Building Capacity on Protected Areas Law & Governance Governance Principles & Approaches Module 2

Building Capacity on Protected Areas Law & Governance

Governance Principles & Approaches

Module 2



An understanding of PA Governance is growing.

Law is of key relevance to PA Governance.

PA Governance is concerned with authority.

Authority is often founded in law.

Overview of the Seminar

Understanding “Governance”

Relevant International Laws/Policies

Legal Aspects Influencing PA Governance

PA Governance Types

Law & Voluntary PA Governance Types

Objectives

Introduce the origins, form and nature of the concept of “governance” and “PA governance”.

Provide an overview of the contextual and site-specific legal aspects that influence/impact on PA governance.

Explain the IUCN PA Governance Types.

Describe legal tools for recognising/promoting the inclusion of voluntary PA governance types in formal PA systems.

Explain the international and regional instruments and policies of relevance to governance and PA governance.

Outcomes

Understanding of the origins, form and nature of the concept of “governance” and “PA governance”.

Clarity on the contextual and site-specific legal aspects that influence/impact on PA governance.

Knowledge of the IUCN PA Governance Types.

Understanding of legal tools for recognising/promoting theinclusion of voluntary PA governance types in formal PA systems.

Awareness of international and regional instruments and policies of relevance to “governance” and “PA governance”.





PA Governance Types


Understanding Governance …

“Governance”?

Two Different Dimensions

Quality of Governance

Who Makes Decisions

Good Governance Types of Governance

‘The interactions among structures, processesand traditions that determine how power and responsibilities are

exercised, how decisions are taken and how citizens or other stakeholders have their say.’

“Governance”?

rich & multifacteted complex

authority/power

who makes decisions

how decisions made who is accountable

how authority shared

Understanding Governance

‘The interactions among structures, processesand traditions that determine how power and responsibilities are

exercised, how decisions are taken and how citizens or other stakeholders have their say in a protected area.’

“Protected Areas Governance”?

authority/power

who makes decisions

how decisions made who is accountable

how authority shared

de iure/in law de facto/in practice

Understanding PA Governance …

five key influential factors

key actors

instruments/tools

levels of decision-making

powers/authority

governmental non-governmental

type of decisions


types of decisions

Establishing the PA Determining the Objectives, Goals and Management Objectives Appointing the Management Authority for the PA Establishing a Zoning System for the Area Formulating/Sanctioning the Management Plan and Rules Determining Access, Use and Developments Rights in the PA Determining Financing Arrangements for the PA Establishing how to Monitor, Evaluate and Adjust Management

Arrangements Establishing how the Rule of Law and International Commitments

are Respected and Enforced in and around the PA.


types of decisions

what the law does

who is empowered to make/take the decision

what is the decision-making process

what is the outcome/status of the decision

what types of decisions can be made/taken

how is decision-maker held accountable


key actors

Government Actors PA managers Local elected/appointed authorities National/sub-national authorities CBD national focal points Legislators Law enforcement agencies Judiciary Other sectoral govt authorities

Natural resources agencies Development agencies

Formally recognised traditional leadership structures

Non-Government Actors Landowners/rights holders Local land/resource managers Resident indigenous peoples and

local communities Displaced/migrant communities NGOs/CBOs Research, education & training

institutions Faith organisations Commercial entities with business

interests Tourism & development Resource extraction


key actors

what the law does

allows for participation of diverse actors

identifies relevant actors

sets out actors’ rights & responsilibilities

prescribes actors’ powers and functions

provides accountability mechanisms


instruments/tools

International law, conventions, standards & best practice National laws, policies, strategies, regulations, agreements & plans Formal management plans and regulations Customary rules, practices & plans Technical and other forms of advice Financial/social incentives and disincentives Financial investments Investments of time/labour Provision of information/resources/salaries and/or support Education, research and/or training initiatives Monitoring, reporting, compliance and/or enforcement initiatives


instruments/tools

what the law does

sets criteria for the use of the tools

creates the tools

determines how the tools should be used

prescribes who can use the tools


power/authority

Planning powers Regulatory powers Revenue-generating powers Fundraising powers Spending powers Hiring powers Convening powers Power to enter into agreements Monitoring powers Compliance powers Enforcement powers


power/authorityresp

on

sibilities

what the law does

identifies who can exercise power

source of powers

prescribes how power should be exercised

provides for sharing of power

outlines consequences of non-compliance



multilateral/regional

bilateral

sub-national

national

global

PA system

PA sub-units

PA



sets out which level should make decision

provides for cooperation between levels

enables allocation of decision-making across levels

what the law does

prescribes procedures for resolving disputes


key actors

instruments


powers/authority

type of decisions

five key influential factors w

hat th

e law d

oes


four general lessons

PA governance is the result of processes of developing and exercising authority over time.

Understanding PA governance involves clarifying where rights, responsibilities and accountabilities lie

A dynamic and mutually supportive balance among multiple actors and institutions should be sought through powers and instruments exercised at different levels

Governance systems should be dependable but also adaptable, capable of responding to the ever-changing needs of in-situ conservation.


a continuum of options

state-owned

state-controlled

shared

private

indigenous & local

Understanding PA Governance

Quality of Governance

“Good Governance”?

legitimacy & voice

direction

accountability

fairness & rights

performance

public participation

predictability

transparency

equity

justice

PA Pratitioner Perspective PA Lawyer Perspective




Legal Aspects & PA Governance

site-specificcontextual

international

regional

constitutional

ownership

management

access/use/benefits


International Context Instruments (conventions, protocols, guidelines & decisions) Institutions

Regional Context Instruments (agreements) Institutions

Constitutional Issues Substantive Rights (enviro rights, property rights, customary rights) Procedural Rights (just administrative action, access to information, locus

standi) Legislative and Administrative Competence (making laws, administering laws,

cooperative governance)

contextual legal aspects


site specific legal factors

land tenure management

single

form

government

individual

community

full title

partial title

basis

statute

contract

multiple

custom

who

how

single

government

individual

community

basis

statute

contract

multiple

custom

who

how

form

co-mgt

t-bound mgt

joint mgt

access/use/benefits

single

government

individual

community

basis

statute

contract

multiple

custom

who

how

form

lease

concession

permit

joint venture





Relevant Int’al Law & Policy …e

me

rgin

g P

A g

ov

ern

an

ce

dis

co

urs

e 2003

2008

2010

2004

IUCN World Parks Congress

CBD COP 9

CBD COP 10

2012 IUCN World Conservation Congress

2013 IUCN Governance of PA Guidelines

IUCN World Conservation Congress

IUCN Guidelines on Indigenous & Local Communities & PAs

2011 IUCN Guidelines for PA Legislation

IUCN Guidelines for Applying PA Management Categories

CBD COP 7 PoWPA

Aichi Targets

CBD COP 11

2014 IUCN World Parks Congress

Relevant Int’al Law & Policy

other supportive international law

and policy

diverse forms of PA governance

World Heritage Convention

Ramsar Convention

ILO Convention 169

UN Declaration on the Rights of Indigenous Peoples

environment human rights





PA Governance Types

2013

Management Categories

Governance Types

Categories of Protected Areas

Governance Types

IUCN Governance Types …

nationalsub-national

govt-delegated

transboundary

collaborative

joint

individuals

corporations

NGOs

indigenous peoples

local communities

IUCN Governance Types

basis = type of authority/responsibility

may be multiple governance types within one PA

governance type ≠ governance quality

form of governance not necessarily related to ownership

legal mechanisms vs categories

determination may be complex

gen

eral

issu

es

Governance by Government Nature & Form

Classic approach State-owned/controlled Formally recognised PAs

Nature of Sub-Categories Federal/National Ministry/Agency in charge Sub-National Ministry/Agency in charge Government-delegated management

Special Legal Considerations Generally formally legally recognised in PA law PA law regulates

Declaration Management regime Institutional arrangements Regulation of activities and development Compliance and enforcement

Shared Governance Nature & Form

Sharing of authority across several actors Sharing processes can be formal & informal Ranges from joint decision-making to consultation

Nature of Sub-Categories Transboundary governance Collaborative governance Joint governance

Special Legal Considerations Form of “sharing” Sharing mechanisms Institutions Decision-making procedures Capacity/Support Flexibility

Private Governance Nature & Form

Voluntary conservation initiatives Privately owned/controlled May be recognised as part of formal PA system

Nature of Sub-Categories Individuals Corporations Non-government organisations

Special Legal Considerations Legal recognition Definition Forms Securing land Management authority and accountability Incentives

Governance by Indigenous Peoples & Local Communities

Nature & Form Owned/controlled by indigenous peoples and/or local communities May be recognised as part of formal PA system

Nature of Sub-Categories Indigenous peoples’ conserved territories and areas Community conserved areas and territories

Special Legal Considerations Constitutional issues Blending customary law and statute Communal tenure and rights Customary institutions Legal recognition, definition, forms, securing land/resource rights,

management authority and accountability, access, use and benefits sharing, incentives

ICCAs

IUCN Governance Types

1990 2010

Governance Types & the Law

PA governance types an essential planning tool

legal mechanisms faciliate governance types

importance of accountability mechanisms

law an important role in giving effect to PA governance types

role of the law as an enabler

provision for flexibility

leg

al is

sues





PA Governance Types


Law & Voluntary Governance Types

ICCAsprivate conserved areas

a diversity of forms

a diversity of options

incorporate into formal PA system

recognise outside of the formal PA system

do not incorporate or formally recognise

“Voluntary”

Voluntarily Conserved Areas …

granting them formal recognition

special legal considerations

Voluntary process Formal definitions, objectives and standards Tenure/rights issues Governance types Management categories Institutions Good governance principles

Public participation Accountability Equitable benefit sharing & incentives

Voluntarily Conserved Areas…

special legal tools

special legal considerations

agreements with government

easements/covenants/servitudes

land trusts

formalities

incentives

compensation

content

• Description of parties• Description of land• Objective of agreement• Recordal of Management Category• Obligations and rights of landowner

• Access/use rights• Land-use restrictions

• Obligations and rights of government• Access rights• Management obligations

• Governance arrangements• Governance type• Management activities• Financing and Support

• Compensation• Duration• Termination/Breach

• Key Principles• Types/objective of agreements• Authority to negotiate agreements• Qualification criteria

• ‘conservation value’• ‘protected area’• ‘management objectives’• ‘management category’

• Qualifying parties• Content• Negotiation process• Public participation• Approval process• Registration • Formal designation• Management authority• Monitoring & reporting

dual agreements

incorporation

co-management

Agreements with Government


Easement/Servitude/Covenant

terminology

nature

duration

content

benefits

agreement title deed

fixed perpetual

landowner government

positive negative


Land Trusts

natureform a “land trust”

role of NGOs

raise resourcesdecide on role

roleowner & manager

compliance monitorland acquirer

easement holder

Voluntarily Conserved Areas





PA Governance Types


Objectives

Introduce the origins, form and nature of the concept of “governance” and “PA governance”.

Provide an overview of the contextual and site-specific legal aspects that influence/impact on PA governance.

Explain the IUCN PA Governance Typologies.

Describe legal tools for recognising/promoting the inclusion of voluntary PA governance types in formal PA systems.

Explain the international and regional instruments and policies of relevance to governance and PA governance.

Outcomes

Understanding of the origins, form and nature of the concept of “governance” and “PA governance”.

Clarity on the contextual and site-specific legal factors that influence/impact on PA governance.

Knowledge of the IUCN PA Governance Typologies.

Awareness of international and regional instruments and policies of relevance to governance and PA governance.

Understanding of legal tools for recognising/promoting theinclusion of voluntary PA governance types in formal PA systems.

Details on PA Governance

Core Texts

15 Case Studies 5 Case Studies


Module 2


SeminarPresentation

Exercises

knowledge transfer skills development

Documents

Building Capacity on Protected Areas Law & Governance Governance Principles & Approaches Module 2