1.4. Delimitación
2.1.8. Fundamentación axiológica
2.1.8.3. Formación en valores y escuela
PRIVATELY OWNED FORESTS AND ADMINISTRATIVE
INTERVENTION
The process to return the ownership and management of the forests to the neighbours’ associations may now be considered a praiseworthy historic process and one which has
practically concluded, after their confiscation throughout the 19th Century in the confusing ceremony of bringing democracy to management of the Local Governments and their identification with the people they govern, i.e., how the Local Government ceased to be a link in the transmission of royal power and became the Administration chosen by the people, so the governor-town council was erroneously identified with those governed-residents, as the former took over the common assets of the latter.
The failed Act of 27 July 1968 and its Regulations of 26 February 1970 were corrected in 1980 by Act 55/1980 of 11 November. Galicia, the Autonomous Community where there are the greatest number of these forests, completed the process through its Act 13/1989 of 10 October, developed by Decree 260/1992 of 4 September and article 14 of Act 4/1995 of 24 May, on Civil Law in Galicia. However, the special nature of these associations or communities, which fulfil duties of social interest through their administration of the forests - and ensure survival of its cultural identity - beyond the mere use of the common forests, requires an effort to allow them to convey their conceptual world to the technocratic national authorities. The problem, basically an issue of economic and tax regime, is dealt with in the section on structural reforms.
As to privately owned forests, one must consider that some economic and functional features that are inherent to their ownership are factors that affect the administration and management of the forests. The importance of maintaining the multiple roles played by the forests makes their ownership important to society at large. This peculiarity of forest ownership, which distinguishes it from any other territorial property, justifies and obliges the Administration to monitor the forest exploitation and safeguard the forests, especially the protective ones and those located in protected natural spaces. However, that administrative supervision may never lead to confiscation of the faculties of private property recognised by the Constitution in force, so an adequate framework must be created so private owners may contribute in a natural, multi-functional way to sustainable management of their forests, without administrative regimes that restrict their powers of management.
This Forestry Strategy thus proposes a liberalisation of privately owned forests in such a way that their owner takes the relevant decisions concerning their management, and the Authorities simply monitor them and encourage sustainable management in the context of the presentation of an organisation plan, or a technical plan for the forest, through economic support for their owners, once the organisation or technical plan is approved by the Authorities.
However, such liberalisation may not become a model that revives quasi- omnipotent Roman ownership models that leave the private individual the decision to transform forest into arable land or to freely determine what species to plant or grow, without any limits whatsoever arising from regional forest policy. The Constitution does not shelter such property rights, but rather determines that their social function shall define their content, pursuant to the laws. 80
80
Appendix - X 115
Government policy, seen as the sole symbol of forest policy which is normally implemented by techniques that make even prunnings and fellings or any silviculture operation subject to authorization, is becoming excessively technocratic in some areas. The administrative discretion being used by the Forestry Services, which really substitute the management powers of the owner, has led to the desire in the sector to formalise a statute of ownership that may lead to a model that ignores the social function of such property.
If, in addition to this, one adds the fact that no compensation whatsoever is offered to the owners when the social-economic benefit to third parties, i.e., the social and environmental function of the forests, their external positive factors, are now recognised and even imposed, it is even logical to strive for a complete liberalisation.
Moreover, the failure to distinguish the unit in charge of management of the public forests, and the one in charge of safeguarding private forests, tends to generate uniformity in the organisation that is not always justifiable and, above all, a concentration of application of budget items focused on the State’s own properties. Although some Autonomous Communities, such as Castilla y León, have laws that envisage general systems of premiums or subsidies for private forests, there is not usually a sufficient financial base to make these really effective, nor to compensate the positive external factors, nor to assure a minimum economic profit. The present state subsidy system, Act 19/1995 on modernisation of agricultural farmings, has not been really effective either as to the foreseen system of forestry grants.
Finally, taxation of the sector and the figures of protective forests and of obligatory consortiums have also helped to spread the idea that private forests have a quite different statute of ownership to that of agricultural, urban or industrial land, encouraging the wish for complete liberalisation.
Some formulas, however, do not reach such a complete liberalisation, which would involve departing from the model of ownership described by the Constitution, but instead allow a new private property statute to be established, in line with the faculties recognised for this in the European Union countries where private forests are liberalised, although subject to basic terms and control by the Authorities based on the technical projects and plans, as well as on reporting actions by private individuals.
The guiding principles of that statute are:
x
Land zoning powers belong irrenounceably to the Autonomous Communities.x
The Autonomous Communities shall have the competency to establish limitations or conditions to transform the use of forest land or replace forest species with others.x
However, the policing competencies of the Autonomous Communities may be exercised to a greater or lesser extent. If the private owner has consulted or submitted amanagement plan for approval, it is logical that unique acts of management, if they comply with the plan, cannot be reviewed discretionally by the Authorities. This may, thus chose models that are limited to controlling each specific act – felling and prunning permits - without imposing or encouraging prior planning or, on the contrary, may encourage the latter by liberalising these acts.
x
The Authorities shall approve the management plans and supervise their fulfilment, and for that purpose may apply reliable, credible self-monitoring systems by the associate forest owners, such as that provided by voluntary forestry certification.x
The Autonomous Communities must opt to separate the administrative units and the budget items aimed, on one hand, at management of public forests, and, on the other, the general ones of forest policy. One must remember that when devolution to theAutonomous Communities took place, the national civil service had two different units, ICONA for public forests and the Forestry Service of the General Directorate for Vegetation Production for private forests, both then assigned to the Ministry of Agriculture, while the Autonomous Communities nowadays have a sole forestry management unit, as the pre-existing ones have been unified.
x
Drafting the autonomic forest policies, especially those concerning private forests, must be subject to the principle of participation in them. The formulas may range from participation by the main associations representing the owners, consisting of hearings or statutory consultation, to creation of more institutionalised forums, or even direct participation in the collegiate administrative body that establishes the policy, with delegation, even of functions on those representative bodies, as long as there is a minimum amount of administrative supervision to prevent unconstitutional neglect of responsibilities.x
To encourage association membership by the owners to structure the sector, so the associate owner may have a greater possibility of management.x
To undertake an adequate economic incentive policy for private forests to compensate for the positive external factors of the forest. The section included among the structural reforms in this Strategy specifies what this policy may consist of.x
To carefully study the effects inclusion of a forest in the Natura 2000 network will have on the forest management.x
As stated in the previous section, when the social and ecological functions of the forest are so evident as to cause them to be declared as Public Utility Forests, the Forest Authorities must proceed to acquire it.x
The figure of protection forests must be replaced by another voluntary category that is thus conditioned by negotiation of the benefits to compensate limitation of management deemed fit by the owner.x
The institute for the forced reforestation consortium will be suppressed in private forests and an appropriate solution provided for the present Consortiums and Conventions, which have become completely outdated due to application in Spain of reforestation ofAppendix - X 117
agricultural land, in the sense that conversion to more advantageous and less costly figures, and one must even consider condoning debts - or studying their financial rebalancing - with the undertaking by the owner of the land to manage the existing stands sustainably due to the positive external factors involved nowadays.