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Legal natural resource governance: Innovation in response to fundamental rural challenges. Professor Paul Martin Australian Centre for Agriculture and Law University of New England The argument • Evidence suggests that resource governance can be too costly, ineffective and/or unfair. Why? v – 5 basic challenges – 5 rural challenges • What should the next generation of resource governance be like? • Proposed directions to consider – Research and investigation methods – Better frameworks for public policy – Governance instruments and systems • Where might we go to from here? + IUCN/WCEL investigations of legal governance effectiveness (x2) The instrument explosion 6B-9B 2B-6B 1B-2B Ecolex: 2,070 treaties; 110,000 national laws and regulations 1,100 court decisions. Is this the best rural governance model? Mercantile/technocentric system Ecolabels Index 458 ecolabels in 197 countries, and 25 industry sectors Frontier 2 Industrialised/populist system Frontier 1 <1B 16th 17th 18th 19th 20th 21st Agricultural / monarchic system Governance effectiveness: the evidence The biophysical and social evidence plus •Political and scholarly critiques; business sector critiques •Rio+20 ‘The Future We Want’: Cl 19. •IUCN – Natural Resource Governance Framework (NRGF) (World Commission on Environmental Law and the Environmental Law Centre. Bonn). – Academy of Environmental Law •UNEP’s Environmental Governance sub-programme •Memorandum of Understanding UNEP and International Organization of Supreme Audit Institutions (INTOSAI - Working Group on Environmental Auditing, WGEA) •Organisation of American States Society needs fundamental governance improvement 5 basic challenges 1. 2. 3. 4. 5. Ever-increasing human pressures upon the earth. Governance systems that privilege harm-doing. Failures of public will and institutional capacity. Dynamic, complex and changing systems. Fragile governance paradigms – We lack continuous improvement based upon objective performance analysis (e.g. system and instrument performance). – We are misled through instrumentalism (e.g. laws, markets). – We lack realism in design and implementation. – The evolution of methods is shackled by disciplines. Overlaid by rural-specific characteristics Country People./h a. Switzerland 2 UK 2.62 USA 0.35 Canada 0.04 France 1.2 Iceland 0.03 Argentina 0.16 China 1.41 Thailand 1.32 Indonesia 1.39 Agindependen t AgDependent National accounts Employ’t % Ag. 3 1 1 2 4 5 5 35 38 39 GDP % Ag. 1 1 1 2 2 6 9 10 12 14 1 2 1 1 24 10 Rurality & governance: international evidence Natural resources Biodiversity Benefits Index Renewable water (GL1000) Extraction per person (L1000/y) Agindependent 30 1543 936 AgDependent 35 860 635 Gov't Net Public GDP/ha GDP/p revenue/p Social $ (US$1000) (US$1000) (US$1000) (%GDP) Agindependent AgDependent 17 69 44 18 5 5 16 4 Social welfare Schooling Agindependent AgDependent Child Labour (% 5-14) 17 14 Health $ (%GDP) 12 7 6 Inequity Transparency Sustainability Rural-specific concerns, Australia as an example Rural Australia in context GDP/km2 Mongolia Great Britain Iceland Australia USA China What is feasible? 0 10 20 30 40 Population/km2 GDP/Capita Mongolia Great Britain Iceland Australia USA China Mongolia Great Britain Iceland Australia USA China 0 20,000 40,000 60,000 0 100 200 300 Pest animals – a rural problem People: the issue and resource Capacity: A critical limit Education: shaping responses Indicators of variability in capacity to address target pest species Depth of shading is a 3 way function of 1. Number of the 4 pest species present. 2. Population sparsity; and 3. Index of social disadvantage “Vicious” rural system issues 5 rural-specific challenges # 1 & 2) 1. Major problems have special systemic cause/effect/solution characteristics. – – Extensive, trans-boundary collective action problems. “Autopoietic”, often coupled with adaptation. 2. Eco-social system complexities. – – – – – – – Farming and commodity system economics Interwoven social, economic and ecological factors. Social disadvantage linked to resource dependence. Rural cultural and political distinctiveness. Traditional owners’ eco-dependency and interests Societies depend on private rural actions. Private costs of providing these public benefits ( 5 rural specific challenges (# 3 & 4) 3. Spatiality has complex, often hidden, governance implications. – – – “Space between”, social isolation, collective action and transaction costs. “Distance to”, cultural and political isolation, service access. “Extensiveness” 4. Sparcity limits which interventions are feasible and fair. – – – Low manpower intensity of rural spaces Low economic intensity of rural economies Limited human capacity of rural spaces 5 rural-specific challenges (# 5) 5. Fragmentation limits effective (extensive scale) collective action. – – – – – – – – – Title fragmentation Institutional fragmentation Program and policy incoherence Instrument proliferation Land use and enterprise diversification Emerging rural economies Intensifying resource conflicts Increasingly diverse rural values and interests Strengthening non-local communities of interest Dynamics of rural futures Unpublished Direction and magnitude of future changes in sustainability indicators for the five agro-climatic regions of Australia from 2011 to 2100 under Representative Concentration Pathways. Brett Bryan, CSIRO. Where to from here ?? 10 directions for rural governance 1. Rural governance systems, not mere instruments. 2. Precise multi-point, multi-instrument strategies. 3. Science-informed behavioural focus. 4. Streamline institutional architectures. 5. Broaden rural regulatory evaluation. 6. Use hybrid governance, with integrity mechanisms. 7. Empower ‘collective citizen action’ via institutions. 8. Actively manage (citizen) transaction costs. 9. Implement policy risk management. 10.Apply scientific continuous improvement. Paul Martin & Neil Gunningham Improving regulatory arrangements for sustainable agriculture: Groundwater as an illustration. Macquarie Journal for International and Comparative Environmental Law Volume 1 (1), 2014 Weed pathway Whose decisions? What institutions? Risk themes ? Consumers Competitors Identification Indigenous Ecosystem Selected Genotype Optimisation Cultivar Genotype Nutrient inputs Water inputs How could we act more strategically to change a rural system? An example.. Cultivation Local Ecosystem Crop Biofuel Processing Local competitors Establishment Local consumers Weed Naturalisation IUCN Academy of Environmental Law Innovation in risk management Selling Weed pathway Consumers Competitors Whose decisions? What institutions? Field scientist Scientific Lab scientist Identification protocol Science institutions Industry Entrepreneur Civil liability Bio-security agencies Risks expert Policy agencies Administrative Customs Bureaucrat Commercial insurers controls Commercial Propagator Optimisation Land use Nutrient inputs Water inputs Local Ecosystem Development agency staff Site investor/owner Land-use approver Land-use agencies Economic agencies Property investors Industry organisations Primary industry agencies bonds Investor codes Plantation entrepreneur of conduct Plantation manager Industry codes Cultivar Genotype Cultivation of conduct Standards Certifiers Biofuel processor Biofuel investor Biofuel consumer “Green” branding Crop Public media Establishment Local consumers Selling Extension officer Rural NGO activist Plantation neighbour Fuel companies Risk insurance Legal system policies Risk-calibrated management options Economic incentive for risk management Informed, harmaccountable investors Risk-control by the industry Risk-informed consumer choices Active harm monitoring Compensation Knowledge for avoidance/control/reme diation Consumer organisations Performance Government weeds manager Conservation agencies accountability Regional environmental Incentives for officer control/remediation Science institutions Local weeds manager Integrity mechanisms Naturalisation Weeds officer Weed IUCN Academy of Environmental Law Innovation in risk management Closing the riskresponsibility/reward cycle Biofuel Processing Local competitors Risk/context scientific evaluation Enterprise investors Indigenous Ecosystem Selected Genotype Risk themes ? Monitoring agencies Funds for control and remediation CreatingFieldascientists systemic governance strategy. Instrument focussed or Systemic behaviour focussed? 4 rural oversight reforms Regulatory processes need to drive government to more effective, efficient and fair governance: 1.Use more robust benefit/cost assessment, with realistic assumptions. 2.Make the distributions of benefits and costs transparent and contestable. 3.Evaluate the true feasibility for citizens and agencies to implement. 4.Implement a discipline of policy risk management. Martin, Bartel, Sinden, Gunningham and Hannam Developing a Good Regulatory Practice Model for Environmental Regulations Impacting on Farmers Australian Farm Institute and Land and Water Australia 2007 What is policy risk? The risk that a policy may: 1. Fail to be effectively implemented – Through formal political processes; or – Informal political resistance. 2. Be adopted politically but fail in practice – Transaction costs – Implementation platform failings 3. Cause excessive harmful ‘spillovers’. How often do governance policies fail? They said it better than I ever could: Match the words to the mind. He who innovates will have for his enemies all those who are well off under the existing order of things, and only lukewarm supporters in those who might be better off under the new. Insanity: doing the same thing over and over again and expecting different results.