3rd AnnualIUCNAcademy of Environmental Law Colloquium, Sydney, July 10-15, 2005
“Biodiversity Conservation, Law and Livelihoods: Bridging the North-South Divide”
Regional Frameworks for Biodiversity Conservation – Session on Small Island States
Regionalising Community-Based Biodiversity Conservation:
Institutional Antinomy in PacificIsland Environmental Governance?
Justin Rose, PhD Candidate, University of Sydney ()
Introduction
This paper investigates inconsistencies that may arise as the dual policy goals of “community-based conservation” and “regionalisation of environmental governance” are pursued in the Pacific Island Region.[1] There is a clear consensus among stakeholders that community-based approaches should now form the core of in-situ biodiversity conservation efforts in Pacific island countries (PICs)[2], principally because these methods are able to embrace “biodiversity in the Pacific islander sense of being an integral part of traditional societies, administered through customary systems of resource tenure.”[3] During the past two decades community-based conservation has been the focus of much regional, national and sub-national programmatic activity in Pacific island countries, but legal and institutional reform has in general not accompanied this paradigm shift in island conservation practice. The result is that while policy commitments and program rhetoric locates traditional communities of resource users at the decision-making and operational centre of biodiversity management, the relevant legal and administrative structures continue to relegate them to the periphery of conservation concerns, as ungrouped individuals whose resource-using actions must be regulated by the state.
The same regional and national plans and strategies that advocate community-based methods as the primary conservation approach in Pacific island jurisdictions also include broad commitments to enhanced regional coordination of environmental management efforts.[4] It is argued that while these objectives are not necessarily opposed, careful planning and analysis is required to ensure that implementing activities in one sphere (particularly those involving legal reform) do not preclude opportunities for gains in the other. The most significant identified risk is that the design of certain regional activities and programs may skew or inhibit opportunities to mainstream community-based conservation initiatives; to genuinely prioritise local participation and decision-making. The South Pacific Biodiversity Conservation Programme (SPBCP)(1992-2001) is illustrative of both the contradictions inherent in a “regional bottom-up approach” and of lost opportunities to learn valuable lessons about institutional adjustment in support of community-based biodiversity conservation in the Pacific Island Region.
Literature and theory from the fields of legal pluralism and common property governance is drawn upon in support of the argument. Legal pluralism is a societal characteristic indicating there are multiple legal orders observable in a given society. The works of legal pluralists assist in attaining a fuller understanding of legal dynamics in societies where institutions of formal governance co-exist with customary or traditional authority structures. The concern uniting common property governance scholars is showing that variations in forms of property rights influence resource management outcomes, having repeatedly demonstrated that market mechanisms and state management do not exhaust the range of institutional options available.[5]
The material is presented in five sections. The first outlines the international and regional policy context of community-based biodiversity conservation and management. The second introduces scholarship on legal pluralism and common property governance. The topic addressed in the third section is the United Nations Development Programme (UNDP)-sponsored evaluation of the SPBCP, and the lessons for institutional reform in support of community-based biodiversity conservation revealed by the evaluation process. The fourth section combines the preceding material in suggesting that maintaining an aim of a “regional model” for institutional frameworks in support of community-based conservation is counter-productive. The fifth section summarises two recent developments of institutional innovation in this area; Vanuatu’s Environmental Management and Conservation Act 2003 and the Micronesian Conservation Trust.
1.The international and regional policy context of community-based biodiversity conservation and management
In recent decades an international transformation has been occurring in conservation and natural resource management. “From standardized policies and programmes initiated by centralized and urban-based agencies, a slow but definite shift is taking place towards decentralized, site-specific, community-based activities.”[6] This transformation is particularly evident in relation to the conservation and management of natural resources in rural areas of many developing countries. Prior to expanding upon some of the features and implications of this paradigm shift, and its manifestation in the Pacific Island Region, it is necessary to comment upon some key terms commonly used within the discourse.
Terminology
“Collaborative management" was defined by the World Conservation Union's (IUCN) 1996 World Conservation Congress as
a partnership in which government agencies, local communities and resource users, non-governmental organizations and other stakeholders negotiate, as appropriate to each context, the authority and responsibility for the management of a specific area or set of resources.[7]
The IUCN included the terms "co-management", "joint management", "participatory management" and "multi-stakeholder management" as being synonymous with "collaborative management", and others have added to this list terms such as "shared-management" and "round-table agreement".[8] While the IUCN's formulation of "collaborative management" is only one amongst many, it clearly indicates the issues generally accepted as being central to the concept. These are partnerships between stakeholders accompanied by the sharing of authority over resource management. Another key factor recognised in the literature is that there are no blueprints or universally applicable mechanisms by which collaborative management may be applied; on the contrary, there is an enormous variety of options among which to choose to suit a specific context.[9]
"Community-based management" was excluded by the IUCN from the listed synonyms of "collaborative management", and to many its use indicates situations in which community-level institutions exercise primary decision-making powers over natural resources, independent from government authorities.[10] It is clear however that some researchers and practitioners use the term "community-based" to refer to the same broad range of situations termed "collaborative" by others. In the introduction to Communities and Conservation: Natural resource management in South and Central Asia, Kothari, Anuradna and Pathak emphasise that community-based conservation
includes a whole range of situations from one extreme in which official/private agencies predominantly retain control but consult with local communities in planning or implementation; to the other extreme in which communities are completely in control.[11]
It is noted that in the Pacific Island Region, stakeholders typically, but not always, use “community-based management” as a generic term inclusive of the full range of circumstances described by Kothari et al above.[12]
The term "co-management" (an abbreviation of "cooperative management", listed by IUCN as a synonym of "collaborative management") is frequently used in publications to describe situations where the collaborative arrangements between government agencies and community-level institutions have been formalised in legislation or contract.[13] It is important to note that while a fully implemented co-management system typically necessitates a process of legal and administrative reform, it
is not tantamount to asking for a drastic retrenchment of state responsibilities in resource management. The basic concern is actually with reshaping state interventions so as to institutionalise collaboration between the administration and resource users and end those unproductive situations where they are pitted against one another as antagonistic actors in the process of resource regulation.[14]
Two related terms often used in close connection with "collaborative management" and "community-based management" are "customary management" and "indigenous peoples management". These necessarily imply that the role of local stakeholders in the natural resource management strategies to which they refer are undertaken by traditional institutions, usually in conformity with applicable customary rules and practices. Situations of "customary management" may reside within the restrictive definition of "community-based management" (i.e. undertaken independently by community-level institutions), or be developed within a "co-management" model. While "customary" or "traditional management" are commonly used in Pacific island contexts, "indigenous peoples management" is more usually referred to in jurisdictions where indigenous resource users are minority groups within societies dominated by non-indigenous majorities, such as Australia, New Zealand, Canada and the US.[15]
It is apparent from the above that while there is much agreement amongst contributors to the discourse on the core elements of "collaborative management", little effort has been afforded to precise definition of key terms, many of which are used interchangeably in both academic and practice-oriented literature. While some commentators regard this as a significant problem, this author is contentto accept that the flexibility of the language applied in different regions and situations mirrors the need for flexibility in management systems accounting for specific local circumstances.[16]
An International Paradigm Shift
Over the past three decades the use of community-based and collaborative approaches to conservation and natural resource management has steadily become more prominent and popular, and is now well established. Today, a key element of the environmental programmes of many governments, in both developed and developing countries, is substantial community involvement in planning, design and implementation. With environmental law becoming globalised a commitment to some level of community involvement can be recognised within international benchmarks models.[17] This is especially true in rural development, where collaborative approaches now form the entry point for understanding local cultures and their construction of local reality, with the aim of tailoring interventions with the greatest possibility of success. Where these initiatives have lead to improved outcomes, it has been because of the commitment and mutual trust of the individuals, communities and agencies involved. Their combined efforts have drawn into question the long-held policy assumption that the incentives created by private ownership, or coercive state regulation, are the only forces capable of curbing self-interested resource use.
Much has and is being learned by the communities and professionals involved in these processes, and the lessons are well documented.[18] Despite the increasing numbers of community-based and collaborative initiatives in different parts of the world it is evident that where success has been achieved it is very often limited to small areas or "project sites". Importantly, it must be noted that much of what is billed as "collaborative", is so in name only. To claim success, collaborative strategies must build local skills, interests and capacities that remain effective and resilient long after any catalyzing "project" ends.[19]
Evidence of activity in the collaborative management sphere are the efforts of national and provincial governments in Asia.[20] Government agencies in India, Nepal, China and the Philippines are participating with networks of citizens’ organizations in collaborative forestry programmes supported by legislation or contracts.[21] Currently in India it is estimated that 10.24 million ha of forest lands are being managed under the Joint Forest Management programme through 36,075 committees in 22 states.[22] The potential of collaborative approaches for natural resource management in rural regions of Thailand, Vietnam, Cambodia, Indonesia and Laos has also been explored.[23] Legal endorsement of collaborative management in these latter countries is sparse, with the primary organizational and financial impetus provided by international NGOs, United Nations-affiliated agencies and the Asian Development Bank (ADB).[24]
Programmes and activities comparable to those described above are also taking place in Africa and South America. A global survey of these is unnecessary in the present context. The need for information clearinghouses on community-based and collaborative management is being met both globally and regionally by organisations such as the World Conservation Union, the Food and Agriculture Organization of the United Nations, and the International Association for the Study of Common Property.[25]
Community-based and collaborative management is not a panacea for the world’s biodiversity conservation problems. Its widespread adoption in the past few decades has in part caused, and has in part been caused by, an explosion of published material declaring its benefits, defining its limitations and decrying its pitfalls.[26] Community-based and collaborative management, in its many forms, has been both praised for protecting and rehabilitating forests, reefs and fish stocks, and criticised for failing to do so. It has been linked to a wider democratization of the societies in which it is adopted, yet in many cases it perpetuates institutionalised inequality and disenfranchisement.[27] Politically, it represents a rare example of broad policy consensus between international agencies, multilateral financial institutions and conservation NGOs of all descriptions.[28] Collaborative projects often seek to integrate conservation and economic development objectives, which is a practical prerequisite to achieving sufficient levels of community involvement and compliance.[29]
The PacificIsland Regional Context of Community-Based Biodiversity Conservation
The underlying rationale for community-based biodiversity management . . . is, in fact, of fundamental importance for the future of PacificIsland countries in that it is the only effective and lasting approach to poverty avoidance and alleviation.[30]
In Pacific island countries community-based and collaborative management has been strongly promoted by multilateral agencies such as the South Pacific Regional Environment Programme (SPREP) and international NGOs such as the World-Wide Fund for Nature and The Nature Conservancy (TNC). For example, the Action Strategy for Nature Conservation in the Pacific islands region 2003-2007adopted by all SPREP all member countries and major regional NGOs, includes a commitment to place “at least 5% of coastal and terrestrial areas under effective community-based conservation management in all Pacific Island Countries and Territories”.[31] Also, the previous regional strategy had as its second and third major objectives:
2.Policy, Planning and Legal Frameworks.
To integrate nature conservation and natural resource management into development polices, plans, legislation and budget processes at all levels.
3.Local Communities and Custom.
To involve and support local communities, resource owners and resource users in co-operative and sustainable natural resource management that recognizes and strengthens the rights and customs of local people as a basis for promoting environmentally sustainable and equitable development.[32]
To date, while there has been much regional, national and sub-national activity in furtherance of these objectives, co-ordination between strategies in the two spheres appears lacking. For example, while the 1999 Action Strategy reported the establishment of 34 community-based conservation areas since 1994, the formal legal status of many of these remains ambiguous.[33] SPREP member countries enacted a substantial volume of environmental law during the same five-year period, but instances of management responsibilities being allocated to communities are rare. In this regard the Samoan community-based inshore fisheries management program provides an operational example of co-management of natural resources in the Pacific islands region, and the Vanuatu Environmental Management and Conservation Act 2003 represents the formalization of a community-based approach. [34]
An issue closely linked to the legal adoption of collaborative initiatives in the Pacific island region is the role to be played by traditional laws and institutions. Many Pacific islanders continue to maintain moral and social connections to customary institutions that exercise direct authority overnatural resources within their locality. In many remote locations (typically "outer-islands" where government control over citizens actions may be all but non-existent), these customary resource management systems still operate effectively. Traditional Pacific island fisheries expert Bob Johannes reported in 2002 that over the past quarter century there has been a renaissance in community-based marine resource management in Pacific island countries.[35] Johannes and Kenneth Ruddle agree that the "Pacific island region probably contains the world's greatest concentration of still-functioning traditional community-based systems for managing coastal-marine fisheries and other resources."[36] Even where traditional rules controlling natural resource use are no longer regularly applied, local institutions remain interested and influential in determining the nature of resource use, development and regulation because of land tenure arrangements deriving from customary common property systems.[37]
2.Introducing Legal Pluralism and Common Property Governance
Legal Pluralism
This paper is underpinned by two separate, but related, branches of scholarship. The first of these is the study of 'legal pluralism', a societal characteristic that has been described as "more than one legal order observable in a given society."[38] There are many who deny the logical possibility of legal pluralism, in the Hobbesian tradition coupling 'law' inexorably to the sovereignty of the state and its monopoly on legitimate sanctioning power.[39] John Griffith's construction of “the ideology of legal centralism”, which he presents in contrast to legal pluralism, typifies such attitudes:
Law is, and should be, the law of the state, uniform for all persons, exclusive of all other law, and administered by a single set of state institutions. To the extent that other, lesser normative orderings, such as the church, the family, the voluntary association and economic organization exist, they ought to be and in fact are hierarchically subordinate to the law and institutions of the state.[40]
For those willing to entertain a less restrictive conception of what may constitute 'law', the works of legal pluralists provide useful reference points in understanding and analysing governance dynamics in jurisdictions with significant non-state legal sources.
While legal plurality, broadly defined, is recognisable everywhere, it is very often found in analyses associated with colonial and post-colonial situations.[41] This is the case with the Pacific Island Region, wherein institutions of formal governance transplanted from the former metropolitan powers co-exist with ancient, community and village-based systems. The operation of these customary authority systems “entails a fundamentally different comprehension of the nature and exercising of power and authority than that understood in the modern Western intellectual tradition”[42]. Brian Tamanaha commented in the Micronesian context: