E4204v1 MINISTRY OF LANDS AND NATURAL RESOURCES (MLNR) DRAFT TERMS OF REFERENCE TO ASSESS THE DESIGN OF TREE TENURE & BENEFIT SHARING ARRANGEMENTS IN GHANA The present Terms of Reference is a draft that is being further refined by the Government of Ghana. 1 MINISTRY OF LANDS AND NATURAL RESOURCES (MLNR) ASSESS DESIGN OF TREE TENURE & BENEFIT SHARING ARRANGEMENTS IN GHANA Terms of Reference (TOR) 1. Background 1. Under the Forestry component of the Natural Resources and Environmental Governance Technical Assistance (NREG TA), the Ministry Lands and Natural Resources (MLNR) will engage the services of a firm to help design options for tree tenure regimes with accompanying benefit sharing mechanisms in Ghana, in consultation with a wide range of stakeholders. 2. Benefit sharing refers to a commitment to channel some kind of returns whether monetary or nonmonetary back to the range of designated stakeholders - participants or affected communities. A proportion of revenue earned by the State is returned to local communities through indirect and / or direct benefit sharing arrangements. Direct benefit sharing refers to cash payments to individuals or communities, and indirect benefit sharing includes other non-cash benefits, including infrastructure or community facilities, and grass-roots development activities. Benefit sharing serves to underpin the sort of partnerships needed to genuinely involve people in development decisions that affect them, and is a practical way for sustainable forest management to contribute to sustainable development. 3. The work under this consultancy is expected to contribute significantly to Ghana’s drive at halting deforestation, enhancing its forest estate and promoting good forest governance (including gender informed community participation in forest resources management), and equity in forest management in the framework of its forest sector initiatives. 1.1 Forest management and tree tenure in Ghana 4. State managed forest cover an area of 1.6million ha with less than 2% in excellent condition. The Off-Reserve (OR) areas cover 4.5 million ha and are mostly made up of scattered trees/fragmented forest patches in agricultural fields; secondary forests regenerating from agricultural farming, riparian forest strips, sacred groves, etc1 which lie on land outside state purview, that is, land owned by stools/skins, clans and individuals. The Forestry Commission has commercial rights over the trees in the OR areas but the exercise of such rights - in the form of granting timber rights permits can only be concluded with the permission of the land owner. Further complexity is added in the case of land held customarily (by stools/skins, clans and/or families) as land users and land owners are not necessarily the same people. 2 5. Ghana is currently implementing a number of forest sector initiatives (e.g. Forest Investment Program) and intends to venture into others; all of which depend on sound, fair and equitable land and tree tenure regimes in order to suceed. The various national forestation programs invest huge capital in creating forest estates with government, private sector and community partnerships. The different interventions under this initiative have different tree tenure and therefore different benefit sharing arrangements. The Forest Carbon Partnership Facility (FCPF) and the Forest Investment Program (FIP) of the World Bank has planned to advance funds to Ghana in order to be “REDD-ready�. These preparations include pilot schemes that restore various degraded forest ecosystems. 6. Tree tenure in Ghana is complex and forest policy is weak in addressing the issue. Non conducive tree tenure is largely regarded as a disincentive to sustainable forest management. A majority of farmers still perceive forests as places to increase agricultural productivity to support subsistence living. The most likely reason is lack of incentives, which is largely the result of forest tenure and policy. If sustainable management of private and communal forests is a desired social goal, then incremental changes in tenure features (transferability, comprehensiveness, economic compensation, and duration) would facilitate its achievement. 7. According to a recent study2, economic compensation is the most significant, tenure variable affecting adoption and implementation of sustainable forestry practices. Transferability and comprehensiveness are the next most significant tenure variables. However, comprehensiveness tended to have a larger effect than transferability. Laxity in the enforcement of compensation to farmers when their crops are destroyed during logging operations is having significant negative effects on sustainable forestry practices. Compliance of the law could be improved by making regulations ‘road block’ statutes similar to the Endangered Species Act. Additionally, the regulations may also provide for a framework that allows local communities to re-evaluate periodically, applications of concessionaires operating in their communities. Duration of tenure is not as significant as expected a priori. Also, exclusiveness, and land registration as a proxy for tenure security, are not as significant as expected theoretically. Increased access to land and provision of alternative sources of livelihoods are likely to have positive effects on sustainable practices. 8. Changes in tenure systems are possible because contrary to long-held beliefs regarding rigidity of customary tenure in Africa, recent studies have proved otherwise. Farmers in Ghana can adopt sustainable forestry practices if tenure systems are made more conducive to market forces. For example, improved transfer rights are likely to stimulate investment and transaction in trees and forests. Similarly, rights to forestland could be made as comprehensive as possible, including rights to dispose of economically valuable trees. The study suggests that implementation of such a change could begin with an amendment to Ghana’s Trees and Timber Decree of 1974, which vests all timber species in the government. In this regard, it may be important to treat trees as commodities just as cocoa and coffee, and credit facilities and technical assistance extended to tree farmers. As an incentive, farmers could be 2 Forest tenure systems and sustainable forest management: the case of Ghana - Charles E. Owubah, Dennis C. Le Master, J.M. Bowkerb, John G. Leec. 3 given a percentage of the value of merchantable trees logged from their lands, and the amendment could provide for a periodic review of the formula for paying benefits. 1.2. The NREG TA operation 9. The second phase of the Natural Resources and Environment Governance Program (aims at supporting the national program of governance reform in the forestry and mining sectors as well as environmental management and climate change. The development objective of NREG is to establish and strengthen policies and institutions that promote the maximization of natural resource development benefits whilst adequately managing the undesired social and environmental consequences of such development. 10. The NREG technical assistance (NREG TA) is, designed to help Government formulate policies and develop concrete ways in which policies could be more broadly adopted. The development objective of the TA operation is to increase the knowledge base and to strengthen capacities at Government and local levels to support policy reforms under NREG program. The TA will contribute to further deepen the policy reform program and help translate reforms into activities on the ground in a manner consistent with Sustainable Development principles, Ghanaian legal framework and World Bank operational policies, in particular social and environmental safeguards. It will help the Government identify methods and tools and suitable institutional arrangements to help them better embed the reforms in their development programs to improve sustainability and foster impacts. 11. The aim of the NREG TA in the Forestry Sector is to finance studies and consultations in support of policy reforms and capacity building activities in the forestry sector in various themes, including tree tenure regime. There is a widespread consensus that the existing tree tenure system is among the most important key drivers behind the deforestation rates in Ghana. Though significant consultation has already been conducted on this specific issue over the past few years (including for the preparation on Readiness Preparation Proposal under the Forest Carbon Partnership Facility), there is no consensus on the most appropriate tree tenure arrangements to address the deforestation issues or on the reforms needed. 12. To face that challenge, described above, the NREG TA will assist the Government to (i) further hold consultation on tree tenure arrangements and (ii) design, under a participatory approach, tree tenure pilots to be implemented at local level. The eventual roll out of such pilots may be financed by the Forest Investment Program. The World Bank procedures and policies will apply. It should be noted that a Strategic Environmental and Social Assessment (SESA) is being carried out under the FCPF. The SESA will be the main safeguard instrument for REDD in Ghana and will inform project development under the FIP and associated initiatives. All forest related activities under the FCPF, FIP and NREG TA will be under the leadership of the Ministry of Lands and Natural Resources so as to ensure consistency and coherence. 2. Objective 4 13. The Forest Commission is seeking a Consultancy Firm to (i) develop options for tree tenure and associated mechanisms for benefit sharing and (ii) to design tree tenure pilots.The focus of this work will be on four (4) main types of forest/wildlife management systems as is currently being undertaken by the MLNR/Forestry Commission. These are: (i) Tuangya farms (Improved Modified Tuangya System and Modified Tuangya System), (ii) commercial plantations, (iii) trees on farms (off reserve options), and (iv) wildlife parks (in terms of park revenues). The work will be undertaken in two distinct phases as follows: A. Phase 1: Social and Legal Analysis The following tasks will be undertaken in this phase: (i) A review of community-forest dependence This review will identify the key socio-cultural issues to be considered in the review of the tree tenure regime. The review will rely on the extensive literature on community structure in Ghana, natural resource ownership, use, and management in Ghana, and the tree tenure regimes. To the extent possible the review will summarize the dependency patterns of communities on off-reserve forests (economic and non-economic); the demographic and socio-economic profiles of communities adjacent to, or in, off-reserve forests; and a stakeholder analysis that incorporates users, owners, and state agencies such as the Forestry Commission. The review will also detail the range of relevant benefit sharing arrangements that exist in Ghana and internationally in an effort to inform subsequent recommendations. Specifically, the review will look firstly at the cash benefits that flow through government budgets and cycle back to the sub-national unit in forms of royalties, sub-national grants, or other fiscal transfers. Secondly, the review will examine benefit flows that accrue directly to communities in the form of monetary or non-monetary transfers. (ii) An analysis of the welfare and income impacts of existing tree tenure regimes in Ghana This analysis will detail the existing tree tenure regimes and their impacts on community welfare and incomes. The analysis will incorporate an examination of the benefit sharing arrangements and where necessary relevant analysis of land ownership and use. The analysis will directly inform the recommendations of tree tenure models and the resulting policy recommendations. The consultant will use a variety of methods to ensure that both quantitative and qualitative data on the impacts of the tree tenure regime, and associated benefit sharing arrangements, are obtained. Existing methods for obtaining qualitative data, such as the IIED Poverty-Forests Linkages Toolkit, should be considered. Data collection will take into account within group differences such as gender, age, etc. Where possible, the consultant will rely on existing data to serve as a baseline, however it is expected that a survey instrument will be designed to obtain new data. It is expected that household level and community level data will be collected. 5 The analysis will include: a mapping of channels through which impacts are transmitted, an institutional assessment, and the detailing of impacts at the community level (with attention to within-group vulnerability). (iii) A legal analysis of tree tenure and local forest management arrangements The review will include an examination of the policy and legal framework supporting the tree tenure regime, forest management initiatives by local people and benefit sharing mechanisms (where they exist). The consultant will conduct a comprehensive survey of policies, laws, regulations and institutions relevant to the above issues. This should include constitutional provisions, acts statutes, subsidiary legislation and policy statements related to forest management, protected areas, wildlife, land tenure, land use, agriculture, collection of revenue from stool lands and related topics. The survey should also include relevant case law and selected illustrative examples from customary law, to the extent available. The survey should be carefully focused to hone in on those elements of specific importance to the issue of tree tenure, local forest rights and benefit sharing. Extended recitations of legislative text that is of marginal relevance to the topic at hand should be assiduously avoided. Furthermore, emphasis should be on understanding as much as possible the “law in practice� -- how legal provisions are actually implemented, avoided, misapplied, overlooked, etc. Such an analysis will require reference to existing secondary material on the subject, as well as structured interviews with key informants in relevant government and non-governmental organizations. The consultant should also review available literature regarding examples from elsewhere in the world to help draw comparative lessons that may be relevant to Ghana as it tries to identify an appropriate strategy for dealing with these issues. Finally, it will be important for the legal analysis to be undertaken in close collaboration with the teams responsible for activities (i) and (ii), so that any problems and recommendations for reform emerging from those the analysis undertaken by those teams can be evaluated through a legal lens. Drawing from the above analysis, the consultant should identify legal and institutional constraints, gaps or obstacles to achieving more optimal tree tenure, local forest management and benefit sharing regimes, and provide concrete recommendations for addressing these. Phase I approach Data collection: It is anticipated that these tasks will include desk reviews, field work, and key informant interviews. The research will involve the administration of a questionnaire in relevant local areas to determine the feasibility of the models. In addition to the questionnaire, the implementation of these activities will be highly consultative in nature. 6 Output: The output for Phase I will be a draft report ‘Tree tenure arrangements – tree benefit sharing model(s)’. The report will summarize the findings from activities (i), (ii), and (iii) above. The report will include the following:  Recommendations for the design of pilot activities (tree tenure regimes and associated benefit sharing arrangements) including objectives, approach, institutional arrangements, activities, monitoring and evaluation activities, implementation schedule, actors and respective roles, suggested locations, estimated costs, etc.  Tentative policy recommendations (including the legal framework).  An annex describing in detail the methodology adopted for the analyses. Clearance: Before moving to Phase II the draft report will be reviewed and cleared by the Technical Director Forestry. Phase II: Design of pilots (i) Consultation and validation A series of consultations will occur to discuss and validate findings of outputs from Phase I, in particular the recommendations for the pilot activities (tree tenure regimes and associated benefit sharing arrangements) and the tentative policy recommendations. The consultations will include zonal consultations, expert consultations and an overall consultation as follows: Zonal consultations: the Northern zone (Northern, Upper West and Upper East regions), High Forest Zone (Ashanti, Brong Ahafo, Eastern, Western regions), Southern zone (Central, Greater Accra and Volta regions). Expert consultations: civil society organizations (including through the VPA Contact Group3, Civil Society Organization platform on Climate Change, etc.), the Forest Research Institute of Ghana (FoRIG), Forestry Commission and Ministry of Lands and Natural Resources, Ghana Institute of Foresters, Traditional Authorities, communities (including through Forest Forums, Community Forest Committees, Community Resource Management Areas, and other relevant community bodies etc.), and industry associations such as the Domestic Lumber Trade Association. Groups to be included will be further informed by the stakeholder analysis. Overall consultative workshop: bringing all stakeholder representatives together to pre-validate the proposal. Phase II approach: 3 Multi stakeholder implementation committee 7 Consultations: The consultations will be inclusive and informed by the stakeholder analysis undertaken in Phase I. In identifying participants for the consultations, attention will be paid to gender, vulnerability (such as communities that use land and are considered as strangers), representation of various interests groups, etc. The consultations will be conducted in a culturally-appropriate fashion and will be designed and implemented with a view to ensuring maximum participation from the target participants. Therefore, relevant information will be provided to participants prior to the consultation, to ensure that they are adequately informed and prepared for discussion. Consultation minutes and reports will be prepared and disclosed by the Ministry of Lands and Natural Resources. Output: The output for Phase II will be a final and validated report ‘Tree tenure arrangements – tree benefit sharing model(s)’. The report will include the following:  Recommendations for the design of pilot activities (tree tenure regimes and associated benefit sharing arrangements) including objectives, approach, institutional arrangements, activities, monitoring and evaluation activities, implementation schedule, actors and respective roles, suggested locations, estimated costs, etc. as validated through consultations.  Policy recommendations (including the legal framework) as validated through consultations.  An annex describing in detail the methodology adopted for the analyses.  An annex detailing the consultations undertaken as part of the development of, and finalization of, the report. (This may include minutes of the workshops, details on interests and positions of stakeholders, the criteria used for determining there was broad support for the models and the policy, and a list of individuals and groups consulted with.) 3. Overall Approach and Timeline 14. The tasks will be undertaken: (i) in an inclusive manner—taking into account the input of a broad range of stakeholders including national and local level actors and (ii) with the aim of building broad support across a range of stakeholders on the proposed arrangements. 15. In addition, the tasks will pay attention to gender and vulnerability (in particular, vulnerability of communities dependent on natural resources, vulnerability to shocks from climate change, and susceptibility to exclusion from discussions on natural resources use). The tasks will also take on a conflict sensitivity lens, recognizing the role that natural resources can play in igniting conflict within and among communities. 16. The firm will build on studies already undertaken with a view to avoiding duplication and adding value to an already existing knowledge base. Of particular note is the work undertaken in the law and policy arena including the Constitutional Review, the Land Administration Project (LAP), etc. Work being undertaken through the Voluntary Partnership Agreement (VPA), Forest Investment Program (FIP), and Forest Carbon Partnership Facility (FCPF) should also be considered. 8 16. Immediately following contracting, an inception report will be prepared which will include the following:  A revised methodology (refining the methodology submitted during the design phase).  An outline for the reports required under the consultancy.  An approach for the consultation process (phase 3)  A detailed work program including a timeline for all activities and submission of outputs. The inception report will be submitted to the Technical Director Forestry for review and approval. 4. Reporting 17. The selected firm will work closely with the Technical Director Forestry assisted by the Forestry Commission. The Technical Director Forestry and his team will conduct an evaluation at the end of each phase and provide clearance for carrying out the next phase. 18. All outputs will be delivered to the Technical Director Forestry in the following formats: five hard copies and five soft copies (CD disks). 5. Composition of the team The team shall have at least the following specialists:  A Lead consultant specialized in natural resources governance, with at least 10 years of experience and a good knowledge of the situation in Ghana. S/He will have proven experience delivering quality outputs on time and will have proven experience leading multi-disciplinary teams. S/He will be responsible for leading the team, coordinating the preparation of outputs, and engaging directly with the client.  A social scientist (anthropologist, sociologist, rural economist) with minimum of 7 years of experience. S/He will have knowledge of the forest sector and the land tenure system in Ghana. In addition, they will have knowledge of benefit sharing arrangements and natural resource management/extractive industries, in West Africa, preferably in Ghana. S/He will have experience with participatory methodologies and proven experience collecting and analyzing both quantitative and qualitative data. Experience working on the legal dimensions of natural resource tenure will be an advantage.  A legal expert, with at least 10 years of experience. Specific expertise in tree and/or land tenure regimes in West Africa is required as is knowledge of national laws and implications for tree tenure and benefit sharing in Ghana.  Communications specialist with minimum of 5 years of experience expert in developing materials that can be used for explaining the purpose and scope of this activity in general terms, and specifically at consultation events. 9  Three research officers with 2 to 5 years of experience. The research officers will provide support in a number of areas, including, but not limited to, preparing survey instruments, documenting consultations, organizing activities, and drafting reports. Experience working on similar assignments will be required, as will excellent communication and writing skills. Ability to multi-task will also be required. Knowledge of relevant local languages is preferred. 6. Duration The work is envisioned for a total duration of 12 (fulltime) months. The consultant will submit a timeline as part of a detailed work plan. 10