Professor Donna Craig , School of Law, University of Western Sydney

1. Professor Donna Craig, School of Law, University of Western Sydney Contact: donna.craig@uws.edu.au Acknowledgement: Thanks to Robyn Taylor for assisting me with this power point presentation Indigenous Governance of Biodiversity Impacted by Climate Change in Melanesia: Role of Customary Law and Community Based Environmental Management

2. Locally Based Natural Resource Management • Is a viable approach to sustainably use and conserve biodiversity impacted by climate change in the South Pacific and other regions of the world. • RESEARCH REPORT: • Indigenous Governance of Natural Resources in Melanesia: A Project on Harmonising Customary Institutions, State Laws and Environmental Management Approaches, 2008 (Donna Craig, Justin Rose, Michael Jeffery, Eric Kwa, Yoli Tomtavala): • Funded by the Christensen Fund and conducted in partnership with Melanesian environmental lawyers: focus on “biocultural”: • The rich but neglected adaptive interweave of people, place, culture and ecology

3. The Research Project • Process: • Reviewed literature • Examined case studies of collaborative biodiversity governance. • Aim: • To generate knowledge of ways in which customary law and state law are cooperating, conflicting and converging with regard to Melanesia’s local-level natural resource governance • To draw some conclusions regarding the appropriate roles of laws, particularly state laws, in supporting community-based biodiversity governance in Melanesia

4. The Research Project • Case Studies Selected: • Vatthe Conservation Area in Espiritu Santo, Vanuatu • Talasea District, West New Britain, Papua New Guinea • Pohnpei, Federated States of Micronesia • Focus: • ‘Bottom-up’ perspectives on customary law and relationship with other forms of law and practice • Cross Regional Comparison: • Case studies provided scope for understanding legal & institutional change for collaborative biodiversity governance

5. Melanesian Context

6. Vatthe Conservation Area, Island of Espiritu Santo,Vanuatu Source: http://www.positiveearth.org/bungalows/slideshow/vatthe1.htm

7. Watershed Forest, Pohnpei, Federated States of Micronesia

8. Talaesa District West New Britain, Papua New Guinea Source: http://www.coralcoe.org.au/news_stories/marineparks/imagegallery.html

9. Cross-regional Comparison

10. Role of Law • Why take law seriously? • What do we mean by law in this context? • Rarely Asked Questions: • What legal approaches are taken to implementing community –based resource governance (CBEM) in Melanesia? • Are there examples where legal approaches &institutional structures are working well in sustaining social and ecological aspects of CBEM? • Are there approaches that have proven ineffective or counterproductive in Melanesia? • Future directions and lessons from case studies?

11. Terminology Source: Pimbert,M and Pretty,J in Kothari eta la (eds), Communities and Conservation: Natural Resource Management in South and Central Asia, (New Delhi, Sage, 1998) pg.6

12. Terminology • Source: (Borrini-Feyerabend,G, collaborative management of protected areas: tailoring the approach to the context (gland:iucn,1996) pg 12)

13. Terminology Source: (IUCN Environmental Law Program, Customary Laws Governing Natural Resource Management in the Northern Area (Karachi, IUCN Pakistan, 2003) pg Xii

14. Terminology

15. Governance • In Melanesia – at least 2 forms of law co-exist but CBEM is largely associated with a revival of sovereignty of communities to maintain, adapt or create norms and practices relating to natural resources • Customary law evolves and adapts –as with other forms of law • CBEM associated with greater recognition of customary law • “Good Governance” and “Bad Governance” is complex in plural legal systems and context of CBEM. Importance of: • Role of Laws and institutions – possibly pluralist systems • Decentralisation • Subsidiarity • Adaptation and flexibility

16. Governance • The Not So Tragic Commons: • Elinor Ostrom awarded Nobel Prize for 30 years of work rejecting inevitability of tragedy of commons (suggested by Garrett Harding) • Common Property: • Corporate group property held in full ownership or right less than ownership (FAO) • Should not be confused with open access resources • Governance of commons possible - but depends on a range of factors • Impacted by international donors and civil society financing organisations • These factors interacts with legal pluralism in Melanesia

17. Governance • Developing Legal Perspectives that are Sensitive to and Privilege Biocultural Diversity and Integrity (Justin Rose, cf final report): • Paradigm shift towards participatory approaches and CBEM and recognising cultural diversity as integral to biodiversity • Legal aspects are under researched and under theorised • Legal research and scholarship prioritising biocultural biodiversity and adaptive approaches to climate change needs to offer alternatives to positivist law locating authority only in the State • “Bottom-up” law requires cultural respect and research based on multi-disciplinary approaches and cross-cultural theories of law • New legal approaches that can be applied to CBEM in Melanesia and elsewhere

18. Customary Law in Melanesia • Most land and in-shore sea resources held in customary law tenure • Some legal and constitutional recognition • Pacific Island experience shows that management and protection of biodiversity needs local communities at centre • Communities, cultures and livelihoods very dependent on natural resources • State law, customary law and “project law” co-exist • Strengths and weaknesses of different forms of law? • Must be a commitment to meaningful participation • Common property research - need to understanding full range of incentives of local participants in CBEM

19. Role of State Law • Define rules by which local institutions interact with outsiders • Define limits of State power and respect for local autonomy • Provide basic constitutional protections for individuals against abuses of power at local level • Provide basic standards and guidelines for protection of the broader public interests • ManyCBEM programs have no enabling legislation • pilot projects • erratic funding • Failure to learn from experience and scale –up (LMMA’s exception) • law is seen as an impediment to social change • Source: (New Zealand Law Reform Commission Report: Converging Currents; Custom and Human Rights in the Pacific, Wellington, NZLC, 2006)

20. Recognition of Local Polities and Law • Often needs wider recognition of customary law and institutions (e.g. role of VillageFono Act) 1990 in Samoa • External professionals funders need to be aware of strengths and weaknessesof State law and customary law

21. Aim for Recognition and Co-operation Giving Priority for Biocultural Integrity: • Need flexibility in deciding management objectives and the rules used to achieve objectives • Flexibility in how State law handles recognition of local groups and polities • Flexibility in regard to how State law defines management groups and areas of jurisdiction • Flexibility in allowing participating communities to self-select particularly early stages of novel CBEM program

22. Law as an Enabling Tool for Security • Security and clarity of rights that are recognised • Security that rights cannot be taken away and changed unilaterally and unfairly • Rights should be permanent or near permanent – long enough for full benefits of participation to be realised • Rights need to be enforceable against State • Security of exclusive rights and clarity as to boundary of resources to which they apply • Legal recognition or personality for rights holders • Accessible, affordable and fair avenues for protection of rights, resolving disputes and appealing disputes of government officials (Lindsay, Rose)

23. Conclusions from Case Studies