ESTADO DEL ARTE

The law is a complex adaptive system, in which conservation decisions and legal reforms inevitably have unintended consequences and trade-offs.242 Climate change introduces additional uncertainties for the design and operation of law, as well as for the conservation of biodiversity.243 As discussed at Section 4.2.3, above, the rapid, unpredictable and irreversible nature of many projected climate change effects will also ‘negate the

knowledge and baselines we have used in [the past]… making front-end decisions at best unreliable and at worst impossible’.244 Adaptive management is almost universally

239_{Charter of Human Rights and Responsibilities Act 2006 (Vic) s 31(3).}

240 _{Williams, G, ‘The Victorian Charter of Human Rights and Responsibilities: origins and scope’ (2006) 30}

Melbourne University Law Review 880, 899-900.

241 _{Ibid 896.}

242 _{Ruhl, JB, ‘Law's complexity: a primer’ (2008) 24(4) Georgia State University Law Review 885;}

Garmestani, Ahjond S, Craig R Allen and Heriberto Cabezas, ‘Panarchy, adaptive management and governance: policy options for building resilience’ (2009) 87 Nebraska Law Review 1036.

243 _{Ruhl, above n 242; Jones, Judith, ‘Regulatory design for scientific uncertainty: acknowledging the}

diversity of approaches in environmental regulation and public administration’ (2007) 19(3) Journal of Environmental Law 347.

244 _{Fischman, Robert L and Jillian R Rountree, ‘Adaptive management’ in Michael B Gerrard and Katrina}

Fischer Kuh (eds), The law of adaptation to climate change: U.S. and international aspects (American Bar Association, 2012) 19, 36.

recommended as a characteristic of adaptive and effective environmental law245 _and

governance246 _{for responding to these fundamental decision-making challenges. Design}

principle 3 argues that adaptive management processes ought to be prioritised for adaptation-oriented conservation.

The key ideas underpinning adaptive management, such as ‘learning while doing’, systematic monitoring, and mandatory, periodic review and adjustment of laws, policies, decisions and management processes, ‘provide a strong conceptual basis for evaluating and strengthening legal frameworks for climate change’.247 _{Adaptive management offers a}

useful tool for reducing uncertainty, shifting the emphasis from upfront ‘once and for all’ decision making towards iterative decisions that can adjust to changing circumstances over time.248 Adaptive management can also help to identify ineffective management

interventions and inefficient allocation of funding,249 both of which will be critical to maximising conservation resources as climate change exacerbates existing threats to Australian biodiversity.

Adaptive management has weaknesses, both in its existing implementation and its

prospects for improving future adaptation-oriented conservation. For example, and despite its prominence in adaptation law scholarship, adaptive management is rarely mentioned explicitly in legal frameworks.250 _{Indeed legal and institutional frameworks have often}

245 _{Allen, Craig R and Ahjond Garmestani (eds), Adaptive management of social-ecological systems}

(Springer, 2015); Ruhl, JB and Robert L Fischman, ‘Adaptive management in the courts’ (2010) 95(2) Minnesota Law Review 424; Craig, above n 102.

246 _{Eg Kenward, RE et al, ‘Identifying governance strategies that effectively support ecosystem services,}

resource sustainability, and biodiversity’ (2011) 108(13) Proceedings of the National Academy of Sciences 5308.

247 _{Schramm and Fishman, above n 87, 491-2; Camacho, above n 153, 64-76; Ruhl, JB, ‘General design}

principles for resilience and adaptive capacity in legal systems - with applications to climate change adaptation’ (2011) 89 North Carolina Law Review 1373.

248 _{Eg Ruhl, JB, ‘Regulation by adaptive management: is it possible?’ (2005) 7(1) Minn J L Sci & Tech 21;}

Lawler JJ et al ‘Resource management in a changing and uncertain climate’ (2010) 8(1) Frontiers in Ecology and the Environment 35; Kostyack, John and Dan Rohlf, ‘Conserving endangered species in an era of global warming’ (2008) 38 ELR 10203, 10209; Ruhl, above n 102, 413-418.

249 _{Eg Walsh, JC et al, ‘Integrating research, monitoring and management into an adaptive management}

framework to achieve effective conservation outcomes’ (2012) 15(4) Animal Conservation 334; Scott, John K et al, Weeds and climate change: supporting weed management adaptation, an AdaptNRM technical guide (2014) 23 <www.AdaptNRM.org>.

250 _{McDonald, Jan and Megan C Styles, ‘Legal strategies for adaptive management under climate change’}

been identified as adaptive management constraints or barriers.251 _{Efforts to implement}

adaptive management have been criticised as ‘ad hoc contingency planning more than …planned ‘learning while doing’’;252 _{and clear examples of laws that successfully}

implement the process are rare.253 It has the potential to be misused, including by allowing conservation agencies to ‘duck difficult decisions’.254 Further, traditional adaptive

management approaches have tended to ignore social and normative changes over time255 – which is particularly problematic for adaptation strategies such as managed relocation, that fundamentally challenge human values and expectations in conserving non-human species, ecological processes and ecosystem services.256

This design principle proposes that adaptive management be integrated more effectively into legal frameworks for conservation, as well as ensuring continual law, policy and project improvement through monitoring and adjustment over time. Given the substantial resources required to ‘adaptively manage’ all components of a conservation task, a strategic approach will likely be required in most cases. Strategic approaches have the potential to streamline adaptive management by ensuring that resources are targeted at learning that is possible, feasible and has the greatest potential to improve future decision making.257 _{A strategic approach may require management agencies to identify a small}

number of key interventions that, when implemented, will be monitored and used to inform

251 _{Eg Benson, Melinda Harm and Courtney Schultz, ‘Adaptive management and law’ in Allen, Craig R and}

Ahjond Garmestani (eds), Adaptive management of social-ecological systems (Springer, 2015) 39.

252 _{Ruhl and Fischman, above n 245, 426; McDonald and Styles, above n 250.}

253 _{Including because of limited legal definitions, tentative application by environmental agencies and}

conservative judicial treatment, McDonald and Styles, above n 250, 7-16.

254 _{Fischman and Rountree, above n 244, 20; Gregory, R, D Ohlson and J Arvai, ‘Deconstructing adaptive}

management: criteria for applications to environmental management’ (2006) 16(6) Ecological Applications 2411, 2411.

255 _{Maris, V and A Bechet, ‘From adaptive management to adjustive management: a pragmatic account of}

biodiversity values’ (2010) 24(4) Conserv Biol 966; Armitage D et al, ‘Emerging concepts in adaptive management’ in CR Allen, AS Garmestani (eds) Adaptive Management of Social-Ecological Systems (Springer, 2015) 235, 236.

256 _{Eg Minteer, Ben A and James P Collins, ‘Move it or lose it? The ecological ethics of relocating species}

under climate change’ (2010) 20(7) Ecological Applications 1801; Schwartz, Mark W et al, ‘Managed relocation: integrating the scientific, regulatory, and ethical challenges’ (2012) 62(8) BioScience 732; particularly in cases when success is ambiguous, Game, Edward T et al, ‘Conservation in a wicked complex world; challenges and solutions’ (2014) 7(3) Conservation Letters 271; Armitage, D et al, ‘Emerging concepts in adaptive management’ in CR Allen, AS Garmestani (eds) Adaptive Management of Social- Ecological Systems (Springer, 2015) 235.

257 _{Biber, Eric, ‘Adaptive management and the future of environmental law’ (2013) 46(4) Akron Law Review}

933; Doremus, Holly et al, Making good use of adaptive management (Center for Progressive Reform White Paper No 1104, 2011).

management adjustments over time. Efforts to streamline adaptive management in this way are evident in some of the most recent protected area management plans in Australia, where two-to-three key management tasks are identified for regular and ongoing

monitoring, with measurable criteria to determine whether management interventions are successful.258 Conservation managers must also decide whether it is most feasible and/or valuable to implement active adaptive management, through experimentation and multiple interventions that allow comparison, or passive adaptive management, relying on historical information to develop a single ‘best practice’ strategy, which is tested by comparing actual results against predicted results and adjusted over time.259

Not every conservation decision or intervention will be amenable to adaptive

management.260 Considerations for selecting appropriate ‘key interventions’ for adaptive management include scale, agency or management priorities, timing, and potential barriers to learning.261 For example, learning generated from adaptive management in a

transboundary, landscape-scale protected area is unlikely to generate information directly applicable to local-scale and species-specific conservation interventions.262 _{Institutional}

culture, conservation priorities and resourcing will affect the number and nature of the interventions that can be managed adaptively, as well as whether an active or passive approach should be adopted.263 _{The time required to design, implement, monitor and}

analyse outcomes for most activities may be of particular relevance to conservation for biodiversity adaptation. Rapid climate changes will mean that some urgent, irreversible decisions – such as establishing a captive breeding population or choosing not to intervene to prevent a species’ extinction – will not be able to wait for adaptive management to

258 _{See Chapter 6, Section 6.5.3.}

259 _{Biber, above n 257, 934; Williams, BK, ‘Passive and active adaptive management: approaches and an}

example’ (2011) 92(5) J Environ Manage 1371; McDonald and Styles, above n 250, 29-30.

260 _{Eg Biber, above n 257; Doremus, Holly, ‘Adaptive management as an information problem’ (2010) 89}

North Carolina Law Review 1455; Gregory, Ohlson and Arvai, above n 254.

261 _{For an example of a high-level conceptual model for selecting conservation interventions, see Mitchell, M}

et al, ‘Incorporating governance influences into social-ecological system models: a case study involving biodiversity conservation’ (2015) 58(11) Journal of Environmental Planning and Management 1903; the Open Standards conservation planning approach could also be useful for this task, eg Moorcroft, H et al, ‘Conservation planning in a cross-cultural context: the Wunambal Gaambera Healthy Country Project in the Kimberley, Western Australia’ (2012) 13(1) Ecological Management and Restoration 16.

262 _{Biber, above n 257, 940-1.} 263 _{Ibid 942-4.}

reduce critical uncertainties or improve the information justifying the final decision.264

Finally, problems of learning will arise in some cases, as climate changes render a resource so dynamic that uncertainty cannot be reduced through adaptive management, even if implemented perfectly.265

An important starting point for this design principle will be to introduce objects clauses and statutory indications of the value of monitoring and reporting on conservation actions over time. The Biodiversity Conservation Act 2016 (NSW) is the only Australian statute to include an object clause along these lines, stating that one purpose of the Act is ‘to support collating and sharing data, and monitoring and reporting on the status of biodiversity and the effectiveness of conservation actions’.266 _{Legislative provisions in many jurisdictions}

impose obligations to undertake periodic reviews, including of protected area management plans;267 threat abatement and wildlife conservation plans;268 statutory lists of threatened species or ecological communities;269 and in some cases decisions not to act, for example to not prepare a threat abatement plan for a listed threatening process.270

Gathering new information by monitoring and evaluating the effects of a decision is an essential precondition to effective, iterative decision making.271 _{Monitoring and mandatory}

decision reviews are not, however, sufficient.272 _{Legal and policy mechanisms must also be}

developed to facilitate iterative decision making, which encourages ‘decisions to be made and revised repeatedly over time in response to new knowledge, accumulated experience, or changed conditions’.273 _{Conservation legislation typically provides a discretion to vary}

statutory plans and instruments, if necessary, following mandatory reviews such as those

264 _{Ibid 941-2; Woinarski et al, above n 161.} 265 _{Biber, above n 257, 943-4.}

266_{Biodiversity Conservation Act 2016 (NSW) cl 1.3(e).} 267 _{See discussion in Chapter 6, Section 6.2.3.}

268 _{Eg EPBC Act s 279(2), s 294(2); Flora and Fauna Guarantee Act 1988 (Vic) s 21, 24.}

269 _{Eg Threatened Species Protection Act 1995 (Tas) s 13(6); EPBC Act s 184 gives the Environment}

Minister a discretion to amend statutory lists.

270 _{EPBC Act s 270A(1)(b) the Minister must review the original decision within five years, and within five}

years of every subsequent decision not to prepare a plan.

271 _{McDonald and Styles, above n 250, 42-3.} 272 _{McDonald and Styles, above n 250, 43.}

273 _{DeCaro, Daniel A et al, ‘Legal and institutional foundations of adaptive environmental governance’}

(2017) 22(1) Ecology and Society 32; Parson, Edward A and Darshan Karwat, ‘Sequential climate change policy’ (2011) 2(5) Wiley Interdisciplinary Reviews: Climate Change 744.

described in the paragraph above.274 _{The iterative potential of these provisions is}

undermined by significant funding constraints for periodic review and plan revision; limited or no obligations to vary a plan even if the results of the review indicate it is necessary; and the absence of any implications for failing to exercise a discretion to vary a plan, even when a review deems variation desirable or necessary. For protected area management planning, this means that many plans in Australia have never been reviewed, and some of them are more than two decades old.275

One way to overcome some of these challenges may be to impose an obligation to revise or update plans when they are reviewed unless the review indicates that revision is

unnecessary. There are no examples of this kind of obligation in Australian conservation laws. Environmental triggers – pre-identified, measurable changes in environmental conditions – can also be used to initiate a review and revision process for conservation decisions, planning instruments and statutory policies.276 ‘Built-in’ policy adjustments may be engaged by environmental triggers or thresholds, such as a proportionate decline in vegetation cover, unprecedented low levels of rainfall or rapid declines in species richness. Such triggers and thresholds can help to embed adaptation and learning as intentional components of a plan, policy or decision.277

While not every eventuality can be anticipated, certain climate-driven responses are plausible or already apparent, such as species redistribution, sea level rise and coastal erosion and ecological retreat. Explicitly identifying negotiated and acceptable

management responses to a range of clearly articulated climate effects in conservation planning can speed up the process of responding to those effects. Built-in adjustments can also enhance transparency and avoid repeated, urgent and ad hoc revisions – ‘smoothing’

274 _{Eg EPBC Act s 279(3), s 294(2), (3); Flora and Fauna Guarantee Act 1988 (Vic) s 17(4).} 275 _{Chapter 6.}

276 _{McDonald and Styles, above n 250, 45-49; Bhadwal, Suruchi, Stephen Barg and Darren Swanson,}

‘Automatic policy adjustment’ in Darren Swanson and Suruchi Bhadwal (eds), Creating adaptive policies: a guide for policy-making in an uncertain world (Sage, 2009) 56.

the inevitable ecological and social transitions that climate adaptation will render necessary.278

4.4 Conclusion

One of the key climate challenges for conservation legal frameworks is the need to design and implement conservation law and policy in the context of ongoing environmental change. Legal frameworks must meet this challenge to have any chance of reducing and reversing the catastrophic rate and scale biodiversity loss over recent centuries.279

Reforming conservation purposes will require a shift away from traditional

‘preservationist’ conservation paradigms. That reform process will create new champions and also new bases of resistance,280 requiring ‘radical shifts in perspective for many conservation stakeholders’.281 _{Camacho has suggested that a fundamental challenge for}

determining new legal purposes will be in deciding whether land managers should be ‘curators’, ‘gardeners’, ‘farmers’ or ‘trustees’ for the rich biodiversity that we have inherited.282

The three principles set out in this chapter can be used for assessing the capacity of existing laws to facilitate climate adaptation, and for guiding the design of new,

adaptation-oriented legal frameworks. Both tasks are demonstrated in the following four chapters of this thesis, which apply the three legal design principles to establishing and managing the protected area estate (Chapters 5 and 6), enhancing landscape-scale connectivity (Chapters 5 to 8), reducing non-climatic stressors (Chapter 7), and implementing conservation introductions under climate change (Chapter 8).

278 _{Swanson, Darren et al, ‘Seven tools for creating adaptive policies’ (2010) 77(6) Technological}

Forecasting and Social Change 924; Bhadwal, Barg and Swanson, above n 276, 57-8.

279 _{Secretariat of the Convention on Biological Diversity, Global Biodiversity Outlook: A mid-term}

assessment of progress towards the implementation of the Strategic Plan for Biodiversity 2011-2020 (2014) <https://www.cbd.int/gbo/gbo4/publication/gbo4-en.pdf>; SotE 2016, above n 172.

280 _{Eg Hagerman and Satterfield, above n 203; Batavia, Chelsea and Michael Paul Nelson, ‘Heroes or}

thieves? The ethical grounds for lingering concerns about new conservation’ (2017) 7(3) Journal of Environmental Studies and Sciences 394.

281 _{Heller and Zavaleta, above n 42, 26; Shellenberger M and T Naudhaus, The death of environmentalism:}

global warming politics in a post-environmental world, (2015) 7; Stein et al, above n 79, 505.

Chapter 5

Expand the protected area estate

In document Formulación de un plan estratégico para la escuela taller para ciegos – ETACI (página 39-43)