LEGAL ASPECTS – COMMUNITY MANAGEMENT

UNIT 6

Pio E. ManoaSchool of Marine Studies

Faculty of Islands & Oceans

University of the South Pacific

Coastal Fisheries Policy and Planning Course, 28/01/08 – 8/02/08, Apia, Samoa

Secretariat of the Pacific Community

Overview

• Importance of Community participation

• Examples of Existing Initiatives

• Legal Aspects supporting Community management

• Further consideration of legal aspects

Importance of Community participation

• Rights and interests over coastal environments

• Reliance on marine resources for subsistence, traditional and commercial purposes

• Monitoring, control and surveillance

• Existing of traditional/customary protocols and rules in most countries

Importance of Community participation cont’d

• Traditional knowledge

• Control over local and adjacent communities

• Future aspirations

• Long term sustainability interests

Examples of existing initiatives

• Locally Managed Marine Areas

• Marine Protected Areas

• Marine Reserves

• Community Conservation Areas

• Other forms of traditional management

• Role in monitoring, control and surveillance

Legal Aspects

• Ownership and/or Rights over Coastal Environments– Does the Community have legal ownership

over coastal environments?– What kind of rights and interests does the

Community have?– Can/do these rights and interests translate

into management powers?

Legal Aspects cont’d

• Community as a Legal Entity

• A legal entity is an entity recognised in law– Are resource owners recognised as a legal

entity?– If resource owners are not recognised as a

legal entity, how can an entity be formed?• Trust; Company; Incorporated Association;

Registered Charitable Association; Agreement with government etc.

Legal Aspects cont’d

• Constitutional Recognition

• The highest recognition

• Examples in Palau, RMI, Samoa, Vanuatu, PNG, FSM, Nauru, Tuvalu, Kiribati, Solomon Islands.

• Natural resources of country vested in people and government

Legal Aspects cont’d

• Constitutional Recognition cont’d

• But Constitution uses general language

• Scope of powers of customary/traditional authorities usually limited

• Need to elaborate on community rights and interests in other legislation

Legal Aspects cont’d

• Support in National Legislation

• Can clarify rights and interests

• Empowers Community to take certain action within legislative limits

• May be elaborated in subsidiary legislation (regulations, by-laws)

Legal Aspects cont’d

• Support in National Legislation cont’d

• Many examples in region

• Samoa:– Village Fono Act 1990– Fisheries Amendment Act 2002– Planning and Urban Management Act 2004

Legal Aspects cont’d

• Subsidiary Legislation

• Should detail the rights, interests and powers of Community

• Enabled by legislation– Example: Tuvalu: Falekaupule Act 1997 –

making of regulations– Example: Samoa: Village Fono Act 1990 –

community by-laws

Further consideration of Legal Aspects

• Constitutional provisions offer highest recognition but needs additional legislative provisions

• National legislation offers specific recognition and can be supplemented by subsidiary legislation

• Community law-making and enforcement powers confirms Community importance in management

Further consideration of Legal Aspects

• Community engagement strengthens national management and enforcement capability

• Need to consider:– Harmonised or compatible measures– Coordinated implementation– Capacity building strategy– Incentives scheme(?)