FAO Forest fires and the law LEGISLATIVE STUDY A guide for national drafters based on the Fire Management Voluntary Guidelines 99 by Elisa Morgera Maria Teresa Cirelli for the Development Law Service FAO Legal Office FOOD AND AGRICULTURE ORGANIZATION OF THE UNITED NATIONS Rome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¥'"09 TABLE OF CONTENTS PREFACE v EXECUTIVE SUMMARY ix 1. INTRODUCTION 1 1.1 The key concepts of fire management 2 1.2 Forest fires and the international framework on sustainable forest management 4 1.3 The role of legislation and of participatory legislative drafting in fire management 7 2. OVERVIEW OF NATIONAL LEGISLATION ON FOREST FIRES 9 2.1 The choice of legal instruments 9 2.2 The need to analyse the broader legal framework 11 2.3 Some examples of legal frameworks on forest fires 14 2.3.1 Senegal 14 2.3.2 The European Union 19 2.3.3 Argentina 25 2.3.4 Indonesia 29 2.3.5 The Russian Federation 41 2.3.6 The United States of America 45 3. SPECIFIC THEMATIC ELEMENTS IN NATIONAL LEGISLATION ON FOREST FIRES 51 3.1 Definitions 51 3.2 Institutional set-up and inter-institutional coordination 55 3.3 Planning, monitoring and assessment 66 3.4 Prevention and preparedness, detection and early warning and suppression 73 3.4.1 Fire seasons 74 3.4.2 Pre-fire-season activities 75 3.4.3 Prohibited activities and prescriptions 77 iv Forest fires and the law 3.4.4 Fire danger rating and early warning systems 80 3.4.5 Fuel management 82 3.4.6 Suppression 83 3.5 Participatory and community-based approachs to fire management 86 3.6 Fire use 90 3.7 Rehabilitation 96 3.8 Law enforcement 97 3.8.1 Offences and sanctions 98 3.8.2 Disincentives 101 3.8.3 Compensation and insurance 102 3.8.4 Funding, research, training and awareness raising 105 4. KEY RECOMMENDATIONS FOR DRAFTERS OF NATIONAL LEGISLATION ON FOREST FIRES 107 4.1 Definitions 108 4.2 Institutional set-up and inter-institutional coordination 109 4.3 Planning, monitoring and assessment 110 4.4 Prevention and preparedness, detection and early warning and suppression 111 4.5 Participatory and community-based approaches to fire management 112 4.6 Fire use 112 4.7 Rehabilitation 113 4.8 Law enforcement 113 BIBLIOGRAPHY 117 ANNEX 133 RÉSUMÉ EXÉCUTIF ET RECOMMANDATIONS PRINCIPALES 135 RESUMEN EJECUTIVO Y PRINCIPALES RECOMENDACIONES 149 PREFACE Fires impact upon livelihoods, ecosystems and landscapes. Despite incomplete and inconsistent data, it is estimated that 350 million hectares burn each year. However, the nature of fires determines whether their social, cultural, environmental and economic impacts are negative or positive. Up to 90 percent of wildland fires are caused by human activities primarily through the uncontrolled use of fire for clearing forest and woodland for agriculture or arson, but also through maintenance of grasslands for livestock management, extraction of non-wood forest products, industrial development, resettlement and hunting. Therefore proactive fire management needs integrated, inter-sectoral, multi-stakeholder and holistic approaches. The situation, however, varies markedly in different regions of the world. In accordance with the recommendations of the International Wildland Fire Summit in October 2003, the Ministerial Meeting on Sustainable Forest Management in March 2005 and the FAO Committee on Forestry (COFO), also in March 2005, FAO coordinated a multi-stakeholder process to prepare the Fire Management Voluntary Guidelines (Voluntary Guidelines) as part of a global strategy for international cooperation in fire management. The Voluntary Guidelines set out, and encourage the use of, a framework of non-legally binding principles and internationally accepted strategic actions. They address the cultural, social, environmental and economic dimensions of fire management at all levels. The principles and strategic actions are global in scope and target all elements of civil society and the private sector; member nations of FAO and non-members; policy makers and senior managers of sub-regional, regional and global organizations, whether governmental or non-governmental; owners and managers of forest, range, grassland and other ecosystems; and all stakeholders concerned with the protection of lives, property and resources from the effect of unwanted, damaging fires and with the use of fire to enhance ecosystems and economic benefits. Other sectors may also find the principles and strategic actions useful in their roles in society: insurance companies, advocacy groups, and specialists in communications, disaster management and public relations. vi Forest fires and the law The principles and strategic actions are expected to be promoted for use in governance, education, guidance, benchmarking, cooperation and advocacy related to all aspects of fire management. Their various features will provide contexts for social, economic, cultural, environmental and political discussions at sub-national, national, regional and international levels. The principles and strategic actions can serve as a checklist to strengthen policies, legal and regulatory frameworks, plans and procedures and, where these do not exist, will be a useful basis for their development and implementation. Special consideration is given to social and community values and to engaging the community in fire-management planning and implementation. The Fire Management Voluntary Guidelines can be accessed at: www.fao.org/docrep/009/j9255e/j9255e00.htm. The Fire Management Voluntary Guidelines also support the formulation of legal and regulatory frameworks for a holistic approach to fire management. Specifically, Principle 8 of the Guidelines clearly recognizes the role of legislation in supporting and institutionalizing forest fire management. This is because empirical observation leads to the conclusion that fire prevention and suppression are often hampered by unclear lines of institutional responsibilities and by conflicting policies and legislation. A variety of approaches in formulating national legislation can, however, be envisaged: prevention and repression, incentives, coordination and planning, participatory and community-based tools. Against this background, the present study seeks to systematically identify the elements of sound legislation on forest fires, capitalizing on the experience gained by FAO in advising on the improvement of forest legislation in member countries. Emerging trends (such as common approaches and tools, as well as common gaps), best practices and innovative legal solutions are identified in national and sub-national legislation on forest fires in a representative group of countries from different regions, having different ecosystems and different legal traditions. This comparative study led to the formulation of systematic recommendations for the analysis, review and drafting of legislation to ensure appropriate legal measures on forest fires are supportive of a holistic approach to forest fire management. Forest fires and the law vii This publication is a joint project of the Development Law Service and the Forest Resources Development Service. It was written by Elisa Morgera, Legal Officer of the FAO Development Law Service and Maria Teresa Cirelli, working on contract with FAO. The authors are thankful for the review and inputs provided by Pieter VanLierop and Petteri Vuorinen (FAO Forest Resources Development Service), Ali Mekouar (Director of FAO Conference, Council and Protocol Affairs Division, formerly Chief of the FAO Development Law Service), Kenneth Rosenbaum (International Legal Consultant), Ross W. Gorte (Research Service, Library of the US Congress), Helene Cleveland (USFS Fire Prevention Program Manager), Nazir Foead (WWF Indonesia), Brad Sanders (Asia Pacific Resources International Holdings Ltd), Daimar Cánovas González (Ministerio de Ciencia, Tecnología y Medio Ambiente, Cuba), Soledad Aguilar (International Legal Consultant), Gary Morgan (Bushfire Cooperative Research Centre, Australia), Murray Dudfield (National Rural Fire Authority, New Zealand) and Jorge Agudo Gonzales (FIREPARADOX). The authors are also thankful for research assistance provided by Michelle Pongoué, Maja Dittel and María Belén Olmos Giupponi, Legal Interns of the FAO Development Law Service. Stefano Burchi, Jim Carle Chief Chief Development Law Service Forest Resources Development Service Legal Office Forestry Department EXECUTIVE SUMMARY Fires in vegetation, forests, woodlands and rangelands are a major and continuing threat