-Module 11-

marine protected areas

-special legal considerations for

national frameworks-

Exercise 2

Improving Protected Area Legislation for MPAs

OBJECTIVES AND INSTRUCTIONS

  • Nature of the Exercise
  • Knowledge-reinforcing exercise
  • Legal analysis in small groups
  • Providing practical legal advice
  • Discussion forum
  • Purpose of the Exercise
  • Give Learners practice reading and analysing protected areas legal provisions for MPAs.
  • Provide Learners with an opportunity to practically apply their knowledge regarding the special considerations applicable to MPAs and how to address those in legislation.
  • Build/improve legal analysis and drafting skills.
  • Structure of the Exercise(times are indicative, may vary according to audience and setting)
  • Introduction by Educator (15 minutes)
  • Small group work (60 minutes)
  • Joint class discussion (45 minutes)
  • Methodology/Procedure
  • Divide Learners into small groups.
  • Introduction to the Exercise – facilitated by pre-prepared presentation (15 minutes)
  • Explain the nature and purpose of the Exercise.
  • Briefly introduce the law which will be the focus of the Exercise (use either the hypothetical/generic example provided in Annex B, or an existinglaw relevant to the Learners’ context; where feasible, identification of existing laws is encouraged, even if the generic example also is used).
  • Introduce the task – explain that the relevant Government has assigned them the task of reviewing the law andmaking recommendations regarding its strong points and areas where strengthening and amendment may be needed to effectively address the special considerations of MPAs.
  • Instruct the groups to read carefully through the generic law (or other assigned law). Drawing from the knowledge conveyed in the Seminar Presentation, work together to discuss the law,identify its strong points and areas that need strengthening through amendments, focusing on each of the following provisions, one by one:
  • Definitions
  • Scope of application of the law
  • Provisions relating to objectives and strategic planning
  • Institutional and governance arrangements
  • Establishment and management
  • Regulation of activities
  • Compliance and enforcement
  • Instruct the groups also to analyze whether the law overall adequately incorporates connectivity conservation concepts and identify any other overall concepts or issues to point out as part of their recommendations, where considered important.
  • Instruct the group to nominate a scribe to record the recommendations, and nominate a rapporteur to report back to the joint group.
  • Highlight that there is no one correct answer and that the purpose of the exercise is to become familiar with legal provisions and how concepts may be introduced specifically for MPA law. Indicate that the groups will have 60 minutes to complete the task and that they may use a pre-prepared common Worksheet (Annex C) to record their notes and recommendations, which will be distributed to them in advance.
  • Small group exercise (60 minutes)
  • During this time the Learners will complete the task outlined above.
  • The Educator will rotate among the groups to answer questions, prompt ideas, and stimulate discussion.
  • The Educator with facilitate the work of the Learners by providing copies of any of the slides shown in the pre-prepared Presentation that he/she feels may be helpful, plus the Worksheet, additional paper and pens/pencils as needed and useful.
  • Joint group discussion (45 minutes)
  • All Learners will then come back together and the rapporteur for each group will give highlights of its findings, supplemented with additional comments or questions from other Learners in that group or the other group. The Educator, drawing on the contributions of the Learners, will then present an analysis of the relevant law and the recommendations for amendment, using the Summary of Possible Responses (Annex D) as helpful. If the hypothetical law is the focus of the Exercise, the Educator may wish to provide a hard copy of the AnnexD and work through it systematically with the Learners.
  • Additional notes for educator
  • Hypothetical exampleof a Marine Protected Areas Act (AnnexB):
  • This exampleprovides framework provisions normally included in some form in MPA legislation that provide the focus for the exercise. This example has been prepared to reinforce and apply knowledge learned in the Seminar presentation of Module 11. Its purpose is to have Learners identify key legal elements needing special attention for MPAs, especially strong points, gaps and areas for strengthening through amendment. The example is not comprehensive. A complete MPA law would be more expansive in containing also the many generic elements needed in PA law as well as MPA-specific needs, and these may be amplified for the particular situation.
  • It is important to emphasize that a country’s legal framework for MPAs must be tailored to the specific international obligations, conservation values and goals, vision, capacity, implementation feasibility, and legal system of the country. In that sense, there is no model law, but rather guidelines that can outline key elements and considerations. This example of an MPA Act and the associated exercise is provided in that context.
  • The Educator may want to substitute the hypothetical example with an actual law from their region/jurisdiction in which case he/she would need to adapt the Annexes accordingly.
  • The Educator may want to edit/simplify the hypothetical example depending on the level of capacity of the Learners in which case he/she would need to adapt the Annexes accordingly.
  • Worksheet for Learners (Annex C):
  • AnnexC provides a pre-prepared worksheet which the Educator may distribute to the Learners for their use recording notes and recommendations they decide are important with respect to specific provisions of the hypothetical example (or actual law). Alternatively or in combination, the Educator may distribute paper and pencils for the Learners to record their notes and recommendations. If the Educator is using an actual law for this exercise, this Annex would need to be adapted.
  • It is important to remind the Learners that as part of preparation tasks when reviewing, advising on or drafting MPA legal provisions that other laws and regulations also may need to be reviewed and, as needed, amended to ensure harmonization, and avoid gaps and conflicts. Those considerations are beyond the scope of this exercise.
  • Depending on the audience and setting, the Educator may ask the groups also to identify what other laws may need to be reviewed and other sectors that may need to be consulted as background to providing sound advice for strengthening or preparing a new MPA law.
  • Summary of Possible Responses (Annex D):
  • This Annex provides analysis and, as appropriate, recommendations in specific Articles of the Marine Protected Areas Act where revisions or strengthening would be important to consider. It is important to keep in mind when advising on or drafting legislative provisions for MPAs that other laws and regulations also may need to be reviewed and, as needed, amended to ensure harmonization across the legal framework, and avoid gaps and conflicts. If the Educator is using an actual law, this Annex would need to be adapted.
  • When going through these possible responses with the Learners, the Educator should stress again that there is no one correct answer and that the purpose of the exercise is to become familiar with legal provisions and how concepts may be introduced specifically for MPA law. The Educator may want to provide this Annex as a hand-out either during the discussion or thereafter.

Resources

  • Introductory presentation
  • Map of the case study (Annex A)
  • Hypothetical/generic MPA law (Annex B)
  • Worksheet for Learners (Annex C)
  • Summary of Possible Responses (for Educator) (Annex D)

1

ANNEX A – MAP OF THE CASE STUDY


1

ANNEX B

MARINE PROTECTED AREAS ACT

An Act to protect marine and coastal biodiversity, habitat, and ecosystems and to establish a comprehensive and representative network of marine protected areas in Atlantis.

Preamble: Whereas the island nation of Atlantis firmly believes that conservation, based on an ecosystem approach, is of fundamental importance for maintaining and restoring biological diversity and productivity of the marine environment;

Whereas, Atlantis recognizes that its coastal and marine environment offers significant opportunity for economic development for the benefit of all Atlantans, and in particular for coastal communities; and

Whereas, the Government of Atlantis and all affected coastal communities, including local indigenous communities agree on the importance of developing and implementing a national strategy for the management of estuarine, coastal, and marine ecosystems and building a network of comprehensive and representative marine protected areas to protect Atlantis’ valuable marine and coastal biodiversity, habitat and ecosystems;

The following is enacted:

Article 1 – Short Title

This Act may be cited as the Marine Protected Areas Act.

Article 2 – Definitions

“Coastal zone” means that land and water area extending seaward to the outer limit of the territorial sea, including all offshore islands and coral reefs in that sea area, and extending inland from the mean high tide sea to the landward margin of where the land and sea interact, including inshore waters, sea bays, straits, lagoons, estuaries, wetlands, subtidal aquatic beds (kelp beds, seagrass beds, tropical marine meadows), intertidal muds, sand or salt flats and marshes.

“Director”” means the Director of the Department of Protected Areas;

“Endangered species” means any species or their populations that is in danger of extinction throughout all or part of its range;

“Endemic species” means any species whose range is restricted to a limited geographical area;

“Management Plan” means the plan required under Article 11 of this Act.

“Marine protected area (MPA)” means those areas declared under Article 12 of this Act;

“Marine environment” means those areas of coastal zone and ocean waters, and their submerged lands over which Atlantis exercises jurisdiction, including the 200 nautical mile exclusive economic zone, consistent with international law;

“Marine protected areas network” means the National Marine Protected Areas Network established under Article 10 of this Act;

“Minister” means the Minister responsible for the environment;

“Threatened species” means any species that is likely to become extinct within the foreseeable future throughout all or part of its range and whose survival is unlikely if the factors causing numerical decline or habitat degradation continue to operate.

Article 3: Scope of application of the Law

This Act shall apply to Atlantis’ entire marine environment, including internal waters of the coastal zone so far as the land and sea interact, the territorial sea (from the coastal baseline to 12 nautical miles) and the exclusive economic zone (12 to 200 nautical miles), consistent with international law.

Article 4: Objectives

The objective of this Act is to protect marine biodiversity by identifying and designating MPAs of special national significance and managing these areas as a network of MPAs that is comprehensive and representative of the marine habitats and ecosystems in the Atlantis marine environment.

Article 5: Guiding Principles

Implementation of this Act will be guided by the following conservation and management principles: ecosystem-based management, science-based decision-making taking into account best available information, the precautionary approach, collaboration and public participation, sustainability, integrated management, and adaptive planning and management.

Article 6: Strategic Planning

The Minister, in collaboration with other Ministers and entities of Government, local and indigenous communities, the scientific community and other stakeholders, shall prepare and adopt a national strategic plan to advance the overall objective of developing and maintaining a network of marine and coastal protected areas in Atlantis.

Article 7: Institutional Arrangements

(1) The Minister shall have overall responsibility for implementation of this Act.

(2) Subject to direction from the Minister, the Director of the Department of Protected Areas shall have day-to-day responsibility for implementation of this Act and the marine and coastal protected areas established and managed under this Act as an integral part of the national protected area system.

(3) The Director, under the direction of the Minister, shall undertake ongoing interagency cooperation and collaboration with other sectors and interests having powers and activities with respect to the marine environment, including sectors responsible for fisheries, tourism, navigation, ports, coast guard, customs and commerce, coastal development, and energy. for the purpose of minimizing operational conflicts and maximizing opportunities to support each other in management, research, monitoring, compliance, and enforcement.

(4) The Director may, with the approval of the Minister, use existing mechanisms for interagency cooperation and collaboration with other sectors and interests or establish special advisory committees, including committees for science and technology to advise on any matters under this Act.

(5) The Director must consult and have regard to the views, interests, and rights of indigenous and local communities with respect to the establishment and management of any MPAs pursuant to this Act and the exercise of powers where those interests or rights may be affected.

Article 8: Establishment of MPAs

(1) An MPA established under this Act shall be a marine or coastal protected area that is a clearly defined geographical space recognized, dedicated and managed through legal means to achieve the long-term conservation of nature with associated ecosystem services and cultural values.

(2) The Minister may propose designating any defined area of the marine environment as a marine or coastal protected area and enact regulations implementing the designation consistent with its conservation and management objectives.

(3) In making a proposal under subsection (1), the Minister shall determine that the following standards are met –

a)the area fulfills the objectives of this Act;

b)the area is of special significance due to its conservation, recreational, ecological, historical, scientific, cultural, archaeological, geological, educational, or esthetic qualities;

c)the area is of a size and nature that will permit effective conservation and management over the long-term.

(4) For purposes of determining if an area meets the requirements of subsection (2), the Minister shall use scientific criteria for identifying ecologically or biologically significant marine areas needing protection, and sites, taking into account –

a)the area’s biodiversity and ecological qualities, critical habitat of endangered or threatened marine species, and threats to the area and species;

b)present and potential uses of the area that depend on maintaining the area’s resources, including indigenous and local community fishing activities, recreation, research, and education;

c)the area’s scientific value overall and value as an addition to the MPA Network pursuant to Article 10 below;

d)existing use rights to the area, including traditional or customary rights;

e)the manageability of the area, including such factors as its size and ability to be identified as a discrete ecological unit with clear, definable boundaries for management, monitoring, and enforcement.

(5) In making a determination to propose an area, the Minister shall be advised by the Director, and take into account all findings resulting from consultations undertaken with relevant government entities and sectors, scientific experts, and stakeholders and other interested or affected persons or groups.

(6) The Director shall involve relevant stakeholders at an early stage in development of proposals for designation of an area to be an MPA under this Act.

(7) Formal designation of an area to be an MPA under this Act shall be by act of Parliament, upon referral of the Minister, along with accompanying documentation on the proposed classification under Article 10 below and legally-defined boundaries.

(8) Any de-establishment of an MPA established under this Act or change in legally-defined boundaries shall require the same procedures as outlined in this section for designation.

Article 9: Classification of MPAs

Proposals under Article 8 for designation of an area to be an MPA under this Act shall include a recommendation on the specific designation which will apply to management of the area according to its primary conservation objectives, as follows:

a)marine reserve -- for the conservation of high-value biodiversity, unique habitats, endangered or threatened species and their habitats, or other marine resources or habitat necessary to fulfill the objectives of this Act, where human use and impacts are strictly controlled and limited to ensure protection of the area’s conservation values;

b)marine park -- where the area is large and natural or near-natural, set aside to protect large-scale ecological processes along with their species and ecosystems and where compatible scientific, educational, cultural, and recreational opportunities may exist;

c)marine monument -- protecting a specific natural monument which may be a sea mount, submarine cavern, archeological site, geological features or other special feature with high visitor value;

d)marine management area, including a marine mammal sanctuary -- aimed to protect particular species or habitat where management is directed to this priority;

e)marine conservation area -- where interaction of people and nature in the coastal zone or ocean waters has produced an area of distinct character with significant ecological, biological, cultural and scenic value;

f)as a sustainable use marine area where a portion of the area is under sustainable low-level non-industrial use of the natural resources compatible with long-term nature conservation.

Article 10: Establishment of MPA Network

(1) The MPAs established under this Act shall comprise a national MPA Network.

(2) The MPA Network shall be a representative network of marine and coastal protected areas protecting the full range of natural marine and coastal habitats and ecosystems in Atlantis.

(3) Areas selected as MPAs to be part of the MPA Network shall consist of areas that support and advance the representativeness and comprehensiveness of the MPA network and provide flexibility and resilience for climate change and other unanticipated impacts.