Building Capacity on Protected Areas Law Governance Module
Building Capacity on Protected Areas Law & Governance Module 3 Definitions, Objectives & Institutions
Building Capacity on Protected Areas Law & Governance Drafting a PA law requires careful preparation. Definitions play a key role in interpreting a PA law. It is vital to clearly delimit the substantive and geographical scope of PA law. A PA law should prescribe a set of principles and/or objectives guiding its implementation. A PA law should create the institutions tasked with implementing it and set out their functions and powers. Definitions, Objectives & Institutions
Overview of the Seminar Pre-Drafting Preparations Definitions Scope & Application Objectives & Principles Institutional Arrangements
Objectives Highlight important legal aspects to be taken into account in pre-drafting preparations. Introduce the important role definitions play in PA laws and the rules governing their formulation. Clarify how the geographical and substantive application and scope of a PA law are prescribed. Distil the form, nature and authoritative weight and role of objectives and principles in PA laws. Outline the different institutional arrangements one typically finds in a PA law and their powers, functions and composition.
Outcomes Knowledge of the range of issues to be taken into account in pre-drafting preparations. Understanding of the role definitions play in PA legislation and the rules governing their formulation. Clarity how the geographical and substantive application and scope of a PA law are legally prescribed. Knowledge of the form, nature, authoritative weight and role objectives and principles play in PA legislation Insight into the different institutional arrangements one typically finds in PA law and their composition, powers and functions.
Overview of the Seminar Pre-Drafting Preparations Definitions Scope & Application Objectives & Principles Institutional Arrangements
Acknowledging Diversity differences legal colour tradition legal shape process legaltexture hierarchy inst’al composition framework socio/eco size concerns conserv weight priorities
Pre-Drafting Preparations preparations are essential! why? what? how?
Pre-Drafting Preparations… key preliminarywhat? legal issues/factors ? constitutional provisions international obligations existing policies existing laws institutional framework
Constitutional Provisions fundamental rights/duties structure of government substantive rights/duties branches environment legislature property executive indigenous peoples judiciary procedural rights/duties distribution of sovereignty access to information unitary administrative justice federal access to the courts confederal
International Obligations review obligations multilateral treaties bilateral agreements decisions give domestic legal effect monist approach dualist approach
Existing Policies understand the policy context policies strategies & action plans reports & speeches law building on policy reflect in long-title reflect in preamble reflect in principles/objectives
Existing Laws review existing laws PA laws other laws natural resource laws identify gaps & overlaps review strengths & weaknesses assess state of implementation
Institutional Framework review relevant institutions government authorities non-government actors understand mandates/roles assess capacity review overlaps/conflicts scope opportunities for cooperation
Pre-Drafting Preparations… key preliminarywhat? legal issues/factors ? constitutional provisions international obligations existing policies existing laws institutional framework
Pre-Drafting Preparations… what procedureshow? should be followed ? consultation process formal approval process what form should the legal reform take?
Procedure to be followed consultation process Participate in governmental pre-drafting consultations Undertake pre-drafting consultations with all stakeholders Consult with technical experts (PA specialist and others) Participate in public meetings organised by government authority Take part in technical consultations throughout drafting process
Procedure to be followed… formal approval process Prepare policy/identify existing relevant policy Prepare draft law Consult on draft law Within relevant government authority Between relevant government authorities With public stakeholders Prepare final law Secure formal approval of final law
Form of Legal Reform introduce a new law general PA law OR law governing individual PA stand-alone PA law OR chapt primary legislation OR in omnibus enviro law subordinate legislation amend an existing law
Overview of the Seminar Pre-Drafting Preparations Definitions
Definitions interpret the law through the definitions where does one find them the general rules international definitions
Where does one find definitions? definitions Name & number Title general Preamble general Substance Definitions Principles & objectives Institutions Substantive provisions Compliance and enforcement Power to make regulations/rules Commencement & transition Annex/Schedules specific Planning for Protected Areas Types of Protected Areas Establishment and Disestablishment Management of Protected Areas Conservation Agreements Regulated activities Financing
The General Rules When to use a definition Deviation from the ordinary dictionary meaning of the word/term To avoid unnecessary repetition of a word/term To indicate the use of an unusual/novel word/term Definitions should provide clarity and not uncertainty Words/terms should not be over-defined Definitions should not contain substantive law/rules Technical definitions should be founded on sound science Definitions should promote consistency In the use of defined terms within a law In the use of defined terms across related laws Draw from internationally recognised definitions
The General Rules… example 1 Definitions should provide clarity and not uncertainty ‘national park’ means ‘(a) an area which was a park in terms of the National Parks Act, 1976 (Act No. 57 of 1976), immediately before the repeal of that Act by section 90(1) of this Act, and includes a park established in terms of an agreement between a local community and the Minister which has been ratified by Parliament; or (b) an area declared or regarded as having been declared in terms of section 20 as a national park, and includes an area declared in terms of section 20 as part of an area referred to in paragraph (a), (b) or (c) above. ’
The General Rules… example 2 Words/terms should not be over-defined ‘indigenous biological resources’ (a) includes (i) any indigenous biological resources as defined in paragraph (b) of the definition of “indigenous biological resource” in section 1, whether gathered from the wild or accessed from any other source, including any animals, plants or other organisms of an indigenous species cultivated, bred or kept in captivity or cultivated or altered in any way by means of biotechnology; (ii) any cultivar, variety, strain, derivative, hybrid or fertile version of any indigenous species or of any animals, plants or other organisms referred to in subparagraph (i); and (iii) any exotic animals, plants or other organisms, whether gathered from the wild or accessed from any other source which, through the use of biotechnology, have been altered with any genetic material or chemical compound found in any indigenous species or any animals, plants or other organisms referred to in subparagraph (i) or (ii); but (b) excludes (i) genetic material of human origin; (ii) any exotic animals, plants or other organisms, other than exotic animals; (iii) indigenous biological resources listed in terms of the International Treaty Plants or Other Organisms referred to in paragraph (a)(iii); and on Plant Genetic Resources for Food and Agriculture.
The General Rules… example 3 Definitions should not contain substantive law/rules ‘biodiversity management plan’ means ‘a biodiversity management plan referred to in section 11. ’ ‘biodiversity management plan’ means ‘the plan prescribed by the Minister in terms of section 11 within 2 years following the commencement of this Act. ’
International Definitions draw from internationally recognised definitions treaties • Biological diversity/biodiversity • Biological resources • Cultural heritage • Ecosystem • Habitat • In-site conservation • Living modified organism • Migratory species • Natural heritage • Protected area • Sustainable use • Wetlands guidelines • Biosphere reserve • Buffer Zone • Co-managed protected area • Customary law • Ecological corridor • Ecosystem approach • Enviro impact assessment • Indigenous community conserved area • Invasive alien species • Outstanding universal value • Private protected area • Protected Area
Overview of the Seminar Pre-Drafting Preparations Definitions Scope & Application
Scope & Application geographical/substantive scope relation to framework enviro laws relation to other resource laws areas of overlap/conflict repeal/revision of old laws coordination & consultation
Overview of the Seminar Pre-Drafting Preparations Definitions Scope & Application Objectives & Principles
Objectives & Principles objectives principles set out purpose/intent of the PA law set out fundamental principles of the PA law guide implementation of the PA law how to formulate them nature of their content
Objectives & Principles how to formulate them draw from relevant national policy context ensure consistent with international policy context make provision for implementation persuasive vs prescriptive formulations cross-legal implementation
Objectives… nature of their content primary objective long-term conservation of nature, including biodiversity and geodiversity, with associated ecosystems services and cultural values other objectives general nature conservation ecosystem services & functions targeted nature conservation social & governance
Principles… nature of their content precautionary principle social equity & justice public participation prior-informed consent science-based decision-making
Overview of the Seminar Pre-Drafting Preparations Definitions Scope & Application Objectives & Principles Institutional Arrangements
Institutional Arrangements who are relevant PA authorities/institutions? what is the form/nature of the powers/functions? policy advisory administration management what forms of coordination mechanisms are required?
Institutional Arrangements…
PA Authorities & Functions Minister of Nature policy National Biodiversity Institute advisory Department of Nature administration National Parks Agency management Minister of Water policy Department of Water Affairs policy Wanui Community management Wanui Nature management Nature. Co management Wetland Trust management Department of Public Works administration Peat Community co-management administration management
Coordination Mechanisms PA authorities with other government authorities between relevant PA authorities between co-management authorities
PA & other government authorities Coordination Mechanisms… Energy Authorities Minister of Energy Agric Authorities Department of Energy Minister of Agriculture Department of Agriculture PA Authorities Mining Authorities Land Authorities Minister of Mining Minister of Public Works Department of Mining Department of Public Works
Coordination Mechanisms… between relevant PA authorities Minister of Nature National Biodiversity Institute Department of Nature National Parks Agency Minister of Water Department of Water Affairs Wanui Community Wanui Nature. Co Wetland Trust Peat Community
between co-management authorities Coordination Mechanisms… National Parks Agency Peat Community
Institutional Arrangements the PA law who are relevant PA authorities/institutions? what is the form/nature of the powers/functions? policy advisory administration management what forms of coordination mechanisms are required?
Institutional Arrangements general considerations policy institutions administrative institutions advisory authorities management authorities co-management authorities coordination mechanisms
General Considerations … Diverse & Country Specific PA Authorities/Institutions Diverse in Nature Diverse in Function Ministers Departments Statutory authorities/corporations Non-government organisations Local communities & indigenous peoples Private citizens Corporate entitles Policy Advisory Administration Management Multitude of Levels/Spheres Federal/state/local Conservation, biodiversity, forestry, fresh water, marine …
General Considerations … Structural Options One central PA authority responsible for everything. One central PA authority which assigns/delegates certain functions to decentralised government units/branches/departments. One central PA policy/coordination authority & many independent PA government authorities administering specific regions/areas/sites. Multi-agency PA policy/coordination authority with assignment/delegation of management of specific areas/sites to other government units/branches/departments. Any of the above options with delegation/assignment of specific functions to: Non-government organisations Private land owners Local communities Indigenous peoples Corporate entities.
General Considerations Distribution of Power & Responsibilities What powers/responsibilities are reserved for the high policy level (ie the Minister). Which levels/spheres of government are involve. What are the powers /responsibilities of each level/sphere of government. Does the PA law create a specialized government agency or statutory authority. How are powers/responsibilities distributed between centralized and decentralized levels. Who is empowered to delegate/assign powers/responsibilities and to whom. Are any preconditions prescribed for the delegation/assignment of these powers/responsibilities. What variety of governance arrangements are available for the distribution of some powers/responsibilities to non-state actors. What accountability mechanisms are created in respect of all PA authorities. What procedures are created to promote harmony and coordination between all PA authorities in all spheres/levels.
Policy Institutions Who? Relevant Ministerial Commission/Board Head of State/Prime Minister Parliament/Legislative body Allocation/nomination Functions, powers & responsibilities Approval of PA system plan Approval of new/amendments to existing PAs Approval of disestablishment of PAs Approval of site management plans Oversight of PA statutory authorities Promote inter-ministerial/governmental cooperation/consultation Make rules and regulations under the PA law Delegate and assign powers and functions under the PA law
Administrative Institutions Lead Government PA Agency Designation Who? Functions, powers & responsibility Statutory PA Authority/Corporation What is it? Benefits Creation Composition Functions, powers & responsibility Discontinuation
Advisory Bodies Approaches Temporary advisory committees Permanent advisory committees A combination of the above Membership Composition Qualification criteria Selection/appointment process Duration of tenure Purpose Outputs Independence
Management Authorities Who? Appointment Power to appoint Process to appoint Co-management Functions, Powers & Responsibilities Prepare, implement and update site management plans Manage the site in accordance with management plan Incur expenditure and enter into commercial transactions Employ agents and staff Manage the financial affairs of the site Prepare and submit regular reports for submission to the Lead Agency. Reporting & Accountability Mandate Termination
Co-Management Authorities ‘Co-management’ The Parties Governance type Land ownership General Legal Considerations Definition Authority Written agreements Consistency PA Status Voluntary Conserved areas Capacity-building & support Flexibility & Clarity Free prior informed consent Customary & traditional rights THE AGREEMENT TERMS Parties Area Conservation Objectives Management Plan Rights & Obligations Ownership/Use Rights Sharing of Costs & Benefits Performance Indicators Reporting Requirements Breach Dispute Resolution Duration
Coordination Mechanisms Purpose of coordination Policy/programme/procedure alignment Integrated decision-making Joint project initiatives Shared reporting Nature of coordination Coordination across levels/spheres Coordination across sectors Forms of Coordination Compulsory consultation Creation of intergovernmental forums/committees Cross-governmental membership on policy/administrative institutions Dispute Resolution
Overview of the Seminar Pre-Drafting Preparations Definitions Scope & Application Objectives & Principles Institutional Arrangements
Objectives Highlight important legal aspects to be taken into account in pre-drafting preparations. Introduce the important role definitions play in PA laws and the rules governing their formulation. Clarify how the geographical and substantive application and scope of a PA law are prescribed. Distil the form, nature and authoritative weight and role of objectives and principles in PA laws. Outline the different institutional arrangements one typically finds in a PA law and their powers, functions and composition.
Outcomes Knowledge of the range of issues to be taken into account in pre-drafting preparations. Understanding of the role definitions play in PA legislation and the rules governing their formulation. Clarity how the geographical and substantive application and scope of a protected areas law are prescribed in law. Knowledge of the form, nature, authoritative weight and role objectives and principles play in PA legislation Insight into the different institutional arrangements one typically finds in PA law and their composition, powers and functions.
Core Texts 15 Case Studies
Building Capacity on Protected Areas Law & Governance Module 3 Seminar Presentation Exercises knowledge transfer skills development Definitions, Objectives & Institutions
- Slides: 58