1. Building Capacity on Protected Areas Law & Governance Definitions, Objectives & Institutions Module 3

2. Building Capacity on Protected Areas Law & Governance Definitions, Objectives & Institutions 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.

3. Overview of the Seminar Pre-Drafting Preparations Scope & Application Definitions Objectives & Principles Institutional Arrangements

4. 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. 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. Clarify how the geographical and substantive application and scope of a PA law are prescribed.

5. 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. 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. Clarity how the geographical and substantive application and scope of a PA law are legally prescribed.

6. Overview of the Seminar Pre-Drafting Preparations Scope & Application Definitions Objectives & Principles Institutional Arrangements

7. Acknowledging Diversity differences colourshape texturecomposition size weight legal traditionlegal process legal hierarchyinst’al framework socio/eco concerns conserv priorities

8. Pre-Drafting Preparations preparations are essential! why? what? how?

9. Pre-Drafting Preparations… international obligations existing policies existing laws constitutional provisions what?key preliminary legal issues/factors ? institutional framework

10. Constitutional Provisions fundamental rights/duties structure of government substantive rights/duties procedural rights/duties branches distribution of sovereignty environment property indigenous peoples access to information administrative justice access to the courts legislature executive judiciary unitary federal confederal

11. International Obligations review obligations multilateral treaties bilateral agreements decisions give domestic legal effect monist approach dualist approach

12. Existing Policies understand the policy context policies strategies & action plansreports & speeches law building on policy reflect in long-title reflect in preamble reflect in principles/objectives

13. Existing Laws review existing laws identify gaps & overlaps review strengths & weaknesses assess state of implementation PA laws natural resource laws other laws

14. Institutional Framework review relevant institutions government authoritiesnon-government actors understand mandates/roles review overlaps/conflicts assess capacity scope opportunities for cooperation

15. Pre-Drafting Preparations… international obligations existing policies existing laws constitutional provisions what?key preliminary legal issues/factors ? institutional framework

16. Pre-Drafting Preparations… formal approval process consultation process how?what procedures should be followed ? what form should the legal reform take?

17. 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

18. 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

19. Form of Legal Reform introduce a new law amend an existing law law governing individual PAgeneral PA law subordinate legislation primary legislation stand-alone PA lawchapt in omnibus enviro law OR

20. Overview of the Seminar Pre-Drafting Preparations Definitions

21. interpret the law through the definitions the general rules international definitions where does one find them

22. Where does one find definitions?  Name & number  Title  Preamble  Substance  Definitions  Principles & objectives  Institutions  Substantive provisions  Compliance and enforcement  Power to make regulations/rules  Commencement & transition  Annex/Schedules  Planning for Protected Areas  Types of Protected Areas  Establishment and Disestablishment  Management of Protected Areas  Conservation Agreements  Regulated activities  Financing definitions general specific general

23. 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

24. The General Rules…  Definitions should provide clarity and not uncertainty example 1 ‘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.’

25. The General Rules…  Words/terms should not be over-defined example 2 ‘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.

26. The General Rules…  Definitions should not contain substantive law/rules example 3 ‘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.’

27. International Definitions treatiesguidelines Biological diversity/biodiversity Biological resources Cultural heritage Ecosystem Habitat In-site conservation Living modified organism Migratory species Natural heritage Protected area Sustainable use Wetlands draw from internationally recognised definitions 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

28. Overview of the Seminar Pre-Drafting Preparations Scope & Application Definitions

29. Scope & Application relation to other resource laws repeal/revision of old laws areas of overlap/conflict geographical/substantive scope coordination & consultation relation to framework enviro laws

30. Overview of the Seminar Pre-Drafting Preparations Scope & Application Definitions Objectives & Principles

31. objectives principles set out purpose/intent of the PA law guide implementation of the PA law guide implementation of the PA law set out fundamental principles of the PA law how to formulate them nature of their content

32. Objectives & Principles how to formulate them draw from relevant national policy context persuasive vs prescriptive formulations ensure consistent with international policy context make provision for implementation cross-legal implementation

33. Objectives… nature of their content primary objective long-term conservation of nature, including biodiversity and geodiversity, with associated ecosystems services and cultural values general nature conservation targeted nature conservation ecosystem services & functions social & governance other objectives

34. Principles… nature of their content precautionary principle social equity & justice public participation prior-informed consent science-based decision-making

35. Overview of the Seminar Pre-Drafting Preparations Scope & Application Definitions Objectives & Principles Institutional Arrangements

36. who are relevant PA authorities/institutions? what is the form/nature of the powers/functions? what forms of coordination mechanisms are required? policy advisory administration management

37. Institutional Arrangements…

38. PA Authorities & Functions National Biodiversity Institute Department of Nature National Parks Agency Minister of Naturepolicy advisory administration management Minister of Waterpolicy Department of Water Affairs management Wanui Naturemanagement NatureComanagement Wetland Trust management Peat Communityco-management Wanui Communitymanagement policy Department of Public Works administration

39. Coordination Mechanisms PA authorities with other government authorities between relevant PA authorities between co-management authorities

40. Coordination Mechanisms… Department of Agriculture Minister of Mining Department of Mining Minister of Agriculture Minister of Energy Department of Energy Department of Public Works Minister of Public Works PA & other government authorities PA Authorities Energy Authorities Mining Authorities Agric Authorities Land Authorities

41. Coordination Mechanisms… between relevant PA authorities National Biodiversity Institute Department of Nature National Parks Agency Minister of Nature Minister of Water Department of Water Affairs Wanui Nature NatureCo Wetland Trust Peat Community Wanui Community

42. Coordination Mechanisms… between co-management authorities National Parks Agency Peat Community

43. Institutional Arrangements who are relevant PA authorities/institutions? what is the form/nature of the powers/functions? what forms of coordination mechanisms are required? policy advisory administration management the PA law

44. Institutional Arrangements advisory authorities co-management authorities management authorities general considerations coordination mechanisms policy institutions administrative institutions

45. General Considerations …  Diverse & Country Specific  PA Authorities/Institutions  Diverse in Nature  Ministers  Departments  Statutory authorities/corporations  Non-government organisations  Local communities & indigenous peoples  Private citizens  Corporate entitles  Diverse in Function  Policy  Advisory  Administration  Management  Multitude of Levels/Spheres  Federal/state/local  Conservation, biodiversity, forestry, fresh water, marine …

46. 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.

47. 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.

48. Policy Institutions  Who?  Relevant Minister  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

49. 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

50. 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

51. 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

52. 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

53. 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

54. Overview of the Seminar Pre-Drafting Preparations Scope & Application Definitions Objectives & Principles Institutional Arrangements

55. 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. 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. Clarify how the geographical and substantive application and scope of a PA law are prescribed.

56. 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. 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. Clarity how the geographical and substantive application and scope of a protected areas law are prescribed in law.

57. Core Texts 15 Case Studies5 Case Studies

58. Building Capacity on Protected Areas Law & Governance Module 3 Seminar Presentation Exercises knowledge transferskills development Definitions, Objectives & Institutions