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Forest Governance Forum Kinshasa 11-12 September 2012 Emily Unwin

New International Laws: the EU Timber Regulation, US Lacey Act and Australian Illegal Logging Law. Forest Governance Forum Kinshasa 11-12 September 2012 Emily Unwin. Overview. EU Timber Regulation h ow it works interaction with VPAs US Lacey Act & Australian Law

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Forest Governance Forum Kinshasa 11-12 September 2012 Emily Unwin

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  1. New International Laws: the EU Timber Regulation, US Lacey Act and Australian Illegal Logging Law Forest Governance Forum Kinshasa 11-12 September 2012 Emily Unwin

  2. Overview • EU Timber Regulation • how it works • interaction with VPAs • US Lacey Act & Australian Law • Common features of these new laws • Implications for timber producing countries

  3. EUTR/Lacey Act/Australian Law Taken together, these laws represent a new approach. Each law: • Focuses on legality in country of harvest • Prohibits trade in timber that has been harvested illegally • Creates an obligation to actively question the legality of harvest (due diligence/due care) • Requires that information about the timber is collected to evidence its legality

  4. EUTR Main Provisions From 3 March 2013: • Operators are prohibited from placing illegally harvested timber on the EU market • Operators must exercise ‘due diligence’ as to the risk that timber is harvested illegally • Operators and traders must keep records of suppliers and buyers Operators = those that ‘first place’ timber on the EU market

  5. Focus of the EUTR • Applies to timber/products listed in Annex, including: • Fuel wood, wood chips, builders joinery, rough wood, sawn wood, plywood, particle board, wooden frames, veneered panels, … • Applies whether harvested in EU or beyond • Focus is legality in country of harvest – even if timber arrives in EU via a processing country

  6. Who is an Operator? Operators = those that ‘first place’ timber on the EU market

  7. Due Diligence System

  8. Certification & Legality Verification Schemes Not automatic evidence of legality Are possible ‘tools’ for due diligence: • Operators must assess how relevant and credible they are • Even if a system does provide all information, operators will always retain legal liability and risk

  9. Enforcement Member State Competent Authorities: • Risk and intelligence based checks • Civil society may present concerns about illegal practices Penalties • ‘Effective, proportionate, dissuasive’ • Fines proportionate to environmental damage, value of timber, tax/economic loss • Seizure of timber, suspension of right to trade

  10. Impact of FLEGT licence Timber with a valid FLEGT licence is automatically considered legal under the EUTR. Reduces business risk for operators: • FLEGT licence is considered ‘legally harvested’ and can be use to demonstrate compliance with due diligence obligation • No need to request further information

  11. US Lacey Act and Australian Illegal Logging Bill

  12. US Lacey Act • Prohibits trade in illegally sourced forest products • Focus is legality in country of harvest • Must submit a declaration giving details of: • Scientific species name, country of harvest, volume & value • Must exercise ‘due care’: • Reasonable steps to reduce risk of trading illegal goods • Similar to EUTR ‘due diligence’ obligation

  13. US Lacey Act • Third party certification • not required - or accepted - as proof of legality • First enforcement case (against Gibson’s Guitars) settled in August 2012 • Civil society had raised concerns about legality • Failure to seek information to check legality was a fault • Penalty of over $600,000 including forfeit of illegally imported wood • Improvements to compliance systems required

  14. Australian Illegal Logging Bill • Passed by House of Representatives in August 2012. • Not yet law - still must be passed by Senate. • Key provisions: • Prohibits import of illegally logged timber • Due diligence as to risk of illegality must be exercised • Prohibit processing of illegally logged domestic timber

  15. Key Overlaps of International Laws • Focus on legality in country of harvest • Information about timber is important • Regulated party must: • take active steps to assess risk of illegality (due care / due diligence) • request relevant information about the timber, its source and legality • maintain records of information

  16. Impacts in Timber Producing Countries • Timber producers are not directly caught unless selling to EU/US/Australian markets directly • Buyers may ask timber producers for information about the timber – and evidence of legal harvest: • Location of timber harvest • Proof of legal right to harvest and transport permits • Proof of legal incorporation and compliance with customs laws • Civil society may present information indicating illegal logging to buyers & public authorities in EU/ US/Australia

  17. Summary of Key Points • From 3 March 2013 timber to EU must comply with EUTR • Similar laws exist and are being created internationally (US Lacey Act/Australian Law) • Buyers may request information to show legality • FLEGT licence reduces risk for EU operators • Certification is not a one-stop solution • Civil society (in EU and beyond) may play a role in effective enforcement

  18. Thank you Emily Unwin Lawyer, ClientEarth eunwin@clientearth.org

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