-Module 2-
GOVERNANCE PRINCIPLES & APPROACHES
EXERCISE 2
Understanding the Stakeholders and Legal Sources of Authority
in a Protected Area
OBJECTIVES AND INSTRUCTIONS
· Nature of the Exercise
o Individual Exercise
o Case Study
o Legal Analysis
o Discussion Forum
· Purpose of the Exercise
o Promote an understanding of the range of potential stakeholders exercising authority within a protected area.
o Build awareness of the range of sources of such authority.
o Enable Learners to appreciate the role of law in founding and influencing such authority.
o Foster critical appreciation of the array of internal and external legal factors that may influence the form, nature and relationship of stakeholders and authority within a protected area.
· Structure of the Exercise
o Introduction to the Exercise and Case Study (20 minutes)
o Individual Work (50 minutes)
o Joint Class Discussion (40 minutes)
o Consolidation (10 minutes)
· Methodology/Procedure
o Hand out a copy of the following documents to the Learners:
§ Case Study Narrative and Questions (Annex A) - one for each Learner.
§ Map of the Case Study Area (Annex B) - one for each Learner.
§ Several sheets of A4 paper.
o Introduction to the Exercise - facilitated by the pre-prepared Presentation (20 minutes)
§ Explain the nature and purpose of the Exercise.
§ Briefly introduce the Case Study.
§ Introduce the Task
· Read carefully through the Case Study again individually.
· Drawing from the knowledge conveyed to the Learners in the Seminar Presentation, answer each of the following three questions in relation to the Case Study:
- Which stakeholders potentially exercise authority in relation to the protected area?
- What are the legal sources/basis of such authority?
- What contextual and site-specific legal factors impact on governance in the Case Study area?
· Each Learner should capture their answers on the sheets of A4 paper handed to them.
· Highlight to the Learners that there is no one correct answer and that the purpose of the Exercise is to think practically about the case study and apply what the Learners have learnt about Protected Areas Governance and the law in the Seminar Presentation.
· The Learners have 50 minutes to answer all three questions.
o Individual Work (50 minutes)
§ During this time the Learners will complete the above task.
§ The Educator should rotate him/herself equitably between the Learners with a view to answering queries.
o Joint Class Discussion (40 minutes)
§ The Learners will then come together as a group and the Educator will facilitate a discussion on each of the three main questions.
§ Deal with each of the questions one at a time allocating an equitable amount of time to each.
§ Ask the students for their inputs and capture them on the white board, black board, large A0 sheets of paper or electronically.
o Consolidation (10 minutes)
§ The Educator will then briefly present the pre-prepared Summary of Possible Responses (Annex C) to the students, highlighting gaps, differences and overlaps.
§ This can be done by either projecting the results onto the screen or handing out a hardcopy of them to each of the Learners.
· Additional Notes to the Educator
o This Exercise is based on a fictional case study with a view to ensuring that it remains universally relevant and contemporary.
o The Educator may want to substitute the fictional case study with an actual case from their region/jurisdiction in which case he/she would need to adapt the three Annexes accordingly.
o The Exercise is based on a complicated fictional case study with a view to ensuring that is should challenge Learners with a high level of skills/expertise.
o The Educator may want to edit/simplify the fictional case study depending on the level of capacity of the Learners in which case he/she would need to adapt the three Annexes accordingly.
RESOURCES
· Introductory Presentation
· Case Study Narrative and Questions (Annex A)
· Map of the Case Study Area (Annex B)
· Summary of Possible Responses (Annex C)
ANNEX A – CASE STUDY
THE CONTEXT
The Two Nations Transfrontier Conservation Area (TNTCA) includes the territory of two countries (Nzuri Republic and Zintle Republic) within its borders. These two countries are party to both the Convention on Biological Diversity and the Convention on Wetlands of International Importance Especially as Waterfowl Habitat. The TNTCA is intersected by the Muddy River – which constitutes the border between the Nzuri Republic (to the North) and the Zintle Republic (to the South). The Muddy River Estuary is a Ramsar Site. With the exception of the Eastern border of the TNTCA, which comprises of the Atlantic Ocean, the entire TNTCA is surrounded by privately- and/or communally-owned land. The Nzuri and Zintle Component of the TNTCA are described in more detail below.
Nzuri Component of the TNTCA
The land falling within the Nzuri Component of the TNTCA comprises of state-owned land. In terms of Nzuri’s Constitution, all state-owned land falls under the administration of the Minister of Public Works and his Department of Public Works. The land was officially proclaimed as the Nzara National Park by the Minister of Environmental Affairs in 2005, acting under the powers accorded to her in terms of the National Parks Act. Shortly thereafter, the Department of Environmental Affairs, operating under authority assigned to it by the Minister of Environmental Affairs, appointed the National Parks Agency (NPA) as the management authority for the Nzara National Park. The NPA is a statutory authority tasked with managing all of Nzuri’s national parks, with its composition, powers and functions being regulated under the National Parks Act. The NPA has developed a comprehensive management plan for the Nzara National Park which has been approved by the Department of Environmental Affairs. Prior to the establishment of the Nzara National Park, the western area was inhabited by the Westyo community. They were relocated and granted legal title to previous state-owned land situated just outside the western-borders of the national park – now called the Westyo Community Area. An agreement was simultaneously concluded between the Minister of Environmental Affairs, Minister of Public Works, the local municipality and the Westyo community in terms of which the latter were guaranteed access to the Nzara National Park to harvest firewood and building materials, most notably natural grasses for thatching. The agreement also guaranteed the provision of basic health care, water, sanitation and educational services to the Westyo community by the local municipality. The Westyo community reside in the Westyo Community Area but sustainably manage their use of its natural resources in the interests of preserving them for future generations through their customary norms and practices. The Westyo Community Area acts as an important buffer for the Nzara National Park.
At the time the Nzara National Park was established, SandCo was undertaking small-scale sand mining on its eastern coast in terms a twenty-year mining permit granted to it in 1995 by the Minister of Minerals, acting under the Mining Act. The relevant Ministers agreed to allow SandCo to continue with its mining operations in the Nzara National Park until the expiry of its permit, but imposed a series of stringent conditions to mitigate potential adverse impacts associated with this activity. It was furthermore agreed that all permitting fees associated with the grant of the mining permit (which are substantial) would be used to finance the management of the Nzara National Park in the short-term. No long-term financing strategy is however in place for the “post sand-mining era”.
Zintle Component of the TNTCA
The governance arrangements in relation to the land falling within the Zintle Component of the TNTCA are even more complex. Just south of the Muddy River lies the Mudland Wilderness Area (MWA), formally proclaimed by the Minister of Nature in terms of the Protected Area Act. It comprises of state-owned-land which falls under the trusteeship of the President in terms of the Land Act. The MWA is managed by the Mudland Wilderness Authority, a provincial conservation agency mandated to manage all of the Province’s nature reserves in terms of the Protected Areas Act. This area effectively constitutes the core area of the broader TNTCA and according to the MWA’s management plan (approved by the Minister in terms of the Protected Areas Act) activities within it are highly restricted.
To the west of MWA lies the Mudland Trust Private Nature Reserve (MTPNR) officially proclaimed as such by the Minister of Nature in terms of the Protected Area Act. As its name suggests, the land here is privately-owned by the Mudland Trust (regulated under the Trust Act), an NGO which purchased the land several years ago with a view to conserving it in perpetuity. In order to do so, the Mudland Trust concluded a conservation servitude in favour of the Mudland Wilderness Authority, the terms of which are recorded against the title deeds of the property falling within the MTPNR. The fence between the MWA and the MTPNR has been removed and the broader area is managed as an open system by the Mudland Trust Co-Management Authority (constituted under the Protected Areas Act) comprising of equal representation from the Mudland Trust and the Mudland Wilderness Authority. The Mudland Trust Co-Management Authority operates very effectively due to equality in the capacity and resources of its members. In order to finance their contribution towards the costs associated with managing the MTPNR, the Mudland Trust were granted special dispensation by the Minister of Nature to build two exclusive tourist lodges in the MTPNR. These tourist lodges are operated by way of concessions granted to two private companies, namely LuxuryCo and HolidayCo. Several farmers living adjacent to the MTPNR have been granted contracts by LuxuryCo and HolidayCo to provide services and goods to these lodges and others to provide daily tours to lodge residents to other nearby attractions situated just outside the MTPNR’s borders.
To the south of the MWA lies the Mudland Community Conserved Area (MCCA) which has been formally recognised by the Minister of Nature under the Protected Areas Act. Originally comprising part of the MWA, it was subject to a land claim lodged by the Mudland Community in 2000 in terms of the Land Act. The Land Act was introduced by Zintle’s first democratically elected Government in 1995 with a view to remedying the historically unlawful dispossession of certain communities’ land under previous dictatorial regimes. The Mudland Community’s land claim was successful and in terms of the land claim settlement agreement (concluded between the community, Minister of Land Affairs, Minister of Nature, and the Mudland Wilderness Authority under the Land Act), the community were granted title to the land, which they hold in a legally recognised communal property institution. Several conditions were however included in the agreement, most notably that: the land must be simultaneously leased back to the Mudland Wilderness Authority to hold in the interests of conservation; the community forgo all rights to reside on and/or access the land and resources situated in the community conserved area; the community receive a monthly rental from Government in lieu of the forgone access/use rights; the land be formally recognised by the Minister of Nature as a Community Conserved Area provided for under the Protected Areas Act; the community and the Mudland Wilderness Authority co-manage the area through the formation of the Mudland Community Co-Management Authority (comprising of equal representation from the community and the Mudland Wilderness Authority); and the Mudland Wilderness Authority fund all management costs associated the MCCA. Although formally established, the community play very little role in the Mudland Community Co-Management Authority owing to limited resources. Management authority in the MCCA accordingly de facto lies with the MWA.
Finally, to the east of the MWA lies the Mudland Marine Protected Area (MMPA) declared by the Minister of Fisheries under the Marine and Coastal Resources Act. In terms of the Act, the management of the MMPA falls to the Department of Fisheries, but this function has been assigned to the MWA by the Department in the interests of ensuring seamless management of the terrestrial and marine protected areas.
The TNTCA Itself
The TNTCA was formed in 2001 when the Presidents of both nations signed a Memorandum of Understanding (MOU) detailing the future governance arrangements for the TNTCA. The terms of the MOU are very broadly phrased. The MOU does however provide for the appointment of a Joint Management Committee for the TNTCA (comprising of representatives from each of the institutions referred to above), which is responsible for making decisions about the management of the TNTCA. It further provides for the appointment of an implementing agent for each component of the TNTCA, which is responsible for coordinating the roll out of the MOU in the two components of the TNTCA. The implementing agents for the Nzuri and Zintle components of the TNTCA are the National Parks Agency and the Mudland Wilderness Authority respectively.
YOUR TASK
Having read through the above context carefully, answer each of the following questions in detail:
(1) Which stakeholders potentially exercise authority in relation to the TNTCA? List all potential stakeholders relevant to the:
· Nzuri component of the TNTCA.
· Zintle component of the TNTCA.
· TNTCA as a whole.
In respect of each of these stakeholders, identify the nature of authority exercised by each - namely what broad types of authority they exercise in relation to the case study.
(2) What are the legal sources/basis of such authority? In respect of each of the above stakeholders, identify the legal source/basis of such authority relevant to the:
· Nzuri component of the TNTCA.
· Zintle component of the TNTCA.
· TNTCA as a whole.
Possible sources/basis of legal authority include:
· International legal instruments and decisions
· Memorandum of Understanding
· Constitution
· Statutes
· Assigned/delegated powers
· Intergovernmental agreements
· Commercial contracts
· Conservation servitudes/covenants/easements