Building Capacity on Protected Areas Law & Governance Regulation, EIA, C&E & Financing Module 6

Building Capacity on Protected Areas Law & Governance

Regulation, EIA, C&E & Financing

Module 6



PA laws must provide for the differential regulation of activities in the PA.

PA laws should include provision for impact assessment procedures to inform decision-making relating to activities

undertaken in the PA.

PA laws should include a range of measures to promote compliance with and the enforcement of the PA law.

PA laws/associated laws should include provisions aimed at ensuring the sustainable financing of the PA.

Overview of the Seminar

Regulated Activities

Compliance & Enforcement

Impact Assessment

Financing Tools

Objectives

Introduce the different legal tools for regulating activities within and adjacent to PAs.

Clarify the range of legal tools for promoting compliance with PA laws.

Examine the range of options for financing PAs.

Identify the range of authorities, & their different powers & functions, involved in regulating activities, promoting

compliance & enforcement and financing PAs.

Explain the different legal tools for enforcing PA laws.

Outcomes

Understanding of the different legal tools for regulating activities within and adjacent to PAs.

Clarity on the range of legal tools for promoting compliance with and the enforcement of PA laws.

Knowledge of range of authorities, & their different powers & functions, involved in regulating activities, promoting


An ability to formulate and critical review the above types of provisions in PA laws.

Awareness of the different legal options for financing PAs.




Impact Assessment

Financing Tools

Regulated Activities…

general principles

permitted activities

prohibited activities

authorised activities

emergency incidents


general principles

conceptual approaches

list permitted activities list prohibited activities

international obligations

conservation objectives

PA category/types

management plan

authorised officer exemptions

list authorised activities



listing activities

‘catch all’ provision

precautionary principle

exceptions

‘exceptions’

procedure

who

Regulated Activities…p

roh

ibit

ed a

ctiv

itie

s…• Killing, taking or disturbing any endangered, threatened or otherwise legally protected

native species, whether marine or terrestrial.• Disturbing or damaging the critical habitat of any endangered, threatened or otherwise

legally protected native species, including removing the nest or contents of the nest of a species.

• Destroying or damaging a site serving important ecosystem functions that has been designated/identified for special protection (eg, a protected water catchment area).

• Removing, damaging, demolishing or excavating any part of a cultural site, natural monument, historic shipwreck or other significant cultural site inside a protected area.

• Entering any part of an area that is closed to that user group or individual.• Interfering with, damaging, removing or replacing any official notices or signs.• Introducing any IAS or exotic species.• Using explosives or poisons.• Using or having in possession any prohibited weapon, including any firearm/spear-fishing

gun.• Discharging toxic or hazardous substances, including but not limited to petroleum or

substances made from petroleum, and household cleaners. • Landing an aircraft or driving or otherwise using a motorised vehicle in areas where doing

so is prohibited, whether on land or water.• Flying an aircraft in prohibited airspace above a protected area. • Disposing of or dumping sewage, solid waste, refuse, rubbish or litter anywhere other than

in designated containers or areas. • Damaging or defacing any physical structures inside a protected area.• Conducting any mining exploration or exploitation activities within or directly affecting a

protected area, whether terrestrial or marine.



permitting authority

permitting procedure

listing activities

forms of permission

appeal

decision-making prerequisites

monitoring/review

Regulated Activities…p

erm

itte

d a

ctiv

itie

s…• Reside on, occupy or cultivate any land or plant, or otherwise grow or harvest any crop,

whether on land or sea.• Access, explore or harvest any genetic resources.• Use or manipulate any waters within a protected area.• Take, collect, remove or alter any flora or fauna (with the exception of endangered,

threatened or otherwise legally protected flora or fauna, where such actions should be prohibited).

• Hunting or fishing by specific communities or groups for subsistence purposes.• Hunt or fish for sport or recreation.• Construct or destroy any building or other structure, whether on land or sea. • Undertake scientific research at the student or professional level, whether for public, private

or academic purposes.• Carry on any still photography or make any film or video recording for sale or commercial

use.• Operate a business or solicit, sell or attempt to sell any goods or services, including tour

companies and tourist businesses.• Distribute pamphlets, leaflets, announcements or other information of a commercial or

community nature.• Land an aircraft on land or sea, or fly in protected airspace above a protected area.• Engage in any charitable or fund-raising activity.• Organize or arrange a special public event (such as a concert).• Organize or arrange a private event (such as a wedding) where the gathering is over a

specified number of people (for example, 25 persons, depending on the capacity of the site).• Remove or excavate any earth or beach sand.



form

scope

whole PA particular zone

notification

positive formulations negative formulations

legal home

PA law regulations

internal rules

Regulated Activities…au

tho

rise

d a

ctiv

itie

s…• Allowing entry into the protected area only through designated entry points or entrances,

and upon payment of any entrance fees that may apply.• Allowing public access to the protected area during designated hours of operation. • Specifying where certain uses may be subject to conditions or special arrangements.• Allowing vehicles of a specified type (automobiles, motorcycles) on designated roads, and

parking areas designated for such vehicles. • Allowing picnicking, camping, hiking, waking or biking only in areas designated for that

purpose.• Allowing skiing, swimming, recreational fishing or the mooring of recreational boats up to a

certain size only in designated areas, posted with notices or indicated on maps.• Allowing small pets but only on a leash and in designated areas reside on, occupy or

cultivate any land or plant, or otherwise grow or harvest any crop, whether on land or sea.

• Prohibition on taking domestic animals into the protected area. • Prohibition on allowing domestic animals to stray into the protected area.• Prohibition on bringing any plants or plant material into the protected area.• Prohibition on setting fires outside of designated areas.• Prohibition on the disposal of any litter or other waste inside the protected area, with a

requirement that all items brought into the area must be taken out of the protected area.• Alternatively, a prohibition on the disposal of litter or other waste anywhere other than in

designated containers.• Prohibition on using firearms, except in accordance with a written permit.• Prohibition on commercial filming, photography, video recording, solicitation, dissemination

of materials, commerce or gatherings over a certain size, except in accordance with a permit.

positive

negative


emergency incidents

nature of incidents

institutions

coordination

planning

activities


general principles




emergency incidents



Impact Assessment

Enviro & Social Assessment…

form/nature

legal home

EIA law

PA law

exemptions

no EIA law

list of activities

general discretion

guidelines

scope

is a EIA law

public participation

restate requirement

consultation

consent

Enviro & Social Assessment

process

mandatory criteria

what to include in a PA law

role of PA authority




Impact Assessment


the theory

powers & duties

authorised officers

offences & penalties

22

‘Sustainable development depends on good governance, good governance depends on the rule of law, and the rule of law depends upon effective compliance. None are sufficient alone, but together they form an indivisible force that is essential for survival and for sustainable development’ sustainable

development

good governance

rule of law

C & E

The Theory…

23

The Theory…

‘comply’ ‘to abide by a request or demand’

‘compliance’ ‘state where all members of the

legal community comply to legal standards and requirements’

‘enforcement’ ‘to compel compliance with’ ‘to compel obedience to’

definitions

24

The Theory…

wise advice

‘20 percent of the regulated population will automatically comply with any regulation, 5 percent will attempt to evade it, and the remaining 75 percent will comply as long as they think that the 5 percent will be caught and punished.’

‘states secure the compliance of their people when they strike a policy bargain that the citizenry perceives as just.’

‘what reason demands is voluntary cooperation in a coercive system.’

25

The Theory…

rationalist model

rational citizens

rational decision

prescribe sanctions

cost of compliance

cost of non-compliance

will I get caught?

size of sanction?

design sanctions to act as deterrent

26

The Theory…

normative model

good citizens

will comply unless is

objective reason why cannot

prescribe sanctions

no knowledge no resources

provide assistance to comply

27

The Theory…

approaches

command & control

incentive-based

self-regulation

co-regulation

state

citizen

28

The Theory

identify the problem & develop the policy

command & control incentive-based

develop the law

compliance promotion, education & awareness

compliance monitoring

enforcement

design C&E tools

create C&E institutions

on-site off-site

civil penaltiescriminal penalties

developing a C&E regime

co-regulation self regulation

29

Compliance & Enforcement…

the theory

authorised officers

30

Authorised Officers

appointment

definition

process

training

identification

delegation/assignment

state actors non-state actors

31

Authorised Officers…

public service status

cooperation agreements

why

to whom

‘honorary’ officers

32


the theory

powers & duties

authorised officers

33

Powers & Duties

police powers

stop

detain

enter

search

seize

other powers

arrest

education

emergency action

firefighting

guarding

maintenance

administration

34

police powers

allocation

thresholds

limited liability

other powers

outreach

collaboration

co-regulation

full limited

evidence

reasonable belief

Powers & Duties

35


the theory

powers & duties

authorised officers

offences & penalties

36

Offences & Penalties…

nature

broader legal context

types of penalties

criminal civil

procedural issues

proof appeal

procedure

37


criminal penalties

clarity

international standards

deterrence vs equity

updating penalties

nature of penalties…

38


criminal penalties…

nature of penalties…

subsequent offences

cumulative fines

confiscation/forfeiture

spot fines

permit cancellation

39


civil penalties

nature

specific civil penalties

third party lawsuits

restoration orders

community service

directives

40


proof & evidence

burden of proof

strict liability

corporate liability

what is the standard?

who bears it?

reversing the burden

41

Offences & Penalties

criminal proceedings

obstructing officers

warrants

arrested persons

seizure of items

forfeiture of items

disposal of items

42




Impact Assessment

Financing Tools

Financing Tools

external sources

incentives

environmental funds

market-based charges

PES

traditional sources

other sources

Financing…

external sources

nature/form

fundraising activities

accept donations

establish fund

role of PA law

administer fund

Financing…

environmental funds

nature/form

establish fund

role of PA law

administer fund

endowment fund

sinking fund

revolving fund

Financing…

incentives

nature/form

create mechanisms

create incentives

role of PA law

economic

other

prescribe safeguards

Financing…

market-based charges

nature/form

create mechanism

administration

role of PA law

tourism charges

extraction fees

Financing…

PES

nature/form

create mechanisms

prescribe safeguards

role of PA law

create institutions




Impact Assessment

Financing Tools

Objectives

Introduce the different legal tools for regulating activities within and adjacent to PAs.

Clarify the range of legal tools for promoting compliance with PA laws.

Examine the range of options for financing PAs.

Identify the range of authorities, & their different powers & functions, involved in regulating activities, promoting


Explain the different legal tools for enforcing PA laws.

Outcomes

Understanding of the different legal tools for regulating activities within and adjacent to PAs.

Clarity on the range of legal tools for promoting compliance with and the enforcement of PA laws.

Knowledge of range of authorities, & their different powers & functions, involved in regulating activities, promoting


An ability to formulate and critical review the above types of provisions in PA laws.

Awareness of the different legal options for financing PAs.

Core Texts

15 Case Studies 5 Case Studies


Module 6


SeminarPresentation

Exercises

knowledge transfer skills development

Documents

Building Capacity on Protected Areas Law & Governance Regulation, EIA, C&E & Financing Module 6