Special Independent Investigating Body Report on the Issuance of Private Use Permits (Pups)
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PRESENTED TO THE PRESIDENT OF THE REPUBLIC OF LIBERIA, H. E. ELLEN JOHNSON SIRLEAF | 19/12/12 SPECIAL INDEPENDENT INVESTIGATING BODY REPORT ON THE ISSUANCE OF PRIVATE USE PERMITS (PUPS) SIIB Report on the Issuance of Private Use Permits (PUPs) i ACKNOWLEDGMENTS The Special Independent Investigating Body (SIIB) acknowledges and appreciates all those who have contributed to their work. Firstly, the SIIB appreciates the support received from the Government of Liberia and it various functionaries, particularly the President for her consistent support, and the Ministry of State for be- ing available at all times during the period of this investigation. The SIIB is also very appreciative to the Advisors – the US Forest Service, European Forestry Insti- tute, and the Environmental Protection Agency for their invaluable support to the SIIB. Additionally, the SIIB recognizes and appreciates all individuals, communities, companies, agen- cies and the general public for their cooperation in providing valuable information and submissions to the SIIB which greatly enhanced this work. The SIIB is most appreciative of the Liberian Institute of Certified Public Accountants (LICPA) for making their premises available unhindered throughout this work. The SIIB also recognizes the services of staff of the LICPA for always willingly providing services to the SIIB. December 19, 2012 ii SIIB Report on the Issuance of Private Use Permits (PUPs) LIST OF MEMBERS OF THE SPECIAL INDEPENDENT INVESTIGATIVE BODY Members James Dorbor Jallah Chairman Felecia Coleman, Association of Female Lawyers Member Father James Selle Member Diasmer Bloe Member Thomas Doe Nah, CENTAL Member Kou Dorliae, Ministry of Justice Member Advisors European Forestry Institute United States Forest Service Environmental Protection Agency December 19, 2012 SIIB Report on the Issuance of Private Use Permits (PUPs) iii ACRONYMS ARL Atlantic Resources Limited CBD Convention of Biological Diversity CFMC Community Forestry Management Committee CNDRA Center for National Documents and Records Agency CRL Community Rights Law EIA Environment Impact Assessment EPA Environmental Protection Agency FDA Forestry Development Authority FMC Forest Management Contract FVI Foreign Venture Incorporation GIS Geographic Information System GPS Geographic Positioning System LACC Liberia Anti-corruption Commission MFA Ministry of Foreign Affairs MLME Ministry of Lands, Mines and Energy NFMS National Forestry Management Strategy NFRL National Forestry Reform Law NOTC Nature Orient Timber Corporation NSA National Security Agency PPCA Public Procurement and Concession Act PUP Private Use Permit SDI Sustainable Development Institute SGS Société Générale de Surveillance SIIB Special Independent Investigative Body SR Southeast Resources TSC Timber Sale Contract TTI Tropical Timber Incorporated UFC Universal Forestry Corporation December 19, 2012 iv SIIB Report on the Issuance of Private Use Permits (PUPs) December 19, 2012 SIIB Report on the Issuance of Private Use Permits (PUPs) v TABLE OF CONTENTS Acknowledgement...............................................................................................i List of Members of the SIIB ...............................................................................ii Acronyms ..........................................................................................................iii Executive Summary..........................................................................................vii 1. Introduction .................................................................................................1 2. Methodology ................................................................................................3 2.1 Mandate ........................................................................................3 2.2 Assumptions .................................................................................4 Analyses ........................................................................................................5 3. Administrative Failures................................................................................7 3.1 Violation of Moratorium on PUP .................................................8 3.2 Promulgation of Regulations for PUP ........................................10 3.3 MLME Role in Validation of Land Deeds....................................11 3.4 FDA Field Verification Memorandum.........................................14 4. NFRL and CRL Violations .........................................................................19 4.1 Land Held Collectively Ineligible for PUP...................................19 4.2 Violations of Existing Licensing Requirements..........................22 4.3 Relationship of PUP with Underlying Deed...............................26 4.4 Failure to Obtain Permission from Landowners........................26 4.5 Term of Years for PUP..................................................................27 5. Non-compliance with National Forest Management Strategy...................29 6. Alternative Uses/Threat of Large Scale Forest Conversion........................31 7. Financial Transactions for PUPs ................................................................33 7.1 Payments to FDA..........................................................................33 7.2 Payments under Social Agreement..............................................35 8. The Concession System ..............................................................................37 9. Culpability of Individuals & Institutions...................................................41 10. Recommendations .....................................................................................47 Annexes ......................................................................................................51 Annex 1: Terms of Reference ...............................................................53 Annex 2: Catalogue of PUP Licenses ...................................................57 Annex 3: Land Commission Report ....................................................67 Annex 4: List of Interviewees and Interviews......................................70 Annex 5: Analyses and Findings of Individual PUPs..........................71 December 19, 2012 vi SIIB Report on the Issuance of Private Use Permits (PUPs) December 19, 2012 SIIB Report on the Issuance of Private Use Permits (PUPs) vii EXECUTIVE SUMMARY In August 2012, President Ellen Johnson Sirleaf established a Special Independent Investigating Body (the “SIIB”) to investigate allegations related to the issuance of Private Use Permits (PUPs). This Report was completed by the SIIB following a comprehensive review of PUPs. The Report ad- dresses the legality of the Forestry Development Authority (FDA) issuance of PUPs, the legal status of PUPs, and provides guidance toward a full resolution of the legal and policy issues identified. This report synthesizes more than three months of investigation and findings by the SIIB commis- sioned by the President of Liberia to review the issuance of PUPs by the FDA. A PUP is one of four commercial forestry licenses conceived through a rigorous reform process and its intent is to allow private landowners to utilize commercially viable forest assets situated on their property. Un- fortunately, contrary to the original intent, PUP issuance has become a mechanism for communities distributed in sections, clans, chiefdoms and districts across the country to engage in commercial forestry in violation of the law. At an alarming rate, community members and individuals sought ap- provals for PUP licenses and negotiated poor social agreements with tacit agreement of FDA Senior Management who in turn exploited the weaknesses in the sector to the detriment of the Government and the Liberian People. As of the date of this report, according to information received by the SIIB, FDA has issued sixty- three (63)1 PUPs totaling 2,532,501 hectares; 23% of the land area of Liberia. Two PUPs were issued during the tenure of John T. Woods, former Managing Director of FDA: Monica Cooper (PUP 15, April 14, 2009) and Mary Kpoto/Lofa Development Corporation (PUP 1, November 25, 2009) for 203 hectares and 4058 hectares respectively. From April 11, 2010 to December 19, 2011, the remain- ing 61 PUPs were issued by FDA during the tenure of Moses D. Wogbeh. During 2011, the issuance of PUPs progressively increased, so that while a total of 23 PUPs were issued in the first half of 2011, the remaining PUPs were issued in the latter half of the year, with 32 being issued between August and November 2011. Astoundingly, seventeen (17) PUPs were issued on October 6, 2011 with a land area totaling 1,114,246 hectares. The level of abuse of power and public trust that characterized the transactional relationship that evolved amongst various actors in the forestry sector, was led and sanctioned by FDA. The legal framework, including the National Forestry Reform Law (NFRL), Community Rights Law (CRL), Public Procurement and Concessions Act (PPCA), FDA regulations, and other laws have been will- fully violated to such an extent that the effective governance and management of the forestry sector has been undermined and its viability threatened. A significant contributor to the current PUP situation is the failure of FDA to promulgate regulations prior to the issuance of PUPs. Even in the absence of regulations, FDA purposefully granted PUPs in violation of the existing legal framework and failed to develop