Trans-Boundary Protected Areas

-MODULE 12-

TRANS-BOUNDARY PROTECTED AREAS

- SPECIAL CONSIDERATIONS -

EXERCISE 2

TBPA Negotiations

OBJECTIVES AND INSTRUCTIONS

 Nature of the Exercise o Large Group Exercise. o Legal Role Play. o Mock Negotiation.

 Purpose of the Exercise o This exercise is intended to provide Learners with an opportunity to apply their knowledge in a role-play situation. o Participation should help to enhance understanding of the challenges posed by negotiating a TBPA Agreement. o In addition, participants should build awareness and understanding of the types of issues that require consideration in establishing a cooperative and harmonious framework for the management of a TBPA and how obstacles in this regard might be overcome.

 Methodology and Procedure o Divide Learners into three groups. Two groups will represent the governments of two neighbouring jurisdictions, Aurora and Borealis, in negotiations. The third group represents an environmental NGO whose interests and objectives are described below. o Aurora is a comparatively well-resourced state with a well-developed protected areas law. General support of the local communities for establishing protected areas is high, and the country has a wealth of experience regarding the establishment and management of protected areas. Borealis, on the other hand, is characterised by the opposite circumstances. Protected areas law is largely undeveloped and there is limited evidence of support for protected areas in the jurisdiction. As a

1 result, management and operational experience are limited, despite the availability and suitability of areas that would be the subject of various forms of protected area initiatives in many other countries. o The Educator will outline the Scenario (10 minutes): . The parties (whose distinctive circumstances are described above) are embarking on the process of negotiating the formation of a new TBPA. . Further information concerning the circumstances and history of the relationship is provided in Annex 1. o The Educator will hand out to each group their national negotiating mandate including information on the current state of the relevant protected areas law. o The two government groups are tasked with completing negotiations for a draft TBPA Agreement. It is understood that the text must specifically address the following issues: . Management principles and administration; . Institutions and Governance; . Access, use and benefits sharing; . Compliance and enforcement. o Each government group will be assigned the tasks of (50 minutes): . Considering the legal requirements for concluding the Agreement. . Preparing their negotiation strategy for their first engagement with the other party. . Appoint a lead and assistant chief negotiator to lead their delegation at the impending negotiations. o During the same time period, participants representing the NGO will develop their own preferred version of the negotiation text. o The Educator will then call the two government groups together and run a mock negotiations (50 minutes): . The Educator will use the generic mandatory content to be included in the TBPA Agreement to structure the negotiations. . Following conclusion of the government to government negotiations, NGO representatives will critique the official text on the basis of their own preferred outcomes.

RESOURCES

 Introductory presentation  Annex A – Case Study (Narrative and Questions) – Instructions for Learners: Note that there are three sets of negotiation instructions, one for each of the three groups – the Aurora Government; the Borealis Government; and the NGO Bigger Landscapes are Better Landscapes.  Annex B – Draft Memorandum of Understanding  Annex C – Map of the case study

2 ANNEX A – CASE STUDY

THE CONTEXT

Protected areas managers and officials in Aurora and Borealis have had some history of informal co-operation in their efforts to safeguard the natural heritage of Aurora’s Plateau Park and Borealis’s Deep Valley Game Reserve. Both countries have enjoyed significant economic benefits as well, from visitors who have arrived at a pretty constant level from North America and Europe since the two separate protected areas were established nearly fifteen years ago pursuant to the distinctive legislation of each country.

Typically, visitors arrive in small aircraft to land on grass runways fairly close to existing accommodation facilities. Not many visitors actually cross the border because the terrain is really difficult and because of official language barriers that continue to limit relations between two former colonies of different 19th century empires.

The situation is now subject to new developments as the international airlines flying into Aurora and Borealis are pushing hard for a new airport development to be located on Aurora’s Plateau region – but outside the Park. If this development goes ahead as is expected, the economic and environmental prospects for the future of the adjacent protected areas are uncertain. In one scenario, the overwhelming majority of visitors would remain on the Plateau supporting tourism and the local economy. This is obviously a source of concern for corresponding operations, (still quite modest,) in country Borealis’s Deep Valley Game Reserve. Some of the existing facilities might be forced to close in the face of severe declines in occupancy rates.

Surprisingly, however, some Plateau businesses are alarmed by the prospect of losing their competitors in Borealis. As this group sees it, if the Deep Valley tourism economy collapses Borealis will have little economic incentive to maintain the existing reserve. This might lead to accelerated population expansion in the Deep Valley Game Reserve area with a loss of habitat, wildlife and environmental amenities. Over time, if the scenic views and wildlife opportunities from the Plateau were undermined in this way there would actually be much less reason for visitors to come to the region, with or without a new international airport. Researchers working with the NGO Bigger Landscapes are Better Landscapes (BLABL) have also pointed out that the Deep Valley Game Reserve provides habitat for Fat Slow Creatures that are an important element of the diet of Fast Swooping Wobblers, a unique bird species that ordinarily inhabits high range areas along the continental coast line. The governments have determined that it is time to discuss the prospects for common solutions. Public meetings were convened to bring together protected areas officials, airport proponents, tourism sector representatives from both

3 countries, community leaders, and other interested parties such as the NGO Bigger Landscapes are Better Landscapes. The results of the public meeting process were mixed, but a few highlights or revelations may be relevant for upcoming negotiations. BLABL is preparing to agitate for endangered species status for Fat Slow Creatures which would have the effect of imposing a freeze on habitat damage. The airlines have their eye on a potential airport location that is immediately beside Plateau Park. Based on the national history of protected areas activity, Aurora officials are hoping to gain more influence and prestige in international conservation circles. They are hopeful that continued progress towards Aichi Target 11* will improve their prospects.

*“Target 11: By 2020, at least 17 per cent of terrestrial and inland water areas, and 10 per cent of coastal and marine areas, especially areas of particular importance for biodiversity and ecosystem services, are conserved through effectively and equitably managed, ecologically representative and well connected systems of protected areas and other effective area-based conservation measures, and integrated into the wider landscapes and seascapes.”

Officials from the two governments involved are now set to prepare negotiation positions intended to produce an agreement on some form of shared management of the transboundary protected area constituted by Plateau Park and the Deep Valley Game Reserve. A copy of the skeleton framework agreement is set out below (Annex B).

4 YOUR TASK

Aurora Government

You represent the state of Aurora in upcoming negotiations concerning a proposed TBPA with Borealis, the neighbouring country. Aurora is a comparatively well- resourced state with a well-developed protected areas law. Your domestic legislation, for example, includes provisions calling for protected areas to be used to support national biodiversity conservation; for a high level of environmental protection; for a PA management plan with formally-articulated goals; for annual reporting to parliament; among other matters.

General support of the local communities for establishing protected areas is high, and the country has a wealth of experience regarding the establishment and management of protected areas. On the basis of this background and experience you see no reason why Borealis should not welcome the opportunity to adopt your existing arrangements or something pretty similar and to proceed quickly towards the creation of at TBPA framework.

Aurora and Borealis are tasked with completing negotiations for a draft TBPA Agreement which is included in the annexed materials (Annex B).

It is understood that the text must specifically address the following issues:

 Management principles and administration;  Institutions and Governance;  Access, use and benefits sharing;  Compliance and enforcement.

You have roughly 50 minutes to prepare for the negotiations and are encouraged to address the following in your preparations:

 Consider the legal requirements for concluding the Agreement.  Prepare a negotiation strategy for their first engagement with the other party.  Appoint a lead and assistant chief negotiator to lead the delegation at the impending negotiations.

5 YOUR TASK

Borealis Government

You represent that state of Borealis in upcoming negotiations concerning a proposed TBPA with Aurora, the neighbouring country. In Borealis, protected areas law is largely undeveloped and there is limited evidence of support for protected areas in the jurisdiction. As a result, management and operational experience are limited, despite the availability and suitability of areas that would be the subject of various forms of protected area initiatives in many other countries. The government of Borealis is certainly willing to move forward with PA arrangements but does not wish to be over-committed, particularly where unanticipated expenditures may arise. Borealis is accordingly somewhat apprehensive about the negotiations and fearful that Aurora will insist on arrangements that at the moment have little basis in your legislative framework or experience.

Aurora and Borealis are tasked with completing negotiations for a draft TBPA Agreement which is included in the annexed materials (Annex B).

It is understood that the text must specifically address the following issues:

 Management principles and administration;  Institutions and Governance;  Access, use and benefits sharing;  Compliance and enforcement.

You have roughly 50 minutes to prepare for the negotiations and are encouraged to address the following in your preparations:

6 YOUR TASK

Bigger Landscapes are Better Landscapes

You represent an NGO whose familiarity with the region shared by Aurora and Borealis is described in the annexed materials and is well known to all parties. BLABL has a particular interest in endangered species and considerable concern about current proposed developments in the area.

You are aware of upcoming discussions concerning an MOU between Aurora and Borealis with respect to TBPA development. It is understood that the text must specifically address the following issues:

 Management principles and administration;  Institutions and Governance;  Access, use and benefits sharing;  Compliance and enforcement.

As an NGO, BLABL is anxious to see its objectives achieved and is keen to encourage best practices in PA administration and in connection specifically with the operation of a possible TBPA. On the other hand, you are aware that this important opportunity might be lost if Aurora and Borealis are unable to reach agreement so it may be important to think of compromise arrangements that could be offered to avert a stalemate.

BLABL will not participate in the actual negotiations but may expect an opportunity to comment on what the Parties manage to achieve in the upcoming round of talks.

7 ANNEX B – DRAFT MEMORANDUM OF UNDERSTANDING

[DRAFT] Memorandum of Understanding Between the Government of … and the Government of …

On the Management of the Transboundary Conservation Landscapes

Recognizing the importance of Landscapes that straddle the international border between Aurora and Borealis, and desiring to promote improvements within the following landscapes; namely: 1. The Plateau Park region of Aurora; 2. The Deep Valley Game Reserve of Borealis; 3. Any other area that may be identified for environmental protection.

Recognizing that these areas are all part of the continental coast line bioregion having possible global value for biodiversity management and may also be threatened by inappropriate development. Conscious that these areas and their residents would prefer to avoid potential for conflict over natural resources. Considering the neighbourliness and the desirability for closer collaboration between the people of the two Parties Mindful of the principle of sovereign equality and territorial integrity of the two neighbouring countries Accepting that this agreement shall in no way be construed as derogating from any provision of the domestic law in force in the respective countries or of any other agreement entered into between the Parties

Now, therefore, the Government of Aurora and the Government of Borealis hereby agree that: 1. The Government of Aurora will be represented by the Ministry of Environment, Wildlife Conservation and Tourism; together with the Ministry of Agriculture and Forestry. 2. The Parties agree to designate or establish suitable Institutions and Governance arrangements not later than nine (9) months after the signing of this MoU. 3. The follow up and the coordination of the implementation of this Memorandum of Understanding will be spearheaded by the two Parties’ Ministries responsible for management and conservation of the environment, forests and wildlife resources. 4. Meetings of the committees shall be hosted by either Party at intervals mutually agreed upon. 5. These landscapes named above (para. 1) are recognized as being of importance to both Parties and so efforts shall be made to Manage and Administer them according to appropriate principles. 6. Parties shall coordinate and collaboratively manage these landscapes according to transboundary strategic plans developed in a participatory manner, while respecting the territorial boarders of the two countries. 7. This transboundary collaboration shall deliberately support conflict resolution and promote harmonious use of the border areas between the parties, through working with the respective communities, local governments, national security organizations, and NGOs.

8 8. These landscapes have the potential to catalyze socioeconomic development. The Parties shall strive to use them to improve the livelihoods of the people living in and around them so that everybody shares in the benefits. 9. The Parties shall commit to seek funding from respective Governments and international development partners to ensure proper management of these landscapes. 10. The Parties want to promote compliance and enforcement and shall strive to resolve all disputes through mutual consent. 11. Any amendment to this MOU shall be by mutual consent of the Parties and shall be in writing. 12. This MOU shall be terminated by either Party notifying the other party, in writing of its intention to terminate the MOU six months in advance. 13. Done at … on this … day of … the year two thousand and ….

In Witness Whereof the undersigned have agreed on this Memorandum of Understanding on behalf of their respective Governments.

FOR THE GOVERNMENT OF Aurora

FOR THE GOVERNMENT OF Borealis

______

9 ANNEX C – MAP OF THE CASE STUDY