SURVEY REGARDING NATIONAL LEGAL AND POLICY MEASURES
RELATED TO INDIGENOUS AND COMMUNITY CONSERVED AREAS
As you are aware, indigenous peoples and local communities across the world have
traditionally conserved ecosystems and biodiversity, or have taken up recent
initiatives to do so. These initiatives are known by various names, such as
indigenous protected areas, biocultural heritage sites, locally managed marine areas,
and many others. Collectively and for the sake of convenience, we are calling them
Indigenous and Community Conserved Areas (ICCAs).
The World Parks Congress (2003) and subsequently the 7th Conference of Parties of
the Convention on Biological Diversity (2004) endorsed the need to recognise and
support ICCAs. They have thus emerged as a powerful new area of study/action, in
which the global conservation community could support indigenous peoples and
local communities who have taken conservation initiatives.
For discussion, case studies, and analysis of ICCAs, pl. see http://www.iccaforum.org.
The survey below is part of an effort by TILCEPA to put together a global picture of the
current state of national legislation and policy, regarding ICCAs. Surveys already carried
out can be seen on
http://www.cenesta.net/icca/index.php?option=com_content&view=article&id=84&Itemi
d=100
I. Does national or sub-national law or policy recognize terrestrial, riparian or
marine Indigenous and Community Conserved Areas (ICCAs)?
ICCAs (not with that specific title, but as defined by IUCN in terms of areas
conserved by indigenous peoples and local communities) are recognized under
Papua New Guinea’s national and sub-national legislation. Various legislations
allow for the establishment of conservation areas by individuals and communities,
as described in answers to the questions below.
II. Does the country recognize ICCAs as a part of the PA network system?
The establishment of a comprehensive Protected Area system in Papua New Guinea
is made difficult by the limited public land available and a land tenure system based
on customary land ownership. Land ownership falls under two main categories.
Alienated Lands are lands that were acquired from customary landowners and are
now owned and administered by the State. They represent only 3% of PNG’s total
land mass and are mostly occupied by towns and urban centers. Customary Lands
are those owned by the country’s indigenous people and whose ownership rights
are regulated by customs. Traditionally, the customary land holding unit is the Clan
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and members of the clan acquire ownership rights through patrilineal or matrilineal
inheritance. Customary lands constitute 97% of Papua New Guinea’s territory and
there is currently no written law governing and regulating their use.
This land tenure system ensures that the customary owners are involved in decisions
regarding the land’s resources and that they benefit from their exploitation. The
system supports the largely subsistence non-cash economy that sustains 85% of
Papua New Guineans, even if a vast part of the customary lands, particularly in the
inaccessible inter-land, is unutilized. Under a system of lease and lease-back
agreements the land owning communities also obtain benefits that may include a
portion of the resource royalties – for instance for timber, logging, mining and
petroleum-related activities – or development of local infrastructures such as roads,
schools, and health clinics, even though such agreements are not always adhered to,
or completed to the satisfaction of the landowners. While this system of land
ownership provides financial and material gain to communites, it is a significant
major constraint to integrated land use management and planning,and economic
development.
The difficulties of acquiring land have precluded the development of a protected
area system as it would be recognized in other countries. Papua New Guinea does
not have dedicated protected areas legislation and its protected areas take different
forms that often do not fit the IUCN classification. To date there are 52 nationally
designated protected areas in Papua New Guinea, covering approximately 2.5 % of the
country’s territory. Indigenous and Community Conserved Areas can indeed
become part of the protected areas system, although they are not officially
recognized under such name. Of the 52 PAs, 30 are labeled “Wildlife Management
Areas” (WMA) and five “Wildlife Sanctuaries”, both of which fall under Category VI
of the IUCN classification, which includes areas managed to conserve ecosystems
and habitats, together with associated cultural values and traditional natural
resource management systems. In order to be established, those protected areas must
be nominated to the Department of Environment and Conservation (DEC). WMAs
are put forward at the initiative of the customary landowners, while Wildlife
Sanctuaries are first suggested by DEC and then officially nominated with the
support of those owning the communal lands involved. Once an area has been
nominated, the customary landowners set the management terms and conditions,
although the community organizations set up to run these protected areas do not
always operate effectively.
III. If ICCAs are not legally recognized, are there general policies/laws that
recognize indigenous/community territories or rights to areas or natural resources,
under which such communities can conserve their own sites?
Yes. Although the PNG Constitution does not make any reference to indigenous or
community territories or rights to natural resources, it provides the constitutional
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basis for the legislative framework that has been developed to manage the nation’s
environment. The Preamble’s Goal 4 (Natural Resources and Environment) states
that PNG’s natural resources and environment are “to be conserved and used for the
collective benefit… and to be replenished for the benefit of future generations” and calls for
all necessary steps to be taken to give it adequate protection. Goal 5 (Papua New
Guinean Ways) calls for respect for and appreciation for the diversity of PNG’s
people – speaking some 850 languages – and the “traditional ways of life and culture…
as well as for a willingness to apply these ways dynamically and creatively”, and for
“traditional villages and communities to remain as viable units of Papua New Guinean
society.” The Constitution also recognizes custom – a fundamental pillar of PNG’s
society – as long as it is not inconsistent with a Constitutional Law or a statute, or
repugnant to the general principles of humanity.
The primary piece of legislation pertaining to the management of natural resources
is the Environment Act (2000, 2002) which replaced three earlier laws1. Land
conservation, however, is not included in the Environment Act, but managed under
three separate pieces of legislation: 1) the National Parks Act (1982); 2) the Fauna
Protection and Control Act (1974, 1982); and 3) the Conservation Areas Act (1980, 1992).
National Parks Act (1982)
The National Parks Act allows the establishment of reserves, parks and gardens,
but only on State-owned land, which is extremely limited. Currently, eight the
official national PAs are designated as National Parks, but face little or no
management due to severe under-funding. While the national government has
the power to acquire land for public purposes, due to the land tenure system it
has used it in rare occasions to avoid disputes and conflicts with the traditional
landowners.
Fauna Protection and Control Act (1974, 1982) and Conservation Areas Act
(1980, 1992)
Communities are granted the right to conserve their own sites under the Fauna
Protection & Control Act and the Conservation Areas Act (which however is not
yet operational). Those two national laws allow the establishment of protected
areas, sanctuaries, wildlife management areas and conservation areas on
customary-held lands as long as local clans, communities and individuals agree
to turn communal lands into conservation set-asides.
Thirty of the current fifty-two official protected areas in PNG are Wildlife
Management Areas (WMA), one of the simplest forms of PAs and thus a
popular option with communities and the conservation organizations working
with them. While the main aim of a WMA is to protect wildlife and its habitat,
clans and individuals retain ownership of the land, can continue to live in it,
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The Environment Planning Act (1978), the Environmental Contaminant Act (1978), and the Water Resource Management
Act (1982).
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and are given the rights to manage the land to protect the wildlife from
outsiders. In exchange, all landowners must agree on the boundaries of the
WMA, decide what the WMA will protected, establish rules and fines, agree on
a management plan, and elect a committee to manage the area. The request is
then submitted to the national Department for Environment and Conservation.
If accepted, the WMA is then recognized under PNG law.
Nevertheless, land tenure, bureaucracy, requirements for protracted
consultation with and among landowners, and the often considerable distance –
both geographical and social – between local communities and the national
government mean that few conservation/PAs have been established to date.
Organic Law on Provincial Governments and Local-level Governments (1995)
The opportunity to better regulate the needs of local communities came in 1995,
when the Parliament passed the Organic Law on Provincial Governments and
Local-level Governments. Until then, the National Government was responsible
for implementing, monitoring and enforcing the country’s laws. With the
Organic Law, provinces and local level governments have been given the
responsibility for implementing parts of national legislations as well as some
legislative power in a variety of matters, including the local environment,
fisheries, land, forestry, natural resources, parks, reserves, gardens, and the
protection of traditional sacred sites.
However, due to limited capacity and budget, provincial and local level
governments struggle to take on the responsibilities devolved to them. They
still require assistance from the national government to pass appropriate laws
and undertake monitoring and management functions. As a result, few
provinces and districts have taken advantage of the Organic Law to regulate
local conservation activities. One exception is the Almami Local Level
Government, which in 2003 passed the Almami Environment and Conservation
Law.
Almami Environment and Conservation Law (2003)
In 1998, the Josephstaal logging concession covered over 150,000 hectares of
customary lands belonging to over 400 clans in the Adelbert Mountain range,
including the Almami Local Level Government ward (LLG) in PNG’s Madang
province2. However, in 2001 the local communities challenged the concession’s
benefit-sharing conditions and legality of arrangements in a national court. The
Court ruled that clans had not been given full and informed consent on the
concession and that the logging company had used coercion and falsified documents
to secure their title. The concession rights were lifted.
Wishing to take control of the way in which their forest was being used and
managed, the Almami Local Level Government (LLG), in collaboration with
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conservation organizations, prepared a new legislation based on the 1995 Organic
Law to formally recognize and manage local conservation areas. Approved in 2003,
the Almami Environment and Conservation Law includes provisions for Land Use
Management Plans (LUMPs) and for Agreements between customary landowners
and the LLG in which clans set aside land for conservation purposes.
To establish the conservation areas, communities undertook a lengthy and inclusive
process of delineating boundaries and zones between the clans and landowners
involved, while the LLG helped resolve local conflicts and formally recognized
territories. Zones within clan boundaries were then negotiated with different user
groups, families and individuals, to ensure an even distribution of access to
resources and land for production, cultivation, and protection. As a result, forest
areas are now secured under LUMPs. Those Plans – which typically last between 5
and 10 years – are effective means for land holders to protect and manage
biodiversity and key ecosystem services in their customary land at a scale relevant to
the communities. They guarantee food security and environmental sustainability
through restricting impacts on key services (such as river catchments) while
balancing the land available for food cultivation against land converted for cashcropping and production (such as cocoa.)
To date, the program has supported local-level management planning for
Community Conservation Areas in 21 Almami traditional clan territories, with five
more under development, and is now starting to mainstream this process into the
wider Bogia and other districts. The signing of formal Agreements has allowed
communities to get support for managing their areas, while the LLG has become
more actively involved in natural resource management, interacting with
communities and understanding their needs. This in turn has been incorporated into
a Provincial Forest Bill (to be enacted in 2010) that provides a blueprint and policy
guidance for communities elsewhere in Madang Province.
2.
Papua New Guinea has 20 province-level divisions: 18 provinces, the Autonomous Region of Bougainville and
the National Capital District. Each province is divided into one or more districts, which in turn are divided into
one or more Local Level Government (LLG) areas. The Madang Province – where the Adelbert Mountain range
is located – has six districts, including the Bogia District, which in turn is divided in three LLGs: Almami, Yabu
and Yawar.
IV. Overall Comments
None
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Prepared by : Susi Menazza, The Nature Conservancy, smenazza@tnc.org
April 2010
References:
Department of Land and Physical Planning, Papua New Guinea
http://www.lands.gov.pg/
European Union, Country Environmental Profile, Papua New Guinea, Final Report,
February 2006
Flip van Helden, Lessons Learned in Community-Based Conservation in Papua New
Guinea, July 2005
IUCN, edited by Nigel Dudley, Guidelines for Applying Protected Area Management
Categories
Secretariat of the Pacific Regional Environment Program (SPREP)
http://www.sprep.org/legal/national.htm
World Database on Protected Areas 2009 www.wdpa.org
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