Nouvelles et documents

Development of normative documents regulating forest, fauna and protected territories in Kazakhstan
As a result of new and unexpected gaps occurred in the application of the legislation in force regulating forest, fauna and protected territories, the Government of the Republic of Kazakhstan (GRK), through the Forest and Hunting Committee of the Ministry of Agriculture, has drafted a bill to amend the Forest Code, the Wildlife Act and the Protected Area Act. To that effect, specialized legal assistance was formally requested the Legal Office of the Food and Agriculture Organization of the United Nations (FAO). The aim of the assistance was mainly to take account of recent trends and international commitments in forestry, wildlife and protected areas law, both globally and regionally. In light of lessons learnt in the implementation of the 2004’ legislation, specific efforts were made to ensure that key actors in the public and private forestry and wildlife sectors were adequately consulted and involved in the process of legislative drafting and, to that effect, national workshops were organized in January and April 2010.

The originality of the project rests on the fact that while the review of the national legislation in force and evaluation of technical gaps were mainly made by national consultants, international legal experts hired to that purpose elaborated various proposed amendments to such legislation as well as new normative acts which were subsequently submitted to GRK. Furthermore, the team of consultants and experts participated in discussions and, generally, worked jointly on the formulation of recommendations.

A detailed review of national legislation was undertaken on a vast range of issues such as forest fund on land; environmental protection and environmental impact assessment; protection, reproduction and use of wildlife; protected areas; water management, and related areas.GRK had prepared a draft law with a view to introduce amendment of some of the above indicated normative acts.

Taking in account that supporting private forestry is one of the primary objectives of the legislative reform currently undertaken by the national authorities, the following proposals were highly supported by the team of experts and consultants.

Making State land available at favourable conditions

As forest and potential forest land is owned or controlled by the State, making more and more of it available for private forestry is the most significant forestry incentive that can be offered. In similar cases such as the Lao People’s Democratic Republic where State land may be granted to farmers, villages, and cooperatives if they accept the obligation to improve or restore the forest, plantation agreements have been envisaged in Kazakhstan to grant State land for commercial or community plantations. Provisions for agro-forestry may also be seen as incentives to private forestry, though the term of the agro-forester is usually short. Consequently, a new legislation regulating leasing or otherwise obtaining state land to create tree plantations should specify applicable conditions – particularly whether fees will be charged and whether recipients of state land for plantation purposes will be entitled to any different benefits from persons planting trees on their own land. In this respect it was recommended that significant incentives be offered to ensure that plantations created by private persons on State land would belong to the planter, who would have an exclusive use of the land for an adequate number of years.

Giving subsidies at specified conditions

Cash incentives, whether in the form of grants or loans, are a typical tool to promote private forestry, and particularly reforestation. GRK intends to proceed in that direction and decided that all applicable conditions be clearly spelled out, for example in a “plantation agreement” between the investor and the administration, specifying duration; species to be planted and treatments applied; allocation of funds in connection with the achievement of certain objectives fixed by the plan.

Creating incentives through appropriate taxation

Taxes have a deep impact on private forestry and demands for annual taxes discourage non-commercial thinning, environmentally beneficial long rotations and other long-term practices. GRK has already implemented tax exemption such favourable regime should be expanded. It was exposed that in some countries in transition, taxation on private forest harvests exists only as a vestige of the stumpage fee charged for cutting on state lands. On the other hand, all property tax provisions are subject to abuse. Without careful controls it is relatively easy to cheat over the amount of stumpage in particular in forests where only a few trees have real commercial value.

Ensuring that provisions do not discourage planting of trees

According to art. 27 of the Forest Code, private forest owners are supposed to comply with a number of obligations including maintenance of forests through environmentally friendly practices, supply of information to be included in the cadastre, pest and fire prevention and control. Such provisions, if interpreted strictly, could lead to the imposition of requirements on private forest owners which they may find not worth to bear in comparison with advantages expected, thus discouraging private forestry.

Supporting rural communities and small owners

Any appropriate legislation should supported rural communities and small owners who should received priority in the allocation of funds. At the same time, fragmentation of efforts should be avoided, so small owners should be encouraged to join with each other. This could be done for example by requiring a minimum size of properties to access funding. Rural communities could also be supported by law to set up associations or cooperatives to create and manage timber plantations, as well as for purchasing and marketing in connection with the plantations. The pertinent national legislation should set out certain standards for such entities, including verification that the association or cooperative has been set up in such a way that all concerned members of a community have been consulted and that their representatives have been appointed in an equitable manner and respecting gender balance. These cooperatives could explore actions like branding or certification, that unsophisticated owners would be unlikely to pursue individually. The law could even create and financially support a national private forestry marketing board.

In fact, the importance of involving land owners, as well as local populations and particularly concerned interest groups such as farmers, environmentalists and hunters, in the management of natural resources shall be highly emphasised and is equal for both forestry and wildlife. In most countries, indigenous communities are in fact increasingly organizing themselves and taking operational steps and political action to gain ownership or greater control over benefits from forests, including state forests, whether held by the administration or allocated under concessions, and whether or not the forests are viable for commercial exploitation. Community involvement may range from participation in planning and management to recognition of management and ownership rights to resources and resulting benefits. In countries where long-term ownership or access rights traditionally exist, private forest owners have also been recognized as key contributors to sustainable forest management principles.

These arrangements, however, require appropriate legal backing. To that effect proper legislation will ensure that the benefits offered to local people in exchange for their participation are secure. Clear legal empowerment would strengthen their position as actual managers of the resource, leading to more effective management altogether for the benefit of the national community in general.
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