Tala Tina

Import of timber from the DRC: high risk business for Europe A case study in the port of Antwerp: the blocking, investigation and subsequent release of illegal Afrormosia wood for Belgian timber traders June 13, 2013 (update on April 2013 version) In recent years widespread illegal logging in the Democratic Republic of Congo (DRC) has been repeatedly documented by Congolese and international NGOs. In March 2013 Greenpeace revealed in the report “Cut it out! How illegal logging in the DRC threatens livelihoods, forests and trade” that illegal logging is rife in the DRC.i Reports published last January by the EU-financed Independent Observer of Forest Law Enforcement and Governance (IO-FLEG) in DRC, Resource Extraction Monitoring (REM), showed that virtually all the large industrial logging companies are involved in illegal logging.ii The Congolese forestry sector still finds itself in a state of organized chaos, characterised by corruption and impunity. A World Bank-funded legal review of logging titles, concluded in 2009, simply reinforced the status quo ante: of the active titles found to be illegal, not a single one appears to have been cancelled. In this country of 75 million people, the forestry sector contributes only a few million dollars of tax revenue a year. In flagrant violation of the law, the Environment Ministry has failed to publish most logging concession contracts.iii No annual felling permits are publicly available. A 2002 moratorium on the allocation of new industrial permits is today circumvented by companies using small-scale “artisanal” permits to log on an industrial scale.iv On March 3, 2013 the European Union Timber Regulation (EUTR) came into effect. Henceforth, it is forbidden to put illegal wood on the EU market. Timber importers are required to exercise ‘due diligence’. They have to compile information about the origin of the timber they import, and assess and mitigate the risk of illegality.v Last January and March, Greenpeace warned that under current circumstances it would be extremely difficult, if not impossible, for traders based in the EU and dealing in timber from the DRC to comply with the legislation.vi Import of illegal Afrormosia On March 24, 2013 the MV Moniuszko arrived at the port of Antwerp with cargo that included two shipments of approximately 40 m3 of sawn Afrormosia from the Congolese logging company Tala Tina Sprl, for the Belgium importers Vandecasteele and Denderwood. The estimated market value of the shipments is between 60.000 and 70.000 €. Alerted by Greenpeace that the wood appeared highly suspicious, Belgian CITES authorities blocked it on March 25. Despite successive, contradictory declarations about the origin of the wood by Tala Tina and the Congolese CITES authorities and despite lack of proof of legality the shipments were released on May 13.vii

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Congolese authorities made three different, mutually exclusive attempts to account for the origin of these shipments. Attempt 1 - The Congolese Environment Ministry’s March 5, 2013 origin certificates for these shipments indicate that the wood “comes from TALA TINA Sprl’s Oriental Province Garantie d’Approvisionnement.”viii It requires no more than a rapid glance at internet to see that this information is false. First, Tala Tina doesn’t possess a Garantie d’Approvisionnement – one of three kinds of forest titles phased out by the 2002 Forestry Code. Second, its sole forestry title – a Lettre d’Intention – is located not in Oriental Province but in Bandundu Province.ix In a March 29, 2013 letter, Greenpeace asked the Congolese CITES authorities for clarifications about the origin and legality of the wood. This letter was never answered. Application of ‘due diligence’ would have required blocking the shipments on the basis of this erroneous information alone. In an April 9, 2013 email to Greenpeace, the CEO of Tala Tina claims that the wood blocked at Antwerp does not come from his company’s own forestry title, but from one or more third parties, whom he conspicuously fails to name: “Regarding the Aformosia [sic], as it’s not very common in our concession, in 2012 in order to satisfy our clientele we bought blocks of Aformosia from artisanal loggers among the local population with a duly issued buying permit […].”x Greenpeace asked the company to provide the Congolese Ministry’s origin certificates, but did never receive them. Far from constituting proof of legality, the documentation Tala Tina has provided fails even to specify the identity of the producer Were Tala Tina obliged however to prove the legality of the wood it markets, it would be hard pressed to do so. Greenpeace and other NGOs have shown that literally no artisanal wood from DRC satisfies all legality conditions – and most satisfy none. Tala Tina would have to provide, among other documentation, proof that its source is a licensed artisanal logger, holding an artisanal logging permit and a sales permit, and that it has paid taxes for which it has been notified. It would also need to adduce a contract with local people approved by the Ministry. Tala Tina would have to prove for its part that it paid the 3.000 $ fee required to obtain a buying permit, and provide invoices proving that the wood at Antwerp was in fact purchased from the artisanal loggers it has thus far failed to specify.xi Attempt 2 - On April 17, the Congolese CITES authorities told Belgian CITES authorities that the wood had been bought by Tala Tina from a third party holding an artisanal permit in Equateur Province. The permit it presented is illegal, as Congolese law requires artisanal permits to be signed by the Governor of the Province in which they’re allocated, not by the central Ministry.xii Moreover, the permit in question expired on 31 December 2008. It is highly improbable that Afrormosia wood harvested in 2008 would be sold and shipped only in 2013. Attempt 3 - On May 13, the Belgian CITES authorities claimed that “the necessary evidence had been delivered and all the available information allows to conclude that the wood has been cut legally” and released the wood.xiii According to so-called evidence the shipments now came from a third party in Orientale Province. The Congolese CITES authorities failed, however, to present either the third party’s cutting permit or its license to log (agrément 2

d’exploitant) – the absolute minimum for any “due diligence” exercise. Instead of a cutting permit, Belgian authorities accepted a document signed by local civil servant, with not the slightest resemblance to the cutting permit models fixed by the law.xiv However, they could hardly be unfamiliar with what DRC artisanal cutting permits are supposed to look like – a half-page image of one appeared in Global Witness’ May 2013 report “Logging in the Shadows”.xv It is difficult to imagine how Belgium could allow entrance to a shipment presenting so many irregularities. Even the DRC Environment Minister, Bavon N’sa Mputu, expressed concern about the Tala Tina Afrormosia. On April 21, he ordered a criminal investigation into the case, and announced to take rigorous measures upon its conclusion.xvi Belgian newspaper Le Soir quoted an anonymous source saying that the move was motivated primarily by political reasons.xvii Considering Belgium’s particular relationship with its ex-colony, the government is extremely careful not to be seen as patronizing its Congolese counterpart. Belgian authorities find it hard to challenge official declarations from DRC authorities about the legality of the wood, even though it was blatantly clear that the information provided was insufficient to establish legality. CITES enforcement far too weak Afrormosia (pericopsis elata) is a valuable species of African wood that is frequently exported to Europe. Afrormosia grows in a number of Central-African countries, although the majority of it is found in the DRC. The species is listed in Appendix II of the Convention on International Trade in Endangered Species (CITES) and it is therefore only allowed to be traded internationally with valid CITES export and import permits.xviii The two Antwerp shipments were covered by two CITES export permits dated March 27, 2013. Each clearly indicates that it cancels and replaces a CITES export permit issued on February 21, 2013. The replacement permits were issued one day before the Congolese Ministry assured Belgian CITES authorities by email that Tala Tina is “in conformity with CITES.” The export permit is issued by the authorities of the exporting country and should prove that the laws of that country for the protection of fauna and flora have been abided to.xix In reality, this is not always the case. The fact that the Congolese authorities gave Tala Tina's Afrormosia shipments a CITES certificate, despite its questionable legality and origin, suggests that the monitoring of how the CITES laws are being implemented leaves much to be desired. But also the importing countries should shoulder some of the blame. Importing countries often only check if the required documents have been supplied. However, the European CITES regulation requires the competent authorities to take the appropriate steps to ensure compliance or to instigate legal action, if they have reason to believe that the provisions of the regulation are being infringed.xx For a country such as the DRC, where corruption is rampant and forest law enforcement very weak, follow up questions are essential to verify legality. As long as there are reasons to believe an export permit is not valid, the import permit should be denied.

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Successive, contradictory declarations about the origin of the wood, failure to present a valid cutting permit and an ongoing criminal investigation by the Congolese Justice department are largely enough to cast serious doubts about the validity of the CITES export permit. Thus Belgian authorities should not have delivered an import permit and released the shipments. On June 7th, 2013, one month after the release of the timber by the Belgian authorities, the head of the CITES management authority of the DRC came to Brussels to discuss the case with Belgian authorities, the Belgian Timber Importers Federation and Greenpeace Belgium. Even at that occasion the head of the Congolese CITES authority could not demonstrate the legality of the shipment. The validity of CITES certificates is an essential condition for compliance with EUTR The EUTR provides that timber of the species listed in the CITES Regulation, and which complies with that Regulation and its implementing provisions, shall be considered to have been legally harvested.xxi In essence, the relevant provision establishes the principle whereby compliance with the CITES regulation is also recognised as compliance with the EUTR. For this principle to apply, operators under the EUTR will have to ensure, when they deal with CITES timber, that the timber in question is covered by a CITES certificate and, most importantly, that this certificate is valid. Therefore, the fact that, in accordance with the Commission Guidance Document, operators who place CITES-timber on the market do not need to conduct ‘due diligence’ on that timber following the criteria set out in the EUTR, is without prejudice to the obligation to take all the necessary steps to ascertain that the CITES-certificates are valid and that therefore the timber complies with the CITES regulation.xxii Failure to carry out the appropriate checks on the validity of the CITES certificates exposes operators to the consequences deriving from violations of the EUTR prohibition to place illegal timber on the internal market. As explained above, there is no reason to believe that CITES permits from the DRC indicate even threshold legality. On the contrary, permits appear to be routinely issued on demand. In similar situations, operators should abstain from placing timber, covered by CITES certificates whose validity is dubious, on the EU market. Likewise the EU CITES authorities have the duty to prevent the placing on the market of the timber and to enforce the CITES regulation against attempts to import timber illegally. This is required by both the CITES regulation and the EUTR. The EUTR does not admit CITES ‘green lane’ being turned into a laundering mechanism for illegal timber. Indeed, it recognizes CITES certificates only to the extent that they can offer certainty on the compliance of the timber with the applicable international rules.

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Therefore, a radical improvement of forest law enforcement in general and CITES law enforcement in Afrormosia producing countries, as well as in the EU, is indispensable. Greenpeace files a legal complaint On June 13, Greenpeace filed a legal complaint at the Office of the Public Prosecutor of Antwerp. Even though Belgian CITES authorities have ultimately delivered an import permit, there are clear indications that the timber has been logged illegally. Greenpeace asked the Public Prosecutor to investigate the allegations of placing illegal timber on the market and money laundering, to identify the responsible persons and to sue them. Greenpeace also warned Vandecasteele and Denderwood and potential Dutch customers not to market this timber, as doubts continue about the legality of the shipments. We urge the wood importers to apply the “due diligence system” to CITES wood in compliance with the EUTR. We also strongly advise that they do not settle for CITES certificates from high-risk countries such as the DRC, but actively ascertain their validity. Tip of the iceberg Greenpeace is sadly convinced that this case is but the tip of the iceberg. The authorities of EU member states ask far too few questions about the legality of a timber cargo, as long as it’s accompanied by papers that look valid. Between 2008 and 2012, the Belgian authorities haven’t established even one case of illegal import of CITES timber.xxiii How many import licenses for Afrormosia from the DRC have been granted by European countries in the past few years without the authorities concerned making a real effort to ascertain their legality? The Belgian authorities have stated this problem needs to be resolved at international level and have presented the case at EU coordination meetings. But in absence of effective action on member state level, illegal wood will continue to be offloaded and placed on the market through Antwerp and other EU ports violating both CITES and the EUTR. i

Greenpeace Africa. Cut it out! How illegal logging in DRC threatens livelihoods, forests and trade. March 2013. http://www.greenpeace.org/africa/en/News/news/Cut-it-out-How-illegal-logging-in-DRC-threatenslivelihoods-forests-and-trade/ ii

Resource Extraction Monitoring. Rapports de mission de terrain. http://www.observationrdc.info/Rapports.html#7 iii

Décret N° 011/26 du 20 mai 2011 portant obligation de publier tout contrat ayant pour objet les ressources naturelles http://www.leganet.cd/Legislation/Droit%20economique/Code%20Forestier/D.011.26.20.05.2011.htm. On February 9, 2013, only 23 concession contracts have been published. http://mecnt.cd/index.php?option=com_content&view=article&id=271:un-nouveau-cap-franchi-danslamelioration-de-la-gouvernance-forestiere-en-rdc-avec-la-signature-des-premiers-contrats-de-concessionforestiere&catid=30:foret&Itemid=300057

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iv

Greenpeace Africa. ‘Artisanal logging’ = industrial logging in disguise. Bypassing the moratorium on the allocation of new industrial logging concessions in the DRC. May 2012. http://www.greenpeace.org/africa/en/Press-Centre-Hub/Publications/Bypassing-the-moratorium-on-theallocation-of-new-industrial-logging-concessions-in-the-DRC/ v

Regulation (EU) No 995/2010 of the European Parliament and of the Council of 20 October 2010 laying down the obligations of operators who place timber and timber products on the market. http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32010R0995:EN:NOT vi

Greenpeace Africa. “The huge scale of DRC illegal logging laid bare”. January 31, 2012. http://www.greenpeace.org/africa/en/News/Blog/the-huge-scale-of-illegal-logging-in-drc-laid/blog/43789/ and Greenpeace International. 'Organised chaos' in DRC logging sector threatens to cut off access to European market. March 4, 2013. http://www.greenpeace.org/international/en/press/releases/Organised-chaos-in-DRCongo-logging-sector-threatens-to-cut-off-access-to-European-market/ vii

Service Public Fédéral Santé publique, Sécurité de la Chaine alimentaire et Environnement, “Le Service CITES libère le bois d’Afrormosia”, May 13, 2013. http://www.health.belgium.be/eportal/Environment/19085539#.UZ992deLU1I viii

Certificat d'origine N°070/ECN/DGF/2013. March 05, 2013 and Certificat d'origine N°071/ECN/DGF/2013. March 05, 2013. ix

It should be noted that this forestry title is far from being legally uncontroversial. In 2008 the company admitted that it had obtained it in violation of both the 2002 Forestry Code and the 2002 moratorium on new title awards. In November 2008 the Interministerial Commission overseeing the “legal review” of logging titles recommended its cancellation. The title was duly cancelled on January 19, 2009. However, on August 26, 2009 the Environment Minister reversed this cancellation (as well as the cancellation of a dozen other illegal titles), thereby authorizing its eventual conversion into a 25-year concession. No such concession contract has ever been published on the Ministry website. If one exists, its non-publication would constitute a violation of the May 20, 2011 decree N° 011/26 requiring all resource extraction contracts and their annexes to be published within 60 days of their coming into effect. x

Email from Tala Tina to Greenpeace. April 9, 2013. (Greenpeace translation)

xi

Art. 8 & Art. 24-26 Arrêté ministériel N°035/CAB/MIN/ECN-EF/2006 du 05 Octobre 2006 relatif à l'exploitation forestière. http://www.leganet.cd/Legislation/Droit%20economique/Code%20Forestier/AM.035.05.10.06.pdf and Art. 11 Arrêté ministériel n° 0011/CAB/MIN/ECN-EF/2007 du 12/04/2007 portant réglementation de l'autorisation de coupe industrielle de bois d'Oeuvre et des autorisations d'achat, vente et exportation de bois d'Oeuvre. http://www.leganet.cd/Legislation/Droit%20economique/Code%20Forestier/AM.001.12.04.2007.htm xii

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Art. 8 Arrêté ministériel N°035/CAB/MIN/ECN-EF/2006.

Service Public Fédéral Santé publique, Sécurité de la Chaine alimentaire et Environnement, “Le Service CITES libère le bois d’Afrormosia”, May 13, 2013. http://www.health.belgium.be/eportal/Environment/19085539#.UZ992deLU1I

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xiv

Arrêté ministériel n° 105/CAB/MIN/ECN-T/15/JEB/009 du 17 juin 2009 complétant l'Arrêté n°035/CAB/MIN/ECN-EF/2006 du 05 octobre 2006 relatif a l'exploitation forestière. http://www.leganet.cd/Legislation/Droit%20economique/Code%20Forestier/AM.105.17.06.2009.htm. The document which has been provided can be consulted for comparison here : http://www.greenpeace.org/international/Global/international/briefings/forests/2013/TalatinaPermit.pdf xv

Global Witness. Logging in the shadows. How vested interests abuse shadow permits to evade forest sector reforms. An analysis of recent trends in Cameroon, Ghana, the Democratic Republic of Congo and Liberia. April 2013. http://www.globalwitness.org/sites/default/files/library/Shadow%20Permit%20Report%202013%20Final_Web _0.pdf xvi

Radio Okapi. “La RDC annonce une enquête judiciaire sur l’affaire du bois saisi en Belgique”. April 22, 2013. http://radiookapi.net/environnement/2013/04/22/rdc-le-ministre-de-lenvironnement-annonce-une-enquetejudiciaire-sur-laffaire-du-bois-saisi-en-belgique/ xvii

“Outre la pression des importateurs belges personne ne veut provoquer de crise avec Kinshasa. « On est un peu coincé, reconnaît un proche du dossier. Remettre en cause la signature d’un ministre, c’est diplomatiquement très délicat. » On ne demande donc qu’à se laisser convaincre par le Congo chez qui on a renvoyé la balle.” Le Soir. “Bois tropical maudit pour la Belgique”. April 27, 2013. xviii

xix

CITES. Appendix II. http://www.cites.org/eng/app/appendices.php

Art. IV CITES. http://www.cites.org/eng/disc/text.php#IV

xx

Art. 14 Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna and flora by regulating trade therein. http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31997R0338:EN:NOT xxi

“Timber of species listed in Annex A, B or C to Regulation (EC) No 338/97 and which complies with that Regulation and its implementing provisions shall be considered to have been legally harvested for the purposes of this Regulation.” Art. 3 Regulation (EU) No 995/2010. xxii

Issues relating to the EU Timber Regulation legal framework for which guidance should be developed. http://ec.europa.eu/environment/forests/pdf/Issue%20list%20for%20the%20EUTR%20Guidelines.pdf xxiii

La Chambre, Question et réponse écrite n° : 0887 - Législature : 53. http://www.lachambre.be/kvvcr/showpage.cfm?section=qrva&language=fr&cfm=qrvaXml.cfm?legislat=53&do ssierID=53-B107-666-0887-2012201311781.xml

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