¹ Timber Resources Management Act, Act 547, 1997. For studies on the regulation of timber in Ghana see England, P., “Tree planting, sustainable development, and the roles of law in Bongo, Northeastern Ghana”, (1995) 39 J.A.L. 138;CrossRefGoogle ScholarAgbosu, L. K., “The origins of forest law and policy in Ghana during the colonial period”, (1983) 27 J.A.L. 169.CrossRefGoogle Scholar

² Currently, there are three categories of production in the Ghana timber industry, First there is primary production which consists of logging with 250 firms currently engaged in this. Then there is secondary production. This is the core of the timber industry and it mainly consists of saw milling, plymilling and veneer milling involving a total of 134 firms or units. The final category is tertiary production consisting of furniture parts, mouldings, flooring, dowels, doors and windows, and profile boards. There are about 66 firms at this level. However, many timber firms have achieved full vertical integration, while others operating at the secondary production level have established footholds in the tertiary sector. But largely, the individual firms have integrated horizontally, especially at the secondary production level. See Mensah Banahene, F. A.. Ghana's Timber Industry: Perspectives the Processing Sector, Institute of Economic Affairs Occasional Paper 16, Accra: Ghana, 1997, 5 (Hereinafter, Banahene, Ghana's Timber Industry)Google Scholar

³ Concessions Ordinance, cap. 136, 1939.

⁴ Forest Ordinance, cap. 157, 1927.

⁵ Concessions Act, Act 124, 1962.

⁶ The high forest zone, which is virtually natural forest, covers an area of 8.2 million ha., approximately one-third of the total area of Ghana. Consisting of wet evergreen rain forest and moist semi-deciduous forest, the high forest occurs in the southwest portion of Ghana, extending northwards to reach the upland evergreen areas of the Ashanti Region and the western parts of the Brong-Ahafo region. Studies available indicate that 1,634,100 ha. of the high forest are under reserves. Of this 352,000 ha. are under permanent protection while 762,400 ha. are designated timber production areas. About 400,000 ha. are in off-reserves. See Banahene, Ghana's Timber Industry, op. cit., 9.

⁷ See Friends of the Earth, Plunder in Ghana's Rainforest for Illegal Profit: An Exposé of Corruption, Fraud and Other Malpractices in the International Timber Trade, Vol. 1, 1992, Friends of the Earth: London, 4. (Hereinafter, Friends of the Earth, Plunder in Ghana's Rainforest for Illegal Profit).Google Scholar

⁸ Forestry Commission, Public Education on Timber Resources Management Act, 1 (no date). (Copy on file with the author)

⁹ Ibid.

¹⁰ Timber Resources Management Bill, 1997, Second Reading, 4. (Copy on file with the author)

¹¹ Ibid.

¹² Ibid.

¹³ See Forestry Commission, Public Education on Timber Resources Management Act, op. cit., 1.

¹⁴ Ibid.

¹⁵ Ibid.

¹⁶ The concept of sustainable development only became important in the 1980s largely as a consequence of a report by the World Commission on Environment and Development, (the so-called Brundtland Report). See World Commission on Environment and Development, Our Common Future, New York, 1987.Google Scholar Before sustainable development emerged as a paradigm of environmental thought, environmental policy was largely premised on the view, inter alia, that there was an infinite supply of natural resources. See Porter, G. and Welsh Brown, J., Global Environmental Politics, Boulder, CO, 1996, 22–28.Google Scholar

¹⁷ On structural adjustment in Ghana see the following: Hutchful, E., “From ‘Revolution’ to Monetarism: The Economics and Politics of the Adjustment Programme in Ghana”, 92, in Structural Adjustment in Africa, Campbell, B. K. and Loxley, J. (eds.), Basingstoke, 1989; Hutchful, “Ghana”, 141, inGoogle ScholarLimits of Structural Adjustment in Africa: The Effects of Economic Liberalization, 1986–94, Engberg-Pederson, P. et al. (eds.), 1996, Denmark: Centre for Development Research; andGoogle ScholarFrimpong, K., “Structural adjustment and the myth of its success in Ghana”, 92, in Structural Adjustment, Reconstruction and Development in Africa, Hope, K. R. Sr. (ed.), Aldershot, 1997.Google Scholar

¹⁸ The SAP set out to revive the forest sector by renewing access to critical inputs via two International Development Agency Export Rehabilitation Credits and less directly via the Reconstruction Import Credits. Logging companies also benefitted from the foreign-exchange retention scheme. Existing restrictions on export of logs were removed (the export of 14 species in log form had been banned in 1979, both as a conservation measure and in order to gain more value from local processing). See, Hutchful, “Ghana”, op. cit., 177.

¹⁹ Ibid.

²⁰ Owusu, J. H., “Current convenience, desperate deforestation: Ghana's adjustment programme and the forestry sector”, (1994) 54(4) Professional Geographer 418, 428.Google Scholar

²¹ This is a criticism made of almost all World Bank SAPs and other lending programmes. See Reed, D., Structural Adjustment, the Environment and Sustainable Development, London, 1996, 346–349.Google Scholar

²² See Friends of the Earth, Plunder in Ghana's Rainforest for Illegal Profit, op. cit., 10.

²³ See Forestry Commission, Public Education on Timber Resources Management Act, op. cit., 1.

²⁴ See Friends of the Earth, Plunder in Ghana's Rainforest for Illegal Profit, op. cit., 4.

²⁵ Ibid., 5.

²⁶ See “Darkness in Accra & Abidjan”, New African, (February 1984), 37. In 1998 the problem of low water levels in the Volta Lake again led to electricity rationing. See Pawson, L., “Ghana's power crisis”, New African, (06 1998), 30, 32.Google Scholar

²⁷ See Mann, R. D., “Time running out: the urgent need for tree planting in Africa” (1990) 20(2) The Ecologist 48, 50.Google Scholar

²⁸ See Republic of Ghana, Parliamentary Debates on the Timber Resources Management Bill, (16 December, 1997), statement by K. Adjei, col. 2043.

²⁹ Ronald Coase defines transaction costs in the following words: “In order to carry out a market transaction it is necessary to discover who it is that one wishes to deal with, to inform people that one wishes to deal and on what terms, to conduct negotiations leading up to a bargain, to draw up the contract, to undertake the inspection needed to make sure that the terms of the contract are being observed, and so on. The operations are often extremely costly, sufficiently costly at any rate to prevent many transactions that would be carried in a world in which the pricing system worked without cost”. See Coase, R., “The problem of social cost”, (1960) 3 Journal of Law and Economics 1, 15.Google Scholar

³⁰ See Timber Resources Management Act, article 4(1)(a)–(c), op. cit. Timber rights may not be granted under a TUC on land that is not subject to timber rights without the written authorization of the individual, group or owner concerned. Ibid., article 4(2)(a)–(d).

³¹ Ibid., art. 1.

³² Ibid., art. 2.

³³ Ibid., art. 3.

³⁴ Ibid., art. 5.

³⁵ Ibid., art. 6(1) and (3).

³⁶ Ibid., art. 7(1).

³⁷ Ibid., art. 7(2).

³⁸ Ibid., art. 9(1)–(2).

³⁹ Ibid., art. 8(d).

⁴⁰ Ibid., art. 3(e). Also see Timber Resources Management Regulations, Legislative Instrument 1649, 1998, Regulation 14(L).

⁴¹ See Timber Resources Management Bill, Second Reading, op. cit., 7, para. 7. In the past, rents and royalties and other payments have not benefitted target communities thus giving the impression that timber firms are exploiting local communities. This was pointed out to me in an interview with Mr. T. K. Manu, Consultant to the Ghana Timber Association on 23rd December 1988 in Ghana.

⁴² See Timber Resources Management Act, op. cit, art. 15(1).

⁴³ Ibid., art. 15(3).

⁴⁴ Ibid., art. 16(1).

⁴⁵ See Timber Resources Management Bill, Second Reading, op. cit., 3.

⁴⁶ See Concessions Act, op. cit, art. 5(1).

⁴⁷ Parliamentary Debates on Timber Resources Management Bill, op. cit. statement by C. Avoka, col. 2062.

⁴⁸ This expression was used to describe the activities of timber companies in the United States hoping to earn short-term profits without any consideration of future needs. See Harrison, J. S., “Hard times in the softwoods: contract terms, performance, and relational interests in national timber sales”, (1991) 21(3) Environmental Law, 863, 886.Google Scholar

⁴⁹ See Legislative Instrument 1649, op. cit., Regulation 2(a), (b) and (d).

⁵⁰ See Maloney, M. T. and McCormick, R. E., “A positive theory of environmental quality regulation”, (1982) 25 Journal of Law and Economics 99, 105.Google Scholar

⁵¹ See Banahene, Ghana's Timber Industry, op. cit. 22.

⁵² Interview with T. K. Manu.

⁵³ Interview with T. K. Manu.

⁵⁴ Interview with T. K. Manu.

⁵⁵ Interview with T. K. Manu.

⁵⁶ See Suggested Revisions to the Timber Resources Management Bill by the Ghana Timber Millers Organization, 4, (no date). (Copy on file with the author)

⁵⁷ See Legislative Instrument 1649, op. cit., Regulation 21(2). This definition is a departure from the customary meaning given to the term stumpage by the timber industry. Traditionally, stumpage is the value of the standing timber tree at any given time. Its value is normally determined using two approaches. The tree grower or landowner may calculate it after taking into account the cost of establishment and management of the tree/timber over the gestation period. On the other hand, the buyer can also calculate stumpage after considering factors such as the market price of the product he wants to use the tree for, marketing, and a margin for profit. In an apparent attempt to cater for the interests of landowners, the new rules on stumpage by focusing on a basic return to the landowner set the stage for complex and lengthy negotiations. This is because although a formula for stumpage calculation is set out in Schedule 2 to the Regulations, the Chief Conservator of Forests, in consultation with the Administrator of Stool Lands and the Forestry Commission is empowered to calculate stumpage levels for species not mentioned in Schedule 2. Arguably, this is where differences over “basic return” will emerge.

⁵⁸ Interview with T. K. Manu.

⁵⁹ Interview with T. K. Manu.

⁶⁰ Interview with T. K. Manu.

⁶¹ See Banahene, Ghana's Timber Industry, op. cit., 23.

⁶² See Timber Resources Management Act, op. cit., art. 8(f).

⁶³ Interview with T. K. Manu.

⁶⁴ See Timber Resources Management Act, op. cit., art. 12(1).

⁶⁵ Interview with T.K. Manu.

⁶⁶ See Heller, M. A., “The tragedy of the anticommons: property in the transition from Marx to markets”, (1998) 111 Harvard Law Review 621, 668 (hereinafter, Heller, “The tragedy of the anticommons”). This argument on the probability of an anticommons emerging as a result of TUCs draws on the work of Heller.Google Scholar

⁶⁷ See Hardin, G., “The tragedy of the commons”, (1968) 62 Science 1243.Google Scholar

⁶⁸ See Heller, “The tragedy of the anticommons”, op. cit., 677.

⁶⁹ Ibid., 622 623.

⁷⁰ Ibid., 680 681.

⁷¹ Ibid., 684–685.

⁷² See Timber Resources Management Act, op. cit., art. 8(d).

⁷³ Ibid., art. 7(1).

⁷⁴ See Legislative Instrument 1649, op. cit., Regulation 13(1)(b).

⁷⁵ On this analysis see Cohen, L., “Holdouts and free riders”, (1991) 20(2) Journal of Legal Studies 351, 358.CrossRefGoogle Scholar

⁷⁶ Exploitation with consequences for holding out by a party usually occurs in two instances. The first instance is in a monopoly or cartel situation. Here one party has an extraordinarily strong bargaining position in a particular market. The consequence of its bargaining strength is that no party he/she bargains with will ever approach his/her bargaining power. A monopoly or cartel situation occurs when one or more individuals or companies has so much control over the supply of a good or service that the market becomes non-contestable. Exploitation also arises when one party is in an incredibly weak bargaining position. A monopoly or cartel is not necessary for exploitation in such a setting. Exploitation is possible simply because of the one party's weakness. See Thal, S. N., “The inequality of bargaining power doctrine: the problem of defining contractual unfairness”, (1988) 8(1) Oxford Journal of Legal Studies 17, 29.CrossRefGoogle Scholar Although relative strength and weakness under the Act and in respect of the SRAs is limited by the 5 per cent ceiling, the argument still does hold true and, it would seem that the advantage in the bargaining over a TUC is with the local community as it is the sole supplier of the consent needed by firms/partnerships in this context.

⁷⁷ Interestingly, one objective of the SRAs is to protect timber firms/partnerships from exploitation as the practice in some areas is for communities to present firms/partnerships with a long list of demands. The SRAs are supposed to protect them by placing a limit on how much compensation to communities will cost firms/partnerships. See Republic of Ghana, Parliamentary Debates: Official Report, op. cit., statement by K. Adjei, col. 2044.

⁷⁸ Already communities are insisting, sometimes violently, that firms engaged in timber logging and mining provide social amenities. For conflicts between local communities and timber firms, statement by E. Baah-Danquah, ibid., col. 2018, and statement by G. Buadi, ibid., col. 2026. For clashes between mining firms and local communities see West Africa (22–28 May, 1995), 774.

⁷⁹ Opportunism in business contracts entails self-interest seeking and subtlety with serious consequences for choosing between different contracts. Opportunism involves making hollow threats or promises in the expectation that individual benefit will be achieved. Specific examples of opportunism are the manipulation of information or the misrepresentation of intentions. See Williamson, O. E., Markets and Hierarchies: Analysts and Antitrust Implications, New York, 1975, 26–27.Google Scholar

⁸⁰ On contract modification see Dnes, A. W., “The law and economics of contract modification: the case of Williams v. Roffey”, (1995) 15(2) International Review of Law and Economics 225–240.CrossRefGoogle Scholar

⁸¹ See Timber Resources Management Act 547, op. cit., art. 8(b).

⁸² See Legislative Instrument 1649 op. cit, Regulation 14(1)(b).

⁸³ It was argued during the debates that reforestation requires a lot of scientific knowledge and thus TUC-holders may not be in a position to carry out their reforestation obligations. Coupled with the economic goal of maximizing profits, it was suggested that a more realistic option should be that the State establishes and runs silvicultural companies instead. See Republic of Ghana, Parliamentary Debates: Official Report, op. cit., statement by K. Addo-Kufuor, col. 2023.

⁸⁴ The advantages of such a specialist court include: decreasing multiple proceedings arising out of the same environmental dispute; reduction of costs and delays and leading, possibly, to cheaper project development and prices for consumers; greater convenience, efficiency and effectiveness in development control decisions; greater degree of certainty in development projects; a single combined jurisdiction is administratively cheaper than multiple separate tribunals; the reduction of litigation with consequent savings to the community. See Paul Stein, Justice, “A specialist environmental court: an Australian experience”, 255, 263, in Public Interest Perspectives in Environmental Law, Robinson, D. and Dunkley, J. (eds.), London, 1995.Google Scholar

⁸⁵ This is possible as the Minister has such power. See Timber Resources Management Act, op. cit., art. 5(1)(g).

⁸⁶ The Ghana Timber Millers Organization is the leading timber association with 100 timber processing firms and 79 per cent of total timber export earnings. The Ghana Timber Association has 19 per cent, while the Furniture and Woodworkers Association of Ghana has 1 per cent. See Banahene, Ghana's Timber Industry, op. cit., 3.