The civil code of the Russian Federation establishes that in the exercise of civil rights and in the performance of civil duties, participants in civil legal relations must act in good faith. No one has the right to take advantage of their unfair behavior. At the same time, the conscientiousness of the participants in civil legal relations and the reasonableness of their actions are assumed.
To date, the legislation elevates the principle of good faith to the rank of one of the dominant, but at the same time, for the most part, does not disclose the criteria for such good faith. Integrity should be considered as a limiter of the formal application of the law in the regulation of legal relations.
This principle is also laid down in the forest legislation, it appears when applying the register of unscrupulous tenants of forest plots and forest planters, which is undoubtedly a big step in the development of legislation. In addition, the principle of good faith is also applied when concluding lease agreements for forest areas for a new term.
However, it is worth noting that sometimes relations arise between tenants of forest areas, in which the parties behave formally in accordance with the law, but at the same time one of the parties incurs losses from such interaction. We are talking in particular about the institute of multi-purpose use of forests.
The state, introducing the possibility of simultaneous use of forests for different purposes, actually confronts the interests of business entities operating in the same forest area without providing mechanisms for resolving such a conflict.
As an example, the situation when the same forest area, which was previously leased to one tenant for harvesting wood, is simultaneously leased to another tenant for other purposes, in particular, to perform work on the geological study of the subsoil, the development of deposits minerals, construction, reconstruction, operation of linear objects (pipelines).
As a usual, in the second case, the tenants are enterprises of the oil and gas industry.
Of course, this situation creates a number of inconveniences for tenants, as well as causes losses, since, taking into account the specifics of the activities being carried out, it is impossible to simultaneously carry out timber harvesting activities on the same forest area and work on the geological study of the subsoil and development of deposits minerals, construction, reconstruction, operation of linear objects (pipelines).
To date, the criteria for compatibility of different types of forest use have not been established normatively, it has not been determined which types of forest use can be carried out simultaneously on the same forest plot provided to two economic entities in case that the activities of two tenants on the same forest plot are mutually exclusive certain specifics of their activities.
For two economic entities that are provided with a forest plot for rent at the same time, given the lack of a legal mechanism in the current legislation of the Russian Federation determining the procedure for using a forest plot, it is absolutely unclear how they should carry out their activities in this situation. Moreover, each of them concluding a lease agreement, paying rent for the forest plot, naturally, assumed that he would be able to use the forest plot without obstacles in accordance with the objectives specified in the lease agreement.
As a rule, when laying geological profiles, seismic surveys are carried out to study the subsoil of the earth, while for these works it is necessary to cut down forest plantations. As a result of such activities, losses are caused to the lessee-logger, as he loses the volume of liquid wood, which he hoped for by concluding a lease agreement.
Thus, the implementation of work on the geological study of the subsoil, the development of mineral deposits, construction, reconstruction, operation of linear facilities is also associated with the cutting of wood, i.e. in this case, cutting is one of the necessary methods and methods in order to subsequently lay a geological profile.
Also, oil and gas companies are building pipelines, leading to the impossibility of access to the logging sites for loggers or significantly increasing the leg of removal of harvested wood.
In this regard, the simultaneous carrying out by two tenants of the specified types of use of the forest area will lead to a violation of the principle of rational, continuous, non-depleting use of forests.
In our opinion, it is in such a situation created by law that both tenants act within the law, but the other tenant suffers from the actions of one tenant, including losses. It is worth noting that often the enterprises of the oil and gas processing industry do not go to negotiations in order to settle the interaction. After all, why should they? They do not violate the law.
But it is in this context that the question arises of good faith on their part.
Obviously, this situation needs external regulation.
In this regard, it is proposed to establish the criteria of good faith in the form of regulation of the procedure for the use of forests when
The cession of rights and obligations under forest lease contracts by forest legislation is allowed. Thus, in accordance with Article 5 of the Federal Law of December 4, 2006 No. 201-ФЗ “On the Enforcement of the Forest Code of the Russian Federation”, a tenant under a lease agreement for a forest plot, if the state cadastral registration of such sites was not carried out, does not have the right to transfer the forest lease agreement to other persons.
The Forest Code of the Russian Federation does not regulate issues in any way.
By virtue of Article 3 of the Forest Code of the Russian Federation, forest legislation regulates forest relations. Property relations related to the turnover of forest areas, forest plantations, wood and other forest resources are regulated by civil law, as well as the Land Code of the Russian Federation, unless otherwise established by the Forest Code of the Russian Federation, other federal laws. Thus, in the regulation of property relations, forest legislation gives priority in the following order:
1) The Forest Code of the Russian Federation, other federal laws;
2) Civil legislation and the Land Code of the Russian Federation.
In accordance with Part 4 of Article 71 of the Forestry Code of the Russian Federation, the provisions on the lease stipulated by the Civil Code of the Russian Federation and the Land Code of the Russian Federation apply to the forest plot lease agreement, unless otherwise provided by this Code.
According to part 3 of article 3 of the Land Code of the Russian Federation, property relations on the ownership, use and disposal of land plots, as well as on transactions with them, are governed by civil law, unless otherwise provided by land, forest, water legislation, legislation on subsoil and environmental protection, special federal laws. This article establishes the priority of land legislation in relation to civil law in the regulation of land relations.
At the same time, according to part 7 of article 448 of the Civil Code of the Russian Federation, in the wording effective from June 1, 2015, if, in accordance with the law, a contract is possible only through tendering, the winner of tenders does not have the right to assign the rights and transfer debt bidding agreement. Obligations under such a contract must be fulfilled by the winner of the auction in person, unless otherwise established in accordance with the law.
To date, judicial practice is based on the application of the said provision of the Civil Code of the Russian Federation directly, bypassing the norms of land legislation.
However, according to clause 9 of Article 22 of the Land Code of the Russian Federation, when a land plot owned by the state or municipal property is leased for a period of more than five years, the tenant of the land plot has the right, unless otherwise established by federal laws, to transfer his land the rights and obligations under this contract to a third party without the consent of the lessor, subject to notification.
Thus, both forest legislation and land legislation allow for the transfer of rights and obligations under forest lease agreements.
It should be noted that forest areas are a special object of civil law relations, characterized as a rule by a large area, a special mode of use and protection. In this regard, with a view to rational use, it is not advisable to impose a ban on the assignment of rights under obligations arising from tendered forest lease contracts.
We propose to consider the possibility of adjusting part 7 of article 448 of the Civil Code of the Russian Federation, indicating that the provisions of this rule of law do not apply to the lease of forest areas.
According to Part 4 of Article 29 of the Forest Code of the Russian Federation, harvesting of wood in an amount exceeding the calculated cutting area (allowable amount of wood removal), as well as with violation of the cutting age, is prohibited.
At the same time, according to clause 9 of the Rules for Wood Harvesting and the particularities of wood harvesting in forest areas and forest parks referred to in Article 23 of the Forest Code of the Russian Federation, approved by order of the Ministry of Natural Resources and Ecology of the Russian Federation of September 13, 2016 No. 474, wood harvesting is carried out within the limits of the calculated forest area of forestry, forest park by types of purpose of forests, farms and the predominant species.
Persons using forests for harvesting wood on the basis of a forest lease agreement or the right of permanent (perpetual) use of a forest plot use the additional volume of wood in the current year due to the underutilized established volume of wood removal in the forest plot for the previous three years, provided that the current year, the volume of timber removal under a lease agreement or a forest development project (when a forest area is granted on the right of permanent (perpetual) use).
Underutilized wood volume is defined as the difference between the established allowable volume of wood removal under a forest plot lease agreement or the forest development project and the volume of actually harvested wood for the relevant year.
At the same time, the total volume of timber harvesting in forestry, forest park should not exceed the calculated cutting area established for the relevant forest area, forest park.
It should be noted that tenants of forest plots have the right to annually cut down the allowable amount of wood provided for by the forest plot lease agreement. Therefore, the accumulated wood that was not cut for three years could still be cut down within the calculated cutting area of the corresponding year. Therefore, it is illogical to set a limit on cutting down of the underused established volume of wood removal in the forest area for the previous three years by the size of the current year's cutting area.
Moreover, this limitation follows from part 4 of article 29 of the Forest Code of the Russian Federation. Thus, we propose to consider the possibility of adjusting this norm, adding to the exception, according to which the additional volume of wood in the current year due to the underutilized established volume of timber removal in the forest area for the previous three years, provided that the volume of timber removal established for the current year is fully used or a forest development project (if a forest area is granted on the basis of permanent (perpetual) use) can be cut down in full. The specified amount should not be included in the calculated cutting area.
Issue: the construction of pellet plants requires the involvement of significant resources (natural, financial, labor, material and technical, etc.).
- introduce a project financing mechanism: lending to resource-supplying organizations implementing investment programs, at a percentage not exceeding the profitability limit, or attracting banks as direct investors, receiving a share in the total project profit;
- introduce special certificates for the production of renewable energy ("green" certificates), giving the right to receive state guarantees, tax incentives, compensation for lost expenses and other instruments of state support.
- develop a mechanism for providing benefits to investors implementing pellet production, by analogy with priority investment projects in the field of forest development.
Issue: Article 150 of the Tax Code of the Russian Federation does not provide for grounds for exemption from taxation as import of pellet equipment.
- In order to increase the socio-economic development of the territories, accelerate the transfer of the population to the consumption of fuel pellets and support the development of pellet production projects, we propose to consider the possibility of legislatively securing the release of import of equipment for the production of pellets from VAT.
- In this regard, it is proposed to include in the "List of technological equipment (including components and spare parts to it), analogues of which are not produced in the Russian Federation, the importation of which into the territory of the Russian Federation is not subject to value-added tax", approved by the Government of the Russian Federation of 30.04.2009, № 372, equipment for the production of fuel pellets.
Issue: The use of pellets in the domestic market is effective only when used with a short distance of transportation.
- Support is required for the development of interaction between business and regional authorities in the organization of sales at the initial stage of the production of a part of finished products (pellets) of new plants within the region.
- It is necessary to stimulate the development of bioenergy in the regions, in matters of analyzing the feasibility of transferring inefficient boiler houses in the settlements of municipalities that are at a considerable distance from gas pipelines to wood fuel and wood waste.
Issue: There are no mechanisms that would allow launching the implementation of bioenergy projects at the regional and municipal levels.
- It is necessary to develop a state program for the implementation of bio-energy projects at the regional and municipal levels, including:
- Conversion of municipal boilers to wood fuel;
- Providing preferential categories of the population within the framework of existing programs to support compensation for the purchase of fuel pellets;
- Subsidies for transportation of wood fuel to the end user.
Today, Russian forestry enterprises are certified according to the principles of foreign - Pan-European Forest Certification (PEFC) and the Forest Stewardship Council (FSC). Forest management standards, the international requirements of the FSC standards are tightened. As a result, in the near future, the implementation of the FSC requirements may be difficult in terms of the preservation of large areas that are part of the so-called intact forest areas (IFA). A significant proportion of MLT is present in the lease of many logging enterprises, there are also intact forest (IF) of regional importance that need to be maintained.
From January 1, 2017, the FSC directive came into force according to the decision of Motion 65 - it determines the percentage of conservation of intact forest areas depending on the company's actions: base level - 80%, agreed with NGOs (non-governmental organizations) logging in buffer zones - 50% , giving the forests permanent conservation status of PAs and FNH (forests of national heritage) - 30–40%. However, there is no clear definition of the percentage of conservation from the total area for IF - the question is rather blurred. The refusal of enterprises from the territories in IFA and IF in equal shares in order to comply with the requirements of FSC will undoubtedly become an obstacle to the further functioning of enterprises with sustainable economic efficiency. An alternative to the toughened and impracticable FSC requirements is the Pan-European Forest Certification (PEFC) certification. In order to protect oneself due to the impossibility of fulfilling the new FSC requirements - in case the Motion 65 directive remains unchanged after the standard is released, etc. - many timber companies have been additionally certified by the PEFC system. There are no clear requirements for maintaining the IFA in this certification scheme whole missing this concept. However, it is worth considering the significant disadvantages of the PEFC system. The National Association of Timber Industry «Russian Forest» supports the initiative to develop a national system of voluntary forest certification. The basis of this document can be taken the principles and criteria of FSC, which - if you are guided by a European buyer - should be refined to the level of the European Regulations.
In the Russian Federation, the number of indigenous minorities of the North, Siberia and the Far East is just over 250 thousand. They live in 28 regions of the country, including approximately a little more than 100 thousand people lead a nomadic lifestyle. Representatives of eight nationalities live on the territory of the Krasnoyarsk Territory: Dolgans, Nganasans, Nenets, Kets, Selkups, Chulyms, Evenks, Enets. In total in the Krasnoyarsk Territory 16735 representatives of indigenous minorities were counted. The most numerous of them are Dolgans (5810 people), Evenks (4372), Nenets (3633), kets (957) and Nganasans (807 people), who make up 94% of their total number.
For representatives of indigenous minorities of the Russian Federation living in the territory of the Krasnoyarsk Territory to exercise the rights to maintain traditional lifestyles and traditional economic activities, federal legislation allows indigenous people to freely use natural resources, including forests in their traditional places of residence. So, at present, in the forest fund of the Krasnoyarsk Territory, there are 14 lease agreements for forest parcels on an area of 7.3 million hectares for the implementation of activities in the field of hunting, concluded with small indigenous peoples. Among them are the communities of Madra, Upper Chunk, Kunnoir and others; and 3 leases of forest plots on an area of 327 thousand hectares for agriculture - reindeer herding concluded with indigenous peoples of the North, such communities as «BAKA», «Bat» and «Yambukan». The fundamental principle of the modern international attitude towards the small indigenous peoples is that they have the right to the lands and resources that they traditionally owned.
The legislative base of the Russian Federation contains the necessary guarantees for the preservation of patrimonial lands in accordance with generally recognized principles and norms of international law. However, laws create legal prerequisites for solving the problem, but do not offer specific mechanisms for forest users. For example, the fundamental federal law on guarantees of the rights of indigenous minorities in Russia (the Federal Law «On guarantees of the rights of indigenous minorities of the Russian Federation» of April 30, 1999 N 82-FL) states that the state authorities of the Russian Federation, the subjects of the Russian Federation and local governments «may» and «have the right» to protect the interests, traditions, the environment and the economic activities of the indigenous peoples, but nowhere does it say that this is their duty.
The legislator introduces the concept of «ethnological expertise» - a study of the impact of changes in the indigenous habitat of small peoples, but the procedure for its conduct and the assessment of specific damage has not been determined. The law also provides for the right to the participation of small indigenous peoples in making decisions on the protection of the original habitat, the traditional way of life and the right to compensation for losses. But the indigenous population has no legal ownership of the land, where it lives, hunts, fishes, feeds reindeer - as you know, forest lands in Russia belong to the state, therefore, in practice, companies often do not consider themselves obliged to receive the consent of the indigenous population to start work . There are no specific recipes for how to effectively combine the development of the economy with the preservation of traditional cultures and aboriginal lifestyles. The most effective measure of interaction is considered an agreement between forest users and communities (families) with a list of mutual obligations and the prescribed system of punishment for their violation.
Article 48 of the Forest Code of the Russian Federation provides that when using forests in places of traditional residence and economic activity of persons belonging to indigenous peoples of the North, Siberia and the Far East of the Russian Federation, both the original habitat of these peoples and their traditional image must be protected of life. Indemnification in the event of violation of these rights is provided in accordance with the aforementioned federal law. The methodology for calculating the amount of damages caused to associations of small indigenous peoples of the North, Siberia and the Far East of the Russian Federation was approved by order of the Ministry of Regional Development of the Russian Federation of December 9, 2009 No. 565. This methodology was recommended to be used as a basis for creating guidance documents on calculating the amount of damages approved executive authorities of the Russian Federation subject to regional peculiarities. With this in mind, the law of the Krasnoyarsk Territory («The Basics of Legal Guarantees of the Small Indigenous Peoples of the North of the Krasnoyarsk Territory» dated July 01, 2003) approved the corresponding method for calculating the amount of damages. The procedure for approving regulatory and reference indicators necessary for calculating losses caused to small nations as a result of economic and other activities of organizations of all forms of ownership and individuals was approved by a decree of the Government of the Krasnoyarsk Territory (Decree of the Government of the Krasnoyarsk Territory dated February 26, 2013 No. 60-p).
If we talk about the field of forest management, then the calculation of losses caused to small nations as a result of logging activities requires the approval of regulatory reference indicators for this type of forest use. However, in practice it is not always possible to achieve a constructive dialogue with representatives of indigenous peoples due to the lack of opportunity to establish direct contact with them. In this regard, the National Association of Timber Industry «Russian Forest» is taking the initiative to regulate at the legislative level that each tribal community has its legal representative in the region of its presence. Responsible person who will represent the interests of a specific indigenous and small people in interaction with forest users.
The National Association of Timber Industry «Russian Forest» has initiated the «Responsible Timber User» timber industry award with the support of the Federal Forestry Agency. The purpose of the award: to increase the attention of the public and forest industry participants to the issues of environmental, social, corporate responsibility of forest management in Russia.