Ensuring inter-institutional coordination

As wildlife legislation does not exist in a vacuum but must be coordinated with legislation in other relevant areas, so wildlife authorities need to coordinate their activities with other line government agencies in related areas of work. Laws sometimes say little about coordination or joint-decision

making. The law should, however, institutionalize coordination and clarify how and when inter-institutional coordination should be sought. This is particularly important when relevant legal mandates are and will likely remain scattered among different institutions.

Provisions that create an inter-ministerial or inter-sectoral body on environmental matters may facilitate coordination between environmental and wildlife authorities. In Mauritius, in addition to the National Environment Commission made up of ministers, an Environment Coordination Committee further promotes cooperation, coordination and information sharing among agencies and departments dealing with environment protection (Environmental Protection Act, article 14). Specific coordination arrangements may also be in place for specific aspects of wildlife management. New Zealand formed the Wildlife Enforcement Group under a memorandum of agreement between three New Zealand government departments: the Customs Service, the Ministry of Agriculture and Forestry, and the Department of Conservation. Its aim is to stop organized illegal trade in wildlife involving import, export and related domestic activity (Tsioumani and Morgera, 2010).

A first question to be addressed by legal drafters in this regard is whether the multi-sectoral body will have purely advisory tasks. Malawi's Wildlife Research and Management Board (National Parks and Wildlife Act, sections 17–18) and the South African National Biodiversity Institute (National Environmental Management Biodiversity Act, sections 10–11) are both called upon to advise authorities in decision-making, specifically in the wildlife sector. Mexico has two multi-sectoral consultative organs advising the Secretary of Environment and Natural Resources (SEMARNAT): a National Technical Council for the Conservation and Sustainable Use of Wildlife presents opinions and recommendations on endangered species and critical habitats (Wildlife Law, articles 5 and 16), and a National Commission on Protected Areas (Acuerdo 08-08-96) advises SEMARNAT on the management and conservation of protected areas. In some cases, as in Lesotho, a multi-sectoral advisory body covers broader topics than just wildlife (the National Environmental Council; Environment Act, section 5). In other cases, more than one advisory body is in place, each of which is to respectively address environment, wildlife or forestry. In Malawi, for instance, there is the Wildlife Research and Management Board (National Parks and Wildlife Act, sections 17–18); the National Council for the

Environment (Environment Management Act, section 10); and the Forestry Management Board (Forest Act, section 16). Similarly, in Namibia

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there is the Nature Conservation Board (1975 Ordinance, sections 3 and 11); the Sustainable Development Advisory Council (Environmental Management Act, section 6); and Forestry Council (Forest Act, sections 2–3).

Costa Rica's National Environment Council advises the President on issues related to environmental policy, including the mechanisms to conserve "environmental elements" and the means to integrate them into the sustainable development process with the organized participation of communities (Organic Environmental Law, articles 77–78). In Japan, the Nature Conservation Council investigates and discusses nature conservation matters, in response to inquiries by the Ministry of the Environment or other concerned ministries (Nature Conservation Law, article 13).

Advisory bodies may influence significantly decision-making with provision of expert information. They may also allow a process of mutual learning and increased cooperation among the sectoral government entities involved. At the same time, their lack of stronger powers in relation to decision-making may make them more easily acceptable politically, as they may be seen as not threatening existing institutional mandates.

In other instances, however, multi-sectoral participation is ensured in managing

or regulatory entities. In Turkey, the Central Hunting Commission, which is an

independent decision-making body composed of 21 members (representing relevant public bodies involved in hunting management as well as hunters' organizations and private hunting areas) decides on species that can be hunted, hunting seasons, areas and quotas, hunting methods and weapons (Hunting Law, article 3). Decisions of the commission are binding, although the Minister of the Environment and Forestry may repeal them. Actions of the minister may be challenged in turn by relevant interest groups, before the administrative courts. The commission may delegate some of its tasks relating to hunting management to local institutions, such as provincial hunting commissions (public councils representing the state at province level), and county hunting commissions (the lowest level hunting body, organized, if necessary, by the city mayor and authorized to deal with hunting issues at county level).

Zambia's Wildlife Authority is responsible for the management of protected areas and, "in partnership with local communities", game management areas,

to ensure sustainability in wildlife management (Wildlife Act, section 5). In Uganda, a Wildlife Authority is the main administrative entity responsible for wildlife, including the preparation of management plans and the implementation of collaborative arrangements and policies for the benefit of communities (Wildlife Act, section 5). Brazil's National Environment Council (CONAMA) adopts national standards for environmental quality, environmental licensing and regulations on wildlife and protected areas (National Environmental Policy Law, article 6).

All the above examples provide for a stronger role of inter-institutional coordination bodies, with key management decisions in the hands of a varied group of authorities. This option may prove more empowering for participating sectors, as well as having more compelling effects on the reaching of coordinated decisions. It may, however, be less politically acceptable in some circumstances, where relevant institutions fear curbing of their mandates.

A combination of the two options outlined above is also possible. The New Zealand Conservation Authority – an independent authority combining advisory and regulatory tasks – advises the relevant minister on statements of general policy prepared under acts including the Conservation Act, the Wildlife Act, the Reserves Act and the Wild Animal Control Act; approves conservation management strategies and plans, and reviews them as required under these acts; reviews the effectiveness of general policies; investigates nature conservation matters of national importance; makes proposals for the change of status or classification of areas of national and international importance; and liaises with the New Zealand Fish and Game Council (Conservation Act, section 6).

Certain multi-sectoral bodies also include representatives of environmental NGOs, thus contributing both to institutional coordination and to public participation in decision-making (see next section). For example, while the Executive Council of Chile's National Environment Commission is composed of ministers from all areas related to the environment, including the ministers of economy, agriculture, health, transport and mining, Chile's National Advisory Council and Regional Advisory Councils are composed of representatives of academia, scientists, NGOs, business and labour unions (General Environment Law, article 78).

Another example can be found in the Philippines, where a National Wildlife Management Committee, which provides technical and scientific advice regarding the collection or use of wildlife, is composed of representatives from the wildlife administration, Department of Agriculture or Palawan Council for Sustainable Development, Environmental Management Bureau, other concerned government agencies as well as local scientists with expertise on various fields of wildlife. Stakeholders, however, are not permanent members of the committee, but may be invited as resource persons, when considered necessary (2004 Joint Implementing Rules and Regulations of the Wildlife Act, rule 6(1)–(2)). This option is clearly less empowering, as participation by stakeholder is left completely to the discretion of the authority.

Another question that legal drafters should address relates to the definition

of powers and duties of multi-sectoral bodies. For example, in the Kosovo

Forest Law, the Forest Advisory Board has the duty to accept and reply to citizen petitions, and the power to access agency files and conduct investigations. The chair of the board has the power to schedule meetings but must give members advance notice of times; board actions are by majority vote; and the board must keep and make available minutes of its meetings. Because of multi-sectoral bodies' importance for good governance and transparency, legislation should define clearly their modus operandi, putting in place certain guarantees that allow public scrutiny.

Inter-institutional bodies may also be created at the local level. In the Philippines, for instance, the regional offices of the wildlife administration or Department of Agriculture create regional wildlife management committees (2004 Joint Implementing Rules and Regulations of the Wildlife Act, rule 6(3)). Similarly, in Japan, prefectural or municipal ordinances may establish environment councils (Basic Environmental Law, articles 43–44). These local entities may facilitate coordination at a level of governance closer to the resource and concerned communities, and can therefore more effectively tackle local-level management issues.

One possible problem arising, however, from the proliferation of these inter- institutional bodies (which tends to emerge in Africa, for instance) is that of

coordination among different advisory bodies. The various relevant laws

sometimes envisage more than one advisory body respectively responsible for environment, forestry and wildlife – an aspect further addressed in the following section. Before providing for the creation of new advisory bodies,

the government should assess the actual needs. The overall objective should be to obtain independent advice and facilitate coordination among existing bodies. Where, for example, a body designed to advise as to environment and natural resources management is already in place, it may be unnecessary to create an additional agency to advise on wildlife. This, however, may sometimes happen simply to meet the ambitions of certain sectors of the administration. Depending on the circumstances, it may be preferable to maintain a single forum or there may be valid reasons to establish a new body, such as the inadequacy of the existing body, the need to advise two different ministers or the desire to obtain independent advice. Overall, the government should have an appropriate justification for having more than one body, a justification that goes beyond simply meeting the aspirations of ambitious administrators.

Rather than forming a new body, the law may require consultation among

existing agencies before they act. For example, in the United States, the

Endangered Species Act requires all federal agencies to consult with a federal wildlife agency before approving, funding or carrying out an activity that might affect a threatened or endangered species (16 USC 1536). In most cases, the consultation is quick and informal, consisting of little more than a telephone call to determine whether any protected species or habitats are present on the site of the proposed activity. If the latter is the case, the consultation process can become more formal, involving an analysis of the project, investigation of alternatives and stipulation of protective steps. Agencies generally comply with the consultation requirement because the Endangered Species Act allows citizens to sue the government to stop activities in violation of the act, and consultation helps the agencies avoid such problems. Also the EIA process creates opportunity for inter-agency review of proposed actions. In the United States, for instance, the President's Council on Environmental Quality oversees the EIA process, and the Environmental Protection Agency must review every environmental impact statement (42 USC 7609) (see section 5.4 below).

Another means used to prevent friction between environmental and sectoral institutions is to foresee the creation of environmental units within the various government sectors. This is done in Burkina Faso, where an environmental unit must be established within each ministerial department at the central and regional level (Decree No. 2008-125/PRES/PM/MECV), as well as in Ethiopia, where every government agency must also include an environmental unit, and regional environmental agencies must also be

created (Environmental Protection Organs Establishment Proclamation, articles 14–15). This solution may prove useful in creating an internal learning and collaboration process, without creating additional external coordination structures.

Coordination between different levels of government is also critical,

particularly in federal countries or highly decentralized countries. The law may simply include some general clauses to this effect. In Peru, the Regulation to the Wildlife and Forestry Law requires national and regional wildlife authorities, as well as the Environment Ministry, to coordinate their action (article 11). There is, however, no specific mechanism for coordination. Alternatively, the law may provide for the creation of a permanent forum in which local and central authorities can coordinate their action. In Argentina, for instance, coordination takes place within the Federal Council for the Environment, an organ established by agreement among provincial governments for the discussion and development of coordinated environmental policies between the federal government and the provinces (General Environment Law, Annex I, Constitutive Document for the Federal Council on the Environment). Similarly, in Bolivia a Wildlife Advisory Council advises the General Direction on Biodiversity on the approval of management plans for wildlife species. The council is a consultative organ integrated by national wildlife authorities and national CITES authorities, as well as national herbaria and fauna museum collections, and those provincial or local authorities relevant to the species under consideration (1999 Decree on Sustainable Wildlife Management Plans, articles 1–5).

These fora may also be created as administrative initiatives that may not necessarily be backed by the law. In Canada, in 1988 the Wildlife Ministers' Council of Canada founded the Recovery of Nationally Endangered Wildlife – a national recovery program involving three federal departments (Environment Canada, Fisheries and Oceans Canada and Parks Canada Agency) provincial and territorial government agencies, wildlife management boards authorized by a land claim agreement, aboriginal organizations and interested individuals for species at risk. The objective of the recovery program is to prevent the extinction of endangered species.73

73 _{See www.ec.gc.ca.}

In addition, the Accord for the Protection of Species at Risk in Canada formed the Canadian Endangered Species Conservation Council, made up of provincial and

territorial wildlife ministers and responsible for preventing wild species from becoming endangered. The council is co-chaired by the Minister of the Environment and the minister from the host province or territory.74

Rather than necessarily using the law, another option is concluding institutional agreements to ensure coordination between central and local government. In Australia, for instance, an intergovernmental agreement was adopted in 1992 to facilitate a cooperative national approach, better define the roles of the respective governments, and reduce the number of disputes between the Commonwealth and the states and territories in environmental matters. In accordance to the agreement, each level of government has responsibilities for the protection of fauna and habitats, and ensuring the survival of species and ecological communities. States have primary responsibility in the general area of nature conservation, but the Commonwealth has a particular responsibility in relation to management of areas within its own jurisdiction, obligations under international law, including CITES, exports, imports and quarantine, and cross-jurisdictional coordination. When making environmental management and resource use decisions affecting rare, vulnerable and endangered species, all levels of government should consider a national approach. Cooperative activities are promoted for native species and habitats occurring in more than one jurisdiction, as well as for improved intergovernmental arrangements for regulating commercial use of native wildlife including setting of nationally sustainable harvesting levels, establishment of national standards in marketing of wildlife products, and streamlining of permits, regulatory controls and enforcement. Management of parks and protected areas is largely a function of states (Tsioumani and Morgera, 2010).

Box 3-2: Legal options for institutional cooperation

x Whenever more than one authority is involved in a decision-making process, include provisions mandating coordination, or preferably institutionalizing it by making it part of decision-making procedures. In addition, as complete separation of functions is rarely possible in the environment and natural resource sector, it is advisable to include requirements for coordination in all laws addressing this sector;

x spell out in detail in which cases or on which matters institutional coordination should be sought;

x define the procedures or mechanism through which coordination can be achieved, for instance by:

o creating a duty to exchange information on matters of common concern, and/or request the prior consent or advice of interested government bodies;

o setting up joint decision-making procedures,

o creating a coordination body composed of government and possibly non-governmental representatives;

x exercise caution in the creation of additional institutional coordination bodies, when others already exist in broader or closely related areas; x ensure effective coordination mechanisms also among entities pertaining

to different territorial levels of governance, to avoid duplication of work or contraddictions between the central and decentralized authorities, as well as mutual learning among decentralized authorities.

3.3 Guaranteeing public participation in wildlife-related decision-

In document Edinburgh Research Explorer (Page 83-91)