Introduction

Forests cover 31% of the land on Earth. There are varying definitions of a forest under international law. The FAO’s definition is widely used and provides that for land to be considered a forest, its tree canopy needs to:

• Span at least 0.5 hectares
• The trees’ height must measure more than 5 metres;
• Have a canopy cover of at least 10%; and
• The trees cannot be for primarily agricultural use, urban forests or planted in agroforestry systems.

Other definitions can be found under the United Nations Framework Convention on Climate Change and the Convention on Biological Diversity. National policies may also use different definitions of forests.[1] What is important “Forest” includes more than just the popular notion of forest as a large area of continuous and dense tree cover.

Example: Legal Definition of ‘Forests’ in Chile’s Environmental Legislation  

Under Art. 2 DL 701, ‘forests’ are defined as: ‘A place populated with vegetal formations – with the predomination of trees – that occupy an area of at least 5,000 m2, with a minimum width of 40m, and with a treetop cover of over 10% of the total area in arid and semi-arid conditions and 25% in more favourable conditions’

[1] https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4980317/

Forests are of immense importance, in social, environment and economic terms. They are homes to hundreds of millions of people, including particularly Indigenous People. They are vital resources in relation to climate change. They are typically areas of great biodiversity. For example, forests:

• Allow us to breathe – one single mature tree produces a day’s worth of oxygen for 2 to 10 people.
• Are a source of food and medicine – 70% of known plants with cancer fighting properties only grow in forests – fruits, nuts, seeds, deer, rabbits, etc.
• Are a home or source of livelihoods for local communities and Indigenous People – 300 million people reside in forest, including 60 million Indigenous People who rely on them as their source of livelihood and their cultural identities. 13.2 million people have a job in the forest sector, and another 41 million people have a job related to them. The destruction of forests may also lead to the extinction of these peoples’ identities as well as their traditional knowledge that help conserve forests. Evictions from forest land may also have a particular effect on women which is not felt by men, such as the destruction of homes and shelters that are traditionally occupied by women and children.
• Provide clean water.
• Prevent or slow down climate change – trees are carbon sinks and absorb about a fifth of all carbon fuel emissions.
• Biodiversity – home to 80% of biodiversity on land.
• Protect watersheds and reduce erosion rates and the speed of chemicals to reach waterways
• Are buffers in natural disasters such as floods, hurricanes, etc.

Video: The Importance of Forests  

 This animation introduces the increasing threats against global forest resources and what might be done to stop deforestation.

Although our forests are important for our well-being and survival, they face continued threats. Despite forests covering 31% of global land area (the total forest area is approximately 4.06 billion hectares), the world has lost 420 million hectares of forest since 1990.   Half the world’s rainforests have been cleared over the last century. Whilst natural threats such as disease, pests and fire are part of the forest cycle, human activity has a number of negative consequences for forest ecosystems. The following activities cause ecological degradation in forest systems:

• Agriculture and the demand for “forest-risk commodities” that drive the deforestation economy, including soya, beef, cacao, palm oil, timber, leather and paper. To source these commodities, tropical forest area is converted for other purposes such as agriculture, livestock grazing, mining and drilling, accounting for more than half of all deforestation. Deforestation at this scale in the tropics threatens biodiversity and the livelihoods of forest communities.
• Illegal Logging: Illegal logging is the harvesting of timber against national laws (e.g. without a logging licence). Illegal land clearing for timber products causes deforestation, livelihood loss and climate change. Corruption and bribery may impact the licensing process, causing illegal deforestation. Indigenous Peoples may also be accused of illegal logging on their own land, causing further legal complexity.
• Wildfire: Although they may occur naturally,  wildfires can occur as a consequence of human activity and account for 23% of global deforestation. Sometimes, fire is used to clear land for other uses such as planting crops (i.e. slash and burn farming). However, they may occur accidentally or as a result of climate change. Wildfires can negatively impact soil fertility, forest habitats, carbon storage and the livelihoods of forest communities.
• Urbanization: Involves the expansion and intensification of urban development and comprises a small fraction (0.6%) of global forest loss.

Legal language and terms can be confusing. The purpose of this guide is not to describe many different laws, but rather to provide suggestions for a range of possible legal solutions to practical problems. The guide will in particular cover the following (N.B. listed in chronological order of the guide as opposed to order of importance):

• Use of national forest protection laws. If for example the law of a country prohibits logging on forest land without a licence, and you can prove that this has taken place, you may be able to bring a court action, or encourage public authorities to bring a court action, to stop the illegal activity and ensure that the person carrying it out has to pay compensation or is subject to criminal penalties.
• Use of international or regional mechanisms, treaties and agreements. In certain circumstances deforestation may involve contravention of state obligations or policies under conventions such as the UN Framework Convention on Climate Change or the Convention on Biological Diversity. International conventions will not usually provide a remedy to affected communities, but violations of the conventions may be relevant in legal proceedings.
• Deforestation may breach human rights of local people under national or international human rights, or under their country’s constitution. This might include the right to a healthy environment, or to livelihood, health, property, food, water and so on. Indigenous People (“IP”) are often particularly affected by deforestation, and particular or special rights granted to such people may be of particular relevance in legal action.
• In some countries rights are given to nature itself, and deforestation may breach those rights.
• Challenging the acquisition of land or grant of rights over land which is forest. For example, a lease or concession may been granted to a company to grow palm oil or sugar on forest land. It may be that the lease or concession is contrary to law, appropriate level of consent has not been sought from the relevant landowners, or has not been properly authorised and can be challenged.
• Challenging use of forest land, for example for agriculture or mining or building of a road. Again it may be that the process of granting a permit for such use can be challenged, because relevant laws and procedures had not been complied with.
• Use of requirements to carry out an Environmental Impact Assessment, or Environmental and Social Impact Assessment. Many laws require these assessments to be carried out before forest land can be used for another purpose. If none has been carried out, or if the assessment is inadequate or flawed, this may provide grounds to challenge such use.
• Action to stop activity on forest land which is wrongful because it is damaging the property or health of those in the area. Where there is pollution or contamination this may give rise to criminal prosecution, or an action by those affected to seek an order to stop the activity or pay compensation. In some countries a legal action can have both a criminal and a civil aspect. In others civil claims are separate from criminal proceedings. Civil claims are brought by affected communities or inhabitants, and criminal proceedings are brought by the state authorities. Collective civil claims (or class action lawsuits) can also be brought by NGOs in certain jurisdictions.
• Laws on tax evasion or money-laundering. Often illegal deforestation or logging is carried out by those who breached tax laws or money-laundering regulations and action against them can be brought in this way. These actions are typically criminal proceedings that will need to be instigated by prosecutors.
• Laws on biodiversity and endangered species. Deforestation usually has a profoundly negative affect on wildlife. Laws to protect particular species may be used to stop deforestation (but should be balanced so that they are not used as a tool to violate Indigenous Peoples’ rights.
• Climate Change. Deforestation often has negative implications in terms of climate change. Laws or policies which are designed to prevent climate change or its consequences may be used to prevent deforestation.
• “Follow the money”. Much deforestation occurs because land is deemed more economically valuable for agricultural, mining or development rather as forest. Often deforestation occurs because of investment, frequently by foreign companies or banks. Legal action against those that finance development projects are rare and challenging, but action may be possible against these companies or banks where they are situated.
• Supply Chain laws. Much deforestation takes place in order to log timber or grow crops or commodities which are then exported internationally. Laws in the places where they are sold to may prohibit sale or use of products whose growth or manufacture contributes to deforestation.
• Complaints and procedures which are not actual court action. Although not strictly legal action, it is often possible and effective to make complaints other than in court claims. These might be to local or United Nations Commissions on human rights or the environment, or to the complaints bodies of International Financial Institutions, or to trade or business associations which have set out codes of practice designed to prevent deforestation.

The list above of types of legal action just gives some examples. However, lawyers and communities can be creative and imaginative in thinking of how to use the law to protect their environment. Just as an example, it might be impossible to protect a forest by direct legal action, but it might be that trucks carrying logged products breach noise or pollution standards if they have to drive through a village on the way to the forest, and that they can be stopped in this way. Or deforestation may affect the water supply to a nearby community, in breach of a right to water.

Taking effective legal action requires more than just identifying a law which may have been breached or which might be relied upon. There are many practical issues involved. Some of these are concerned with local procedures and how to bring an action. A successful action is likely to require legal knowledge and resources, some financial resources and the support of the campaign group. In addition there are some other important topics to consider. Sub- page 13 gives a list of further resources and references, as well as a list of organisations may be able to help you. Other particular things to think about, which are addressed in this guide, include the following:

• Evidence/Information. It is not enough for you to believe or even know that a law has been broken. It is important to gather reliable evidence which can be used to prove this in court. This is often one of the most challenging parts of taking legal action.
• It is usually not enough to solve the problem to obtain a court order in your favour, for example that a party stops logging or burning forest, or pays compensation. It will only be effective if that order can be enforced.
• Getting public authorities to take action. Taking legal action can be difficult and challenging. It is often easier, in appropriate cases, to gather evidence and information to take to public authorities who will bring the legal action themselves.
• Defending the defenders. Those who defend forests and the human rights of those who live in them are often subject to violence, imprisonment, threats and a whole host of other unpleasant actions. It is important that safety and security are considered when thinking of legal action. There are all sorts of ways in which it may be possible to defend those who are defending the environment.
• Legal action in coordination with campaigns. Legal action in relation to protecting forests is much more likely to be effective if it has the full support and involvement of local communities, and that it is accompanied by appropriate political or media campaigns.

For more information on these issues, see Going to Court at Sub-Page 11 of this Guide.