that hopes to combat poverty and promote
the welfare of rural forest communities must consider their
expectations and rights, including the particular rights of
Indigenous Peoples (see note 1.3, Indigenous Peoples and
Forests).
Involve stakeholders. Involving the public almost always
strengthens the legal framework. Reviewers with multiple
interests and perspectives shed new light on problems,
exposing issues that a drafter listening only to government
foresters might miss. Involvement also gives the public a
sense of ownership of the law. A group that participates in
the democratic process of lawmaking is more likely to
respect the law than a group that has the law imposed upon
them without consultation.
176 CHAPTER 5: IMPROVING FOREST GOVERNANCE