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Protecting Mongolia s Wildlife through Wildlife Trade Law Enforcement

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Protecting Mongolia s Wildlife through Wildlife Trade Law Enforcement Financed under the Netherlands-Mongolia Trust Fund for Environmental Reform (NEMO II) Consultant: Wildlife Conservation Society Mongolia
Protecting Mongolia s Wildlife through Wildlife Trade Law Enforcement Financed under the Netherlands-Mongolia Trust Fund for Environmental Reform (NEMO II) Consultant: Wildlife Conservation Society Mongolia Country Program PROJECT EXTENSION REPORT Submitted to the Mongolian Ministry of Nature, Environment and Tourism March TABLE OF CONTENTS TABLE OF CONTENTS...2 LIST OF ABBREVATIONS...3 EXECUTIVE SUMMARY..4 ACTVITIY REPORTS 4 ATTACHMENT ATTACHMENT ATTACHMENT LIST OF ABBREVIATIONS MNET Ministry for Nature Environment and Tourism WTCU- Wildlife Trade Crime Unit SSIA State Specialized Inspection Agency WCS Wildlife Conservation Society WB World Bank NUM National University of Mongolia 3. EXECUTIVE SUMMARY At the request of the Mongolian Ministry of Nature, Environment and Tourism, WCS facilitated the drafting of the two documents presented in this report which include recommendations for the sustainability of multi-agency wildlife trade law enforcement teams and a wildlife trade intervention training program for Mongolian law enforcement staff. The drafting of the documents were completed through a series of follow-up activities to the project entitled Protecting Mongolia s Wildlife through Wildlife Trade Law Enforcement. The two documents and the activity reports below are supplementary to the final project report originally submitted on March 31, The follow up activities were carried out under an amendment to the original service contract singed by WCS and MNET which extended the project until March 31, ACTIIVITY REPORTS Project Extension: The project Protecting Mongolia s Wildlife through Wildlife Trade Law Enforcement was extended on October 22, 2009, with the signature of Amendment 2 to the original service contract between WCS and MNET (program code: NEMO-II; project code: FF058181; contract #: 01/2008). Distribute Project Reports to WTCU: The initial project final report and the report by environmental law expert K. Scharf entitled Strategies for Enforcing Wildlife Trade Regulations in Ulaanbaatar, Mongolia were translated into Mongolian and distributed to all members of the multi-agency Wildlife Trade Crime Units. The WTCU review of these reports and comments generated were used to develop the final recommendations on the sustainability of multiagency wildlife trade law enforcement teams and a wildlife trade intervention training program for Mongolian law enforcement staff. Draft Recommendations for Sustainable Operation of WTCU: The assistance of environmental law expert, James Wingard, was solicited to draft recommendations for the sustainable operation of the WTCU (multi-agency wildlife trade law enforcement teams). Jim Wingard has over 15 years of experience working in the environmental law sector in Mongolia with expertise in the area of wildlife law development. The draft recommendations are provided in Appendix 1. The document outlines continuing gaps in the wildlife trade law enforcement approach with recommendations for specific activities and additional legal development necessary to fill these gaps. A number of activities that would be important for the continuing work of the WTCU (multi-agency wildlife trade law enforcement teams) to be discussed with stakeholders and enforcement personnel are listed. This document was translated into Mongolian and circulated to members of the WTCU, representatives from MNET, SSIA and municipal SIA for their review before the consultative workshop. Draft Training Program for WTCU: The assistance of wildlife training expert, Dr. Anthony Lynam, was solicited to develop a wildlife trade intervention training program for the WTCU (multi-agency wildlife trade law enforcement teams). Dr. Lynam is a WCS Conservationist and Asia Regional Training Advisor who specializes in the development of effective wildlife trade law enforcement programs. Dr. Lynam has worked in Mongolia since 2005 and has engaged directly with the WTCU both in Mongolia and in Lao PDR during the wildlife law enforcement study tour organized under the project. The outline of the training program developed is provided in Appendix 2. The training program reflects the experience and outcomes of the WTCU enforcement work conducted as part of the NEMO-II project and is designed to provide the basic training necessary to reinforce the skills of the Ulaanbaatar WTCU teams and expand 4. the model to provincial-level trade centers (markets and border points) across Mongolia. This document was translated into Mongolian and circulated to members of the WTCU, representatives from MNET, SSIA and municipal SIA for their review before the consultative workshop. Consultative Workshop: A consultative workshop to discuss the draft recommendations for the sustainable operation of the WTCU and the draft training program was held on February 8, 2010, with members of the multi-agency WTCU and the agencies and institutions they represent. A list of individuals in attendance at the workshop is provided in Appendix 3. The workshop was held over a half day. An introduction and update on the overall project Protecting Mongolia s Wildlife through Wildlife Trade Law Enforcement was followed by a presentation of findings from the 2009/2010 wildlife trade surveys of Ulaanbaatar area markets and trade points, data from market surveys collected in previous years ( ) and the results of multi-agency WTCU enforcement actions. A summary and explanation of the contents of the two documents (draft recommendations for the sustainability of multi-agency wildlife trade law enforcement teams and a wildlife trade intervention training program for Mongolian law enforcement staff) were then presented to the workshop participants. This was followed by an open discussion at which point participants provided their feedback on specific recommendations and suggestions for changes, additions or deletions. Workshop attendees actively participated in this component of the workshop through discussions which took place over 2 hours. Recommendations and opinions were provided by representatives of all of the agencies and institutions present. Discussion of Draft Recommendations for the Sustainability of the Multi-Agency Wildlife Trade Law Enforcement Teams Participants noted that the recommendations for actions necessary to support the sustainability of the multi-agency wildlife trade law enforcement teams were thorough and well developed. The group suggested that the specific recommendations for additions to the Mongolian Law on Hunting be incorporated into the current draft of proposed amendments to the law for inclusion in the upcoming round of discussions of the Hunting Law amendments. Workshop participants underscored the need to address gaps in the following wildlife trade law enforcement protocols and procedures: Ensure access to adequate storage facilities for wildlife and wildlife products confiscated during wildlife trade law enforcement actions. Storage facilities need to provide adequate space, secured access and climate control (many items need to be frozen or refrigerated). Rarely live animals are confiscated which need to be safely held before release or destruction. Wildlife crime laboratory capacity. At times it is necessary to use laboratory techniques to determine the origin (wildlife or domestic) of confiscated products. Participants highlighted the need for laboratory space and resources dedicated to wildlife investigations so that appropriate tests can be run with a quick turn around of results so charges can be confirmed and cases resolved. Use of informants. Participants highlighted the need for improved procedures (clear protocols and resources for payments and incentives) for using an informant-based system for collecting information on illegal wildlife trade. 5. Participants called for the reduction and eventual elimination of the currently approved practice of reselling confiscated wildlife items Participants indicated that new evidentiary protocols do not need to be developed for wildlife law enforcement because the Mongolian criminal law outlines procedures that can be adapted for use in wildlife trade law enforcement settings. Discussion of Wildlife Trade Interventions Training for Mongolia Law Enforcement Staff Participates indicated that the outline of the training program presented was well developed and provided training in basic skills and knowledge necessary for wildlife trade law enforcement staff at the capital city, aimag (provincial) and soum (county) levels. Participants highlighted two sections of the draft training program in their comments. The first was the timing of the training. Workshop participants indicated that in some cases an intensive training program conducted at a site distant from their regular duty posts during a period in which they are free from any work-related obligations is more effective and efficient. Some participants indicated that a training conducted by delivery of multiple modules over time (an inservice training type approach) would be less effective. The group acknowledged that delivery of the training program would need to be adapted to meet the needs and schedules of the training recipients. The second section highlighted was module 3 of the training program. Participants indicated the need to add information and protocols under the Administrative Law to module 3 to complete the section of Mongolian law and legislation. And the end of the workshop WTCU team members noted that the Wildlife Trade Law Enforcement Study Tour to Laos PDR conducted under the NEMO-II project was a very useful mechanism for exchanging ideas on methodology and for sharing information. The WTCU members stated that the study tour allowed them to understand the international scope and complexity of wildlife trade and its reach across East Asia. The WTCU members suggested that a follow-up study tour be organized to the Russian Far East with a focus on the illegal wildlife trade routes which head north across Russia. The WTCU members suggested that the techniques used by the Russian authorities to combat illegal wildlife trade could also be of used in Mongolia where the types of species hunted and the habitats in which hunting takes place are similar. WTCU members suggested that improving links with wildlife law enforcement staff along the Russian-Mongolia border would improve co-operation in the efforts to reduce and eliminate illegal wildlife trade. Updates for Draft Recommendations: Members of the WTCU and participants in the consultative workshop fully reviewed the recommendations for the sustainability of multiagency wildlife trade law enforcement teams and a wildlife trade intervention training program for Mongolian law enforcement staff. The draft versions of these documents reviewed by the WTCU members and workshop participants are provided in Appendix 1 and Appendix 2. The consensus at the workshop was that the two draft documents were complete and well developed. The participants provided supportive comments and suggestions for adaptation of the recommendations to particular situations (training timing, etc.). Since there were no recommendations from the group for an overall change in the documents the drafts have been finalized as submitted. The documents will be used along with comments and suggestions provided by WTCU members and workshop participants in designing the next steps in the efforts to address illegal wildlife trade in Mongolia 6. Final Meeting with MENT & NEMO: WCS is submitting this supplementary report with the draft recommendations for the sustainability of the wildlife law enforcement teams and training program for multi-agency wildlife law enforcement staff as outlined under the amendment to the original project (Protecting Mongolia s Wildlife through Wildlife Trade Law Enforcement) service contract. WCS is open to feedback and available for a final meeting with MNET and NEMO-II. 7. Appendix 1: Draft Recommendations for sustainability of the multi-agency Wildlife Trade Law Enforcement Teams. Prepared by James Wingard, Attorney, Missoula, MT. Recommendations: The following set of recommendations is directed solely at the issue of enforcement in the context of the Mongolian Hunting Law. They are based on the following reports provided by the WCS Mongolia Country Program: 1. Draft of Amendments to the Mongolian Law on Hunting 2. WCS 2008 Ulaanbaatar Wildlife Trade Survey: Report to the World Bank 3. Protecting Wildlife Through Wildlife Trade Law Enforcement: NEMO II 2008, Final Report (2009) 4. Strategies for Enforcing Wildlife Trade Regulations in Ulaanbaatar, Mongolia (first written in pre-2008 Ulaanbaatar Wildlife Trade Survey---and updated in 2009) The first section of this brief report looks at the proposed amendments in the first document listed above Draft of Amendments to the Law on Hunting to identify continuing gaps in the enforcement approach that might be addressed either through specific activities or additional legal development. The next section contains a set of specific legal recommendations that should be considered as part of the continuing need for legal development. These recommendations do not address the problems with the Criminal Code as these are considered outside the scope of this effort. Finally, the last section identifies a number of activities that would be important for the continuing work of the Wildlife Trade Law Enforcement Teams. The list is a first draft of possible activities for use in further discussions with stakeholders and enforcement personnel. Brief Review of Proposed Amendments General Note on Legal Development: The focus of this brief review and recommendations is to improve the enforcement elements of the hunting law. However, for a law to function well it must be written, implemented, and interpreted as a whole, and in the context of other laws. There are several aspects of the overall hunting regime that could be added to provide important enforcement tools, but which would require substantial changes to the current proposal; e.g., the development of an affordable tagging system or improved management structures. In addition, there are gaps and conflicts in the Criminal Code relevant to hunting and trade that would need to be addressed. These have not been further reviewed nor included in the recommendations presented in this report solely because of the singular focus of this effort and the likelihood that more substantial amendments would not be accepted at this time. Future efforts to improve the legislation should seriously consider a thorough review and a the development of a full suite of necessary changes to the legal framework. 8. The proposed amendments cover several aspects of the legislation including: 1. New definitions 2. The creation of a management authority specifically for wildlife 3. The establishment of clearer lines of authority within the government and the inclusion of civil organizations in management 4. the introduction of catch-and-release fishing requirements; 5. the prohibition of specific fishing techniques; 6. the prohibition of fishing for taimen for household purposes; 7. the increased use of Certificates of Origin (CO), including the creation of a form of vicarious liability equating acquisition/sale of wildlife product without a CO as the same as illegal hunting; and 8. the increase in legal liabilities for breach of the law. The most important changes related to enforcement include the changes to the COs and the increases in legal liabilities. Only these two elements are discussed here with additional amendments proposed in the following section. Given the central importance of possession in enforcement activities, the definition and use of this term in the law should be considered a top priority. This would be especially useful when used in conjunction with the CO requirements. The current amendments identify acquisition and sale of wildlife without a CO as illegal behavior equivalent to illegal hunting. This is certainly a step in the right direction. However, both of these terms can be limited to specific moments requiring enforcement personnel to have evidence of that moment; i.e., a purchase or a sale event, before being able to prove a violation of the law occurred. An argument can still be made that mere possession is not a violation of the law, thus keeping open a narrow gap for illegal trade. To close this gap, the law needs to define the term possession and specifically identify possession of any wildlife in any form without the appropriate documentation, including Certificates of Origin, where required, as an illegal act. Specific language to accomplish this legally is set out in the next section. The changes in the format for liabilities contained in the law (based on a separately defined minimum wage level) are linked to other legislation and a trend in legal liabilities that cannot be changed through recommendations in this law. The positive aspect of this change is the linking of fine levels to a base concept associated with earning capacity and the ability to change the fine amount without amending the present law. These were not possible in the prior format and represent a step forward. However, it is not possible, without knowing what the minimum wage level is, to comment on the adequacy of the proposed fine amounts. The general principle to follow is a level that: 1. Acts as a deterrent for the targeted behavior 2. Compensates the State for the cost of enforcement and harm caused. Fine levels should be reviewed with these principles in mind. In addition, certain types of illegal behavior should be added to the list to improve enforcement opportunities, including the falsification of information to obtain or use any documents required under the law. 9. Specific Legal Recommendations: The legal proposals stated in this section have been produced as a guide for the recommended legal development activities contained in the last section of this report. They are drawn in large part from prior reports and intended to focus solely on the most critical aspects of enforcement that continue to cause problems for the effective implementation of the Hunting Law. A table format has been used with the suggested legal text in the left column and comments on the right. They are not in order of priority or according to an intended location in the present law. 10. LEGAL CLAUSE 1. Possession shall refer to persons who know of a thing s presence and have physical control over it, or have the power and intent to control it whether or not they have physical control. Such possession maybe actual or constructive. 2. Actual Possession, a person shall be deemed to have actual possession if they have direct physical control of something on or around his/her person. 3. Constructive Possession, a person has constructive possession if they have both the power and intent to later take control over something either alone or together with someone else. 4. Sole Possession, shall mean where one person alone has possession of something. 5. Joint Possession, shall mean where two or more persons share possession. 6. Wildlife shall refer to any living or dead wild animal, its parts, and products made from it and includes mammals, birds, reptiles, amphibians, fish, insects, crustaceans, arthropods, molluscs and coelenterates. 7. Wildlife Artifacts shall mean any part of a wild animal whether mammal, fish, bird, or reptile regardless of its use and shall include but not be limited to: (1) Feathers; (2) Meat; (3) Bones; (4) Skin; (5) Antlers; (6) Horns; (7) Glands; (8) Or any other item or product derived from wildlife. 8. Establishing and Controlling Wildlife Trade Centers (1) Individuals, economic entities, and other legal entities must obtain a license to conduct wildlife trade from the Wildlife Management Authority prior to engaging in any form of wildlife trade. (2) Wildlife trade may only be conducted are locations establis
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