Governance for Sustainability Governance for Sustainability Issues, Challenges, Successes Klaus Bosselmann, Ron Engel and Prue Taylor IUCN Environmental Law Programme Environmental Law Centre Godesbergerallee 108-112 53175 Bonn, Germany Phone: ++ 49 228 / 2692 231 Fax: ++ 49 228 / 2692 250 [email protected] www.iucn.org/law IUCN Environmental Policy and Law Paper No. 70 IUCN_EPLP_70_EN_RZ.indd 1 10.11.2008 12:29:06 Uhr Governance for Sustainability Issues, Challenges, Successes Governance for Sustainability Issues, Challenges, Successes Klaus Bosselmann, Ron Engel and Prue Taylor IUCN Environmental Policy and Law Paper No. 70 The designation of geographical entities in this book, and the presentation of the material, do not imply the expression of any opinion whatsoever on the part of IUCN concerning the legal status of any country, territory, or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries. The views expressed in this publication do not necessarily reflect those of IUCN. Published by: IUCN, Gland, Switzerland in collaboration with the IUCN Environ- mental Law Centre, Bonn, Germany Copyright: © 2008 International Union for Conservation of Nature and Natural Resources Reproduction of this publication for educational or other non- commercial purposes is authorized without prior written permission from the copyright holder provided the source is fully acknowledged. Reproduction of this publication for resale or other commercial purposes is prohibited without prior written permission of the copyright holder. Citation: Bosselmann, Klaus, Engel, Ron and Taylor, Prue. (2008). Governance for Sustainability – Issues, Challenges, Successes. IUCN, Gland, Switzerland. xvi + 260 pp. ISBN: 978-2-8317-1105-8 Cover design by: magoodesign • Markus Kahlenberg Cover photo: Jean-François Hellio, Nicolas van Ingen, www.hellio-vaningen.fr Layout by: ceterum printdesign – Dieter Müller, 53340 Meckenheim, Germany Produced by: IUCN Environmental Law Centre Printed by : medienHaus Plump, 53619 Rheinbreitbach, Germany Available from: IUCN Publications Services Rue Mauverney 28 1196 Gland Switzerland Tel +41 22 999 0000 Fax +41 22 999 0010 [email protected] www.iucn.org/publications A catalogue of IUCN publications is also available. The text of this book is printed on Novatech 90 g/m2 paper made from raw materials originating from responsibly managed forests. Table of Contents Preface vii Acknowledgements ix Authors xi Introduction: What is governance for sustainability? xiii Part A: Issues, Resources 1 Chapter 1: Governance for Sustainability 3 1.1 Introduction 3 1.2 Tensions 4 1.3 Spheres and forms of governance for sustainability 17 Chapter 2: The Covenantal Foundations of Governance for the Community of Life 47 2.1 Introduction 47 2.2 The eclipse and recovery of covenant in world history 49 2.3 The ontological roots of covenant and governance 51 2.4 The democratic ecological covenant 53 2.5 The prism of covenant 55 2.6 The covenantal struggles of our time 60 2.7 Making, keeping, reforming and renewing the democratic covenant of life 61 Part B: Challenges, Successes 67 Chapter 3: Introduction to the Case Studies 69 Chapter 4: Case Studies 71 4.1 EIA as the Start of a Social Bargaining Process: The Malampaya Deepwater Gas-to-Power Project Jay L. Batongbacal, Esq. 71 4.2 Public Engagement and Local Benefit Sharing in the Northwind Bangui Bay Project, Philippines Jay L. Batongbacal, Esq. 83 4.3 The Aldinga Arts Ecovillage Karen Bubna-Litic 93 4.4 Earthlife Africa versus the Pebble Bed Modular Reactor: A Battle for Governance for Sustainability and Informed Decision Making in South Africa Willemien du Plessis 103 v 4.5 Quarrels over a Proposed Quarry in Nova Scotia: Successful Application of Sustainability Principles in Environmental Impact Assessment but Not a Perfect Ending David L. VanderZwaag, Jason May 111 4.6 The WaiWai Protected Area – Our Land: Our Life Melinda Janki, Cemci Sose 123 4.7 Balancing Sustainability Considerations through Public Participation in South Africa: A Critical Reflection on Legislative Entitlements and the Role of the Judiciary Louis J. Kotzé 133 4.8 It Takes a Village to Save the Polar Bear Christina E. MacLeod 141 4.9 Brightening the Covenant Chain: The Onondaga Land Rights Action and Neighbors of the Onondaga Nation Jack Manno, Chief Irving Powless Jr. (Chawhdayguywhawdoes) 149 4.10 Rediscovering and Revitalizing the Great Lakes Governance Jack Manno, Gail Krantzberg 159 4.11 Actualising Sustainability in the United Kingdom – Recent Developments in Devolved and Local Government Karen Morrow 171 4.12 The Experience of Porto Alegre’s Participatory Budget Ricardo Libel Waldman 185 4.13 Land Use Regulation versus Property Rights: What Oregon’s Recent Battles Could Mean for Sustainable Governance Melissa Powers 191 4.14 Grenelle de l’environnement: Is France making up for lost time? Ricardo Stanziola Vieira, Julien Bétaille 201 4.15 International Law and Local Normative Changes: Learning to Co-exist with Hooded Cranes in Suncheon Bay, South Korea Rakhyun E. Kim 207 4.16 Australia’s Efforts to Achieve Integrated Marine Governance Gregory Rose 217 4.17 Waitutu Block and Tutae-Ka-Wetoweto Indigenous Forests Nicola R. Wheen 227 4.18 Hector’s and Maui’s Dolphins Nicola R. Wheen 237 4.19 The Case of Nunavut: Global Warming and Vulnerability in the Canadian Arctic Laura Westra 247 Recommended Reading 253 vi Preface This book, the result of a joint effort of the IUCN Commission on Environmental Law and the IUCN Environmental Law Centre, is a contribution to the ongoing discussions about environmental governance. In an increasingly global world with growing demands on natural resources, this is a very timely publication which addresses three key issues: globalisation, democracy and sustainability. It offers a thoughtful consideration of concepts which are critical to enhancing our understanding of how societies respond to environmental challenges. The book also provides a number of practical case studies, which look at the experiences faced by people and communities around the world as they address pressing local and national issues. These case studies demonstrate a range of governance models and highlight the obstacles faced by communities as well as their successes. Importantly, the book does not attempt to conclude on the benefits or advantages of any one model or theory. Rather the authors invite all of us engaged in environmental issues to begin a renewed dialogue on the issue of governance for sustainability in order to seek solutions which will make a real difference on the ground. We hope that the readers will take up that difficult but important challenge. Sheila Abed Alejandro Iza Chair, Commission on Head, Environmental Law Programme Environmental Law Director, Environmental Law Centre vii Acknowledgements The project owes its existence to the foresight and leadership of Sheila Abed, Chair of the IUCN Commission on Environmental Law. Her initiative at a Commission Meeting in Iguaçu, Brazil in June 2006 has led to a collaboration among the authors which then involved a wider community of environmental experts both within and outside CEL. Important stages of this two-year collaboration were a workshop in Paraty, Brazil in June 2007 and project meetings near Chicago in September 2007 and Berlin in July 2008. Sheila Abed has accompanied the entire process with generous financial support and great personal enthusiasm for which we are deeply grateful. Twenty people from fourteen countries have given their expertise and time for the writing of case studies compiled in this report. The process of consulting with them and others whose contributions could not be included here, has been enjoyable and enriching. We express our sincere gratitude to each of them. The participants of the workshop in Paraty provided valuable information and insights. We certainly sensed a strong interest amongst the members of CEL as well as the IUCN Academy of Environmental Law. In addition, members of CEL’s Ethics Specialist Group supported this project in manifold ways. The chapters of Part A have been written with research assistance of Bonnie Rowell, Nora Götzmann and Kathryn Kintzele who has also drafted the list of recommended reading. We are grateful for the inclusion of this report in the Environmental Policy and Law Paper Series of the IUCN Environmental Law Centre in Bonn. ELC’s director Alejandro Iza has been a strong supporter of this project from its inception right through to its publication. Ann DeVoy and Anni Lukács (from ELC) and Mary Paden (our copy editor) provided crucial assistance during the editing and production process. ix Authors Klaus Bosselmann Dr Klaus Bosselmann, born in Germany, is Professor of Law and Founding Director of the New Zealand Centre for Environmental Law at the University of Auckland. Previously, he taught at the Freie Universität in Berlin and in 1987 co-founded Germany’s first Institute for Environmental Law in Bremen. He was a visiting professor at leading universities in the United States, Brazil, Italy, Sweden and Germany and provided consultancy for the OECD, UNEP, EU, and the governments of Germany and New Zealand. He was a legal adviser to the Drafting Committee for the Earth Charter and is a member of the IUCN Commission on Environmental Law, currently co-chairing its Ethics Specialist Group. Klaus has a special interest in conceptual issues of environmental law and governance; in this area he has published fifteen books and over eighty book chapters