Missing legal regulation on planning and participation 70

Some of the NHS interviewees expressed that they do not even know how, and by whom, the annual harvest levels are eventually defined, or do not feel NHS has a role to play in the process. As to why the harvest levels are set to the level they are, one of the NHS representatives assumed that it is in the interest of the Forestry Division to have large enough harvest volumes. As he put it, size is power.

If it is so that there is a close link between the strategies Metsähallitus adopts in Natural Resource Planning, and the performance targets set by the State, then the participation of stakeholders in NRP becomes a central tool for affecting the priorities of state forest use and for settling conflicts. Before moving to the practical implementation of NRP in Kainuu, I will now address how NRP is regulated in general, and the public participation in particular.

Since the 990s, public participation in decision-making and access to justice in environmental matters have also increasingly been included in the Finnish environmental legislation. For instance, the Environmental Impact Assessment (EIA) Act (68/99), Land Use and Building Act (/999), Environmental Protection Act (86/000), and Nature Conservation Act (096/996) all include provisions regarding the right of the public to be heard. Land Use and Building Act (9,9 §), Environmental Protection Act (97 §) and Nature Conservation Act (6 §) also include provisions that grant environmental NGOs a right to appeal the authorities’ decisions.

The right of appeal is a central element in public participation. Without it the right of citizens to participate in environmental decision-making would differ very little from any other form of political activism, where the significance of the right to participate depends on the political weight of each participant. While the right to appeal is not an aim in itself, it is a central element of meaningful participation in ensuring that participation is more than just a formality. (Suvantola 00, –5.)

In Finnish public law, the right of appeal against decisions of the authorities is generally guaranteed through a process called administrative appeal. In short, it means that citizens have the right to appeal a decision by a public authority whenever they are directly affected by the particular decision. In contrast to civil law suits, an affected citizen can initiate an administrative appeal processes without the need to hire a lawyer, because it is the duty of the administrative courts or other appellate authority to take the initiative to obtain sufficient evidence in the matter on behalf of the appellant, in so far as the impartiality and fairness of the process and the nature of the case require. (Administrative Judicial Procedure Act (586/996) §; Mäenpää 00, 90). This means significantly lower costs and demands on the appellant. The purpose of administrative appeal is one hand to secure the subjective rights of the citizen vis-à-vis administrative decisions of the authorities. On the other hand, the right to appeal also aims at securing objective legality of the decisions, and hence at ensuring the legitimacy of the public administration.

(Määttä 00, 8; Suvantola 00, 5–6.)

Traditionally in Finland, only people whose duties, rights and/or interests are directly affected have had the right to appeal a decision by authorities (Administrative Judicial Procedure Act 586/996 6 §). The threshold for legal protection has been high (Suvantola 00, 0). However, when it comes to environmental issues, it has been considered necessary, both internationally (Aarhus Convention) and in Finland, that the scope of the right of appeal should be more inclusive. Therefore, environmental NGOs have been granted the right of appeal in many cases. According to the Aarhus Convention, in environmental matters the interests of ENGOs are always deemed an affected party (Article .).

The reform to include public participation and the right of appeal in environmental legislation is still on-going in Finland, and some of the reformed Acts have been criticised for being internally inconsistent and in need of further development⁷. Nonetheless, the trend in both international and national law has been clear: to improve the possibility for citizens and environmental NGOs to affect environmental decision-making.

Finnish forest legislation, however, is an exception to this general trend. (Määttä 00, 5). Neither the Forest Act nor the Forest Decree include any regulation on public participation in forestry in general. Specifically regarding state-owned forests, the only form of participation stipulated in the law is through Advisory Committees for the

72 For critique on e.g. Land Use and Building Act see Suvantola (00, 0), on EIA Act see Pölönen (007).

Provinces of Lapland, Kainuu and North Karelia, which MAF nominates for a period of three years. The task of the Committees is to give statements to Metsähallitus in significant issues related to the use of state land, as well as to make motions to Metsähallitus to take the position of the local population into account. The Committees are chaired by a MAF representative and the other nine members shall represent the local population, forestry, economic life, environmental protection and NGOs in a diversified way. The Committees are, as the name implies, advisory and their statements do not bind Metsähallitus to any consequent measures. (Government Decree on Metsähallitus (80/00) 8 §.) In practice, their role as a forum for managing the conflict in Kainuu, for instance, has been marginal.

As was mentioned earlier, the Government has defined participatory Natural Resource Planning as the key tool for reconciling the different objectives regarding state forests and for ensuring that different groups get their voices heard (HE 5/00 vp). Despite this, NRP, or the role of public participation therein, is not mentioned in the proposed or passed Act on Metsähallitus. In other words, the allegedly most significant conflict management tool for state forests does not exist in the legal sense. When Metsähallitus voluntarily developed participatory planning for state forests in mid-990s, it was a forerunner in the issue in Finland, and there existed little detailed legislation on public participation in any field of land use planning or environmental decision-making⁷. However, forestry planning is now one of the few environmental planning processes that does not include any legally secured rights for public participation.

The lack of legal regulation on NRP and public participation has a number of implications. First, the role of stakeholders in the NRP process remains undefined and depends on the policies adopted within Metsähallitus. As was concluded by the external evaluation group on LEP, the objectives Metsähallitus has defined for public participation have been numerous, varying from information gathering to collaboration and conflict resolution. Because of the varying roles given to stakeholders, it has also been unclear at times as to how the collected input has been used in the final decision-making (Niemelä et al. 00).

Lack of regulation also means that should citizens or organised interest groups participating in the NRP process disagree with the legality of the process or the final outcome, they have no possibility of appealing the plan. This is because, in order for a citizen to be able to file an administrative appeal, there needs to be an appealable decision.

A right to appeal against decisions by the authorities exists only for final administrative actions that have been taken by public authorities. Preparatory decisions, or decisions by other actors, are not appealable, because they are not final actions or not taken by a public authority. (5 §, Administrative Judicial Procedure Act (586/996), Mäenpää 00, .)Metsähallitus’ Natural Resource Plans are plans only. Although they are the closest one comes to formal decisions in forestry planning, they are not formal decisions in the legal sense, Metsähallitus’ Forestry Division is a state business, not a public authority, and therefore, even if the NRPs were formally adopted as decisions by the Forestry Division, they would not count for appeal, because the decision is not made by a public authority.

Yet, in practice, the NRPs affect the forest management strategies on state land more than any other formal land-use planning process lead by public authorities. Different types of

73 However the Act on Environmental Permits (75/99) and the EIA Act (68/99) had already been passed during the first half on the 995s, and both included provisions on public participation.

In 995, a new provision was also added to the Constitution that defined environment as one of the constitutional rights (a §, 969/995).

land use plans defined in the Land Use and Building Act, for instance, do not, as a rule, regulate the content of different forestry operations.

Furthermore, as NRP and its objectives are not mentioned in legislation, it is impossible for participants to assess whether the plan and planning process have fulfilled its statutory goals. The legislator describes NRP as the most important planning tool for reconciling the different goals and interests regarding state forests, but how is it possible to assess whether this has been achieved, when the goal is not concretely defined in the Act? Without substantive regulation on the planning, any procedural regulations would remain meaningless, because an appellant must refer to substantive legal grounds on which the decision is appealed.

As a consequence, Metsähallitus’ Forestry Division has, in practice, powers similar to a public authority, but without the corresponding responsibilities. Legally, this is correct because a state enterprise is not subjected to administrative law. But in practice it results in a lack of accountability and lack of access to justice regarding state forest planning.

An interesting contrast is with the management plans for National Parks or Wilderness Areas on state land, which are appealable, because they are ratified by the Ministry of the Environment, and hence become final administrative actions (this is issue will be discussed in more detail in the context of the Inari case study in Chapter 9..).

The lack of regulation regarding public participation in the Act on Metsähallitus is particularly striking because the Act has been reformed very recently. The opening of the Act for revision was not used as an opportunity to bring it up to date with the constitutional environmental right and with the general trend to increase procedural rights in environmental law. It is noteworthy that the Government proposal for reforming the Act on Metsähallitus did not in any way address the impacts of the reform on fulfilling the constitutional environmental rights of the citizens in state forestry planning (HE 5/00 vp). According to a representative of MAF who drafted the Government Bill, this was a conscious choice. When asked whether Metsähallitus participatory planning should be regulated in the same way as zoning or for instance Wilderness Area management, he replied:

“Participatory planning is one thing and zoning procedure is another. As processes they are very different. This participatory planning, it is a co-operation procedure where…one looks for joint, joint interests, listens to everyone, but it is in the end the landowner who decides what is done[…] Whereas zoning is, it includes decisions by public authorities[…] And it includes permanent land use decisions…[…] In Wilderness Areas we are not dealing directly with economic activities, so it easier there […] to make administrative decisions. If the question is about economic activities then bringing in a apparatus like zoning easily makes it so difficult that the economy may get stuck”(MAF8, emphasis added)

In other words, the MAF representative feels that administrative processes that may cause hindrances to the economy should not be created when it comes to forestry on state land. Secondly, he perceives Metsähallitus as a landowner, or as a representative of one, instead of as a party exercising de facto public authority, albeit in the capacity of a state enterprise.

The Forest Act was also amended around the same time as the Act on Metsähallitus was renewed. Instead of strengthening the role of citizens, the amendment (55/00) – proposed by MPs primarily from the conservative Coalition Party and the Central Party (whose primary constituents are farmers and other rural populations) – included a new

section 8 a on “Preventing forest felling”⁷. It aimed at decreasing direct actions by forest activists in logging sites:

“A person who, with the intent of disturbing forest felling carried out in accordance with this Act, is unlawfully present within the immediate surroundings of a felling site when the felling is underway, so that the felling is prevented, shall be sentenced to a fine for preventing forest felling, unless a more severe punishment is provided in other law.” (Emphasis in the original.)

It is unusual to have such provisions elsewhere in the legislation than in the penal code.

The amendment was a clear political statement against civil disobedience specifically in forest activism. However, without provisions improving direct public participation and right of appeal in forestry-related processes, dissatisfied ENGOs did not believe they were given an alternative way to bring a disputed matter to the consideration of an independent party.

In summarising the formal legal framework described so far, forestry legislation was reformed in the 990s to reflect the changes in forest policy whereby ecological sustainability and economic productivity were to form the two, equally important goals for forest management. The EU Habitat Directive and Bird Directive meant changes to the nature conservation legislation where also other reforms were carried out. The legislation regarding the reconciliation of commercial forestry and biodiversity conservation in state-owned forests was reformed in 99, and again in 00. It is ambitious in terms of the general objectives of reconciling ecological, social and economic sustainability. It describes a hierarchy whereby the ecological and social preconditions defined in the Metsähallitus Act define the latitude for the business operations.

However, the legally stipulated structure of Metsähallitus – whereby commercial forests and public property areas are separated into two distinct units, two different balance sheets and their supervision to two different ministries in the Council of State – significantly limits the possibilities of MOE or NHS to set any preconditions for, or even formally participate in, the decision-making over commercial forests. The separation of business and public authority is necessary for the sake of integrity and neutrality of the different tasks, but it also means that the claimed benefits of having the two units in the same organisation become less clear, at least from the perspective of mainstreaming ecological and social prerequisites into the business activities. This is because NHS has not been granted any formal supervisory role in the legislation over the Forestry Division.

Due to the organisational structure, NHS’s role has been reduced to that of a stakeholder that participates in processes led by the Forestry Division, rather than as a decision-making body itself regarding the disputed issues and areas.

Although both the legislator and Metsähallitus put much emphasis on Natural Resource Planning as a tool for reconciling different expectations related to state forests, NRP lacks any legal regulation, both regarding the minimum requirements of the planning process or the plans, and the rights of participants involved. This significantly weakens the legal role of public participation in state forestry planning and puts it in stark contrast to most other environmental legislation in Finland.

Having now outlined the regulatory situation within which the major reconciliation is to take place in state forests, I will now address how Metsähallitus has in practice carried out the reconciliation in the two Natural Resource Planning processes that have taken place in Kainuu in 996 and 00.

74 Metsänhakkuun estäminen, in Finnish