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: donna.craig@uws.edu.au
Acknowledgement: Thanks to Robyn
Taylor for assisting me with this power
point presentation
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
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 communitybased biodiversity governance in Melanesia
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
Melanesian Context
Vatthe Conservation Area,
Island of Espiritu Santo,Vanuatu
Source: http://www.positiveearth.org/bungalows/slideshow/vatthe1.htm
Watershed Forest,
Pohnpei, Federated States of Micronesia
Talaesa District
West New Britain, Papua New Guinea
Source:
http://www.coralcoe.org.au/news_stories/marineparks/imagegallery.html
Cross-regional Comparison
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?
Terminology
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
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
Terminology
Collaborative Management (IUCN)
Synonyms:
Non Synonyms:
Co-management
Community-based Management
(CBEM)
Joint management
Participatory management
Multi-stakeholder Management
Source: (Borrini-Feyerabend,G, collaborative management of protected areas:
tailoring the approach to the context (gland:iucn,1996) pg 12)
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
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
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
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
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
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
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)
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
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
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)
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