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SPC Traditional Marine Resource Management and Knowledge Information Bulletin #17 – December 2004

Anne Caillaud, Sarimin Boengkih, Elizabeth Evans-Illidge, John Genolagani, Paul Havemann, Douveri Henao, EricKwa, Donna Llewell, Alma Ridep-Morris, Justin Rose, Russell Nari, Posa Skelton, Robin South, Reuben Sulu,Alifereti Tawake, Brendan Tobin, Silika Tuivanuavou and Clive Wilkinson*International Marine Project Activities Centre, PO Box 772, Townsville 4810 Australia

These issues were discussed at a workshop onTraditional Knowledge and Coastal ResourceConservation for Countries and States of theMelanesian Spearhead Group, held at IMPAC(International Marine Project Activities Centre) inTownsville, Australia, in March/April 2004. Theworkshop sought to determine the underlyingprinciples and themes that could be used toenhance the use and recognition of traditionalknowledge and laws, with a goal of improving bio-diversity conservation and management of coastalresources. The case studies from the workshopexplore the links between customary laws — espe-cially those relating to fisheries management —and existing government regulations, with a viewto ensuring that government regulations take fullaccount of customary practices. Melanesian casestudies are complemented with case studies fromother regions, which provide useful examples.

The case studies demonstrate where traditionaland customary management practices have beenrecognised within national laws, and suggest howappropriate aspects of traditional practices can bedrafted into policy and law within the differenttiers of government (local; provincial or state;national or federal; and international within multi-lateral environment agreements - MEAs). The casestudies provide examples of how better coopera-tion could be established between traditional and“modern” management practices, thus ensuringoptimal use of marine resources in other coastalregions of the world.

The first eight case studies (Section 1) fromMelanesia, Micronesia and Polynesia focus onincorporating traditional knowledge into govern-ment laws. These case studies provide examplesof synergy between customary and government

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Tabus or not taboos?How to use traditional environmental knowledge tosupport sustainable development of marine resourcesin Melanesia

INTRODUCTION

Melanesian communities have long histories ofinteraction with the natural environment. Theirunique traditional knowledge and cultural prac-tices have been developed over many centuriesand transmitted from generation to generation.Many Melanesian communities developed man-agement practices to ensure the sustainability offisheries resources, and these practices were basedon detailed biological knowledge of the speciesinvolved. Today, traditional marine resource man-agement continues to be practiced by communitiesand contributes extensively to the conservation oflocal resources and the spiritual, cultural and eco-nomic well-being of villagers. The role of custom-ary owners is recognised within the constitutionsof Melanesian countries, some of which give pri-mary recognition to customary law.

Yet this deep-rooted knowledge is now threat-ened. Many government regulations in Melanesiaapply conventional western management conceptsand models. By failing to properly take intoaccount customary practices or traditional knowl-edge, these regulations serve to greatly weakenlocal authorities. The introduction of new fishingtechniques and commercial fishing attitudes havedestabilised traditional management and resultedin a reduced respect for traditional chiefs andelders, especially among the youth. Moreover,communities often lack adequate scientific infor-mation on which to base management decisions.Thus, there is a need to harmonise traditional andmodern practices (as emphasised in governmentlaws). This harmonisation process should incorpo-rate the best practices of traditional marineresource management, with a view to ensuringsustainable development.

* Corresponding author: [email protected]

mailto:[email protected]


law, revealing successes as well as limits of thevaried initiatives.

Section 2 case studies focus on communityinvolvement in the management of marineresources. They show the need for co-manage-ment and the empowerment of communities,notably through decentralisation processes. Co-management can prove to be a success, as in Fiji,but intersectoral problems can have a negative

effect on cooperation, as shown in the secondcase study from Papua New Guinea.

The solution may rest in the establishment of aninternational regime protecting traditionalknowledge, which is the focus of Section 3. Thelast case study explores the issue of access andbenefit sharing, and intellectual property rights,through the example of the Australian Instituteof Marine Science.

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SECTION 1: INCORPORATING TRADITIONAL KNOWLEDGE INTO GOVERNMENT LAW

Case Study 1

Merging traditional resource management approaches and practices with the formal legal system in Vanuatu

Russell Nari1

Traditional laws and conservation practices

Vanuatu is a multicultural nation, where more than100 languages are in use in 80 different islands.Although it is threatened, traditional cultureremains active and traditions and practices continueto be passed orally from generation to generation.

Pre-western contact

A wide range of traditional conservationapproaches and practices existed in Vanuatu inthe past. Two general types of resource manage-ment systems were in place: direct managementand indirect management. Direct managementoccurred as a result of direct observations (and aperception of a change in resource status, ordegradation of ecosystems), which led to decisionsto take relevant, corrective action (e.g. declaring aban — taboo or tabu). Indirect management had amore spiritual and cultural basis, and conserva-tion measures were established via ritual and initi-ation ceremonies. Indirect resource managementpractices included the establishment of taboo sites,and taboos imposed by customs following particu-lar events such as an epidemic, a murder, or a pigkilling ceremony. Direct practices included peri-odic taboos imposed by chiefs or landowners, andsymbolised by recognised markers.

What remains today?

Although traditional resource management prac-tices continue to be used in Vanuatu, they are

threatened by development. Taboo sites and peri-odic taboos continue to be important, althoughconcerns are continually raised regarding thedecline in respect for taboo sites. Customarytaboos have also declined due to the acceptance ofChristianity and European mores. Differences inperceptions between traditional and western cul-tures about resources have led to considerable dis-agreement and confusion about marine manage-ment. However, the key underlying values of tra-ditional resource management contain some ele-ments of the western principle of “sustainabledevelopment”. These values (livelihood, equity,responsibility and cooperation) are anchored bythe four main pillars of society’s existence: securi-ty of tenure; inheritance and use rights; site basedfocus and affinity with the land; and decision-making processes and decision-makers. However,these traditional values have been challenged by alack of clear resource management and develop-ment policy directions at the national level, west-ern education, the wantok system (especially rural-urban), and colonialism.

Interface between traditional andgovernmental laws: Issues and challenges

Traditional knowledge and practices can be usefulin two key areas: education, and the design andimplementation of an appropriate sustainablecommunity resource management model.

Education in Vanuatu has suffered because theeducational system, which was based on a western

1. Environment Unit PMB 9063 Port Vila, Vanuatu. Email: [email protected]



educational model, did not make allowance for, orrespect of the country’s culture and history. Thecurrent Education Master Plan (2000–2010) recog-nises these shortfalls, and consequently, there arenow opportunities to incorporate traditionalknowledge into national education.

The formal legal system faces the same problembecause Vanuatu is in a transitional period interms of its economic and socio-political develop-ment. The newly gazetted EnvironmentalManagement and Conservation Act (2002) strivesto integrate traditional resource managementapproaches and practices into the formal legal sys-tem. It consists of laws designed to protect, con-serve, develop and manage Vanuatu’s environ-ment for all people, and is based on the funda-mental traditional principles and values thatunderpin traditional concepts and practices. Theact consists of three major components:1. Environmental impact assessment (EIA).

Aimed at reducing conflicts, the law recognisesan additional role for each agency, and givesadditional powers to provinces and municipal-ities;

2. Biodiversity and bioprospecting. This compo-nent manages the activities of researchers inthe country via a permit system. The goal is toensure that government and communities have

access to research results, and to help preventresearch piracy;

3. Conservation of biodiversity. This componentreinforces traditional resource management.Conservation is often based on perceptions,with the rules, boundaries and enforcement leftto communities, which decide the width of pro-tected areas, as well as the permitted activities,penalties, courts and registration. There is nolaw on enforcement: the government only pro-vides support and back up, and there is, there-fore, considerable flexibility.

Lessons learned and recommendations

Sustainable resource management in Vanuatumust be based on traditional resource managementprinciples and values to be successful. However,these traditional resource management principlesand values have been challenged by western ide-ologies, lifestyles and ethics. The integratedresource management systems currently imple-mented under the Environmental Managementand Conservation Act (2002) constitute the mostappropriate resource management system for ruralVanuatu; one that seeks to unify the economic,environmental and social objectives that underliethe philosophy behind sustainable development.

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Case Study 2

Traditional management of marine resources in PalauAlma Ridep-Morris2


Pre-western contact

Palau was traditionally divided into beluu (vil-lages), where a village council was responsible formanaging public domain lands. Palauans havealways been known as conservation-minded peo-ple and were taught to take only what they need-ed and leave the rest for future use.

The major traditional conservation practices weremoratoriums (buls) and taboos. Buls were put intoeffect by the village rubaks (traditional chiefs) tohelp manage resources. For example, a verticalcoconut frond buried in the soil indicated to thevillagers that there was a ban in effect. Traditionalchiefs had an intimate knowledge of the spawningseason of fish species, and would enact a bul to

ensure that resources were naturally replenishedduring spawning seasons, thus guaranteeing sus-tained supplies of fish for the long-term.

Palauans had certain foods that were or are stilltaboo to them. Different reasons were given for thetaboo: the animal was a protective spirit, or it wasbad to eat certain foods during pregnancy or illness.

The nature of traditional management systemsensured more effective engagement of resourceusers in management decisions. As a result, deci-sions were more relevant, compliance with ruleswas improved, conflicts were reduced, and eco-nomic development paths were more in line withthe desires of the people. Relatively decentralisedand exclusive tenure systems lent themselves forbetter maintenance and application of the vastbody of ecological knowledge gained by genera-

2. Bureau of Marine Resources, Ministry of Resources and Development, PO Box 359, Koror, PW 96940, Republic of Palau. Email:[email protected]



tions of people in intimate contact with theresources they relied on.

What remains today?

Traditional management is still in practice today.There have been several recent examples of tradi-tional chiefs exerting their authority over marineresources. The chiefs of Ngarchelong and Kayangelnegotiated an agreement to share fishing grounds,and together imposed a closure over a number ofreef channels and areas known to be fish spawningaggregation sites. Within these two states, respectfor the law and for chiefs is strong, and complianceis believed to be high. But the more meaningfultest of this and similar customary laws is in com-pliance by fishers from other states. Such a testoccurred when a fisher from Koror was caught vio-lating the Kayangel/Ngarchelong fishing groundclosure. The chiefs of Ngarchelong confiscated hisboat and fishing gear. After negotiations betweenthe chiefs of Koror and Ngarchelong, a fine waspaid to Ngarchelong.

However, the power of traditional chiefs is begin-ning to erode with the development of a strongcentralised national government. Therefore, tradi-tional chiefs are now being integrated into thestate governments to retain more influence.


According to Palau’s constitution, the states aregiven “exclusive ownership” of inshore resources(measured from the land seaward to 12 nauticalmiles from traditional baselines). Therefore, man-agement of marine resources lies with the states.

The Ngaremeduu Conservation Area involvesseveral states, including Ngatpang. This state hasa very traditional government that actively partici-pates in management decisions regarding the con-servation area. The laws enacted by the statesinvolved in the Ngaremeduu Conservation Areaencourage traditional management practices in theconservation area, including sustainable develop-ment. A compromise between western and cus-tomary models is being achieved through theinclusion of traditional chiefs in legislatures andstate government bodies. Other regulations are inplace and new ones are being initiated that willhelp strengthen customary management ofresources and knowledge.

The Marine Protection Act of 1994

An example of a regulation that is in place andthat helps strengthen customary management of

resources and knowledge is the Marine ProtectionAct (MPA) of 1994. The MPA incorporated tradi-tional knowledge of spawning periods, andimposed seasonal closures for important fishspecies. It also imposes size limits on certainmarine resources.

Protected Areas Network Act

The development of a balance of power betweenthe states and the national government is slowlyevolving, and mechanisms are being developedthat encourage cooperation. The Protected AreasNetwork Act (passed in 2003), strengthens cus-tomary management of resources and knowledge.The PAN serves as a framework that encouragescollaboration between Palau’s national and stategovernments on protection of the country’smarine and terrestrial biodiversity. It will helpaddress local resource management issuesthrough the establishment of an interconnectednetwork of protected areas, and will supportstates’ efforts to effectively manage their naturalresources.

Boundaries, enforcement, penalties and conflictresolutions

Marine enforcement is very costly and states maynot be able to afford the expenses involved; there-fore, state governments usually request that thenational government enforce regulations andimpose penalties. Conflicts are increasingly beingresolved through the court system instead ofthrough customary means; thus the courts havebecome part of the customary process of disputeresolution.


Palau is currently seeking a balance between gov-ernment and traditional leadership. Many custom-ary rules used in the past (such as temporary fish-ing closures over particular areas), are consistentwith modern legal and fisheries managementmethods, and are being increasingly used today.One important expression of Palau’s customaryauthorities, rules and processes is its marinetenure patterns, which feature village-level con-trol. This is a critical aspect of custom in terms ofmarine resource management, and it is completelyconsistent with Palau’s constitution.

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Pre-western contact

Melanesians occupied the territory of NewCaledonia for more than 3000 years before thearrival of the French “colons” in the middle of the19th century. Traditional knowledge and conser-vation practices had been developed and refinedover centuries before the first Europeans arrivedin New Caledonia. Local traditional fisheries man-agement techniques were adapted to local condi-tions and accorded well with the environment;according to what is termed a system of “sustain-able development”.

What remains today?

Subsistence fishing still forms an important part oftraditional Kanak life, although there has been avery clear decline in traditional customs. This canbe explained by poor transmission of traditionalknowledge from generation to generation due to awesternised education that ignores or bypasses tra-ditional culture, and by the introduction of newfishing technologies that are more efficient thantraditional methods. The authority of traditionalchiefs is progressively being eroded and super-seded by national authorities. However, theNoumea Accord of 1998 recognised the customarynative land system and established legal custom-ary institutions (including a customary senate andcustomary councils). Kanak customary law isapplied in parallel to the French law. The NoumeaAccord divided New Caledonia into threeprovinces: the Northern Province, the SouthernProvince, and the Loyalty Islands Province. Theprovinces are governed by a congress, which con-sists of elected members from local assemblies. Thecongress has legislative powers and adopts the tra-ditional local government laws.


The latest attempt to combine traditional andnational law was the Loyalty Islands EnvironmentCharter. This concept was first considered in the1970s by the then Kanak leader, Jean-Marie Tjibaou.The Environment Charter was derived from Frenchlaw, with adaptations for Kanak culture and tradi-

tions. The philosophy of this law reflects traditional“sustainable development” and community partici-pation in decision making that guides the LoyaltyIslands Kanak communities. It is a consensusbetween the different Loyalty Islands stakeholdersand is recognised as a solemn commitment by thevarious partners (civil society, French State,research institutes, etc.) in development thatacknowledges the rights of all participants. Thecharter will lead to the initiation of a coherentdevelopment scheme that recognises the currentindigenous practices of the Loyalty Islands, andwill create meaningful exchanges and consultation.


The charter includes: the quality of life in theLoyalty Islands; the preservation of the environ-ment; management of water resources; soil andsub-soil management; education, training andinformation; and contribution to research andtechnology. It proposes the creation of aDevelopment Council, with a mission to monitorthe development indicators, implement orienta-tions defined by the Council, and deal with com-munication and information issues. The LoyaltyIslands Environment Charter is to be integratedinto French law, and is the first tool to combinetraditional systems with French governmentlaws. French President Jacques Chirac signed it,solemnly committing France to protect tradition-al knowledge and encourage Kanak customs.The charter complies with the proposal by theFrench President for a French RepublicEnvironment Charter to be integrated in thepreamble of the constitution.


The Loyalty Islands Environment Charter is amajor step towards recognising of traditionalknowledge and customs at the national level. Thegoals and principles of the charter are to:• value and recognise cultural heritage;• favour the expressions of Kanak culture;• encourage the teaching of Kanak languages;• protect traditional knowledge and skills;• develop traditional arts;• conduct programmes of research on Kanak

identity;

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Case Study 3

The Loyalty Islands environment charter in Kanaky-New CaledoniaSarimin Boengkih3

3. Agence Kanak de Développement, BP 2321, 98846 Noumea, New Caledonia. Email: [email protected]



• support scientific projects for the protection anddevelopment of the environment;

• promote technologies that respect the environ-ment and renewable energies;

• favour applied scientific research;• initiate partnerships of research, society and

industry;• achieve a transfer of appropriate scientific tech-

nologies; • support modern methods of training and com-

munication for sustainable development;

• preserve biodiversity;• manage an exceptional environmental heritage

of world interest;• develop resources for long-term exploitation;• upgrade the knowledge and the comprehension

of natural phenomena; and• integrate the management of sustainable devel-

opment in the decision-making process.

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Case Study 4

Fisheries bylaws in SamoaPosa Skelton4 and Robin South4

Customary laws and conservation practices

Pre-western contact

In pre-contact times, Samoa was divided into divi-sions and ruled by paramount chiefs. Samoanshad strong and intimate beliefs in deities. Tongansruled Samoa for about 600 years (400–1000 AD),after which Samoans resumed control of theircountry; but divisional or factional infighting per-sisted. This led to the shaping and strengtheningof social interactions that were followed by subse-quent generations.

Today, Samoa is a hierarchical society where thechiefs (matai) govern village affairs. Two kinds ofchiefs — the oratory chief (tulafale) and the highchief (ali’i) — have very different functions. All vil-lage land is controlled by the chiefs. There are threetypes of customary land: 1) settlement land (resi-dential); 2) plantation land; 3) village land (frommountain top to fringing reefs; a concept equivalentto vanua in Fiji). The residential and plantationlands are controlled by family chiefs, whereas vil-lage land is controlled by village chiefs.

Papalagi (European) influence

Initial contact between Samoans and Europeansresulted in conflicts and subsequent alienation ofthe country to outside explorers. This was relative-ly short-lived, and whalers and traders re-openedcommunication with Samoa. The missionaries’arrival in the 1830s began a revolution in whichmany customs and traditional practices perished.Codified laws to govern trade with outsiders werefirst passed in 1838. Factional infighting betweenvarious paramount chiefs continued, and saw

America and Great Britain supporting one sideand Germany the other. The SteinbergerConstitution, drawn up by US Colonel A.B.Steinberger, governed Samoa from 1873 until 1876(when he was deported). The Berlin Treaty, drawnup in 1889, gave token recognition to the nation’sindependence, but all decisions had to beapproved by Germany, Great Britain andAmerica. In 1900, Samoa was divided, withTutuila and the Manu’a Group becoming anAmerican protectorate, whereas Upolu and Savai’iformed German Samoa before New Zealand tookover in 1914. In 1946 the United Nations assumedresponsibility until independence on 1 January1962, as Western Samoa.

Interface between traditional andgovernmental laws: issues and challenges

The supreme law, the Constitution of theIndependent State of Western Samoa 1960, pro-vides the foundation for national administrations.Laws prior to independence (mostly of NewZealand/British origin) continued to be enforceduntil they were repealed or amended.

The coastal and marine ecosystems of Samoa havebeen a mainstay for the people for many genera-tions. Over the last 50 years, rapid developmenthas led to a large increase in population, and sig-nificant changes to traditional lifestyles. The mar-ket economy has became a dominant force that ishaving negative impact on the traditional socialsettings and obligations.

The Fisheries Act (1988) and the FisheriesRegulations (1995) were enacted to manage fisheriesresources. In the mid-1990s and with the assistance

4. International Ocean Institute (Australia), PO Box 1539, Townsville, QLD 4810, Australia. Emails: [email protected];[email protected]




of the Australian Government, Samoa developed aprogramme for the establishment of village fisheriesmanagement plans. Through this programme,thegovernment encouraged participation by the fono(council of chiefs) and other users (i.e. untitled menand women’s groups) in decision making. Separatemeetings allowed for a free flow of discussions, anda representative from each group was selected toform the Fisheries Management and AdvisoryCommittee (FMAC). The overall objective was todevelop a Fisheries Management Plan to enable vil-lages to manage their resources.

The process of developing a Fisheries ManagementPlan can take from three months to over a year,from the plan’s initial introduction to its formaladoption. Decisions regarding both critical issuesand solutions are made by villagers. The establish-ment of fish reserves (which are declared taboo fora period of time) is one management option; withthe villagers being responsible for enforcement. Aswas done traditionally, villagers impose penaltiesfor law-breakers, including fines of pigs, chickensor money. This system worked well for villagersinitially, but proved difficult to enforce whenoffenders were outsiders (non-village people).Clause 104 of the constitution stipulates that alllands lying below the high water mark are public,meaning that outsiders can fish within the villagecoastal zone, including in taboo fish reserves.Villagers thus found it difficult to impose their fines

on members of another village. To overcome thisproblem, the government introduced village-levelfisheries bylaws. The bylaws are village specificand often include activities that cannot be carriedout within the village coast. To date, 83 villages areparticipating, with 62 villages agreeing to set upfish reserves as part of their Management Plan. Thisnetwork of 62 reserves provides a good conserva-tion strategy for Samoa’s marine resources.

The fisheries bylaws are subsidiary to national leg-islation; hence they must not contravene any pro-visions of national laws. The bylaws continue torely on government support especially when thereis a dispute between parties (e.g. between the fonoand an offender from another village). In this casethe village will take their complaint to theFisheries Division, which then takes the matter tothe formal court system.

Lessons learned

Engaging the traditional decision makers (chiefs)ensures that decisions and undertakings areeffectively implemented at the village level; therich knowledge and experience of these twogroups ensure that informed decisions are made.The bylaws strengthen villages’ ability to managetheir resources, and some customs that may havebeen lost (e.g. fishing harvesting methods)become revitalised.

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Case Study 5

Traditional law and the environment in the Solomon IslandsReuben Sulu5


Pre-western contact

Despite the diverse and heterogeneous nature ofthe Solomon Islands, the basic principles behindthe different tenure systems and resource manage-ment regimes were generally similar. Land andadjacent coastal areas such as coral reefs andlagoons were owned under a kinship group (tribe,clan or line) ownership system6.

Traditional management of resources was usuallydone through the customary tenure system. Themain customary conservation practices were:

1. Sacred sites: movement into and within thesesites was usually restricted to certain people orcustomary priests only. These sites then auto-matically served as unofficial protected sites;

2. Social prohibitions: prohibitions or restrictionson the consumption of certain species by somesocial groups (these could be continuous orlimited to certain times of the year); and

3. Serial or sequential prohibitions, which rotatedareas and limited access to some groups forharvesting resources.

The most commonly practiced were the system oftemporary closures, or sequential prohibitions orlimited access on harvesting of resources.

5. Institute of Marine Resources, University of the South Pacific, PO Box 1168, Suva, Fiji Islands. Email: [email protected]. Coral reefs, lagoons and adjacent coastal areas are usually seen as an extension of the land.



What remains today?

As a result of change in beliefs, perceptions andexpectations, prohibitions relating to sacred sitesand social groups are no longer observed. Thesesocial changes have also resulted in the demise ofthe traditional leadership system, and the rapiderosion of traditional law and management sys-tems; research is needed to ascertain their currentstatus.

Challenges in documenting traditional lawinclude: • The secretive nature of such knowledge. This

results in people jealously guarding theirknowledge and being very reluctant to divulgesuch information. (Traditional knowledge andinformation are only passed to heirs or a fewimmediate family members and relatives.)

• Solomon Islanders’ lack of capacity andresources to record this knowledge in theirown or a foreign language, such as English.


The Constitution (section 75 (1)), the ProvincialAct 1981 s.3 (7) and the Fisheries Act (No 6 of1998) all recognise customary laws. Indigenouspeople are defined, however, as “rights holders”rather than “owners”; therefore, under the lawthey hold rights but do not own land. The conceptof ownership derives from early laws in the late19th century, where it was asserted: “crown own-ership of the foreshore and the seabed is a com-mon law principle”. A court case in 1951, in whichan indigenous Solomon Islander accused a west-erner of taking trochus illegally, changed this viewof land tenure. The court awarded the decision tothe indigenous man and, therefore, recognisedcustomary ownership of the reef. Another caseinvolved a dispute over customary ownership ofland below the high water mark. In this situation,a native owner opposed a timber company, whichwas alleged to have damaged marine resourcesduring the processes of shipping logs. The court(in 1989) found against the plaintiff, finding thathe failed to prove the existence of customaryrights over the area, and that the disputed areawas seabed and not land.

The Western Province Resource ManagementOrdinance was instituted in 1994 to provide forthe proper management of resources and toempower customary owners in the managementof lands. Part III of this ordinance (CustomaryLand Resources Management Orders, CLRMO),which refers to this empowerment, is an attemptto blend and synergise modern and traditional

law, while seeking to retain the flexibility of theformer. The CLRMO process involves the commu-nity as well as local governments and, although itstill faces some challenges, it is the first steptowards a successful “collaboration” between cus-tomary and governmental laws.


Boundaries of areas owned under customary laware marked by rocks, trees, streams, rivers and,most important of all, sacrificial alters and/orother sacred sites. Such areas are not restricted toland but also include sea areas, reefs and islandshelves.

Customary laws are enforced through the commu-nity social structures. Traditionally, conflicts wereresolved by discussions and dialogues betweenelders and chiefs, and penalties for disobeying tra-ditional laws may have included public shaming,flogging or banishment. Today, it is difficult toimpose penalties on dissidents who disobey tradi-tional laws, especially those relating to resourcemanagement, with the result that people who dis-obey these rules normally go unpunished.Hopefully, the CLRMO can help to resolve thisissue, with conflicts resolved through the courtssystem (from local courts to the Appeals Court).


Principles of customary marine tenure andresource management in the Solomon Islands aresimilar to other Melanesian countries discussed inthis report;• The breakdown in social structures and values

has resulted in the breakdown of the tradition-al management systems. The effective manage-ment of resources in the future will requirerecognition and empowering of traditionallaws by the national government. A hybridbetween modern and traditional law, and sci-ence is required. However, even though legalframeworks or structures exist for empoweringtraditional resource owners to manageresources, awareness needs to be developedabout such legal or governance structures. Forvarious reasons (including disagreements andland disputes), it may not be easy for commu-nities to take advantage of such structures.

• Equitable sharing of benefits from resources isan important part of resource management.

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Pre-western contact

On the island of Malo, customary rights to fishand use the marine environment rested with spe-cific man blong solwota (men of the sea). Marineresources were harvested to feed the immediateand extended family of a fisherman; for sale orexchange in and around the fisherman’s village;and for exchange more widely to obtain otherfood and/or resources from interior parts of theisland (i.e. from the bush and gardens).

Many different methods were used, including net-ting, bow and arrow, spearing, poisoning, stoning,and other specific customary methods. In somecommunities, distinctive demarcation signs callednamele were (and are still) used to indicate protec-tion of an area, species protection, or customaryland disputes. Protection may have been put ineffect for months, seasons or years (ranging from1–5 years). Certain ceremonial or special commu-nity events led the high chief to relax the restric-tions for a specified period (usually one or twodays). Tabus were put in place by chiefly authorityand were applied over entire marine ecosystemsin designated areas, for a designated timeframe.

What remains today?

Today, diving with a mask and snorkel for shell-fish, lobster and crab is common, but traditionalcustoms are also practised. For example, tabus arestill commonly used throughout Vanuatu, and sig-nificant time and resources have been invested inresearching and recording the application andvariation of tabus throughout the country.Notably, there are many regional and island varia-tions of tabus. In some cases, the entire environ-ment is tabu, while in other cases, only portions ofthe environment and/or certain species are pro-tected. This approach is valid and effectivebecause it emanates from within the community,rather than being imposed from the outside. Itforms a basis for community education andawareness, and also empowers the community toown and take responsibility for the initiative andto observe traditional law.


Traditional practices are not expressly recognisedby the Vanuatu government, however, there ishigh-level recognition of the application of cus-tomary law in the constitution. Relevant parts ofthe Fisheries Act do not expressly recognise tradi-tional laws, but as a matter of policy, governmentagencies have fully engaged and given technicalassistance to the community in these cases.

Although the Fisheries Act is based on westerntheories of marine protection, and drafted accord-ing to western convention, the act recognises cus-tomary owners of marine areas, and requires thatthey be consulted when areas are declared protect-ed under the act.

Conservation initiatives in Malekula

In Malekula, chiefs, communities and various gov-ernment officials recently met and decided toimpose a tabu on the customary marine environ-ment and adjacent mangrove forests for a year.The tabu was declared after government officialsengaged with local chiefs and communities andprovided them with technical and scientific infor-mation. This helped local communities under-stand that their marine environment is potentiallyvulnerable; they also gained an understanding ofmanagement options. The government officialsempowered chiefs and communities by givingthem responsibility for the initiative, and byallowing the tabu to be enforced under chieflyauthority. Establishment of a comprehensive mon-itoring programme has served to give chiefs andcommunities the means to make informed deci-sions in the future. This example of co-manage-ment is a step forward towards the “incorporationof traditional management systems into overallfisheries management strategies”8 and thereforecodified law.


In the Malekula Case Study, enforcement, penaltyand conflict resolution mechanisms will also come

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Case Study 6

Customary law on Malo, South Santo, Vanuatu, and the protection of the marine environment

Donna Llewell7

7. WanTok Environment Centre (NGO), Santo, Vanuatu. Email: [email protected]. The Ray Parkinson, Memorial Lectures 1992. Marine Resources and Development. South, G.R. (ed) PIMRIS, University of the

South Pacific, Suva, 149 p.



under the authority of the chief and traditionallaw. Fisheries Regulations (that provide nationalprotection regulations for specific species throughsize limits, quota and/or absolute protection) co-exist with traditional enforcement mechanisms.Potential gaps in enforcement remain, however, asthere would be no enforcement and/or penalties ifa species is covered under the regulations, and if ageneral breach of the tabu (as a legally marine pro-tected area) has not taken place.


• For traditional law and practices to be effectiveand to contribute to environmental manage-ment, they must be established and managedfrom within the affected community.

• Absence of codification need not prevent gov-ernments from engaging with communitiesthat are seeking to apply their traditional laws.

• Government agencies and NGOs will be asource of valuable science-based information,technical expertise, and assistance that is vitalto the overall success of traditionally-basedmanagement efforts.

• Gaps or conflicts persist between traditionalenforcement and the capacity of governmentagencies to impose penalties or engage in dis-pute resolution, as a government agency mayhave limited powers granted to them underlegislation and/or regulations.

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Case Study 7

Kaitiakitanga: customary fisheries management in New Zealand Paul Havemann9


Pre-western contact

Kaitiakitanga is a traditional Maori concept captur-ing rights and responsibilities for being the custodi-an and steward of the well-being of places,resources and species. Kaitiakitanga is deeplyembedded into Maori culture, as part of the inter-mingled laws, knowledge and protocols ruling soci-ety, called tikanga Maori. The concept of kaitikitangahas traditionally been of particular siginificance tothe sustainable management of fisheries resources.The Treaty of Waitangi signed by Maori chiefs inFebruary 1840 recognised Maori sovereignty overfisheries. However, Maori fisheries rights like rightsto land, underwent a process of denial and erosionfrom 1840 onwards. Only six per cent of NewZealand land is in the hands of Maori today.

By the 1920s, the Government had ceased recognis-ing customary rights over fisheries. State recogni-tion of these rights began in the 1980s, when thegovernment admitted its past breaches of theTreaty. Since the 1980s governments have soughtways to accommodate the Maori Treaty rights with-in New Zealand’s legal and resource managementframework. Maori own 52 per cent of the commer-cial fishing enterprises in recognition of their Treatyrights. Kaitiakitanga as a concept that has been incor-

porated into state laws to promote recognition ofMaori rights and participation in resource manage-ment at the local level.


Kaitiakitanga has been recognised by law in theResource Management Act (1991) and in theFisheries Act of 1996. The last act interprets kaitiak-itanga as “the exercise of guardianship; and, inrelation to any fisheries resources, includes theethic of stewardship based on the nature of theresources, as exercised by the appropriate tangatawhenua [people of the land] in accordance withtikanga Maori”.

Kaitiakitanga is a vehicle for Maori stakeholder par-ticipation in land-based planning, resource devel-opment, general fisheries and non-commercialfisheries establishment and management, but alsoserves as a tool for recognising Maori customaryfishing, and for empowering Maori communitiesto manage and police customary fisheries.


Under the Fisheries Act local Trust BoardCommittees can now appoint a team of Maori

9. Faculty of Law, Business & Creative Arts, James Cook University, Townsville Qld 4811, Australia. Email: [email protected]



experts (kaitiaki) to administer and enforce rules intraditionally controlled areas, depending on localcapacity. This team may assist fisheries officersand give access permission to indigenous areas,and propose the creation of reserves, managementplans, and bylaws. This process of devolving fish-eries management to the local level is reassertinglocal control over customary fisheries; however,the Maori Land Court or, the Minister of Fisheries,keeps control by maintaining a veto and majordecision power. One of the benefits of this policyis the gathering of data from customary ownersand the improvement of traditional managementskills in both traditional and commercial fishing.Traditional knowledge can also be taken as anindicator for the conservation of resources, and belinked with science knowledge through observa-tion (e.g. stock evaluation).


A few principles can be derived from this casestudy, which strike a chord with Principle 22 ofthe Rio World Summit Declaration of 1992, andArticle 1 of the International Labour OrganisationConvention 169 on international regulationsrecognising the rights of indigenous people. Theseprinciples call for:• local participation in governance with a goal of

ecological sustainability;• local management with local knowledge for

local needs;• respect for and incorporation of traditional

knowledge, institutions, custom and laws intoconservation; and

• planning policy and implementation thatserves to integrate local, national and interna-tional ecological conservation.

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Case Study 8

Pohnpei watershed management: A case study of legal and institutional reform for co-management in the Pacific

Justin Rose10

Pohnpei is one of the four states of the FederatedStates of Micronesia (FSM). Pohnpei’s main islandhas a population of around 30,000 people, a sur-face area of 343 km2, and 200 villages in fivemunicipalities. Since the mid 1970s there has beennearly a 66% loss of intact catchment forest inPohnpei. Downstream impacts have been severeand include erosion, sedimentation of mangrovesand reefs, contamination of water supplies, loss ofhabitat for endemic species and threats to biodi-versity. The primary cause of forest disturbanceand clearing is the dramatic increase in kava(sakau) production. Kava consumption hasexpanded beyond ceremonial uses and is now apopular recreational drug.


Traditional authority in Pohnpei

Pohnpei is divided into 200 kousapw (villages)and 5 wehi (traditional kingdoms). Customaryauthority in Pohnpei resides with the island’s tra-ditional title holders, whose roles and responsi-bilities are allocated and organised within com-plex hierarchical systems that operate in eachkouspaw and wehi. While the nahmwarki (para-

mount chief) is the symbolic owner of all landwithin a wehi, the kousapw is the centre of socialorganisation and culture.

Traditional titles, while earmarked for men of par-ticular matriarchal lineages, are earned throughcommunity service, displays of traditional skillsand accumulation of traditional knowledge. Titleholders were accountable to their constituents andtitles could be revoked if the holders failed to per-form their duties adequately. Historically, specifictitle holders were responsible for management ofnatural resources.

A society in transition

At the time of FSM’s independence in the early1980s, the Pohnpei state government took overgovernance of the island from the Trust Territoryadministration. The adoption of a western-stylelegal system and institutional structure reflectedthe need for Pohnpei and FSM to operate withinmodern economic and political contexts. Theyoung Pohnpei state government is in somerespects a model of good governance and democ-racy, with effective systems of administration anda general respect for the law.

10. Conservation Law Specialist, PO Box 35 Thora, NSW 2454, Australia. Email: [email protected]



The government faces severe difficulties, however,in the areas where the authority of Pohnpei’s stategovernment stands in direct conflict with that ofPohnpei’s traditional title holders. These areas ofgovernance include some aspects of land, familyand criminal law, as well as conservation and nat-ural resource management. As noted recently byJohn Hagelman (former FSM President) “theparamount chiefs are still the undisputed rulers intheir kingdoms”.

Interface between traditional and state laws:Issues and challenges

Early attempts by the Pohnpei state government todelineate watershed boundaries were a failure.The Pohnpei Watershed Forest Reserve andMangrove Protection Act of 1987 was poorlyreceived by the villagers (carrying guns andmachetes), as they perceived it as “a governmentland grab in direct conflict with traditionalPohnpei resource use and authority”.

There was then a thorough process of consultationand participatory planning that reoriented catch-ment management towards government-communi-ty collaboration. All stakeholders contributed toand approved the Pohnpei WatershedManagement Strategy 1996–2000, followed byimplementation of the Pohnpei CommunityConservation and Compatible Management Project2000–2004 (supported by the Global EnvironmentFacility and The Nature Conservancy.

In 2001, after attempted legal reform at the state-level collapsed due to a lack of consensus, a co-management system was implemented inMadolenihmw Municipality. Madolenihmw’s pri-mary strengths are high quality leadership andgood relations between the municipal governmentand traditional leaders. In 2002, the MadolenihmwProtected Areas Act was passed, institutionalisingthe collaborative process and embodying a bottom-up approach to forest, coastal and marine conserva-tion. The Sehnpen/Lehdau Mangrove Reservebecame the first protected area to be declared underthe Act in 2003. Madolenihmw’s second-highesttitle holder gave the following perspective: “thegreatest legacy of this process is that Pohnpeiansare regaining control of their own resources”.


• The persistent fact of FSM’s legal pluralism: ifthe customary and governmental authority sys-tems are not in harmony over control ofresource use, they will probably be in conflict.

• “Legitimacy” is the key to effective authority:“what the rules are” is in many situations lessimportant than “who decides the rules” and“who enforces the rules”.

• One key to legal reform for collaborative natu-ral resource management in FSM is local own-ership of the negotiation and design of the reg-ulatory system. Off-the-shelf solutions are like-ly to be met with little interest.

• If co-management systems develop in FSM, itwill be via a complex adaptive process involv-ing hundreds of communities working in part-nership with government agencies, experi-menting with rules, monitoring, sanctions andregulatory processes over time.

• A central principle when drafting laws toimplement co-management is to build upon therespective strengths and shore up the weak-nesses of both the customary and governmen-tal institutions.

Conclusion

Two issues are central to understanding Pohnpei’stroubles in achieving effective conservation andnatural resource management. The first is thatPohnpei, as a collection of societies that lack (or arefree from) the intellectual, cultural and historicaltraditions supporting centralised authority overlocal resources. The second is that Pohnpei doesnot command the necessary regulatory capacityand infrastructure to enable its government to gen-uinely control the everyday uses of the resourcethey govern. Any process of legal or administrativereform that could adequately address these defi-ciencies must aim to harmonise customary andgovernmental authority.

The recent reform in Pohnpei has provided abridge between the “western” approach toresource management adopted by the young gov-ernment, and the Pohnpeian traditional resourcemanagement system, characterised by decentrali-sation and consensus decision-making based onthousands of years of traditional knowledge. Theapproach is in many ways an act of reconciliation,reconfirming those aspects of both political sys-tems that are considered legitimate.

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Traditionally, Fijian customary society is struc-tured in four levels: the district (vanua); the tribe(yavusa); the clan (mataqali); and the family (tokato-ka). Land was traditionally owned by the vanuauntil 1880 when the Great Council of Chiefs (GCC)resolved that the Native Lands should be regis-tered under the mataqali. A few cases of customaryownership by the tokatoka and yavusa remain with-in the western provinces.

Colonial influence increased from 1874 to 1970,and both land and landowners were registered.Today, national law fully recognises the rights ofcustomary owners; the 1999 constitution mentionscustomary laws and rights, and many acts protectthese rights (e.g. the Fijian Affairs Act, NativeLands Act and Native Lands Trust Act.)

Status of biodiversity and threats

The ocean is part of the heritage and identity ofFijian communities, and marine resources are ofgreat importance, historically, culturally and eco-nomically. The conservation of marine resources isalso imperative to fulfil the needs of the popula-tion and to develop long-term tourism. However,numerous concerns over the status of theseresources have been raised. Fishing has becomemore intensive, leading to a dependence oncanned seafood, and a drastic decline in subsis-tence fishing (qoliqoli) over the past five years.Today, people must travel farther and spend moretime and money to find good fishing areas, andfamily and vanua commitments are not met, caus-ing major conflicts. Loss of resources unfortunate-ly entails a loss of traditional knowledge and cul-tural identity in the Fijian communities.

Threats to marine resources include overfishing,pollution, harvesting of corals and mangrovedestruction. These are accompanied by a lack ofcommunity awareness and a lack of alternativelivelihood options.

Empowering communities: legislation andmanagement plans

Communities, assisted by NGOs and governmentministries, are now developing a network of local-ly managed marine areas (LMMAs) within theirtraditional fishing grounds. The goal of eachLMMA is to ensure both a healthy ecosystem andcommunity, with abundant marine and fish stocks,and sustainable fisheries. This bottom-up approachof marine management results in sustainabledevelopment in coastal communities, and encour-ages better understanding of customary manage-ment in socioeconomic terms. Fiji LMMAs arebeing extended throughout the country. The pro-cess begins with a request from the community,which identifies the issues and plans the actions.Communities are thus fully involved in the qoliqolimonitoring and management plan, which caninclude long-term tabu areas, reduction of licencesand banning of destructive fishing measures.

The activities of the LMMAs are not limited tomarine management, but include capacity build-ing, awareness raising, policy lessons (shared atthe national level, including through the GCC),and sharing of information with international net-works. The GCC is always involved and assists inthe implementation of the FLMMA. Success ofFLMMAs is measured in terms of species, habitatand ecosystem health, reduction of threats, andthe overall wellbeing of people. In Verata forinstance, the mission of the FLMMA is to rehabili-tate degraded habitats and replace importantspecies. An adaptive management cycle thatincluded management and monitoring plans wasused in this instance. The management plan iden-tified threats and recorded key interventions; themonitoring plan involved communities andincluded biological and socioeconomic surveys.The results are used to adapt managementapproaches; for example a temporary tabu mightbe converted to a permanent protection measure,

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SECTION 2:COMMUNITY INVOLVEMENT: COMMUNITY-BASED CO-MANAGEMENT OF MARINE RESOURCES

Case Study 9

Community involvement in the implementation of ocean policies: The Fiji LocallyManaged Marine Areas network

Alifereti Tawake11 and Silika Tuivanuavou

11. Fiji Locally Managed Marine Area (FLMMA) network, Native Land Trust Board, Suva, Fiji. Email: [email protected];[email protected]




or farming might be encouraged as a way ofreducing dependency on marine resources. Thesetypes of measures have led to a 35% increase inhousehold incomes between 1998 and 2002.


In the past six years, thanks to the development ofLMMAs, the number of tabu sites and qoliqolis hasincreased significantly; the number of skilled prac-titioners is more than 30; and people are noweager to work cooperatively and to commit to theprotection of marine resources.

The first marine protected area in Fiji was gazettedrecently (September 2002) but many problems

remain in protected areas, including poaching,meeting community needs, and reversal of tabudesignation. Some of the challenges include har-monising the work with existing national projectsand finding ways to maintain qoliqolis in thefuture. The main recommendations are to:• Encourage the scientific community to develop

the means by which local communities canevaluate the effectiveness of their managementactions; and

• Communicate evaluation results periodically tocommunities in a simplified and user-friendlyway in order to allow adaptive managementand learning to occur.

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Case Study 10

Traditional and modern law: A marriage in progress – The draft Talasea LocalGovernment Marine Environment Law (Papua New Guinea)

Eric Kwa12


Kimbe Bay contains several interacting ecosystemsand is one of the region’s most biodiverse areas. Itis also the subject of extensive scientific andsocioeconomic studies. The region includes barrierreefs, fringing reefs and atolls, with more than 404coral species, 543 fish species and more than 10species of whales and dolphins. Kimbe Bayincludes mangroves, beaches, seagrass and fresh-water areas, and diverse freshwater and estuarinefish fauna.


The Nature Conservancy (TNC) initiated a pro-gramme with the aim of “harnessing traditionalcommunity values to protect and maintain the bio-logical and cultural heritage of the Stettin Bay andwider Kimbe Bay regions”. TNC has realised thatthere is a need for a legal framework, that couldencompass some traditional management compo-nents and at the same time complement existingnational laws.

Local-level governments (LLGs) come third inPNG’s legal, political and administrative struc-ture, which includes three tiers of government(national, provincial and local level). The constitu-tion, the Organic Law and national laws define thelegal, administrative and financial powers of

LLGs. LLGs are empowered under this legalregime to enact local environmental laws for theprotection and management of marine and terres-trial biodiversity.

Talasea Rural Local-level Government has utilisedthis legal framework to develop local marine envi-ronmental legislation aimed at protecting and sus-tainably using the marine biological resources inthe Kimbe Bay area. The draft law seeks to incor-porate traditional knowledge and practices in theformal framework, with the goal of promotingsustainable resource use and management inKimbe Bay. The draft Talasea LLG law will:• establish and declare locally managed marine

areas (LMMAs) and a network of marine pro-tected areas (MPAs) within the proximity ofTalasea LLG;

• assist Talasea locals to regulate marineresource use within the context of increasingpopulations and impacts from land-basedactivities; and

• allow communities and clans to manage theirresources on a sustainable basis.

The process of declaring LMMAs starts with arequest from the clans to the LLG, which refers therequest to the Locally Managed Marine AreaCommittee (LMMAC). The LMMAC is appointedfor five years and comprises three to five membersfrom the clan, as well as members of NGOs,churches, Ward Development Committee (WDC),

12. School of Law, University of Papua New Guinea, PO Box 320, University PO, NCD, PNG. Email: [email protected]



the LLG, women and youth groups. This groupensures liaison between clans and LMMAs, andtakes into account both scientific and traditionalknowledge. LMMAs are declared by the LLG butare managed and monitored by the LMMAC.Once declared, the LMMA is integrated into thegovernmental process. It is envisaged that theNational Fisheries Authority will provide trainingfor LMMAC members, appoint Local MarineRangers for the Talasea LLG, oversee monitoringand enforcement, and provide funding support.

Planning for sustainable development in LMMAshas been established, and takes into account themarine resources owners, the local advisory com-mittee, the Talasea LLG and the WDC. TheLMMAC thus, contributes to institutionalstrengthening.


This devolution of power allows communities toact on their own initiative and contribute to theprocess of community empowerment. Com-

munities can be asked to propose a reef closureaccording to their traditional knowledge, and thiscan be compared with proposals based on scientif-ic knowledge; closed areas are often surroundedby buffer zones established by the village to pro-tect specific resources (e.g. fish spawning aggrega-tions). Monitoring and enforcement is the respon-sibility of villagers and fisheries wardens, withLMMA rules incorporating customary practicesestablished by the LMMAC in close consultationwith the clans.

However, problems with respect to LMMA man-agement remain. The first problem is monitoringand enforcement, as the main offenders are usuallythe locals. TNC is implementing a programme oflocal awareness raising to assist local communitieswith enforcement. A second problem is the destruc-tion of mangrove areas by settlers from other partsof PNG. Such violations have to be resolvedthrough the village courts system, which have thepower to punish people according to local customs,can impose fines that are not necessarily monetary,as locals often do not have cash.

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Case Study 11

Biodiversity and sustainable use of marine biodiversity in PNG: Policy and legalimplications

John Genolagani13 and Douveri Henao14


PNG is a biodiversity “hot spot” and has the sec-ond largest diversity of species in the Pacific.With 40,000 km2 of reefs and a natural forest landcover of almost 77%, it hosts 7% of the world’sspecies of plants and terrestrial life forms. PNG’snatural habitats are as beautiful as they arediverse, including beaches and ridges, swamps,lowlands, foothills and mountains. It is estimatedthat approximately 60% of PNG’s plants areendemic. The country hosts 20,000 plant species,800 species of corals, 304 mammal species and733 species of birds.

Major threats to this exceptional biodiversityinclude unsustainable logging practices, large-scale mining, destructive fishing and other harm-ful subsistence practices, and industrial and natu-ral disasters. PNG has been looking for models ofsustainable fisheries for over 15 years, but fewhave been implemented, and destructive practices

continue. PNG no longer uses quota systems toregulate resource access but instead, limits thenumber of days when fishing is allowed to 4000days. This national strategy is based on scientificdata. Traditional practices are often beneficial interms of marine management, but can also bedestructive (e.g. slash and burn agricultural prac-tices, or the use of imora, a poisonous plant, forfishing), which is so destructive that it has all buteliminated a spawning aggregation site.


Many policies on biodiversity conservation andsustainable use exist in PNG, from theEnvironment and Conservation Policy (developedin 1976) to the Medium Term DevelopmentStrategy (MTSD) planned for the 2003–2007 peri-od; the latter includes recommendations from theConvention on Biological Diversity that focus onagriculture. Although none of these policies are

13. Department and Conservation, Port Moresby, Papua New Guinea. Email: [email protected]. Department of Attorney General, Office of State Solicitor, Port Moresby, Papua New Guinea. Email: [email protected]




specifically focused on cross-sectoral biodiversityissues, considerable effort has been placed ontrade and environment connections, which is acentral issue in biodiversity conservation.International organisations have often been theimpetus for PNG’s policies; for instance, develop-ment of the Mining Policy was funded by theWorld Bank. However, government officials haveoften been driving the implementation andenforcement processes. Compromises have some-times been reached between indigenous peopleand inter-governmental organisations, while inter-national protocols, such as the Cartagena Protocol,have led government officials to develop domesticpolicies in a more sustainable manner.

Many general and specific PNG laws (Acts)include the concept of biodiversity, notably byadapting multilateral environmental agreementsto the PNG context. These include the PhysicalPlanning Act (1988), the Environment Act (2000),the Fisheries, Land, Mining and Forestry Acts(respectively 1998, 1996, 1992, and 1991), theInternational Trade (Fauna and Flora)(Amendment) Act of 2003 (which refers to CITES),the National Parks Act, and the Crocodile Act.

To circumvent criticisms that these acts were toosectoral and too hierarchical, a DecentralizationFramework was established, designed to givemore power to local governments. The provincialand local level governments were given legislativepower, the opportunity of participating in policymaking, and the right to consult on developmentinitiatives. This participatory and consultativeapproach was reaffirmed in enabling legislation,including the Provincial Administration Act. Thisact, aimed to devolve law making and implemen-tation to the local level through administration,financial and political mechanisms, but did notgive sufficient recognition to the wards and theclans, which are the real masters of indigenouslaws. Consequently, decentralisation did notresult in community empowerment, and was ulti-mately a disappointment.


Existing national policies and legal frameworksare inadequate as they are sectoral in nature andnot appropriately decentralised, and there is nopolicy and legal regime for effective decentralisa-tion. Therefore, reforms are needed in PNG (andin other Pacific countries) in the areas of integrat-ed biodiversity policy and law, biodiversity man-agement, access benefit sharing and intellectualproperty rights, research and development, andbiodiversity governance. • The challenge today is to find mechanisms to

seek cooperation between all sectors to operateunder a single authority so as to resolve theproblem of disparate approaches on customarylaw and traditional knowledge of marine man-agement at the different levels of government.

• The PNG government needs to learn and pro-duce new policies on traditional practices, butmost of all it needs to link policy and law withthe people, notably for biodiversity gover-nance, where decentralisation is vital.

• There is a lack of capacity to translate scientificknowledge into policy, because degree pro-grammes are too sectoral; but linking sciencesand laws requires competencies in both sub-jects. There is now a pressing need to set upsome cross-sectoral discipline training andincrease capacity in marine policy formulation.

• Another problem lies in PNG’s cultural diversi-ty: the national constitution had to take intoaccount 800 languages and 2000 cultures andtook two years to draft. Unfortunately, manygood customs were swept aside. This could beexplained by the unwillingness of customarydelegates to speak up in front of authorities dur-ing joint meetings; they may fail to assert theirrights; or agree, but in practice never takeactions not in accordance with their cultures.Encouragingly, a range of NGOs are now tryingto safeguard the fading traditional practices.

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Status of traditional knowledge

There are a number of fundamental conflictsbetween the current intellectual property rights(IPR) system and indigenous peoples’ rights overtheir traditional knowledge (TK), in particularknowledge related to biological resources. Theroot of such conflicts may, in part, arise fromdivergent views regarding the nature of naturalresources and rights over them. Non-indigenouspeoples from the developed world tend to per-ceive anything that can be commercially exploitedas a resource that must be exploited to the full,and in doing they seek to establish property rightsover these resources. Indigenous people tend toview all resources as a gift from Mother Earth, tobe cared for by today’s generation who hold themin trust for future generations, and that as suchthey cannot be owned.

In this world of differing values, numerous internaland external forces are changing the lives and soci-eties of local communities and threatening tradi-tional knowledge. External threats include: biopira-cy; development policies that promote exclusivelynon-indigenous education, health, agriculture andfisheries extension programmes; market forces; andintolerant religious organisations. Internal threatsinclude: lack of use and renewal of traditional cul-tures; loss of control, notably over education; cul-tural disintegration or isolation; and territorialimpacts. Responding to these multiple challengesrequires innovative action by states as well as aconcerted effort by indigenous peoples to revivetheir fading knowledge systems.

Protecting traditional knowledge in Peru

A comprehensive legal regime to protect the col-lective knowledge of indigenous peoples wasadopted by Peru in August 2002. This law, the firstof its kind, is based upon a number of key under-lying concepts:• Rights over TK stem from the existence of the

knowledge and not from any act of govern-ment. The role of the law is therefore declarato-ry in nature;

• TK is the cultural patrimony of indigenouspeoples and should, therefore, be used for thebenefit of present and future generations;

• Access to TK for commercial purposes requiresthe prior informed consent of indigenous peo-ples;

• Indigenous peoples are entitled to share thebenefits derived from use for their TK, whetheror not it is in the public domain;

• TK may be seen as a form of trade secret andthe state may act to prevent unapproved use;and

• Registers may play a role in protection of TK,and can be set up as open or confidential andmay also be held by local communities.

The process for development of this law broughtto light a number of conflicts, including: • Conflicts of cultural perception regarding the

nature of traditional knowledge; • Conflicts of legal vision with regard to the

nature of rights to be granted over knowledgeas cultural patrimony, the role of customarylaw, the application of the principle of the pub-lic domain, over the definition of objectives,and the role of registration in the protection ofTK; and

• Conflicts between the rights of indigenous peo-ples over their knowledge and the interests ofthose interested in accessing and using TK.This should not be seen as a balancing act asprotection of rights must precede considerationof interests.

An international regime to protect traditionalknowledge

To date there exists no comprehensive internation-al regime to recognise and protect rights over tra-ditional knowledge. Work is ongoing, within theframework of the Convention on BiologicalDiversity (CBD) and at the World IntellectualProperty Organization (WIPO) IntergovernmentalCommittee on Intellectual Property, GeneticResources, Traditional Knowledge and Folklore(IGC), to explore possible mechanisms for the pro-tection of TK. These processes face the task of try-

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SECTION 3: TRADITIONAL KNOWLEDGE IN AN INTERNATIONAL REGIME

Case Study 12

Towards legal protection of traditional knowledge: Lessons from PeruBrendan Tobin15

15. Institute of Advanced Studies, United Nations University, Yokohama, Japan. Email: [email protected]



ing to develop a global system for protection thatresponds to a multiplicity of national legal sys-tems, and an even wider range of customary lawand practice of indigenous peoples.

The Peruvian experience provides clear evidenceof the importance of ensuring the participationof indigenous peoples from the outset in anyprocess for development of TK law16. As custom-ary laws are as numerous as indigenous peoplesany international regime will have to be basedon flexibility. A global regime may include: cus-tomary law; access and benefit sharing law; suigeneris regimes to protect traditional knowledgeand strengthen traditional knowledge and inno-vation systems17; international umbrella regula-tions; an ombudsman’s office; measures inuser/recipient countries; and users’ codes ofconduct. Such a regime will need to be devel-oped with due attention given to internationalhuman rights law and policy, in particular thatrelating to indigenous peoples.


• The role of States in the development of suigeneris legislation must be that of facilitator andnot arbiter of rights. Any sui generis regimemust be developed in close cooperation with,and reflect the aspirations, interests and rightsof indigenous peoples.

• Access to, and use of, TK should conform tothe customary law of indigenous peoples.

• Any process for development of a regime toprotect traditional knowledge must be guidedby international human rights law, including“soft” law (e.g. conventions and agreementsthat do not include penalties).

• The scope of any regime should include tradi-tional knowledge within the public domain,unless otherwise decided by indigenous peoples.

• Any functional regime will require regulatoryframeworks in both provider/source anduser/recipient countries coupled with interna-tional enforcement procedures.

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Case Study 13

The role of customary law and practice in international ABS and TK governance Brendan Tobin18

Traditional resource management is increasinglyrecognised as a key tool for sustainable manage-ment of natural resources. This is particularly thecase with fragile marine ecosystems, where timehonoured practices have ensured that over-har-vesting or environmental damage is controlled inthe interests of long-term community survival.The three pillars of traditional resource manage-ment illustrated below are: traditional land andmarine tenure (which defines the area of protec-tion); traditional knowledge (which defines whyand how resources are to be protected); and cus-tomary law (which ensures the application of tra-ditional knowledge for the benefit of conserva-tion). National legal systems are typically super-imposed over customary laws, frequently under-mining chiefly power and traditional decisionmaking practices. As interest in reviving tradition-al natural resource management practices increas-es so too does interest in reviewing the role of cus-tomary law and practice, and its application tonew resource management issues such as access togenetic resources and traditional knowledge.

International governance of access to geneticresources and benefit-sharing (ABS) is primarilyregulated by the Convention on BiologicalDiversity (CBD). The CBD recognises sovereignrights over genetic resources. This is frequentlymisinterpreted as granting ownership rights tostates over genetic resources. Parties to CBD com-mit to facilitating access to and adopting legal,administrative and or policy measures thataddress fair and equitable benefit sharing andtechnology transfer (TT), including by the publicsector and of biotechnologies arising from the useof genetic resources. Indigenous and local commu-nities are to be consulted regarding use of TK andintellectual property rights are to support and notrun counter the CBD’s objectives. More than 50countries have adopted or are working on ABSlaws, policies and contracts; developed countrieshave tended to focus more on policy initiativesthan legislation processes, but even here actionsare fairly limited. No evidence has been shown ofaction by developed countries to adopt specificlegislation on technology transfer. During

16. See Tobin B. and Swiderska K. Speaking in tongues: Indigenous participation in the development of a sui generis regime to pro-tect traditional knowledge in Peru, IIED, London, 2001, available online at http://www.iied.org

17. See Tobin B. Redefining perspectives in the search for protection of traditional knowledge: A case study from Peru, RECIEL10(1) 2001, ISSN 0962 8797

18. Institute of Advanced Studies, United Nations University, Yokohama, Japan. Email: [email protected]

http://www.iied.org



Conference of Parties (COP) VI meeting of theCBD, there was an attempt to bring balance to theABS governance through the Bonn Guidelines onaccess to genetic resources and benefit-sharing(http://www.biodiv.org/programmes/socio-eco/benefit/bonn.asp). It is hoped that implemen-tation of the Bonn Guidelines on ABS will lead toan increase in action by those countries exploitingresources19 to develop relevant ABS law and poli-cy compatible with equity for supplying countries.

Despite a period of 10 years to adopt measures toimplement the CBD, there has until recently beenonly limited action by developed countries toadopt measures to comply with obligations suchas technology transfer and benefit sharing. Thereis also a perception that IPR regimes are becomingever more pervasive and threatening to the objec-tives of the CBD. This has led to questions regard-ing the utility of the voluntary Bonn Guidelines asa tool to bring about equitable governance of ABS.It is noteworthy that in response to pressures fornegotiation of an international regime, there hasbeen a significant move by developed countriesstress implementation of user measures, and ofABS capacity building programmes.

The terms of reference for negotiation of an inter-national regime on ABS adopted at CBD COP VIIdo not specify any objectives. Negotiators maywish to include objectives from both the CBD andWSSD, including those that: seek to ensure fairand equitable benefit sharing; secure transfer oftechnologies; facilitate access, strengthen tradition-al knowledge and innovation systems and protec-tion of rights over TK; and alleviate poverty.

Development of ABS and TK regimes will need tobe dealt with in parallel. Customary law plays animportant role for protection of TK and regulatingaccess to genetic resources within a local commu-nity or indigenous peoples’ jurisdiction, but itspower to regulate use outside this jurisdiction isnormally quite limited. Customary law may insome instances conflict with human rights. Thereis a need for greater analysis of opportunities andchallenges to the development of mechanisms tobridge the gaps between national and internation-al law and policy and customary law and practice,in order to develop culturally sensitive and func-tional ABS and TK regimes.


Equity was developed as an extra judicial remedyto overcome the injustice caused by strict applica-tion of the law. An international body of equity forABS should be developed through considerationof multiple sources of law and equity, includingcustomary law and practice.

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19. For discussion of user measures see Barber C., Johnston S. and Tobin B. 2003. UNU-IAS Report: User measures: Options fordeveloping measures in user countries to implement the access and benefit-sharing provisions of the Convention on BiologicalDiversity – 2nd Edition. UNU-IAS, Tokyo, available online at http://www.ias.unu.edu

Traditional land and marine tenure

Customary law

Traditionalknowledge

Traditionalresource

management

Towards an international ABS regime

The World Summit on Sustainable Development(WSSD) in 2002 called for negotiation of an inter-national regime on benefit sharing relating togenetic resources within the framework of theCBD, bearing in mind the Bonn Guidelines. One ofthe key questions by this process has beenwhether these measures be legally binding or vol-untary? This is a debate that polarises countries,but unnecessarily so. The existing internationalregime of ABS governance includes “hard law”(legally binding law) such as: the CBD itself; trade-related aspects of intellectual property rights(TRIPS); the World Intellectual PropertyOrganization (WIPO) Treaties; the InternationalTreaty on Plant Genetic Resources for Food andAgriculture; phytosanitary standards; regionaland national ABS and IPR laws; and customarylaw and practice of indigenous peoples whererecognised by national and/or international law.It also includes soft law such as: the BonnGuidelines; regional ABS Policies; and nationalbiodiversity strategies and action plans (NBSAPS).It is thus evident that any new regime will haveboth binding and non-binding elements.

http://www.biodiv.org/programmes/socio-eco/

http://www.ias.unu.edu


Biodiscovery, intellectual property rights andaccess and benefit sharing issues within AIMS

The Australian Institute of Marine Science (AIMS),established in 1970 by the AIMS Act, carries out,facilitates and applies research and developmentrelating to marine science and technology inAustralia. Its mission is to generate and transferknowledge to support the sustainable use andprotection of the marine environment.

The biodiscovery process starts with sampleacquisition and leads to product development. It isused in numerous fields, including pharmaceuti-cals, agrichemicals, sunscreens, seafood toxin test-ing, antifoulants, bioremediation, environmentalmonitoring and industrial enzymes. Australia’shuge marine biodiversity, and 16 million km2 ofocean, offer infinite opportunities to discover newbioactive chemicals.

The acquisition of samples is followed by chemi-cal analysis and initial development of extractsand chemical variations, using funds contributedby pharmaceutical companies. Patents can be puton discovery methods, lead structures and sup-ply methods, during the early stage of “develop-ment”; this is prior to the more advanced stagesof development that involve medical or agricul-tural trials.

Although necessary for products, intellectualproperty (IP), is a controversial aspect of earlybiodiscovery as it is often difficult to determinewhether the intended application of the novelcompound was “discovered” by the indigenouscommunity at the site. IP discussions can havenegative effects on research by reducing publica-tion rates and undermining curiosity science.There can be major mistakes in designating if pub-lication proceeds before protection, which can leadto “disastrous” shared ownership with a total lossof priority for both the indigenous peoples and thediscovering laboratory because the information ison the public record. Similarly, contracts can havethe drawback of tying a product to an exclusivepartner or hindering other research within thatfield. Thus, there is a need to develop a transpar-ent IP policy and procedures to “optimise thesocial, environmental and economic benefits aris-

ing from IP” for the indigenous communities; andto revise contractual arrangements so as to allowsome independence and gain access to internaland independent expert advice.

In response to the lack of process and legislativebasis and the ambiguity on beneficiaries and bene-fits in the field of benefit sharing, AIMS has devel-oped a Policy and Procedure on access and benefitsharing (ABS) for biodiscovery. The QueenslandGovernment/AIMS Biotechnology BenefitAgreement provides AIMS with ownership of thesamples, allowing for transfer to third parties andproviding legal certainty; Queensland receivesdocumentation on biodiversity, specimens inmuseums, capacity building and jobs, new oppor-tunities for Queensland industry and 1.5% of themonetary profit.

Domestic and international instruments toprotect biodiscovery

Various domestic and international guidelines andinstruments protecting biodiscovery are nowavailable. The recent CBD Bonn Guidelines, theQueensland Biodiscovery Bill, the NatureConservation Act and the CommonwealthEnvironment Protection and BiodiversityConservation Act and regulations (pending) arebut a few.

In Australia, the Interim Marine and CoastalRegionalisation for Australia established anecosystem regionalisation system to facilitate theselection of MPAs based on limited data. A frame-work to take more detailed information andground truthing (e.g. bioprospecting inventories)has been implemented in this prospect.


“Oceans of opportunity” are now open for AIMS.The Institute is now a co-investor with industries,has obtained sound advice for contracts and IPlicensing, and maximises its participation in leaddiscoveries, with added focus on biodiversityknowledge and supply. Conservation outcomesare maximised and low technology has openednew opportunities for sustainable use.

33

Case Study 14

Oceans of opportunity: Seeking new commercial and sustainable uses of Australia’smarine biodiversity

Elizabeth Evans-Illidge20

20. Australian Institute of Marine Science, PMB 3, Townsville MC Townsville 4810, Queensland, Australia. Email: [email protected]



DISCUSSION

These case studies contain several recurrent prin-ciples, which may prove to be very useful for gov-ernments and decision-makers wanting toimprove their collaboration with customary own-ers throughout the Pacific region. However, eachshould be adapted to the particular cultural, eco-nomic and historic situation of each country.

Principle 1: Harmonising customary andgovernmental decisions

The rules and regulations of customary communi-ties and government authorities should be har-monised, so as to avoid legal pluralism and pro-mote exchange and consultation between delega-tions (Case Study 8). Therefore, customary author-ities should be empowered so as to be fully incor-porated into enforcement processes, through adevolution of power and enforcement capacity tothe local authority level or even to individual vil-lages. This will encourage the participation ofchiefs and other users in decision making (CaseStudy 10). Ideally, traditional chiefs should beincluded in legislatures and state governmentbodies, but the ownership of the negotiation anddesign of the regulatory system should be at thelocal level, wherever possible.

The success of bylaws in Samoa (Case Study 4)demonstrates that effective implementation oflaws in villages requires the engagement of tradi-tional decision-makers. Traditional chiefs shouldalso be encouraged to speak up and assert theirrights in meetings of delegates from both nationaland customary authorities.

Cooperation between national and customaryauthorities should take place in various areas,including: science; management of marineresources; education; and dispute resolution.

Principle 2: Linking scientific and traditionalknowledge

Traditional knowledge and scientific knowledgecan complement each other, and in the processexpand the knowledge base on the status ofmarine resources. This knowledge is necessary forensuring sustainable management of marineresources, both for traditional owners and govern-ment authorities. Traditional knowledge can beused by the scientific community as an indicator,while science should provide simplified explana-tions of results for indigenous communities foradaptive management and learning. Governmentagencies and NGOs can provide initial technicalexpertise and assistance, and then evaluate theeffectiveness of resource management by commu-nities (Case Studies 6 and 9).

Principle 3: Co-management of marineresources for sustainable development

Marine resources can be more effectively managedif communities and governments combine theirknowledge and forces to ensure sustainable con-servation. Co-management can be achieved via acomplex adaptive process, involving communitiesand government agencies, built upon strengthsand overcoming weaknesses of both customaryand governmental bodies. For instance, fisheriesofficers and traditional knowledge holders canwork together to grant permits, and developreserves and management plans as is the case inNew Zealand (Case Study 7). Communitiesshould also be involved in monitoring pro-grammes. However, a better understanding ofcustomary management in socioeconomic terms isnecessary to ensure successful co-management.

Alternatively, support can come from the govern-ment, while enforcement can be achieved by com-munities, as shown in the case study from Palau(Case Study 2). Tabus, buffer zones, banning ofdestructive measures, etc., should then be decidedby traditional chiefs, according to their traditionalknowledge; for instance, seasonal closures for cer-tain fish species can be decided in accordance withtraditional knowledge of spawning periods (CaseStudies 2 and 10).

Principle 4: Dispute resolution: applying the“principle of subsidiarity”

Indigenous conflicts are frequently and tradition-ally resolved by village court systems and pun-ished according to local customs. Enforcement,penalties and conflict resolution mechanisms overcoastal resources should therefore be administeredby customary authorities.

However, problems can occur is the offender is an“outsider” (i.e. someone from another community,or a foreigner) who cannot be punished under localcustomary law, as illustrated in the case studiesfrom Samoa and the Solomon Islands (Case Studies4 and 5). In such a case, village rules should begiven legal support by higher levels of government.

Dispute resolution in Melanesian countries couldfollow the so-called “principle of subsidiarity”used in the European Union law, whereby sub-sidiarity is defined as the principle that decisionsand responsibilities should lie as low down in thesystem as possible. This means that disputesshould be resolved at the most appropriate levelfor each individual case (village courts if theoffender is a local; the formal province or nationalcourt system if the offender is an outsider).

34


Principle 5: Education and awareness for betteruse of indigenous rights

One of the main reasons for the decline of tradi-tional knowledge is the lack of interest by theyoung, who consider that their traditional heritageis outdated. The incorporation of traditionalknowledge into national education is thus vital forindigenous communities (Case Study 1). Thisknowledge should be taught in primary and highschools, as an important part of the educationalcurriculum. Courses can be adapted locally to spe-cific indigenous knowledge and practices andelders used for instruction.

But indigenous communities would also gainfrom being informed of western knowledge, par-ticularly marine biology and marine policy.Capacity building in these two areas is particular-ly needed to ensure sustainable use of resourcesand development of self-sufficient communities.Cross-disciplinary training can thus be used totranslate scientific knowledge into policy, usingtraditional means (Case Study 11).

Finally, there is a need for awareness raisingamongst indigenous communities on existinglegal or governance structures that can be used toprotect their rights (Case Studies 10 and 13).

Principle 6: An international regime for accessand benefit sharing (ABS) and the protection oftraditional knowledge

Traditional knowledge is often abused by outsiderswho appropriate this knowledge to make profitoutside the country of origin. This is known as“biopiracy” and “bioprospecting”. Currently mostPacific developing countries lack ABS measures,because they lack the capacity or the political will tobecome involved in rather complex legal resolutionprocedures. As this is an international issue, themost appropriate resolution it is to establish astrong international regime for ABS and the protec-tion of traditional knowledge. This would containboth binding and non-binding elements (hard andsoft law; Case Studies 12 and 13). An internationalbody of equity should be established for ABS,including a prior informed consent condition toensure a legal certainty in the TK regime.

Principle 7: Respecting indigenous philosophy

All national and international laws should respectthe philosophy and holistic nature of indigenouscultures. Decisions were usually made withincommunities on an “integrated managementbasis”. Therefore, national and international lawsshould be developed in close cooperation withindigenous people, as was the Loyalty IslandsEnvironment Charter (Case Study 3).

The harmonisation of customary and governmentauthorities and laws is conditional upon therecognition of all the sectors (intellectual proper-ty, research and development, biodiversity,access and benefit sharing, etc.) under one singletheme; with all stakeholders included in thedrafting of laws. A major problem of nationallaws in Pacific countries has developed due totheir sectorality, with specific government depart-ments and agencies responsible for individualsectors (e.g. separate departments of Fisheries,Forestry, Development and Conservation).Traditional knowledge and laws are more holistic(Case Study 1), and recognise complex interac-tions and interconnections of entities; the westernapproach tends to divide concepts and entitiesinto rigid sectors.

Conclusions

The survival of traditional knowledge is vital toensure sustainable conservation of resources inMelanesia. Action to protect this knowledge, bothat national and international levels, is urgentlyneeded throughout the Pacific, and action needs tobe taken now to prevent the erosion and, eventual-ly, the loss of this precious knowledge base. Butthis should be approached with caution; not allaspects of traditional knowledge are sustainable,and similarly neither are all the western princi-ples. Therefore, it is recommended that customaryand government institutions attempt to worktogether for the wise use of the best aspects of tra-ditional knowledge, combined with the bestaspects of western knowledge in resource man-agement and the drafting of regulations. The pro-cess itself will act as a catalyst for a sustainablemanagement of resources in Melanesia.

Acknowledgements

The authors are particularly grateful for supportfrom The Christensen Fund for the workshop onTraditional Knowledge and Coastal ResourceConservation for Countries and States of theMelanesian Spearhead Group. Co-sponsors wereIMPAC, The World Bank, International OceansInstitute – Australia (IOI), CRC Reef ResearchCenter, the Institute of Advanced Studies of theUnited Nations University (UNU), South PacificRegional Environment Programme (SPREP), andthe World Conservation Union (IUCN). Fundingwas provided through the Christensen Fund,Australian Local Government Association (ALGA),the Queensland Government State Developmentand the World Bank, with UNU/IAS assisting byfunding their representatives.

35


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