The Government, at the end of 2012, reported the creation of hundreds of jobs in apparent fulfillment of promise etched into its three-year development plan, and no doubt the logging industry is—or was—one of the linchpins of that fulfilled promise. But knowing that partner of Government was actually a wolf in sheep skin, wrecking important national edicts and regulations. It is now caught pants down and, notwithstanding its contribution of job and revenue creation, the logging sector is facing the wrath of Government, as The Analyst reports.
"…the Government stands to lose several millions of dollars in revenue; but this is a price that this Government is ready to pay to preserve our forests, to maintain the integrity of the legal and regulatory framework that underpins the use of our forest resources, and to enhance compliance with our international obligations as a responsible member of the international community."
Those were the words of Acting Justice Minister Benedict F. Sannoh when he yesterday addressed journalists during the regular press briefing organized by the Ministry of Information, Cultural Affairs and Tourism (MICAT) on the hubbub that has characterized by the use of Private Use Permits (PUPs).
The PUPs are part of Government's policy intended for individual private land landowners who would want to convert their land to other uses.
To allow for this, Section 5.2(a) also authorized the FDA to issue Private User Permits (PUPS) but only to Private Land Owners or persons duly authorized by the land owner in writing. Section 5.2(a) in very clear and unequivocal language, mandated that before any PUP is issued to any person, the FDA must establish standard qualifications by Regulation (the "Regulations."), and that the applicant for PUP must be the Land owner or has a written permission from the Land Owner to undertake commercial activity.
There have been reports, both by the media and civil society regarding the abuse of the PUP by government officials related to the forest sector as well as logging moguls.
Sannoh told the MICAT press briefing that Government attention was drawn to the abuse of the PUP when in January 2012 a coalition of NGOs sent a letter to the Management of FDA raising concerns of the alarming rate and scale of PUPs, and the flaws in the issuance of Pups.
In response to the allegations, he said, the FDA Board of Directors, effective as of February 2012, placed a moratorium on the issuance of new PUPs, and halted activities under all existing PUPS.
But despite the moratorium, the Acting Justice Minister said, timber felling under PUPs still continued unabated prompting President Ellen Johnson Sirleaf to, on August 5, 2012, reaffirm the FDA Moratorium, and proceeded in September, 2012, to establish a Special Independent Investigation Body to investigate allegations related to the issuance of Private Use Permits by FDA.
On December 21, 2012, the Investigative body submitted its report to the President, revealing amongst other things that Management of the FDA, SGS, and operators violated the moratorium - placed on Private Use Permits by the FDA Board of Directors.
The Committee also indicated that the FDA failed to promulgate the Regulations governing the issuance of PUPs, and that the senior management at FDA took advantage of the lack of Regulations in ways that were unconscionable, illegal and a violation of the public trust.
Reviews of the underlying deeds used in the issuance of PUPs licenses revealed inconsistencies and abuses perpetrated by FDA management.
The Committee stated that there were fundamental flaws in the Ministry of Lands, Mines and Energy validation process for the deeds, and that based on an assessment completed by the Land Commissioner, of the 59 land deeds reviewed, 57 are not eligible for PUP license because the deeds presented evidence of collective ownership and therefore must operate under the requirements of the Community Rights Law.
The regulatory agencies involved in the PUP licensing process, including the Ministry of Lands Mines and Energy (Land Survey and Cartographic Department) and the Environmental Protection Agency were negligent in carrying out their regulatory responsibilities as required by law. Further the Land Survey and Cartographic Department approved fraudulent conveyances of land in issuing certificates of Corrections in violation of property law.
In contravention of the NFRL which requires that either the Applicant for the PUP is a landowner or has permission from the land owner, the Investigative body found insufficient evidence that the permission from the land owner was obtained, and that in many cases, the letter of request was signed by one person with no supporting documentation that other members of the community were consulted.
According to the Committee the FDA failed to exercise due care and legal prudence in the review of documentation presented for PUPs. According to the Committee, most of the documents reviewed, showed errors in dates, signatures, Deeds, and associated documents. Some of the actions of FDA indicated culpability by officials of the FDA in cohort with individuals working for logging companies and communities.
The FDA failed to comply with the National Forest Management Strategy which envisioned thirteen (13) new protected forests to be maintained for conservation in compliance with Liberia's obligation under the United Nations Convention on Biological Diversity (CBD), bringing the total of protected areas to 1,141,813 hectares. The provisions of the Strategy were completely disregarded during the process for granting PUPs. The actions of FDA have jeopardized Liberia's conservation goals and the ability of Liberia to meet its obligation under the CBD.
The Committee also revealed that the field verification memorandum written by FDA to justify issuance of PUP was falsified in many cases and did not support the grant of PUP in others. Field verifications purportedly completed in 2011 were actually completed in 2009-20 10, in many cases prior to the request for PUP.
Review of social agreements signed by land owners and the operators are inadequate as they do not justly compensate the landowners (generally communities) for the exploitation of the forest resources. The social agreements are constructed in templates that in many cases make vague references to projects that the Operator will implement. According to the Investigative body, one theme that resonated across the operators was the construction of one clinic at US$12,500 in the third year of operations and beginning the construction of two schools valued at US$14,500 in the second year. Employment is referenced but many community members cannot access jobs because they do not have the capacity.
The report also identified a number of government officials and civil servants at the FDA, Ministry of Lands Mines and Energy, and Ministry of Agriculture, who participated in, aided and abetted directly and indirectly in the conduct herein described.
Cllr Sannoh quoted the report as lamenting the conduct of the Chairperson and members of the board of directors of FDA for their failure to provide the appropriate oversight to FDA, for filing to conduct due diligence in the issuance if PUPs, and for breach of the duty of care owed to the FDA.
The report also submitted findings on the conduct of the logging companies, which they concluded was tantamount to orchestrating fraudulent activities in Liberia's forest sector, in violation of the National Forestry Reform law.
President Sirleaf's reaction
The Acting Justice Minister said upon review of the report, President Sirleaf, speaking after a consultative meeting with the Ministries of Justice, Lands and Mines, Finance and the Land Commission, asserted: "Let it be clear that I remain committed to protecting our people and ensuring that resources are found. it is very clear, from this report, that while the introduction of PUPs was meant exclusively for private land owners, the process was abused by investors, government employees and community leaders. This cannot and will not be allowed to stand. Punitive and corrective actions will be taken to ensure that this situation is not repeated."
In an effort to comprehensively address the expansive legal, social, economic and administrative implications revealed by the report, the President has directed a number of measures including that the moratorium in effect on PUPs will continue, and any person or business in violation thereof, will be prosecuted and penalized in accordance with law.
He said the President also ordered the establishment of a Special Prosecution Team at the Ministry of Justice for the exclusive purpose to prosecute violations of the law in relation to PUPs by government officials, PUP holders, community leaders and logging companies, and others.
Other actions of the President include suspending hat all activities of logging companies involved in PUPs until the moratorium is lifted
Sannoh said the President also wants appropriate administrative actions, including dismissals be taken against all Government employees across every agency and ministry with connection to the forestry sector that have engaged in gross administrative misconduct and named in the report.
The President, he said, has ordered with immediate effect the Board of Directors of FDA is dissolved and will be reconstituted and calls for a full review of the legal and regulatory framework governing the management of community forest and private user permits be undertaken so as to ensure that the intended reforms of the forestry sector as embodied in the NFRL and the CRL can be assured. Members of this committee include Land Commission, Law Reform Commission, Ministry of Justice, Internal Affairs, Lands Minds and Energy, Civil Society and Good Governance Commission.
Other actions include the establishment of a National Inventory Team to begin an inventory of logs across the country. Logs harvested in contravention of the moratorium or under PUPs will be subject to appropriate legal action to include confiscation and public auctions. Proceeds will be used to settle tax obligations to government and to benefit communities affected by PUP abuse. Members of this Team, chaired by an Independent Forester, will include SGS, FDA, Finance, Land Commission, and Internal Audit Secretariat.
The Government, the Acting Justice Minister said, wants Land Commission chair a Committee to conduct a thorough validation of all deeds for PUPs that were granted to establish their authenticity and provide advice as to associated property and use rights for all categories of these deeds. Other members of this Committee will include the Ministry of Foreign Affairs, the Land Commission, Land Mines and Energy, Center for National Documents, records and Archives.
Another action is massive public education program be put in place to create awareness of the actions being taken by GOL, the reasons why, and the need for the full support by the communities for GOL's efforts to conserve our forests and permit only legitimate use consistent law. This Committee will be chaired by the Ministry of Information and will include the Ministry of Justice, Land Commission, Civil Society and Ministry of Internal Affairs.
Cllr. Sannoh said the President has in effect endorsed and directed the implementation of all the substantive recommendations advanced by the Special Investigative Body, a clear demonstration of the commitment of the President to comprehensively address the root causes of the PUP saga with the view not only to prevent its repetition and to have those responsible held accountable and brought to justice but also to ensure that the use of the Liberia's forests are consistent with law and the national forestry reform strategy that the Government has adopted. It is not the desire of this government to ban all logging activities.
He however said the Government is committed to the proposition that no logging activity will be allowed in this country that is in violation of our national laws, and let there be no mistake, this Government will prosecute to the fullest extent of the law, any and all persons and entities whose conduct as described in the report constitute a violation of the laws of this country.
"The actions taken by the President are not without cost to the Government and the people of Liberia. For the duration of the moratorium, the Government stands to lose several millions of dollars in revenue," he further noted, adding, "but this is a price that this Government is ready to pay to preserve our forests, to maintain the integrity of the legal and regulatory framework that underpins the use of our forest resources, and to enhance compliance with our international obligations as a responsible member of the international community."
Sannoh: "Yes, the decisions that this Government has taken may also have economic repercussions on some of our communities especially in the counties. For those of you who are listening to this program, we want you to understand that the actions taken by the President are not directed at you. Preserving our forests requires your cooperation and indeed it is an obligation imposed on all well meaning Liberians."