Achieving Biodiversity Protection in Megadiverse Countries

A Comparative Assessment of Australia and Brazil

Paul Martin, Márcia Dieguez Leuzinger, Solange Teles da Silva, Gabriel Leuzinger Coutinho, Paul Martin, Márcia Dieguez Leuzinger, Solange Teles da Silva, Gabriel Leuzinger Coutinho

• Publisher: Routledge
• Year: 2020
• Print ISBN: 9780367265274
• eBook ISBN: 9781000052459
• Edition: 1
• Topic: Law
• Subtopic: Environmental Law
• Index: Law

This volume systematically analyses why legal doctrines for the protection of biodiversity are not sufficiently effective. It examples implementation in Australia and Brazil, two megadiverse countries with very differing legal and cultural traditions and natural environments.

Substantial effort goes into the development and interpretation of legal doctrines for the protection of biodiversity in national and international law. Despite this, biodiversity continues in steep decline. Nowhere is this more evident than in megadiverse countries, such as Australia and Brazil, which possess the greatest number and diversity of animals and plants on Earth. The book covers a wide range of topics, including farming, mining, marine environments, indigenous interests and governance. Achieving Biodiversity Protection in Megadiverse Countries highlights specific causes of underperformance in protecting diverse terrestrial and marine environments. It provides proposals for more effective implementation in these two jurisdictions, relevant to other megadiverse territories, and for biodiversity protection generally. Each chapter was written by teams of Australian and Brazilian authors, so that similar issues are considered across both jurisdictions, to provide both country-specific and generalisable insights.

Achieving Biodiversity Protection in Megadiverse Countries will be of great interest to students and scholars of environmental law and governance and biodiversity conservation, as well as policymakers, practitioners and NGOs working in these fields.

1 The issues, methods and evidence

Paul Martin, Márcia Dieguez Leuzinger, and Solange Teles da Silva

Abstract

This chapter explains the background, methods and overall content of this book. It discusses why an evidence-based policy research method is best suited to conduct objective analysis of environmental law and policy issues; and it outlines the steps in the development and application of this approach. It provides an overview of the contents of this book.

Introduction

Human progress is more reliable when it is based on empirically grounded, peer-validated theory. Deduction based solely on transparent analysis of empirical data is the ‘gold standard’ of scientific objectivity. Architectural (as distinct from tactical) governance design should reflect objective, evidence-based understanding about what combinations of institutions, organisational arrangements, strategies and implementation activities are likely to work.

Governance implementation involves factual, subjective and political variables that are often not objectively measurable. A purely data-based deduction is often not feasible and innovative research methods are required to ensure objectivity and integrity (Martin & Craig, 2015). Biodiversity governance issues can involve many complex social, ecological, economic and political systems and politics, community values and socio-ecological dynamics are often important to what happens (see e.g. Calatrava & Martínez-Granados, 2017; Martin, Boer, & Slobodian, 2016; Phromlah, 2013; Stavins, 2001; Young, 2011). Concepts of justice and fairness require consideration of values, and strategy involves judgement about future conditions that cannot be empirically tested until they happen. The many potential impediments to implementation of environmental programmes, including natural causes, failures of political will, pressure from interests, weak governments (including parliaments) and cultural factors (among others) (see, e.g. Bovens & Hart, 1996; Howes et al., 2017; Martin & Williams, 2010), should also be considered.

Complexity and subjectivity limit the investigators’ ability to use purely deductive, data-driven, methods. This does not, however, eliminate the need for objectivity, transparency and reliance on sound theory.

Legal governance of the environment involves many instruments, often reflecting apparently competing social purposes such as seeking to protect the environment at the same time as producing wealth from natural resources. The resulting complexity reflects the diversity of modern society, but it frustrates simple deductive analysis. An additional consideration is that effectiveness is multi-dimensional, involving considerations such as the receptiveness of society, the economic capacity of communities and governments, and the dynamics of power. Proving causal links between a law and an outcome is sometimes impossible and always complicated. Best practice evaluation aims to rely only on objective facts, rather than subjective information. However legal aspects of governance do involve subjective values. Concepts like justice and fairness cannot be ignored because of analytic difficulties, and legitimate differences in views, or political realities, should not be trivialised. For many performance variables, objective data is not available, or it is costly and difficult to obtain.

(Martin et al., 2016, p. 3)

An evidence-based policy approach is used in public policy research to cope with such complexities. The analysis often involves multiple methods and thus relies on diverse types and sources of data to generate and evaluate evidence. Evidence from different sources is ‘triangulated’ to provide a reliable basis for inferences when pure deduction is not feasible. The significant differences between an evidence-based policy approach and pure science are the ability to accommodate non-objective considerations (such as values and political trade-offs); the use of transparent assumptions to infer probable facts when complete data are not available and reaching conclusions based on both data and the investigators’ judgement. Good practice in evidence-based policy research requires that the conclusions are firmly based on evidence, that the evidence is available to be interrogated and that the judgement is transparent. These are essential integrity requirements in research, regardless of what methods are used (see Jensen, 2013; Majchrzak, 1984; Martin & Craig, 2015).

Evidence-based approaches are consistent with legal traditions. Judges in law courts apply standards of likelihood, such as ‘beyond reasonable doubt’ or ‘on the balance of probabilities’, to factual evidence to arrive at judgements. These often must involve non-objective considerations, such as values and beliefs, and consider the effects of context. Transparency is possible by disclosing evidence and the rationale for judgements – though judges are not universally transparent or rational, as explained by Rodriguez (2013) in terms of ‘zones of autarchy’ in their judgements. Critical peer review occurs because judgements are scrutinised by the legal profession and scholars.

In this book we analyse data from Australia (a wealthy common law country) and Brazil (a developing civil law jurisdiction – but with elements of common law jurisdiction) to find evidence concerning the implementation of governance of various terrestrial and marine biodiversity issues. The data we reviewed included domestic and international law and policy materials, biodiversity databases, technologies and discussions with key informants. Our discussion is broad-ranging though it recognises data gaps, including those caused by databases that have disappeared from public access in Brazil as we finalised this book. We triangulated the various sources of data to provide the evidence that support our conclusions.

Under its 2013–2016 programme, the International Union for the Preservation of Nature (IUCN) initiated a programme to develop a Natural Resource Governance Framework (NRGF) in response to concerns about the effectiveness of biodiversity protection. The NRGF was led by the Commission on Environmental, Economic and Social Policy. Alongside other investigations The World Commission on Environmental Law, the IUCN Secretariat (Social Policy, Nature-based Solutions & Rights Group) and Environmental Law Centre commenced a sub-project on the legal aspects of the NRGF. The focus of the sub-project was developing and testing a method to evaluate the implementation and effectiveness of principles from the Convention on Biological Diversity(CBD). The stated intention was:

[T]o develop, using an inclusive and collaborative process, methods to measure whether environmental and natural resources law as implemented is supporting progress toward the IUCN vision of ‘a just world that values and conserves nature’. Objective evaluation of the performance of environmental law must be at the heart of any credible process for systematic improvement in the effectiveness of governance. Whilst best practice evaluation aims at measurement of verifiable facts to the maximum degree possible, governance (and in particular the legal aspects of governance) involves many subjective values. Even apparently objective facts will reflect subjective choices and power relationships. Many aspects of legal governance, and therefore the evaluation of governance, are contestable. This is why systematic evaluation of the legal aspects of governance is likely to require new methods and new data, and it may involve challenges to established beliefs about the role and effectiveness of legal institutions.

(Martin, Boer, Byrner, & Greiber, 2013, p. 3)

The method was developed and documented. Volunteer collaborators drawn from members of the IUCN Academy of Environmental Law agreed to participate, with teams of volunteers conducting evaluations within Australia (two investigations), Brazil, New Zealand, South Africa and China (one each). These trial evaluations were restricted to the participation (community engagement) and precautionary principles. The final report was published in 2016 (Martin et al., 2016).

The investigations demonstrated the value of a disciplined evidence-based method, and generated four propositions related to the CBD.

1. Faithful translation of broad principles from international environmental conventions into clear and feasible laws within a jurisdiction is not certain. Governments can be selective in what they adopt into local policy and law, and reinterpret principles for political and administrative purposes. This can undermine implementation. The report suggested that successful implementation would be more likely if, at the design stage, the tangible purpose and operation of a norm, and how it should be implemented through the law, was specified.
2. How implementation instruments and arrangements fit with domestic socio-economic and institutional contexts is important to effectiveness. The six investigations identified jurisdiction-specific issues about institutions, culture and feasibility that limited effectiveness. The evaluation suggested the need for three forms of alignment: fit with the biophysical context; with the social-economic, political and cultural context; and with the total system of natural resource governance in the jurisdiction.
3. The feasibility of implementation may be a problem for implementing agencies and for citizens or organisations who are the objects of governance. Regardless of rules or incentives, if an actor does not have the resources to do what is required, effective action cannot happen. The authors highlight that economic issues are fundamental, confirming that the weight of resources for or against environmental values will substantially shape governance outcomes. The evaluations indicate that environmental instruments should aim to ‘tilt’ economic and social resources towards supporting sustainability. They also suggest that more attention needs to be paid to fiscal and other resourcing issues in implementation of legal governance (Martin, Boer, and Slobodian 2016, pp. 117–118).
4. Arrangements to ensure the integrity of implementation by government agencies are critical to ensure disciplined and effective implementation. This includes systems to monitor agency compliance with administrative and substantive provisions and safeguards against ‘agency capture’ by powerful interests. In none of the jurisdictions examined was there a sufficiently strong independent body exercising effective oversight of implementation.

The study concluded:

[N]orms for protecting and restoring the environment compete with norms that encourage its exploitation. This highlights the need to focus on the balance between harm-doing and protection in legal arrangements for natural resource governance, rather than focusing only the protective aspects of governance. Governance instruments (whether legal or otherwise) are essential but are only part of what is needed. They will not work well if conditions are hostile, or if implementation resources are not available to those responsible for implementation or people ‘at the front line’. This suggests the need for more attention to economic and political feasibility issues, affect...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• List of figures
• List of tables
• List of contributors
• Foreword
• Preface
• List of acronyms and abbreviations
• 1 The issues, methods and evidence
• 2 Controlling the biodiversity impacts of agriculture
• 3 Biodiversity risk management in mining
• 4 Creating and managing marine protected areas
• 5 Social justice and the management of protected areas
• 6 Low impact recreational use and biodiversity protection
• 7 Partnered governance of biodiversity
• 8 Biodiversity intelligence from satellites
• 9 The challenge of using drones
• 10 Funding biodiversity conservation
• 11 Governing the governance system
• 12 Strategies to improve outcomes
• Appendix A: legislation list
• Appendix B: international material
• Appendix C: cases
• Index