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1990

An Outline of 's Natural Resources Law

Gu Xueting

University of Colorado Boulder. Natural Resources Law Center

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Citation Information Gu Xueting, An 's Natural Resources Law (Natural Res. Law Ctr., Univ. of Colo. Sch. of Law 1990).

GU XUETING, AN OUTLINE OF CHINA’S NATURAL RESOURCES LAW (Natural Res. Law Ctr., Univ. of Colo. Sch. of Law 1990).

Reproduced with permission of the Getches-Wilkinson Center for Natural Resources, Energy, and the Environment (formerly the Natural Resources Law Center) at the University of Colorado Law School.

AN OUTLINE OF CHINA'S NATURAL RESOURCES LAW

Gu Xueting

Visiting Fellow from the Bureau of Legislative Affairs of the State Council People's Republic of China

NRLC Occasional Paper August, 1990 AN OUTLINE OF CHINA'S thirds of the world's average, or 80th. NATURAL RESOURCES LAW Forestry A Short Introduction to Natural Resources in China The total forested area is about 115 million hectares. The total timber reserve is The characteristic feature of natural estimated at 9.1 billion cubic meters. The per resources in China lies in the fact that the capita forested area is 17 percent of the total reserves are abundant, but China's world's average. The forest coverage in overpopulation reduces this advantage to China is about 12 percent, lower than the quite a low per capita amount. world's average (18.7 percent).

Land Grasslands

China's land totals about one billion The total area of grasslands in China hectares* (not including sea areas), of which is about 400 million hectares, of which 300 one tenth is used for cultivation. The per million are suitable for grazing and is the capita land area represents only one-fifth of world's third largest after Australia and the the world's per capita land mass. The per USSR. But grass yield is quite low, limiting capita plough land is only one-fourth of the the ability to raise livestock. world's average level, ranked 113th in the world.

Water The fishing ground on the continental shelves is about 150 'million hectares. The China's annual water reserve, the fresh water surface area is about 18 million seventh largest in the world, is 2,800 billion hectares, of which 8.5 million hectares are cubic meters, including both surface and suitable for aquatic farming. Aquatic underground water. The per capita annual production in 1984 totaled 6.19 million tons, water reserve is, however, 2,700 cubic meters; the third largest in the world (after Japan and that is, 88th in the world. Water resources in the USSR). However, the per capita aquatic China are extremely unbalanced: large production in 1979 was only 5 kilograms, amounts of water in the South and relatively representing 30 percent of the world's little in the North. In certain areas of the average (16.5 kilograms). North, per capita water supply is so small that its counterpart can be found only in the most Wildlife arid countries. China, one of the richest countries in Mineral Resources wildlife resources, possesses 10 percent of the total wildlife species in the world. Included Of the 150 kinds of minerals are 1,186 species of birds, 450 species of discovered so far, there are identified reserves mammals, 210 species of amphibians, 320 of 136. The total converted value of 45 species of reptiles and more than 2,000 principal minerals in reserve is the third species of fish. So rich in number, China largest in the world. The per capita also possesses many rare animals which enjoy converted value of this reserve is only two- world celebration, such as the giant panda,

* A hectare is about 2.5 acres. the golden monkey, the tiger of Huanan, to China's Law System for Natural Resources name only a few. and Its Legislative Process

For many years there was no strict The word "law" suggests two meanings administration of natural resources, and in China, special and general. Special law exploitation was out of control. Seizure of refers to statutes made by the National land, excavation of minerals, over-timbering People's Congress (NPC) and its Standing and denudation of forests, over-grazing on Committee. An example is the Forestry Law. pasturage and over harvesting of fish, these General law includes administrative rules and practices have been widespread throughout regulations issued by the State Council and the country and have resulted in over local regulations enacted by the provinces, consumption, serious waste and even autonomous regions and municipalities disastrous destruction of natural resources. directly under the Central . Now the most outstanding problems are the China's legal system for natural resources is acute reduction of plough land and the composed of laws, administrative regulations, shortage of water resources. From 1957 to rules, and local regulations. Classified by the 1986, plough land was reduced annually in nature of the resources, the legal system the whole country at a rate of about 0.54 contains bodies of law related to forestry, million hectares, making room for grassland, land, fisheries, mineral resources, urbanization, industrialization and peasant water, and conservation of wildlife. Within residences. In the seven northern provinces these general areas are a number of specific and municipalities directly under the Central laws. Forestry law, for example, includes Government (e.g. , Tianjin, Hebei and Forestry Law (by the NPC's Standing Shanxi) social and economic development has Committee), Rules for the Implementation of surpassed that which the water resources in Forestry Law (by the State Council) and these regions could support. Immediately Methods for the Management of Forest after the severe drought in 1972, water crises Reserve Archives (by the Forestry Ministry), struck successively in the North of China. etc. The peoples' life was seriously affected and industry and agriculture were strenuously The State Council of the People's hampered. Take the example of forests. The Republic of China is the central government average annual growth in the whole country of China and is composed of several is 230 million cubic meters. In contrast, the ministries and commissions. Administratively, average annual consumption in recent years each kind of natural resource corresponds to has attained. 290 million cubic meters. its special ministry or commission or to the Twenty years from now, the experts estimate, departments directly under the State Council. China's richest forests in the Northeast could For example, forests and wildlife are disappear. administered by the Forestry Ministry; grasslands and fisheries by the Agriculture We can see from the above discussion Ministry; water by the Ministry of Water that China is confronted with a crucial Resources; mineral resources by the Geology resources problem. We have to pay special and Mineral Ministry; and land by the State attention to natural resources law. Land Administration. Resources law, when formulated in the Central Government, is drafted usually by the responsible departments and then examined and verified by the State Council. The State Council either directly issues administrative rules and regulations for China's resources law reflects the natural resources, or presents bills for principle of partition of ownership and right resources law to the NPC's Standing to the use. State-owned land, grasslands and Committee. Resources laws enacted by the water surfaces, after the proper legal NPC or its Standing Committee are procedures, can be at the disposal of units promulgated by the President of the People's under state or collective ownership. State- Republic of China. owned mineral resources can be exploited by units under state or collective ownership after The Bureau of Legislative Affairs of they acquire the right to use i.e., mining the State Council is responsible for the rights. Some of the minerals can be examination and modification of all drafts of excavated by individuals. The collectively- resources bills and administrative rules and owned land, forests (forest soil), grasslands regulations for natural resources that it (pastures), water surfaces and beaches used receives. Following that, the Bureau submits by units under state or collective ownership these drafts to the executive or plenary can be contracted to, and managed by, meeting of the State Council for discussion. collectives or individuals. State-owned or collective-owned hills and land which can be The Basic Structure of China's Natural planted can be contracted to collectives or Resources Law individuals.

Basically, each natural resources law In order to protect legal property and consists of four components: regulations right to use, to encourage owner and user about ownership and the right to the use of initiative in improving management, natural resources; regulations about protection exploitation and utilization of natural and regeneration of natural resources; resources, and also to deal with conflicts over regulations about exploitation and utilization ownership, the law stipulates that natural of natural resources; and regulations about resources like forests, grasslands, and water legal liability. will be registered and recorded by the government. Upon verification, the Regulations About Ownership and government issues certificates to affirm the Rights to the Use cf Natural ownership and the right to the use of such Resources resources. Disputes over the ownership and right to the use of natural resources, the law China is a socialist country. Natural stipulates, can be settled through consultation resources are regarded as important means of or mediation; if these fail, the government production. Therefore, each resources law can be asked to intervene. The government's specifies precisely the ownership of natural decision can be challenged in a court in resources (the only exception is fisheries law). certain circumstances. The principal form of the ownership of resources is the state (nation) ownership, i.e. Regulations About Protection and ownership by the whole people. Mineral Regeneration of Natural Resources resources, land in the urban areas, and wildlife belong' to the state. Forests, First, the law stipulates that the grasslands, water and land in rural and protection and regeneration of natural suburban areas are properties either of the resources are the government's responsibility state or of collectives. and the user's obligation. Concrete and specific regulations land and use it rationally and concerning the role of government are in the range of usages described in the Forestry Law: predefined in the contract.

- at all levels The Forestry Law defines the duty of should organize reforestation, all citizens to include: tree planting, obligatorily participated in by reforestation and forest conservancy. It the whole people; stipulates that institutions, armies and grass roots units accept the responsibility of - governments at all levels reforestation in various areas. should work out reforestation plans and organize people of Second, economic stimulation is all walks of life to accomplish adopted to encourage the people to take the tasks specified in the measures in protecting and regenerating plans; natural resources. Rewards are granted to prominent users. For example, the Forestry - local governments at various Law stipulates some measures to financially levels should require the encourage reforestation: relevant departments to set up agencies to be responsible for - financial support or long- forest protection. They shall, term credit shall be given to in light of actual need, collectives or individuals for increase facilities in large tree planting and reforestation forest areas to strengthen based on relevant regulations forest protection, urge grass established by the state and roots units to formulate forest the local governments; protection pledges and mobilize the masses to protect - taxes shall be imposed for the forests; and reforestation; and

- local governments at various - an amount of capital shall be levels should take every taken out from coal and paper precaution against any possible departments according to the forest fires and organize quality of coal and products of extinguishment in case of fires. pulp and paper, for special forests, for mine timbers, and

Land Law specifies the users' duties paper. as follows: Third, strict measures are taken - units or individuals using against disasters. The Forestry Law and the state-owned land have the duty Grassland Law have detailed stipulations to protect, maintain and make against fire, plant diseases and insect pests, rational use of the land; and including the establishment of ihe high fire danger period, the creation of the system of - collectives or individuals to responsibility against fire, installation of fire whom the land is contracted equipment, and measures of extinguishment. have the duty to protect the Fourth, all activities which damage above county level. and destroy natural resources are limited and prohibited. The corresponding measures are The Land Law rules out the cases in issued. For example, the Grassland Law which the peasant applies for other house stipulates that all activities on grasslands, sites after he has sold or leased his house. ranging from cultivation, bush cutting, medical plant searching, to the use of vehicles and The Forestry Law stipulates that grazing of livestock, are regulated in detail. state-owned forestry enterprises must submit Some activities are forbidden, some limited, documents of survey and design of the and some must get the permission of cutting areas when they request cutting grassland users. Other activities are to be licenses. Other units must submit documents granted by the government concerned. stating the purpose, location, area, types and current health of the forests, the growing Regulations About Exploitation and stock involved, and the method of cutting, as Utilization of Natural Resources well as regeneration measures.

Stated first are the application Second, exploitation and utilization of requirements for exploitation and utilization natural resources must undergo certain of natural resources. approval programs.

The Land Law establishes the The Forestry Law stipulates that categories of application: anyone who wants to cut down forest trees must apply for a cutting license from the applications for land appropriate forestry department of the county involving state construction government. The forestry department, in projects, which have been turn, shall not issue cutting licenses in excess grouped into the investment of the approved annual cutting quotas. schedules financed by the state's fixed capital or The Land Law stipulates that the area permitted to construct, must of land demanded for state construction be be submitted by presenting a subject to the approval of the local project plan or other government. If the area is very large, documents of approval which construction must be approved by the State are granted by the appropriate Council. authority under the State Council or by a local The Water Law provides thai government at or above the exploitation and utilization of water resources county level in accordance must undergo comprehensive scientific survey, with procedures specified for investigation, and evaluation. The projects state capital construction and; vary within different river basins, and are based on a unified point of view. town or village run Comprehensive projects within important enterprises applying for land river basins, determined by the state, are use must present a project jointly formulated by the appropriate water plan description or other administration department of the Stale documents of approval issued Council and the concerned provincial by a local government at or governments before presentation to the State Council for approval. Comprehensive the errors are corrected. projects in other river basins or areas are directed by the competent department of Regulations About Legal Liability water administration of governments at or above the county level, together with China's natural resources law departments and regions concerned. They establishes penalties for those who violate the are then presented to the government of the law. The legal liability can be divided into same level for approval and must, at the same four categories. time, be presented to the appropriate water administration department for record-keeping. First, there are punishments for the illicit seizure and use of natural resources. Third, necessary measures are taken By illicit seizure and use of natural resources, to prevent non-rational utilization of natural we mean: resources. - unlawful encroachment upon The Land Law stipulates that if the land without approval or with unit which has acquired the right to the use fraudulently obtained approval: of state-owned land neglects the land for two years or uses the land for other purposes - excavation without a mining without the approval of the original license or beyond :he institution, the land administration department approved limits of the mining will withdraw the land use right and, upon area; and approval of the government at the county level, will cancel the land use license. - unlawful tree felling or forest denudation, including felling Under the Fisheries Law, those with without a cutting license. rights to use state-owned water surfaces and beaches for the purpose of rearing fish, but The law, based on the following who do not use them for one year without principles, outlines punishment for the illicit proper explanation shall be subject to an actions mentioned above: administrative order to exploit and utilize them within a definite period of time. If this - to avoid damages to ihe order is not observed, the license will be state or those organizations revoked. Fishing with explosives and poisons which have the right to use or in prohibited fishing areas and during the resources, whoever illegally closed seasons with forbidden fishing gear and mines or cuts down trees must methods, or with fishing nets with meshes compensate for the losses; smaller than the minimum prescribed sizes- all of these activities are listed in detail and - to avoid or limit damages 10 strictly forbidden. Any practices against the natural resources, those who above regulations will lead to the withdrawal illegally encroach upon the of the fishing license. land must restore the land; those who illegally mine shall The Forestry Law stipulates that if be ordered to stop excavation; foresters violate regulations in cutting areas, whoever illegally cuts down the department which issues cutting licenses trees shall be ordered to plant has the power to withdraw the licenses until several dozen times ihe number of trees cut down; overstep their approval authority, disciplinary whoever denudes forests or sanctions shall be adopted. Those who take other woodlands shall be bribes shall be investigated for criminal ordered to plant five times the responsibility. The Forestry Law stipulates number of trees denuded. that, in cases where forest tree cutting licenses are issued in excess of the approved - So that law violators shall annual cutting quotas, or by over-stepping not profit, those who authority in violation of the law, the unlawfully encroach upon the personnel directly responsible will face land shall be ordered to administrative sanctions. In cases where restore such land and serious damage is caused to the forest, the demolish, within a definite personnel directly responsible shall be period of time, any newly investigated for criminal responsibility. erected structures or other installations, or such structures Third, there are punishments for any or installations shall be damage (destruction) of resources. confiscated and fines shall be imposed concurrently. Anyone Such punishments include: who mines without a mining license shall have his extracted - an immediate cessation to mineral products and unlawful illicit actions; proceeds confiscated and may be fined concurrently. Those - repair of any losses. Whoever who unlawfully cut down trees damages soil shall be ordered to make shall pay a fine equal to three rectification within a definite period of time; to ten times the unlawful whoever damages forests shall plant trees; income. Whoever denudes whoever damages grasslands shall restore the forests or other woodlands vegetation; shall pay a fine equal to three to five times the unlawful - payment of compensation; income. and

Second, there are punishments for - payment of fines. state officials who illegally approve the use of natural resources. Fourth, there is punishment for illegal transfer of resources ownership or rights to As the laws were being formulated, it the use of resources, and for the became more and more obvious that many counterfeiting and resale of licenses. problems related to the unlawful approval of land occupation and tree felling.. We cannot Those who unlawfully transfer land, stop this fever of illicit encroachment or mineral resources and fishing licenses through felling without punishing the state officials sale or other means, those who sell a mining who unlawfully approve these actions. right or use it as a pledge to obtain a loan, Therefore, the Land Law stipulates that if and those who counterfeit or resell forest units or individuals without authority to cutting licenses shall have their unlawful approve requisition or use of land unlawfully income confiscated, be fined and have their approve occupation of Jand, or if they • licenses, revoked. If the circumstances concerning forest tree cutting licenses are serious, criminal responsibility shall be investigated.

In the last few years, the Chinese government has become more and more aware of the seriousness of the natural resources problem and is trying its best to prevent the resources from decreasing rapidly. However, this is just a beginning and there is a long, long way to go. In this connection, we would like to learn everything useful from all the advanced countries, including the , and exchange the experiences and information with our counterparts in other countries in order to improve our natural resources law system.

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