Defining legality

Legality is defined by the aspects of legislation required to be addressed at the forest management level. There is no universally agreed definition of legality; however, in many the following aspects are covered:

• Legal right to harvest

• Compliance with legislation related to forest management, environment, labour and welfare, health and safety

• Compliance with legislation related to relevant taxes and royalties

• Respect for tenure or use rights to land and resources that may be affected by timber harvest rights

• Compliance with requirements for trade and export procedures including CITES

The definition of legality under the FLEGT VPA, EU Timber Regulation, and under the UK, Denmark, Belgium and Netherland’s public procurement policies are addressing the same aspects and are therefore broadly consistent. The requirements are outlined in the table below.

Definition of legality

FLEGT VPA Process

Though the elements of a legality definition referred to in the legality assurance system of a VPA Partner Country are broadly consistent with relevant requirements of the EU Timber Regulation and the public procurement policies, it is important to remember that it is a mandatory legality verification programme.

The FLEGT VPA requirements apply at a national scale and the FLEGT legality assurance system is therefore not directly comparable to voluntary legality verification schemes which are applicable only at forest management unit level. The FLEGT VPA process, for example, requires national level stakeholder agreement on the interpretation of contentious areas of forest legislation through multistakeholder processes, including government, which result in clear and transparent requirements and promote good governance of the forest sector. The FLEGT VPA process reduces the costs and challenges of effective FMU-level control and certification and thereby compliments and supports the voluntary legality verification systems and the move towards forest certification. The briefing note ‘FLEGT licensed timber and EU member state procurement policies’ provides further details on what the signed FLEGT VPAs deliver.

Verification of Legal Origin (VLO) and Verification of Legal Compliance (VLC)

Some legality verification systems refer to a two step approach; verification of legal origin (VLO) and verification of legal compliance (VLC). However, the differences between the two are not always well explained and the requirements may differ. The step-wise approach is useful to support producers especially in tropical producer countries where there is often a lack of clarity of applicable legislation, weak law enforcement and poor governance in the forest sector. In these countries ensuring full legal compliance can be a big challenge and can therefore in some cases take years to achieve. The two steps can be described as follows:

• Verification of Legal Origin (VLO) verifies that timber comes from a known and licensed source and that the entity that carried out the harvest had a documented legal right to do so.
• Verification of Legal Compliance (VLC) expands upon the basic component of VLO by verifying that timber harvesting and other relevant management activities in the forest where it was harvested complied with all applicable and relevant laws and regulations.

Both SGS and SmartWood offer VLO and VLC services, while BV, SCS and Certisource do not differentiate these two levels of legality and offer a legal compliance service. The differences between these two in terms of what aspects of legality they cover are demonstrated in the table below. Please note that the analysis is based on a rough review of documents.

As discussed above and illustrated in the table below, some of the systems have gradual steps with respect to which aspects they cover and which they do not. For example, VLO standards from SGS and SmartWood do not fully cover all aspects of legality.

The SGS TLTV-VLO standard covers aspects on legal right to harvest and compliance with legislation related to taxes and royalties. However, it only partially covers compliance with legislation related to forest management, environment, labour and welfare, health and safety. It does not cover the requirements for trade and export procedures.SmartWood VLO standard covers aspects on legal right to harvest, compliance with legislation related to taxes and royalties, and respect for other parties’ tenure or use rights and compliance with requirements for trade and export procedures. However, it only partially covers the criterion on compliance with legislation related to forest management, environment, labour and welfare, health and safety.

Aspects of legality covered by different systems