Legal approaches to MPA governance in Indo-Pacific small island states: A focus on public participation

Ocean and Coastal Management 177 (2019) 87–96

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Legal approaches to MPA governance in Indo-Pacific small island states: A focus on public participation

T

Erika Techera UWA Law School and UWA Oceans Institute, The University of Western Australia, Australia

A B S T R A C T

The Indo-Pacific small island states characteristically have relatively small land areas but large maritime zones that include biodiversity hotspots, fragile ecosystems and unique habitats affected by anthropogenic impacts and natural pressures. Whilst there are differences between these nations in terms of geography, history, and politico-legal systems, the majority are developing countries with limited technical and financial resources to implement laws for marine conservation and management. Despite these limitations all the small island states have laws for marine protected areas (MPAs) in one form or another. Because these countries also rely heavily on the coastal zone and marine resources in terms of subsistence and livelihoods for local communities, the extent to which the law accommodates civil society interests, and involvement in decision-making and management, is critical. Although some studies have explored law and policy relevant to MPAs in individual countries, rarely have countries across the Indo-Pacific region been compared. By doing so, different approaches and success stories can be shared, as well as legislative gaps and challenges addressed. This paper outlines the legal frameworks that provide for the establishment and management of MPAs in a selection of small island states across the Indo Pacific. The laws have been comparatively analysed to demonstrate the extent to which they provide for public participation and community-based management. The results are presented together with lessons learnt and recommendations made for future legal developments. The article, therefore, contributes to the growing body of literature on MPA governance, marine management in island States, and how to advance social sustainability.

1. Introduction This article explores marine protected area (MPA) laws in six IndoPacific island States and two further territories. The purpose is both to highlight the variety of legal frameworks in these jurisdictions, and to analyse the extent to which public participation and community-based management are provided for within the laws. This research therefore focuses squarely on achieving best practice MPA governance, in ways that ensure social sustainability. Worsening marine environmental indicators have led to efforts to protect both species and habitats. One mechanism that has received widespread endorsement is the establishment of marine protected areas (MPAs), as a conservation and management tool (Walmsley and White, 2003; Lester et al., 2009; Glenn et al., 2010). A MPA is ‘a clearly defined geographical space, recognized, dedicated and managed, through legal or other effective means, to achieve the long-term conservation of nature with associated ecosystem services and cultural values’ (Day et al., 2012, p.12). It has become one of the most common tools to conserve biodiversity and contribute to the management of natural resource use (Gall and Rodwell, 2016). MPAs have a long history of usage: under customary law traditional coastal and island communities closed areas to fishing and prohibited harvesting at various times of the year; and this was followed by early national designations of protected areas in the Twentieth Century

E-mail address: [email protected]. https://doi.org/10.1016/j.ocecoaman.2019.04.025 Received 31 January 2019; Accepted 26 April 2019 Available online 10 May 2019 0964-5691/ © 2019 Elsevier Ltd. All rights reserved.

(Techera, 2018). More recently, MPAs have been endorsed at the international level through the Convention on Biological Diversity (CBD), and in particular the adoption of Aichi Target 11 that by 2020 10% of global marine and coastal areas are conserved through systems of protected areas (CBD Strategic Plan for Biodiversity, 2011–2020, 2010). This target gained further support in 2015 when the United Nations (UN) Sustainable Development Goals (SDGs) 14.5 repeated this goal (UNGA, 2015 Agenda for Sustainable Development, 2015). These international developments have catalysed further domestic action, including the adoption of MPA laws, supplementing pre-existing national efforts to build protected area networks. Scientific research has demonstrated that MPAs can have multiple benefits for the protected habitat, as well species moving within it (Halpern, 2003). Whilst the greatest advantage can be made where marine reserves prohibits fishing, ‘94% of existing MPAs allow fishing activities’ (Costa et al., 2016, p.192). Such rules, however, often lead to community tensions as they can negatively impact on access and fishing rights (Mascia et al., 2010). The ecological benefits of MPAs can extend beyond the boundaries of the protected area and spill-over into adjacent areas (Russ and Alcala, 2011), therefore benefiting fishers. Although communities may be negatively impacted by reduced ocean health, MPAs can negatively impact on communities where access and resource rights are restricted. Furthermore, socio-economic benefits such as poverty alleviation and livelihood security, whilst possible, are not

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Indo-Pacific island States expands the existing scholarship,1 and contributes to the literature on MPA laws and the social dimensions of coastal and marine governance.

assured (Mascia et al., 2010). Beyond the need for further research, this raises several issues: the identification of ways in which to reduce community tensions, facilitate community support and encourage compliance with MPA rules. Therefore, it is imperative that all stakeholders be involved in governance arrangements, so that potential issues can be aired and tensions be ameliorated. It is in this context that specific provisions of MPA laws that allow for community involvement in designations and approval processes, requirements for public consultation and engagement, and community-based management are explored here. Laws and regulations are critical to effective MPA governance (Keane et al., 2011). This is confirmed by the IUCN definition of a MPA, set out above, as well as the CBD definition of a protected area in Article 2 which notes that it must be ‘designated or regulated and managed to achieve specific conservation objectives’. Whilst the laws themselves are important and must be tailored to the specific jurisdiction where they are to apply, they do not automatically ensure marine protection. MPAs must be fully implemented with clear rules and management plans, and it is also critical that efforts are made to encourage compliance and effectively enforce the law (Keane et al., 2008). As noted above MPAs can be controversial where they negatively impact upon communities; this can lead to resistance, conflict and tension, as well as non-compliance. It has been shown, for example, that ‘effective management and enforcement … may be strongly influenced by the social acceptability of the designation’ and that ‘stakeholders must ‘buy-in’ to the concept of the MPA and feel some ownership towards the site’ (Gall and Rodwell, 2016, p.30). MPA success can thus be advanced through ongoing stakeholder engagement and the inclusion of socio-economic factors, as well as good governance and enforcement (Rossiter and Levine, 2014; Gall and Rodwell, 2016). In the last few decades, approaches to protected area management have shifted from top-down, central control to more inclusive systems, which involve both environmental conservation and human development dimensions. At the international level, for example, the CBD Programme of Work on Protected Areas (PoWPA) supports participatory governance from a wide range of stakeholders (CBD, 2019). This aligns with international developments which support public participation and community-based governance (see e.g., UNCED Agenda 21, 1992; UNGA, 2015 Agenda for Sustainable Development, 2015). Some research has questioned the evidence linking participatory governance to the success of MPAs, and suggests that lack of funding is the primary barrier to MPAs achieving their goals (Stafford, 2018). Nevertheless, other findings indicate that where community-based approaches to governance are created, MPAs can reinvigorate traditional and Indigenous practices, meet community needs, respect cultural values and incorporate customary law (Ban and Frid, 2018). Furthermore, without addressing public resistance and building community support, compliance is weakened, and that MPA laws and rules are ‘worthless without compliance’ (Keane et al., 2008, p.75). Therefore, conservation outcomes can ‘only be achieved by reaching a sustainable balance with local human needs’ (Alvarado et al., 2015, p.369). It is in this context that ways must be identified to overcome tensions, and garner public support, to improve compliance. Informal mechanisms may exist which encourage and facilitate civil society governance contributions, however, a valuable lens through which to examine MPA laws is the extent to which they formally involve public participation and encourage community engagement. The article commences by examining the specific context of the Indo-Pacific case study countries. This is followed by an outline of the methodology utilized in this research, and the justification for selection of the five key elements for analysis. The sections that follow explore the detail of MPA laws in these States, with a focus on the participative elements. The discussion that follows analyses the different ways in which communities and the broader public are involved, explores the lessons learned and identifies a toolbox of legal options to achieve best practice socially sustainable governance of MPAs. This focus on the

2. Indo-Pacific context The focus in this article is on the Indo-Pacific which is justified given the heavy dependence coastal communities place on the marine environment (Perera and de Vos, 2007; Techera, 2005; Techera, 2006) and the high number of biodiversity hotspots in the region (Myers et al., 2000). Furthermore, the island nations are developing countries with limited resources for conservation and management of marine areas, and drafting, adopting, monitoring and enforcing the law. Therefore, maximising community engagement is critical in reducing conflicts and improving compliance, and to ensure the achievement of conservation goals. In the Pacific, there are a number of regional bodies and initiatives that encourage public participation including the Secretariat of the Pacific Regional Environment Program which includes participatory processes within the goal of ‘best practice environmental governance’ (SPREP, Strategic Plan, 2017–2026, 2017, p.17) and, most recently, the SIDS Accelerated Modalities of Action [S.A.M.O.A.] Pathway, which focuses on both public participation and public-community dialogue (SAMOA SIDS Accelerated Modalities of Action [S.A.M.O.A.] Pathway, 2014, paras 1, 27, 30, 40, and 77). In the Indian Ocean there is only one pan-regional organisation, the Indian Ocean Rim Association (IORA), which to date has not focused heavily on public participation beyond encouraging inter-governmental partnerships (IORA Sustainable Development Program, 2017). The IORA Priority and Focus Areas do, however, include women's empowerment (IORA Women’s Economic Empowerment, 2017). None of these initiatives place particular emphasis on embedding public participation in legal frameworks. In many Indo-Pacific States, governance arrangements to protect marine areas predated international efforts. Those islands which had Indigenous peoples also had traditional practices and customary laws that restricted activities in certain marine areas. In Vanuatu, for example, these were known as tabu (Techera, 2005). Colonial processes eroded these customary measures in many countries (Humber et al., 2015, p.71), however, as the island states gained independence they established protected area legislation and, as seen below, some jurisdictions have attempted to support community-based conservation through contemporary MPA legislation. More recently governments have sought to strengthen regimes to improve effectiveness, meet global goals and local needs, and this has taken different forms in each country. Comparatively analysing these jurisdictions highlights approaches taken as well as strengths and weaknesses of the different approaches. The Indo-Pacific island States are parties to key international treaties, such as the CBD, and therefore have obligations to establish MPAs in accordance with the above goals and other Aichi Targets. All of the States explored here have protected area management laws that allow for designation of terrestrial and marine areas; most have also adopted fisheries regulations which permit the creation of fisheries reserves. Although some scholars have explored these legal frameworks in one jurisdiction or another (Alvarado et al., 2015; Gruby and Basurto, 2013; Techera, 2005, 2006), or examined specific aspects (Ban and Frid, 2018), little legal literature focuses analyses the broader Indo-Pacific region. MPAs are essentially a conservation tool, and there is little doubt that by themselves they cannot solve the challenges facing our oceans. Integrated governance across sectors is essential and separation of 1 For example, Ban and Frid (2018) found that most of the literature focused on Oceania (Australia, New Zealand, Fiji, Samoa, Vanuatu, Cook Islands and Palau).

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conservation, fisheries, pollution, tourism and mining is likely to result in gaps and overlaps. Ultimately, cross-sectoral planning of marine spaces is needed. However this is a complex area requiring sophisticated legal frameworks, considerable technical and financial resources, strong political will, and community endorsement for development and implementation. Therefore, comprehensive cross-sectoral marine planning is likely to be beyond the immediate reach of many developing, and indeed some developed, countries. In this context, good governance of MPAs remains an important issue, and the laws that provide for designation and management of MPAs must be explored, in seeking to achieve effective oceans governance puzzle.

strongly in 1992 at the United Nations Conference on Environment and Development where it recognised that ‘environmental issues are best handled with the participation of all concerned citizens’ and emphasised the need for citizens to be provided with information and access to judicial and administrative proceedings, as well as ‘the opportunity to participate in decision-making processes’ (Rio Declaration on Environment and Development, 1992, principle 10). These opportunities for public participation can be weak (tokenism) or strong (empowerment), and exist across a spectrum between these extremes (Arnstein, 1969). For example, at the lower levels the public can simply be informed and/or consulted on various issues affecting them; but at the higher levels, participation involves collaboration, partnership and also complete empowerment in decision-making (International Association for Public Participation Australasia, 2004). Communitybased management sits at the upper end of this spectrum as it involves devolution of control of resources or areas to local groups. This research addresses the extent to which legislation provides for public participation across the full spectrum from tokenistic engagement in top-down processes, to bottom-up community-based management. Public participation can be facilitated in legislation in several ways. For example, public participation opportunities may be found in terms of compulsory consultation, membership of institutions appointed to govern MPAs (e.g., decision-making or advisory bodies on designation, planning and management), at the stage of identification and nomination for declaration of MPAs (e.g., communities may be given rights to propose a site for designation), categorisation and zoning of marine areas (e.g., inclusion of community access and use rights), and in the management planning and actions (e.g., mere consultation, through to involvement in decision-making bodies, and/or through communitybased management opportunities). Both procedural and substantive provisions are examined in these areas. In some cases, stakeholder engagement is a feature of the legislation and so the objects and purposes of the law are also explored. Furthermore, zoning marine parks into different areas for various uses, has also been adopted to minimize conflicts (Perera and de Vos, 2007) and so this aspect has also been included. To identify all the ways in which laws that provide for MPAs facilitate public participation, five key parts of the legislative instruments have been analysed:

3. Materials and methods This article is based upon a doctrinal analysis of the MPA laws in six island jurisdictions in the Indo-Pacific region, plus two further territories: Samoa, Solomon Islands and Vanuatu; Mauritius, Seychelles and Sri Lanka; and Cook Islands and Pitcairn Islands. These jurisdictions have been chosen in part because of their shared developing countries status, and dependence on the marine environment. Each provides has a different legal system and resulting approach to social sustainability and MPA governance, providing a rich range of legal provisions for analysis. Finally, a mix of Pacific and Indian Ocean States have been selected because, in combination, their laws have not been comparatively analysed. The research is founded on a desk-based analysis of the law and literature. A search was undertaken of key online databases of legislative instruments including AustLII (www.austlii.edu.au), PacLII (www. paclii.org), SeyLII (www.seylii.org) and FAOLEX (http://www.fao.org/ faolex/en/). Searches were conducted across these legal databases for legislation that governs ‘marine protected areas’, ‘MPAs’, ‘marine parks’, ‘aquatic reserves’ and ‘fish reserves’. A broader search was also undertaken for ‘protected area’, ‘parks’ and ‘reserves’, and results analysed to remove legislative instruments that were unrelated to conservation and natural resource management, such as areas set aside for security reasons or for infrastructure. The resulting list of statutes includes those focused entirely on MPAs, those that cover both terrestrial and marine protected areas (such as national parks statutes), and other legislation that provides for the designation of aquatic or marine reserves (e.g., fisheries regulations). The resulting list of instruments is set out in Table 1. This research involved analysing each statute to ascertain how and to what extent public participation is provided for. Support for public participation in the international environmental law literature emerged

1. 2. 3. 4. 5.

Table 1 List of legislation analysed. State/Territory

Protected area law

Samoa

National Parks and Reserves Act 1974 Fishery Management Act 2016 Village Fono Act 1990 Protected Area Act 2010 Fisheries Management Act 2015 National Parks Act 1993 Fisheries Act 2006 Environment Management and Conservation Act 2002 Native Terrestrial Biodiversity and National Parks Act 2015 Fisheries and Marine Resources Act 2007 National Parks and Nature Conservancy Act 1969 Fisheries Act 2014 Wild Animal and Bird Protection Act 1961 Fauna and Flora Protection Ordinance No.2 of 1907 (as amended) Fisheries and Aquatic Resources Act No. 02 of 1996 Coast Conservation Act No. 57 of 1981 Marae Moana Act 2017 Marine Protected Area Ordinance 2016

Solomon Islands Vanuatu

Mauritius Seychelles

Sri Lanka

Cook Islands Pitcairn Islands

Objects and/or purposes of the legislation; Institutional structure; Declaration processes and procedures; Categorisation and zoning of MPAs; and Management planning and actions.

Within each part, the provisions are analysed to determine the extent of their support for public participation, and their consideration of socio-cultural and socio-economic factors. 4. Indo-Pacific MPA laws in case study countries The sections below outline the laws that provide for the establishment of MPAs in three Pacific island States (Samoa, Solomon Islands and Vanuatu), three Indian Ocean island States (Mauritius, Seychelles and Sri Lanka), and two further territories Cook Islands and Pitcairn Islands). 4.1. Samoa In Samoa, the National Parks and Reserves Act 1974, is a statute to establish, preserve and administer national parks and reserves ‘for the benefit of the people’ (Preamble). National parks are administered to preserve their natural state, including the fauna, flora and value of the area, but (subject to necessary restrictions) public access is to be assured so that people receive the benefits of the park including 89

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Solomon Islands (s.4). ‘Fish’ are defined broadly under the Act to include all aquatic animals, plants or their parts (s.2). The Act includes principles which refer to ‘ecological balance’, ‘socio-economic benefits’, ‘customary rights’ and ‘interests of artisanal and subsistence fishers’ (s.5). Significantly, it is said that ‘an understanding of, and broad and accountable participation by, stakeholders in the conservation, management, development and sustainable use of fisheries resources shall be promoted to the extent practicable’ (s.5(p)). The Act provides for the creation of a Fisheries Advisory Council, but its membership is not set out (s.12). The Act includes provisions allowing for Community Fisheries Management Plans (s.18), the declaration of MPAs (s.19), agreements with communities for coordination and cooperation in conservation and management (s.2), and the full recognition of customary fishing rights (s.21). Importantly, under s.19(4)(b), if a proposed MPA covers an area where there are customary fishing rights, the agreement of rights holders is required. The extent of community engagement with respect to these areas is, however, unclear. Detailed consultation provisions, in the context of fishery management plans, are set out in the Second Schedule. 89 MPAs have been established in the Solomon Islands, as well as two further marine managed areas (World Heritage sites) (Marine Conservation Institute, 2019). Although reference is made to community conserved areas and tabu sites, the legal status of these is unclear.

‘inspiration, aesthetic appreciation, enjoyment and recreation’ (s.5). Although greater controls apply to nature reserves, and entry into these areas is restricted to certain purposes, a specific provision ensures that even if a marine area is declared to be a nature reserve it ‘shall not affect the customary fishing rights of any person’ (s.6). The only other socio-cultural reference is to historic reserves where they are of ‘national, historical, legendary or archaeological significance’ (s.8). Therefore, Samoa provides a state-based national parks system, but preserving customary access and use rights. Samoa also provides a system for community-based fisheries management (Techera, 2006). Under the Village Fono Act 1990, the authority of the customary village council (fono) is formally recognized and protected, an conferred with the original power it had pursuant to traditional custom and usage (ss. 2A). The fono adopt enforceable laws for a wide range of matters including ‘natural resources and the environment’ (s. 5). Decisions of the fono are legally binding on village members with a right of appeal to the Land and Titles Court (s.11). Ordinarily, such laws are not enforceable against outsiders, however under the Fisheries Management Act 2016, fishery by-laws passed by the fono (s.86) are enforceable against anyone (s.88(1)). Village Fishery Management Areas can also be declared under the Fisheries Management Act 2016, and these must be developed in consultation with fono and neighbouring villages taking into account customary ownership of land and traditional fisheries practices (s.19). Thereafter a Village Fishery Management Committee can be created (formed of local members) and Fishery Management Plans adopted. The by-laws and plans can include such a wide-range of rules that they can essentially create a MPA (s.86). These provisions create an opportunity for community-based management broadly and it is particularly strong as regards fishing where laws can be enforced against any outsider. This is unsurprising given the importance of traditional fishing rights and the recognition of the fono.

4.3. Vanuatu In Vanuatu, two pieces of legislation are relevant to MPAs (Techera, 2005). First, the National Parks Act 1993 provides for the declaration of areas, their protection and preservation, and associated matters. The purposes of the Act are set out in s.2(1) including protecting and preserving unique ecosystems, genetic resources and critical habitats, as well as areas of outstanding natural beauty and archaeological, scientific or environmental significance. Areas of cultural or religious significance are not mentioned, although other provisions in the Act appear to accommodate these. The Minister is granted power to declare such areas, on the recommendation of the National Parks Board (s.2(2)). The Board is established under s.3, and is largely comprised of government officers, together with the Chairman of the National Council of Chiefs, and three other members appointed by the Minister (s.4). The Board's responsibilities include determining areas and categories for protection, making recommendations about declarations and preparing management plans. Before recommending the declaration of a protected area the Board is required to consult with customary landowner, chiefs and local authorities, and to place a conspicuous notice in the relevant area, outlining the proposal and inviting submissions (s.8). Significantly, any objections or observations received must be forwarded to the Minister along with the Board's recommendation; ensuring that the final decision-maker has the opportunity to consider stakeholder comments (s.8(4)). Furthermore, the Minister has the power to order a public inquiry into the objections and representations received (s.9(2)). In preparing the management plan, the Board ‘may’ also consult with customary owners, chiefs, local authorities and other stakeholders the community, but this does not appear to be mandated (s.10). The Board must take into account any representations made, as well as facilities and services for public enjoyment or convenience or conservation of amenity, as well as ‘customary use including hunting and gathering’ (s.10(3)). Again the Minister must approve the management plan and take into account any comments made under the above provisions. Furthermore, the Minister may appoint a local management committee for any area, including a Board member, plus a representative of the Vanuatu National Council of Women for the area, the customary land owners, local authority, and chiefs whose areas includes part of the park or reserve (s.13(1)). The committee then plays an advisory role in relation to the management plan. The Act also establishes a Conservation Fund (s.18). The Act does not stipulate what controls must be in place for each park or reserve,

4.2. Solomon Islands The Protected Areas Act 2010 provides for the declaration and management of areas requiring special conservation measures. The objects of the Act include the establishment of a system of protected areas, and environmentally focused goals with no reference to communities or participation (s.3). The Act establishes a Protected Areas Advisory Committee which is to include four (unspecified) NGO representatives and four other members appointed by the Minister (s.4). This could allow for public participation and/or expert members. The functions of the Committee include assisting to develop, implement and review the national biodiversity strategy and action plan ‘in collaboration with the relevant stakeholders’ including NGOs (s.5(c)) and also to develop a code of conduct and standards for relevant NGOs (s.5(d)). The Committee has an advisory role, but also broader powers to assist in implementing the Act, to inspect any declared protected area, and to require NGOs to provide reports on their activities (s.6). Importantly, the Committee can appoint management committees comprised of owners of the protected areas, residents in the vicinity of the area, area managers, together with government officers (s.12). The procedures for declaration of protected areas require consultation with owners and/or other persons that may be affected by the designation, verification of rights and interests in the area, and publication of a notice setting out the details of the area and its biodiversity with a period for the public to make comments (s.10(2)). Significantly, the owner of any area and/or an NGO managing a conservation area can apply for the area to be formally declared (s.10(4)), and thereafter the Minister must ensure that the consent and approval of rights-holders has been obtained before granting the declaration (s.10(7)). The Act also includes some provisions focused on integration, with requirements for pre-existing fisheries or forestry areas to be registered under this Act too. The Fisheries Management Act 2015 is also relevant, providing for the conservation and sustainable use of fisheries and marine ecosystems in 90

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habitats (s.4). The Council is comprised of representatives from key ministries, plus one member from the University of Mauritius, two conservation specialists, a private sector and an NGO representative (s.5). Other members can be co-opted ‘who may be of assistance in relation to any matter before it,’ presumably allowing for a communitybased representative in certain circumstances (s.5(3)). Protected areas can include National Parks and Special Reserves, where the area is of ‘natural, scenic, scientific, educational, recreational or other importance or value’ and the ‘preservation of that land is necessary to protect, permit access to, or allow public viewing or enjoyment of the land’ (s.11). This provision is broadly worded and not restricted to an environmental or ecological foundation for declaration, but does not specifically refer to customary interests. Where conservation and protection of biodiversity is the goal, the area is declared as a Closed Reserve; Open Reserves are utilized where the purposes include conservation, education and recreation (s.11(2)). Management plans must be developed for every reserve area and buffer zone, and must set out objectives and proposals for management including places where the public require written permission to enter (s.16). Furthermore, detailed provisions are included for public display of, and comment on, the draft plans; the final plan (after any amendments are made) is also to be displayed. Thereafter, licences may be obtained to sell goods, provide services or carry out commercial activities on reserved land (s.17). The lack of inclusion of customary or traditional uses of areas may be because there were no Indigenous peoples in Mauritius, nonetheless the opportunities for engagement with and involvement of coastal communities in area-based management are limited. Another relevant Mauritian statute is the Fisheries and Marine Resources Act 2007, which is focused on management, conservation and protection of fisheries, marine resources and protection of marine ecosystems. It empowers the Minister to declare a MPA, by regulation, in any area of Mauritian waters (including the seabed) as a fishing reserve, marine park, or marine reserve (s.4). Further details of the procedure, consultation and definitions of each of these different designations, are not provided in the Act. The relevant Minister may establish consultative committees to provide advice on general policy related to fisheries and marine conservation (s.3). The membership is not specified, beyond confirming that the Minister himself is a member and anyone else s/he appoints or co-opts (s.3(2)). Only two references are made to community in the Act. The first relates to authorisation to establish a fish farming initiative which requires a social impact assessment to determine the impact and any benefits accruing to local communities (s.8B). The second reference is in relation to protected fish (defined widely under s.2 to include all non-avian aquatic organisms), and provides that the government can authorize the catching of a protected fish and/or collection of turtle eggs for purposes ‘beneficial to the community’ (s.16(2)). Both provisions recognise cultural attitudes towards aquaculture and fishing, but are not matched by other sociocultural provisions in relation to protection of the marine environment more broadly. It appears that 21 MPAs have been declared utilising this Act, including marine parks, fishing reserves and marine reserves (Marine Conservation Institute, 2019).

and this is left to the Regulations (s.21). The difficulty with this approach is that an area may be declared but until formal Regulations are adopted, no restrictions or rules automatically apply to it. The other relevant statute is the Environment, Management and Conservation Act 2002. The purposes of the legislation are not articulated, but the Act covers conservation, sustainable development and management of the Vanuatu environment. There are a number of provisions that embed participation, recognise the connection between communities and the natural environment, and provide for communitybased management. Section 7 for example, requires the government to prepare a National State of the Environment Report, which is to include not only ecological and natural resource use information, but also ‘an assessment of social and economic development trends and their likely impact on environment’. In addition, National Policy must also include an evaluation of social and custom considerations in promoting conservation and sustainable use of the environment; and policies and plans ‘must be developed through appropriate public consultation’ (s.9). These provisions facilitate greater integration of socio-cultural concerns in environmental planning and management. Environmental Impact Assessments (EIAs) are mandated under the Act, not only where there is a risk of significant environmental damage, but also where significant social and/or custom impacts are likely (s.12). The Act provides for broad stakeholder engagement in the EIA process, including ‘consultation, participation and involvement of custom landowners, chiefs and other interested parties’ (s.19), as well as requiring public notice of proposals and consideration of submissions made (s.20). The ‘construction of traditional or custom structures fabricated from traditional materials’ are excluded from these requirement, which is an acknowledgement of their importance (s.13). The Act establishes a Biodiversity Advisory Council, to provide advice on any matter relating to the implementation of the CBD (s.31), with membership including up to five people appointed by the Minister taking into account ‘custom’ needs (s.29). Of most relevance for this article, the Minister may ‘negotiate with custom landowners’ for the ‘protection and registration of any site as a Community Conservation Area’ (CCA) where a site has unique genetic, cultural, geological or biological resources, or is a habitat for unique or internationally important flora or fauna (s.35). Importantly, ‘land’ is defined in the Act to include land covered by water and therefore CCAs can include marine areas (s.2). CCAs are inclusive and community driven: customary landowners must agree to establish these areas and the government assists in reviewing the nature of the area, delineating the boundaries, identifying and evaluating conservation and management options, and verifying rights and interests in the land (s.36). The Act establishes an Environmental Registry (s.6), and a CCA is registered once the above rights and details have been determined, consent and approval has been given by rights-holders, and an appropriate conservation, protection or management plan has been developed (s.37). A specific provision allows for the restriction of access to commercially or culturally sensitive material in the Registry, again recognising the socio-legal issues associated with traditional knowledge, customs and practices (s.6(3)). Once registered, it is an offence to contravene a term or condition of a CCA (s.41(f)). Under these provisions, therefore, communities take the lead in seeking designation and protection of an area of their land, as well as planning and ongoing management, and can enforce the rules they devize, against outsiders.

4.5. Seychelles Seychellois protected area laws are included in a number of statutes (Techera, 2019). The principal Act is the National Parks and Nature Conservancy Act 1969 focused on the protection of ‘wildlife’, defined to include plants and animals on land and in the sea (s.2). Four types of listings are included: national park, special reserve, strict natural reserve and an area of outstanding natural beauty (s.5). National parks include areas set aside for propagation, protection and preservation of wildlife or places, including for aesthetic and historical reasons and the ‘advantage and enjoyment of the general public’ (s.2). An ‘area of outstanding natural beauty’ can be declared because it has ‘natural beauty or other special characteristics for its preservation and

4.4. Mauritius MPAs can be declared in Mauritius under the Native Terrestrial Biodiversity and National Parks Act 2015. Although focused on terrestrial biodiversity, under s.2 ‘land’ is defined to include land covered by sea, as well as the water column covering the land, and ‘wildlife’ includes fish and marine organisms. The Act establishes a Native Terrestrial Biodiversity and National Parks Advisory Council to advise the Minister on conservation generally, and the conservation status of species and 91

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necessary or expedient to protect the area in the public interest (s.3). Thereafter, the Act establishes a permitting system for entry into declared areas. No provisions provide for public participation or consultation. 19 MPAs have been declared across Seychellois waters as well as three further areas protected as World Heritage sites and wetlands of international importance; all four of the above Acts have been utilized in these designations (Marine Conservation Institute, 2019).

maintenance for the benefit, advantage and enjoyment of the general public’ (s.2). A ‘special reserve’ is an area in which ‘characteristic wild life requires protection and in which all other interests and activities are subordinated to this end’ (s.2). A strict natural reserve ‘means an area set aside to permit the free interaction of natural ecological factors without any outside interference’, in which hunting, fishing, activities on the land or in the soil, disturbance of flora and fauna or introduction of species are forbidden (s.2). These different listings allow for areas where public access is and is not permitted, but no reference is made to traditional or customary usage. The Act establishes the Seychelles National Environment Commission which was replaced in 1983 by the Seychelles National Parks Authority. This is a body corporate with broad roles including to develop national policy for the environment, to coordinate activities for conservation and management, and ‘to promote public education and participation in the study and conservation of the environment’ (s.3). The membership of the Commission/Authority is not detailed and the Act, which only stipulates that the Minister shall appoint at least five members (Schedule 1). Importantly, the Commission/Authority makes the proposal to the Minister for listing of an area under the Act, and the proposal must be publicly available for inspection with any submissions made being considered in the process (s.6). The National Parks and Nature Conservancy (Procedure for Designation of Areas) Regulations 1971 contains further details regarding the process, but not the management planning. No further sections of the Act set out procedures for management plans and public consultation. The Commission can make arrangements to facilitate public enjoyment and scientific study of a national park or area of outstanding national beauty (s.9). Nevertheless, the Minister can override the Commission/Authority with no provisions for appeal or review (s.12). The Act does make reference to the appointment of honorary park wardens, but it is unclear what would qualify a person for this position (s.14). The Seychellois Fisheries Act 2014 is focused on effective management and sustainable fisheries development, ecosystem-based approaches to management, licensing of vessels, and regulation of fisheries in general. The Act allows the Minister to close areas to fishing, and to establish management measures in those areas (s.6), in essence creating a MPA. Offences are prescribed for the taking of fish from a closed area during a closed period (s.64). The Act also includes provisions for fishery management plans. Significantly, provisions are included requiring consultation with the fishing industry, local fishers and other relevant persons in preparing and reviewing the plans (s.5(3)). In addition, provisions allow for co-management arrangements between government, local resource users, NGOs and other stakeholders including the tourism industry (s.5(4)). Although this section would only operate with respect to authorized fishing, not a closed area, it is nevertheless an inclusive law that encourages stakeholder involvement in management. The Wild Animal and Bird Protection Act 1961, is another relevant statute permitting the Minister to make regulations to protect animals and birds, and this has been done through the designation of nature reserves. The Wild Birds Protection (Nature Reserves) Regulations 1966 allows for islands and other places to be protected, and includes the inshore waters around the island. In Seychelles, some islands are privately owned by individuals and NGOs and this fact is reflected in the Regulations. Although there does not appear to be a consultative process in designation of the reserves, after establishment, any person can be appointed a warden with powers to reside in the reserve or enter, visit and inspect (Regs. 3 and 4). The owner of any land within a nature reserve is obliged not to do, or allow anything to be done, that could harm bird life, and a positive obligation to take measures as directed by the Chief Agricultural Officer (Reg.7). Finally, the Protected Area Act 1967, which is focused largely on establishing areas for security around strategic sites including military facilities, cables and other installations, rather than conservation. Nevertheless, ‘protected area’ is defined widely to include any place (s.2), where the President deems it

4.6. Sri Lanka There are several pieces of legislation that allow for the declaration of MPAs in Sri Lanka, all of which are quite detailed. This is unsurprising, as it is further along the spectrum of development than other States examined in this paper; and it is not considered to be a small island developing state. The purpose of the Fauna and Flora Protection Ordinance No.2. 1907 (as amended in 1993 and 2009) is to protect, conserve and prevent commercial misuse of flora and fauna and its habitats, as well as biodiversity. The Act provides for the declaration and management of national reserves (including marine national parks (formerly marine reserves)), and sanctuaries which may include marine areas (s.2). A marine national park is defined broadly to include the area of sea and adjacent coastal belt consisting of marine resources such as seagrass and coral beds etc (s.72). The specific procedure for declaration is not set out, and broad powers to order the establishment of a national reserve or sanctuary, change its categorisation or boundaries, or remove the designation, are given to the Minister (s.2). Under s.2A a management plan may be prepared by a Management Planning Committee, the composition of which is not specified, and neither is the procedure. The taking, hunting, wounding or killing of any wild animal within a marine national park is prohibited, as is the taking of eggs, firing of weapons, possession of traps or poisonous substances, and damaging of plants; introductions of species is also banned (s.6). All development activities located within 1 km of a reserve require a permit, and as part of the permitting process an EIA may be required which must be made available for public comment (s.9A). The Minister may appoint a Wildlife Conservation Advisory Committee comprised of two government officers and up to ten other (unspecified) persons (s.70); the specific role and purpose of the Committee is not set out. Significantly, any member of the public may bring proceedings to remedy or restrain a breach of the Act, regardless of whether that person has any rights that have been infringed (s.60E). The purposes of the Fisheries and Aquatic Resources Act No.2 1996 include the management, regulation, conservation and development of fisheries and aquatic resources, and the implementation of international law. Under s.3(2) a Fisheries and Resources Advisory Council is established, comprised of over 20 government members drawn from different agencies, plus 18 other representative members. The nongovernmental members include representatives of fishing cooperatives and associations, at least two representatives of women engaged in fishing and six members with special knowledge and experiences related to the fisheries industry or other sciences. The inclusion of specific reference to women is noteworthy. The Council advises the Minister on management, regulation, conservation and development of fisheries and marine resources (s.3(4)). The Minister can declare any area of Sri Lankan waters to be a fisheries reserve, where it is necessary to protect endangered species or critical habitats, protect the water itself, promote regeneration and research, and to preserve and enhance the natural beauty of the area (s.36). A permit must be obtained to fish, mine or construct infrastructure in these reserves (s.37). In addition, the fishers in any area may request that a Fisheries Management Area be designated (s.31(1)). Such Areas must have a Fisheries Management Coordinating Committee comprised of national government, local government and fishing members; the government can appoint other members to the Committee including representatives of women's groups and NGOs (s.31A). The Committee develops the management 92

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include zoning (s.22); relevant zones include general use, restricted commercial fishing, seabed minerals activity buffer, island protection, ocean habitat preservation and national marine park zones (s.23). No specific cultural or heritage zones are included, although some areas may be reserved for public enjoyment and appreciation (s.23(3)(c)). Importantly, the Island marine spatial plans may prepared by the Technical Advisory Group on its initiative, or an island community or island government can request the Technical Advisory Group to assist them in preparing such a plan (s.26). In any event, all such plans must be available for public comment before approval (s.26(4)). Whilst the Council approves the plans, it can only do so with the approval of, or at the request of, the island government (s.26(5)). This is one of the few Indo-Pacific island jurisdictions that has law supporting spatial planning, and it does so by providing a range of opportunities for public participation. The Marae Moana Act also establishes a MPA around all islands to a distance of 50 nautical miles from the coastline. The purpose is to protect a range of habitats, and therefore ‘large-scale commercial fishing’ and seabed minerals activities are prohibited, but ‘other ecologically sustainable uses are permitted’ (s.24). This provides a solid foundation of protection across inshore waters but with no public participation element. Section 25 provides for the declaration of additional MPAs – extensions of the above or new MPAs outside that area – allowing for further prohibitions of specified activities. Before these additional areas are designated, public notice must be given, a plan made available for inspection, ‘interested persons and organisations’ must be invited to make objections or comments and thereafter consideration must be given to submissions received (s.25(3)). One final provision is worth noting; the Council must prepare marae moana outlook reports, every 6 years, which must describe an assess a range of environmental aspects as well as ‘factors influencing the current and projected future environmental, economic and social values of the marae moana’ (s.34). Although not an independent nation the Pitcairn Islands have adopted a relevant law: the Pitcairn Islands Marine Protected Area Ordinance 2016. A key feature of this legislation is the inclusion of key principles that inform the approaches taken. Whilst conservation and protection of the marine environment and biodiversity are to be expected, of interest is the ‘preservation of customary fishing practices of Pitcairn residents’ (s.5). The principle is operationalized by waiving the prohibition on fishing in the Pitcairn MPA for lawful residents fishing with an attended line or if catching fish for food during transit to other islands (s.9). The Ordinance declares all Pitcairn waters to be a MPA, with Specially Protected Areas (where it is necessary for protection of the marine environment) and Coastal Conservation Areas (for conservation and sustainable management purposes, and/or sustenance and sustainable development of the community) within it (ss.7, 11 and 12). The relevant Island Council2 may adopt a Fisheries Management Plan where fishing is permitted (s.15), and any Regulations adopted under the Ordinance must be developed in consultation with the Island Council and having regard to the views of the Pitcairn Community (s.14).

plan for the Fisheries Management Area which may include division into zones for particular uses (presumably including the possibility of a no-take zone), as well as other regulations (gear, seasonal closures, protected species etc) (s.31B). Although the final plan must be gazetted there appears to be no requirement to advertise the draft plan, nor to seek public comments. The Coast Conservation Act No. 57 1981 is also relevant as the coastal zone is defined to include the area 2 km seaward of high water mark (s.42). A Coast Conservation Advisory Council is established under s.6, with a broad membership including 11 government officers and three other members (one of which must be a university academic, one from a voluntary organisation and one representing the fishing industry). The Council advises the Minister on developmental activities, reviews the Coastal Zone Management Plan, reviews EIAs associated with applications for permits to undertake activities in the coastal zone, and any other coastal conservation matters (s.7). The Act requires inventories to be prepared including all coastal areas used for religious, scenic value or recreational purposes, as well as those of scientific value, such as for fisheries, and where coral, seashell or sand are being mined (s.11). The Act also provides for the preparation of a coastal zone management plan which is to include details of areas to be reserved (s.12). The draft plan must be displayed and open for public comment (s.12(3)), after which the Minister may modify the plan and/or approve it (s.12(4)). Permits are then required to undertake activities in the coastal zone (s.14); although dredging of existing navigation channels appears to be excluded (s.22). Under the Regulations, criteria to determine whether a permit should be issued under s.14 include whether it would dislocate any existing fishing activities, or affect the ecosystem where the proposed activity is adjacent to a marine sanctuary (reg.2(b)); and development activities are not permitted in areas set aside for religious reasons, as a wildlife habitat, or for public recreation (reg.2(c)). Sri Lanka has declared 12 MPAs (under various designations), as well as four other marine managed areas (all of which are wetlands of international importance) (Marine Conservation Institute, 2019). 4.7. Other jurisdictions Several other island jurisdictions in the Pacific region have targeted MPA legislation that is worthy of consideration. Two are explored here: the Cook Islands (in free association within the New Zealand) and the Pitcairn Islands (British Overseas Territory). The Cook Islands' Marae Moana Act 2017 aims ‘to protect and conserve the ecological, biodiversity, and heritage values of the Cook Islands marine environment’ (s.3(1)). As contemporary legislation it unsurprisingly includes detailed purposes which, in addition to the above, provide an ‘integrated decision-making and management framework … to effectively balance marine conservation with ecologically sustainable use’, allow for a range of ‘economic, recreational and cultural activities’, and encourage ‘engagement in the protection and management of the marine environment by interested persons and groups’ (s.3(2)). The coverage includes the entire marae moana being all internal waters, the territorial sea and EEZ including airspace to 1,000 m and the seabed (s.8); making the marine area covered by the law, one of the largest in the world. Community participation, as well as principles of transparency and accountability, are specifically articulated in the Act (s.5). These purposes and principles are therefore embedded throughout the legislation. For example, a Marae Moana Council is established to approve policies and plans and to monitor the work of implementing agencies (s.10), with a membership comprising community, private sector and NGO members in addition to government (s.9). The subsidiary Technical Advisory Group has obligations to undertake public education and promotional activities to raise awareness of both restrictions imposed under the law, as well as the purposes, strategies and achievements of the Act (ss.15 and 16). The Act provides for the preparation of a ‘national marae moana spatial plan’ which must

5. Analysis What emerges from the above exploration of MPA laws is that different approaches have been taken in the various jurisdictions. The social aspects, and incorporation of opportunities for public participation and community-based management, sit on a spectrum. All of the States explored in this article provide for public participation in one form or another, but only a few go so far as to devolve responsibility to the local level through community-based governance. Each element is analysed, with the strongest provisions highlighted and summarised in 2

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Island Councils are elected bodies under the Local Government Ordinance.

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Table 2 Analysis of public participation in legislative instruments. State/Territory

Protected area law

Objects

Samoa

National Parks and Reserves Act 1974 Fishery Management Act 2016 Village Fono Act 1990 Protected Area Act 2010 Fisheries Management Act 2015 National Parks Act 1993 Environment Management and Conservation Act 2002 Native Terrestrial Biodiversity and National Parks Act 2015 Fisheries and Marine Resources Act 2007 National Parks and Nature Conservancy Act 1969 Fisheries Act 2014 Wild Animal and Bird Protection Act 1961 Fauna and Flora Protection Ordinance No.2 of 1907 Fisheries and Aquatic Resources Act No. 02 of 1996 Coast Conservation Act No. 57 of 1981 Marae Moana Act 2017 Marine Protected Area Ordinance 2016

X

Solomon Islands Vanuatu

Mauritius

Seychelles

Sri Lanka

Cook Islands Pitcairn Islands

X

Institutional structure

Declaration processes

Categorisation and zoning

X X x

x X X

x x

X X

X x X x X

x

x

x

x x

x

X

X X X X X

x

x

X x x

x

x

x

x X

X X X

x X x

X

X x

Management planning and actions

x X

x - legal provisions include the participatory elements. X - legal provisions offer reasonable public participation opportunities. X - legal provisions provide strong participatory elements.

(Village Fono Act). The extent of the powers given to the fono, combined with the provisions under the Fisheries Management Act, ensure that the village council can declare protected areas, make fisheries by-laws and enforce these provisions.

Table 2, before the toolbox of best practice options are identified. 5.1. Objects and purposes All of the statutes examined here had broad purposes, but only a few set out specific objects. The provisions range from including only environmental goals (Solomon Islands' Protected Area Act) to those that include environmental and aesthetic goals (Vanuatu's National Parks Act). Several of the statutes refer to the public broadly: e.g. the Samoan National Parks and Reserves Act refers to the ‘benefit of the public’. The most explicit objects and principles are found in the Cook Islands’ Marae Moana Act which refers specifically to community participation of all stakeholders in planning and management. Interestingly, the Vanuatu Environment Management and Conservation Act and the Seychelles National Parks and Nature Conservancy Act include policy development within the legislation, and in Vanuatu EIAs are required to guard against the risk of social and/or custom impacts.

5.3. Declaration processes and procedures The declaration process rarely refers to community engagement beyond public notice of the proposed area and opportunities for public submissions to be made (see, for example, Seychellois National Parks and Nature Conservancy Act). Stronger provisions include those in Solomon Islands' Protected Areas Act and Vanuatu's National Parks Act, which stipulate that consultation with owners is required. This is relevant where the Act allows for a protected area to be created over nonState land. The Vanuatu legislation goes the farthest in terms of empowering the Minister to order a public inquiry into objections received. Similar provisions exist in fisheries regulations, although consultation is often limited to fishers and industry rather than coastal communities more broadly (e.g. Seychelles). A couple of the laws allow communities to propose the declaration of a protected area: e.g., Solomon Islands' Protected Areas Act. This also tends to trigger an obligation on the Minister to ensure the consent of all landowners. Vanuatu's provisions on community conserved areas permit the Minister to ‘negotiate’ with custom landowners, and these owners must agree before a site can be listed: Environment Management and Conservation Act.

5.2. Institutional structure Most of the laws explored above, include the creation of an institution to provide advice, management planning and/or oversight of MPAs. In Seychelles, under the National Parks and Nature Conservancy Act the Authority has a role in promoting public education and public participation, as well as facilitating enjoyment of protected areas. In terms of the membership of these bodies, most jurisdictions have a category of ‘other members’ beyond government officers, which could include community or public representatives: Solomon Islands Protected Area Act; Vanuatu National Parks Act; Mauritius' Native Terrestrial Biodiversity and National Parks Act. Sri Lanka has tended to specify the groups to be included, such as fishing co-operatives and women fishers. Furthermore, the other members of the Wildlife Conservation Advisory Committee outnumber the government officers: Fauna and Flora Protection Ordinance. An alternative is included in the Vanuatu Environment Management and Conservation Act which requires the Minister to take into account ‘custom’ needs in selecting these other members. Only Samoa devolves local level decision-making to the village

5.4. Categorisation and zoning Most jurisdictions include multiple categories of areas within their protected area laws: e.g., Mauritius' Native Terrestrial Biodiversity and National Parks Act; and the Seychellois National Parks and Nature Conservancy Act. Some of these areas include designations for public recreation purposes alongside environmental conservation (Mauritius' Native Terrestrial Biodiversity and National Parks Act). Most of the statutes do also refer to public access in these areas: e.g., Samoa's National Parks and Reserves Act. Some also allow for categories of protected areas where public access is restricted in order to preserve environmental and 94

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simple regime, rather than the laws being spread across different instruments. The scope of the law should also be broad and include policy development as well as specific protected area provisions, and ideally incorporate marine spatial planning. The Cook Islands Marae Moana Act is an excellent example of such an Act. Setting out the objects and purposes of the legislation ensures a clear understanding of what the law is trying to achieve. These should be worded to incorporate multiple goals – environmental, economic and socio-cultural – reflecting the specific national context. Samoa and the Cook Islands provide useful examples here. Broad and effective public involvement in government authorities is critical. The nomination of specific groups can be articulated in the legislation, taking into account representative bodies (industry, NGOs etc), gender-based and other groups. The more non-governmental members there are in these bodies, the greater influence they can play in decision-making. Sri Lankan legislation includes broad public participation, including the identification of specific groups. Processes and procedures must allow for the participation of stakeholders at the MPA declaration stage as well as in management planning. For example, Vanuatu and Solomon Islands legislation empowers communities to nominate sites for designation. Samoa provides a different example, by granting power to the village council to make rules for conservation and utilization of marine areas. Best practice would include going beyond mere consultation, and genuinely engage stakeholders at all stages with co-management providing the greatest opportunities. Only Vanuatu and Samoa allow for the devolution of management to the local level. In order to be of maximum benefit, the authorities should have powers that extend beyond simply giving advice on proposed protected areas. Playing a strong part in public engagement, implementing the provisions of the Act and facilitating integration are all important. The area designations and plans themselves must take account of community interests which needs to be tailored to the specific context. The considerations may include recognition of customary access and use rights, cultural and religious values. Arrangements can also be included for communities themselves to request or trigger proposals for listing. Beyond effective implementation, compliance and enforcement are other common challenges (Gardner et al., 2018, p.33). Large ocean areas, distributed communities, limited resources all hamper monitoring, surveillance and enforcement. Utilising community rangers and village processes can be valuable but they must be provided with some means to apply the law (Gardner et al., 2018, p.33). The above analysis demonstrates several ways to overcome the enforcement challenges and again these must be tailored for the local context; community-based rangers may be appropriate in some circumstances and village-based enforcement in others. Community participation, engagement and management, can occur effectively, in the absence of formal provisions in legal frameworks. The Locally Managed Marine Areas (LMMAs) Network is an example (LMMA Network, 2016). Yet research has suggested that the lack of formal legal recognition and structures can be a challenge, particularly with regard to enforcement (Rocliffe et al., 2014). Furthermore, what the law provides for and the reality on the ground may be different, and indeed vary across any one country. It has been found, for example, that ‘the effective level of local community participation in decision-making may vary between sites’ including skewed negotiation processes, domination by sub-groups within villages, and manipulation of processes to support other power struggles (Gardner et al., 2018, p.32). Therefore, collaborative and/or co-management can provide dual benefits to the community. The legal provisions in Samoa and Vanuatu, as well as the fishery regulations in Sri Lanka, provide models for how this can be achieved.

biodiversity values: National Parks and Reserves Act (Samoa); Unsurprisingly, the States with Indigenous peoples and where customary land ownership remains in place, customary fishing rights are preserved: Samoa's National Parks and Reserves Act. The Pitcairn Islands Marine Protected Area Ordinance also refers to ‘preservation of customary fishing practices’. Sri Lanka includes areas set aside for religious reasons, and others in which activities are restricted: Coast Conservation Act. Vanuatu is the only jurisdiction to permit community-conserved areas and strong provisions to protect access to culturally sensitive materials. The Cook Islands' Marae Moana Act is the only legislation examined here, that includes provisions for detailed multi-zonal marine spatial planning across all national waters. It is therefore the most comprehensive legislation and also includes the most detailed stakeholder participation provisions covering institutional membership, consultation in designating and managing areas. Sri Lanka's Fisheries and Aquatic Resources Act does, however, allow for multi-zonal fisheries management plans, and coastal zone management plans under the Coast Conservation Act. 5.5. Management and planning In terms of consultation, most of the statutes require public notice of draft management plans, opportunities for public submissions, and consideration of those submissions. Several statutes require plans and strategies to be developed in collaboration with stakeholders (Solomon Islands’ Protected Areas Act) or include obligations to consult with customary owners, chiefs and other community members (National Parks Act Vanuatu). In the Pitcairn Islands Marine Protected Area Ordinance, consultation with island councils is required. Stronger provisions allow for the establishment of management committees involving customary owners and/or community members: Solomon Islands’ Protected Areas Act; Vanuatu National Parks Act. Some Acts stipulate considerations that must be taken into account. The Vanuatu National Parks Act requires both services for the public as well as customary hunting and gathering to be considered. The greatest level of participation is under the Vanuatu Environment Management and Conservation Act where management plans for customary conserved areas are collaboratively developed. Several of the laws examined here create exemptions for customary uses of protected areas. For example, the Solomon Islands' Fisheries Act creates some exceptions preserving traditional use rights of environmental resources. Sri Lanka's Flora and Fauna Ordinance does provide exceptions for customary rights, usages and practices but these must be prescribed by the Minister. Sri Lankan law has other provisions emphasising that fishing is an important local livelihood. As noted above, Samoa provides for community-based management through the Village Fono Act and Fisheries Management Act. Vanuatu does the same but through a different mechanism: the community conserved areas under the Environment Management and Conservation Act. Seychelles facilitates co-management of fishing areas under the Fisheries Act. Seychelles also allows a community member or other person to be appointed a warden of an area listed under the Wild Animal and Bird Protection Act. The Sri Lankan Fauna and Flora Protection Ordinance provides broad rights of standing to bring proceedings to remedy a breach of the law; allowing any member of the public to do so. Another interesting inclusion is the requirement for reporting on environmental, economic and social aspects under the Cook Islands’ Marae Moana Act. 5.6. Identifying a toolbox of best practice legal provisions

6. Conclusions

The above analysis demonstrates that each jurisdiction has some interesting provisions which can be synthesized to identify a toolbox of best practice legal options. The findings are summarised in Table 2. It is clear that one piece of MPA legislation creates a clear and

As MPA declarations continue to grow, attention must be paid to making them work; to achieve their conservation and management 95

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goals. Involving the public broadly, together with specific stakeholder communities, is critical in garnering support for MPAs and enhancing compliance. Law can play a role by establishing substantive and procedural opportunities for public participation; from consultation and involvement in decision-making, to collaboration and devolution of management. This article has examined legislation that provides for MPAs in eight Indo-Pacific jurisdictions to highlight the extent to which, and how, public participation opportunities are incorporated. It has been found that law should be clear and understandable to all citizens. In this regard, one legislative instrument focused specifically on MPAs is preferable to marine areas being declared across a variety of statutes, each with different procedures and substantive rules. This analysis has found that provisions vary considerably between jurisdictions, with no two pieces of legislation being the same. This is to be expected given the diversity of legal systems across the case study countries. Each of the jurisdictions examined has some strong provisions, and these have been highlighted and drawn out. By comparatively analysing these jurisdictions, it has been possible to identify a toolbox of best practice legal options.

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