Scientific evidence of ongoing and even accelerating biodiversity loss sends alarming signals about the conservation of the world's natural heritage. The IUCN Red List, for example, currently assesses 16,928 species as threatened with extinction.1 It is estimated that species have been disappearing at 50–100 times the natural rate, and this is predicted to rise dramatically.2 While the loss of individual animal and plant species catches our attention, the issue of biodiversity loss is about more than that. “Biological diversity” means the variability among living organisms from all sources including, inter alia, terrestrial, marine, and other aquatic ecosystems and the ecological complexes of which they are part; this includes the diversity within species, between species, and of ecosystems.3 Against this background, the fragmentation, degradation, and outright loss of forests, wetlands, coral reefs, and other ecosystems has to be taken seriously as the gravest threat to biological diversity.4 The Millennium Ecosystem Assessment (MA) reported that 60 per cent of the world's ecosystem services are being degraded or used unsustainably, which indicates the current state of emergency.5
A number of legal and policy instruments are aimed at conserving biodiversity and ecosystem services, including the designation of protected areas. Today, noted the MA, protected areas are “the cornerstones of virtually all national and international conservation strategies, set aside to maintain functioning natural ecosystems, to act as refuges for species and to maintain ecological processes that cannot survive in most intensely managed landscapes and seascapes”.6 However, protected areas do not only support the conservation of the environment in general and biodiversity in particular. As the MA explains, biodiversity is “not only” the foundation of ecosystems and their services, but as such also an essential factor of human well-being.7 More concretely, the findings of the Millennium Ecosystem Assessment support, with high certainty, that biodiversity loss and deteriorating ecosystem services contribute – directly or indirectly – to worsening health, higher food insecurity, increasing vulnerability, lower material wealth, worsening social relations, and less freedom for choice and action.8 Thus the establishment of protected areas can have direct human benefits, since they support the future provision of different ecosystem goods and services (e.g., different goods such as food, water, genetic resources, and timber or non-timber products; and different services such as the regulation of air quality, maintenance of climate systems, reducing soil erosion, opportunities for recreation and education in national parks and wilderness areas, etc.) that are crucial in order to secure people's rights.
At the same time, the designation of protected areas can also have disadvantages for certain groups of people and their rights with respect to the protected site in general and its natural resources in particular. The concrete impact (negative or positive) depends on the individual case and the different management approaches that can be taken. Although few if any people will be allowed to enter highly protected sites such as wilderness reserves, in parks – where the emphasis is on conservation– visitors are more welcome; in other less restrictive areas, conservation will even be integrated into human lifestyles or will take place alongside limited sustainable resource extraction. As a consequence, some protected areas might ban activities like food collecting, hunting, or extraction of natural resources, while in other protected areas such activities may be an accepted and even a necessary part of management.9
Thus, there can be strong linkages between halting the ongoing loss of biodiversity through protected areas, improving human livelihoods, and ensuring people's rights (e.g., the right to land and traditional use of natural resource as well as the right to a healthy environment).
Two schools of thought underpin the importance of nature conservation. The first is that areas should be protected because they may harbour species that are useful for humans. This is the instrumental view, in which the value of non-human life and the value of habitats and natural features are rated according to their usefulness to humans as, for instance, food, medicine, recreation, or spiritual practices. This view is based on the idea of human dominion or ownership of the planet and is closely associated with Judeo-Christian beliefs in which God created man and gave him “dominion over the fish of the sea, and over the fowl of the air, and over every living thing that moveth on the earth”.10 This school of thought can be represented as a pyramid with humans at the top.
The second school is that humans are part of an interconnected web of nature not separate from or outside of nature. This view is shared by various peoples and religions and is succinctly stated in the speech attributed to Chief Seattle in the nineteenth century: “This we know: the earth does not belong to man: man belongs to the earth... All things are connected like the blood which unites one family...Whatever befalls the earth, befalls the sons of the earth. Man did not weave the web of life; he is merely a strand in it. Whatever he does to the web, he does to himself.”11 In this view, Earth is shared with non-human life that also has a right to be here.
Both schools of thought have influenced not only different approaches to nature conservation in general but also the development of various types or models of protected areas. In this context, it is interesting to have a closer look at three very different cases that indicate the existing broad spectrum of protected areas models and their management goals. In the case of the Yellowstone National Park as created in the United States during the nineteenth century, an area is identified as wilderness and set aside for humans to visit and enjoy but not to inhabit. The area is managed by the State for protection and for certain identified uses, irrespective of the rights and interests of citizens. Traditional owners, occupiers, and users of the area are regarded as destructive or as spoiling the scenic and recreational value of the protected area. In Yellowstone itself, the native Indians were ejected from the park and their cultural and spiritual values ignored so that the “wilderness” could be preserved. The Yellowstone model, which was originally followed in Australia, South America, and many African States, clearly demonstrates the potential conflicts between people's rights and a protected areas management goal that requires no or little human influence on a precious natural site.
In contrast, other protected areas models allow local people to be included more. Depending on the particular situation, such inclusion can be achieved in different ways and to different degrees: by simply having a public hearing, by directly involving stakeholders in determining protected areas management arrangements, by putting in place co-management agreements, or even by recognizing the authority of traditional leaders to control and manage resources to conserve biological diversity. In the case of traditional management, the Sarstoon Temash National Park in Belize is an interesting example. This national park was created in 1994 on lands traditionally used by the Garifuna and Maya communities who lived in the area.12 In order to respect their interests, the Sarstoon Temash Institute for Indigenous Management (SATIIM), a community-based indigenous environmental organization, was created. It now co-manages the national park with the Belizean Forestry Department. Satin’s objectives are, among others, to protect the ecological integrity and cultural values of the Sarstoon Temash region, to develop and implement a park management strategy that recognizes the historical and ongoing relationship between the Garifuna and Maya indigenous communities and the land and resources of the national park, and to develop and implement a regional land management strategy for the indigenous communities that facilitates community participation in regional conservation and natural resource management.
A third model more in keeping with respect for human rights is the WaiWai Community Owned Conservation Area in Guyana. In this case, the WaiWai tribe were granted title to 2,300 square miles of territory. The WaiWai have taken the decision to manage this territory as a protected area. The land is divided into different use areas based on the IUCN management categories for protected areas and approximately one-third of the territory has been set aside by the WaiWai for strict protection. All decisions regarding management and use are made by the WaiWai through their traditional decision making processes. This is a good example of a protected area which is owned, managed and controlled by indigenous peoples.
The Yellowstone model, the SATIIM co-management system and the WaiWai example are all based on different protected areas philosophies which have more or less negative impacts on people's rights. The Yellowstone model by excluding traditional users and managers has negative impacts on people's rights. The SATIM model of co-management may have a negative impact on some rights. On the other hand in the WaiWai example, national law fully recognises and protects the rights and traditional governance structure of the indigenous peoples and enables the WaiWai to use their legal powers to conserve their land as a protected area in keeping with their traditional lifestyle and culture. However all three models also follow very diverse management goals that have particular advantages for the conservation of biological diversity as well as challenges in respecting people's rights.
An internationally recognized instrument already exists for grouping protected areas according to their management goals. The International Union for the Conservation of Nature (IUCN) now distinguishes between six types of protected areas, which are managed for:13
Strict protection – Category I (including strict nature reserves and wilderness areas);
Ecosystem conservation and protection – Category II (i.e., national parks);
Conservation of natural features – Category III (i.e., natural monuments);
Conservation through active management – Category IV (i.e., habitat/species management areas);
Landscape/seascape conservation and recreation – Category V (i.e., protected landscape/seascape); and
Sustainable use of natural resources – Category VI (i.e., managed resource protected areas).14
The IUCN management categories are an international standard that has been used by many States or that has influenced States in their determination of what categories to include in national systems for protected areas.15 The categories are mainly focused on avoiding negative impacts on natural resources, not on human interests and people's rights. However, a process or instrument equally recognized as the protected areas category system is required in order to give equitable answers to hard questions about who or what should be given priority in situations of tension between the objectives of a protected area site and people's rights. A rights-based approach (RBA), as described in Chapter 2, might provide the needed process or instrument to assess and to mitigate, if not to avoid, negative impacts on human well-being and people's rights in the context of developing and managing protected areas.
There is no single definition of a protected area. International treaties, national legislation, and conservation organizations use a variety of terms.
The Global Biodiversity Strategy of 1992 defines a protected area as “a legally established land or water area under either public or private ownership that is regulated and managed to achieve specific conservation goals”.16 According to the definition used by IUCN, a protected area is a “clearly defined geographical space, recognised, dedicated and managed, through legal or other effective means, to achieve the long-term conservation of nature with associated ecosystem services and cultural values”.17
Since each term used in national and international law may have been developed for the particular circumstances in which it is to be used, this chapter will not adopt any of the current definitions but will apply the common principle behind protected areas, namely the conservation of biological diversity. The term protected area will thus be restricted to an area dedicated to the conservation of biological diversity. It may include the maintenance of ecosystem services or the protection of ecological processes.
A State may establish a protected area in any part of its territory. The territory set aside must be large enough to protect the relevant species, habitat, or ecosystem. It must also be dedicated for long enough to ensure that it achieves its conservation goals.
A State's territory includes the land within its boundaries, including the subsoil and internal waters such as lakes, rivers, and canals. It also includes the airspace above the State's territory up to the point at which the legal regime for outer space begins.18 A protected area may be terrestrial or marine or may encompass both. Internal saltwater lakes and freshwater systems such as rivers and lakes are counted as part of a terrestrial protected area. A marine protected area may be created in the territorial sea and may extend into the exclusive economic zone.19 It is important to note that the issues raised by marine protected areas differ from those of terrestrial protected areas and that the former face the following key challenges:
Size – typically a marine protected area needs to be large;
Scale of marine processes;
High mobility of marine species;
Need for connectivity with terrestrial protected areas in order to cover certain species (sea birds, marine turtles);
Need to influence and control developments on land that could have an adverse impact on the marine protected area;
Difficulty of setting and marking boundaries at sea;
Need to protect marine life to the limits of the exclusive economic zone; and
Greater difficulty in enforcement because marine protected areas are larger and less accessible.
In the following section, the step-wise approach described in Chapter 2 will be tested with regard to protected areas. Although the creation of a protected area will vary from country to country, most cases will be marked by similar milestones. These are:
Activities prior to the decision to create the protected area:
– Identification of the site; and
– Justification for having a protected area at this site.
Decision to create the protected area:
– Taken by the protected area authority, a minister, or some other body that has the relevant legal mandate.
Declaration of the protected area:
– Definition of the management category; and
– Demarcation of the boundaries.
Development of the management plan, including the ongoing arrangements for:
– Protecting or using the land (or marine area) and resources in general;
– Specifically permitted or prohibited activities; and
– Zoning, etc.
Implementation and evaluation of the management plan.
If properly applied, the RBA needs to be followed continuously throughout the life of the protected area, and the step-wise approach will have to be applied at each stage of creating and managing the protected area in order to ensure that all relevant rights are being taken into account.
The creation of a protected area requires a good understanding of the overall context in which it is being developed in order to avoid possible negative impacts on people's rights. The first stage of the RBA is therefore to identify the relevant factors through a situation analysis. This should provide the baseline information that enables the State to implement its obligation to protect the environment in a way that ensures respect for people's rights. Furthermore, it could also enable the State to go beyond this basic requirement and develop best practices within that State's particular legal, social, economic, and cultural context.
A situation analysis should consider the existing
Scientific and economic circumstances: the current state of the country's biodiversity; factors (including socioeconomic ones) that are reducing, maintaining, or increasing biodiversity at the country and site-specific level; and whether a particular area meets the necessary criteria for conservation (assessment of its biological diversity, its size, the proposed management objectives and categories to be applied)
Policies: international programmes of work;20 national conservation strategies; biodiversity strategy action plans; general policies regarding the use of natural resources (forestry, agriculture, mining, wildlife trading, tourism, etc.); specific policies on protected areas
Institutional framework: relevant agencies responsible for protected areas in particular and for forests, mining, agriculture, fisheries, wildlife, tourism, etc. in general
Legal framework: international and national legal obligations to protect biodiversity, establish protected areas, and respect people's rights
In relation to the legal framework, virtually every State has accepted international treaty obligations to create protected areas.21 For example, Article 8 (a) of the Convention on Biological Diversity imposes an obligation on its 191 parties to ensure in situ conservation by requiring States as far as possible and as appropriate to “establish a system of protected areas or areas where special measures need to be taken to conserve biological diversity”.
Furthermore, at the national level constitutional obligations to protect the State's environment for present and future generations, general environmental laws, and laws directly or indirectly related to nature conservation have to be taken into consideration. Many States have also enacted specific protected areas legislation, which may provide a general legal framework for the creation and management of protected areas, and individual legal acts regulating more detailed issues with regard to a particular protected area site.22
It is important to note that where a private landowner (individual or juridical person) is creating a protected area, the situation analysis could be more limited because it relates to private, not public, land. The assessment of the legal framework should then focus on the scope of the landowner's authority to create the protected area, a scientific assessment of the area, etc. The situation analysis should also cover restrictions on the landowner's authority, such as the obligation to permit lawful passage along public roads or footpaths and the right to hunt, fish, or gather on the land. The institutional and management arrangements would be within the scope of authority of the landowner subject to respect for the other rights identified in the situation analysis. If the private landowner wishes to have the private protected area recognized as a part of the national system of protected areas, then he or she would have to include in the situation analysis the legal requirements for such recognition.
As mentioned before, in the best-case scenario an RBA will take place at each step of creating and managing a protected area. This means that a situation analysis has to take place at the following stages: identification of a potential site and justification for having a protected area at this site; actual decision to create the protected area; declaration of the protected area; development of the management plan, including the ongoing arrangements for management; and implementation and evaluation of the management plan. The situation analysis may need to be refined for the later stages of creating and managing the protected area, as more detailed information will be needed for setting the boundaries and the management categories, for developing the management plan, and for evaluating it.
Furthermore, applying an RBA also requires that a stakeholder analysis identifies the different actors – the people or organizations that are vital to the success or failure of the protected area.23
While substantive issues in an RBA will involve only the legal rights-holders and legal duty-bearers, it is important to include other actors in order to ensure procedural fairness. Primary stakeholders will thus include those who have legal rights or legitimate interests in the proposed protected area site –the landowner, a holder of a mining or timber permit, a conservation organization or private company that is proposing to pay for the protected area, conservation organizations and scientists working in the proposed site, Government agencies with a mandate over the resources in the proposed site (e.g., water authorities, agencies responsible for cultural heritage who require access to the site, mining and forestry regulators whose authority may be excluded), people occupying or using the area, and so on.
In most cases the actors will be individuals or legal persons such as companies or organizations. But rights may also be held by communities. Such rights are collective, not individual. The term “community” has a number of different meanings, but here it will be restricted to a legally recognized body. A community is not simply a group of individuals who have come together for some purpose or who happen to have a shared culture and traditions. Such an entity is merely the sum of the individual rights. In contrast, a community is a body distinct from its members. The members who make up the community will change as individuals die and others are born. But the community continues as a separate entity, irrespective of who its members are at any given time and of the fact that its numbers fluctuate.24 Individuals may exercise collective rights because they are members of the community which has those rights. However, one individual alone cannot dispose of land that is owned by the community – the interest is an interest in every part of the land rather than an interest in a particular bit of the land. The same principles apply to collective rights to hunt, fish, farm, cut timber, mine, etc. The exercise of these rights is subject to the rules of the community.
It is possible to treat a group as if it is a community because of shared culture or shared interests or because the group wishes to act collectively. But this should be done with caution. In strict legal terms, the rights in such a group are held by individuals, and the individual exercise of a right has to be respected even when it goes against the views of the other members of the group. In the case of a community, however, the individual exercise of the collective right is subject to the rules of the community.
It must be noted that such community rules have formal legal status only in some States where the statutory legislation officially recognizes customary law. In other States, they might have no formal legal status but continue to be exercised in practice, which indicates that they still have some legal significance. In any case, the RBA requires respect for such internal community rules and thus considers communities as potential primary stakeholders.
Secondary stakeholders could include conservation organizations that are not necessarily working at the site but have an interest in conservation in general in the country, those who use the proposed site but do not have a recognized legal right to do so, or those with a claim to own or use the land. Tertiary stakeholders could include, for example, journalists, economists, or advocacy groups.
The results of a stakeholder analysis will vary from one State to another and from one stage to another. The stakeholder analysis needs to be updated at each stage, since the stakeholders will differ depending on the action to be carried out. A primary stakeholder at one stage may be a secondary stakeholder at another stage or may disappear altogether.
Before the decision is taken to create a protected areas system, for example, the stakeholders will be a very wide and disparate group. Members of the general public should be considered as having some stake in the decision-making process, as all citizens have an interest in national patrimony. Other stakeholders could include State agencies with a mandate over the land, sea, or natural resources within the boundaries of the proposed protected area; individuals and non-State entities that have an interest in the area or its resources; those who may be assigned enforcement duties (police, coast guard); and those with rights over the proposed area. Once the decision has been made to create a protected area, some of these stakeholders may drop out of the picture. The mandate of the regulatory agencies such as mining and forestry may be removed because no mining or commercial logging is permitted in the protected area. Similarly, a mining company with rights within the proposed site will be a primary stakeholder during the discussion to establish the protected area. Once those mining rights over the area have been ended (for example, terminated in accordance with the terms of the permit or upon payment of negotiated compensation), the mining company will probably cease to be a stakeholder.
This example clearly shows that stakeholders should not only be identified with regard to the general decision about the creation of a protected area. They should also be identified for involvement in making and implementing future decisions. For example, where the protected area is contiguous with lands that local people own, occupy, or use, these people should be involved in the setting of boundaries. Also, since the choice of a particular management category will affect what can be done in a protected area, stakeholders should be involved in setting management objectives, assigning a management category, and developing a management plan.
The stakeholders for the actual management of a protected area on the ground will be a smaller group than in previous stages. The key actor at this stage will be the authority with the responsibility for managing the protected area, but other stakeholders may be directly involved in management or simply exercise influence over the decisions.25
Key stakeholders with regard to enforcement actions could include the Coast Guard (for marine protected areas), the police, and enforcement officers from other regulatory agencies, such as the agency responsible for forestry or an environmental protection agency.
The RBA requires that once the stakeholders have been identified the next step is to examine whether they have a legal right, claim, or duty. The concept of stakeholder is broader than that of the legal rights-holder and legal duty-bearer and includes those with an interest that may be affected. Some individuals may be stakeholders because they carry out activities in the area but they might not be rights-holders or duty-bearers. In other words, de facto activity is not the same as de jure activity.
This identification of rights, claims, and duties leads to a number of challenges. First, a distinction needs to be drawn between the activities that are prohibited by law and those that are not. Such a distinction is not always easy to draw. If an activity requires a permit or some kind of authorization, it will generally be unlawful without the permit or authorization. In some cases, however, there may be a dispute as to whether a particular activity requires a permit or is allowed because it is some form of traditional or customary right. Where the issue cannot be settled between the conflicting parties, it may need to be resolved by a court, which is the only body that can give a final decision on whether the activity is legal or illegal and the extent to which the right is exercisable if it is legal.
It is important to note that while international law may create legal rights, the decisions of international bodies are generally not enforceable by the affected individuals and communities but depend on the political will of the State. Enforceable rights will generally be found under national law. In the context of protected areas, the affected rights will include property rights (ownership, lease), permits issued by the government (e.g., mining permits, forest concessions, hunting licences), rights held by aboriginal or tribal peoples under custom or treaty, and rights recognized in statute, such as rights of way. Not all rights are of equal value. Rights which are constitutionally protected generally take priority over other rights.
Creating a protected area may also have an impact on cultural rights. According to the UN Human Rights Committee, “culture manifests itself in many forms, including a particular way of life associated with the use of land resources, especially in the case of indigenous peoples. That right may include such traditional activities as fishing or hunting.”26 Access to those resources may be an essential element in continuing a tradition but may clash with other values. In a multicultural society there may be a conflict or tension between the cultural attachments that different peoples, communities, or groups have to a resource and a protected area in particular. It can be difficult to identify which groups have cultural rights that should be protected. There may also be conflicts or tensions within discrete peoples or communities, particularly where there are limited resources.
If the protected area is being established on land owned by the State, private property rights and public rights of access are likely to be the most important rights that could be affected. In some jurisdictions, use rights – such as rights to hunt, mine, fish, etc. – are recognized as private property rights or rights in the nature of property. These rights are generally held against the State and may be protected by the Constitution.
In general, the scope and legal basis of each right should be examined in order to understand:
Exactly what the right consists of;
What limits there are to its exercise;
How (if at all) it may legally be restricted or terminated;
Whether collective rights are recognized in national law;
Whether customary rules have any legally binding effect;
Whether there are areas of concurrent jurisdiction between State authorities; and
Whether there are conflicts between different laws or ambiguities in the law that mean it is difficult to confirm who is responsible for what.
In addition to existing legal rights, the RBA should take into account claims that other rights such as political, moral, or traditional rights should be legally recognized. To fall within the ambit of the RBA, a claim would have to have some formal status. It should be filed as a court case or be registered under a statutory procedure or given some other kind of formal or official recognition. At the very least there should be some evidence of a genuine attempt to bring the claim formally to the attention of the potential defendant. If a claim is genuine, it is up to the claimant to take steps to prosecute it. Otherwise it would be impossible to separate genuine claims, which should be taken into account, from frivolous assertions that may adversely affect the process of creating protected areas.
The RBA also requires that actions taken in the context of protected areas do not compromise the outcome of any such claims. Since protected areas are intended to conserve resources, their impact on a claim will not usually be detrimental. For example, a claim may be made for hunting rights over land that is designated as a protected area. While the claim is being adjudicated, no hunting takes place. But if the claimant is successful, the animals are still there to be hunted. In such a situation the protected area acts as a temporary moratorium and there is no permanent disadvantage to the claimant. Where there is a conflict between proposed development and a claim of ownership to that land, a protected area may be a temporary solution that preserves the future rights of all parties until the conflict can be resolved.
Furthermore, apart from identifying applicable rights and claims, the RBA also requires consideration of the corresponding duties (if any) that a rights-holder may have (e.g., the duty in common law systems by which a property holder may not lay waste to the land or may not permit a nuisance). In most cases the relevant legal duties will be held by the State, particularly those duties that relate to rights and freedoms guaranteed by the Constitution.
The potential impact of a protected area depends on the stage of the process. All stages involve procedural rights.
It is also important to understand that the intention to create a protected area does not in itself have any impact on substantive rights. For example, a company with a mining licence is not affected merely by the decision to create a protected area. It will only be affected if the decision is made to include the mining area in the protected area, the protected area is established, and mining becomes a prohibited activity as a consequence.
The potential impacts of a protected area largely depend on which IUCN management category is assigned to a protected area. Since a different level of human activity is permitted in each, the category chosen will have different implications for the rights, claims, and duties at stake. Where rights have been granted by the State, it may be possible to terminate those rights in accordance with the provisions of national law if this is necessary to achieve the management objectives for the category selected. Compensation may also be payable.27
Where rights are not granted by the State but are recognized by it, the situation is more complex. Traditional rights recognized by the State are usually the right to hunt, fish, farm, etc. Rights held by local or indigenous communities may be a burden on the State's title to the land. Such rights are often linked to culture and are usually sustainable, since a traditional right that is not exercised sustainably must inevitably cease to be exercisable as the resource disappears. The situation will vary from State to State, but termination could be a violation of human rights law or national law. However, a State may be entitled to restrict rights even where these are protected by the Constitution.
A situation analysis also requires identifying potential conflict resolution mechanisms that can help avoid rights conflicts and ensure that respect for rights is integrated into the decision-making process.
Stakeholder participation leads to decisions that are not only legally correct but are also legitimate, thereby reducing the scope for conflict. Nevertheless conflict, or at least tension, may still arise. The RBA approach requires that this is dealt with through a culturally appropriate mechanism as early as possible in the process. This is particularly important when the conflict involves communities or peoples whose approach to resolving issues may be consensus-based rather than adversarial.
Conflict resolution in protected areas should aim to find a solution that the parties to the conflict can accept. In the best-case scenario, it should not be about winning, since that implies that someone else loses. The success of protected areas depends to some extent on the goodwill and cooperation of others, and an adversarial approach in which one party loses or that damages relationships can adversely affect the ultimate goal of conservation. For example, where there are disagreements over the extent of traditional rights and their exercise, it may be possible to address this in the management plan or in a separate document in which the parties agree on the content of the traditional rights and the level of resource exploitation. This could be done through negotiation or by involving a mediator to enable the parties to reach a mutually acceptable solution.
In cases of more serious claims involving legal issues, however, such as a claim for title to an area, the effectiveness of non-adversarial mechanisms might be limited. Instead, it will be more appropriate to seek a determination from a court of competent jurisdiction. The advantages are that the court can give a final legally binding decision that is usually enforceable against the defendant. The conflict is resolved only when there is a final legal decision (i.e., a decision not subject to appeal). The disadvantages are that courts can be slow, court cases can be time-consuming and expensive, and the outcome may be affected by the quality of legal representation. Statutory tribunals that can give a binding decision may be an alternative to a court.
In any case, wherever there is a dispute over legal rights or claims it is important to identify the interests of the parties who are involved and to distinguish them from the positions that such parties may take. This is essential to understand the actual impact of the protected area on a party as well as the perceived impact and to address both sets of concerns. Furthermore, it is important to identify the party to a conflict and to distinguish that party's interests from positions held by other stakeholders. For example, where a conflict affects local or indigenous communities it is crucial to deal directly with them or their chosen leaders or, where they have legal representation, with the lawyer representing them. The rights of the community as a legal collective must be respected when applying the RBA. It is not appropriate to permit the State or NGOs or other entities to speak on behalf of local or indigenous communities.29
As a second step in applying an RBA, it is important to ensure sufficient public information is available. The basic principle is that information should be provided to stakeholders.
Yet there may be instances when this principle should not be applied. For example, it may be illegal to reveal information that is subject to confidentiality obligations or it may be inappropriate or counterproductive to put into the public domain information on the location of species threatened by hunting or by wildlife trade if that information could then be used to reduce biodiversity before the protected area can be established. Another important exception may apply to traditional knowledge. Article 8(j) of the Convention on Biological Diversity requires that a State must as far as possible and as appropriate, “subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation of and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilisation of such knowledge, innovation and practices.” Thus, such traditional knowledge should be obtained only from individuals who hold it and have the authority to release it. Also, permission in the form of prior informed consent should be obtained from the holders of traditional knowledge before their knowledge is put into the public domain, and arrangements for payment should be made based on mutually agreed terms with the collective owners of the traditional knowledge.
In general, it is important to keep in mind that providing information is not a one-off exercise but should be done throughout the life of the protected area. The content of the information will need to be updated and adjusted to suit the different stages of creating and managing a protected area. This means that certain actions are required for each stage, as described here.
As a first step, it is necessary to understand that – subject to restrictions on confidentiality or the need to protect sensitive data – information should be collected and disseminated as widely as possible. As the stakeholder list is to be regularly updated, this could be used to ensure that these persons are contacted directly and either given the relevant information or told how they may obtain it. The public can also be informed through television, radio, and newspapers of the proposal to create a protected areas system. Larger amounts of information such as policy documents, reports, analyses, management plans, etc. can be put on a website for members of the public to download and read.
Information must always be made available in an understandable and easily accessibly way. This means, for example, taking into consideration the fact that people without access to electricity and telecommunications will not be reached through normal channels and cannot be expected to use the Internet to find out what is proposed. Some information may filter through when newspapers arrive, but this may be some time later. As a consequence, different options for publishing information (according to local circumstances) have to be used. Shortwave radios can be used to notify communities of the proposed action, or materials can be sent in hard copy directly to communities in remote areas.
Furthermore, information should be disseminated in a way that does not discriminate against ethnic or racial groups within a society but is equally available to all. This may mean that information has to be translated into secondary languages or presented orally, not just in written form. This is particularly important when dealing with indigenous or tribal communities who may formerly have been excluded from normal political processes.
Regarding the type of information that has to be published, it is important to understand that this should not be limited to specific biodiversity data. More general information should also be made available to stakeholders. This could include background information about the proposed site, the outcomes of the situation analysis, and the proposal to establish a protected area. But it should also include an explanation of the general procedure to be followed when creating and managing a protected area, as well as all other information needed to fully understand the rationale behind the creation and particular management of a protected area.
The general and more scientific data need to be complemented by specific information about legal rights, claims, and duties during the creation and management of a protected area. In particular, it is important to inform the potentially affected people prior to the creation of the protected area about how they may participate in the ongoing process. In addition, all information that has a direct or indirect impact on their rights, claims, and duties has to be publicized as widely as possible. This means that documents such as the formal declaration of the protected area, the procedure for the development of the management plan, the management plan itself, or the evaluation of the protected area should all be made public.
Participation needs to be ensured at all stages – from creating to managing a protected area. The form and extent of participation might vary from stage to stage, and different stages may involve different stakeholders. Still, certain common approaches and key actions can be determined which will apply at all stages.
In general, participation can be ensured by holding public meetings as well as having specific meetings with key stakeholders. While all stakeholders should be given adequate time to consider the issues, special arrangements may need to be made for indigenous and tribal peoples to ensure culturally appropriate participation. For example, it may be necessary to extend the timetable for participation in order to ensure that such peoples have adequate time to discuss the issues internally and reach a collective decision. Along these lines, the Canadian Supreme Court in Mikisew Cree First Nation v Sheila Copps, Minister of Canadian Heritage and Thebacha Road Society held that: “The Crown's duty to consult imposes on it a positive obligation to reasonably ensure that aboriginal peoples are provided with all necessary information in a timely way so that they have an opportunity to express their interests and concerns, and to ensure that their representations are seriously considered and, wherever possible, demonstrably integrated into the proposed plan of action.”30 Also, it may be necessary to hold meetings in the community rather than requiring the community to appoint representatives.
The exact form and level of consultation will mostly depend on the extent of the duty to consult, which in turn depends on who is affected and to what extent. According to C. J. McClaughlin, “the existence or extent of a duty to consult or accommodate is a legal question in the sense that it defines a legal duty. However, it is typically premised on an assessment of the facts.”31
The form and level of consultation required can also depend on more practical issues. For example, when compiling relevant information on protected areas under the previous step, scientific data on biodiversity are usually collected by scientists. Nevertheless, very often the scientists rely on local people to tell them what species are found where and when in a particular site. To ensure the most accurate and comprehensive information possible, the RBA suggests that local people and indigenous communities should be fully involved and participate in collecting and compiling data, including preparing species lists and carrying out long-term monitoring.
Free and prior informed consent (FPIC) is another guiding principle in order to ensure public participation in line with the RBA standard. However, it might not be necessary at all stages or from all stakeholders. Instead, the scope and content of a stakeholder's rights will determine whether free prior informed consent is necessary. If it is, no actions should be taken without obtaining this consent from any person whose legal rights and interests may be affected.
It can be assumed that commercial entities, government agencies, and other relatively powerful entities will be able to obtain full legal advice on their rights and that their consent will not be given unless they have sufficient information. More care should again be exercised when dealing with indigenous or local communities. FPIC requires that a community be given adequate time to discuss and reach a consensus and that the internal decision-making processes of the community are respected, including the authority of the elected or traditional leaders of the community. It also means that the community is clear about what they are giving their consent to.
In some cases free prior informed consent is impossible because the community lacks the legal power to give consent. Lands belonging to indigenous or local communities might be inalienable, and the community may therefore lack the legal capacity to dispose of it or any part of it for a protected area. This is, for example, the case in Guyana, where Amerindian land is regarded as held by Amerindian communities in perpetuity in order to protect Amerindian culture and traditional way of life. Under Section 44 of the Amerindian Act 2006 any attempt to dispose of any right, title, or interest in Amerindian land is void except for limited leases and the Amerindian right to dispose of resources on the land. Similarly, in the case of Mayagna (Sumo) Awas Tingni Community v Nicaragua, the Inter- American Court held that the right to property under the Inter-American Convention on Human Rights includes communal property where ownership of the land is not centred on an individual but on the community. Communal lands are therefore inalienable and cannot be donated, sold, encumbered, or mortgaged.32
Where consultations and procedures for FPIC fail to resolve rights conflicts, a conflict resolution mechanism has to be chosen from the previously identified potential mechanisms and then used. As indicated before, there are a number of possible conflict resolution mechanisms, ranging from “soft” approaches such as apology, undertakings, negotiation, and mediation to “hard” approaches such as arbitration or litigation, in which a decision is imposed by a third party. Arbitration is more suited to commercial disagreements and should not be used to resolve disputes related to human rights.
The type of mechanism selected should be appropriate, especially with regard to the level of the existing conflict. For example, if a person who has been excluded from participation or not given adequate information agrees with the decision to create a protected areas system, making an apology and providing the information may be acceptable, along with an undertaking to ensure that the person is fully involved as appropriate in future decisions and actions. If a person, however, disagrees with the decision to create a protected areas system, the appropriate action might be to apply to the court to have the decision overturned on grounds of procedural irregularity. Whether this will succeed will depend on whether the decision maker has followed the proper legal procedure.
Wherever possible, decisions should be made on the basis of what is most effective for conservation, but with the intention of having the least impact on existing rights. This balance cannot always be achieved, but it should be the starting point if competing rights are to be taken into account adequately. Furthermore, it should be noted that stakeholders can have conflicting or opposing views and rights, and it is rarely possible to please all those involved in or affected by the process of creating and managing a protected area. Therefore, conflicting rights have to be balanced as well.
The decision to create a protected area should not compromise the outcome of legal claims. For example, if there is a land claim by an indigenous or tribal community, the proposed boundary of the protected area should not adversely affect the outcome of the land claim. It should be possible to protect the area until the land claim is resolved, but the fact that a protected area has been established should not affect the right of the indigenous or tribal community to have their title legally recognized.
New activities such as tourism may also create conflicts with conservation interests and the rights of local peoples or communities. Tourism within a protected area should therefore be developed in partnership with local stakeholders, and they should have priority for economic and employment opportunities. Wherever possible, tourism should be controlled by local people, tourism facilities should be owned and run by local people, and tourism goods and services should be provided by them. Income-generating activities should be linked to the local economy. Tourism in a protected area should be conducted in a culturally appropriate way. Where there are sacred sites, the RBA suggests that the peoples to whom those sites are sacred should be the ones to decide whether tourists are permitted to visit, how many people at any one time, etc.33
The case of so called uncontacted peoples raises very different issues. The RBA suggests that a protected area should be created and managed in such a way that it does not have any negative impact on uncontacted peoples. Uncontacted peoples are not unaware of the State and other citizens but they may choose not to become engaged. In that case, the RBA suggests that their wishes should be respected and they should be left to continue their traditional way of life and culture without outside interference. Applying the RBA suggests that the choice of whether to make contact should be made by the uncontacted peoples, not by those involved in the protected area. These people can also be especially vulnerable to diseases introduced by outsiders. The interest in scientific research would therefore have to be balanced against the right to life and health of uncontacted peoples, their right to continue their culture, and even their right to privacy. The right to privacy is guaranteed by several international treaties, including Article 17 of the International Convention on Civil and Political Rights, Article 11 of the American Convention on Human Rights, and Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. One option is to ensure that there are no visitors to areas that uncontacted peoples occupy or use unless and until such uncontacted peoples voluntarily make contact and freely confirm that others may have access to these areas.
In general, reasoned decisions enable any stakeholders whose views have not been incorporated or whose rights have been modified or narrowed to understand why this has happened. This is an important element in building consensus.
The decision to create a protected area is likely to be a political one taken by the Government at the time. However, reasoned decisions are important to show why particular boundaries have been established or why a particular management category has been chosen. Where activities are to be restricted, it is important to link this to scientific data, local data, and the carrying capacity of the land. The decision will be more legitimate if the decision maker (such as a minister or the relevant protected area authority) is able to demonstrate that its reason is based on information and recommendations from stakeholders or that it at least takes stakeholder views into account. Also, a decision is more likely to be accepted if the decision maker can show why a stakeholder recommendation could not be followed. Similarly, decisions made as part of the development, implementation, and enforcement of a management plan will be more legitimate if it can be shown that they take stakeholder views into account.
Since the RBA is an attempt to incorporate rights fully into protected areas, the various procedures for doing so should be assessed at reasonable intervals in order to detect errors and to apply any lessons learnt in order to improve the RBA in protected areas.
An essential part of evaluation would be stakeholder feedback. Depending on the case and the severity of rights conflicts, it may be appropriate to require an independent evaluation in which stakeholders are able to give their views confidentially so that they can speak freely.
A useful approach would be to compile a checklist of protected areas stakeholders and their interests from the situational analysis and use this as a basis for obtaining stakeholder assessments of the RBA. Furthermore, monitoring and evaluation reports should be publicly available, subject to the duty to respect confidentiality. The assessment of the impact of the protected area should be built into the management plan.
The creation of a protected area is a political decision that requires balancing competing interests in the area to be set aside for conservation. Such interests include the resource sectors (such as mining, forestry, agriculture, tourism), the rights of local people or indigenous communities to use the area (for example for hunting, fishing, farming, gathering, spiritual activities), public rights such as rights to travel through the area, and so on. The choice of a protected area management category and the development and implementation of the management plan thus require balancing conservation goals with other legitimate rights and interests. A rights-based approach requires that stakeholders are fully involved throughout the process, that real interests are identified and addressed, and that decisions are made on the basis of the best available information – whether that is scientific data or traditional knowledge. Applying the RBA will not necessarily give the same result in each situation, but it should ensure that decisions and actions are not only legal but also legitimate.
1 See Numbers of threatened species by major groups of organisms (1996–2008), at www.iucnredlist.org/documents/2008RL_stats_table_1_v1223294385.pdf.
2 Secretariat of the Convention on Biological Diversity, Sustaining Life on Earth. How the Convention on Biological Diversity Promotes Nature and Human Well-being (Montreal: 2000), p. 5. [Link]
3 Convention on Biological Diversity, Article 2.
4 Secretariat of the Convention on Biological Diversity, op. cit. note 2, p. 5.
5 Millennium Ecosystem Assessment (MA), Ecosystems and Human Well-being: Synthesis (Washington, DC: Island Press, 2005), p. 1.
6 Nigel Dudley, ed., Guidelines for Applying Protected Areas Management Categories (Gland, Switzerland: International Union for Conservation of Nature (IUCN), 2008), p. 2. [Link]
7 MA, Ecosystems and Human Well-being: Biodiversity Synthesis (Washington, DC: World Resources Institute, 2005), pp. 18, 30.
8 Ibid., p. 30.
9 Dudley, op. cit. note 6, p. 3.
10 The Holy Bible, Genesis Chapter 1, Verse 28, Cambridge University Press.
11 Quoted in Edith Brown-Weiss, In Fairness to Future Generations (Tokyo: United Nations University: reprint 2006). There is much dispute over the authenticity of the words attributed to Chief Seattle. See J. L. Clark, “Thus Spoke Chief Seattle: The Story of an Undocumented Speech,” Prologue: Journal of the National Archives, vol. 18, no. 1 (spring 1985).
12 Information taken from www.satiim.org.bz/index.php?section=2.
13 Dudley, op. cit. note 6, p. 4.
14 Note that the protected area management categories were revised in 2008.
15 Kevin Bishop et al., eds., Speaking a Common Language: Uses and Performance of the IUCN Management Categories for Protected Areas (Gland, Switzerland: IUCN, 2004).
16 World Resources Institute, Global Biodiversity Strategy: Guidelines for Action to Save, Study, and Use Earth's Biotic Wealth Sustainably and Equitably (Washington, DC: 1992), p. 230. [Link]
17 Dudley, op. cit. note 6, p. 8.
18 Malcolm N. Shaw, International Law, 5th ed. (Cambridge, U.K.: Cambridge University Press, 2003), p. 480.
19 Under Article 2 of U.N. Convention on the Law of the Sea (UNCLOS), the sovereignty of a coastal State extends beyond its land territory and internal waters to the territorial sea, which is limited to 12 nautical miles. Sovereignty extends to the seabed, subsoil, and air space above the territorial sea. Under Articles 55 and 56 of UNCLOS, a State may also exercise sovereignty over the exclusive economic zone, an area beyond and adjacent to the territorial sea. In this zone the State has sovereign rights to explore, exploit, conserve, and manage the natural resources (whether living or non-living) of the water superjacent to the seabed and of the seabed and its subsoil. The State also has the sovereign right to protect and preserve the marine environment.
20 The Convention on Biological Diversity (CBD) Programme of Work on Protected Areas contains four elements for the creation and management of protected areas: Direct Actions for Planning, Selecting, Establishing, Strengthening, and Managing Protected Area Systems and Sites; Governance, Participation, Equity, and Benefit Sharing; Enabling Activities; and Standards, Assessment, and Monitoring. It sets standards and goals for protected areas and can be used by States and by non-State actors as a guide to their actions in ensuring that they follow at least this aspect of international best practice. See www.cbd.int/protected.
21 See 1940 Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere, 1971 Convention on Wetlands of International Importance especially as Waterfowl Habitat, 1972 Convention concerning the Protection of World Cultural and Natural Heritage, 1976 Convention on the Conservation of Nature in the South Pacific, 1992 Convention on Biological Diversity, or 2003 Revised African Convention on the Conservation of Nature and Natural Resources.
22 See, for example, the Saguenay – St. Lawrence Marine Park Act 1997, c. 37, in Canada, which established the Saguenay – St. Lawrence Marine Park with boundaries, zones, and provisions for enforcement.
23 F. J. Hesselink et al., Communication, Education and Public Awareness, a Toolkit for the Convention on Biological Convention (Montreal: Secretariat of the Convention on Biological Diversity, 2007), p. 161.
24 See British Columbia, Canada, Oregon Jack Creek Indian Band v. Canadian National Railway 34 B.C.L.R. (2d) 344. In relation to aboriginal rights, the Court stated that “It is a mistake... to ignore the historical fact that the rights are communal, and that they are possessed today by the descendants of the persons who originally held them. They are not personal rights in the sense that they exist independently of the community, but are personal in the sense that a violation of the communal rights affects the individual member's enjoyment of those rights.”
25 There are three management possiblilities: management by the State; management by a non-State entity (individual, community, corporation, trust, friendly society, association etc.); or a combination of the two (co-management).
26 U.N. Human Rights Committee, General Comment No. 23, The Rights of Minorities, Para. 7, U.N. Doc. CCPR/C/21/Rev.1/Add.5.
27 Note that termination should be an option only where the right in question conflicts with the management objectives.
28 For a more detailed discussion, see Connie Lewis, ed., Managing Conflicts in Protected Areas (Gland, Switzerland: IUCN, 1996). [Link]
29 For example, in Guyana the touchau (elected leader) and village council are the only legally recognized representatives of a community. The State may consult nongovernmental organizations but cannot use such interactions as a substitute for ascertaining the opinions, interests and legal rights of the community.
30 See Mikisew Cree First Nation v Sheila Copps, Minister of Canadian Heritage and Thebacha Road Society  3 S.C.R. 388, 2005 SCC 69.
31 See Haida Nation v British Columbia (Minister of Forests)  3 S.C.R. 511.
32 See the decision in The Mayagna (Sumo) Awas Tingni Community v Nicaragua, Judgement of 31st August 2001, Inter-Am. Ct. H.R., (Ser.C) No.79 (2001).
33 See also Secretariat of the Convention on Biological Diversity, Akwé: Kon Voluntary Guidelines for the Conduct of Cultural, Environmental and Social Impact Assessment regarding Developments Proposed to Take Place on, or which are Likely to Impact on, Sacred Sites and on Lands and Waters Traditionally Occupied or Used by Indigenous and Local Communities, CBD Guidelines Series (Montreal: 2004). [Link]
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