professor donna craig , school of law, university of western sydney

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Indigenous Governance of Biodiversity Impacted by Climate Change in Melanesia: Role of Customary Law and Community Based Environmental Management Professor Donna Craig, School of Law, University of Western Sydney Contact: [email protected] Acknowledgement: Thanks to Robyn Taylor for assisting me with this power point presentation

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Professor Donna Craig , School of Law, University of Western Sydney Contact: [email protected] Acknowledgement: Thanks to Robyn Taylor for assisting me with this power point presentation. - PowerPoint PPT Presentation

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Page 1: Professor Donna Craig ,  School of Law,  University of Western Sydney

Indigenous Governance of Biodiversity Impacted by Climate Change in Melanesia:

Role of Customary Law and Community Based Environmental Management

Professor Donna Craig, School of Law,

University of Western Sydney

Contact: [email protected]

Acknowledgement: Thanks to Robyn Taylor for assisting me with this power

point presentation

Page 2: Professor Donna Craig ,  School of Law,  University of Western Sydney

Locally Based Natural Resource Management

Is a viable approach to sustainably use and conserve biodiversity impacted by climate change in the South Pacific and other regions of the world.

RESEARCH REPORT:

Indigenous Governance of Natural Resources in Melanesia: A Project on Harmonising Customary Institutions, State Laws and Environmental Management Approaches, 2008 (Donna Craig, Justin Rose, Michael Jeffery, Eric Kwa, Yoli Tomtavala):

• Funded by the Christensen Fund and conducted in partnership with Melanesian environmental lawyers: focus on “biocultural”:

The rich but neglected adaptive interweave of people, place, culture and ecology

Page 3: Professor Donna Craig ,  School of Law,  University of Western Sydney

The Research Project

Process:

• Reviewed literature

• Examined case studies of collaborative biodiversity governance.

Aim:

• To generate knowledge of ways in which customary law and state law are cooperating, conflicting and converging with regard to Melanesia’s local-level natural resource governance

• To draw some conclusions regarding the appropriate roles of laws, particularly state laws, in supporting community-based biodiversity governance in Melanesia

Page 4: Professor Donna Craig ,  School of Law,  University of Western Sydney

The Research Project

Case Studies Selected:

• Vatthe Conservation Area in Espiritu Santo, Vanuatu

• Talasea District, West New Britain, Papua New Guinea

• Pohnpei, Federated States of Micronesia

Focus:

• ‘Bottom-up’ perspectives on customary law and relationship with other forms of law and practice

Cross Regional Comparison:

• Case studies provided scope for understanding legal & institutional change for collaborative biodiversity governance

Page 5: Professor Donna Craig ,  School of Law,  University of Western Sydney

Melanesian Context

Page 6: Professor Donna Craig ,  School of Law,  University of Western Sydney

Vatthe Conservation Area, Island of Espiritu Santo,Vanuatu

Source: http://www.positiveearth.org/bungalows/slideshow/vatthe1.htm

Page 7: Professor Donna Craig ,  School of Law,  University of Western Sydney

Watershed Forest, Pohnpei, Federated States of Micronesia

Page 8: Professor Donna Craig ,  School of Law,  University of Western Sydney

Talaesa DistrictWest New Britain, Papua New Guinea

Source: http://www.coralcoe.org.au/news_stories/marineparks/imagegallery.html

Page 9: Professor Donna Craig ,  School of Law,  University of Western Sydney

Cross-regional Comparison

Page 10: Professor Donna Craig ,  School of Law,  University of Western Sydney

Role of Law

Why take law seriously?

What do we mean by law in this context?

Rarely Asked Questions:

• What legal approaches are taken to implementing community –based resource governance (CBEM) in Melanesia?

• Are there examples where legal approaches &institutional structures are working well in sustaining social and ecological aspects of CBEM?

• Are there approaches that have proven ineffective or counterproductive in Melanesia?

• Future directions and lessons from case studies?

Page 11: Professor Donna Craig ,  School of Law,  University of Western Sydney

Terminology

Source: Pimbert,M and Pretty,J in Kothari eta la (eds), Communities and Conservation: Natural Resource Management in South and Central Asia, (New Delhi, Sage, 1998) pg.6

Typology of Participation

1 Passive participation

2 Participation as information giving

3 Participation by consultation

4 Participation for material Incentives

5 Functional participation

6 Interactive participation

7 Self mobilisation

Page 12: Professor Donna Craig ,  School of Law,  University of Western Sydney

Terminology

Source: (Borrini-Feyerabend,G, collaborative management of protected areas: tailoring the approach to the context (gland:iucn,1996) pg 12)

Collaborative Management (IUCN)

Synonyms: Non Synonyms:

Co-management Community-based Management (CBEM)

Joint management

Participatory management

Multi-stakeholder Management

Page 13: Professor Donna Craig ,  School of Law,  University of Western Sydney

Terminology

Customary Law and Governance

Concept: Definition:

Customary Law Sets of rules, established through socialisation, enabling members of community to distinguish acceptable from unacceptable conduct – includes conventions and usages adhered to through generations

Law A body of rules recognised by society as binding

Polycentric, pluralist legal system

When society accepts as legitimate more than one system of rules having different sources in contradiction with each other

Source: (IUCN Environmental Law Program, Customary Laws Governing Natural Resource Management in the Northern Area (Karachi, IUCN Pakistan, 2003) pg Xii

Page 14: Professor Donna Craig ,  School of Law,  University of Western Sydney

Terminology

Customary Law and Governance (Continued)

Concept Definition

Governance The way through which citizens and groups in society voice their interests, mediate their differences and exercise their legal rights and obligations. Put simply, it embraces the economic and political fabric of a community

Page 15: Professor Donna Craig ,  School of Law,  University of Western Sydney

Governance

1. In Melanesia – at least 2 forms of law co-exist but CBEM is largely associated with a revival of sovereignty of communities to maintain, adapt or create norms and practices relating to natural resources

2. Customary law evolves and adapts –as with other forms of law

3. CBEM associated with greater recognition of customary law

4. “Good Governance” and “Bad Governance” is complex in plural legal systems and context of CBEM. Importance of:

• Role of Laws and institutions – possibly pluralist systems

• Decentralisation

• Subsidiarity

• Adaptation and flexibility

Page 16: Professor Donna Craig ,  School of Law,  University of Western Sydney

Governance

The Not So Tragic Commons:

• Elinor Ostrom awarded Nobel Prize for 30 years of work rejecting inevitability of tragedy of commons (suggested by Garrett Harding)

Common Property:

• Corporate group property held in full ownership or right less than ownership (FAO)

• Should not be confused with open access resources

Governance of commons possible - but depends on a range of factors

Impacted by international donors and civil society financing organisations

These factors interacts with legal pluralism in Melanesia

Page 17: Professor Donna Craig ,  School of Law,  University of Western Sydney

Governance

Developing Legal Perspectives that are Sensitive to and Privilege Biocultural Diversity and Integrity (Justin Rose, cf final report):

• Paradigm shift towards participatory approaches and CBEM and recognising cultural diversity as integral to biodiversity

• Legal aspects are under researched and under theorised

• Legal research and scholarship prioritising biocultural biodiversity and adaptive approaches to climate change needs to offer alternatives to positivist law locating authority only in the State

• “Bottom-up” law requires cultural respect and research based on multi-disciplinary approaches and cross-cultural theories of law

• New legal approaches that can be applied to CBEM in Melanesia and elsewhere

Page 18: Professor Donna Craig ,  School of Law,  University of Western Sydney

Customary Law in Melanesia

• Most land and in-shore sea resources held in customary law tenure

• Some legal and constitutional recognition

• Pacific Island experience shows that management and protection of biodiversity needs local communities at centre

• Communities, cultures and livelihoods very dependent on natural resources

• State law, customary law and “project law” co-exist

• Strengths and weaknesses of different forms of law?

• Must be a commitment to meaningful participation

• Common property research - need to understanding full range of incentives of local participants in CBEM

Page 19: Professor Donna Craig ,  School of Law,  University of Western Sydney

Role of State Law

• Define rules by which local institutions interact with outsiders

• Define limits of State power and respect for local autonomy

• Provide basic constitutional protections for individuals against abuses of power at local level

• Provide basic standards and guidelines for protection of the broader public interests

• Many CBEM programs have no enabling legislation

• pilot projects

• erratic funding

• Failure to learn from experience and scale –up (LMMA’s exception)

• law is seen as an impediment to social change

Source: (New Zealand Law Reform Commission Report: Converging Currents; Custom and Human Rights in the Pacific, Wellington, NZLC, 2006)

Page 20: Professor Donna Craig ,  School of Law,  University of Western Sydney

Recognition of Local Polities and Law

• Often needs wider recognition of customary law and institutions (e.g. role of Village Fono Act) 1990 in Samoa

• External professionals funders need to be aware of strengths and weaknesses of State law and customary law

Page 21: Professor Donna Craig ,  School of Law,  University of Western Sydney

Aim for Recognition and Co-operation Giving Priority for Biocultural Integrity:

• Need flexibility in deciding management objectives and the rules used to achieve objectives

• Flexibility in how State law handles recognition of local groups and polities

• Flexibility in regard to how State law defines management groups and areas of jurisdiction

• Flexibility in allowing participating communities to self-select particularly early stages of novel CBEM program

Page 22: Professor Donna Craig ,  School of Law,  University of Western Sydney

Law as an Enabling Tool for Security

• Security and clarity of rights that are recognised

• Security that rights cannot be taken away and changed unilaterally and unfairly

• Rights should be permanent or near permanent – long enough for full benefits of participation to be realised

• Rights need to be enforceable against State

• Security of exclusive rights and clarity as to boundary of resources to which they apply

• Legal recognition or personality for rights holders

• Accessible, affordable and fair avenues for protection of rights, resolving disputes and appealing disputes of government officials (Lindsay, Rose)

Page 23: Professor Donna Craig ,  School of Law,  University of Western Sydney

Conclusions from Case Studies

1 To be effective and resilient, collaborative natural resource governance in Melanesia requires sound legal and institutional bases

2 A sound legal and institutional basis is necessary, but not of itself sufficient for effective and resilient collaborative natural resource governance in Melanesia

3 Natural resource governance in Melanesia occurs in Plural legal contexts. The legal and institutional bases for collaborative natural resource governance initiatives will be influenced by and should take account of both customary and state authority and norms

4 CBEM initiatives in Melanesia differ greatly between locations and jurisdictions-effective legal bases must be responsive to local concerns and priorities-there is no single “model law”

5 Civil society organizations are often pivotal to sound legal and institutional bases for CBEM – play mediating roles – but better locally based for resilience and sustainability

6 Sound laws and institutions require challenging balancing of considerations of flexibility enabling local initiatives and providing certainty of jurisdictions, obligations and rights