Review of Policy and Legislation Relating to the Use and Management of Mangrove Ecosystems in Vanuatu
MANGROVE ECOSYSTEMS FOR CLIMATE CHANGE ADAPTATION AND LIVELIHOOD
TABLE OF CONTENTS
LIST OF LEGISLATION ...... i ACRONYMS AND ABBREVIATIONS ...... ii Executive Summary ...... iv PART 1: INTRODUCTION ...... 1 1.1. Background of the Review ...... 1 1.1.1 Review Purpose, Scope and Methodology ...... 1 1.2 Structure of the Report...... 1 PART 2: MANGROVES IN VANUATU...... 3 2.1 Mangroves ...... 3 2.1.1 Threats ...... 5 2.2 Governance and Management Framework on Mangroves ...... 5 2.2.1 Land Tenure ...... 5 2.2.2 Government ...... 6 2.2.3 Mangrove Management ...... 6 2.3 Traditional Resource Management ...... 7 PART 3: POLICY ...... 10 3.1 Existing and Proposed Policy Frameworks ...... 10 3.1.1 Development Policies and Plans ...... 11 3.1.1.1 Priorities and Action Agenda 2006 - 2015 (2006) ...... 11 3.2 Environment Policies and Plans ...... 12 3.2.1 National Biodiversity Strategy and Action Plan/ National Biodiversity Conservation Strategy (1999) ...... 12 3.2.2 National Integrated Coastal Management Framework (NICMF) and Implementation Strategy for Vanuatu: A National Approach to Cooperative Integrated Coastal Management (2010) ...... 14 3.3 Sector Policies and Plans ...... 15 3.3.1 Overarching Productive Sector Policy 2012-2017 (Draft) ...... 15 Strategies ...... 16 3.3.2 Vanuatu Forest Policy 2010 – 2020 (2010) ...... 17 3.3.3 Vanuatu National Energy Policy Framework (Draft) ...... 17 3.3.4 Vanuatu Land Use Planning & Zoning Policy Re-draft (May 2012) ...... 18 3.3.5 Aquaculture Development Plan 2008-2013 ...... 19 3.4 Climate Change Policy and Plans ...... 20 3.4.1 National Adaptation Program for Action (NAPA) ...... 20
Other adaptation options recognized by the report include: ...... 20 3.5 Evaluation of Reviewed Plans and Policies ...... 21 PART 4: LEGISLATION ...... 23 4.1 Overview of Vanuatu’s Legal and Governance Systems ...... 23 4.2 Mangroves, Terrestrial and Marine Tenure Rights, and Legal Mechanisms for Conservation .. 24 4.2.1 Customary Land and Marine Tenure ...... 25 4.2.1.1 Leased Land Tenure ...... 25 4.2.2 Statutory and Customary Mechanisms for Conservation ...... 27 4.2.2.1 Customary Marine Taboos ...... 27 4.2.2.2 National Parks and Nature Reserves under the National Parks Act 1993 [Cap 224] ...... 27 4.2.2.3 Community Conservation Area (CCA) under the Environmental Protection and Conservation Act 2002 ...... 28 4.2.2.4 Conservation Areas under the Forestry Act 2006[Cap 276] ...... 29 4.2.2.5 Prescribed Protected Species under the Forestry Act 2006 [Cap 276] ...... 29 4.2.2.6 Fisheries Conservation and Management under the Fisheries Act [Cap 315]: Designated Fisheries and Marine Reserves ...... 29 4.2.2.7 Designated Fisheries ...... 29 4.2.2.8 Marine Reserves ...... 30 4.3 Sectoral Legislation Regulating Activities Which May Affect Mangroves ...... 31 4.3.1 Regulation of Fisheries: Fisheries Act 2005, Fisheries Regulations Order No. 28 of 2009 [Cap 315] 31 4.3.2 Regulation of Forestry: Forestry Act 2001 [Cap 276] ...... 33 4.3.2.1 Forestry Agreements ...... 34 4.3.2.2 Mandatory restrictions on commercial forestry operations ...... 35 4.3.2.3 Conservation Areas and Protected Species ...... 35 4.3.2.4 Reforestation ...... 35 4.3.2.5 Licenses ...... 36 4.3.3 Extractive Industries: Mines and Minerals Act 1986 [Cap 190] and Petroleum (Exploration and Production) Act 1993 [Cap 227] ...... 36 4.3.3.1 Mines and Minerals Act 1986 [Cap 190] ...... 36 4.3.3.2 Petroleum (Exploration and Production) Act 1993 [Cap 227] and Petroleum Regulations Order 1997 ...... 37 4.3.4 Regulation Ports and Shipping Activities ...... 39 4.4 Cross-Cutting Regulation: Environmental Protection, Pollution Control and Planning Legislation ...... 39
4.4.1 Environmental Protection Law ...... 40 4.4.1.1 Environment Protection and Conservation Act (EPCA) 2002 [Cap 283] ...... 40 4.4.1.2 Environmental Impact Assessment under the Environmental Protection and Conservation Act [Cap 283] (EPCA) and the Environmental Impact Assessment Regulation 2011 ...... 41 4.4.2 Waste Management and Pollution Control ...... 43 4.4.2.1 Water Resources Management Act [Cap 281] ...... 43 4.4.2.2 Public Health Act No. 22 1994 ...... 44 4.4.3 Land Use Planning...... 45 4.4.3.1 The Physical Planning Act [Cap 193] ...... 45 4.4.3.2 Foreshore Development Act [Cap 90] ...... 46 4.4.3.3 Decentralization Act 1994 [Cap 230] and the Municipalities Act 1980 [Cap 126] ...... 48 PART 5: NEXT STEPS ...... 49 5.1 Recommendations for Policy ...... 49 5.1.1 Mangrove Policy or Mangrove Management Plan ...... 50 5.1.2 Community-Based Mangrove Management Plans ...... 50 5.1.3 Mainstreaming of Policies ...... 50 5.1.4 Education Awareness ...... 51 5.1.5 Protected Areas ...... 51 5.1.6 Capacity Building ...... 51 5.1.7 Coordinated Roles and Activities ...... 51 5.1.8 Monitoring and Evaluation ...... 51 5.2 Recommendations for Law Reform ...... 52 5.3 Options for Policy ...... 52 5.3.1 Mangrove Policy or Mangrove Management Plan ...... 53 5.3.2 Community-Based Mangrove Management Plans ...... 53 5.3.3 Mainstreaming of Policies ...... 53 5.4 Options for Law Reform ...... 53 Option 1: ...... 53 Option 2: ...... 53 5.4.1 Mangroves and Terrestrial and Marine Tenure: Options for Land Law Reform ...... 56 5.4.2 Conservation Mechanisms: Options for Law Reform ...... 57 5.4.3 Fisheries: Options for Law Reform ...... 57 5.4.4 Forestry Options: for Law Reform ...... 57 5.4.5 Extractive Industries: Options for Law Reform ...... 58
5.4.6 Ports and Shipping: Options for Law Reform ...... 58 5.4.7 Environmental Protection: Options for Law Reform ...... 58 5.4.8 Land Use Planning Options for Law Reform ...... 59 BIBLIOGRAPHY AND REFERENCES ...... 62
TABLE OF BOXES
BOX 1: Tabu Area Prohibitions: ...... 9 BOX 2: Supporting Policy Statements ...... 16 BOX 3: Adaptation actions included: ...... 20 BOX 4: Option 1 - Enacting a Stand-Alone Mangrove Statute or Regulation for Mangroves ...... Error! Bookmark not defined. BOX 5: Option 2 - Reforming Existing Legislation for Better Conservation and Management of Mangroves in Vanuatu: Key Objectives of the Reform ...... Error! Bookmark not defined.
TABLE OF KEY MESSAGES
KEY MESSAGES: Theme Policies and Plans ...... 10 KEY MESSAGES: Mangroves and Terrestrial and Marine Tenure Legislation ...... Error! Bookmark not defined. KEY MESSAGES: Conservation Mechanisms Legislation ...... Error! Bookmark not defined. KEY MESSAGES: Fisheries Legislation ...... Error! Bookmark not defined. KEY MESSAGES: Forestry Legislation ...... Error! Bookmark not defined. KEY MESSAGES: Extractive Industries Legislation ...... Error! Bookmark not defined. KEY MESSAGES: Ports and Shipping Legislation ...... Error! Bookmark not defined. KEY MESSAGES: Environmental Protection Legislation ...... Error! Bookmark not defined. KEY MESSAGES: Waste Management and Pollution Control Legislation . Error! Bookmark not defined. KEY MESSAGES: Land Use Planning Legislation ...... Error! Bookmark not defined.
LIST OF LEGISLATION
Constitution of the Republic of Vanuatu 1980 Alienated Land Act 1983 [Cap 145] Customary Land Tribunal Act (Cap. 271) Decentralization Act 1994 [Cap 127] Environmental Protection and Conservation Act 2002 [Cap 283] Environmental Management And Conservation (Amendment) Act No. 28 of 2010 Environment Impact Assessment Regulation 2011 Fisheries Act 2005 [Cap 315] Fisheries Regulations Order No. 28 of 2009[Cap 315] Foreshore Development Act 1976 [Cap 90] Forestry Act 2001 [Cap 276] Free Hold Titles Act 1994 [Cap 233] Land Acquisition (Amendment) Act 2000 Land Acquisition Act 1992 [Cap 215] Land Leases Act 1984[Cap 163] Revised 1988 Land Reform Act 1980 [Cap 123] Land Reform (Amendments) Act 1992 Land Reform (Amendments) Act 2000 Mines and Minerals Act 1986 [Cap 190] Municipalities Act [Cap 126] National Parks Act of 1993 [Cap 224] Petroleum (Exploration and Production) Act [Cap 227] Petroleum Regulations Order 1997 Physical Planning Act 2004 [Cap 193] Ports Act 1957 [Cap 26] Revised 1988 Public Health Act No. 22 of 1994 Urban Land Acts 1993 Water Resources Management Act 2002 [Cap 281]
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ACRONYMS AND ABBREVIATIONS
AKTE Amal-Krab bei Tabu Eria [Cap] Chapter ABS Access and Benefit Sharing C02 Carbon Dioxide CBD Convention on Biological Diversity CCA Community Conservation Area Convention on International Trade in endangered Species of Wild Fauna and CITES Flora CTM Customary Marine Tenure DEPC The Department of Environmental Protection and Conservation DoF Department of Forests DoFis Department of Fisheries EIA Environment Impact Assessments EMCA Environmental Management and Conservation Act EPCA Environment Protection and Conservation Act ICZM Integrated Coastal Zone Management ITTO International Tropical Timber Organization IUCN International Union for the Conservation of Nature IUU Illegal, Unreported and Unregulated LCI Local Conservation Initiative LMPC Land Management and Planning Committee MAGFF Ministry of Agriculture, Quarantine, Forestry and Fisheries MALFFB Ministry of Agriculture, Livestock, Forestry, Fisheries and Biosecurity MEA Multilateral Environment Agreements MESCAL Mangrove EcoSystems for Climate change Adaptation and Livelihoods MRM Marine Resources Management NAB the National Advisory Board on Climate Change & Disaster Risk Reduction NACCC National Advisory Committee on Climate Change NAPA National Adaptation Programme for Action NBSAC National Biodiversity Strategy Advisory Committee NBSAP National Biodiversity Strategy Action Plan NCSAP National Capacity Self-Assessment Project NGO Non-Government Organisation NICMF National Integrated Coastal Management Framework
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NLUPP National Land Use Planning Policy OPSP Overarching Productive Sector Policy PA Protected Area PAA Priorities and Action Agenda PEA Preliminary Environmental Assessment PMI Pacific Mangrove Initiative REDD+ Reducing Emissions from Deforestation and forest Degradation TMT Traditional Marine Tenure TRA Timber Rights Agreement UN United Nations UNCBD United Nations Convention on Biological Diversity UNCCD United Nations Convention to Combat Desertification UNFCCC United Nations Framework Convention to Climate Change VEU Vanuatu Environment Unit
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Executive Summary
Mangroves constitute the most extensive wetland vegetation in Vanuatu. It provides an important source of fuel wood, building materials, medicine, fish, crabs and shellfish and is a critical component of subsistence fisheries.
Despite its importance, mangroves in Vanuatu have been threatened by man-induced and natural factors. Development, tourism, climate change, waste disposal, urban development and housing development are key activities that lead to loss of mangroves and mangrove areas.
The review report is one of the key activities under the Mangrove Ecosystem for Climate Change and Livelihood project or MESCAL. The MESCAL project goal is to “Increase resilience to climate change in Pacific Island countries through adaptive co-management of mangroves, associated ecosystems and livelihoods”. The Review of policies and legislation relating to the use and management of mangrove ecosystems in Vanuatu contribute to this objective by providing an overview of the main policy and legal instruments and analyzing how they influence the use and management of mangroves.
The report comprises two key sections – first section being Policy Review and second on Legislative Review tracing the coverage of policy and legislation to the use, protection and management of mangroves in Vanuatu.
The review also analyses and assesses these policies and legislation. Recommendations and options for improving or reforming the policy and legal framework for mangroves are then articulated for consideration by the Government of Vanuatu. These could and would allow protection, sustainable use and management of mangroves in Vanuatu.
Policies
The Department of Environmental Protection and Conservation (DEPC) oversees all environment issues and the management of natural resources in Vanuatu. It also ensures that sustainable development is achieved.
Today, a number of policies and plans exist in Vanuatu. There is no specific mangrove policy in Vanuatu. The existing plans and policies implicitly address the use, protection, management and conservation of mangroves. However, the forestry policy of Vanuatu, amongst other policies is found to address the use and protection of mangroves, recognizing mangroves to be part of wetlands.
It is important that the use, protection and management of mangroves be specifically covered in policies and plans to ensure that it be accorded recognition and high priority from Government. The issue of mangroves being broadly classified in coastal ecosystems often lead to them being overlooked by decision and policy makers.
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Legislation
In relation to the legislation on mangroves in Vanuatu, the legal framework for mangroves ecosystem use and management is constituted by a broad variety of legal instruments. They include statutes regulating sectorial activities. These have implications for mangroves, and the regulation of cross-sectorial matters, such as environmental protection, waste and water pollution and land use planning. This fragmented legal framework results in scattered responsibilities, complexity and lack of clarity on legal requirements, loopholes and overlaps and generally a lack of coherence. This allows for uncontrolled use and management of mangroves and is not conducive to the attainment of best outcomes for maintaining the important environmental, economic and social functions of mangrove ecosystems. This situation is compounded by a weak monitoring and enforcement of the law which facilitates non-compliance.
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Photo 1: Part of the mangroves cleared and reclaimed for the Aquana Beach Resort, Vanuatu.
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PART 1: INTRODUCTION
1.1. Background of the Review
This review report is one of the key activities under the Mangrove Ecosystem for Climate Change and Livelihood project or MESCAL, a government initiative supported by the German Federal Ministry for Environment, Nature Conservation and Nuclear Safety, administered through the International Union for the Conservation of Nature (IUCN), Oceania Regional Office. The MESCAL Vanuatu project is one of the projects currently being implemented in the five Pacific Island countries under the Pacific Mangrove Initiative (PMI).
The MESCAL project goal is to “Increase resilience to climate change in Pacific Island countries through adaptive co-management of mangroves, associated ecosystems and livelihoods”.
1.1.1 Review Purpose, Scope and Methodology
Purpose of the Review. The review of mangrove policies and legislation in Vanuatu (‘the Review’) contributes to this objective by providing an overview of the key national policies ,plans and legislation that could be relevant to the use, protection and management of mangroves and mangrove ecosystems. The purpose is to take stock and assess the current policies, plans and legislation on mangroves that relates to and impact on the use, protection and management of mangroves and mangrove ecosystems.
Scope of the Review. This review seeks to (i) provide an overview of policies and plans that could be relevant to the use, protection and management of mangroves and mangrove ecosystems; (ii) analyze and assess these policies; and (iii) provide an overview of legislation regulating activities as well as environmental and land use planning control mechanisms which impact the use and management of the mangrove ecosystems. The review assesses the extent to which mangroves, mangrove ecosystems use, protection and management are considered and addressed in the existing policies, plans and legislation being reviewed.
Review Process/Methodology. The primary components of the review were research and desktop-based review. Following the completion of the desktop research, a discussion of preliminary findings of the desktop-based review was conducted in Vanuatu through a half-a-day workshop. As part of the ground-truthing and stakeholder consultation process, a two-and-a-half-day consultation in Vanuatu with key stakeholders from Government and civil society organisations was held. The draft review report was widely circulated internally and externally for comment.
1.2 Structure of the Report
This Report comprises four parts. Following this introduction, chapter 2 provides an overview of mangroves in Vanuatu, including the governance and management systems in relation to mangroves. The report continues in chapter 3 to review the key existing and proposed policies that relate to and impact on the use, protection and management of mangroves. The discussion of the
1 review findings is also provided in this chapter. Chapter 4 reviews the key existing and proposed legislation that relates to and may impact on the use, protection and management of mangroves, along with proposed options for law reform. An overview of Vanuatu’s legal and governance system is also discussed in this section. An analysis of Vanuatu’s terrestrial and marine tenure systems and the customary and legal mechanisms for conservation, and their implications for mangroves, the legislation regulating sectorial activities which may affect mangroves and their ecosystems; and the effectiveness of cross-cutting environmental management, pollution control and land use planning legislation for mangroves sustainable management and use is presented. Finally, there is the Conclusion and Recommendations section which offers conclusions of the review. A list of recommended actions drawn from the policy and legislation review exercise is also provided in this section.
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PART 2: MANGROVES IN VANUATU
2.1 Mangroves
Mangroves are known to provide a wide range of ecosystem services including: support habitat for a unique array of species such as molluscs, crustaceans, insects, fish, birds and even mammals; nursery habitat for commercially important fish species; production of timber and other forest products (e.g. wood, medicinal plants and high quality honey); protection of the near-shore marine environment – including coral reefs and seagrass beds – from many land-based impacts (e.g. nutrients, pesticides, sediments); restriction of the flow of seawater into the river systems and inland Map 1: water sources; pollution abatement, and protection against storm and wave erosion.
Of particular importance – in light of the impacts of climate change – are the regulating services provided by mangroves as natural coastal defenses from storm and tidal surges, and as carbon ‘sinks’ to mitigate further increases in carbon dioxide (CO2) levels. These services will prove to be of utmost importance to both the biodiversity and people in low-lying coastal areas.
Mangroves constitute the most extensive wetland vegetation in Vanuatu.
A National Forestry Inventory in identifying the forest resources of Vanuatu in 1993 estimated the area of mangroves at 2,519 hectares, covering 0.21% of the land area of Source: 1,226,905 (Department of Forestry, 2000). Vanuatu Government Lal and Esrom (1990) gave an estimate of between 2,500 and 3,000 hectares of mangrove forest; of which almost 2,000 hectares occur on Malekula. Of Vanuatu's 80 islands, only nine (9) have extensive mangrove growth, and apart from Malekula, mangroves are found only in small clusters scattered along low-energy coastlines (ibid). Malekula is the only island that has extensive growth of mangroves found along the shorelines protected by fringing reefs, smaller islands and peninsula protecting bays. A distribution of mangroves found in the Southern, Central and Northern parts of Vanuatu is shown in Map 1&2, clearly showing Malekula and Efate with a good mangrove cover.
Almost eighty percent (80%) of the mangroves in Vanuatu is found on the islands of Malekula (including the Maskelyne islands). The World Atlas of Mangrove (Spalding, M, et al., 2010) records
3 shows that Vanuatu has sixteen species of mangroves. The biodiversity assessment of the MESCAL project had found in total 23 species of mangrove (MESCAL Vanuatu, 2013).
Mangroves in Vanuatu, like in other countries of the South Pacific, are an important source of fuel wood, building materials, medicine, fish, crabs and shellfish and are a critical component of subsistence fisheries. They are at risk from excessive firewood collection and, in some places like Malekula and Efate, they are at risk from planned development projects.
Map 2: Mangrove Distribution in Vanuatu
Source: Mangrove Management in Vanuatu: An Overview
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2.1.1 Threats
Despite its importance, it was noted by Lal and Esrom (1990) and Amos (2007) that the pressure on mangrove resources from development is small because of mangroves distance from main urban centers. However, it was further noted that development for tourism has resulted in some reclamation of mangrove areas on Efate and adjacent islands. The extension of the wharf on Malekula to accommodate the needs for a logging project necessitated the clearing of about 100 meters of mangroves in Port Stanley.
Indiscriminate harvesting of mangroves in rural areas for fuel wood, increasing population, and clearing for easy access to the sea present problems. The harvest of mangroves for Photo 2: Eratap Lagoon mangrove clearance for a resort by a digger and piles of felled mangroves (looking south). The photo was provided by Francis Hickey. fuel wood is becoming a common problem in Vanuatu. Villages, usually situated within the mangroves on smaller islands, are almost entirely dependent on mangrove for fuel wood and building materials. On smaller offshore islands such as the Maskelynes of South Malekula, an average of 15-24 bundles per month of mangrove wood per household is burned as fuelwood (Tari and Naviti.nd).
With the above-mentioned man-induced activities, natural activities also contributed to the loss of mangroves. The third National Report to the Conference of Parties of the Convention of Biodiversity (2006) reported the tectonic uplift was believed to have contributed to a decline in mangrove habitat in the Port Stanley – Crab Bay area of Malekula.
Mangrove removal and the continued loss of mangroves amongst other activities, including sand extraction and other economic activities are increasing the vulnerability of many coastal areas to storm surges and sea-level rise. This is of particular concern for the Torres Group, Mele on Efate Island, East-Ambae and the Shepherds Islands (World Bank Group, 2011). The vulnerability and susceptibility of the coastal villages and communities in Vanuatu to climate change impacts, sea level rise and storm surges is increased with the removal of mangroves.
2.2 Governance and Management Framework on Mangroves
2.2.1 Land Tenure
All land within Vanuatu and associated resources are vested in traditional owners. Vanuatu’s Constitution provides for traditional tenure of land, coastal marine areas and associated resources.
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All land in the Republic of Vanuatu belongs to the indigenous custom owners and their descendants1. While land can be leased, ownership of land is inalienable. Consequently, decisions on protection and management of resources, biodiversity conservation and natural resources management are contingent on landholder support (Whyte et, al, 1998).
In Vanuatu, land tenure and therefore, resource use and management, is dominated by customary land ownership. The Constitution of Vanuatu states: “All land in the Republic belongs to the indigenous custom owners and their descendants”; as used here "land" includes “land extending to the seaside of any offshore reef but no further”. Just as importantly, traditional land ownership invests the landowner with rights to Map 3: Vanuatu Provinces access and use the resources on that land (positively or negatively, in terms of biodiversity conservation and habitat protection).
2.2.2 Government
Two spheres of Government exist in Vanuatu – the national (central) Government and the local. The national or central Government, highly concentrated in Port Vila, is organized around a series of departments (e.g. Agriculture; Forestry; Lands and Survey; Geology, Mines and Water) which, in turn, fall under one of thirteen Ministries responsible for public policy and administration. This public sector also includes the Department of Source: Wikipedia Environmental Protection and Conservation that reports to the Ministry of Lands.
The local government comprises six provincial councils as shown in Map 3 and three municipal councils. The provincial council as autonomous administration units serves their respective rural communities as an executive arm of the national Government.
2.2.3 Mangrove Management
There is no systematic management of mangroves in Vanuatu and the Government relies on existing traditional mechanisms to address mangrove management issues arising from development on custom land.
Environmental management responsibilities in Vanuatu are shared between several agencies, including the Departments of Environment; Fisheries; Forestry; Lands; Geology, Mines and Water; department of Local Authorities and Physical Planning Unit. However, the Vanuatu’s DEPC, formerly
1 Chap 12, article 73 Constitution of Vanuatu
6 known as the Vanuatu Environment Unit (VEU), handles all environment issues and is the United Nations Convention to Combat Desertification (UNCCD) National Focal point.
The Forestry Department has responsibility over the mangrove trees as part of coastal forests under the Forestry Act 26 of 2001 [Cap. 276] (Republic of Vanuatu 2006b). The Forestry Department has included in the National Forest Policy the objective of the protection and management of mangroves.
In relation to mangrove land, all commercial development of land is regulated by the Government. Where coastal development and mangrove conversion is carried out by non-traditional owners, developers must first obtain a land lease from the customary landowners. However, land leases only apply to land above the high water mark. Legislation that applies to coastal development projects affecting the foreshore includes the Foreshore Development Act under the Ministry of Internal Affairs. This Act states that “any developments on the foreshore of the coasts of any island in Vanuatu must first obtain consent from the Minister of Internal Affairs”. Despite government requirements in place, many areas of mangroves have been converted.
The DEPC, with the support of external-funded project activities provided secretariat support to a number of National Environmental Advisory Committees, such as the National Biodiversity Strategy Advisory Committee (NBSAC), National Capacity Self-Assessment Project (NCSAP) Steering Committee and the Local Conservation Initiative (LCI) Steering Committee. These committees exist only during the term of the project.
The former VEU, being established in 1986 was tasked to conduct researches, environment awareness, formulate and implement government policies for the management of Vanuatu’s environment in an ecologically sustainable manner. Additionally, the Unit was to maintain environment quality through the sustainable management of natural resources for the security and benefits of present and future generations of Vanuatu.
The DEPC is now mandated to oversee the management of natural resources and ensures sustainable development.
The Ministry of Lands and Natural Resources, amongst its 5 core ministerial programs, are to facilitate land and natural resources programs; coordinate policy and strategic planning and coordinate institutional development and training capacity.
2.3 Traditional Resource Management
The traditional management of marine resources has been practiced in Vanuatu in the past and is still being practiced by some provinces today. Some of these management practices and strategies also applied to freshwater and terrestrial resources (Hickey, F.R.2006). These practices stem from within the frameworks of cosmology, environment knowledge and indicators and seasonal cycles. For instance, tidal patterns are important in relation to reef gleaning or communal fishing activities, requiring good low tides; the flowering of certain plants which indicate seasonal spawning of certain reef fish have been acquired over generation and passed on from the elders.
Some of the key traditional practices that have been documented to serve as management strategies for the consumption and harvesting of marine resources include: Traditional Marine Tenure (TMT);
7 traditional fishing methods and practices – reef gleaning, spearing, hook and line fishing; traditional taboos and bans; privileged user rights; species-specific prohibitions seasonal, area and species closures; food avoidance (associated with different totems); sacred sites; behavioral prohibitions; spatial-temporal refugia (with a death of a traditional leader or of any clan member, depending on the area); grade taking; passing on of a hereditary chief’s title; in preparation for specific feasts or other traditions; and yam seasons.
The traditional village structure set up that is headed by the traditional leader ‘chief’ and the other traditional leaders under the auspices of the nakamal, or village court provides a form of management committee that oversees the management of marine resources and observation of traditional management practices . They also impose fines to those who violate taboos.
In the context of modernization, cash economy and development, some of these traditional practices have started to be forgotten and to be lost. In its effort to revive and strengthen this knowledge, the Department of Fisheries, VEU and the Vanuatu Cultural Centre had introduced in the early 1990s the Cooperative Management of Marine Resources Program. The program saw the integration of traditional knowledge and biological knowledge in contemporary taboos, for instance.
A recently documented community resource management initiative is at Amal-Krab Bay on Malekula in conserving marine resources in their tabu area. The success of the program has been underpinned by the use of the traditional resource management system and innovative awareness raising efforts. The ban on harvesting within the mangrove forests being instituted by the community chiefs has seen an increase in marine and coastal resources (UNDP, 2012).
The Amal-Krab bei Tabu Eria (AKTE) Committee has been set up to enforce tabu area regulations (from monitoring infringements to giving and collecting penalty fines) and oversee biological and socioeconomic monitoring. The individual village chief has been delegated to ensure that fines are paid by violators and, where necessary, the Malampa Police Department also has the responsibility to ensure the payment of fines. A 5,000 VT (approximately USD 53) fine is levied per violation in the tabu area.
Box 1 highlights the tabu area prohibitions and regulations pertaining to access area usage. A similar community-based initiative and model could be used for the management of mangroves with related prohibitions and regulations drawn.
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BOX 1: Tabu Area Prohibitions:
No terrestrial or marine resources, including plants and animals, may be killed or removed from the Ammal-Krabbei Tabu Eria (AKTE) No non-living resources, including dead wood, stones, shells, coral rubble, or sand may be removed from the AKTE All household waste must be disposed in disposal drums in the area No person may make fires or cook food outside the area’s barbecue house (constructed recently for tourism purposes) No person may enter the tabu area without the authorization of the AKTE committee Authorised visitors must pay 1,000 VT (approximately USD10) per small truck and boat, or 1,500 VT (USD16) per large truck, to enter the tabu area and must be accompanied by a member of the AKTE committee. They are subject to all rules of the tabu Passengers of yachts are allowed to swim and walk in the AKTE for a 1,000 VT usage fee. They are subject to all rules of the tabu Members of the AKTE committee may enter for the purpose of maintenance and monitoring activities. They may cut branches on roads and paths, but are subject to all other rules of the tabu
Access Area Sustainable Use Regulations:
A person may collect max. 30 crabs to eat, and 80 to sell, per day Crabs must be larger than four fingers across their carapace to be harvested Crabs with eggs must not be harvested The access area is divided among the sixteen local communities. Each community access area is subject to local rules and regulations, which must be respected by all community members
Extracted from: Amal-Crab Bay Community Resource Management Initiative, 2012
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PART 3: POLICY
3.1 Existing and Proposed Policy Frameworks
KEY MESSAGES: Theme Policies and Plans
There is no mangrove policy or framework in Vanuatu The current policies and plans implicitly address, to some extent and in a broader sense, the use, protection, and management of mangroves. The overarching development policy, the PAA 2006 - 2015 is still market driven, emphasizing economic growth. The Forest policy may be the only policy that specifically highlights the need to protect and manage wetland, coastal and mangrove forest areas. The existing policies and plans in Vanuatu do not sufficiently and adequately address the use, management and protection of mangroves in Vanuatu. Traditional knowledge, Protected Areas, community-based management systems, traditional conservation techniques and mechanisms have been recognized and acknowledged in the key polices and plans reviewed. Mangrove Policy or Mangrove Management Plan: Given the importance of the mangrove ecosystems and the need to conserve and protect them for the future, the government may wish to develop a mangrove management plan and/or mangrove policy for Vanuatu. This would ensure that mangroves and issues surrounding them would be given high priority and regard by Government. Community-Based Mangrove Management Plans: Communities could develop their mangrove management plans to provide overall guidance to the management, use and protection of mangroves in their respective communities and provinces. Should an overall national policy be developed, communities can also use this national framework as a guide in the development of their management plans to ensure its alignment to the national policy framework. Traditional knowledge and customary conservation practices could be utilized in the formulation of community-based mangrove management plans. Mainstreaming of Mangroves in Policies: Mangroves, its use, protection, management and the overall mangrove ecosystems should be incorporated and mainstreamed into all government development, environment, sectorial and climate change policies and plans. Policies and plans that are due to be reviewed and those that need to be reviewed should ensure that they have a separate section on mangroves and the mangrove ecosystems, its use, protection and management. Environment Impact Assessments (EIA): This should be mandatory for all development projects that have some impact on the environment. There should be a systematic consideration of impact of developments and activities on mangroves as a policy direction. The Environment Protection and Conservation Act calls for this and should be enforced. Protected Areas: Mangroves could be declared as protected areas and as recommended by the communities at the consultation conducted by the Mangrove EcoSystems for Climate change Adaptation and Livelihoods (MESCAL) Vanuatu National Country Coordinator, mangroves and areas containing mangroves should not be leased by Government. Coordinated Roles and Activities: Given that there are other Government Ministries and Departments like the Department of Forestry and Physical Planning Unit have a part to play in environment management and on mangroves, it is important to have in place a system and a more coordinated approach in decisions being made.
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Government policy on environmental and conservation issues is to provide an affordable framework of environmental protection and compliance within Vanuatu. This is realized through the enactment of the Environment Management and Conservation Act No. 12 of 2002, which went into effect on 9 March 2003. This is the only legislation governing environmental protection of all natural resources in Vanuatu. The Environment Act requires a preliminary environment assessment to be carried out for all development projects affecting the environment before any local or national authority gives consent to developers and project proponents.
The commercial harvest of mangrove forest products is totally banned. Even though the Government does not have a formal policy on commercial logging of mangroves, the Environment Unit has adopted an informal policy of not allowing commercial logging of mangroves or large scale reclamation of mangrove areas for alternative uses (Amos, 2007).
Currently, there are no formal mangrove wetland policies or legislation in Vanuatu. The Government however, now relies on existing institutional mechanisms to address mangrove management issues arising from development on custom land (Tari and Naviti).
In the absence of a mangrove policy in Vanuatu, key environment, development and sectorial policies and plans that may have some relevance to and impact on mangrove use, management and conservation are reviewed as follows.
3.1.1 Development Policies and Plans
3.1.1.1 Priorities and Action Agenda 2006 - 2015 (2006)
The Priorities and Action Agenda (PAA) addresses the different sectors and strategies of Government to raise the welfare of the people of Vanuatu. It also builds from the Millennium Development Goals and serves as one of Government's overarching policy documents.
Seven priority areas have been identified in the action agenda as national strategic priorities for the allocation of development resources. One of the seven priority areas covered by the PAA is on Primary Sector Development (natural resources and the environment). Specific policy objectives of environment (and disaster) management contained in the agenda include2:
1. Promote sound and sustainable environmental management practices; 2. Ensure sustainable management and conservation of Vanuatu’s biodiversity; 3. Integrate Hazard and Risk Management concerns into policies in order to reduce environmental risk; 4. Promote traditional and cultural disaster management know-how and self-help within the community.
Priorities and strategies noted from the document are to3:
1. Implement the Environmental Management and Conservation Act and the regulation of related activities; 2. Encourage the development of protected areas;
2 Strategy 2.2.4 of the Priorities Action Agenda 3 Section 6.2.3 of the Priorities Action Agenda
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3. Improve sewage treatment and reduce pollution in the harbors and lagoons near urban centers; 4. Conduct a solid waste disposal study; 5. Encourage eco-tourism, where feasible, as a means to protect the environment; 6. Conduct community awareness of the need to protect the environment, including through reduction of risks from natural hazards; 7. Develop and implement risk reduction programs in communities; 8. Prepare a Port Vila development plan to define how public amenity can be maintained or improved and the attractiveness of the town enhanced for both residents and tourists.
ANALYSIS:
The main focus of the PAA is the creation of an enabling environment for private sector led economic growth including activities in the primary sectors – tourism, agriculture, fisheries, and forestry. Human resource development has been given special focus in the action agenda.
It has been noted that the history of environmental protection in Vanuatu has been marked by some notable successes. Round log exports are banned; conservation measures for sandalwood have been taken; and numerous protected areas have been developed. The endorsement of the Environmental Management and Conservation Act (EMCA) (2002) attest to government’s commitment to environment management. The Act further provides for the conduct of environmental impact assessments and for biodiversity and protected areas. However, a lack of funding for the DEPC continues to undermine the effectiveness of EMCA.
The introduction of marine protected areas and protected areas provides at the same time for the protection to the mangroves and mangrove ecosystems as breeding grounds and habitats for fish. Mangrove management, protection and use as an environmental issue are not specifically covered in the Priorities and Action Agenda but rather environment concerns and issues in general. The recognition of customary measures, traditional knowledge, sustainable management and conservation of natural resources and the maintenance of biodiversity in the marine resources should indirectly benefit mangroves and associated ecosystems.
3.2 Environment Policies and Plans
3.2.1 National Biodiversity Strategy and Action Plan/ National Biodiversity Conservation Strategy (1999)
The strategy is to ensure protection or wise use of Vanuatu biodiversity (species and habitats) that has some bearings to sustainable land management. The objectives provide for the protection of Vanuatu significant biodiversity such as wildlife, water catchment areas, cultural sites, and the establishment of Environment Impact Assessments for developments to ensure wise use of biodiversity, which all have indirect impacts in sustainable land management.
Six key objectives for effective management of biological resources were further highlighted in the NBSAP: (i)Ensure sustainable management and conservation of Vanuatu's biodiversity; (ii)Develop appropriate policy, planning and legal mechanisms for the management of biodiversity; (iii)Improve our knowledge about biodiversity in Vanuatu; (iv) Improve the capacity of national, provincial, Non- Government Organisations (NGOs) and community organisations to manage biodiversity; (v) Increase
12 local awareness of the importance and value of biodiversity; and (vi) Foster community participation in the management and conservation of biodiversity.
Additional specific operational targets identified since the publication of the National Biodiversity Strategy and Action Plan (NBSAP) includes:
Conservation of the range of coastal marine biodiversity through locally managed marine protected areas. Conservation of lowland rainforest.
The Plan identifies mangroves throughout Vanuatu with special reference to mangroves on Elate, Malekula, Santo and Vanua Lava places and habitats of conservation significance. It further recognizes that mangroves are vulnerable places and as one of the protected areas of biodiversity conservation.
The coastal and marine biodiversity have been regarded to be of important national consideration given its importance to the villages and to the economy. Additionally, mangrove destruction, environmental impacts of infrastructure and development activities, dumping of wastes in coastal areas, amongst others have been identified as one of the priority biodiversity management issue. The declining respect for the traditional resource management systems and authority structures have been identified as one of the contributing factors towards over-harvesting of resources and as a key management issue for the marine ecosystems.
Objective 1: Biodiversity protection and conservation; Priority 5: Conservation of significant species and places highlights the preparation of conservation and rehabilitation plans for mangroves on Malekula, Elate, Santo and Vanua Lava. The plan further calls on DEPC to work with local landowners and chiefs to prepare community based mangrove conservation and rehabilitation plans and gives technical support for their implementation.
Environment Impact Assessment for all developments (private and governments) having some impact on the environment has been highlighted as one of the strategies in the report. In the application of appropriate policy, planning and legal mechanisms to enable sustainable management of biodiversity, it will be ensured that all government planning documents, policies and laws recognize the importance and values of biodiversity. This would greatly benefit mangrove ecosystems as most developments take place in coastal areas and foreshore developments.
ANALYSIS:
The management of mangroves and mangrove ecosystems has been covered and mentioned in the Plan. However, all issues relating to the use and management of mangroves are not covered in detail in the plan or best that the mangrove/coastal ecosystems be separated from the marine ecosystem. This would ensure that management; biodiversity and usage issues relating to mangroves would be clearly defined and explained. This may be further explored for consideration by the DEPC when reviewing the NBSAP in 2013.
Traditional tenure and management systems of natural resources by the communities and the recognition of the rights of all custom chiefs and local communities to safeguard biodiversity in areas under their control should provide a platform for any mangrove management plan or an integrated
13 mangrove management plan in Vanuatu. This would see the participation of communities themselves as resource owners and managers. This initiative should not be difficult to be adopted in Vanuatu given the successful implementation of Marine Resources Management (MRM) activities by the communities in the early to late 1990s (Hickey and Johannes,2002). More importantly, a marine conservation ethic was developed where people were aware, not only of the need for marine resource management in their waters but was also taking concrete actions to address this need.
3.2.2 National Integrated Coastal Management Framework (NICMF) and Implementation Strategy for Vanuatu: A National Approach to Cooperative Integrated Coastal Management (2010)
The National Integrated Coastal Management Framework (NICMF) for Vanuatu has been developed to assist responsible government agencies and concerned stakeholders to cooperate, collaborate and integrate their activities into a coordinated response to mitigate and reduce impacts affecting Vanuatu’s coastal ecosystems and resources. The goal of the NICMF is “to give substance to the national vision for sustainable coastal ecosystem management by prescribing institutional arrangements needed for management of coastal ecosystems and identifying relevant stakeholders who will support the process for implementing management and development activities”. The DEPC takes the lead role in coordinating implementation of the NICMF.
The key pressures affecting sustainable management of the coastal zone have been assessed based on six categories of pressures/activities: coastal development, coastal fisheries, tourism, land-based pollution and siltation, marine-based pollution, and climate change.
The specific objectives of the NICMF are to:
maintain the functional integrity and health of coastal ecosystems and environments through maintenance of ecological balance, protection of biodiversity, preservation of resources and sustainable fisheries and livelihoods of communities; harmonize coastal management processes provided for by relevant legislation, strategies, policies and plans; enhance and strengthen collaboration of all actors, including government agencies, NGOs and communities in the management process; ensure coastal ecosystem considerations are efficiently and adequately taken into consideration during all stages of development to minimize detrimental impacts on the coastal environment and achieve sustainability; facilitate the progress of sustainable multi-sectoral development; reduce resource use conflicts; maintain aesthetic appeal of the coastal environment for the enjoyment of the population and for tourism development; preserve customary, cultural and traditional values; and facilitate climate change adaptation activities.
The framework further serves as strategic coastal environmental decision-support framework for the Department of Fisheries (DoFis) and DEPC in coordinating their efforts in the integrated management of coastal ecosystem.
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ANALYSIS:
Sustainable coastal management and development is the key focus of the framework. Mangrove ecosystems, the use and management is very much part of the coastal development process and is affected, to some extent, by coastal development, in particular foreshore development. The various tools identified in the framework to address the six priority coastal zone issues highlighted in this section include: legislation, natural resource management, EIA, protected areas, community-based management, codes of practice/environmental best practice and planning. These mechanisms, if implemented, enforced and monitored should ensure the sustainability of coastal management and development. The successful implementation of such a framework would require also the close collaboration and networking amongst government agencies, non-government organizations and all stakeholders. This would mean mainstreaming of the strategies and roles of the stakeholders identified in the framework into their respective plans.
3.3 Sector Policies and Plans
3.3.1 Overarching Productive Sector Policy 2012-2017 (Draft)
The Overarching Productive Sector Policy (OPSP) is based on seven basic principles which guide policy goals and strategy development. These principles are: environment sustainability, social and gender equity, cultural sensitivity and integrity, private sector led growth, subsidiarity, good governance and transparency and observation of international treaties. Linking to the PAA 2006- 2015, the OPSP focuses on achieving Strategic Priorities 1 and 4 of the PAA being the private sector development and employment creation and primary sector development, environment, climate change and disaster risk management.
The sustainable management of the resource base and its importance in ensuring food security, livelihoods and the commodity export industries of Vanuatu had been recognised in the policy. The policy statements and the nine strategies to see the implementation of these policy statements are highlighted in Box 4.
Nature-based solutions in light of climate change and Vanuatu’s vulnerability to respond to these natural phenomena has been highlighted in strategic area 5 of the policy on Environmental services and resilience.
The importance of biodiversity, protected areas, community-based management techniques, the use of traditional mechanisms such as "tabus", participation of local communities and awareness-raising, capacity building and training, environment education have been recognised as playing an important role in the sustainable management of the environment. The lack of or non-representation of priority ecosystems like mangroves, tropical rainforests and coastal wetlands in the existing PAs network have been highlighted and recognized.
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BOX 2: Supporting Policy Statements
Enhancing capacities to use natural resources in a sustainable manner is a government priority in support of the productive sector The competing demands on the environment and differentiated impacts of climate change will be assessed and taken into consideration when formulating strategies to address the development challenges the productive sector faces
Strategies
Strategy 5.1: Shift policy focus from “crisis management or response” to “risk reduction and resilience building”. Strategy 5.2: Government will advocate and facilitate the formulation of disaster preparedness plans and environmental action plans for the productive sectors. Strategy 5.3: Promote environmentally friendly production systems, including integrated crop management, integrated pest management, agroforestry and organic farming. Strategy 5.4: Strengthen regulatory frameworks and enforcement to encourage sustainable farming and fishing, protect natural resources and prevent pollution, adopting a “polluter- pays” principle. Strategy 5.5: Support community-based management of inshore marine resources, both empowering and assisting communities to develop and enforce appropriate conservation measures. Strategy 5.6: Utilize further the already established options to recognize land and marine Protected Areas. Strategy 5.7: Strengthen capacity to collect appropriate natural resources data (land, freshwater and marine) to improve land use planning and fisheries management, and to monitor impacts and sustainability of activities in the productive sector. Strategy 5.8: Review legislation and regulations with a view to strengthen provisions specifically designed to prevent, deter and eliminate Illegal, Unreported and Unregulated (IUU) fishing activities. Strategy 5.9: Strengthen capacity for management of fisheries resources to include monitoring, compliance and surveillance of IUU fishing.
In monitoring the policy, the Ministry of Lands and Natural Resources Department of Environmental Protection and Conservation and Lands will have leading roles in environmental monitoring to support the thrust area – environment services and resilience.
ANALYSIS:
The policy does not specifically mention and address mangrove protection, mangrove use and management. The action plan for the listed strategies for the environment services and resilience priority area of the policy could take into consideration specific activities to ensure and the protection of mangroves; provide some guide to the sustainable and controlled use of mangroves and its management.
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3.3.2 Vanuatu Forest Policy 2010 – 2020 (2010)
The Department of Forests (DoF) leads the implementation of the National Forest Policy and implements and enforces the forestry legislation. The Policy’s vision is to see that “trees and forests of Vanuatu are sustainably managed and conserved, contributing to development for the ongoing well-being of all people in Vanuatu’ and the goal that “ the nation's forest resources are managed in an integrated and sustainable manner and provide wood and non-wood forest products as well as environmental and social services to contribute profitably to income generation, employment opportunities, and social well-being for all people in Vanuatu, and thus to sustainable economic growth”. The policy integrates current and future issues and challenges of the impacts of climate change, downstream processing, marketing and trade, revenue generation, Ni-Vanuatu participation, reforestation and forest conservation.
One of the outlined policy directives of Sustainable Forest Management of the policy contains a section on E. Wetlands, Coastal Areas and Mangrove Forests as follows:
Protect and manage wetland, coastal and mangrove forest areas.
Identify, develop and implement management plans for wetlands, mangrove forests, and shoreline trees (DoF, DoFis and DEPC, Province, communities) Conserve, protect and sustainably manage mangrove forests and mangrove ecosystems, wetlands, and shoreline trees, especially as a measure to enhance resilience to the impacts of climate change (DEPC, Communities, DoFis), DoF, MoF, Province) Afforest and reforest degraded coastal areas where possible, with appropriate tree species (DoF, Community, Landowner, Province) Select appropriate multi-purpose tree species for coastline rehabilitation and stabilization (DoF, communities)
ANALYSIS:
The recognition and call for the protection, management of wetlands, coastal and mangrove forest areas as being part of the forest policy is a positive move by the Government, in particular the Department of Forestry. The call for the development of management plans for wetlands and mangroves further shows the commitment of Government in the management and protection of these ecosystems. Possibly, the Forestry Act (2001) is to be amended to provide for the conservation and sustainable use of mangrove ecosystems.
3.3.3 Vanuatu National Energy Policy Framework (Draft)
The national energy policy framework addresses the adverse impacts of such high fuel prices on the economy and the people and at the same time provides a long-term development plan for the energy sector. The ultimate goal is the provision of reliable and affordable energy services to all people in Vanuatu.
Policy 2.4 “Ensure sustainable use of fuel wood” highlighted unsustainable harvesting of fuel wood; high consumption of fuel wood and lack of awareness in energy efficiency in the use of fuel wood as some of the key issues identified. Two major strategies in ensuring the sustainable use of fuel wood
17 are (i) to raise awareness on sustainable harvesting of fuel wood and (ii) encourage the planting of local fuel wood species and their efficient use.
ANALYSIS:
Given that mangroves are used by the coastal communities as one of their sources of fuel wood, its sustainable use has been covered for in the policy and the planting of alternative local fuel wood species. The planting of alternative sources of fuel wood in coastal communities is an initiative being carried out by the DoF. This will relieve some pressure off mangroves and their use as a fuel wood source. More awareness with coastal communities has to be undertaken on the use of alternative sources of fuel wood and thus contribute to the use and management of mangroves.
3.3.4 Vanuatu Land Use Planning & Zoning Policy Re-draft (May 2012)
The policy, being the outcome of the Land Sector Framework Implementation Schedule, aims to guide land use planning by setting priorities and outlining legislative and institutional settings to enable land use planning that encourages the best current use of the land resources and, at the same time, allowing for future generations equitably benefit from the same resources.
The land use planning policy covers land use planning from rural communities through to urban centers, integrates and recognizes kastom basis as being part of the land planning process. Integrating the policy principles of kastom, equity and sustainable development and the Land Sector Framework’s land use planning considerations, the policy seeks to address land use planning issues, including:
Minimizing the impact of economic development pressures on customary land Acknowledging the importance and significance of multi-stakeholder processes in the governance of land Highlighting the under-utilization of Vanuatu’s cultivable land for productive use Looming effects of urbanization and informal settlements in the major urban centers of Vanuatu Emphasizing the role of the land sector as an important part of the framework for environmental and natural resource management Mandating proper planning and development of the land asset, including the management of government and public lands, the management of common property resources, individual and community-based land use planning and urban planning and development
Section 12 of the policy on “Foreshore and Coastal Development” highlights the fact that poor precedents have been set, regarding coastal land use in Vanuatu, and it is the mandate of the policy to ensure that coastal use and development decisions be based on sound land use planning processes. Additionally, key activities on policy development outlined in the policy document include:
Developing a national policy on use of the foreshore, including but not limited to access to the marine area below the high watermark; compensation mechanisms and processes for loss of access or use; access to and use of foreshore areas of cultural or kastom significance (e.g. tabu sites, coral reefs, traditional hunting grounds, lagoons, and estuaries)
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Legislate and provide guidelines on fees and charges that may be assessed for inappropriate foreshore land use, including penalties, occupation charges, compensation for loss of access or use Develop and implement land use provisions within national, provincial, municipal or community plans that control or prevent some foreshore land use developments (e.g. coastal privatization); control the scale and cumulative effects of foreshore and coastal land use; and guide how risk is managed in vulnerable foreshore areas (e.g. climate change, tsunami, storm surge)
ANALYSIS:
“Kastom” has been given special consideration and recognition stressing the need to formalize it in all aspects of the land use planning provisions and processes. Moreover, it is formally required that Kastom knowledge and practice related to climate change adaptation and disaster risk reduction is incorporated into land use planning activities at all levels. The need for Environmental Impact Assessments and Cost benefit analyses in ensuring sustainable development has been stressed in this policy.
The use of mangroves had been indirectly covered in the policy through the foreshore and coastal development aspects of the policy calling for adequate planning controls for coastal development to ensure that impacts to the environment (and the people) are minimized at all stages of development. The compensation instrument further serves indirectly as a tool for the management of mangroves.
3.3.5 Aquaculture Development Plan 2008-2013
The Vanuatu Aquaculture Development Plan is a five-year strategic plan outlining the aquaculture road map for Vanuatu for the near future. Given the greatest natural constraints for the fisheries sector being the limited fisheries resources and high population growth, aquaculture development is therefore seen as a potential subsector to increase fisheries production and ensures that the resources of the wild fisheries are more consciously exploited so that the different fisheries sub- sectors are sustainable.
The Plan highlights the main components, including research and development, extension, infrastructure, credit and finance facilities, and environmental management.
One of the objectives of the plan addresses aquaculture to be developed within environmentally acceptable limits and stresses EIA to be conducted as a tool for this. The Aquaculture Advisory Committee has been established to facilitate environmental best practices.
ANALYSIS:
Aquaculture development would lead to the clearance of mangroves for ponds. The recognition of environmental management and the EIA component of aquaculture projects would provide some screening process that will act as a control measure on mangroves. A stringent EIA processes and requirements could ensure that a minimal loss or damage to mangroves and impact on the mangrove ecosystems is achieved.
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3.4 Climate Change Policy and Plans
3.4.1 National Adaptation Program for Action (NAPA)
The objective of the NAPA project for Vanuatu was to develop a country-wide programme of immediate and urgent project-based adaptation activities in priority. Given Vanuatu’s vulnerability status with regards to climate change and sea-level rise, the NAPA also served as an avenue to raise awareness and understanding at all levels in society, with respect to vulnerability and adaptation BOX 3: Adaptation actions included:
Develop provincial adaptation plans or incorporation of climate change into provincial planning; Relocation of settlements and relevant infrastructure; Demarcation of hazard and risk areas; Replanting of coastal vegetation to protect coastline; Ban/control sand mining; Establish provincial ICZM plan; Replanting of trees with the assistance of the department of forests; Encourage the re-vegetation of coastal species with the assistance of the department of Forests to curb coastal erosion; Encourage establishment of protected areas to ensure sustainability of terrestrial and marine resources; Relocation of settlements and relevant infrastructures.
Other adaptation options recognized by the report include:
Agricultural land use planning and management (modern & traditional practices, early warning including traditional systems); Community based marine resource management programmes (modern & traditional, aqua- culture); Develop Integrated Coastal Zone Management (ICZM), including mangroves & coastal flora management plan; Sustainable land use management and planning; Alternative sources of energy; Sustainable forestry management; Sustainable tourism.
(Extracted from NAPA) issues of greatest significance to the country. The initiatives that were undertaken to identify and implement appropriate activities in priority sectors, in order to enhance the resilience of Vanuatu to climate change (including extreme events), through adaptation, were identified and documented.
The NAPA has highlighted coastal erosion, cyclone damage, flooding, and a possible increase in fish poisoning as the main impacts affecting the health of the marine ecosystem in Vanuatu.
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One of the identified climate change issues and vulnerabilities for the provinces listed in the NAPA is coastal erosion threatening tourism, coastal and other major infrastructure. Fourteen adaptations actions have been identified in the document listed in Box 5.
One of the possible adaptation measures for tourism to ensure sound management of natural resources and the environment include: Preventive solutions in tourism infrastructure, development and planning policies, e.g. designation of coastal development zones, integration of climate risk criteria in development projects, beach management and monitoring, conflict resolution among users, etc.; financial incentives and public-private partnership for the application of engineering and environmental management solutions; nature conservation through tourism: identification and implementation of techniques to minimize impacts of tourism activities in natural environments, and creating revenue-generating mechanisms through tourism for the maintenance of protected and other natural areas.
ANALYSIS:
The National Adaptation Program for Action clearly set outs what adaptation measures Vanuatu needs to take in its efforts to adapt to climate change. The importance and the relationship between fisheries and mangroves in the face of climate change has been identified in the report with necessary adaptation measures on integrated coastal management, education and awareness to prepare communities for worst possible scenarios.
The use and management of mangroves as an initial part of the adaptation process should be implemented now with aggressive education and awareness in coastal communities on the need to conserve and manage mangroves. The recognition of traditional practices and knowledge of environment to build on to complement scientific knowledge on adaptation measures is highlighted in the report. This serves as a good basis for the adaptation measures and provides communities some sense of ownership for these projects. It has also been noted that the Cultural Centre of Vanuatu also encourages the integration of traditional resource management practices (e.g. area, seasonal and species specific tabus) AS PART of eco-cultural tourism strategies so that visitors can learn of these practices and see them at work.
3.5 Evaluation of Reviewed Plans and Policies
Vanuatu has a broad range of policies and plans covering development, climate change, environment and the key sectors of economic importance, particularly the primary or the natural resource-based sectors.
There is no specific mangrove policy nor is there a mangrove management plan in Vanuatu to address issues pertaining to the use, management, protection and conservation of mangroves. The environmental plans and policies like the Vanuatu NBSAP, the NICMF, and NAPA however, attempt to implicitly address, to some extent and in a broader sense, the use, protection, and management of mangroves. The Forest policy may be the only policy that specifically highlights the need to protect and manage wetland, coastal and mangrove forest areas.
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The overarching development policy, the PAA 2006 - 2015 is still market driven, emphasising economic growth. On the other hand, the draft OPSP 2012 - 2017 recognises in its strategy on environment services and resilience some of the strategies that would have some impact on the use, protection and management of mangroves with the formulation of an action plan for the specific activities on these strategies.
The use of traditional tenure, knowledge and governance systems Protected Areas, community- based management systems, traditional conservation techniques and mechanisms have been recognized in the various polices and plans under review. These principles could be used to protect and manage the use of mangroves and the mangrove ecosystems. This would be enhanced by providing further support to traditional strategies and governance systems, as well as providing on going awareness on the exceptional bio cultural values of mangroves to communities.
Overall, the existing policies and plans in Vanuatu do not sufficiently and adequately address the use, management and protection of mangroves in Vanuatu.
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PART 4: LEGISLATION
4.1 Overview of Vanuatu’s Legal and Governance Systems The Republic of Vanuatu, formerly known as the New Hebrides, was jointly administered by Britain and France under the Anglo-French Condominium from 1914 until gaining its independence and becoming a democratic republic in 1980.
Prior to independence, Vanuatu’s legal system was a combination of the British common law system, French civil law and customary law (‘kastom’). Both France and Britain jointly made laws to govern the indigenous population4.
The sources of law after independence include the Constitution, which is the supreme legal instrument, the acts of parliaments and customary law. Vanuatu hierarchy of courts follows the Magistrate Court, Supreme Court, and Court of Appeal model5. Customary land disputes are adjudicated according to a custom-based system by customary land tribunals - Village Land Tribunal, Custom Sub-Area Land Tribunals, Custom Area land Tribunals and Island Land Tribunals - pursuant to the Customary Land Tribunal Act6.
Vanuatu’s ratification of Multilateral Environment Agreements (MEA) has created obligations for Vanuatu to develop policies and to integrate these international commitments into national legislation. Of particular relevance to mangroves are the United Nations (UN) Convention on Biological Diversity (UNCBD); the UN Framework Convention to Climate Change (UNFCCC); the Kyoto Protocol; the UN Convention to Combat Desertification; and the Convention on International Trade of Endangered Species (CITES). Vanuatu has also joined the International Tropical Timber Organization (ITTO).
In compliance with its obligations under the Convention on Biological Diversity (CBD), Vanuatu has developed a National Biodiversity Strategy Action Plan (NBSAP) in November 1999 which makes specific reference to the need for protection and sustainable use of mangroves. According to this strategy, while mangrove clearings have historically contributed to loss of productivity of marine ecosystems, awareness raising and education had reduced the clearing of mangroves7. Some of the more recent statutes make direct or implied reference to the implementation of international obligations, such as the Environment Protection and Conservation Act and the Forestry Act, but lack of capacity and resources otherwise hinder this process.
4 Professor Don Patterson, ‘Vanuatu – Sources of Law’ (1999) http://www.paclii.org/vu/sources.html 5 South Pacific Lawyers Association, ‘Vanuatu’ http://www.southpacificlawyers.org/member/vanuatu 6 Customary Land Tribunal Act [Cap 271] 7 Convention of Biological Diversity, ‘Country Profile: Vanuatu – Main Details’, http://www.cbd.int/countries/profile/?country=vu (accessed on 04/10/12).
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4.2 Mangroves, Terrestrial and Marine Tenure Rights, and Legal Mechanisms for Conservation
KEY MESSAGES: Mangroves and Terrestrial and Marine Tenure Legislation
Vanuatu’s Constitution provides that “all land in Vanuatu belongs to the indigenous custom owners and their descendants” in perpetuity, and that the rules of custom shall form the basis of ownership and use of land The statutes regulating lands – excluding foreshores – in Vanuatu are the Land Reform Act and the Land Lease Act, both administered by the Ministry of Lands. Foreshore lands, pursuant to the Foreshore Development Act, are administered by the Minister of Internal Affairs whose portfolio includes the Department of Local Authorities. There is no legislation regulating subdivision of lands, and this loophole has been reported to be used to lead to uncontrolled use of land and removal of mangroves This division of responsibilities between the Ministry of Lands administering all land but foreshores and the Ministry of Internal Affairs (and its departments) responsible for foreshores can lead to unauthorized removal of mangroves when coastal development takes place without effective coordination between government authorities Although the laws regulating land and marine tenure rights do not contain specific provisions for environmental and conservation purposes generally and mangroves in particular, statutory and constitutional provisions can be interpreted and used towards the protection of mangrove ecosystems. For example, new leases (or existing surrendered or expired leases) may impose conditions to protect mangroves, prevent the loss or removal of mangroves and/or provide for the rehabilitation of mangroves Options for law reform are proposed at 5.4.1
Terrestrial and marine tenure is defined here as the legally or customarily established rights of people, as individuals or groups, on terrestrial or marine areas, including the natural resources attached to these areas. These rights include the rights of use and management of mangroves and their ecosystems.
Upon gaining independence in 1980, all land in Vanuatu, which had been alienated by the French and British administrators, was returned to the Ni–Vanuatu indigenous customary owners. The State retained only a very small area of land for public service purposes (estimated at approximately 2%). As a result, almost all the land in Vanuatu is customary land. Customary land is under customary tenure and governed by customary law unless leased. Leased customary land, which represents less than 10%8 of all customary land, and State land is registered under a Torrens-type system and is no longer governed by customary law.
8 9.3% of Vanuatu land area is under lease, data to december 2010, courtesy of the government of Vanuatu, source: Leases in Vanuatu, Key data from the World Bank Jastis Blong Evriwan Vanuatu National Leasing Profile, World Bank Justice for the Poor.
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4.2.1 Customary Land and Marine Tenure
The principles of customary land tenure were established in Chapter 12 of the 1980 Constitution. It provides that “all land in Vanuatu belongs to the indigenous custom owners and their descendants”9 in perpetuity10, and that the rules of custom shall form the basis of ownership and use of land11.
Customary land and marine tenure systems are not uniform across Vanuatu. They are constituted by a range of practices rooted in custom and historical practices, which differ between islands and within each island. Customary land ownership is traditionally communal, owned by clans, villages or families. It may however, be individual with land owned by chiefs or rights subdivided and allocated to individual heads of families12.
The Land Reform Act was enacted pursuant to Section 76 of the Constitution to provide for the implementation of land provisions of the Constitution. The Act defines ‘Land” to include “land under water including land extending to the sea side of any offshore reef but no further”.
Customary land and marine tenure rights on foreshores and coastal waters of most relevance to mangroves ecosystems are therefore, in most, cases held by customary land owners and governed by customary law. Customary marine tenure (CTM) establishes the management system of near shore reefs, according to custom.
4.2.1.1 Leased Land Tenure
Notwithstanding the right of the State to acquire customary land in the public interest, customary land may be alienated only by lease. A land lease agreement with the customary land owners is required for most developments on customary land carried out by non-customary landowners, including coastal and foreshore developments in mangrove areas.
The Constitution establishes the principles of the regulation of land leases. It requires Government consent for all land transactions between indigenous citizens and non-indigenous citizens or non- citizens.13 In granting consent, the government must consider the interest of: (a) the custom owner or owner of the land; (b) the indigenous citizen where not the custom owner; (c) the community in whose locality the land is situated; or (d) the Republic of Vanuatu14.
The Land Reform Act further elaborates on the general principles of government control of negotiations for land alienation (lease). All negotiations with custom owners relating to custom land must only be conducted by the proprietor who must obtain a certificate from the Minister responsible for lands, stating the name of the parties and the object of the negotiation15. In addition,
9 Article 73 of the Constitution of the Republic of Vanuatu 1980. 10 Article 75 of the Constitution of the Republic of Vanuatu 1980. 11 Article 74 of the Constitution of the Republic of Vanuatu 1980. 12 Nari, R. “Land tenure and resource management: a major challenge in Vanuatu”, Policy dialogue, Pacific Economic Bulletin, Vol. 15 No. 2, November 2000, Asia Pacific Press, at http://www.vanuatu.usp.ac.fj/sol_adobe_documents/usp%20only/Pacific%20law/Nari.pdf 13 Article 79 (1) of the Constitution of the Republic of Vanuatu 1980. 14 Article 79 (2) of the Constitution of the Republic of Vanuatu 1980. 15 Section 6 of the Land Reform Act 1980 [Cap123].
25 all agreements between non-indigenous citizens and custom owners relating to land require approval by the Minister and registration in the Land Records Office16.
The Land Reform Act also defines the powers of the Minister of Lands, with regards to general management and control over all land when the ownership is disputed or when and which, in the opinion of the Minister, is inadequately maintained.17 The Minister is then empowered, subject to the consent of the disputing parties, to conduct transactions in respect of the land, including the granting of leases and take all necessary measures to conserve and protect the land on their behalf18.
The main law, regulating leased land is the Land Leases Act, 1984, with the purpose “to provide for the creation and disposition of leases of land, for their registration and for matters connected therewith”.
The Act establishes the Land Records Office, mandated with the keeping of the Land Leases Register19 where all leases are to be recorded. No lease may be granted for a term ranging from 3 to 75 years20.
Leases are negotiated between the lessee on one hand and the Minister responsible for lands. The purpose of the lease must be specified in the lease, as well as the classes of leases, including Agricultural, Residential, Commercial, Industrial and Special leases. Development conditions may also be negotiated and specified in the lease21.
In addition, the Minister for Lands is given fairly broad powers under the Land Lease Act “generally to give effect to the purposes and provisions of this Act” by way of regulations which may prescribe agreements to be implied in leases on the part of the lessor or lessee. Those powers could be exercised for prohibiting or mitigating the destruction of mangroves, or any detrimental impact on mangroves of the development specified in the lease.
Remarkably, the definition of ‘land’ in the Land Lease Act does not include land below mean high water mark, but includes ‘all buildings and other things permanently affixed to land’. Developments on the foreshore lands require a separate agreement with the land owners, under the jurisdiction of the Minister for Internal Affairs, and administered by the Department of pursuant to the Foreshores Development Act.
Coastal development, such as industrial or tourism developments involving coastal and foreshores lands require two separate agreements with the landowners and the approval of both the Minister for Lands and the Minister for Internal Affairs. This limitation creates the risk of leaseholders obtaining approval for a land lease under the Lands Lease Act for use of land above high water mark, but making use of adjacent foreshore without obtaining approval under the Foreshore Development Act.
16 Section 7 of the Land Reform Act 1980 [Cap123]. 17 Section 8 (1) of the Land Reform Act 1980 [Cap123]. 18 Section 8 (2)(b)(c) of the Land Reform Act 1980 [Cap123]. 19 Section 2 of the Land Leases Act 1984 [Cap 163]. 20 Section 32 of the Land Leases Act 1984 [Cap 163]. 21 Section 38 of the Land Leases Act 1984 [Cap 163].
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4.2.2 Statutory and Customary Mechanisms for Conservation
KEY MESSAGES: Conservation Mechanisms Legislation
Customary and statute law both provide a range of mechanisms which could be employed for the conservation of the most significant mangroves ecosystems. The active engagement of local communities in coastal area management, through the formalization of community-based or co-management arrangements, together with increased awareness of the value of mangroves ecosystems would strengthen customary land and marine management systems and support the effectiveness and permanence of statutory conservation mechanisms. The declaration of Community Conservation Areas in significant mangroves areas could support mangroves sustainable use and management provided that communities were given a leading role in the management of the CCAs, through the establishment of a co- management system, and supported by adequate resources and capacity of the DEPC.
Options for Law Reform are proposed at 5.4.2 below.
Statutes and customary law both provide mechanisms for the conservation of land, waters, and species which may be utilised for the purpose of conservation of mangrove ecosystems.
4.2.2.1 Customary Marine Taboos
Although a comprehensive description of customary conservation tools is beyond the scope of this review, it is useful to mention the main customary conservation practice: marine taboos. The practices of temporary marine closures, whether they were established for conservation or cultural purposes, play a significant role in the sustainable use and management of marine resources, including mangroves. Taboos may be in force for several years or seasonally. Temporary ban on mangrove wetlands are reported to be imposed by village chiefs to allow for their recovery, based on traditional knowledge. Customary land and marine tenure systems based on traditional knowledge have been eroded due to growing population pressure and increased need for cash income, particularly in urban and peri-urban areas.
Several conservation mechanisms are established by statutes and outlined below.
4.2.2.2 National Parks and Nature Reserves under the National Parks Act 1993 [Cap 224]
One mechanism which may be utilized towards the conservation of mangroves is the declaration of national parks or nature reserve status under the National Parks Act of 1993.22 The Act provides for the Minister responsible23 to declare any area to be national parks or nature reserves upon recommendation from the National Parks Board. However the National Parks Board has not been established, and no national park area was declared from available information.
22 National Parks Act of 1993 [Cap 224], enacted July 25, 1995 23 Refers to the Minister responsible for environment and conservation which is the Minister for Lands and Natural Resources. section 2: of the National Parks Act of 1993 [Cap 224].
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4.2.2.3 Community Conservation Area (CCA) under the Environmental Protection and Conservation Act 2002
Community Conservation Areas may be registered for their biodiversity significance. This may be the most suitable conservation mechanism for the conservation and sustainable management of mangroves.
The criteria for an area to be registered as a CCA could be met by significant mangrove ecosystems areas. They must:
possess unique genetic, cultural, geological or biological resources; constitute the habitat of species of wild fauna or flora of unique national or international importance; and merit protection under the Convention Concerning the Protection of World Cultural and Natural Heritage.24
The consent of the custom landowners must be obtained by the Director, and the CCA negotiated with the interested parties.25 Prior to registration of a CCA, the Director must ensure that the objectives of the proposed CCA are in accordance with sound conservation practices and appropriate management plans for the achievement of identified conservation objectives developed for the area.
The Minister may make regulations, regulating the environmental effects of waste management, air and water pollution, the harvesting of marine resources with regards to CCAs, control the taking or use of specified species and to provide for the variation of any environmental assessment procedure. 26
The protection afforded by a CCA status is however, not permanent as landowners may, at any time, in writing make applications to the Director for the cancellation of registration of the CCA, amend any established conservation, protection or management plan or modify any area of a registered CCA.27
The declaration of Community Conservation Areas in significant mangroves areas could support mangroves sustainable use and management provided that communities were given a leading role in the management of the CCAs, through the establishment of a co-management system, and supported by adequate resources and capacity of the DEPC.
There are only a handful of declared CCAs, but traditionally managed conservation areas are widespread (over 100 conservation areas). Approximately 300 ha of mangroves (more than 10% of Vanuatu’s total mangrove area) have been formally declared as conservation or protected areas28 .
24 Section 35, Environmental Protection and Conservation Act 2002 25 Section 35, Environmental Protection and Conservation Act 2002 26 Section 45(1). 27 Section 38 (1), Environmental Protection and Conservation Act 2002 28 ITTO 2005
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4.2.2.4 Conservation Areas under the Forestry Act 2006[Cap 276]
A Conservation Area may be declared by the Minister on the request in writing by the custom owners of the land in an area of forest, including mangrove forest of ‘particular scientific, cultural or social significance or other special value for the present community or for future generations’ in the Minister’s opinion29, with the effect of prohibiting commercial forestry operations in that area.30.
Prior to the declaration, consultations must be conducted with the relevant ‘local government Council and island Council of Chiefs or area Council of Chiefs for the area subject to the declaration’31 and comments sought from interested members of the public.32
The declaration of a forest as a Conservation Area may be cancelled by the Minister on the request in writing by the custom owners of the land as the subject of the declaration33, which gives uncertainty to the protection provided.
4.2.2.5 Prescribed Protected Species under the Forestry Act 2006 [Cap 276]
The Forestry Act also provides for another mechanism for conservation which could be utilised for the benefit of mangroves: the prescription of Protected Species.
Mangrove species, as any other tree species under the Act, may be prescribed by the Minister as protected species, with the effect of prohibiting their felling or removal in the course of conducting commercial forestry operations, unless expressly authorized by a license granted under this Act34.
4.2.2.6 Fisheries Conservation and Management under the Fisheries Act [Cap 315]: Designated Fisheries and Marine Reserves
The Fisheries Act contains provisions on the conservation of fisheries. The Minister is responsible for the management, development and conservation of all fisheries within Vanuatu’s jurisdiction. 35 Accordingly, this Act contributes to sustainable management and conservation of mangroves through the conservation of an important component of its ecosystem.
Two mechanisms are established under the Act: the declaration of “designated fisheries” and “marine reserves”. These provisions of the Act are completed by species-specific provisions in the Fisheries Regulations Order 2009.
4.2.2.7 Designated Fisheries
A ‘designated fishery’ may be published in the Gazette by the Minister, on the Directors advice, having regards to (a) its importance to the national interest; and (b) the requirement for management and development measures for its effective conservation and optimum utilization.36
29 Section 50 (1), Forestry Act 2001[Cap 276] 30 Section 51. Forestry Act 2001[Cap 276] 31, Section 50 (2) (a), Forestry Act 2001[Cap 276] 32 Section 50 , Forestry Act 2001[Cap 276] 33 Section 52. Forestry Act 2001[Cap 276] 34, Section 53, Forestry Act 2001[Cap 276] 35 Fisheries Act 2005[Cap 315], Section 2(1) 36 Section 2(2), Fisheries Act 2005[Cap 315],
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The Director assesses and recommends ‘appropriate management, development and conservation’ for a designated fishery on the basis of information he may require from any person engaged in fishing or related activities.37 A management and development plan must be prepared and reviewed by the Director for each designated fishery.38
The Minister may make regulations, relating to the determination of designated fisheries and the management, development and conservation of those fisheries, and the enforcement of the management plan.39
4.2.2.8 Marine Reserves
A marine reserve may be declared and regulated by the Minister in any area of Vanuatu waters and seabed underlying those waters, after consultation with owners of adjoining land and the Local Government Council.40
In a marine reserve, fishing, destruction of coral, dredging or taking or sand and gravel, the taking of a wreck and any other disturbance of the natural habitat are prohibited. Any person engaging in any of these activities without a written permission granted by the Minister is liable to pay a fine.41
37 Section 2 (3). Fisheries Act 2005[Cap 315], 38 Section 2(4), Fisheries Act 2005[Cap 315], 39 Section 2(5), Fisheries Act 2005[Cap 315], 40 Section 43(1), Fisheries Act 2005[Cap 315] 41 Section 43(2). Fisheries Act 2005[Cap 315],
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4.3 Sectoral Legislation Regulating Activities Which May Affect Mangroves
KEY MESSAGES: Fisheries Legislation
Mangroves are essential habitat for fisheries The Fisheries Act and regulations essentially regulate the exploitation, management and conservation of mangroves products, but do not make specific case for the conservation and management of the main source of coastal fisheries Options for law reform are proposed at 5.4.3 below. A mangroves regulation can be considered under the Fisheries Act 4.3.1 Regulation of Fisheries: Fisheries Act 2005, Fisheries Regulations Order No. 28 of
2009 [Cap 315]
Fish and mangroves are co-dependent, and healthy mangroves ecosystems are essential to coastal fisheries. Unsustainable fisheries practices, such as overfishing, unsustainable aquaculture, and the development and operation of fish processing facilities have particular detrimental effects on mangroves and their ecosystems.
These matters are regulated by the Fisheries Act 2005 [Cap 315], and subordinate legislation which provide for the management, development and conservation of fisheries as well as for the regulation of local and foreign vessels within Vanuatu waters 42, the declaration of marine reserves and designated fisheries, ban on driftnet fishing43 and other related matters.
The broad definition of "fish" under the act includes “any aquatic plant or animal whether piscine or not, and includes any mollusk, crustacean, coral, sponge, holothurian (beche-de-mer) or other echinoderm, reptile or coconut crab, and includes their eggs and all juvenile stages” therefore, mangroves.
The Minister for Fisheries is the principal authority for the management, development and conservation of fisheries, acting in accordance to the Act44 and has the authority to prescribe regulations to implement the Act.
Two key fisheries management instruments established by the Fisheries Act are a licensing system and fisheries management plans.
The power to issue licenses is vested in the Director. 45 The Director may issue licenses with general conditions46, special conditions47 and conditions specified by a regulation.48
42 Part IV of the Fisheries Act [Cap 315] 43, Part 7, Fisheries Act 2005[Cap 315], 44Section 2 (1), Fisheries Act [Cap 315] 45 Section 79. Fisheries Act 2005[Cap 315], 46, Section 23 (2), Fisheries Act 2005[Cap 315]. The Director may, by notice published in the Gazette, specify general conditions additional to those which all licenses and authorisations or any category of licenses or authorisations are subject by reason of. However, such additional conditions must be consistent with this Act and any applicable fishery management plan, access agreement or multilateral agreement.
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Fisheries management plans, as described above, are prepared by the Director for Fisheries and approved by the Minister. They must be prepared for each designated fisheries, and may also be prepared for the management and development of other fisheries.49
Certain fishing methods, which are detrimental to the marine environment and particularly damaging to mangroves, are prohibited by the Act. They include any explosive, poison or other noxious substance for the purpose of killing, stunning, disabling or catching fish, or in any way rendering fish more easily caught.50 An offence is also constituted under the act by the act of carrying any of the tools or substances that may be used for the prohibited fishing methods51 or having them onboard a vessel52, and landing, selling, receiving or possessing any fish taken by any such means. Breach of these provisions is punishable by heavy fines and/or imprisonment.53
The Fisheries regulations 2009 are a recent instrument, and as such reflect both the provisions of the Environmental Protection and Conservation Act, relating to the requirement for environmental impact assessment. This is in addition to any other condition imposed by the Director in granting a license for the various activities covered in the regulations, and generally the obligation for the license holder to give consideration for, and minimize, any environmental impact when conducting the activities subject to the license.54 Licenses with special conditions must be consistent with the fishery management plan, and access agreement55 or multilateral agreements (for foreign fishing vessels).
The regulations also contain fisheries conservation measures, essentially prohibiting or regulating the method of taking or the taking of minimum-sized fish species such as rock lobster, coconut crab, beche-de-mer among others, but does not contain provisions for mangroves.
47 Section 23 (3), Fisheries Act 2005[Cap 315], The Director may attach to any license or authorisation any special conditions. However, such special conditions must be consistent with this Act and any applicable fishery management plan, access agreement or multilateral agreement 48 Section 23 (1) (b), Fisheries Act 2005[Cap 315], 49 Section 3, Fisheries Act 2005[Cap 315] 50 Section 3, Fisheries Act 2005[Cap 315] 51 Section 3, Fisheries Act 2005[Cap 315] 52 Section 42(2), Fisheries Act 2005[Cap 315] 53, Section 42(2)(4) and (5), Fisheries Act 2005[Cap 315] 54 For example in relation to Licenses authorising Aquaculture export processing establishment see section 46 of the Fisheries Regulations Order No. 28 of 2009 55 Section 7 of the Fisheries Act [Cap 315]: (1) “The Minister, with the approval of the Council of Ministers and on the advice of the Director, may on behalf of the Government, enter into an access agreement with any government, association or other legally constituted entity. (2)An agreement referred to in subsection (1) may provide for fisheries access, related activities and such other matters as are provided for by this Act.
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4.3.2 Regulation of Forestry: Forestry Act 2001 [Cap 276]
KEY MESSAGES: Forestry Legislation
The regulation of commercial forestry under the Forestry Act and the Logging Code of Practice contains many mechanisms and environmental provisions which can be used for the conservation and sustainable use of mangroves, either through: The use of conservation mechanism under the Act to in mangroves areas; The direct regulation of mangrove forests harvesting, wherever applicable; and The prevention or mitigation of the impact on mangroves associated with logging operations Options for law reform are proposed at 5.4.4
Mangroves as trees fall under the scope of the Forestry Act, 2001 56 which applies to all forests and all forestry operations in Vanuatu.
The Department of Forestry now operates under the Ministry of Agriculture, Livestock, Forestry, Fisheries and Biosecurity (MALFFB). Formerly and until early 2000’s, the Ministry of Agriculture, Quarantine, Forestry and Fisheries (MAGFF), as it was then known, was the lead authority for mangroves and had initiated the development of a mangroves management plan. However, the lead on mangroves was handed to the Department of Environment when it was established.
The Forestry Act regulates mainly the planning for the forestry sector; the requirements for carrying out commercial forestry operations on any land; protection of the forest environment; reforestation; and the export of timber. It is supplemented by a Code of Logging Practice 1998, which contains provisions for buffer zones where commercial logging takes place in coastal areas.
Commercial logging of mangroves is not a leading cause of mangrove deforestation, according the Department of Forestry. However, forestry operations conducted near the shoreline or within a mangroves catchment areas constitute a potential threat to mangroves ecosystems through impacts such as increased run offs and sedimentation, developments and infrastructures such as road or loading docks associated with logging operations.
The Forestry Act has an entire part (Part VI) on environmental protection, consisting of three divisions: Conservation Areas, Restrictions on Forestry Operations and Protection from Fire. Although the Act does not make any specific reference to mangrove forests, many of its provisions can be used to support the conservation and sustainable management, Forestry Sector Plan.
A management tool established by the Act, the purpose of a Forestry Sector Plan is to: ‘provide the basis for rational and effective management of the forestry sector to achieve the sustainable management of the forestry sector in Vanuatu’, through effective regulation and effective participation at different levels in decision-making on the management of the forests in order to achieve and maintain a sustained yield and meet the demand within Vanuatu for timber and other forest products as well as:
56 Forestry Act 2001 [Cap 276] commenced in 2003, consolidated edition 2006.
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protection of the environment, sacred sites and wildlife; and meeting the basic needs of Ni-Vanuatu for essential food, water, fuel, building materials, traditional herbal medicines and recreation from the forests.57 Adequate consideration of the above can provide the foundation for the protection and sustainable management of mangroves.
Mangroves should also benefit from the requirement for consideration for the protection of the forest environment embedded in the Act. Specifically, under section 4, the Minister, the Board and the Director of Forests in the performance of their respective roles must have regard for the following considerations:
‘the forests of Vanuatu must be sustainably managed, developed and protected so as to achieve greater social, environmental and economic benefits for current and future generations; the diversity of the forests and forest ecosystems of Vanuatu must be protected; the rights of custom owners and other Ni-Vanuatu with customary interests in forests must be recognised; any relevant international obligations undertaken by Vanuatu must be respected.’58 The Forests Board is established under Section 6 of the Act and is empowered to consider and approve the timber rights agreement and licenses, except for the permits and special licenses which are issued by the Director and the forestry leases which are granted by the customary owners.
4.3.2.1 Forestry Agreements
Forestry operations are regulated through three types of agreements, defined in Part 4 of the Act.
Timber Rights Agreement (TRA): It includes ‘the rights to fell, cut, remove, sell and dispose of growing or dead trees, whether standing or fallen, and any part of such trees, and any other vegetable growth, and includes the right to remove gravel and other road-making materials’. A person wanting to have a TRA with customary land owners must make an application to negotiate the agreement with the customary to the Forests Board for approval.59
The Board will approve a TRA if it is satisfied that it is consistent with any negotiation guidelines and forest sector plans and that the provisions of the agreement include:
‘flora and fauna reserves; environment protection; protection of watercourses; meeting the needs of the custom owners of the land and timber rights; protection of rights of way or other access rights under custom; and protection of sacred sites and other sites of cultural significance.’ 60
57 Section 9 (2) of the Forestry Act 2001 [Cap 276]. 58 Section 4 of the Forestry Act 2001 [Cap 276]. 59 Section 18 of the Forestry Act 2001 [Cap 276]. 60 Section 27 (1) (a)-(d) of the Forestry Act 2001 [Cap 276].
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Timber permit: It is usually issued by the Director on behalf of customary land owners, in instances where the customary owners are willing to sell their timber rights in the land but the volume of timber is not significant enough on a scale that would require a timber rights agreement.
Forest lease: It is granted by custom owners of the land and gives the proprietor of the lease, the right to forest products as granted by the custom owners of the land.61 The purpose of a forestry lease is to ‘establish, maintain and harvest timber from a crop of trees’.62
4.3.2.2 Mandatory restrictions on commercial forestry operations
As part of its ‘Environment Protection’ provisions in Part 6, the Act places mandatory restrictions on commercial forestry operations, which may benefit mangrove forests. Section 54 of the Act prescribes that commercial forestry operations must not be conducted:
‘within the excluded buffer zone areas around watercourses as set out in the Code of Logging Practice; and within 100 meters distance from sea level (being the mean high water mark, as that term is conventionally understood); and on land having a slope in excess of 30 degrees or less, if so prescribed by the Code of Logging Practice for particular circumstances (e.g. highly erodible soils); and in a protected rainfall catchment area declared under any other law.’63 Such mandatory restrictions, when enforced, result in the protection of mangroves in areas that have mangroves bordering water courses and a buffer zone created within areas that are 100 meters distance from sea level because mangroves normally grow along coastlines. If mangroves habitats are included in a protected rainfall catchment area then they are protected too. However, these restrictions may be removed by express provisions of a license.
4.3.2.3 Conservation Areas and Protected Species
The Forestry Act provides for these two specific legal mechanisms for the conservation of forests and its ecosystems as part of its “Environment Protection” provisions in Part 6, which are discussed above.
4.3.2.4 Reforestation
Part 7 of the Act pertains to reforestation with the establishment of the Forestry Project Fund ‘for the purpose of reforestation and to assist with funding the full range of activities of the Department responsible for forestry’.64 The Act also prescribes the activities for which the funds may be used65. They include the following activities which are most relevant to mangroves:
‘establishment and maintenance of nurseries; provision of planting material;
61 Section 30 of the Forestry Act 2001 [Cap 276]. 62 Section 30 (3) of the Forestry Act 2001 [Cap 276]. 63 Section 54 of the Forestry Act 2001 [Cap 276]. 64 Section 57 of the Forestry Act 2001 [Cap 276]; the Forestry Project Fund was established for an initial period of 5 years and renewable towards the end of the 5 year period. 65 Section 59 (1) of the Forestry Act 2001[Cap 276].
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planting, care and maintenance of trees; afforestation and reforestation works; and the conduct of forest research, forestry extension and forest conservation.’66 These provisions could be used to mandate and support the replanting of mangroves forests.
4.3.2.5 Licenses
A license is required for conducting any commercial forestry operations, which may only be conducted in accordance with terms and conditions of the license.67 A license is subject to the provisions of the Code of Logging Practice, which provides inter alia for the ‘protection of the environment and promotion of forest development consistent with the principles of sustainable management; and protection of non-timber forest values.’68
Licenses may be granted to conduct a range of activities, which are otherwise instrumental to the protection of mangroves, as was highlighted throughout the review of the Forestry Act above.
4.3.3 Extractive Industries: Mines and Minerals Act 1986 [Cap 190] and Petroleum (Exploration and Production) Act 1993 [Cap 227]
KEY MESSAGES: Extractive Industries Legislation
Mining operations have the potential to have a significant impact on mangroves ecosystems and require strict legislative control The Mines and Mineral Act requires a comprehensive review to integrate environmental protection and pollution control measures, as well as an express reference to the requirements under the Environment Protection and Conservation and Environmental Impact Assessment (EIA) legislation, which nevertheless apply Quarrying of sand and coral aggregates did not fall under the scope of the Quarry Permit provisions of the Mines and Minerals Act or of the Quarry Permit Regulation, therefore did not require a permit . At the time of writing this report a new Quarry Act was expected to be tabled in Parliament which may address these issues. The regulation of petroleum exploration and exploitation provides the framework for adequate safety and environmental safeguards, provided that they are complied with and enforced effectively Options for law reform are proposed at 5.4.5 below.
4.3.3.1 Mines and Minerals Act 1986 [Cap 190]
The Mines and Minerals Act 1986 [Cap 190] regulates and controls the search for and development of minerals and related matters.
66 Section 59 (1) (a), (b), (c) and (h) of the Forestry Act 2001[Cap 276]. 67 Sections 31 and 59 (1) of the Forestry Act 2001 [Cap 276]. 68 Sections 43 (2) (a) and (e) 59 (1) of the Forestry Act 2001 [Cap 276].
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Mining operations have the potential to cause significant damage to mangroves, through land clearing for mining operations or infrastructures, pollution and run off which affect water quality, or dumping of mining waste in foreshores.
The property in minerals, in their natural condition in land is vested in the Republic of Vanuatu.69
Mineral is defined in the Act to “means any substance, whether in solid, liquid or gaseous form, occurring naturally in land, formed by or subject to a geological process, but does not include water or petroleum.
The regulation and control of mining activities is done through a licensing and permit system. There are five categories of licenses and permits issued under the Act.70
The Minister of Lands is empowered to make regulations pertaining to matters necessary for the purposes of the Act71. This includes making regulations regarding the prevention of pollution – its dispersal and storage and the felling and use of timber as fuel for purposes connected to mining and prospecting.72 Such a regulation will have ramifications on the environment, especially if it also includes mangroves and other native vegetation.
Quarrying activities conducted close to foreshores, sand mining have a well-documented adverse impact on mangroves and coastal ecosystems. Under the Act, the Commissioner of Mines may grant permits to prospect for and extract building materials, which are defined - as opposed to the broader definition of mineral - as “… mineral substances and rocks commonly used for building, road making or agricultural purposes.”73 Sand and coral aggregates have been excluded from the definition of “building materials” by the Minister and are therefore, not regulated. Quarrying are futher regulated under the Quarry Permit Regulations However, a new Quarry Act was expected to be tabled in Parliament in June 2013 to address the concerns associated with the old regulation.
4.3.3.2 Petroleum (Exploration and Production) Act 1993 [Cap 227] and Petroleum Regulations Order 1997
The Act regulates the exploration and production of petroleum on land, including land beneath water, the seabed and the subsoil beneath the territorial seabed; and the seabed and the subsoil of the continental shelf or beneath the waters of the exclusive economic soil74.
Oil and gas exploration and production carry significant risks of detrimental impact on mangroves ecosystems, such as pollution of water and land, and impact of the associated infrastructure required on the environment, including mangrove ecosystems.
All petroleum in its natural condition in land, including the property rights and control over the resource in Vanuatu belongs to the State75.
69 Mines and Mineral Act 1986 [Cap 190], Section 2; Commenced 1 September 1986, Consolidated edition 2006. 70 The five categories are: exploration license, mining license, prospecting license, prospecting permit and quarry permit 71 Section 1, Mines and Mineral Act 1986 [Cap 190] 72 Section 88(f) and (y), Mines and Mineral Act 1986 [Cap 190] 73 Section 1(1),Mines and Minerals Act, 1986 [Cap 190] 74 Section 1(1) of the Petroleum (Exploration and Production) Act [Cap 227] 75 Section 2(1), Petroleum (Exploration and Production) Act [Cap 227],
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Petroleum exploration and exploitation is regulated through:
A petroleum prospecting licensing system; compulsory notification of petroleum discoveries to the Minister; A petroleum production license; and A register of all licenses granted.
The Minister responsible for Mines, Geology and Water Resources administers this Act. The Commissioner for Petroleum Exploration and Production and appointed authorized officers are vested with inspection powers to monitor petroleum operations and ensure compliance with the Act76.
The Minister is empowered under the Act to grant petroleum prospecting licenses with conditions where he deems fit77.
The Minister may then grant a petroleum prospecting license upon such terms and conditions as he sees fit for a period not exceeding four years.
A petroleum production license shall not be granted to an applicant unless certain requirements are met, including the proper account of environmental and safety factors by the applicant78 and the applicant’s adequate financial resources and technical and industrial competence and experience to carry on effective production operations79.
The holder of a license must comply with any regulation for good oil-field practices80.
The Minister is vested with powers to prescribe regulations to give effect to the Act, including with respect to “conserving, and preventing the waste of, the natural resources, whether petroleum or otherwise”81. The Minister may however, exempt an applicant from satisfying any of the prescribed license conditions if satisfied of the existence of special circumstances.82
The Petroleum Regulations Order 1997 prescribes the approval of operational documents by the Commissioner prior to the start of operations 83 . The operations documents consist of an environmental code of practice, an environmental report, a procedures manual and an emergency response manual84. The environmental code of practice for any license area must provide for the protection of wild flora and fauna, livestock, marine creatures and sites of natural geological and tourist significance, and other environmentally sensitive areas prescribed under existing laws and conservation policies; mitigation to the disturbance of the surface of the land; and clean up and rehabilitation of areas disturbed by the petroleum operations.85
76 Section 7(1), Petroleum (Exploration and Production) Act [Cap 227] 77 Section 17. Petroleum (Exploration and Production) Act [Cap 227] 78 Section 30 (1) (a) (I,) Petroleum (Exploration and Production) Act [Cap 227] 79 Section 30 (1) (a) (iii, Petroleum (Exploration and Production) Act [Cap 227] 80 Section 36 (1), Petroleum (Exploration and Production) Act [Cap 227] 81 Section 65 (1) (c) of the Petroleum (Exploration and Production) Act [Cap 227] 82 Section 30 (1) (b), Petroleum (Exploration and Production) Act [Cap 227] 83 Reg 32, Petroleum Regulation Order of 1997, 84 Petroleum Regulation Order of 1997, reg. 32(3) (a) to (d). 85 Petroleum Regulation Order of 1997, reg. 33.
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4.3.4 Regulation Ports and Shipping Activities
KEY MESSAGES: Ports and Shipping Legislation
The Ports Act was last reviewed over twenty years ago and consequently does not contain the requirements for the consideration of the impacts of ports and shipping activities on the environment, specifically on mangroves, including in the exercise of the power to revoke licenses, set conditions on fees, licenses and permits Port developments occur mostly on the foreshores and, pursuant to Foreshore Development Act, falls under the jurisdiction of the Department of Local Authorities which sits under the Ministry of Internal Affairs Options for law reform are proposed at 5.4.6 below
The Ports Act 1957 [Cap 26] makes provisions for the control of ports in Vanuatu, which is important in the context of this Review as ports and shipping infrastructures and activities are likely to interfere with mangrove ecosystems.
The Act is administered by the Department of Ports and Harbors, which is in the portfolio of the Minister of Infrastructure and Public Utilities.
The Minister may prescribe by Order any regulation for the implementation of the Act86, and “license and permit subject to conditions as he sees fit any part of the tidal lands and waters of a port to be used or occupied for all or any of the following purposes -
the building or repairing of vessels of any kind; the erection of and use of any boat-shed, landing-place or wharf; the erection of baths and bath houses and any enclosure or fence necessary for the protection or privacy of the same; and Any other purpose relating to the convenience of shipping or of the public, as they may approve."87
There are also provisions for prohibitions and fines for any actions or offences against the Ports Act, including construction of wharfs within waters of a port without a license.88
4.4 Cross-Cutting Regulation: Environmental Protection, Pollution Control and Planning Legislation
This section analyses the cross-cutting regulation applying to all developments and activities which may affect mangroves.
86 Section 35, Ports Act [Cap 26], 87 Section 23 (1), Ports Act [Cap 26] 88 Sections 23(5) and 34.Ports Act [Cap 26]
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4.4.1 Environmental Protection Law
KEY MESSAGES: Environmental Protection Legislation
The Environmental Protection and Conservation Act establishes an effective framework to prevent unsustainable use and clearing of mangroves, especially through the EIA process, provided that the human and financial resources of the Department of Environment are sufficient for the Act to be implemented and enforced consistently Some critical flaws of the 2002 Act were corrected by the 2010 Amendments Act, creating improved conditions for the control of any development impacting on mangroves through the EIA process. Options for law reform are proposed at 5.4.7 below.
4.4.1.1 Environment Protection and Conservation Act (EPCA) 2002 [Cap 283]89
The object of the EPCA is ‘to provide for the conservation, sustainable development and management of the environment of Vanuatu, and the regulation of related activities’ and applies ‘throughout Vanuatu, including its lands, air and waters.’90 As such, it is a key piece of legislation for mangroves ecosystems conservation and management.
The Act defines “environment” as the components of the earth and includes all or any of the following:
‘land and water; layers of the atmosphere; all organic and inorganic matter and living organisms; and the interacting natural, cultural and human systems.’91
The Act is administered by the Department of Environment.92, which sits under the Ministry of Lands. The Director of Environment is ‘responsible for the development, co-ordination and, where appropriate, implementation of the Government’s environmental policies and programs93’, and ‘must advise and assist the Minister in all matters relating to this Act’.94
Part 2 of the Act provides for the Administration of the Act by the Director of the Department and for the instruments established for its implementation, namely the Environmental Registry, the National State of the Environment Reports, and the National Policies and National Plans. Part 3 regulates environmental impact assessment, and Part 4 is concerned with Biodiversity and Conservation Areas. It provides for the declaration of community conservation areas discussed in the first part of this legislative review.
89 The Environmental Management and Conservation Act 2002 [Cap 283] was renamed Environmental Protection and Conservation Act 2002 [Cap283], by the Environmental Management And Conservation (Amendment) Act No. 28 of 2010. 90 Section 1, Protection and Conservation Act 2002 [Cap283] 91 Section 2, Environmental Protection and Conservation Act 2002 [Cap283] 92, Section 3, Environmental Protection and Conservation Act 2002 [Cap283] 93 Section 4(1). Environmental Protection and Conservation Act 2002 [Cap283] 94 Section 3(3). Environmental Protection and Conservation Act 2002 [Cap283]
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4.4.1.2 Environmental Impact Assessment under the Environmental Protection and Conservation Act [Cap 283] (EPCA) and the Environmental Impact Assessment Regulation 2011
The EIA process is currently the most effective legal instrument in Vanuatu for screening and mitigating the impact on mangroves of a range of activities which are not systematically captured or regulated in sectorial legislation.
The general scope of the EPCA is defined as including ‘all projects, proposals or development activities that impact or are likely to impact on the environment of Vanuatu; and require any license, permit or approval under any law.’95 Activities subject to the EIA provisions are defined as all projects, proposals or development activities that cause or are likely to cause significant environmental, social and/or custom impacts or cause impacts relating to matters defined in the Act96. They include the following matters of particular relevance to mangroves:
affect coastal dynamics or result in coastal erosion; result in the pollution of water resources; affect any protected, rare, threatened or endangered species, its habitat or nesting grounds; affect important custom resources; affect protected or proposed protected areas; and result in the unsustainable use of renewable resources.’97
The Act provides for the exemption from the EIA provisions of small scale residential or custom constructions, as defined in the Act98.
Any project, proposal or development which falls within the scope of the Act is subject to a two-step EIA process.
The first step is a Preliminary Environmental Assessment (PEA) pursuant to Section 14 of the Act.
The Environmental Management and Conservation (Amendment) Act No.28 of 2010 (the Amendment) repealed the original section 14 of the Act and replaced it with new provisions which aim to ensure that all applications, proposals or projects are screened by the Department of Environment.
Prior to the amendment, the PEA could be conducted by any Ministry, Department, Government Agency, local government or municipal council receiving an application, project or proposal. This provision resulted in unsatisfactory results and developments authorized without a proper EIA process. The new provisions of section 14 provide that all applications, proposals or projects must be submitted to the Director of Environment who is to undertake a PEA “in order to screen the application and determine if there is a need for an EIA”99.
95 Section 11 (a) & (b), Environmental Protection and Conservation Act 2002 [Cap283] 96 Section 12 91) & (2), Environmental Protection and Conservation Act 2002 [Cap283] 97 Section12, Environmental Protection and Conservation Act 2002 [Cap283] 98 Section 13, Environmental Protection and Conservation Act 2002 [Cap283] 99 Section 13, Environmental Management and Conservation (Amendment) Act No. 28 of 2010
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The second step of the EIA process takes place where the Director has determined that an EIA is required. The Director develops the EIA’s terms of reference, with “special consideration to the need for consultation, participation and involvement of custom landowners, chiefs and other interested parties, and may consult with the National Council of Chiefs for that purpose”100. The project developer may comment on the terms of reference, following which they are registered in the Environmental Registry. A public consultation process is to be undertaken by the proponent, as the Director determines appropriate.101
The review of the EIA report as strengthened is then reviewed. In this regard, the 2010 Amendment to the Act strengthens the process by providing for the review of the EIA report by an EIA review committee102. Upon receipt of the recommendation made by the review committee on the need for an EIA for the considered development, the Director decides to (a) approve the application with or without terms and conditions; (b) refer the matter back to the Director for further assessment; (c) reject the application103.In considering the application, the Director must apply the precautionary principle.104
The Environment Impact Assessment Regulation of 2011 regulates in further details the EIA process, in particular by defining precisely the activities requiring an EIA and the processes and procedures relating to EIAs.
Schedule 1 of the regulation expands on the activities that will be subjected to an EIA. Amongst others, provision 1 (l) (i) of the Schedule specifically identifies any activity that involves the ‘clearance of any mangroves or the disturbance of any other coastal/estuarine ecosystem, including sea grass, coral, sand etc.’ as activities that will require preliminary environmental assessment.
The penalties for conducting an activity subject to EIA without prior approval or when the approval has been refused is an offence punishable by significant fines and/or imprisonment. The 2010 Amendment to the Act strengthened the penalties for individual offenders, and introduced a heavy financial penalty body corporate offender105.
An overlap of jurisdiction for the approval foreshore development applications likely to involve mangrove clearing, with the approval required under the Foreshore Development Act by the Minister responsible for Town and Country planning, and the requirement for an EIA under the EPCA, had resulted in the clearing of mangroves for tourism developments on the foreshore without an EIA. This overlaps has now been addressed in the EPC Amendment Act by making specific provision, stating the approval obtained under the Foreshore Development Act does not authorize the developer to commence any development unless it is approved under the EIA provision of the EPCA106.
100 Section 19(2) Environmental Protection and Conservation Act 2002 [Cap283] 101 Section 20 Environmental Protection and Conservation Act 2002 [Cap283] 102 Section 18, Environmental Management and Conservation (Amendment) Act No. 28 of 2010 103 Section 23 Environmental Protection and Conservation Act 2002 [Cap283] 104 Section 5, Environmental Management and Conservation (Amendment) Act No. 28 of 2010 105 Section 21, Environmental Management and Conservation (Amendment) Act No. 28 of 2010 106 Section 12, Environmental Management and Conservation (Amendment) Act No. 28 of 2010
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4.4.2 Waste Management and Pollution Control
KEY MESSAGES: Waste Management and Pollution Control Legislation
Mangroves are vulnerable to both marine-based pollution and to the land-based pollution carried to the shores by rivers and streams Pending the enactment of the Waste Management Bill and Pollution (Control) Bills 2012, there is no stand-alone legislation on waste management and pollution control in force in Vanuatu Waste management is regulated by the Public Health Act, while water resources quality is regulated by the Water Resources Management Act as well as the Public Health Act The Minister responsible for Water Resources Management may, under the powers vested in him by the Act, prescribe regulations for water management which includes the protection of freshwater and seawater fisheries, consequently protecting mangroves The Minister responsible for public health may request local governments to act as an agent, ensuring local implementation of the Act. The implementation of the Public Health Act may additionally be strengthened by the appointment of any person, such as environmental health officers and fisheries officers, as authorized officers under the Act.
Pending the enactment of the Waste Management Bill and Pollution (Control) Bills 2012, there is no stand-alone legislation on waste management and pollution control in force in Vanuatu.
Water pollution is regulated by the Water Resources Management Act and the Public Health Act.
4.4.2.1 Water Resources Management Act [Cap 281]
The object of the Act is ‘to provide for the protection, management and use of water resources in the Republic of Vanuatu’. Water in the Water Resources Management Act includes any:
river, stream, creek or other natural course for water; lake, lagoon, bay, swamp, marsh or spring; and estuarine or coastal sea water.107
Mangroves are vulnerable to both marine-based pollution and to the land-based pollution carried to the shores by rivers and streams. The Water Resources Management Act is therefore, instrumental in maintaining a healthy environment for mangrove ecosystems.
The Act consists of seven parts, including inter alia the use of water, water management (including planning) and administration of water resources, and 21 sections.
Section 4 defines the customary rights of users of water and the rights of occupiers of land to use water on or adjacent to land. In both cases, no other rightful user of the same water resources must be adversely affected by that use.
The Minister is empowered to make regulations with other Ministers not inconsistent with this Act, including for the purpose of all or any of the following powers particularly relevant to mangroves:
107 Section 2,Water Resources Management Act [Cap 281]
43 the protection of freshwater and seawater fisheries; water supplies under forestry covenant, including standards for watercourse crossings during forestry operations; the control of pollution or contaminant discharges into water.108
If deemed necessary, the Minister is empowered to prepare a National Water Plan, one of its purposes being to promote environmentally sound and safe management over all water resources.109 The Minister has also the power to declare any area to be a Water Protection Zone, including for the purpose to conserve or protect any significant water resource or to promote the protection, management or use of water in rural and urban areas.110
The Act empowers the Minister to prescribe regulations for water management which includes the protection of freshwater and seawater fisheries111, consequently protecting mangroves.
4.4.2.2 Public Health Act No. 22 1994
The Public Health Act makes general provisions for public health in Vanuatu, including through regulating waste management, sanitation, and prohibiting water pollution.
Land-based pollution carried by rivers and streams constitutes one of the major threats to the health of mangroves ecosystems. The provision of the Health Act relating to water quality and waste, in the absence of environmental regulation of water and waste pollution, are currently the main source of protection of mangroves from these threats.
More specifically, the following provisions of the Act are to be noted:
prohibition of pollution of human water supply112; prohibition of pollution of all watercourses, including ground water113; prohibition of littering on the foreshore, estuary and harbor114; restrictions against erection of latrines within 30 meters of a watercourse, well or dam which are used for domestic supply115; and obligation for local authorities to provide adequate drainage systems for all dwellings116.
Local Government may be requested by the Minister to act as an agent, ensuring local implementation of the Act117.
In addition, the Minister may appoint any person, such as environmental health officers and fisheries officers, to be an authorized officer to implement the provisions of the Act. 118
108, Section 37 (3), Water Resources Management Act [Cap 281] 109 Section 21 and 22(1) (a), Water Resources Management Act [Cap 281] 110 section 26 (1), Water Resources Management Act [Cap 281] 111, Section 37(1) and (3), Water Resources Management Act [Cap 281] 112 Public Health Act 1994, section 24(c) 113 Public Health Act 1994, section 64 & 65 114 Public Health Act 1994, section 66(1) and (2) 115 Public Health Act 1994, section 63(1) and (2) 116 Public Health Act 1994, section 69(1) 117 Public Health Act No.22 of 1994, section 1(1) 118 Public Health Act 1994, section 5
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4.4.3 Land Use Planning
KEY MESSAGES: Land Use Planning Legislation
The necessity of developing an overarching land use planning system in Vanuatu prompted the development of a National Land Use Planning Policy. The draft policy aims to guide land use planning by setting priorities and outlining legislative and institutional settings to enable land use planning that encourages the best current use of land resources and to allow for future generations to equitably benefit from the same resources. The National Land Use Planning Policy, once in force, will require an enabling land use planning legislation Options for law reform are proposed at 5.4.8 below.
The regulation of land use through planning legislation is critical in preventing deforestation of mangroves and degradation of their ecosystems, particularly through zoning, land use planning instruments and the development approval process for coastal areas, which requires consideration of impacts on foreshores and mangroves ecosystems.
There is no overall land use planning legislation which regulates the control and administration of land use in Vanuatu. Land use planning and development control processes are patchy, consisting mainly of the Physical Planning Act and the Foreshore Development Act, and to some extent the Decentralization Act and Municipal Act which vest some development control powers to the six provincial local governments. The Land Leases Act, as discussed earlier, is also relevant in the process of determination of land use and development control.
Department of Local Authorities, which sits under the Ministry of Internal Affairs, administers land use, which is implemented by the provincial and municipal councils.
4.4.3.1 The Physical Planning Act [Cap 193]
The regulation of land developments in Vanuatu is restricted to declared physical planning areas under the Physical Planning Act. These developments may impact on foreshores through, for example, contamination of water and land by pesticides and other pollutants, or causing sedimentation of foreshore waters.
The Act provides for Municipal Councils or Local Government Council to declare any area within their jurisdiction to be physical planning areas. This is then published in the Gazette for the public to view and to allow for submissions of objections by any interested person.119
In declaring a physical planning area, a Council shall:
‘have due and proper regard for the rules of custom; consider the welfare of both the people in the area affected and of the people of Vanuatu, generally;
119 Section 2 (1) of the Physical Planning Act 1986 [Cap 193], but the Act is silent on what a ‘Physical Planning Area’ is or constitutes of.
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ensure that persons affected by the proposed declaration have been given adequate notice of it, and that those people are given an opportunity to make representations to the Council.’120
A plan of the physical planning area must be prepared by Council. The plan must specify those areas in which the Council is prepared to consider applications for approval of specified kinds of development.121
The Council also has the ‘absolute discretion’ to decide on the types of activities that do not require permission for development which may include the activities listed in Schedule 1 of the Act.122 It includes ‘The use of any land and associated buildings, though not living accommodation, for the purposes of live-stock keeping, agriculture, fishing or forestry’. These developments carried out close to foreshores, have potentially a significant detrimental impact on the mangroves areas.
Notwithstanding the general considerations mentioned above which the Council must take into consideration in declaring a planning area, the Act does not provide for any criteria which should guide the Council’s decision in determining which activities must require a development approval, nor in approving or rejecting an application for development.
Although, the Act makes references for the Council to ensure that persons affected by the proposed declaration have been given adequate notice of it, and that those people are given an opportunity to make representations to the Council, it does not identify a process and a timeframe in which public comments can be obtained nor public consultations to be conducted during the initial drafting of the plans. This reduces the effect of any objections that could be made, including by people aggrieved by the plan or who wish to have consideration for impacts on mangroves to be included in the plan.
Enforcement actions for failure to obtain consent for a development or for non-compliance with the conditions of the approval are provided under Schedule 2 of the Act. They must be taken within one year or else the wrongful use of the land cannot be remedied.
The Act does not make any reference to the EIA requirement under the Environmental Protection and Conservation Act and EIA regulations.
4.4.3.2 Foreshore Development Act [Cap 90]
The main purpose of the Foreshore Development Act is to regulate the developments within the foreshore areas of Vanuatu. Foreshore activities, such as increasing tourism developments, are a significant cause of mangrove loss or degradation of habitat.123
‘Foreshore’ under the Act means ‘the land below mean high water mark and the bed of the sea within the territorial waters of Vanuatu (including the ports and harbors thereof) and includes land below mean high water mark in any lagoon having direct access to the open sea’.124
120 Section 2 (2) of the Physical Planning Act 1986 [Cap 193]. 121 Section 3 (4) of the Physical Planning Act 1986 [Cap 193]. 122 Section 3 (3) of the Physical Planning Act 1986[Cap 193]. 123 Section 1 of the Foreshore Development Act 1976 [Cap 90]. 124 Section 1 of the Foreshore Development Act 1976 [Cap 90].
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Development is defined as ‘the carrying out of any building, engineering, mining or other operations in, on, over or under the land, or the making of any material change in the use of buildings or other land, whether or not such land is covered by water’.125
All foreshore developments require the prior approval of the Minister responsible for Town and Country Planning.
The Act empowers the Minister to consider applications and any representations made, and to either refuse or grant approval with conditions. The Minister’s decision is final and the Minister is not required to give the reasons.126 The Act does not provide any details on the matters that the Minister must consider when determining development application, nor does it establish public consultation procedures.
However, foreshore developments which are likely to impact on the environment, such as ‘affect coastal dynamics or result in coastal erosion’, fall within section 12 of the Environmental Protection and Conservation and require a preliminary EIA. More specifically, any proposed foreshores development which involves ‘clearance of any mangroves or the disturbance of any other coastal/estuarine ecosystem including seagrasses, coral, sand, etc.’, will require a preliminary environmental assessment under Schedule 1 of the EIA Regulations. 127
The small monetary penalty for developments undertaken without the consent of the Minister, and the absence of provision for more stringent penalties such as imprisonment for the most serious offences under section 6 of the Foreshore Development Act do not constitute a deterrent to developers . The Act does not provide for any obligation for compensation, for environmental damages or for rehabilitation.
The Act overlaps with other acts, namely the Municipalities Act, the Decentralization Act, the Ports Act and the Land Leases Act for the regulation of development proposals and licenses and permits that have been addressed.
The Bill for the Foreshore Development (Amendment) Act 2013 was drafted for the purpose to “meet current requirements for suitable control and administration of foreshore development, provide revenue to the Government of Vanuatu for coastal development, and give the Minister the ability or power to make regulations under this Act”. The bill confirms that the granting of a consent under this Act does not give permission for a development under any other Act but does not refer specifically to the EIA. Public consultation procedures are established but the bill does not provide for direct consultation with indigenous foreshore owners. It does not require to declare the presence of mangroves or other significant ecosystems. The bill reduces to some extent the discretionary power of the Minister, by requiring the Minister to seek advice from the Director prior to granting or not consent, and by providing that the Minister cannot grant his or her consent if the prescribed fee is not paid.
125 Section 1 of the Foreshore Development Act 1976 [Cap 90]. 126 Section 4 of the Foreshore Development Act 1976 [Cap 90], noting that in practice reasons for the decision are given by the Minister. 127 Schedule 1 (1) of the Environment Impact Assessment Regulation 2011.
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4.4.3.3 Decentralization Act 1994 [Cap 230]128 and the Municipalities Act 1980 [Cap 126]
Both laws define sub-national institutional governance arrangements and powers, including powers to approve developments. The regulation of activities and developments at regional or local level is important in determining whether relevant areas of mangroves and their associated ecosystems are protected, degraded or cleared.
The Decentralization Act provides for the declaration of Local Government Regions and the establishment of an elected Local Government Council in each region by the Minister, and for the election, administration and powers of the Local Government Councils, including the power to make by-laws.
Similarly, the Municipalities Act provides for the establishment of municipalities and of the municipal councils and for their powers. The Municipality Councils have the overall decision-making powers, subject to the Minister’s authority to restrict such powers, to decide on the use of the land with the municipalities.
The power of the Local Government Councils to make by-laws is limited to the matters listed at section 20 of the Decentralization Act. Notably, in the context of this review, they include the power to choose the location for, to construct, manage and maintain regional and local infrastructures and public facilities129, in particular bridges, roads, wharves and jetties which are likely to have an environmental impact on coastal ecosystems and on mangroves, where present. Also relevant to mangroves is the power to make ‘rules and regulations governing fishing and conditions relating to the issuing of fishing licenses covering six nautical miles as from the low tide foreshore’ and to ‘outline, create and draw up regulations governing the environmental protection zones (natural parks, natural reserves or tourist-attraction areas) subject to any legislation creating environmental protected areas in the national interest.’130
The Act does not however, prescribe the considerations that local governments must take into account in the exercise of their powers, and in particular does not prescribe for environmental impact considerations.
Neither does the Act establish an appeal process for any person, including third parties who may want to challenge the decisions of the Councils, nor does it provide for a process of public consultations for activities of the Councils that may impact public welfare.
It remains that developments proposed under this Act may trigger the requirement for a preliminary environmental impact assessment under the Environmental Protection and Conservation Act and the EIA Regulation discussed above.
128 Decentralization and Local Government Regions Act No. 1 of 1994 [Cap 127], the Act was amended in 1994, 1997, 1998 and 2000. The 1997 amendment, renamed the Act the Decentralization Act No. 1 of 1994. 129 Section 20 (1) of the Decentralization Act No. 1 of 1994. 130 Section 20 (9) of the Decentralization Act No. 1 of 1994.
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PART 5: NEXT STEPS
There is no policy on mangroves for the Government of Vanuatu.
The sustainable use of mangroves, its ecosystems and management of mangroves have been indirectly addressed through the existing policies but are not being explicitly addressed as that in the Forest Policy. The call for and recognition of an Environmental Impact Assessment for all development projects would ensure the sustainable use and management of mangroves. However, given the political will, staffing, budgetary constraints, and lack of education and awareness, the implementation, compliance and monitoring of such policy requirements is a major concern.
Given the customary ownership of the mangrove resources and with the strong traditional knowledge of the people of Vanuatu on conservation and environment management, the concept of mangrove management and sustainable use of the mangrove resources should be well received and supported by the people. Past case studies has shown that traditional restrictions and strategies applied on resource use and successful management of the marine managed protected areas which are managed by the communities with the assistance of Government through cooperative management approaches that the bottom-up and top-down approach works well in Vanuatu. Such an approach may be considered in the management and use of mangroves. It is important to involve and fully engage the communities in the bottom up approach type of management as this often determines the success or failure of a project or initiative introduced with the communities.
In relation to the legislation on mangroves in Vanuatu, the legal framework for mangroves ecosystem use and management is constituted by a broad variety of legal instruments. They include statutes regulating sectorial activities. These have implications for mangroves, and the regulation of cross-sectorial matters, such as environmental protection, waste and water pollution and land use planning. This fragmented legal framework results in scattered responsibilities, complexity and lack of clarity on legal requirements, loopholes and overlaps and generally a lack of coherence. This allows for uncontrolled use and management of mangroves and is not conducive to the attainment of best outcomes for maintaining the important environmental, economic and social functions of mangrove ecosystems. This situation is compounded by a weak monitoring and enforcement of the law which facilitates non-compliance.
5.1 Recommendations for Policy
In terms of the existing policies in Vanuatu, it can be concluded that the use, management, protection and conservation of mangroves and mangrove ecosystems in Vanuatu is not and has not been adequately addressed. They are being covered indirectly in the existing policies and plans in a broader sense but not as a specific ecosystem or resource. This may be one of the reasons why the management, protection and recognition of mangroves as an important ecosystem and resource have been overlooked by policy and decision makers in Government. Mangroves, its protection and management should be mainstreamed into all government policies.
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The need for a specific mangrove policy to be formulated by the Government has been recommended by the stakeholders consulted. Additionally, community-based mangrove management plans were also recommended to be formulated by communities, given that they are customary owners of the land, including mangroves. Government could provide some assistance and guidance to communities in the development of these management plans, training of communities in the implementation and monitoring of these plans and educational awareness on environment and the importance of mangroves.
The Department of Environmental Protection and Conservation and Forestry have started mangrove replanting initiatives and work with communities on education programs on the importance of mangroves and mangrove conservation initiatives.
In a separate stakeholder consultation conducted by the MESCAL Vanuatu National Country Coordinator in May - June 2013, discussing the draft review report and soliciting views from the provinces and communities on the management of mangroves, it was concluded that they strongly recommended legislation, a management framework developed to protect the mangroves. Moreover, the registration of mangroves areas to be ‘conservation areas’, ‘green space’ and recognition of community-based mangrove management systems were highlighted. On the management of mangroves at the community and provincial level, it was recommended from the consultation that Government delegate responsibilities to area council of chiefs to manage mangroves at the community level, for example, Vaturisu council of chiefs.
The following may be recommended for the Government of Vanuatu to consider:
5.1.1 Mangrove Policy or Mangrove Management Plan
Given the importance of the mangrove ecosystems and the need to conserve and protect it for the future, the Government may wish to develop a mangrove management plan and/or mangrove policy for Vanuatu. This would ensure that mangroves and issues surrounding it would be given high priority and regard by Government.
5.1.2 Community-Based Mangrove Management Plans
With an overall national policy, communities can develop their management plans to align to the national policy. If need be, the relevant government agencies like the DEPC, for instance, can be approached for assistance in the formulation of these management plans through providing guidance and advice. The community-based management plans are to be the responsibility of council chiefs who will see the implementation and monitoring of these.
Traditional knowledge and customary conservation practices could be utilized in the formulation of community-based mangrove management plans.
5.1.3 Mainstreaming of Policies
Mangroves, its use, protection, management and the overall mangrove ecosystems should be incorporated and mainstreamed into all government development, environment, sectorial and climate change policies and plans. Policies and plans that are due to be reviewed and those that
50 need to be reviewed should ensure that they have a separate section on mangroves and the mangrove ecosystems, its use, protection and management.
5.1.4 Education Awareness
More awareness on the importance of mangroves is needed to be undertaken in communities and also with Government. As part of this exercise, all findings of the surveys (biodiversity assessments, findings of policy and legislative review, mapping) and work of MESCAL are communicated at all levels from Government, provincial and community or villages. These findings should also form the basis of mangrove conservation and policy-related work to lobby with Government.
5.1.5 Protected Areas
Mangroves could be declared as protected areas. It has also been recommended by the communities at the consultation conducted by the MESCAL Vanuatu National Country Coordinator, that mangroves and areas containing mangroves should not be leased by Government. The communities with their leaders could be delegated the role to see the establishment of protected areas and at the same time monitoring of these areas. Government could also provide training to communities in this area.
5.1.6 Capacity Building
The DEPC oversees the management of natural resources and ensures sustainable development. There is a need to build capacity within the Department through training of existing staff, recruitment of officers to effectively assess Environment Impact Assessment reports, and recruitment of additional staff to effectively carry out the roles of the department. The training of staff on the different aspect of mangroves in mapping, carbon assessment, undertaking economic valuation, etc. should be conducted. More importantly, the provision of adequate budget to enable the monitoring and implementation of the various projects and programmes of the department is critical.
5.1.7 Coordinated Roles and Activities
Given that there are other Government ministries and departments like the Department of Forestry and Physical Planning Unit that have a part to play in environment management and on mangroves, it is important to have in place a system and a more coordinated approach in decisions being made. For instance, all foreshore development applications approvals should be made upon EIA assessment reports done by the DEPC and Physical Planning Unit. Therefore, it is important that the Minister for Lands, Geology & Mines, Water Resources Energy and Environment and the Minister for Internal Affairs be advised and informed of approval decisions at all stages of the approval process.
5.1.8 Monitoring and Evaluation
The DEPC, being mandated to oversee the management of natural resources and ensure sustainable development should have a monitoring and evaluation system in place for all environment and development projects that come through the department. Additional human and financial resources will be necessary for this. Additionally, it should closely monitor and evaluate the implementation of
51 deliverables outlined in its National Biodiversity Conservation Strategy and other environment- related conventions under the DEPC. A follow-up on the progress of work on various regional and international environment conventions Vanuatu is signatory to should be undertaken on an annual basis.
5.2 Recommendations for Law Reform
Vanuatu does not have legislation specifically regulating mangroves. There are however, a broad range of statutes, regulations and customary laws with scopes which include mangroves or which have implications for mangrove ecosystems. This fragmented legal framework results in scattered responsibilities, complexity and lack of clarity on legal requirements, loopholes and overlaps. There is a general lack of coherence which allows uncontrolled use and management of mangroves and is not conducive to the attainment of best outcomes for maintaining the important environmental, economic and social functions of mangrove ecosystems. This situation is compounded by weak monitoring and enforcement of the law which facilitates non-compliance.
Improved management and conservation of mangroves in Vanuatu requires law reform guided by the following objectives:
Provide coherence/harmonize the legislative framework, Establish and entrench in legislation the procedures for inter-departmental cooperation and information sharing, Integrate the consideration for mangroves in decision-making, and systematically require mitigation of the environmental impact on mangroves of activities and developments, including obligations for offsets, Enable the implementation of policy choices regarding mangroves, such as may be expressed in a national mangroves management plan; Strengthen compliance and enforcement through command and control provisions in the legislation, complementing targeted public awareness campaigns and the strengthening of capacity, and Establish or strengthen effective public participation in decision-making processes as well as in the development and implementation of conservation mechanisms and management plans through community or cooperative and ecosystem-based management systems.
The review and amendment of legislation relevant to mangroves detailed in throughout the review of legislation would go a long way in improving the sustainable use and management of mangroves ecosystems. This law reform does not necessarily require but would be facilitated and guided by a stand-alone mangrove legislation, which could take the form of either a new statute or a mangrove regulation under the Environment Protection and Conservation Act.
5.3 Options for Policy
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Overall, the following key policy options are proposed for Vanuatu:
5.3.1 Mangrove Policy or Mangrove Management Plan
Given the importance of the mangrove ecosystems and the need to conserve and protect them for the future, the government may wish to develop a mangrove management plan and/or mangrove policy for Vanuatu. This would ensure that mangroves and issues surrounding them would be given high priority and regard by Government.
5.3.2 Community-Based Mangrove Management Plans
Communities could develop their mangrove management plans to provide overall guidance to the management, use and protection of mangroves in their respective communities and provinces. Should an overall national policy be developed, communities can also use this national framework as a guide in the development of their management plans to ensure its alignment to the national policy framework. The relevant government agencies like DEPC, for instance, can be approached for assistance in the formulation of these management plans through providing guidance and advice. The community-based management plans are to be the responsibility of council chiefs who will see the implementation and monitoring of these. Traditional knowledge and customary conservation practices could be utilized in the formulation of community-based mangrove management plans.
5.3.3 Mainstreaming of Policies
Mangroves, its use, protection, management and the overall mangrove ecosystems should be incorporated and mainstreamed into all government development, environment, sectorial and climate change policies and plans. Policies and plans that are due to be reviewed and those that need to be reviewed should ensure that they have a separate section on mangroves and the mangrove ecosystems, its use, protection and management.
5.4 Options for Law Reform
Overall, two basic options are proposed to the Government of Vanuatu:
Option 1: The enactment of a stand-alone legislation for mangroves, which could take the form of either a new statute or a mangrove regulation under the Environment Protection and Conservation Act. A revision of the existing relevant legislation would need to be conducted to harmonize them with the requirements set in the mangrove legislation. Refer to Box 4.
Or
Option 2: No additional legislation but revision and amendment of existing statutes, as highlighted throughout the review and summarized in Box 6, which would result in significant improvement in the sustainable management and use of mangroves.
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Whether the Government of Vanuatu opts for a new legislation or for a review of existing statutes, the effectiveness of the law reform will depend upon the capacity and will of all stakeholders to comply with the law, and upon the consistent enforcement of the law.
BOX 4: Option 1 - Enacting a Stand-Alone Mangrove Statute or Regulation for the Environmental Protection and Conservation of Mangroves
This option would have the following advantages:
Enable the implementation of a mangrove policy and mangrove management plan when or if developed, Enhance legislative coherence, Facilitate intergovernmental processes and cooperation, Serve as a reference for amendments to and interpretation of sectoral legislation and cross- cutting legislation, Provide clear guidelines for decision makers, developers and civil society, Support monitoring, enforcement and compliance, Provide a legal instrument for the integration of climate change adaptation functions of mangroves in the legislation, Highlight the linkages with international incentive mechanisms for maintaining the function of mangroves, such as the REDD+ mechanism under the UN Framework Convention on Climate Change, and the Access and Benefit Sharing (ABS) provisions under the Convention on Biological Diversity, and Establish the legal basis for cooperative and ecosystem-based management of foreshore lands and mangroves ecosystems.
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BOX 5: Considerations for the drafting of mangroves conservation regulations under the EPC Act
The regulation of mangroves should be based on a comprehensive mapping of mangrove and rating of the importance of each mangroves area. This would form the basis of a national mangrove management plan for general directions but importantly of local mangroves management plans which would be developed by local communities with the assistance of Government provincial authorities and NGOs, for strengthening and promoting traditional resource management (TRM) strategies and the traditional governance systems that underpin and supports TRM. These plans could determine what percentage of clearing/reclamation of mangrove that can be authorised for each area of mangroves, ranging from 0% (total prohibition) for critical ecosystem to a percentage determined on a scientific basis for expanded or less important mangroves areas. An Intergovernmental Technical Mangroves Management Committee (ITMMC) should be created for assisting Department of Environment in the EIA of applications for developments which are likely to have an impact on mangroves. Consultation with the ITMMC should be regulated and become part of the EIA process.
The Regulations under the EPC Act could require that:
No mangrove clearance/reclamation is to be approved where it is likely to have a significant impact in areas on mangroves ecosystems in areas declared of significant importance (which could be declared Conservation areas under the Forestry Act) and on the basis of the mangrove management plan. A cumulative impact assessment to be required for all applications for proposed developments not only on foreshores but for all developments which are likely to have impacts on mangroves (ridge to reef – includes approval of mineral extraction/commercial forestry/tourism), and on the basis of the mangrove management plan All applications for development to be required to demonstrate that the development could not take place at an alternative site with no or less impacts on mangroves. When consent is given for clearance of mangroves, replanting of mangroves/offset systematically required Payment of compensation for damages to indigenous and local communities by individual & corporations responsible for the degradation/removal of mangroves , whether authorised or not (refer to economic evaluation study) Monitoring of compliance with consent conditions Where clearance of mangrove has been authorised for an activity limited in time (e.g. mining or shipping of logs) , or illegally, obligation to rehabilitate /replant the site. Heavy penalties (fine and jail in case of repeated or most serious offences ) for unauthorized clearance of mangroves A mangrove management technical committee to be established and be integrated in the EIA process from the early stage Guidelines and training modules to be developed for EIA officers and provincial officers. Guidelines should also be developed for developers. 55
BOX 6: Option 2 - Reforming Existing Legislation for Better Conservation and Management of Mangroves in Vanuatu: Key Objectives of the Reform
Provide coherence/harmonize the legislative framework, Establish procedures for inter-departmental cooperation and information sharing, Integrate the consideration for mangroves in decision-making, and mitigate the environmental impact on mangroves of activities and developments, Enable the implementation of policy choices regarding mangroves, such as may be expressed in a national mangroves management plan; Prohibit the commercial harvesting of mangroves; Support the establishment of tree plantations as alternative to mangroves for uses such as (firewood, building materials) Strengthen compliance and enforcement through command and control provisions in the legislation, complementing targeted public awareness campaigns and the strengthening of capacity, including of traditional management and governance structures within communities in the management of mangroves; Establish or strengthen effective public participation processes in decision-making, transparency and access to information
Support legal basis for the recognition, development and implementation of conservation Options formechanisms law reform andfor eachmanagement of the themes plans explored through proposedcommunity below. or cooperative and ecosystem- based management systems. 5.4.1 Mangroves and Terrestrial and Marine Tenure: Options for Land Law Reform
Amend the land legislation to introduce a requirement for the consideration of impact on mangroves in the decision-making process. Specifically, an amendment to the Lands Lease Act (section 38) is recommended to include requirement for the consideration of the environment generally, and of mangroves in particular. The administrative processes could also impose an obligation to disclose on the standard application form to lease land, whether the land in question is adjacent to foreshores and whether the purpose of the lease involves land use change and/or is likely to have impacts on mangroves ecosystems. Any positive answer to these questions would automatically trigger the involvement of the Department for Local Authorities, on behalf of the Minister of Internal Affairs, in lease negotiations as well as involve an EIA as the two are now linked. Establish the legal basis through regulation prescribed by the Minister responsible for lands to the existing – but inconsistent – practice of consideration of land lease by a land management and planning committee (LMPC). This committee would include representatives or relevant Ministries and government departments and authorities, including Local Government, Forestry, Fisheries, Environment and tourism, in addition to the representatives or customary owners and marine areas right-bearers representatives. Enact legislation for the regulation of land subdivision.
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5.4.2 Conservation Mechanisms: Options for Law Reform
The active engagement of local communities in coastal area management, through the formalization of co-management or community-based systems, together with increased awareness of the value of mangroves ecosystems would strengthen customary land and marine management systems and support the effectiveness and permanence of statutory conservation mechanisms. It would also contribute towards the achievement of the CBD’s Aichi target 11.131 The EPC Act could be amended to declare Community Conservation Areas co-managed areas, including in mangrove areas, with the support of government to develop and enforce community mangrove management plans. Government Departments and NGOs should also work to actively strengthen and promote traditional resource management (TRM) strategies and the traditional governance systems that underpin and supports TRM.
5.4.3 Fisheries: Options for Law Reform
A mangroves regulation can be considered under the Fisheries Act Alternatively, the Fisheries Regulations are to be amended to provide for fisheries habitat conservation measures in mangroves areas A mangrove management plan is to be prepared in critical mangroves areas of Vanuatu with special conditions license Sustainable aquaculture practices are to be encouraged to reduce pressure for increased mangrove conversion, and include, where relevant, requirement for mangrove restoration within or adjacent to ponds
5.4.4 Forestry Options: for Law Reform
The Forestry Sector Plan development under Section 3 of the Act could be amended to include special provisions for mangrove conservation, and to support the establishment of tree plantations to reduce the use of mangroves as firewood and building material The Forestry Act could be amended to include, in Part VI, a reference to the Environmental Impact Assessment under the Environmental Protection and Conservation Act 2002 The exemptions to environmental consideration when issuing a license should be removed from the Act Section 4 of the Forestry Act could be amended to include the mandatory consideration for mangroves ecosystems by the Minister, the Board and the Director of Forests in the performance of their respective roles Significant mangroves ecosystems (as may be identified in a national mangroves management plan) could be protected by being declared Conservation Areas.
131 Aichi 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 landscape and seascape”
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5.4.5 Extractive Industries: Options for Law Reform
The Mines and Mineral Act (MMA)is to be amended to provide for appeal by third parties aggrieved by the decisions relating to the grant of mining licenses and permits Amendment to the MMA is to address the regulation of mining waste management, including prohibition of dumping of waste, resulting in water pollution, on the foreshores and in coastal waters The MMA and Regulations are to be amended to require the grant of exploration and operation licenses subject to compliance with the provisions of the Environmental Protection and Conservation Act and of the Environmental Impact Assessment Regulations Extraction of sand and coral aggregate are to be regulated and subject to a permit under the MMA and regulation. This may have been addressed by the new Quarry Permit Act. Express reference to the legislation regulating the assessment of environmental impact and foreshore development. The MMA and Quarry Permit Acts should make express reference to the assessment of the environmental impact of mining under the EPC Act (which should be a cumulative and ridge to reef assessment).
5.4.6 Ports and Shipping: Options for Law Reform
Developments associated with port facilities are foreshore developments and require a preliminary EIA under Schedule 1 of the EIA Regulation, as well as compliance with the Foreshore Development Act There are overlaps of jurisdiction in the regulation of Ports developments, which require formal processes to be put in place to facilitate intergovernmental collaboration and streamline the licensing and permits requirements
5.4.7 Environmental Protection: Options for Law Reform
The development of a National Policy and a National Plan by the Department of Environment for the protection of mangroves under the powers conferred to the Director by section 4(1) of the Act The Director could also establish a mangroves inter-agency coordination Committee as empowered by section 5 (b) of the Act The monitoring of compliance with the conditions of a development approval could be strengthened by additional resources, including human resources by appointing and training enforcement officers persons from other government departments, including Fisheries, Town and Country Planning, Local Government or other departments with strong local presence, as authorized by section 5 (a) of the Act. This could also be extended by appointing and training persons from local communities, or local communities’ organizations such as Locally Managed Marine Areas The protection and conservation of mangroves would benefit from the development of a Mangrove Regulation under the EPCA. The regulation would strengthen the consideration for the
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impact on mangroves of developments and activities and clarify all requirements and linkages with other legislation and processes with relevance to mangroves. Section 45 (1) (f) of the Act vests the Minister with the power to make regulation (f) to control the taking or use of specified species. Alternatively, the Minister could make Mangroves Regulations with other ministers as provided by Section 45 (2) of the Act
5.4.8 Land Use Planning Options for Law Reform
The Physical Planning Act could be amended to enable the implementation of the National Land Use Planning Policy (NLUPP). Specifically , the amended Physical Planning Act would: Require the development of a national strategic planning instrument Require the development of provincial Land use planning instruments, with reference to the national strategic plan Contribute to the establishment of an integrated decision-making process for coastal areas, including foreshore land and mangroves ecosystems by a requirement for cumulative impact assessment of developments Establish a standardized approval process by defining a set of mandatory considerations for decision makers, including principles of sustainable development, rules of custom, climate change vulnerability, and relevant policies, including mangroves policy and/or mangroves management plan, and an effective consultation process inclusive of customary landowners, local communities and community resource management groups Establish a ‘one-stop-shop’ process of approval when several approvals/authorizations/ permits are required in relation to a development, such as a lease application for a tourism facility on a coastal area, requiring clearance and reclamation of mangroves. This would not only facilitate compliance with all permits and requirement, but also facilitate a holistic assessment of impacts. Alternatively, require that all other approvals including from the Department of Environment when an EIA is required, are obtained prior to the approval of a development. This would be facilitated by a national mapping of mangroves and identification of critical mangrove ecosystems Clarify the role and responsibilities of the provincial and municipal councils and amend the related legislation accordingly Order the development of guidelines for development approval decision makers, and/or finalize the draft zoning and development control plan Establish processes for the monitoring of compliance with development approval conditions, and vest monitoring and enforcement officers with powers of entry and investigation Increase the penalties for non-compliance with the legislative approval requirements and for non-compliance with conditions of approval, including hefty financial penalties for corporate entities The Foreshore Development Act, the Decentralization Act and the Municipalities Act will require amendments to reflect the Land Use Planning Policy and the Amended Physical Planning Act as outlined above, including mandatory consideration for mangroves ecosystems in the decision-making process, and the streamlining of multi-approval processes
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Developments when approved on foreshore could be assorted by standard conditions, requiring mitigation of environmental impacts on mangroves ecosystems and mandatory offsets (replanting of mangroves). An effective monitoring of these conditions would be required. Increased and clear responsibilities vested in Provincial Councils in land use planning and development approval processes Appointment of an Environmental Planning Officer and a multi-stakeholder Environmental Planning Committee in each Province, to facilitate the discharge of Provincial environmental and planning responsibility and the development of an integrated coastal co-management framework
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