Protected Areas

A Legal Geography Approach

Josephine Gillespie

• Publisher: Palgrave Pivot
• Year: 2020
• ISBN:
  9783030405021
• Topic: Social Sciences
• Subtopic: Human Geography
• Index: Social Sciences

This book argues that legal geography provides new insights into contemporary conservation challenges. Despite unprecedented efforts, we are facing an extinction crisis, and in situ protected area programs are falling short. This book discusses the protected area phenomenon and calls for changes to current approaches, informed by legal geography –an inter-disciplinary area focused on the intertwined people–place–law dynamics that enable, or disable, effective management practices.
The book examines two protected area types: World Heritage Sites, where places of 'outstanding universal value' are protected for all humanity, and Ramsar protected wetland sites, one of the first global environmental protection initiatives. Using case studies from the Australasian region (Australia, the Pacific and Southeast Asia), it reveals how current approaches can be improved by taking into account the people–place–law nexus embedded in legal geography research.

© The Author(s) 2020

J. GillespieProtected Areashttps://doi.org/10.1007/978-3-030-40502-1_1

Begin Abstract

1. Challenges for Protected Areas: Biodiversity Loss, Place-People and Law Connections

Josephine Gillespie¹

(1)

School of Geosciences, University of Sydney, Sydney, NSW, Australia

Josephine Gillespie

Email: [email protected]

Abstract

In this chapter, I consider the extraordinary phenomenon of planetary-scale biological diversity loss and introduce how one key answer aimed at halting these losses, namely in situ protected area conservation programs, are failing. Despite unprecedented efforts to preserve ecosystems and habitats we are facing an extinction crisis. In this context I introduce a new approach aimed at improving the efficacy of in situ conservation protected area schemes. I argue one solution can be found in legal geography scholarship. A legal geography approach empowers us to consider the intertwined regulatory people-place dynamics that enable or disable effective management practices. In the age of the Anthropocene, legal geography is both an applied and conceptual approach for our time.

Keywords

Biodiversity lossProtected areasIn situ conservationLegal geography

End Abstract

1.1 Introduction: The Protection Imperative

The extent and degree of species and habitat losses across the globe are staggering. Few would not be shocked knowing that the current extent of species loss is comparable to global extinction events of the geological past. We may now be in the midst of a sixth global extinction event (Barnosky et al. 2011). In 2019 the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES 2019) estimates that there are more than one million species at risk of extinction (following Mora et al. 2011). The 2018 Living Planet Report, produced by the World Wildlife Fund and the Zoological Society of London, reports a 60% decline of animal populations across the globe between 1970 and 2014 driven by habitat loss and degradation (WWF 2018).

Significant academic work also demonstrates the horrific trajectory of loss (see for example Steffen et al. 2015; Johnson et al. 2017). Despite the dedicated initiatives to stem biodiversity loss and the degradation of habitat, decline continues. There are widespread and aggressive ecosystems losses globally (for example, see Watson et al. 2018), with rates of terrestrial wilderness lost to, inter alia, human settlement and farming between 1993 and 2009 are estimated to be 3.3 million square kilometres (Watson et al. 2016a, b). Inevitably, we must question whether global conservation policy is doing enough to slow biodiversity loss and environmental degradation (Pimm et al. 2018; Mappin et al. 2019). We must also question whether the protected area approach is succeeding as well as it might (Jones et al. 2018; Watson et al. 2016a, b, 2018). In this context, the rationale for protected areas has shifted from the romanticised ideals of nature that underwrote the first national parks to an acute focus on the integrity of ecosystem function and toward global-scale biogeochemical cycles. Assessing the success of protected areas is critical in this context (Joppa et al. 2016). Di Marco and colleagues (2019), using a modelling approach, argue that the retention of dedicated areas for the protection of habitat is essential;

… retaining these remaining wilderness areas is essential for the international conservation agenda. Wilderness areas act as a buffer against species loss, as the extinction risk for species within wilderness communities is—on average—less than half that of species in non-wilderness communities. (p 582)

The authors call for targeted protection to ensure areas of high habitat value for biodiversity receive more (rather than less) protection.

The protection imperative lies at the heart of a trillion-dollar global industry. The estimated value of global ecosystem services in 2011 was US$125 trillion (Costanza et al. 2014). Setting aside the merit of purely economic valuation of ecosystem services, or ‘nature’ writ large, there is no doubt that biological diversity loss requires comprehensive and effective policy responses.

Attempts to improve biodiversity conservation outcomes through the refinement of protected area approaches is widespread amongst academics and practitioners alike. The World Database on Protected Areas (WDPA) is updated monthly and is a publicly available online dataset maintained by leading global biodiversity experts, especially the United Nations Environment World Conservation Monitoring Centre with support from the International Union for the Conservation of Nature (IUCN) and its Commission on Protected Areas (UNEP and WCMC undated). The work of the IUCN on protected areas (for example, see Lausche and Burhenne-Guilmin 2011) steams ahead through their ‘Global Standard’ program which aims to set a standard for assessment of protected area outcomes (including for equitable governance and management [IUCN and WCPA 2017]).

1.2 A Question of Control

Adams and Hutton (2007) reminds us that conservation is about managing people, not plants or animals. Habitat loss as a result of the activities of people within and around protected areas, remains the primary driver of species extinction, even in the context of planetary-scale climatic change (Sala et al. 2000). The success of protected areas is, therefore, as much a matter for social scientists as it is for natural scientists. Separating an extraordinary nature from the lived-in ordinary world is short-sighted (Olwig 1995). Eliminating the binary is an immediate demand for sustainable futures. Just as Whittaker et al. (2005) called for greater engagement within the natural sciences for evaluation of protected area planning frameworks under the rubric of ‘conservation biogeography’, there is now a greater awareness of the socio-legal setting within which protected areas operate. Indeed, since Agrawal and Ostrom (2006) famously called the interaction between social scientists and conservation biologists “dialog of the deaf”, there has been an expansion of focussed inquiry into this critical interface (Adams and Hutton 2007; Treves et al. 2006; Chan et al. 2007; Bennett et al. 2017; Blicharska et al. 2016 and many others, see also Mascia et al. 2003).

Law, in all of its various guises, is the vehicle by which humans are regulated yet, oftentimes, law is overshadowed or abstracted in this literature by a focus on social/cultural, political or economic factors. Law can be, perhaps especially in a Western context, independent from political and economic considerations through the separation of powers doctrine. Yet I argue that an independent judiciary can play a significant part in shaping people/place dynamics (see also O’Donnell 2020). This separation makes the focus on regulatory dimensions important to think through as a distinctive component within environmental policy and decision-making. Moreover, entangled within the ‘human factor’ are questions about legitimacy, accountability and transparency in decision-making that sit squarely within legal processes (Brechin et al. 2002). There is a need to fully understand the importance of the regulatory framework—from drafting to implementation—to improve conservation outcomes in protected areas.

This necessary understanding of the regulatory frameworks cannot be achieved, I argue, without an attention to the idiosyncrasies of place, which has traditionally been the focus of geographers and cognate social science researchers. Together, critical attention to both law and place—and particularly the interdependencies between them—enables better-fitting solutions for communities living in or adjacent to protected areas, thus increasing the effectiveness of protected areas in mitigating biodiversity loss and environmental degradation.

Adams’ recent observations (2019) drawing our attention to the essential work of geography and the spatiality of conservation still does not engage as it might with the idea of law as an independent force or driver of the conservation agendum. For Adams (2019) law becomes a tool of restriction (demarcating uses) and enforcement (dealing with breaches)—which are legitimate elements in need of greater attention in conservation management practice—but which are not a full picture in considering law’s remit in conservation. An explicit focus on the intertwining of place and law should consider law in all its guises.

The need for this research is particularly acute in the Global South, where ‘top down’ protected area schemes emerging from the Global North, and Anglo-American legal tradition, are often grafted onto existing (frequently normative) regulatory systems that may be quite different (Gillespie 2018). In such circumstances, adherence to and enforcement of protected area regulations may be extremely problematic.

1.3 A New Approach: Legal Geography Perspectives

The value of law and geography scholarship, I argue, lies in the refreshing perspective that comes from acknowledging the reciprocal, dependent relationship between geographical concepts of place and space, and legal concepts of regulation, fairness and justice. Through laws, spaces become controlled and regulated. The physical form of place may change as a consequence, and so law becomes codified into the material of landscape as an enduring legacy that exerts itself on the present and future. Yet little consideration has been paid to the way that legal apparatus work through local laws or regulations to create these controls. Legal geography, then, seeks to determine, inter alia, whether regulations are well understood by those affected by them, whether regulations have a positive or negative impact on existing land use practices/livelihoods, and the extent to which collaboration or consultation has been achieved in framing conservation/preservation approaches.

Specifically, I argue a legal-geographical lens can be comprised of the following four key elements:

1. 1.
   Translation of law through layers (as in global, national, regional, local and hierarchical or spatial/territorial) from centralised to decentralised places or vice versa;
2. 2.
   Unpacking the relationship between formal law and informal law, which often time takes the form of lore. This requires consideration of pre-existing customs, traditions and normative everyday practices of people and places;
3. 3.
   Accounting for visible and invisible relational governance and institutional functions (including case law and the independent role of the judiciary, es...