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New Zealand Journal of Environmental Law |
Last Updated: 16 February 2023
91
Protected areas strategy: an Overview of New Zealand
and guatemala
Ana Gabriela Platero Midence*
The establishment and continued assessment of Protected Areas has been one of the key elements that countries have used to preserve their ecosystems. International law, especially through the Convention of Biological Diversity, has taken a major role in creating structures that allow for Protected Areas to be effective. The recommendations made to countries by the international community include a framework adapted to the special needs of each population and the type of area that is protected. Furthermore, it provides for the creation of a strategy plan that allows for goals to be set and easily followed. This paper focuses on New Zealand and Guatemala, two very different countries, whose rich biological diversity plays a major role in the world’s environ- ment. Both countries have issued their corresponding legislation and strategy plans that deal with protected areas. However, due to their special circumstances, their actual results in their implementation vary greatly.
1. INTRODUCTION
The challenge facing nations today is no longer deciding whether conservation is a good idea, but rather how it can be implemented in the national interest and within the means available in each country.
World Commission on Environment and Development
*Litentiate in Social and Juridical Science, Universidad Francisco Marroquin, Guatemala. Completing an LLM in Environmental Law at the University of Auckland. NZAID Scholar. The author is grateful to Professor Dr Kenneth Palmer for assistance and comments on this paper.
As the world community has realised that there is a decline in the planet’s biodiversity, a number of conventions, national legislation and strategies have been issued in order to overturn this situation. Among the different solutions conceived, one that has produced an important impact is the establishment of protected areas or reserves. Protected areas have been established for different reasons, be it to protect species, habitats and scenery, for research and education or to promote tourism and sustainable development of the local communities. They have been given very different names and vary greatly in size and the form of management, depending on the national legislation that protects them.1
The object of this article is to examine how a specific country should face the challenge of setting up and managing protected areas in order to maintain and restore natural habitats and ecosystems for the benefit of all. During the course of this paper, a special emphasis will be given to the legislation, state of the environment and implementation in New Zealand and Guatemala. However, it is important to note that since the potential scope of this paper is extremely broad, it will give an overview of protected areas regulations. It will not therefore examine in detail the specific policies that guide the determination of a type of area, be it of a specific country, or marine or terrestrial regions.
New Zealand and Guatemala are two countries in the world that have a very rich biological diversity; their ecosystems have proven to be of great importance to the maintenance of the world’s environment. However, this is the only thing that these two countries have in common. Economically speaking, New Zealand is considered to be a First World country, with a purchasing power parity of US$85.34 billion and no population under the poverty line. Guatemala is considered a developing country, with a purchasing power parity of US$56.5 billion and 70 per cent of its population living under the poverty line. These facts provide each country with a different ability for environmental conservation, be it in their interests over the environment, the amount of economic resources to care for the ecosystems or adequate knowledge and technology to plan and implement their strategies.2
Geographically speaking, New Zealand is an island, isolated by the sea that surrounds it. It has an area of 268,680 square kilometres and a small population of less than 4 million people. In most instances, its ecosystems will primarily be affected by the actions taken within its territory. Therefore, the New Zealand government’s actions mainly have to be driven by the country’s activities and ecosystem. On the other hand, Guatemala forms part of the Central American Isthmus and is almost completely surrounded by other countries, whose ecosystems are integrated. Its size is merely 108,890 square kilometres and
it is overpopulated with more than 14,000,000 people.3 This situation puts Guatemala at a great disadvantage, because the ecosystem it possesses is used to comply with the needs of its population and little importance is given to any other services or benefits that it may provide. Furthermore, Guatemala’s environmental policy not only has to be directed to its own jurisdiction, but also has to be coordinated with other countries, that may have different interests.
In order to analyse protected areas in any jurisdiction, this article will look at global models for managing and establishing protected areas. There- fore, international environmental law will play a very important role in this assessment, by providing a general framework and a common ground for protected areas in these two very different countries. Emphasis will be given to the Convention on Biological Diversity, since its sole objective is the conservation of biodiversity. However, its contents will be complemented not only by other treaties on the subject, but also by national and local legislation.
This article is divided into three parts, each one dealing with different aspects of protected areas. The first part studies the international arena on which the major decisions on protected areas have been taken. The second part seeks to examine the core of protected areas, by mainly defining and classifying them. The third and last part examines the strategies that a country should take in order to manage in the best way possible the protected areas. As each section of this paper unfolds, a brief explanation of how New Zealand and Guatemala have dealt with the specific issue will be given where relevant.
2. The INTeRNaTIONaL aReNa
The environment and its ecosystems are considered to be a whole. One cannot look at the activities of a country without first examining worldwide activities on the environment. This section will examine three different aspects within the international arena that relate to protected areas, their history, the institutions that bring these areas to life, and the international documents that regulate them.
2.1 Protected areas in history
Throughout history man has used different models of protected areas to satisfy his needs. More than 2,000 years ago, protected areas were set up in India as hunting reserves.4 In other civilisations they were considered sacred, used for spiritual reflection and for the pleasure of their rulers. Over 500 years ago in
Japan they were set up for soil and water protection.5 However, Yellowstone National Park, established in 1872 in the United States of America, led the way for the modern movement for protected areas.6 After this event, the protected areas crusade has expanded into a worldwide campaign concerned not only with the creation of the said areas, but also with their study, management, classification, location and benefits.
As a result of this international interest in protected areas, five World Conferences on National Parks and Reserve Areas have taken place every ten years since 1962, providing a global forum to set an agenda for protected areas. The First World Conference took place in Seattle, Washington, United States, with the purpose of establishing an effective understanding of national parks. The overall result was the agreement that protected areas are of international significance. The Second World Conference took place in Yellowstone, United States in 1972. The most important conclusion that emerged was the agreement to promote development assistance for protected areas in the tropics. In the 1982 World Congress in Bali, Indonesia, ten areas of concern were identified. The most innovative recommendations made were the need for linking sustain- able development within protected areas; the need for more marine, coastal and freshwater protected areas; and the need for implementation of economic tools to support and promote the true value of protected areas. The Fourth World Conference took place in 1992 in Caracas, Venezuela and proposed four objectives: a) integrating protected areas into larger planning frameworks; b) involving local communities and other interest groups in their protection; c) strengthening the capacity to manage them; and d) expanding international cooperation.7 The fifth and most recent Conference was held in Durban, South Africa in 2003, and offered the opportunity for a worldwide review of the state of protected areas. There were two instruments that emerged from this Conference. First, the Durban Accord where its 3,000 participants called for urgent action in favour of protected areas and a pledge to maintain and restore protected areas to bequeath them to future generations. And second, an Action Plan that sets targets and mechanisms in order to achieve the objectives set in the Accord. Furthermore, several specialised education and training programmes have been implemented. The first of these programmes was the African College of Wildlife Management established in 1963 in Mweka, Tanzania. Later on, the CAMPFIRE programme was created in 1967 that shows rural people how to economically benefit from wildlife. The School for Training of Wildlife Specialists was set up in 1970 in Garoua, Cameroon to train people in West and Central Africa and Madagascar how to run protected areas. In Central America,
the Tropical Agricultural Research and Higher Education Center (CATIE) was established in 1977 in Turrialba, Costa Rica to train protected areas personnel. The first National Park to be created in New Zealand was the Tongariro National Park in 1887. This park was followed by the Egmont National Park established in 1900 and a series of 11 other parks that followed the American model. To date, all publicly owned land that has been set aside for scenic, scientific, historic and cultural reasons is administered by the Department of Conservation. This body was founded in 1987 when the Conservation Act 1987
was passed.8
In 1955, Guatemala established its first Protected Area, Tikal National Park. However, the National Committee for Protected Areas (Consejo Nacional de Areas Protegidas, CONAP), the governmental institution that plays the major protection role, was only established in 1989. The main objectives of this institution are to manage legally protected areas; to maintain desirable levels of biodiversity; and to create environmental services to achieve sustainable development for present and future generations.9
2.2 International Institutions
This section will discuss the international institutions that have made the most significant contributions to the establishment and the creation of protected areas. The institutions herein described represent a broad range of activities and sectors, varying from an intergovernmental institution to a non-governmental organisation (NGO), from a managing and financing body, to a research institution.
The United Nations Environment Programme (UNEP) was established in 1972, after the United Nations Conference on the Human Environment (UNCHE). It is based in Nairobi, Kenya, and its main area of action is to act as a govern- ing council for environmental programmes within the UN.10 Its tasks include creating awareness of environmental damages, strengthening environmental management institutions, and administrating funds for environmental projects.11 UNEP acts as host for several environmental convention secretariats, including the Convention on Biological Diversity and the Convention on International
Trade in Endangered Species of Wild Fauna and Flora (CITES).12 UNEP carries out its activities with the support of a wide range of partners that include other United Nations entities, international organisations, NGOs, national govern- ments, and civil society.
The Global Environment Facility (GEF), created in 1991 by the World Bank, is the world’s financing mechanism for biodiversity protection programmes.13 Initially a temporary project, it now serves as an international cooperation system that provides funding to help developing countries meet their environ- mental obligations.14 It funds projects focused on the protection of biological diversity, climate change, international waters, the ozone layer, desertification and deforestation, and persistent organic pollutants. It allocates resources for said projects through three implementing agencies: the World Bank, UNEP, and the UN Development Program (UNDP).15
Both New Zealand and Guatemala have been members of GEF since 1994. To date, GEF has funded 13 national projects in Guatemala, of which four are related to protected areas.16 New Zealand’s participation in GEF is both as a donor to assist developing countries in achieving sustainable development and as part of the GEF Council, by sharing a seat with Australia and the Republic of Korea.17
The IUCN – World Conservation Union – is an NGO founded on 5 October 1948, whose objective is to promote and to assist societies in the conservation of the integrity and diversity of nature.18 Its importance lies not only in that it is comprised of over 955 states, government agencies, and national and international NGOs, but also because it was accorded the status of a UN
Observer in 1999.19 The IUCN has published a great number of databases, guidelines and case studies, among which the Global Biodiversity Strategy is to be found.
The World Commission on Protected Areas (WCPA) is among the six scientific/technical IUCN commissions, and has been acknowledged as the leading global network of protected areas.20 The WCPA in unison with its Programme on Protected Areas (PPA) promotes “the establishment and effective management of a worldwide, representative network of terrestrial and marine protected areas”.21
2.3 International Documents
The international treaty that primarily regulates protected areas is the Con- vention on Biological Diversity (CBD). However, because it is a broad document, it is necessary to complement it with other treaties and documents in order to better understand and apply it. Besides the CBD, this section will assess several international conventions that deal in some way or another with protected areas.
The Convention on Biological Diversity (“Biodiversity Convention”) was drafted in order to promote international action in favour of biodiversity.22 It was presented to the international community during the Rio Summit in 1992 and entered into force on 29 December 1993. The CBD promotes conservation and the sustainable use of natural resources as an attempt to protect biological diversity.23
The Biodiversity Convention has three main objectives. First, the con- servation of biological diversity; second, the sustainable use of its components; and third, the fair and equitable sharing of the benefits that arise from the use of genetic resources.24 The conservation of biodiversity implies that there must be protection of ecosystems and natural habitats, which combined with a sustainable
20 Ibid, 303.
use of their flora and fauna should help in the maintenance of viable populations of species.25 In order to achieve this goal, it promotes the establishment of in situ conservation, to be complemented with ex situ conservation.26 This element is contained in section (a) of Article 8 which states:27
Each Contracting Party shall, as far as possible and as appropriate: (a) establish a system of protected areas or areas where special measures need to be taken to conserve biological diversity.
It therefore calls on member nations to manage natural resources within or outside protected areas,28 by promoting an equitable and sustainable use of biological resources.29 This said, and despite the Convention’s recognition of the intrinsic value of biodiversity, it acknowledges that the fundamental purpose of conservation is the benefits that it may provide humanity.30
Furthermore, this convention catalogues biological diversity as a common concern of human kind, and therefore does not allow complete sovereignty over biological resources. However, it provides for States to be responsible for the biological diversity within their jurisdiction.31 The CBD promotes the exchange of genetic information and is interested in international cooperation to that effect.32 This collaboration was endorsed for the first time in any global convention through the creation of conservation obligations for developing countries and financial obligations for developed countries.33 It presents the chance for States to substantially change their biodiversity conservation and use behaviours.34
In January 2000, the parties signed the Cartagena Protocol on Biosafety, as a complementary document to the Biodiversity Convention. The purpose of this protocol is to protect biodiversity from risks caused by genetically modified organisms. It regulates the import and export of organisms by creating informa- tion systems to enable countries to take precautionary measures in trade issues.35
It is important to understand that although the CBD is one of the most advanced documents regarding biodiversity, it has been widely criticised. Among the criticisms that it is has received include the assertion that it is too comprehensive and too vague, making it a weak instrument to be enforced.36 It encompasses a great number of issues concerned with biological diversity, since it seeks to cover all biotic resources that have an actual or potential value.37 Furthermore, it is said to be vague because it frequently uses the words “as far as possible”, “environmentally sound uses”, and “appropriate” which leave the door open for the parties to interpret them to their own interests.38 These setbacks have led parties to duplicate their efforts when addressing the issues at hand.39
New Zealand ratified the CBD in 1993, and its implementation is largely achieved via the Resource Management Act 1991 and the Biosecurity Act 1993.40 As a developed country it acquires all the obligations of technical and scientific cooperation in favour of the less developed countries. Guatemala ratified the convention in 1995, and in order to comply with its obligations, through Decree No 110–96 of the Congress of the Republic, modified its Protected Areas Law.
The main topic of the CBD has been dealt with in a number of other instru- ments; its contents try to build on pre-existing biodiversity conventions.41 The Convention is set up as a framework that creates guidelines for other conventions, but it needs to rely on these other instruments to be able to coordinate reporting, monitoring, financing and other obligations.42
The Global Biodiversity Strategy (the “Strategy”), an effort of the World Resources Institute (WRI), IUCN and UNEP, published in 1992,43 constitutes a complementary document to the CBD, especially due to its ambiguity.44 It was a research effort that received support from 45 governmental institutions and NGOs. It contains an outline of 85 practical actions and proposals regarding
Handbook of Environmental Law Royal Forest and Bird Protection Society of New Zealand Inc., Wellington, 2004).
environmental policies, local community support and training, and conservation practices.45 The main thesis of the Strategy is that development of all people and survival of future generations depends on biodiversity conservation.46
The Strategy dedicates a whole chapter to protected areas. It asserts that setting up protected areas and effectively managing them will contribute to biodiversity conservation. In order to achieve this, the Strategy proposes nine action principles47 that are guided by two main objectives. First, it advises setting national and international priorities to strengthen protected areas;48 and second, it ensures their sustainability by creating links between other protected areas and local communities.49
New Zealand has developed the New Zealand Biodiversity Strategy (NZBS), which emerged as a response to the commitments made when signing the CBD. The development process was led by the Department of Conservation with the help of the Ministry for the Environment. The strategy document was released in February 2000, after a two-year drafting period and a one-year national consultation period. The strategy sets four goals, all of which are committed to the conservation of biodiversity. These goals are to involve communities and individuals in biodiversity conservation; to protect Maori interests; to maintain and restore natural ecosystems; and to maintain the genetic resources of introduced species.50
Guatemala has also issued its National Strategy and Action Plan for the Conservation and Sustainable Use of Biodiversity. The strategy process was coordinated by the National Coordinator of Biological Diversity (Coordinadora Nacional de Diversidad Biológica, CONADIBIO), and is the effort of more than 700 different governmental institutions, NGOs and civil society participants. The objective that the strategy sets out is to guide, organise and coordinate actions of the main actors of biodiversity, in order to achieve sustainable development and to promote conservation in the country. Its main vision is to create in situ protection of biodiversity, granting protected areas a great importance in the achievement of its objectives.51
The 1992 United Nations Framework Convention on Climate Change (UNFCCC) is concerned with greenhouse warming that causes climate change.52 Its objective lies in the stabilisation of greenhouse-gas concentration in the atmosphere at levels that prevent dangerous anthropogenic interference with the climate system.53 For that effect it recognises the need to return to earlier levels of emissions of carbon dioxide and other gases.54 In 1997, the Kyoto Protocol to the UNFCCC was proposed to its parties. It presents innovative mechanisms that aim to maximise cost-effectiveness of climate change mitigation and is applicable to developed countries only. With its entry into force on 16 February 2005,55 it is yet to be seen if countries comply with its obligations to determine the effect that it may have on the current state of world climate.
Climate change poses an overarching threat to species and habitats and the integrity of protected areas. If no action is taken to mitigate its effects, it may affect ecological systems and render many protected areas ineffective. The UNFCCC acts as an indicator of global greenhouse-gas concentrations that lead to species extinctions. Identifying atmospheric concentration levels to enable ecosystems to safely adapt to warming trends does this.56 Therefore, the creation of change-resilient areas that are able to overcome climate change effects should also be promoted.57
New Zealand ratified the UNFCCC in 1993 and the Kyoto Protocol in 2002. Before ratifying the protocol, New Zealand tried to negotiate a special allowance for its net emissions. Implementation of its obligations is done via the Energy Efficiency and Conservation Act 2000, the Climate Change Response Act 2002 and the Resource Management Act 1991. Guatemala ratified both the UNFCCC and Kyoto Protocol. However, the UNFCCC and the Kyoto Protocol only create direct obligations for developed countries or countries that have a market economy, and Guatemala does not fit into either category.
The 1975 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) is one of the most successful international conventions to date.58 Its objective is to protect endangered species from over-exploitation derived from international commerce.59 Signed by over 157 States around the world, CITES demonstrates that there is an international understanding that controlled trade ensures minimisation of damages to the environment.60
CITES contributes to protected area maintenance by diminishing one of the external factors that affects the population viability of native species within a protected area.61 This convention, therefore, reinforces the importance of all elements that make up a conserved ecosystem. For that effect, CITES imposes the obligation to set up the necessary measures to control trade taking and possession of the species. These measures include penalising trade and possession, and confiscating and returning illegal specimens to their place of origin.62
As a party to CITES,63 New Zealand enacted the Trade in Endangered Species Act 1989, in order to empower its authorities to stop import and export related to the species listed in the Convention. This statute was issued as a complementary document to the Wildlife Act 1953, whose object is to establish protected areas and to safeguard endangered species.64 The commitment to comply with this convention is presented in the case Police v Johnson,65 which reaffirms that national law forbids the possession of a listed endangered species, unless there is a previous authorisation.
Guatemala has been part of CITES since 1980 when it ratified the treaty. The contents of the Convention have been incorporated into national law through the
Biodiversity and the Law (Island Press, Washington DC, 1996) 85.
Protected Areas Law (Ley de Areas Protegidas). This statute instructs CONAP to create a list of endangered and endemic species.66 Furthermore, it expressly forbids the trade of endangered species unless authorised by a competent authority.67
The 1972 Convention Concerning the Protection of World Cultural and Natural Heritage (“World Heritage Convention”) considers parts of Nature to be of outstanding interest to humanity, and therefore in need of preservation.68 The purpose of the World Heritage Convention is to establish an identification, protection, and preservation system for cultural and natural heritage in the world.69 The Convention protects the sites listed under it and establishes two related lists. One list contains all designated “World Heritage Sites”; the other identifies a “List of World Heritage in Danger”, as a way to give importance to them. Based on the standards it sets, the World Heritage Committee chooses heritage sites from proposals made by member countries. According to the conclusions reached on 28 July 2004 during the 28th Session of the Committee, there are 788 listed World Heritage Sites of which 611 are cultural; 154 natural; and 23 mixed.70
The World Heritage Convention is connected to national protected areas because, even though these areas receive a special standing from the international community, they still need to be managed as protected areas to conserve or improve their status quo. In order to achieve this, the sites remain under the sovereignty of the state where they are located,71 but an international mechanism for intergovernmental cooperation and support, which includes financial assistance and supervision, is established to help parties achieve their conservation and identification goals.72
New Zealand has been part of the World Heritage Convention since 22 November 1984, when the treaty was ratified. To date, New Zealand has inscribed three of its areas into the World Heritage List: first, the Tongariro National Park, for its natural and cultural values; second, Te Wa¯hipounamu- South West New Zealand, for its natural values. This area includes the following
conservation land: Westland Tai Poutini National Park; Mount Aspiring National Park; Aoraki/Mount Cook National Park; and Fiordland National Park. And third, New Zealand’s sub-Antarctic islands (Auckland, Campbell, Antipodes, and Bounty groups and the Snares islands) for their natural values.73
Guatemala became party to the Convention in 1978. Alas, it only has three properties inscribed in the list. Two of these have a cultural character (Antigua Guatemala and Archaeological Park, and Ruins of Quirigua) and one has a mixed character (Tikal National Park).74
The 1971 Convention on Wetlands of International Importance especially as Waterfowl Habitat (“Ramsar Convention”) provides a framework for the conservation and wise use of wetlands through national and international cooperation. To date, there are 141 Contracting Parties to the Convention, with 1,387 wetland sites included in the Ramsar List of Wetlands of International Importance.75
This convention is related to the CBD, since it is based on an ecosystem- centred perspective, and it can be said to be the precursor of this theory.76 The Ramsar Convention is also linked to IUCN, since the latter is appointed to maintain a list of all wetlands protected under the Convention, advise on their current state, and make recommendations regarding their condition.77 It is important to note that this convention asserts that wetland conservation does not necessarily require protected area status, but a sustainable development approach is required, based on management of the areas and inclusion of economic activities.78 Those establishing and managing protected areas can learn from the implementation of this convention, in order to achieve improved results.
New Zealand has been part of the Convention since 1976, and as part of the obligations created for the parties it has listed five wetland sites, that include among others Farewell Spit, and the Miranda Wetlands on the Firth of
Governing Global Biodiversity (Ashgate Publishing Limited, England, 2002) 318.
Thames.79 Guatemala is part of the Convention and has listed three sites as part of its obligation: Biotopo Laguna del Tigre, Manchon-Guamuchal, and Wildlife Reserve Boca del Polochic. CONAP is the entity in charge of administrating the listed areas, and it works in unison with three NGOs80 in order to manage them adequately.
3. PROTeCTeD aReas
After having examined the basis by which protected areas are generally en- visaged, this article will now consider what constitutes a protected area. In order to analyse these areas it is first necessary to determine the meaning of a protected area; then, their importance and reason for being considered a protected area; and finally, in order to understand their scope, how they are classified.
3.1 significance of Protected areas
Accoding to statistics, in 2003 there were 102,102 protected areas in the world that covered a total area of 18,764,958 square kilometres.81 But before embarking on a management analysis of protected areas, it is important to determine what they are. The CBD defines a protected area as a “geographically defined area, which is designated or regulated and managed to achieve specific conservation objectives”.82 Furthermore, the IUCN defines a protected area as:83
an area of land and/or sea especially dedicated to the protection and main- tenance of biological diversity, and of natural and associated cultural resources, and managed through legal or other effective means.
Therefore it can be said that protected areas encompass an especially designated section either of land, water or sea, reserved with the object of preserving their integrity and the species within them.
Protected areas are recognised and regulated in a number of international documents,84 and most national governments have enacted laws, such as legislation that establishes national parks and other types of reserves; laws
that protect specific forests, reefs or wetlands; or planning restrictions on certain areas.85 These laws are generally based on international models, such as the Global Biodiversity Strategy. Among the general provisions that these models embody there is an emphasis on the creation of networks, as opposed to individual sites. These areas are linked to their surroundings and in some cases are used for different activities besides their strict protection. Regarding protected areas, human behaviour is also regulated near or within the areas, in order to avoid any disruptions and to promote a sustainable use of the resources as a means for local communities to achieve development.86 Therefore, it can be said that the establishment of protected areas encompasses not only safeguard- ing a specific area of land or sea, but also coordination with external elements that may have an influence over its specific features.
New Zealand’s protected areas are managed and preserved by the Depart- ment of Conservation (DoC). This Department was established by the Conservation Act 1987, and is the manager of the “Crown’s land-based natural estate including protected species and lands”.87 Its functions consist, among other things, of managing conservation areas, indigenous freshwater fisheries, and natural or historic resources. The laws administered by the DoC, and that regulate protected areas, are the Conservation Act 1987, National Parks Act 1980, Reserves Act 1977, and the Marine Reserves Act 1971.88 Another law that is related to conservation is the Resource Management Act 1991, which mandates restriction on subdivisions for publicly held land and the obligation for regional councils and territorial authorities to consider conservation matters in their plans, to name but a few relevant factors.89 In New Zealand, the case Summit Road Society v Minister of Conservation90 establishes that it is the outstanding feature within a reserved area that is important, not the designated use for it, therefore any activity that is compatible with the preservation of said feature should be permitted.
In Guatemala, the basis for creating protected areas is article 64 of the Constitution, which reads:91
Natural heritage. The conservation, protection and improvement of the natural heritage of country is in the national interest. The State will promote the establishment of national parks, natural reserves and refuges, which are inalienable. A statute will guarantee their protection and the fauna and flora within them.
This article gives way to the Protection and Restoration of the Environment Law (Ley de Protección y Mejoramiento del Medio Ambiente), which gives special regard to the environment. Article 19 of this environmental law refers to the conservation and protection of biodiversity, and in order to achieve this goal proposes the creation of a conservation areas system.92 Based on this mandate, in 1989 the Protected Areas Law was decreed. This law consists on a framework statute that coordinates almost every aspect related to protected areas. It examines the establishment of the Guatemalan System of Protected Areas (Sistema Guatemalteco de Areas Protegidas), up until the creation of a specialised entity that will manage said protected areas, CONAP. In between it coordinates flora and fauna conservation, the mechanisms to create and declare a protected area, and the management, conservation and sustainable use of biodiversity within said areas. It is important to note that this law was issued before the Biodiversity Convention even came into existence, but in 1996, 60 per cent of its articles were modified in order to adapt to the CBD.
3.2 Protection Versus Conservation
The explanation of protected areas gives way to the use of two concepts: protection and conservation. At first glance, it could be said that these words are synonyms. However, the definitions provided for these concepts allow for a distinction between them that may prove to be valuable for the analysis in this article.
The literal meaning of protection is to keep safe, to defend or to guard from or against danger, injury or disadvantage.93 If this definition is related to the environment, it can be said that protection implies due diligence in all actions carried out in order to prevent and control any damage that may arise in a specific area.94 Therefore, the word protection goes hand in hand with the
principle of preventive action, which means that, at an early stage, actions should be taken to make sure that damage does not occur.95 This concept was recognised in the Trail Smelter Case where it was said that States must take all necessary measures to avoid causing harm to the territory of other States.96
This concept has been broadly incorporated in the CBD in its preamble by stating that all measures needed to significantly reduce the loss of biological diversity should be taken.97 Furthermore, it is specifically reflected in its article 14, which states that parties should introduce the requirement of environmental impact assessments for projects that may adversely affect the environment, but should also establish a system of immediate response and notification of possible, imminent or present dangers, within the country or other States.98
Conservation may be defined as keeping a natural environment safe from danger or decay.99 From this definition arises a small difference, which is that it specifically refers to the environment. However, a more detailed definition recalls the principle of sustainable development and “embraces preservation, maintenance, sustainable utilisation, restoration and enhancement of a natural resource or the environment”.100
It can be said that conservation is not just about protecting wildlife in nature reserves, but also about safeguarding the natural systems that support life on Earth.101 For this purpose section (d) of article 8 of the CBD imposes the obligation on States to: “promote the protection of ecosystems, natural habitats and the maintenance of viable populations of species in natural surroundings”. Therefore, conservation measures range from the establishment of protected areas to the rehabilitation of degraded ecosystems and protection of natural habitats.102 It involves controlling populations in a specific area and reducing threats caused by human activity such as pollution or logging.103 It presupposes maintaining the fertility of soils, safeguarding genetic richness in order to provide food and yield medicines, and improving crops and livestock.104
103 Oxford Reference Encyclopedia, supra note 94, 1104. 104 Reid, Barber and Miller, supra note 46, v.
New Zealand is a strong supporter of the concept of conservation as it names its principal statute on the protection of natural and historic resources with that term. The Conservation Act 1987 defines conservation as:105
the preservation and protection of natural and historic resources for the purpose of maintaining their intrinsic values, providing for their appreciation and recreational enjoyment by the public, and safeguarding the options of future generations.
This definition includes both the protection and the preservation of resources, broadening its stance and providing a counterweight in favour of the environment against pure development actions.106
Therefore, the action of preserving and enhancing biodiversity is called conservation, while the establishment of specific areas in order to guard them from harm is called protection. For the purpose of this article, both concepts will be further analysed, by establishing the means of creating protected areas and the actions that should be taken in order to preserve them and all the species that inhabit them.
3.3 Importance of Protected areas
Protected areas are important because they contribute to biodiversity con- servation. In order to understand why biodiversity is important, it must first be defined. For that effect, the CBD defines biodiversity as:107
the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems.
The more species, or variables within the same species, allows the envir- onment to maintain genetic materials, “which are raw resources essential to the planet’s ability to adapt to change”.108 Biodiversity contributes to the maintenance of clean air, pure water and healthy flora and fauna that provide humans with food, energy and raw materials to live by.109
Protected areas contribute to biodiversity by maintaining viable populations of native species and subspecies. By creating these safe havens, these popu- lations are subject only to natural changes in the environment, eliminating human-caused depredation or species introductions. Protected areas allow for the flow of genetic diversity in order for species to adapt to climatic and environmental changes.110
Furthermore, protected areas deliver vital ecosystem services to com- munities. They protect watersheds and soils that shield local communities from natural disasters such as floods or erosion. They supply communities with resources for their survival and contribute to local economies. Protected areas are important for research and education, providing living laboratories or classrooms. And they even serve as relaxation and meditation spots.111
3.4 Classification of Protected areas
There is a great variety of protected areas and, accordingly, different approaches must be taken to promote conservation within different types of areas. Therefore, a single approach to dealing with protected areas would render them useless in the long run. IUCN created a system that groups protected areas according to their characteristics. Both New Zealand and Guatemala have established their own classifications of protected areas, which tend to adopt this IUCN categorisation, but differ in some aspects.
A first list issued by IUCN contained 10 different types of areas, but after testing and examining them, in 1994 it simplified the inventory to six categories. These categories represent a consensus of the classification carried out by the inter- national community and can be used for both land and sea areas. The types of protected areas set by IUCN are as follows:112
(a) Strict Nature Reserve/Wilderness Area
A Strict Nature Reserve or Wilderness Area is mainly used and managed for scientific purposes. It is chosen because it possesses an outstanding ecosystem that features a representative geological or physiological ecosystem. Access to these areas is restricted to scientists that conduct research in them, because of the high sensitivity that they present. Tourism is forbidden.
(b) National Park
National Parks are large areas that have an outstanding feature and ecosystem. They are mainly managed wilderness protection, and their natural character is either unmodified or slightly modified. They do not have a permanent or significant habitation, and are visited for education, recreation or inspiration purposes.
(c) Natural or Cultural Monument
A Natural Monument is a small area that is mainly created to conserve a specific natural feature. The area may contain one or more specific natural or cultural features that have an outstanding value because of their inherent rarity. In this sense, in accordance with Attorney-General v Ireland and Langwell,113 Cultural Monuments may be used for other purposes, as long as these uses enhance their historic and protected features.
(d) Habitat/Species Management Area
A Habitat/Species Management Area is a section of land or sea that may include a cultural landscape. It is conserved because it may have developed biodiversity worthy of protection or because long-term management is essential for its features. In order to ensure the maintenance of its habitats and to meet the specific requirements of the species that inhabit them, these are subject to active management intervention.
(e) Protected Landscape/Seascape
A Protected Landscape or Seascape consists of publicly or privately owned land that has been modified through time due to the interaction of people. It has a significant aesthetic, ecological or cultural character that makes it unique. Its protection is vital because it helps safeguard the integrity of the traditional interaction that has evolved through time.
(f) ) Managed Resource Protected Area
The purpose of a Managed Resource Protected Area is to establish a sustainable use of natural resources for the benefit of local people. The area consists mainly of unmodified natural systems that are managed to ensure long-term protection. They seek to maintain levels of biological diversity in order to provide the required natural products and services.
The Classification explained in this article will be based on the categories set by the DoC. It is important to note that even though each of the Acts administered
113 Attorney-General v Ireland and Langwell [AC] 2002.
by the Department may present a classification of areas specific to that Act, most of these can be divided into six groups, as follows:114
(a) Reserves
Reserves are managed in accordance with the Reserves Act 1977 and they are subdivided into categories that vary according to their conservation status. Their purpose is to protect natural or historic values or to provide for local community and government activities. Currently there are 3,341 reserves in New Zealand. A magnificent example is Snares Island Nature Reserve in New Zealand. This area contains 6 million breeding seabirds, it has no introduced mammals and its vegetation is virtually unmodified.115
(b) National Parks
There is no clearer explanation of the purpose of a National Park, than the description given in the Act that protects them:116
preserving in perpetuity as national parks, for their intrinsic worth and for the benefit, use and enjoyment of the public, areas of New Zealand that contain scenery of such distinctive quality, ecological systems or natural features so beautiful or unique or scientifically important that their preservation is in the national interest.
There are 14 national parks in New Zealand, among which exists the Tasman Wilderness Area, with 87,000 hectares. Its original purpose was for nature protection, but tourism is also a major feature.117
(c) Conservation Areas
Conservation Areas are regulated by the Conservation Act 1989 and can be subdivided as follows: a) Conservation Parks, managed to facilitate public recreation and enjoyment; b) Wilderness Areas that preserve intrinsic wilder- ness and natural resource values; c) Ecological Areas that protect particular ecological values; d) Sanctuary Areas that have a scientific purposes; e) Amenity Areas that protect indigenous natural and historic resources; and f ) Wildlife Management.
(d) Wildlife Areas
According to the Wildlife Act 1953118 the purpose of these sanctuaries is the absolute protection of all wildlife, to provide havens for any classes of wildlife, and to protect wildlife habitat on private or other land.
(e) Marine Mammal Sanctuaries
There are two existing Marine Sanctuaries, Auckland Islands and Banks Peninsula, and their purpose is “to protect critical breeding populations of threatened marine mammals”. These are regulated by the Marine Mammals Protection Act 1978.
(f) ) Protected Private Land
There are four subdivisions for Protected Private Land, which are Conservation Covenants, Nga Whenua Rahui Kawenata, Protected private land agreements, Management agreements; and in total there are 601 conservation units that cover an area of 94,844 hectares. These lands are set up for conservation pur- poses, and are regulated by the Conservation Act 1987, Crown Forests Assets Act 1987 and the Reserves Act 1977.
Guatemala has 120 legally protected areas that represent 29.3 per cent of all national territory. Article 8 of the Protected Areas Law presents a list of cat- egories into which these areas may be classified for improved administration and management. These are National Parks, Biotopes, Biosphere Reserves, Multiple Use Reserves, Forest Reserves, Biological Reserves, Resource Reserves, Natural and Cultural Monuments, Marine Parks, Wildlife Refuges, Recreation Natural Areas, and Private Natural Areas. These areas can all be incorporated within the IUCN categories, and therefore will not be studied in detail.
4. NaTIONaL sTRaTegIes FOR PROTeCTeD aReas
Each country has to create a plan by which it will manage the protected areas it sets up. However, these plans must be adapted to the special needs of each country; they need to overcome the specific obstacles that the said management may have to face. This part will first determine which are the general obstacles that countries encounter regarding protected areas, and then will determine which are the basic elements a strategy should be based upon.
4.1 general Obstacles for Protected areas
There are many challenges that protected areas have to overcome to be able to work adequately. In the first instance, there are external threats that damage their core elements. These perils are pollution and climate change, irresponsible tour- ism, infrastructure development, and demands for land and water resources.119 As time passes, it will become more difficult to establish protected areas, because resources are being used up and they cannot be replaced. Due to economic disparity among nations and the use of inadequate technologies, the environment is facing serious obstacles that will affect reserves and their ability to provide a sustainable life for all humans.120 Such damage is aggravated by the lack of political support and insufficient funding and provision of resources to make them work.121 This section will analyse four challenges that appear to be the most devastating.
Conflicts with local people arise from the inability of governments to under- stand and include local interest and priorities in the management of conservation projects.122 The creation of reserves alienates people that live near the area, restricting their access to the resources and even taking them away from their homes.123 In other cases, the lack of education and opportunities within com- munities in developing countries allows for an over-exploitation of resources that eliminates any possibility for species to achieve healthy levels for their survival.124
For local farmers, in some instances CITES has been a problem. Although the measures of the Convention have been proven to reduce species extinction, its strict regulations hurt trade, and diminish the capacity of local communities to achieve sustainable development. A case in Guatemala illustrates this fact. The owner of a crocodile farm has not been able to export any Morelet crocodile in eight years, because the species that he possesses have inbred into a third generation. Since this species has been included in a CITES list, he cannot
reintroduce the crocodiles bred in captivity into the wild in order to achieve a genetic replenishment.125
Agencies that manage protected areas are vulnerable to changing policies and budget cuts.126 The reason for this is that politicians legislate and govern in accordance with their transitory interests and not in favour of the welfare of the community and environment as a whole. This instability allows for “paper parks”, i.e. protected areas that appear on maps and government statistics, but that do not actually exist.127 Furthermore, the legal basis to protect key ecosystems generally has limited political support; therefore, implementation is generally defective.128
An example in Guatemala is the National Park “Laguna El Tigre”, located in the northernmost part of the country, near Mexico. Since there has not been a clear and enforceable policy to strengthen the borders between the countries, this area is unprotected from loggers and merchants who export all types of species from the area to the northern neighbour.129
The only way in which a protected area can meet its full potential is if its management is able to respond to the different impacts that may occur. A “hands-off ” administration will lead to a deterioration of the elements that make up that reserve. An intensive administration of the area is needed to mitigate the impact of human development in surrounding areas. However, there are not enough trained personnel that can actually respond to these needs. There is a need to create ecological knowledge programmes to help meet the demand of this management.130
In Guatemala, of the 120 protected areas, only 23 of them have a manage- ment master plan. This lack of planning cuts protected areas short in their effective performance.131 This is because according to the Protected Areas Law132 management master plans present the action strategy needed to fulfil the
28 August 2004).
objectives of the area and to develop its maximum potential. As a consequence of this ineffective management, the existing protected areas are currently in danger of being destroyed due to forest fires, illegal logging, and plagues that kill the species.133
The ideal scenario for many governments would be if a protected area would “pay its own way”. However, only a few areas manage to be sufficiently profit- able to earn revenues that can fulfil this aspiration.134 Even so, in some cases, these earnings are not reinvested in the protected areas or the communities surrounding them. Generally, the funds that pay for maintaining these areas derive from national budgets, which in many countries are not very high.135
There are two main reasons for insufficient funding to manage protected areas. First, there are no palpable benefits; the cost-benefit analysis does not clearly establish a positive result that tips the balance for decision-makers to favour these areas. Second, there is no economic model that adequately values the environment.136
In Guatemala, the lack of economic resources to manage a protected area has allowed protected areas to become a greater danger to biodiversity, than an actual safety net. A clear example is the Biosphere Reserve “Sierra de las Minas”. This reserve of 264 hectares in area was completely separated from any private action and its management was awarded to a sole foundation. However, due to lack of funding, only 40 persons look after the total area, and the forest- fire prevention equipment is hardly existent. Local people invade the area and use all flora and fauna species without any control. Furthermore, the forest is plagued with diseases that are killing the trees and the habitat for many animals.137
4.2 strategy action Plans
It is important to create a universal action plan for managing protected areas. This is because the interests of all regional ecosystems should be represented and entwined. The main priority of these plans should be to fill the gaps at global levels and to design more effective management for those existing areas. Any lack of action threatens species and their habitats. Therefore, a network of
133 Siglo XXI “Urge ciudado de las areas protegidas”: www.sigloxxi.com (at 28 August 2004). 134 J A McNeely, “Protected areas for the twenty-first century”, supra note 109.
protected areas should be set up based on the adequate distribution of species, habitats, ecosystems and ecological processes.138
But to implement these plans it is necessary to adapt them to local interests; i.e. these action plans should be tailored in close collaboration with the communities that will be affected by them. To date, a large number of strategies and action plans have been produced at international, regional and local levels.139 This section will look at the general elements that should make up these strategies in accordance with international standards.
Countries should carry out a review of their Protected Areas System in order to assess if their protected areas are committed to biodiversity protection.140 This issue arises from section (b) of article 8 of the CBD imposed on states to:141
develop, where necessary, guidelines for the selection, establishment and management of protected areas or areas where special measures need to be taken to conserve biological diversity.
This examination should include a statement of objectives; an assessment of existing systems; identification of the areas needed to comply with conservation objectives; and a statement of national priorities.142 National strategies should include the obligation to review the existing activities and strategies to deter- mine the best possible action to implement their goals.
A Governance Strategy is essential to the conservation of protected areas because it ensures that the objectives set will be fulfilled. This strategy ensures that the interests of the government and other institutions and communities are integrated.143 The principles that should guide this strategy are inclusiveness, equitable opportunities, decision-making participation, transparency, account- ability and performance. The institutions that should be involved include government-managed, co-managed, private, charitable and community-based structures.144
A good example of how the Governance Strategy is being implemented in New Zealand is related to biosecurity. The Biosecurity Council coordinates the Strategy’s development while a development team manages the process in partnership with the relevant stakeholders. Also, the Terrestrial and Freshwater Biodiversity Information System (TFBIS) programme helps managers achieve their goals by providing information about biodiversity in the country.145
Ecosystems are generally a unit that must be protected and preserved in an integral manner. Many protected areas are physically established along inter- national borders, and in that case two or more States should manage them jointly. However, each country’s interests will be different and an approach to reconcile them must be taken into account. In order to do so, the states should standardise their actions and consolidate their management criteria. An effective way to achieve this is by involving NGOs to catalyse the cooperation among countries and to provide the necessary information.146
As an example of this cooperation, we can take a look at New Zealand, which is part of the Convention for the Protection of the Natural Resources and Environment of the South Pacific Region (SPREP), whose objective is the protection, management and development of the marine and coastal environments of the South Pacific Region. With this treaty, New Zealand is bound to cooperate in regional issues, for example scientific cooperation, environmental impact assessment and protected areas.147 Guatemala is part of the Mesoamerican Biological Corridor Project that is being developed in the region of Central America and includes the seven countries of the region plus five southern states of Mexico. The objective of this project is to conserve biological and ecosystem diversity in the region, while fostering sustainable social and economic development.148
Privately owned protected areas play a major role in biodiversity conservation. However, there is an inconsistency in owners’ attitudes toward enduring this challenge. It is up to local government authorities to understand owners’ positions
and to encourage them to continue with their efforts.149 Governments should introduce legislation that will promote their participation. These incentives may be implemented in the form of tax reductions either to landowners who pledge their lands as reserves or for donors to environmentalist NGOs.150
In New Zealand, a network of agencies – the QEII National Trust, the Nature Heritage Fund, and Nga Whenua Rahui – has consistently supported landowners in protecting their lands. The activities of these agencies are broadly funded by the NZBS implementation package, and the proceeds are used to purchase further properties, monitor existing covenants and create new projects.151
With the creation of the Guatemalan Network of Private Reserves,152 Guatemala has recognised that private protected areas are one of its best bets to protect biodiversity. However, this acknowledgement is contradictory to the tax policies taken, where it eliminated any and all fiscal incentives for the conservation of natural heritage of Guatemala.153
The establishment and management of protected areas should involve not only the government of the State where they are located, but also all the civil participants that are affected or benefit from them. Therefore, local commu- nities, private landowners, NGOs and government agencies must form a partnership and be involved in planning and creating the most effective strategy possible.154 It is important to involve society as a whole in the promotion of protected areas, because this will provide many benefits such as education and healthy recreation, watershed protection, biodiversity conservation and income from tourism.155 Furthermore, the value of indigenous and traditional know- ledge should be recognised and understood to appropriately protect natural values.156 The issues that should be addressed in order to involve the whole of society are the internal management of the sites; human use and influence on protected areas; the biodiversity components of the area; and the financial need of local residents.157
One of the goals of the NZBS is to “actively protect iwi and hapu inter- ests in indigenous biodiversity, and build and strengthen partnerships between
government agencies and iwi and hapu in conserving and sustainably using indigenous biodiversity”.158 There are many activities that have been carried out in order to achieve this goal. For example, the Matauranga Kura Taiao fund, established in 2001 through the New Zealand Biodiversity Strategy, offers hapu and iwi initiatives to retain and promote traditional maori knowledge and its use of biodiversity management.159
One effective technique to strengthen a protected area is by zoning within and outside the reserve.160 If an ecosystem is fragmented, the species within it will be subdivided, diminishing their ability to adapt to changing situations. There- fore, an overall plan that includes all biogeographical regions is needed. Its main objective should be to fill gaps and link all protected areas to create a national system.161 The management of protected areas and the land adjacent to them must be planned in unison, adjusting human activities to the requirements of the habitats. It is important to understand that the establishment of buffer zones generally fails, because these areas are set up in private lands, where managers do not have authority to impose a specific conduct.162
The Department of Conservation entrusted iwi with the management of Motatau. In order to reduce predator populations in the forest, a sizeable buffer zone began to be developed in 1997. This zone is established on privately owned land. Training programmes that enable local people to be regularly involved complement this intensive pest control operation.163
Apart from the ecological benefits they may provide, protected areas contribute to poverty alleviation. This is because many of those areas are set in locations outside of human development. Therefore, local communities have created sustainable means for managing the resources and distributing their benefits.164 If managed correctly, then, protected areas can make an important contribution to human welfare.165 This contribution is provided in the form of employment
through the sustainable use of natural resources; i.e. ecotourism, sustainable fisheries, water resource management.166
Most indigenous people live in the world’s biodiversity regions. However, their knowledge and customary roles have been largely disregarded and undervalued, creating great disadvantages for them. One of the major effects is that they have been expelled from their territories and their cultural identity has been undermined. In most of the cases, indigenous people and local communities are the only interest groups that have borne the price of creating protected areas, and have seen little or no benefits from them. It is important to take urgent action to re-evaluate the policies that affect these groups and to acknowledge the contributions that their traditions might make to the environment.167
New Zealand has provided local communities with the power to create regional natural policies that integrate their concerns with the environment’s needs. This power is exercised with the right to veto decisions that affect national and international interests. With this action, New Zealand has enabled local communities to sustainably manage their natural resources. It also prevents these communities from making decisions that may affect other communities, by making them responsible for their actions.168
In Guatemala, a farmer-led movement that originated among Kaqchikel Mayas of Guatemala created recognition and legitimisation for farmers in the area. These farmers organised themselves to experiment with simple agricultural techniques in their own land. The experiment was proved to raise production in their crops through a combination of social, economic, and environmental benefits. With NGO support, a cooperative has been formed in order to dis- seminate these techniques.169
Each country should create restoration techniques in order to restore fragmented or disturbed ecosystems. This obligation is expressed in section (f ) of article 8 of the CBD:170
Each contracting Party shall, as far as possible and as appropriate: [...] (f ) rehabilitate and restore degraded ecosystems and promote the recovery of threatened species, inter alia, through the development and implementation of plans or other management strategies.
In order to do so they should implement techniques to re-vegetate watersheds, promote hunting and fishing outside protected areas, or to establish woodlots.171 New Zealand had a very ambitious restoration project in Campbell Island, in
the sub-Antarctic Southern Ocean. The objective of this project was to eradicate all of the introduced Norway rats from the island, in order to create a predator- free sanctuary for native species.172
6. CONCLUsION
The creation and management of protected areas is very important for global order, not only because such areas provide the natural world with an important service of conserving biodiversity, but also because they help to create economic contributions for the people that live near to them. It is important to create a framework that helps guide their establishment and management, which should be based on the conventions set out by the international community. However, since the scope of protected areas is broad, the law will always be incredibly detailed. Therefore, the framework law should be complemented by a strategy plan that sets goals for the community as a whole and that have been adapted to the interests and needs of the place where they are implemented.Both New Zealand and Guatemala have issued the corresponding legislation and strategy plans that deal with protected areas. However, due to the special circumstances of each country, the actual results in their implementation vary greatly. New Zealand has a “green, clean” image in the international community, and has attempted to maintain this image. However, it has not been one hundred per cent successful, as through time it has seen a decline in the environment. It is important to note that this image that New Zealand portrays originates from the identification its population has with the environment; they have based their values and lifestyles around it. Protected areas in New Zealand serve as an example to follow in the rest of the world, because they have been created with local interests in mind.
Guatemala presents a different image. Although its governments have tried to comply with all international requirements, it faces some problems that have set back its efforts. Among many things, it lacks sufficient funding to implement all the ideals that have been created. Furthermore, there is an inconsistency in the policies that each of the different political groups that enter into power have tried to implement. For Guatemala to be able to maintain healthy protected areas, it should review all of its environmental laws in order to incorporate the needs of its population, and in particular, the needs of the people that suffer the most with decisions that are taken.
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