Wednesday, March 21, 2012

Forest Survey Commissions in Turkey are misdirected to classify all forest as State Forest.

The presumption by the Turkish Government that ALL FOREST is STATE FOREST is best illustrated in a Directive published in Official Gazette no 25523 on 15/7/2004 by the Turkish Ministry of Forests and the Environment entitled “Directive concerning the implementation of the Forest Cadastre Survey in accordance with Forest Law No 6831". (Similar directives were issued in earlier years.)

In Clause 26 entitled “Areas to be delimited as State Owned Forests.” the Forestry Cadastre Commissions are directed to classify as State Owned Forests all land that fits the following 10 criterion:

Criterion a:“Land classified as forest according to Clause 1 of Law No 6831 and known since times past to be State Owned Forest and Forests mentioned in Clause 17 of the current Forest Law No 6831 (except for cultural heritage sites) which do not have naturally occurring trees or shrubs but have grassy vegetation and occasional trees.”

Clause 1 of Forst Law No 6831, (since it came into force in 1956), has always provided a Legal Definition of “FORESTS”. It does not define the boundaries of “STATE FORESTS.” It describes how Forest cover should be identified and delimited. Yet, in line with this, and previous directives, the Forest Cadastre Commissions regularly classify Private Registered Land as State Forest because it fits the Legal definition of Forest under Clause 1 of Law No 6831. The Turkish Government has effectively instructed the Forest Survey Commissions to treat the word “Forest” synonymously with the word “State Forest” in applying the text of the law. This inevitably leads to the classification of all Forest Cover as State Forest.

A more detailed critique of Law 6831 will be published later.

Criterion b: “Forests Nationalized by (the now abolished) Law 3116, temporary Clause 1”

Forest Law 3116 was the predecessor of Forest Law 6831 (above) and also provided a Legal Definition of “FORESTS”. Temporary Clause 1 of this law states that “Forests belonging to villagers ajacent to government forests (except for those under 50 hectars) and forests separate from government forests but over 1000 hectars in size, will be expropriated. Forests belonging to villages, munucipalities and trusts are exempt. All expropriatons will be completed in two years.” The expropriation of such forests by the State requires the the payment of compensation according to the Turkish Constitution and the Turkish expropriation laws.

Criterion c: “Forests Nationalized or forests elligible to be Nationalized by law 4785” .
(“A forest is considered to be a forest elligible to be Nationalized if it fulfills the following conditions:
• If it existed on 13.7.1945 the date Forest Law 4785 came into force;
• If it is not covered by the exceptions listed in clause 2 of Law 4785;
• If its acquisition is for a good reason, its ownership was achieved according to the laws of the time, and if the Title Deeds show the correct information about the land such as its situation, the land area, the boundaries, and the character of the land.”

As can be seen from Criterion c above, Law 4785 is still being used today to Nationalize newly surveyed land without compensation. It suffices that the land should have been elligible for Nationalization in 1945.

In a footnote to Law 4785 the Turkish Ministry of Justice states that:

“The present Forest Law 6831 Clause 117 abolishes Forest Law no 3116 of 8.7.1937 and its amendment Law 5653 of 31.8.1956. However even though this Law (4785) and Law no 5658 of 24.3.1950 are about Forest Law 3116 they have not been abolished and therefore they are included in our collection”.

Law 4785, (together with law 6831), has been responsible for the lions’ share of Title Deed annulments in Forest Areas. The use of Law 4785 to deprive people of their property today because it was “elligible” for Nationalization in 1945 and to deprive them of compensation because they did not claim compensation within one year of 1945, (although at the time they had no way of knowing their land was State Forest), is unacceptable according to the European Convertion of Human Rights. In addition it can be argued that Law 4785 is itself unlawful.

For a more detailed critique of Law 4785 see "The misuse of Law 4785" and <"The unforseeability of Law 4785."

Criterion d: “Areas reclassified as forest under Clause 3 of Forest Law 6831”

Private land outside Forest Areas can be delimited as State Owned Forest under Clause 3 (by Cabinet decision if considered to be in the National Interest) without expropriation or compensation. This too is an infringement of property rights. As was explained earlier, the inclusion of privately owned land (as per clause 3) within the “Forest Regime” should result in it becoming Private Forest not State Forest

Criterion e: “Areas being or going to be aforested or according to Clause 13 b of Forest Law 6831.”

Private land belonging to relocated villages adjacent to State Forests is made State Forest under this clause without expropriation or compensation. As was explained earlier, Clause 13 b makes no mention of expropriation or compensation.

Criterion f: “Areas expropriated under Clause 24 of Forest Law 6831 or areas expropriated otherwise for the planting of forests.”

Clause 24 states “Forests owned by parties outside the Government which for reasons of completeness need to be added onto forests designated for whatever reason as Protected Forests can be designated Protected Forests by the Council of Ministers. If the owners do not agree these areas will be expropriated according to the general laws.” Expropriation according to the general laws means that compensation should be paid.

Criterion g: “Areas which a court has decided are State Forests.”

In areas where a Forest Survey has not yet been carried out land disputes with the Forestry authorities are settled in Court. The decision of the Court is always respected during the eventual Forest Cadastre Survey. Courts frequently rule that private registered land is State forest, cancelling its title deeds without compensation. In fact Courts usually make their decisions on the principle that all forests belong to the State.

Criterion h: “Any forests which for any reason were left outside forest boundaries”.

Again this clause assumes that Clause 1 of Law No 6831 provides a definition of State Forest – which it does not. Such areas often include Private land.

Criterion i: “Areas that have been or are planned to be aforested on land set aside for aforestation by the Ministry of Finance.”
Such areas often include Private land.

Criterion j: “Heather and Maquis land containing soil that is suitable for forest.”

Clause 1J of Law No 6831 specifically excludes from the definition of Forest “Land covered by maquis and heather and land that does not have conservation characteristics”. Moreover although this does allow Maquis on land with “conservation characteristics” to be classified as forest, it does not provide a definition of State Forest. Maquis on private land with “conservation characteristics” that is classified as forest should result in the creation of a Private Forest. Yet Criterion j directs that “Heather and Maquis land containing soil that is suitable for forest” is delimited as State Forest. Under this directive Maquis land can be made State Forest at the discretion of the Forest Cadastre Commissions if the soil is suitable for growing Forest. This ensures that any private land in Maquis areas can also be arbitrarily made State Forest without expropriation procedures, or compensation being given.

Most of the 10 criteria in the above Directive of 15/7/2004 used to identify State forests make no provisions for dealing with Pivate Property in Forest Areas. State Forests are created, Title Deeds are cancelled and no compensation is paid.

Clause 32 of the same directive runs as follows :
“Clause 32 - The Forest Commissions must officially submit to their Operations Management, maps, lists, and cadastre reports and announcements relating to the Registered Land surveyed as Forest. The Operations Management will immediately initiate Court Proceedings to cancel the Registration of the legally invalid title deeds of the Plots of land situated inside the Forest Boundaries.
Moreover, a list of Registered land with Title Deeds which has been surveyed as Forest but then taken out of Forest status and allocated to the Treasury by Clause 2B, will be sent to the local offices of the Ministry of Finance in order for court procedings to be initiated with the object of canceling the Title Deed in question”.

There is no justification for Clause 32 of this Directive in Forest Law 6831. Clause 11 of Law 6831 states that Government forests whose survey reports have come into force will be registered in the name of the Treasury. However nowhere in Law 6831 does it say that private land that has been surveyed as Forest should be registered in the name of the Treasury.

Clause 32 of this Directive also states that Land removed from Forest Boundaries by Clause 2B above shall be registered as they are in the name of the Treasury. This is controversial since much land removed from Forest boundaries by Clause 2B was private land before being illegally made State Forest without compensation in the first place.

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