Environmental Law and Governance in the Pacific

Climate Change, Biodiversity and Communities

Margaretha Wewerinke-Singh, Evan Hamman, Margaretha Wewerinke-Singh, Evan Hamman

• Editorial: Routledge
• Año: 2020
• ISBN:
  9780429536489
• Edición: 1
• Categoría: Diritto
• Categoría: Diritto ambientale

This volume examines environmental law and governance in the Pacific, focusing on the emerging challenges this region faces. The Pacific is home to some of the world's most astonishing biological and cultural diversity. At the same time, Pacific Island nations are economically and technically under-resourced in the face of tremendous environmental challenges. Destructive weather events, ocean acidification, mining, logging, overfishing, and pollution increasingly degrade ecosystems and affect fishing, farming, and other cultural practices of Pacific Islanders. Accordingly, there is an urgent need to understand and analyse the role of law and governance in responding to these pressures in the Pacific. Drawing on academic and practitioner expertise from the Pacific region, as well as Europe and the United States, this unique collection navigates the major environmental law and governance challenges of the present and future of the Pacific. Environmental Law and Governance in the Pacific discusses 21 Pacific Island countries and territories, including Cook Islands, Fiji, Papua New Guinea, Solomon Islands, Vanuatu, and Samoa, and a broad range of themes, such as deep-sea mining, wetlands and mangroves, heritage, endangered species, human rights, and access to justice, are addressed, thus providing a comprehensive and state-of-the-art overview of environmental law and governance within specific jurisdictions as well as across the Pacific region as a whole.

This volume will be essential reading for students and scholars interested in environmental law and governance in the Pacific region, as well as policy-makers, practitioners and NGOs involved in the development and implementation of environmental law and policy.

Part I

Overview and context

1 Introduction

Margaretha Wewerinke-Singh and Evan Hamman

Pacific Island countries and territories (PICs) comprise vast land and marine ecosystems. Much of the world’s biodiversity is located in the region. Pacific Islands people and cultures are connected through the Pacific Ocean, which is larger than all of the planet’s land area combined. The region’s deep store of traditional knowledge includes sophisticated systems of natural resource ownership and management, developed over the course of millennia. These systems have been integrated, to varying degrees, into formal systems of environmental law and governance of PICs, creating a unique regulatory context for addressing various environmental challenges.

The environmental challenges facing the region are many. Agricultural and industrial pollution, ocean acidification, overfishing, mining, logging, radioactivity, and the dumping of hazardous waste all take their toll on the region’s ecosystems and societies. PICs are at the forefront of climate change, which has already led to loss of lives and livelihoods and forced entire villages to relocate from their traditional lands. The region’s vulnerability to environmental and climate degradation is amplified by resource constraints, both technical and financial.

Regional and international environmental law are crucial to bolster PIC’s capacity to address these challenges, individually and jointly. As Tsamenyi points out, the region’s dependency on marine resources for subsistence and commerce has long created a basis for regional cooperation towards protection of the ocean.¹ Today, regional cooperation on the environment has extended to other areas; climate change being the most prominent one. This cooperation happens, in large part, through a number of organisations that have been established over the years, including: the Pacific Islands Forum (PIF); the Pacific Islands Development Forum (PIDF); the Secretariat of the Pacific Community (SPC), the Secretariat of the Pacific Regional Environment Programme (SPREP); and the University of the South Pacific (USP). Each of these organisations plays a key role in the development and implementation of environmental law and governance in the region, addressing both local issues such as over-exploitation of marine resources and global issues such as climate change.

This collection weaves the various issues that arise in environmental law and governance in the Pacific Islands region together through three themes: climate change, biodiversity and natural resource management, and communities. It traverses current and future environmental law of the Pacific by a focus on emerging challenges. In terms of geographical coverage, the book focuses on the 21 SPREP member countries and territories across the region: American Samoa, Cook Islands, Federated States of Micronesia (FSM), Fiji, French Polynesia, Guam, Kiribati, the Marshall Islands, Nauru, New Caledonia, Niue, Northern Marianas, Palau, Papua New Guinea (PNG), Samoa, Solomon Islands, Tokelau, Tonga, Tuvalu, Vanuatu, and Wallis and Futuna. The collection takes relevant examples of legislation, governance, and policy from these jurisdictions to help draw out the main points for each chapter and present a snapshot of the challenges and opportunities the region faces.

The book has two main aims: (1): to accurately describe the current state of environmental law and governance aspects across the Pacific; and (2) to provide a scholarly and policy-relevant evaluation of the challenges, deficiencies, and opportunities for improvement in the hope of triggering further publications, debate, and law reform. Thus, the overarching objective of this book is not merely to be a collection of academic chapters on specific subjects, but a cohesive selection of academic contributions which can act as a thought-provoking and educational resource when read as a whole. In addition to external perspectives on the region, this collection also offers the reader practical insights of scholars who live, work, or have spent significant time in the region.

The structure of the book

Part I sets the scene for the collection. In Chapter 2, Sue Farran places Pacific environmental law in a context of legal pluralism. At the outset, the chapter explains that there is no such thing as ‘environmental law’ in the singular, as there are a great many laws which govern human interaction with the environment. For example, laws on the control of vehicle emissions, the disposal of household waste, the specification of fishing nets, the permitted size of catches, and the registration of vessels all classify as ‘environmental’. These laws are found not only in legislation but also in private law actions, such as nuisance. This plurality is found in all jurisdictions. However, in the Pacific region, legal pluralism denotes legal systems in which state law, in various forms, exists alongside non-state law, notably customary law. This relationship can be complementary or conflictual. The central premise of Farran’s chapter is that it is important to take account of these legal pluralities when considering the regulation of human activities that have environmental consequences, not only to ascertain the current legal framework but also when considering possible legal approaches to current or future issues.

Part II introduces one of the three major themes of the collection: climate change. Ocean acidification, sea level rise, increased cyclones and floods, relocation of communities, and crop failure are all major governance challenges for the Pacific directly or indirectly caused by climate change. This makes climate change by far the biggest socio-economic threat facing the region, a threat that has assumed existential proportions for most PICs. The three chapters in Part II are linked by that common theme and highlight the enormous regulatory and governance challenges PICs face. Contributions to Part II focus on solving these problems and draw a link with international climate change law and customary law. This Part shows how climate change is a pressing phenomenon for the region, and that governance approaches can be extended, or better utilised, to combat its effects.

In Chapter 3, Margaretha Wewerinke-Singh and Sarah Mead set the scene for Part II by shedding light on the various ways in which climate change is affecting the Pacific Island nations. The chapter describes the current international and regional legal frameworks that impact the Pacific, focusing on key concepts, such as ‘loss and damage’, ‘adaptation’, ‘climate finance’, and ‘mitigation’. The authors demonstrate how, at the international level, PICs have been instrumental in shaping the climate change treaty regime. At the regional and national levels, PICs have also taken concerted climate action – both to mitigate greenhouse gas emissions and to adapt to the adverse effects of climate change. Such climate leadership has not, however, been emulated by other (in particular, developed) countries. As a result, PICs are now considering legal avenues beyond the climate treaty regime in an effort to protect the present and future generations of Pacific Islanders from the adverse effects of climate change.

Chapter 4, by Kirsten Davies, builds upon the previous chapter to examine how traditional legal landscapes have been changing in response to climate change. Specifically, Davies’ chapter considers the contribution of traditional customary law and traditional environmental knowledge to solving a variety of climate change-related problems in the Pacific, including sea level rise, loss of culture, decline in biodiversity and loss of arable land. Davies argues that these customs can assist with developing future pathways concerning the security of humans and ecosystems in the region. Throughout her chapter, she demonstrates that as modern environmental law struggles to effectively respond to climate change, customary law may aid the process of re-establishing the vital human-nature relationship and bring hope to threatened communities and their island states.

In Chapter 5, the final chapter in Part II, Joseph Foukona provides an in-depth analysis of customary land, its existence in reference to state laws and the threats that arise in connection with environmental degradation. Customary land is central to identity, livelihood, and development. It is the hub for natural resources and ecosystem services of Pacific Island countries. It is untitled and shaped by social relationships, flexible, and adaptable processes. These processes are administered and managed by non-state actors in accordance with customary laws. Foukona sets out how state laws recognise and tolerate customary laws in reference to customary land, allowing for a plurality of unwritten and written laws to co-exist as part of the legal system. However, this co-existence remains subject to the repugnancy doctrine. To illustrate how state law recognises and tolerates customary law in reference to land, Foukona discusses a range of laws pertaining to customary land. The final section of his chapter discusses the threats that customary land continues to face due to the pressures of the ‘cash economy’ and climate risk. In particular, Foukona discusses how climate change and unsustainable resource use (logging, mining, etc.) create conflict between land rights and environmental protection.

Part III shifts the focus away from climate change to the governance of biodiversity and natural resource management. Chapter 6, by Eduardo Gallo-Cajiao, Evan Hamman and Bradley Woodworth, focuses on the international arrangements for the conservation of seabirds in the Pacific. The Pacific Island region is home to numerous species of seabirds that breed, and, in many cases, migrate widely throughout the Pacific. Seabirds feed on fish at sea and breed on often low-lying and geographically remote atolls. In recent years, seabirds of the Pacific have been at increased risk from hunting, fisheries by-catch (incidental catch), invasive species (feral cats, pigs, and rats), over-development, and climate change. There are clear gaps in the way institutional arrangements operate for seabirds. In addition, Pacific Island inclusion is noticeably absent from many of the more well-established multi-stakeholder governance arrangements, such as the East Asian-Australian Flyway Partnership and the Ramsar Convention on Wetlands. In this chapter, Gallo-Cajiao et al. provide an evaluation of the international institutional arrangements in place to protect seabirds, -concluding that the effective conservation essentially requires overcoming jurisdictional fragmentation.

In Chapter 7, Erika Techera sheds light on the challenges and opportunities relating to endangered and invasive species in the region. Safeguarding endangered flora and fauna, and protecting environments from alien invasive species, are contemporary anthropogenic challenges. Although human-induced animal extinctions are known in history, the scale of the present challenge is unprecedented. The predicti...

Índice

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of illustrations
• Notes on contributors
• Foreword
• Preface
• List of abbreviations
• Note on the text
• PART I: Overview and context
• PART II: Climate change
• PART III: Biodiversity and natural resource management
• PART IV: Communities
• Index