In-situ Conservation in the Volume 6 Issue 3 1997

Wayne Tamangaro King and Janet G. Maki

cial importance to the Islands, with the coral reefs an Introduction important food source for the Islanders.3 The principal influence on biological diversity is the physical structure The Convention on Biological Diversity recognizes the of the islands, as well as episodic events such as cyc- special situation of small island developing states in Arti- lones and storm surge.4 The Islands are vulnerable to cle 20, paragraph 6 which provides, in relation to finan- wide ranging external influences, such as climatic con- cial resources, that Parties ‘shall take into consideration ditions and episodes of extreme weather patterns such the special conditions resulting from dependence on, as cyclones and floods, as well as droughts. In addition, distribution and location of, biological diversity within human activities impacting upon biological diversity developing country Parties, in particular small island include clearing of tropical primary forest for agricul- States’. tural or other development purposes, construction for tourism or domestic housing developments and over- This article outlines how one such Party to the Conven- harvesting. The Islands have a small population, and rely tion on Biological Diversity, the Cook Islands, has to date mainly on the tourism industry (around 60,000 visitors addressed its obligations regarding in-situ conservation per year) to generate much-needed revenues, the un- of biological diversity. The article considers some of the spoilt nature of the terrestrial and marine environment particular threats posed to the biological diversity of being a major attraction for tourists. While the popu- small island developing states, focusing, in particular, on lation of the Cook Islands is just over 20,000, over 10,000 threats posed by introduced non-indigenous species. It live on , the capital and largest island. also considers the challenges to implementation for such states in the Pacific region. The Cook Islands became an independent state in 1965, although the Islands remain in free association with New Zealand. The Head of State is Queen Elizabeth II, in Background whom Executive authority is vested, and who is rep- resented in the Islands by the Queen’s Representative, The Cook Islands are a group of 15 low atoll and high appointed upon the advice of the Cook Islands Govern- volcanic islands located over some 1.8 million square ment.5 Government comprises a Prime Minister, Cabinet kilometres of the South Pacific Ocean between Western and Parliament, as well as a House of (chiefs), of Samoa and Tonga on the West, and French in up to 15 members, which has an advisory role. The the East. The Cook Islands are divided into a ‘Northern House of Ariki is a body set up under the Cook Islands Group’ of six; and a ‘Southern Group’ of nine.1 The total Constitution and consists of persons holding an Ariki land area is only 240 square kilometres, but the Exclus- title, who have been appointed to the House of Ariki by ive Economic Zone (EEZ) extends over 1.8 million square the Queen’s Representative. Under the Outer Island kilometres. The Islands are situated on a biodiversity Local Government Act 1988, local government on islands gradient which diminishes with distance from the conti- other than Rarotonga is principally vested in Island nental land masses and from the equator. Hence within Councils, which have the power, inter alia, to make by- the country there is relatively little biodiversity in com- laws. parison to some neighbouring countries. Among the most significant terrestrial areas is the cloud forest of The Cook Islands signed the Convention on Biological Rarotonga, which hosts a wide variety of endemic spec- Diversity (CBD) in June 1992 at the Rio Earth Summit ies.2 Coastal and marine biodiversity is obviously of cru- and ratified it on April 1993, following a review of

 Blackwell Publishers Ltd. 1997, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA. 304 Volume 6 Issue 3 1997 In-situ Conservation in the Cook Islands environmental legislation and policy, thereby becoming tainable development of SIDS in relation to marine and the fifteenth Contracting Party to the Convention. The coastal resources in Chapter 17.8 Chapter 17 recognizes Convention reflects a wide range of concerns and activi- the strategic importance of oceans and the coastal ties relevant to Cook Islands biodiversity in its three environment to SIDS, and notes that geographic isolation objectives: the conservation of biological diversity, the has resulted in comparatively large numbers of unique sustainable use of its components, and the fair and equi- species of flora and fauna. It also notes that SIDS face all table sharing of benefits arising out of the utilization of the environmental problems and challenges of coastal genetic resources. zones concentrated in a limited area.9 Agenda 21 con- tains a commitment to: ț adopt and implement plans and programmes to sup- Institutional Context for port sustainable development and utilization of mar- Implementation of the ine and coastal resources of SIDS, including meeting essential human needs, maintaining biodiversity and Convention improving the quality of life for island people; and ț adopt measures to enable SIDS to cope with environ- In addition to the CBD, the Cook Islands are also party mental change effectively, creatively and sustainably, to a number of other international and regional conven- and to mitigate the impacts on, and reduce the threats tions relevant to the objectives of the Biodiversity Con- posed to marine and coastal resources.10 vention, including: In 1994, as part of the follow up to UNCED, the Global (i) 1982 UN Convention on the Law of the Sea; Conference on the Sustainable Development of Small (ii) 1986 Convention for the Protection of Natural Island Developing States (SIDS Conference) was held in Resources and Environment of the South Pacific Barbados. The Conference adopted a Programme of Region (SPREP Convention) and related Protocols Action for SIDS addressing various environmental issues, on dumping at sea and pollution emergencies; including coastal and marine resources and biodiversity (iii) 1976 Convention on the Conservation of Nature in resources.11 In relation to biological resources, the Pro- the South Pacific (Apia Convention); gramme of Action emphasizes that due to the small size, (iv) 1979 South Pacific Forum Fisheries Agency Con- isolation and fragility of island ecosystems, the biologi- vention; cal diversity of SIDS is among the most threatened in (v) 1985 South Pacific Nuclear Free Zone Treaty; and the world. The Programme notes also that the nature of (vi) 1989 Convention for the Prohibition of Fishing traditional land and marine resource ownership in many with Long Driftnets in the South Pacific. island countries requires community support for the conservation effort. Among the national policies and Both the SPREP Convention and the Apia Convention measures highlighted for biodiversity resources are the address protected areas and habitats, as well as unique formulation and implementation of integrated strategies flora and fauna species (including endangered species). for the conservation and sustainable use of terrestrial The Apia Convention also provides for the establishment and marine biodiversity, in particular endemic species, of national parks, as systems that are ‘inviolate’ including protection from the introduction of certain (Article IV). non-indigenous species and the identification of sites of high biological significance. Regional and international As the list of treaties above indicates, regional co-oper- actions are also specified in the Programme of Action. ation is important, and is likely to form a significant Progress of implementation of the Programme is kept element of the strategies to implement the CBD. The under review by the UN General Assembly. South Pacific Regional Environment Programme (SPREP), an intergovernmental organization, works in the region, inter alia, to monitor the state of the Pacific Threats and Challenges environment, and identify problems and their effects on the human environment and natural ecosystems. It also There are numerous threats to the biological diversity works with the island states in the region to improve of the Cook Islands. In addition, as a small island the planning and management of natural resources.6 In developing state, the country faces particular challenges relation to the CBD, SPREP has responsibility for execut- in implementation of the Convention. ing the South Pacific Biodiversity Conservation Pro- gramme (SPBCP), a five-year Global Environment Facility (GEF) programme to identify, establish, and assist in Threats to Biodiversity managing a series of in-country conservation area pro- The Programme of Action adopted at the 1994 SIDS Con- jects in 14 countries in the region, including the Cook ference outlines a number of threats to biodiversity of Islands. Major components of the programme are spec- small island states, including deforestation, coral reef ies conservation and conservation education and public deterioration, habitat degradation and loss, and the awareness.7 The GEF has allocated some US$10 million introduction of certain non-indigenous species as the to the SPBCP, which began in 1993. most significant causes of the loss of biodiversity. This section focuses on one such threat, namely that posed The Cook Islands face many similar challenges to other by introduced alien coastal and marine species. This small island developing states (SIDS). Agenda 21 adopted issue has been taken up by the Conference of the Parties at UNCED in 1992, specifically addressed the issue of sus- to the CBD in its consideration of the issue of marine

 Blackwell Publishers Ltd. 1997. 305 In-situ Conservation in the Cook Islands Volume 6 Issue 3 1997 and coastal biological diversity, and is to form part of that there has been an apparent decrease in the popu- the three year work programme under the Convention.12 lation of the indigenous rough turban snails known as ariri. Earlier inability to predict the effects of introducing Alien species are organisms that have been transported Trochus into the environment may have resulted in the by human activity (intentionally or accidentally) into depletion of the native ariri which shares the same habi- regions where they have not historically occurred. Alien tat and food source as the trochus. Such introductions species are addressed in Article 8(h) of the Convention, threaten traditional food sources. which requires Parties, as far as possible and as appro- priate, to prevent the introduction of, control or eradi- Unintentional introductions of non-indigenous marine cate those alien species which threaten ecosystems, and coastal species (for example, in ballast waters) may habitats or species. also threaten biodiversity in the region.13

There are several examples of voluntary introductions Related to concerns over introduction of non-indigenous of alien species creating potential threats to biological species are concerns about possible future impacts of diversity in the Pacific region, although introduced to living modified organisms (LMOs). In particular, con- further economic development. For example, , cerns have been expressed about possible impacts upon one of the southern group of Cook Islands, was once marine biodiversity which may be caused by living modi- renowned for its abundance of seafood – particularly for fied organisms, for example, possible escapes of geneti- clams known as pa’ua. However, these have been cally altered fish from field testing or aquaculture sites.14 adversely affected by overharvesting and by the intro- Article 8(g) of the CBD requires Parties, as far as poss- duction of non-indigenous species of clam. As a result of ible and as appropriate, to establish or maintain means the reduction in stocks of pa’ua, and the drive to find to regulate, manage or control the risks associated with new revenue-generating sources, giant clams were intro- the use and release of living modified organisms duced. Along with the rearing of these introduced spec- resulting from biotechnology which are likely to have ies, the Aitutaki hatchery is also in the process of rearing adverse environmental impacts that could affect the con- the indigenous pa’ua to restock the lagoon. However, servation and sustainable use of biological diversity, tak- transport of adults or juveniles, may result in the trans- ing also into account the risks to human health. How- port of potential diseases, parasites, or predators. Dis- ever, there is limited capacity and knowledge in relation eases and parasites identified from giant clams include to biotechnology in Pacific SIDS, for example, in relation seven bacteria; seven bacterial diseases; rickettsial infec- to risk assessment for the introduction of LMOs. At the tions; three protozoans; and their diseases. There are international level, in implementation of Article 19(3), also reported cases of predators of the giant clams – negotiations of a protocol on biosafety under the CBD such as a snail predator, which is widely distributed and have commenced in an Open-ended Ad Hoc Working which preys on a variety of bivalves. These snail pred- Group.15 The Protocol is to contain, inter alia, pro- ators reportedly appeared at the Alofau Nursery in cedures for advance informed agreement in the case of American Samoa, after the introduction of the smooth transboundary movements of LMOs. Again, imple- giant clams from Palau. In 1986, one thousand juvenile menting such an agreement will test the capacity and smooth giant clams were introduced to the Aitutaki resources of SIDS. Hatchery. A year later, a cyclone hit the island of Aitutaki and disturbed the trays. Specimens were scattered into Challenges to Implementation the Island’s lagoon. Islanders who have tried to farm the clams have reported difficulties in farming because of As suggested by the conclusions of the 1994 SIDS Confer- the clams’ susceptibility to being attacked by snails. ence, the Cook Islands face many of the same obstacles to implementation of the Convention as other SIDS. A second example of a voluntary introduction relates to the trochus. Trochus was introduced into the Cook Economy Islands in 1957. The natural distribution of the trochus The economic situation in the Cook Islands poses a seri- ranges from islands in the Indian Ocean to the Pacific ous problem to effective implementation of the Conven- Islands of Fiji, Palau, New Caledonia and others. Individ- tion. The Government has recently been undertaking a uals have been introduced to all other islands where process of significant economic and social reform, with they are presently found. They live in shallow-water reef impacts upon capacity to implement the Convention. flats and feed on the low algal turf growing over the coral There is a lack of adequate financial, technical and scien- rubble substrate. There is a huge world market for its tific capacity within the Islands to support the implemen- shell, but they are also harvested for their meat. In the tation of the Convention, which has been further eroded 1950s, the South Pacific Commission began encouraging as a result of: transplantation which resulted in the successful estab- ț a reduction in the public sector workforce from 59% lishment of new colonies in other island environments. of total employed in 1993 to 15% in 1996; However, relatively little is known about the ecology of ț loss of skilled and trained human resources emigrat- the trochus other than its general distribution, growth ing or leaving the country for alternative employment; rates and food preferences. It is known that large shells ț a significant reduction in government revenue has are the habitats for several other invertebrates and placed pressure on the reformed government insti- algae. tutional structure. Since the introduction of the trochus into the Aitutaki The Cook Islands most current pressing need is econ- marine environment from Fiji in the 1950s, reports show omic reform so that it can reach a growth rate that will

 Blackwell Publishers Ltd. 1997. 306 Volume 6 Issue 3 1997 In-situ Conservation in the Cook Islands enhance rather than diminish current lifestyle patterns. thesis of both customary and modern legal approaches To do this increased pressure will be placed on limited related to conservation. natural resources, and both the community and Govern- ment must recognize that economic growth and biodiv- Co-ordination ersity protection are not incompatible, but can be achi- Although the government infrastructure is small, co-ordi- eved with careful and balanced decision-making. nation of government agencies in the Cook Islands remains difficult, principally because of the limited num- Land and Land Tenure ber of technical staff. Lack of awareness of issues The land territory of the Islands is small. This creates involved can be a major hurdle to implementation of pressures upon land resources, which has increased the environmental protection schemes. Responsibilities for need to explore the economic development of marine implementation of the Convention are likely to fall within resources. the mandate of a number of different government depart- ments and agencies, including the Ministry of Agricul- A further consequence of the increasing population and ture and the Ministry of Marine Resources, as well as coastal development is increasing coastal degradation the Environment Service. There is a Co-ordinator for the and decreasing public access to beaches and other rec- Implementation of Biodiversity Activities, who involves reational sites for both the local community and tourists Government and community through consultation and alike. Land has become increasingly an economic com- implementation. This is achieved through the use of a modity – particularly on the island of Rarotonga, the further tier, the Biodiversity Implementation Committee, most commercialized island of the group. a small working group made up of community represen- tatives and government. Their role is to encourage Land tenure is a key, and emotive, issue. While this arti- change through various activities, e.g., education and cle does not address land use and land tenure in detail, awareness, data collection, planning and project design, it will be a significant factor in all efforts to implement and integrate these with economic development. How- the Convention in the Islands. For example, traditional ever, this work is difficult with limited resources, includ- land tenure patterns render some conservation mech- ing human resources, where commitment by staff to anisms, such as protected areas, difficult to implement other priority full time work takes precedence. in the Islands.16 Consultation Lack of awareness Ensuring the ‘ownership’ of any project is fundamental There is a need to increase public awareness of prob- to its success. The experience in the Cook Islands is that lems of biodiversity conservation and use. Public edu- this does not always happen or takes place too late after cation programmes using traditional art forms have the planning stage is already completed. A fundamental proved successful – such as Turtle Conservation Weeks shift to allow resource owners and the community to where the communities have been invited to compose be involved in planning decisions on programmes and songs and chants about turtles for entry in competitions projects at an early stage is necessary in order to reflect held by the Conservation Service. Stimulating per- community priorities and needs. forming arts and theatre on conservation issues should be emphasized. Implementation Measures Legal approaches The types of legislative measures often recommended The Cook Islands has in place a substantial body of for implementation of the conservation obligations in the environmental law, relevant to the conservation and sus- Convention may not be the most effective or appropriate tainable use of biological diversity.18 Even before the in a small island state. For many island people, parti- negotiations of the CBD, a Conservation Service was in cularly the older generation living in the more remote place, its mandate contained in the 1986-87 Conservation islands of the Cook Islands and other Pacific nations, Act. In relation to marine resources, the 1989 Marine rules and laws of society are not new but the concept Resources Act provides for the conservation and man- of a written statute, in a language that only lawyers can agement of fisheries resources by the Ministry of Marine understand, causes confusion. Resources. It also prohibits certain destructive fishing practices and allows for aquaculture to be regulated. While environmental legislation frequently imposes The Act provides the framework for utilization of the penalties for infringement in the form of fines,17 high fin- fishery resources of the EEZ.19 In the early 1990s, ancial penalties and criminal sanctions may not be National Environmental Management Strategies were appropriate responses in close-knit communities with developed to guide policy towards sustainable develop- very limited financial resources. Penalties imposed by ment.20 legislation are likely to be met with disbelief. Since the majority of small island residents are not able to In addition to legislative and policy measures, traditional afford such fines (and the only alternative being conservation practices have a significant role to play in imprisonment), small fines are normally imposed. the conservation and sustainable use of biological diver- sity. For example, under Ra’ui, village leaders may Codifying customary laws may prove to be beneficial for impose restrictions (enforced by the Island Councils) on the conservation of biological diversity. It may be poss- access to land, lagoons and reef areas for the conser- ible to develop clear and practical guidelines for the syn- vation of food and marine resources to allow resources

 Blackwell Publishers Ltd. 1997. 307 In-situ Conservation in the Cook Islands Volume 6 Issue 3 1997 to recover or to increase yields.21 However, the use of For the purposes of carrying out these functions, the Ra’ui has fallen into disuse in all but a few of the islands. Tu’anga Tamporoporo has the power, inter alia, to desig- Prior to the CBD, few protected areas were in place in nate animals and plants as rare and endangered species the Cook Islands. At the time of the 1992 State of the and to issue guidelines for the special protection of Environment report, Suwarrow atoll was the only area such species. declared for conservation at the national level in the Cook Islands.22 Another area, Takutea reserve was under The functions of the Environment Service include the control of the people of Atui as a seabird sanctuary.23 implementing policies and programmes conveyed to it The Cook Islands Conservation Service made efforts to by the Council, and formulating and recommending poli- reserve a number of other areas, but faced difficulties cies for adoption by the Council.26 Under the Act, the through land tenure problems. Environment Service may (or on direction of the Environment Council shall) prepare a draft management Quarantine laws also exist, under the auspices of the plan for the island of Rarotonga for the protection, con- Agriculture Department. For example, the 1973 Plants servation, management, and control of, inter alia, wild- Act and associated Regulations, and the 1975 Animals life, including endangered species and habitats, Raro- Act and Regulations.24 tonga waters and internal waters, forests and wetlands.27

The Rarotonga Environment Act, 1995–96 The Environment Council may cause to be issued in 28 The most wide-ranging legislation, reflecting some of the respect of any native land an environment notice, for requirements of the CBD, is the Rarotonga Environment the purposes of protecting, conserving, managing and Act 1995–1996. This Act applies only to Rarotonga at controlling any resource, animal, plant, or habitat of any present, but already four Outer Island Councils have animal or plant (or for providing to the public the enjoy- requested inclusion in the Act. With regard to extension ment of any land subject to the notice). The environment of the Act to other islands, the main debate centres on notice must specify a management plan, prepared in the formation of an Island Environment Management accordance with the Act, as described above. The Act Committee that will introduce sustainable development also requires that before an environment notice can be procedures and practices. It is envisaged that this will issued, a shared resource management agreement must be achieved by developing each island’s local by-laws, be concluded. In the case of native freehold land this rather than by a central umbrella act from the capital. must be concluded with the owners of the land and any other person having an interest in the land to which the While the review of existing national legislation prior to notice relates. In the case of customary land, the shared ratification of the CBD was taking place, the new Environ- resource management agreement must be concluded 29 ment Bill was being prepared by the Cook Island Conser- with the members of the Aronga Mana of the district vation Service. The new Bill was designed to incorporate in which the land is situated and any other person with 30 many relevant provisions of the CBD, such as; an interest in the land.

ț a mandatory requirement for an environmental Of relevance to Article 14(1) of the CBD, the Rarotonga impact assessment process and procedures; Environment Act also includes provisions on environ- ț the establishment of various forms of appropriate pro- mental impact assessment (EIA). Prior to the Act, no EIA tected areas; requirements were in place. Section 31(1) of the Act pro- ț the establishment of a mechanism for a broad based vides that: consultative process. This was intended to ensure that all stakeholders were able to input into the man- ‘No person shall undertake any activity which is likely to signifi- cantly affect the environment except in accordance with a pro- agement process of the proposed new Environment ject permit issued under this section’. Service and its functions. Under Section 31(3), applications for project permits The Rarotonga Environment Act repeals earlier legis- submitted to the Environment Service must be lation, the 1986-87 Conservation Act, and creates a new accompanied by an EIA, setting out details of: body, the Tu’anga Taporoporo, consisting of an Environ- ment Council and Environment Service, which replaces (a) the impact of the proposed project upon the the Conservation Service. The functions of the Tu’anga environment and in particular - Taporoporo include: (i) those adverse effects that the project will have on the environment; and to protect and conserve the environment and to ț (ii) a justification for the use or commitment of ensure the sustainable use of the natural resources; depletable or non-renewable resources, (if any) to to protect, conserve, manage, and control wildlife, and ț the project; and in particular the protection, conservation, manage- (iii) a reconciliation of short-term uses and long- ment and control of rare and endangered species of term productivity of the affected resources; and animals and plants and the regulation and prohibition (b) the proposed action to mitigate adverse environ- of trade and commerce in wildlife; mental effects; and to evaluate and act on activities which significantly ț (c) the alternatives to the proposed project. affect the environment; ț to make recommendations to the Minster for the The Environment Service, under Section 31(5), is to pub- Environment in relation to the protection and preser- lish a list of project for which it receives application, to vation of wildlife, forests, soil and water.25 ensure that EIAs are available for review by the public,

 Blackwell Publishers Ltd. 1997. 308 Volume 6 Issue 3 1997 In-situ Conservation in the Cook Islands to accept comments received within 30 days after the the CBD, and to identify components of biodiversity list’s publication (from other government departments together with processes and activities likely to have sig- and from the public), and to supply all information to nificant adverse impacts on the conservation and sus- the Council to reach a decision. In contrast to the EIA tainable use of biodiversity pursuant to Article 7 of the legislation of the European Community, the Act does not Convention.33 The Cook Islands has submitted to the GEF include listings of activities which are assumed to have through UNDP a CBD Enabling Activity proposal which significant effects on the environment.31 As discussed in covers a nine month duration and seeks to compile a the brief case study below, the EIA provisions of the Act national biological diversity inventory, as well as a long have already been tested in relation to the proposed term strategy for the conservation and sustainable use import and quarantine of alien species. of biological diversity in the Cook Islands.

Penalties, including criminal sanctions and fines are set out in the Act for transgression of its provisions.32 Alien Species and EIA: A Case Study The scope of the Rarotonga Environment Act was orig- inally conceived to be wider than the Act as adopted. As noted above, the new Rarotonga Environment Act The Act does not deal in any detail with the issue of incorporates, for the first time, EIA requirements. These marine or terrestrial protected areas (Article 8(a) CBD). have been tested early on in relation to the proposed However, draft Bills on National Parks and Marine establishment of a quarantine facility on the Cook Reserves are also in the pipeline. The draft Bills are cur- Islands. rently with the Crown Law Office, awaiting further advice from the Head of the Ministry of Works, Environment and Physical Planning. The National Parks Bill has not In 1996, an Australian animal importer/exporter received much attention from the Environment Service approached several South Pacific island governments as yet, and extensive consultation is required to ensure regarding proposals to establish a high security quaran- that any agreement for areas designated as National tine facility to act as a clearing centre for quarantined Parks also obtain resource owners’ agreement. animals, namely alpaca from Peru en-route to Australia. The process of import/export of alpaca from Peru was to proceed broadly as follows: The Marine Reserves Bill has been the subject of wide- spread consultation and publicity, particularly related to ț good quality alpaca would be sourced and obtained the community benefits of marine reserves. During the in Peru, and tested three times in the country of origin last two years, it has been modified to account for the for a range of known diseases or viruses, over a three community’s concerns, particularly in respect of the month isolation period (i.e., internal quarantine); ‘locking up’ of fishing grounds or areas that were once ț the alpaca would be exported from Peru to the island open for subsistence fishing. The Marine Reserves Bill quarantine facility, where over the 12 month regulat- will likely be introduced to Cabinet and Parliament ory quarantine period the alpaca would be subject to towards the end of 1997, whereas the National Parks Bill continual monitoring and testing for known diseases remains on hold. or viruses; ț after the regulatory 12 month quarantine, and after comprehensive health and disease checks, the ‘clean’ Outer islands may also have local laws in place relevant animals would be re-exported to Australia, for re-sale to the CBD. For example, the outer island of and farming. has requested the assistance of the Environment Service for technical assistance in relation to the development The proposed regulatory framework requiring the test- of environmental management by-laws, to address such ing and quarantine procedures followed the require- issues as turtle habitat protection, fisheries protection ments of the Australian Government. In 1995 the Aus- and management, sea bird protection, and coconut crab tralian Quarantine and Inspection Service (AQIS) had management. The capacity of the island itself to under- provisionally approved a study on the Establishment of take such work is extremely limited, and thus draft by- Offshore Quarantine Facilities, thereby paving the way laws would be produced by the Environment Service, for some animal importers/exporters to establish quar- and submitted to the Island Council. The proposed by- antine stations outside Australia, conforming to AQIS laws for Rakahanga include provisions relating to the tra- requirements on quarantine. Although some regulatory ditional custom of ra’ui, under the control of the Island frameworks for quarantine of domestic animals and agri- Council. They also contain provisions prohibiting the cultural livestock exist in the South Pacific, very few importation of animals not native to the island, save with regulatory frameworks are available in the South Pacific prior approval of the Island Council and subject to the related to exotic species of animals. provision of the Quarantine Act. The Ministry of Agriculture of the Cook Islands encour- Enabling Activities aged the proposal, which was expected to contribute to the economy of the Islands by way of: Enabling activities for biodiversity under the GEF are activities to assist countries to develop national, stra- ț landing fees at the international airport of charter tegies, plans or programmes referred to in Article 6 of flights from Peru and charter flights to Australia;

 Blackwell Publishers Ltd. 1997. 309 In-situ Conservation in the Cook Islands Volume 6 Issue 3 1997

ț the financial strengthening of the veterinary division nificantly affect the environment . . . ’ (emphasis added). of the Ministry of Agriculture; The question arose whether or not a permit was ț payments towards land leases on Rarotonga over a 15 required, since under the terms of the Act only projects year period; which were ‘likely to have a significant impact’ required ț the use of local contractors and materials to construct a permit. The applicant argued that since the EIA demon- the facility and infrastructure where possible; strated that there was only a slight risk of an effect on ț the employment of staff to operate and maintain the the environment, then a permit should not be required. facility; (As mentioned above, there is no list of activities in the ț the payment of local taxes; and Act raising a prima facie assumption of likelihood of a ț a one-off payment to Government as a demonstration significant effect). of goodwill. The applicant appealed against the decision of the On this basis, a Cook Islands company was formed and Environment Council, whereupon the Minister directed an application to import 750 alpaca was submitted to the the Environment Service to again consider the proposal Agriculture Department, which gave its approval on the and recommend mitigating actions to the concerns and above terms but subject to suitable regulatory arrange- issues highlighted. Once again the Council recalled a ments. number of experts and members of the community, including the traditional leaders for the area where the After all approvals had been obtained the Environment proposed site is located, and considered mitigating Service imposed an EIA requirement on the project actions and the significant level of public concern. The under Section 31 of the Rarotonga Environment Act. The Council again declined the proposal a project permit to applicant therefore applied for a project permit under begin work. Section 31(3) of the Act, submitting an EIA. Under Sec- tion 31(5), the Environment Service publicized the pro- This episode highlights the problems encountered posed project through newspapers and television, and between Government agencies over co- ordination and made copies of the EIA available through outlets in Raro- communication, and the lack of awareness of important tonga, inviting comments within 30 days. The Service legislation. Certain approvals for the project were given also set up an Alpaca Technical Advisory Committee before the EIA was carried out. Although it appears that made up of representatives of concerned government the project was refused a permit principally on the departments and non-governmental organizations to grounds of the objections received from the public, it consider the issues of the application with a view to might be suggested that Section 31 of the Environment advising the Council. Over 30 submissions were received Act gives the Islands, for the first time, the ability to con- from the public, all opposing the project going ahead on trol introductions of alien species by imposing con- the specified site. All information received from the pub- ditions to mitigate any adverse environmental effects lic and from the Technical Advisory Committee was while still enjoying the economic benefits of such devel- made available to the Environment Council. opment. With regard to the applicant’s challenge to the applicability of Section 31 in the circumstances of the On the basis of the information and consultations, the case, it should be noted that Section 31(2) provides that, project proposal was declined by the Environment Coun- notwithstanding Section 31(1), where particulars of any cil. The main reasons for refusal were: proposed activity are referred to the Environment Ser- vice by any person or body responsible for the granting ț the possible risk of foreign diseases or viruses spread- of any licence, permit or other form of approval, the Ser- ing from either the imported animals or the quaran- vice may require that a project permit be applied for and tine facility into the surrounding environment by vec- obtained in respect of the proposed activity, as if such tors, contaminated solid or liquid material, or a permit were required pursuant to subsection (1). handling of possible diseased animals whilst still in Nevertheless, the lack of guidance on the face of the Act quarantine; as to what types of activities fall within the scope of the ț the possible risk of ‘unknown’ viruses or diseases EIA/permit requirements may create further difficulties being passed from the imported quarantined animals in the application of the provisions. In addition, the epi- into the surrounding environment, as above; sode highlighted the need to develop capacity within the ț possible contamination of the surrounding environ- Environment Service for evaluating information con- ment from the quarantine facility operations; and tained in EIAs. ț the opposition of the public and some Government agencies to the establishment of a quarantine facility Conclusions on the specified site, which was adjacent to a resort hotel, and close by other tourist facilities. (The This article has outlined aproaches only to some aspects owners of the land themselves were also opposed to of the CBD, namely the conservation and sustainable use the project but were unable to take any action as the of biodiversity, in the Cook Islands. Further challenges land was subject to a lease for a further three years). lie in the implementation of the Convention’s provisions on fair and equitable sharing of benefits arising out of The legal interpretation of certain provisions of the 1995 the use of genetic resources. Although the Cook Islands Environment Act relating to EIA was questioned by the have made some progress in implementing the Conven- applicant. As noted above, the Act provides that ‘No per- tion, through national planning activities and through son shall undertake any activity which is likely to sig- the adoption of the 1995 Environment Act, there is still

 Blackwell Publishers Ltd. 1997. 310 Volume 6 Issue 3 1997 In-situ Conservation in the Cook Islands some way to go, and implementation will depend in large are: Rarotonga, , , , , Aitutaki, , part on the provisions of adequate financial and techni- Palmerston and Takutea. All the islands execpt Manuae, Takutea and Suwarrow, are inhabited. cal resources from developed country Parties. 2. Tearolo Rongo. Cook Islands: State of the Environment Report (1993, South Pacific Regional Environment Programme) [Here- A key element in the conservation and sustainable use of after, State of the Environment] xiv. biological diversity in the Cook Islands will be dialogue 3. For a summary of the Islands’ terrestrial and marine flora and fauna, see State of the Environment, 8-18. The State of the between national government and traditional leaders Environment Report notes that there are a large number of and communities. On an optimistic note, the government introduced species in the Cook Islands. It also notes species at has begun a process of consultation with the Island risk in the Islands including the endemic Rarotonga Flycatcher Councils and the traditional leaders (the Aronga Mana), and the Mangaia Kingfisher. Other species requiring protection in an effort to address such issues. Communities, as the include the Atiu Swiftlet, the Rarotonga Starling and the Coconut Crab, (id. at 16-17). resource users and land holders, will have a major role 4. State of the Environment, 8. to play in future environment management plans. Con- 5. Pulea, ‘Cook Islands: Condensed Version of Legal Review’, in sultation and awareness are key to effective conser- Boer (ed.) Environmental Law in the South Pacific, IUCN Environ- vation, and further awareness-raising activities need to mental Law and Policy Paper No. 28. 6. Id. (IUCN No 28). be devised. In addition to consultation over land use, 7. See W.T. King, ‘The South Pacific Biodiversity Conservation Pro- traditional forms of conservation practices , such as gramme’ in Krattiger et al (eds.) Widening Perspectives on Biodiv- ra’ui, should not be abandoned, but rather need to be ersity (IUCN/IAE, 1994). reintroduced in those areas where they have fallen away. 8. See W.T. King and V. Goad, ‘The South Pacific Region’, in Werks- Strengthening the role of traditional leaders in proactive man (ed.) Greening International Institutions (Earthscan, 1996) 205. conservation and sustainable use should be explored. 9. Chapter 17.125. 10. Chapter 17.127. Marine and coastal biodiversity is likely to remain a pri- 11. UN Doc. A/CONF.167/9, Report of the Global Conference on the ority for the Cook Islands in implementation of the Con- Sustainable Development of Small Island Developing States, Annex II. vention. The draft work programme on marine and coas- 12. See Decision II/10 of the Conference of the Parties and tal biodiversity under the Convention put forward to the UNEP/CBD/SBSTTA/3/4. third meeting of the SBSTTA as a result of the meeting 13. See, for example, de Fontaubert et al., ‘Biodiversity in the Seas’, of experts on marine and coastal biodiversity held in IUCN Environmental Policy and Law Paper No 32, at 32-36. 14. For example, there are reports of research on Tilapia, a fresh- Indonesia in March 1997, proposes addressing inte- water fish, to develop Tilapia which are able to withstand salt grated marine and coastal area management, marine and water in estuaries and mangroves, for aquaculture purposes. coastal protected areas, sustainable use of marine and Concern has been expressed over effects on indigenous species coastal living resources, mariculture, and alien species. should the altered Tilapia escape. 15. See the article by Alfonso Ascencio in this issue of RECIEL at p. 293 Co-ordination between government departments, and to 16. See State of the Environment, at 38-39. an extent between the national government and Outer 17. See for example the 1995 Environment Act (discussed further Island Councils (and between the Island Councils below). themselves) will also be an important step in implemen- 18. See, for example, Pulea, n.5 above. 19. Pulea, n.5 above, at 51-56. tation of the Convention. Efforts at co-ordination might 20. See Cook Islands: National Environmental Management Strategies also be enhanced by identifying within each department (1993, SPREP). an officer who can liaise with the Environment Service. 21. State of the Environment, at 51. There is a need to strengthen in general the environmen- 22. id. at 39. 23. id. tal management capacities of government departments. 24. See Pulea, n.5 above, at 48-49. For example, there is a need to ensure that the Ministries 25. Section 6(a) and (b). with environmental portfolios appoint persons with an 26. Section 18. environmental planning and protection brief to ensure 27. Section 37. department policies and development proposals are 28. The Act defines native land as native customary land or native freehold land. Native customary land is land ‘which, being carefully appraised in the light of possible impacts on vested in the Crown, is held by natives or the descendants of biodiversity. natives under native customs and usages of the Cook Islands’. Native freehold land is ‘land which either as to the whole of that The Cook Islands should continue to adopt an approach land, or any individual share, is owned by a native by way of a beneficial estate in fee simple, whether legal or equitable’. A based on regional co-operation through bodies such as ‘Native’ under the Act is a person of the polynesian race indigen- SPREP and the Forum Fisheries Agency. One area for ous to the Cook Islands and includes a person who is a descend- future regional co-operation may be activities in relation ant of a native (section 2). to the management of living modified organisms and the 29. The Aronga Mana is the group of traditional leaders of the dis- implementation of the Biosafety Protocol. The Cook trict. 30. Section 32(3). Islands, together with other small islands states, should 31. EC Directive 85/337 on the assessment of the effects of certain also continue to participate actively in international con- public and private projects on the environment. The Directive ventions and organizations. does not contain a definition of ‘significant effects on the environment’. Certain projects listed in Annex I of the Directive are presumed to have ‘significant effects on the environment’ and assessments are mandatory; other types of projects, listed Notes in Annex II, are not presumed to require EIA, but an EIA will be required if they are likely to have ‘significant effects on the 1. The Northern Group comprises: Penryhn, , , environment’. Differences of opinion have arisen between Mem- Rakahanga, Suwarow and . The Southern Group islands ber States and the Commission regarding the application of EIA

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to Annex II projects. Sands, Principles of International Environ- mental Law (1994) at 584. Wayne Tamangaro King is formerly Executive Offi- 32. See, for example, Section 31(10)(11); Sections 45-54. Offences in cer of the Cook Islands Conservation Service. He relation to rare and endangered species are set out in Section participated in the 5th Meeting of the Darwin Fel- 48. Although the Cook Islands is not a party to the Convention on International Trade in Endangered Species of Wild Fauna and lows. Flora (CITES), the offences include trade in rare or endangered animals or plants. It is also an offence to trade in any animal or Janet G. Maki, Darwin Fellow, is Deputy Solicitor- plant which as a consequence is likely to be damaging to or General of the Cook Islands. become a nuisance to wildlife or the environment. 33. GEF Operational Strategy, at 21.

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