0504-C3
Līga Menģele 1
It is important to consider the forest from the viewpoint of ownership rights and ecological functions.
Special rules applicable to the forest as a property are discussed in the present paper. The state's dual role in relation to forest is an aspect to be taken into account. The state has to fulfil both public and private functions in the forest sector considering that all the decisions made by the state are based on a compromise between the economic and non-economic interests of the state. Granting legal capacity to the forest could solve this problem. That means that a forest is treated as the subject of rights rather than the object of rights, including ownership rights.
Restrictions are discussed as one of the ways to protect nature from uncontrolled actions of forest owners and other persons.
The following conclusions are made:
Nowadays forest cannot be considered only as a landscape feature. It should be viewed as a property unit of dual nature: first as a landscape feature and, second, as an object of ownership. The author of this considers the forest from the viewpoint of property rights, analysing the content of property, change (of property) and restrictions imposed on a forest owner.
As it is well known, forest is one of the essential components property rights refer to as the property rights cannot exist in isolation from the thing owned, i. e. the property rights exist as long as the thing itself exists. T.J.McEvoy puts it as follows: "A title as it relates to real estate is an abstract concept. You cannot hold a title to real estate in your hands, yet it is very real and significant because it expresses a person's legal rights to land - rights as evidenced by a deed, a survey, or some other legal documentation, such as a contract or a bill of sale. A person acquires forest land by obtaining a legal title to it, one that no other person can challenge."2
In defining the content of property rights we must agree with L.A.Sandberg and P.Clancy: "Private property is not a thing, but a set of rights conferred on an individual or group to some or all of the uses, benefits and costs (including the management) of a forest area. (..) private property rights rest on three basic concepts: rentability, transferability and exclusivity. Rentability refers to the right of profiting from ownership, such as the right to cut and sell wood or sell cutting rights from freehold lands. Transferability refers to the right to dispose freely of all or a set of property rights to a willing buyer at an agreed price. Exclusivity, finally, refers to the right of excluding others from the use of a resource."3
In the legal system of Latvia the concept of property is defined by the Civil Law, Article 927. It says that the property implies absolute rights of authority over the thing owned, i. e. rights to govern and use it, to profit from it to destroy it or dispose of it, or let it out on hire to a third party, etc.
According to the Forest Law of the Republic of Latvia adopted in 2000 (Item 2, Paragraph 3, Section 1) "forestland is the land carrying the forest, the land under forest infrastructure facilities, as well as overflowing clearings, bogs and glades in the forest and in the territories contiguous to it". However, Item 1 of the same paragraph states: "The forest is an ecosystem in all its stages of development. Trees with the height of at least seven metre prevail, and the present or potential tree crown cover accounts for at least 20% of the forest stand area." For legal practitioners similar definitions may appear too complicated since the criteria used to define the given categories refer basically to the ecological aspects describing forest. In practice it means that any land, meeting the above criteria, will be treated as forest by law with all the implications involved for the owner regardless of the land use aspects when, for example, the given land is entered in the Land Registry as farmland. It must be admitted that in different countries there are different approaches in defining what is forest and forestland. The land with trees predominating would be classed as forestland. However, a clearing, a bog, or a glade in the forest and in the territories contiguous to it may be classed both as forest or non-forest land.
When fixing a value to forest land and land not covered with forest, it must be admitted that the value of forest land is higher mainly at the expense of trees thereon. Paragraph 850 of the Latvian Civil Law states: "Primary things are those that constitute an independent legal subject. Everything else existing in conjunction with a primary thing, or pertaining to it, or in any other way related to it are ancillary things." However, the question of assessing a forest in terms of legal relations between things as discussed above is open to debate. So far nobody has attempted to analyse a human body in similar terms. Likewise, there should be no reason to break down forest as an ecosystem into primary and ancillary things since any of its elements has its own importance, and it can function only in relation to other elements. As concerns to property rights on land and the things thereon, the concept of primary and ancillary things is indispensable. This is because in legal transactions it may be of great importance whether the thing is movable or immovable, that is, primary or ancillary.
The subject of property rights is the person entitled to definite rights and obligations in relation to the thing owned or held. The area of forests in Latvia is 2.9 million hectares or 45% of its land area. According to their ownership the forests in Latvia are divided as follows: state-owned forests - 50%, private forests - 42%, forests owned by local authorities - 4%, forests to other ownership - 4%. The private forests are owned or legally possessed by individuals and legal persons. In Latvia the average size of a forest belonging to a private person is 8 ha, and the total number of private forest owners is about 154,400 (as of 10.09.2001).
In Latvia the State Joint-Stock Company "Latvijas valsts meži", the entire capital of which is owned by the state, manage the state owned forests on behalf of the state.
Local authorities own a relatively small proportion of the country forest lands. They are managed as considered proper by local authorities, taking into account the provisions of laws and regulations concerning forest management.
Irrespective of the ownership the Forest law determines the objective of the given law, that is, to provide for sustainable forest management in all the forests of Latvia, ensuring equal rights, inviolability of property, independence in economic activities, at the same time imposing equal obligations on all the forest owners (Article 2, part 1). It means that neither the size of the property nor the way it is obtained is of any importance but the most essential thing is the possession of property and tenure.
The role of the state in forest management differs greatly from that of the other owners because the state is the subject of both the public and private rights in relation to forests. On the one hand, the state as the forest owner performs functions of the owner. These functions involve implementation of socially accepted ecological and social functions, preservation and increase of forest value and income to the forest owner - the state. 4 Thus the state as the subject of private rights owns forest and gets profit from it. However, the state as the subject of public rights has to act in public interests to ensure compliance with the principles included in Article 115 of the Constitution of the Republic of Latvia: "the right of the public to live in a healthy and enabling environment". As the subject of public rights the state performs the regulatory, supervisory, and support functions. The regulatory function is vested to the Ministry of Agriculture, but supervision and support functions to the State Forest Service.
Although the functions inherent to the state in relation to forests are performed by different institutions, the situation is quite odd as the state itself manages the forests owned by it, controls the compliance with the law in managing the forests and sets restrictions to ownership rights. Thus, the state as one of the forest owners possesses greater authority in comparison with other forest owners. It is so because the state possesses both the legislative and executive authority, as well as the judicial authority. Therefore there is no clear distinction at which moment, if there is any, the state supports the interests of nature and environment since the majority of decisions on environment protection are not economically advantageous. So when the state introduces any restrictions on forest management, it deprives itself of the opportunity to gain profit from forest management, timber harvesting in particular. No definite criteria have been worked out to balance the economic interests and the interests of environmental preservation, and as a result of it nobody defends the interests of a forest as a natural resource. Christopher D. Stone has expressed the idea that a forest like any other object of nature should have rights of its own: "(..) until the thing without any rights receives its rights, we cannot see it as anything but a thing for the use of "us" - those who are holding rights at the time..."5 Speaking about the possibility to endow a thing with legal capacity, we can find similar precedents in the legal system of Latvia, for instance, in the inheritance rights. "Inheritance is the legal person. The inheritance may obtain rights and assume obligations" (Civil Law, Article 383). Christopher D.Stone adds that: "...for a thing to be a holder of legal rights three additional criteria must be satisfied. They are, first, that the thing can institute legal actions at its behest; second, that in determining the granting of legal relief, the court must take injury to it into account; and third, that relief must run to the benefit of it..."6 Every person has to have legal capacity to implement his/her rights and obligations in legal relations. If we classify a forest as a legal person, the state has to give rights to some state authorities to act as guardians of the forest as a natural resource. Though this could be much easily fulfilled in the countries where there are only state-owned forests. In the countries with varied ownership structure it is much more difficult to put into practice "a forest guardian" institute, because it goes against forest owners' rights. One more serious obstacle is attitude towards the values. A forest as a thing that belongs to somebody has to be transformed into a forest as a legal person with its own rights and obligations carried out by a guardian. Serious educational work has to be done to change peoples' attitude.
It cannot be denied that as a result of forest research a lot of highly valuable things have been discovered that ensure sustainable forest management. However, as long as a forest is treated as the thing without the right to act on its own, a lot of theories will remain only declaration in practice. A forest is first of all treated as "a green purse" because the majority of people are interested in obtaining economic benefits from it, particularly those who have financial resources at their disposal. The state, due to its dual role in relation to forests, cannot fully take the right stand because implementation of ecological and economic interests contradict each other.
As the forest is currently treated as a thing without any rights rather than the subject of rights with definite amount of rights and obligations imposed on it, the situation when decisions concerning forest are made without proper consideration of its actual needs will continue. This happens because there is nobody who would act on behalf of the forest. In the present situation we may consider restrictions in forest management as the means for protecting its interests. The most important restrictions have been worked into regulatory acts.
The science of law defines restrictions as "a limitation, often imposed in a deed or lease respecting the use to which the property may be put. (..) In context of property law, the term describes a contract between a grantor and a grantee which restricts grantees use and occupancy of land; generally, purpose behind restrictive covenants is to maintain or enhance value of lands adjacent to one another by controlling nature and use of surrounding lands".7
Article 4 part 3 of the Forest Law states: "The person's economic independence may be restricted in the cases provided by the given law and other acts of law".
The most serious restrictions refer to tree felling since they limit the forest owner's right to benefit from his/her property, and entail serious financial losses for the owner. A temptation to earn fast money is especially dangerous for the public interests in the countries with economies in transition, including Latvia. It is because a forest owner has acquired the forest property only recently and does not feel himself as an OWNER yet. He/she does not see the long-term aims in managing the property, nor cares about sustainable forest management in favour of the future generations. In such a situation the restrictions on final felling act as an instrument against inconsiderate actions of the forest owner can save the forest.
To sum up the above mentioned information, the following conclusions have been made:
Mc Evoy T.J. 1998. Legal aspects of owning and managing woodlands, Washington, D.C. Island Press, USA
Sandberg L.A., Clancy P. 1996. Property Rights, Small Woodlot Owners and Forest Management in Nova Scotia// Journal of Canadian Studies, Vol.31, No1, Spring, Canada
Stone C. D. 1997. Should Trees Have Standing? - Toward Legal Rights for Natural Objects (1972)// Law and the Environment, edited by R.V.Percival and D.C.Alevizatos, USA
Black's Law Dictionary,1990. sixth edition, St Paul Minn, USA
Latvia's Forest Sector 2000, Riga, Latvia.
1 Saules iela 5-15, p/n Brankas, Jelgavas rajons, Latvia, LV-3042. [email protected]
2 T.J.Mc Evoy "Legal aspects of owning and managing woodlands" Washington, D.C. Island Press, 1998, page 29.
3 L.Anders Sandberg, P.Clancy "Property Rights, Small Woodlot Owners and Forest Management in Nova Scotia"// Journal of Canadian Studies, Vol.31, No1, Spring 1996, page 28.
4 Latvia's Forest Sector 2000, Riga, 2000, page 4
5 C. D. Stone "Should Trees Have Standing? - Toward Legal Rights for Natural Objects (1972)// Law and the Environment, edited by R.V.Percival and D.C.Alevizatos, USA, 1997, page 307
6 C. D. Stone "Should Trees Have Standing? - Toward Legal Rights for Natural Objects (1972)// Law and the Environment, edited by R.V.Percival and D.C.Alevizatos, USA, 1997, page 308
7 Black's Law Dictionary sixth edition, St Paul Minn, 1990, page 1315