Avoiding legislative overreaching

Legislation should be realistic: to ensure compliance, legislation should provide for obligations that people can reasonably comply with, taking into account the capacity of public authorities and other stakeholders. This is also reflected in the Addis Ababa Principles and Guidelines, where reference is made to the need to "avoid unnecessary and inadequate regulations ... because they can increase costs, foreclose opportunities and encourage unregulated uses, thus decreasing the sustainability of use."71_{Similarly, CITES stresses the}

need for appropriate policies and legislation, by establishing transparent, practical, coherent and user-friendly administrative procedures, and reducing unnecessary administrative burdens (see chapter 1 above).

Writing realistic laws always involves striking balances. The easiest law to implement is one that does nothing, but unregulated, open access to wildlife is seldom a workable approach. The next easiest law to implement is one that prohibits everything. Such a law leaves few questions for enforcers and the public about what is lawful, but it rules out most use of the resource. Two more common, practical approaches to regulation seek the middle ground between liberty and prohibition. The first is to allow use of wildlife generally, but to provide some rules for that use. The second is to prohibit use of the resource, with tailor-made exceptions.

The choice of approach should reflect the resources available for the implementation and enforcement of wildlife legislation, and the need to choose legal tools with low enforcement costs, focusing the scarce resources available on species or areas of major concern. Cost-effectiveness is thus an important issue to bear in mind.

In Latin America a common approach consists in combining a general prohibition for extractive uses of wildlife with specific exceptions. Exceptions usually allow subsistence hunting or scientific takings, and sometimes also recreational hunting or commercial extractive uses in accordance with sustainable management plans for particular species that have been approved at the national level (Argentina, Brazil, Bolivia, Costa Rica and Ecuador). Interviews with wildlife officials have confirmed that this approach is justified on grounds of regulation efficiency: general prohibitions with a handful of exceptions allow simpler and less costly enforcement.

However, they recognize that such an approach, by placing severe restrictions on wildlife use, generates an indirect incentive for land-use change. Private land owners perceive this as a reason to choose other uses of land that are less strictly regulated, thus favouring the transformation, for example, of wild pastures or forests into agricultural lands – with the accompanying detriment to biodiversity (Aguilar and Morgera, 2009).

Chile and Guatemala, however, have adopted a different approach, categorising all native species according to their conservation status and establishing allowed uses for each category. Lack of resources to undertake wildlife population studies, and the application of the precautionary principle, lead to the inclusion of many species within categories than ban extractive uses. Nevertheless, this system has the advantage over a general ban that it provides potential flexibility for users, while limiting bureaucracy and enforcement costs. It does require, however, regular updates to species categorizations based on scientific information and the precautionary principle. It further does not allow for the consideration of site-specific approaches, as species may be more abundant in some areas than others. It may also pose other enforcement challenges, as it requires enforcement officers and border agents to have knowledge of taxonomy in order to detect violations of the law (Aguilar and Morgera, 2009).

Mexico uses a more sophisticated area-based approach that enables any landowner to register property as a wildlife management unit (Unidades de

Manejo para la Conservación de Vida Silvestre- UMAs) (Wildlife Law, article 39). UMAs can be established in both private and public lands, including protected areas, and currently encompass more than 20 million hectares (which is almost equivalent to the size of protected areas in Mexico). Once registered, managers of UMAs must use wildlife according to sustainable management planning criteria, approved by environmental authorities, and may trade the products resulting from their activities. The Mexican approach thus allows the implementation of basic sustainable management planning regulations, including extraction quotas and annual reporting requirements, in vast areas of private land that would otherwise be unregulated. Another benefit of this system is its potential to reduce perverse incentives for land- use change. Although enforcement is undoubtedly complex in a large country such as Mexico, uniform national legislation and a centralized mechanism to obtain permits for wildlife management (available online) create a workable legal framework. This arrangement may promote pro-poor management, when local and indigenous communities are the holders of

wildlife management units. The system is, however, bureaucracy-intensive, requiring national authorities to review all management plans and provide for more specific controls and enforcement measures, thus entailing a more efficient, yet costly, enforcement alternative.

Overall, legislation must be tailor-made to each country's capacity for implementation and enforcement. This is not to say that legislation should never bring change. That is of course the point of reform – to introduce new management concepts and practices as a way of filling gaps or aligning national legislation with international standards and obligations. When the capacity to implement change is small, the law can introduce change incrementally, and be reviewed in time as capacity increases. Thus, where certain wildlife management goals are beyond immediate reach, it may be useful to treat legislation as preliminary and include steps to prepare the system for further reform.

Finally, in light of the chronic lack or delayed enactment of implementing

regulations in many countries in the world, drafters need also to consider

carefully the essential provisions to be included in the law and how much should be left to subsidiary legislation (rules, decrees, bylaws, regulations, etc.). If possible, the law should be operational on its own, despite any delays of developing and adopting implementing regulations. To this end, the law should spell out the rights and obligations it creates (or rather powers and

responsibilities, when public authorities are concerned), and the basic objectives and principles for the processes to implement them. This should not result in an overly detailed law, but rather clarify the mandate for, and facilitate enactment of subsidiary legislation. The law should generally leave technical specifications to subsidiary legislation.

Box 2-4: Legal options for avoiding legislative overreaching

x Use "trigger" provisions if certain regulatory goals are not immediately achievable. For example, if community management of a trophy hunting concession is the desired goal, it may be useful to establish a legal requirement that trophy hunting will only be allowed where:

o scientific evidence demonstrates that a viable wildlife population exists to support such hunting; and

o the community has initiated specific management activities and entered into an agreement for collaborative management with the appropriate agency;

x use a "phase-in" approach if certain regulatory goals are not immediately achievable, through recourse to "grace periods" (whereby existing practices may continue for a specified period of time before some other requirement must be fulfilled). This allows for the gradual implementation of the law in a manner more likely to receive compliance than an immediate obligation that neither government agencies, nor local communities are prepared to assume. Thus the law, for instance, may state: o that hunting in a given area may continue for a period of three years

from the date the law becomes effective, after which a management plan covering the area and targeted wildlife must be in place;

o that areas failing to meet the requirement will have hunting rights terminated until the requirement is fulfilled;

x use pilot experiences to test new legal approaches within a restricted geographical area. In light of lessons learnt, national legislators may decide to opt for new legal tools that meet local circumstances and capacities;

x spell out in the main piece of legislation, at a minimum, the rights and obligations the law creates, and the basic objectives and principles for the processes to implement it, thus clarifying the mandate for, and facilitate enactment of subsidiary legislation. Leave technical specifications to subsidiary legislation.