New Zealand Yearbook of International Law
Corporations respond to the regulatory drivers instituted by government and to a lesser extent the private initiatives emanating from non-governmental organisations (NGOs). The adversarial model, which has hitherto characterised corporate-NGO relationships, is giving ground to the partnership concept. These actors engage to satisfy mutual objectives such as influencing the development of international public policy and the evolution of associated legal regimes. This paper presents a case study of the Energy and Biodiversity Initiative within a regulatory context involving the conservation of biological diversity, managing protected areas and conducting environmental impact assessments. Four firms and five NGOs formulated guidelines pursuant to which oil and gas firms could integrate biodiversity considerations into development projects located within or adjacent to protected areas. The partnership updated environmental management systems with biodiversity information and best commercial practice. This effort influenced intergovernmental deliberations at the recent Fifth World Parks Congress in South Africa and encouraged further resort by governments, firms, civil society and indigenous communities to partnerships as appropriate mechanisms for implementation. The influence exerted by firms and NGOs in the application and revision of the protected area management system of the World Conservation Union illustrates the constructive feedback loops operating between the public and private spheres within the international lawmaking process. The EBI offers additional lessons for prospective corporate-NGO partnerships, the potential for NGOs to informally regulate firms within such an arrangement, the degree to which dialogue and trust can be established on controversial issues and as a possible model for the future governance of protected areas.
With these objectives in mind, Part One outlines the principal regulatory drivers and private expectations that influence commercial behaviour with respect to conserving biological diversity (biodiversity), protected area management and environmental impact assessment. Part Two defines the partnership concept and reviews contemporary developments at the international level. The case-study evaluated in Part Three involves collaboration between five conservation NGOs and four energy firms for the purposes of developing guidelines which integrate biodiversity considerations into oil and gas development projects located within or adjacent to environmentally-sensitive or protected areas. Finally, Part Four identifies lessons for prospective partnerships between firms, NGOs and other actors, considers the potential for this arrangement to constitute an effective regulatory device and assesses the impact of corporate-NGO partnerships upon the development of international law.
Part One conveniently organises into ‘public’ and ‘private’ the formal legal requirements imposed upon corporations by government and the informal expectations originating from non-State sources. As a private voluntary initiative, the corporate-NGO partnership presented in the case-study must be first situated within the ‘regulatory’ influences with respect to conserving biodiversity, managing protected areas and conducting environmental impact assessments and moreover appreciated in light of the corporate role to date within each of these fields.
One object and purpose of the Convention on Biological Diversity (CBD) is conserving biodiversity.1 Biodiversity is the variability of organisms and the ecological complexes of which they are a part including diversity within and between species and ecosystems.2 The most important governmental activity for implementing the CBD is protected area management.3 Protected areas are defined under that Convention as geographically designated areas regulated and managed to achieve specific conservation objectives.4 In addition to establishing a protected area network for conserving biodiversity in situ, governments are expected to develop guidelines for their selection and management, to regulate biological resources inside and outside protected areas and to promote environmentally sound and sustainable economic development within adjacent territory.5 By this route it is hoped that biodiversity loss can be significantly reduced by 2010.6 Biodiversity loss is attributable to unsustainable human development, habitat destruction, invasion by alien species, over-exploitation, pollution, climate change and industrial agriculture.7 It is characterised as New Zealand’s ‘most pervasive environmental issue’.8 Governments are therefore expected to develop an appropriate national biodiversity strategy and action plan.9 National decision-making procedures within such a framework envisages inter alia co-operation with the private sector.10
Organised business groups and individual firms participated in intergovernmental deliberations both prior to the adoption of the CBD and subsequently. In particular, the negotiating position of the US government was receptive to their concerns.11 This was evident for those firms interested in the relationship between intellectual property rights to genetic resources arising under the CBD on the one hand and existing international economic law disciplines on the other.12 It was argued for example that the CBD was compatible with the Agreement on Trade-Related Aspects of Intellectual Property Rights but in the event of inconsistency the latter prevailed.13 More recently, corporations and other non-State actors have enjoyed a role interpreting specific CBD provisions and developing other legal instruments under its auspices. For example, the private sector and indigenous communities participated on Expert Panels, made submissions to national delegations and drafted guidelines concerning access to genetic resources and benefit sharing which were subsequently adopted intergovernmentally.14 Until clarified by national law, commercial contracts and partnership agreements between pharmaceutical firms and research institutes were at the forefront of giving practical effect to the normative expectation of Article 1 of the Convention that the benefits of using genetic resources would be shared fairly and equitably.15
Nonetheless, corporations have been criticised for insufficiently engaging with the CBD process.16 Of the one thousand participants at the Second Conference of the Parties (COP), around 140 were NGOs and only twenty represented business. Trade associations have warned firms that refraining from participation runs the risk of exclusion, forfeiting opportunities to object and having commercial perspectives ignored. As one feature of corporate strategy, companies have been encouraged to identify appropriate links with the Convention, to initiate biodiversity dialogues with government and to form partnerships with conservation organisations.17 With respect to the last-mentioned, NGOs exert relatively greater influence over the biodiversity agenda including generating national legal provisions which directly affect commercial opportunities or risk mitigation. This is in addition to their prominent role in the implementation of national environmental policy.18 For example, within the United Kingdom, ‘if industry cannot be persuaded to take biodiversity seriously, government should take action to require them to do so’ including the imposition of more stringent statutory duties.19 The Convention itself provides limited channels for private sector participation.20 However, firms have acquired a more prominent position within subsequent intergovernmental decision-making.21 The principal entry points for sharing commercial expertise and monitoring policy developments include participation as observers at COP meetings through cross-sectoral business groups or trade associations in addition to direct discussions with government by individual firms.
The second regulatory driver is the 21 legally binding agreements pursuant to which governments nominate part of their territory for identification as a protected area. Most prominently, the Convention Concerning the Protection of the World Cultural and Natural Heritage (the Heritage Convention) includes natural sites that constitute the habitat of threatened species and are of outstanding universal value from a scientific, conservation or aesthetic perspective.22 Although natural heritage may contain the most important habitats for conserving biodiversity, only those sites containing the most biologically diverse fauna and flora are likely to qualify for World Heritage listing.23 To similar effect, the Convention on Wetlands of International Importance especially as Waterfowl Habitat (the Ramsar Convention) enables governments to include wetlands of international significance under the List of Wetlands of International Importance.24 Wetlands qualify for listing where they support plant, animal or fish populations that are important for maintaining biodiversity.25 The comparable European framework enables governments to designate special conservation areas that promote biodiversity but to derogate therefrom for any health, safety, socio-economic or other overriding public interest reason.26 Protected areas are typically established by national legislation that ranges from highly prescriptive to discretionary and employ some 140 different titles including ‘national park’ or ‘nature reserve’.
The earth's 102,000 protected areas cover approximately 12.5 percent of the total land surface but only one percent of the marine environment. Since the protected area network has doubled since 1992, the natural resource extraction industry is confronted by prohibited or severely curtailed access and more stringent environmental conditions for development projects within or adjacent to areas of known biodiversity value. Government approval may be contingent upon utilising reliable accident prevention equipment, conducting periodic risk reassessments and liaising with local communities.27 The industry is also particularly susceptible to disproportionately large losses of shareholder value where mineral resource access restrictions are increased.28 Although industrial activity is generally considered incompatible with the values of World Heritage status, with mining for example prompting an ‘in danger’ listing, minimising environmental impacts where such activity is permissible increases operational costs.
The third regulatory driver for industry is the requirement to conduct an environmental impact assessment (EIA).29 Although EIAs may be managed by government, national law can place primary responsibility for their completion upon industry. National EIA regulations are accordingly transposed into business management systems.30 EIAs are intended to identify the beneficial impacts of economic development activity and evaluate alternatives that mitigate any detrimental environmental impacts.31 State Parties to the CBD are expected to require an EIA for projects likely to have significant adverse biodiversity effects and where appropriate enable public participation.32 External perspectives acquired during the early ‘scoping’ phase are believed to minimise potential bias. EIAs are mandatory for development projects located within, in the vicinity of or having a direct influence upon legally protected areas and particular groups including minorities and indigenous communities must have their interests taken into account so that acceptable measures of mitigation or compensation are identified.33 This approach has been endorsed for conducting EIAs under the Ramsar Convention.34
Although EIAs are a potentially powerful mechanism for implementing the CBD, as currently practiced they reflect lost opportunities. Typically conducted after project formulation and before government permission, the benefits, environmental impacts and alternatives throughout the project’s lifecycle are not evaluated in conjunction with all interested parties.35 Further deficiencies have been observed within the European context.36 Indeed, several governments have failed to fully implement the relevant Directive.37 Public participation also varies with no standard practice discernable across all States.38 Nonetheless, legislative reform was considered unnecessary since national implementation of the Århus Convention was expected to herald further improvements.39
NGOs seek to influence commercial behaviour indirectly (by mobilising consumer opinion or lobbying government for legislation) and directly. They are also free to formulate lists of environmentally sensitive areas in accordance with their own conservation priorities but which may lack legally protected status.40 Most prominently, the World Conservation Union (IUCN) has been singularly instrumental in preparing a definitive list of protected areas since the 1950’s.41 A hybrid intergovernmental organisation and NGO, it is the world’s largest conservation organisation composed of some 79 governments, 112 government agencies, 738 affiliated NGOs and 10,000 experts from 181 States. The periodically-compiled United Nations (UN) List of Protected Areas is derived from classifications provided by the IUCN’s World Commission on Protected Areas (WCPA).42 Since 1997 this List has been jointly prepared with the World Conservation Monitoring Center (WCMC) of the UN Environmental Programme.43 A protected area is defined as a land or maritime area dedicated to protecting or maintaining biodiversity and managed through legal or other effective means.44 Governments certify that nominated areas satisfy this definition and assign them to one of six categories: strict nature reserve (I), national park (II), natural monument (III), habitat/species management area (IV), protected sea or landscape (V) and managed resource protection area (VI).45 Significantly, the IUCN protected area management system categorises protected areas according to management objective rather than conservation effectiveness or relative biodiversity value. The WCPA may adjudicate where assignments are disputed but in most cases the government's selection is accepted.
The conservation community has become increasingly concerned by the detrimental impacts of commercial activity upon protected areas. The World Heritage Committee, responsible for overseeing implementation of the Heritage Convention, has been discussing the issue with the mining sector with a view to identifying plausible solutions.46 NGOs consider that protected areas should be rendered permanently immune from mineral resource extraction. Observing the desirability of strong legal controls, the IUCN requested its government members to prohibit mining within protected area categories I to IV. The Amman Recommendation also proposed that mining in Categories V and VI be permitted only where compatible with protected area objectives, that proposed alterations to protected area boundaries or classifications be subject to procedures at least as rigorous as those required when originally establishing that area and finally that stricter conditions apply to mining in locations adjacent to protected areas.47
Although the Amman recommendation has been enshrined within the national law of at least three States, many governments do not wish to foreclose land use options by committing to immutable protected area classifications. The deforestation associated with commercial activity engages other intersecting obligations with respect to carbon sequestration, threatened or vulnerable species, illegal trade in flora and fauna and desertification.48 Governments may give low priority to conservation objectives, afford preferential treatment to local firms or fail to resolve the territorial claims of indigenous communities. The IUCN category system is also inconsistently interpreted and haphazardly applied by governments with sites selected, categories altered and boundaries adjusted upon sovereign discretion and individual merit. States enjoy the right to exploit their natural resources pursuant to their own economic development and environmental policies.49 As a consequence the protected area network is not ‘biogeographically balanced’ with deserts for example well represented and other ecosystems underrepresented.50 Protected areas which lose their biodiversity value on account of poor management or environmental degradation (‘paper parks’) may not merit their original designation. A flexible system of ‘rotating parks’ would envisage new areas being protected, conditions temporarily lifted for others and degraded parks deregulated. An alternative model envisages core zones dedicated to scientific research surrounded by multi-use buffer zones managed for local economic benefit.51
The extractive industry for its part is concerned that exploration permits may not provide reasonable assurances of development rights. Energy firms also point to the time-bounded nature of protected area management: determinations on biodiversity value are made in light of the available scientific knowledge at the time. Consequently, categorisation need not reflect site quality or constitute the ‘best fit’ for biodiversity conservation. On the other hand, corporations enjoy protection from the expropriation of private property.52 The amount of compensation payable by government is unaffected by the public purpose of implementing an environmental measure ‘no matter how laudable and beneficial to society’.53 Governments may also be responding to local socio-political pressures rather than legitimate environmental concerns.54 Hence, nominating territory for World Heritage listing does not per se justify expropriatory government action.55
Given this legal milieu, NGOs have proposed that ‘[n]othing would do more to improve the climate of trust and co-operation with conservation stakeholders than a firm declaration from industry leaders that they will adopt a policy of respecting Category I - IV protected areas in future’.56 Admittedly, NGO opinion of what constitutes a ‘no go’ area varies with several arguing that World Heritage Sites or IUCN protected area categories 1 to IV represents too small a commitment at just four percent of the earth’s surface. Firms are reluctant to voluntarily adopt a moratorium.57 For example, the Mining, Minerals and Sustainable Development (MMSD) project concluded that ‘most responsible mining companies agree, in principle, that there are some areas where mining development is inconsistent with the protection of ecological, cultural, and landscape values’.58 However, in industry’s view, narrow conservation objectives devote insufficient attention to the economic development aspirations of States. The positive contributions made by industry include alleviating poverty, taxation revenue, employment opportunities and satisfying current energy dependency. The sustainable resource utilisation that satisfies the needs of both present and future generations is a common feature of the regulatory regimes outlined above.59 However, the ‘integrated’ conservation and development proposals made by firms are perceived by NGOs to be attempts at weakening protected area legislation.
Many firms are yet to be convinced that there are unequivocal business advantages in making an explicit ‘no go’ commitment. Other commercial activities located within protected areas — forestry, agriculture and fishing — can be equally destructive of biodiversity. In the absence of uniformity by all economic sectors, the mining industry resists being singled out to make a commitment that may be subsequently revoked. Novel technological developments could also obviate any adverse environmental effects, thereby rendering such a commitment superfluous. Best commercial practice seeks to minimise the environmental ‘footprint’ left by industry.60 It includes careful site selection, scheduling operations during least sensitive periods, minimising vegetation clearance, identifying alternative access routes, using pre-existing infrastructure, employing machinery selectively, routing pipelines aboveground and proper waste disposal.61 To return sites to their original condition the decommissioning phase anticipates habitat restoration in consultation with government and local communities.62 ‘Offshore’ policies employ helicopter or river transport, monorails and specially designed vehicles to obviate road construction and limit access.
To initiate constructive dialogue between NGOs and energy firms, the International Council on Mining and Metals (ICMM) was established at the conclusion of the MMSD project. Nonetheless, a joint ICMM-IUCN workshop demonstrated the gulf continuing to separate conservation and mining interests.63 The principle of inclusiveness identified by the workshop warranted consultation between all interested parties and trust-building as the prerequisite for progress. A consensus was secured such that nominating future World Heritage sites should be accompanied by transparent and effective communication procedures whereby tentative lists are made public and competing socio-economic and environmental considerations are considered. However, the difference of opinion over mining activity within existing World Heritage sites remained. Although industry was willing to respect legally designated protected areas and not put their characteristics at risk, it argued that the option of re-evaluating existing classifications or boundaries should not be foreclosed. Conservation NGOs by contrast seek to permanently preserve protected areas for their intergenerational value. However, the workshop observed that protected areas bridging territorial borders could improve inter-State relations (‘peace parks’) and that pre-existing partnership arrangements between protected area authorities typically involved sharing information and experiences.64 The possibility was therefore raised whether the partnership model offered similar opportunities for improving relationships between energy corporations and NGOs.
Partnerships are voluntary cross-sectoral collaborations in which organisations share risks and benefits for the purposes of fulfilling obligations or undertaking specific tasks.65 They typically arise out of operational requirements for information, commence as informal contacts and mature into formal agreements.66 Partners are distinguishable from ‘stakeholders’ with lesser participatory rights. Stakeholders are individuals or institutions that affect or are affected by an activity and include local communities, advocacy groups, development agencies, governments, customers, shareholders, creditors, management, employees and suppliers.67 For corporations to address stakeholder concerns is of particular interest to international financial institutions.68 However, the stakeholder concept implies an equivalency of interests, rights or legitimacy between different actors that may not be well founded. Hence a further distinction is drawn between consultation and participation with the latter contemplating processes whereby stakeholders share control over decision-making and resource allocation.69
‘Public-private’ or ‘tri-sector’ partnerships involving NGOs, firms and governments are presently a prominent feature at the international level. Governments through partnership can build capacity, fulfil political mandates, improve public service delivery and increase the development impacts of private investment.70 The UN General Assembly has also called for further opportunities for the private sector and civil society so that they may contribute to the goals and programmes of the Organisation.71 The mining industry has already co-operated with governments to maximise emergency preparedness and response strategies in the event of chemical accidents.72 All interested parties are expected to participate in developing, implementing and planning national forest policies as a precursor to a possible treaty on the topic.73 Attention has therefore been devoted to defining the terms and conditions upon which firms can partner the UN or its Agencies.74 The principles governing such arrangements include common purpose, transparency, fairness, mutual respect, benefit sharing, accountability, respect for UN modalities, balanced representation, independence and neutrality.75 The viability of partnerships is also dependent upon UN capacity building.76 Other processes have identified the prerequisites for successful voluntary initiatives between governments and the ‘major groups’ of firms and NGOs.77 For example, partnerships are perceived as instrumental to achieving sustainable development.78 Hence non-State actors are included in formulating the development agenda.79 More specifically, ‘Type 2’ agreements between non-State actors that integrate biodiversity considerations into broader socio-economic activity can complement intergovernmentally agreed obligations.80 Although intergovernmental organisations have a crucial role for initiating partnerships, dependency upon them decreases once participants have identified respective roles and responsibilities.81
The partnership concept has encroached into the regulatory regimes outlined in Part One above. For example, partnerships to conserve and sustainably utilise biodiversity within World Heritage sites have been proposed.82 The International Petroleum Industry Environmental Conservation Association (IPIECA) has also collaborated with UNEP’s WCMC to provide a satellite-based mapping service for identifying overlaps between conservation areas and the location of existing or proposed mining sites. The governance model espoused by the CBD also includes transparent participation, decentralised management and reference to the principles of equity and subsidiarity.83 Accordingly, stakeholders including indigenous communities and companies are expected to participate in managing biodiversity.84 The World Ministerial Roundtable on Biological Diversity of the Fourth COP concluded that private firms should work in partnership with government with a view to implementing CBD objectives.85 Several participants observed that orthodox command and control regulatory styles would accordingly require appropriate modification.86 Although partnerships for strategically aligning private sector goals with biodiversity objectives can build governmental capacity, excessive regulatory intervention can ‘crowd out’ private voluntary initiatives.87 Nonetheless, State Parties to the CBD have consistently emphasized the need to involve all interested parties in protected area management.88 For example, the UK considers that the CBD can only realistically be delivered through partnerships between all stakeholders including the corporate sector.89 New Zealand supports that view provided that partnerships are grounded upon trust, community inclusion, mutually assured outcomes and ownership.90 Accordingly, the Ad Hoc Technical Expert Group on Protected Areas was mandated to identify mechanisms for enhancing stakeholder participation.91 The CBD Secretariat was similarly requested to ‘develop relationships with other processes’.92 A memorandum of cooperation was subsequently concluded between it and the IUCN.93 Finally, governments, NGOs and corporations have been called upon to establish ‘lasting partnerships’ which ensure integrated wetland management.94 Stakeholder inclusion in this context extends to identifying wetlands suitable for listing status.95
Partnerships are not altogether free from difficulty. For example, the UN Development Programme (UNDP) sought to establish a Global Sustainable Development Facility ‘to find new and additional ways to promote sustainable human development in partnership with the global corporate sector’.96 However, sustained NGO criticism brought about its eventual demise.97 Several but not all NGOs are receptive to the partnership concept for the purposes of protected area management provided corporate legal responsibility is also enhanced.98 In this respect the UN Secretary-General Annan has also challenged business to ‘embrace and enact’ a series of universal principles within the commercial sphere including ‘initiatives to promote greater environmental responsibility’.99 Some members of industry are willing to engage experimentally with NGOs. Industry associations engage stakeholders to share experiences, promote best commercial practice, demonstrate responsible behaviour, enable smooth project execution in environmentally sensitive areas and deter NGO lobbying or litigation that denies resource access to its membership.100 A case study will further illustrate what the partnership model offers by way of addressing the public and private regulatory influences described in Part One.
The EBI was officially formed in 2001 although the first exploratory meeting occurred one year earlier. The Centre for Environmental Leadership in Business (CELB), established by Conservation International and Ford to support biodiversity initiatives within various economic sectors, appointed itself as partnership broker. CELB was therefore responsible for constructing the partnership and ensuring its effective functioning.101 Conservation International first approached ‘progressive players’ within the energy industry who had acknowledged biodiversity’s importance and expressed an interest in committing to conservation objectives within commercial operations. For example, Shell’s Group-wide Biodiversity Standard, developed in conjunction with the World Wide Fund for Nature and IUCN, commits the firm ‘to respect the basic concept of protected areas and to seek partnerships to enable the Group to make a positive contribution towards the conservation of global biodiversity’.102 The other energy firms participating in the EBI — Enron, BP, ChevronTexaco and StatOil — ‘were the first companies at the table’ to respond positively to Conservation International’s offer.
NGOs were selected for their prior field experience with industry and commitment to improving the energy sector’s environmental performance.103 The IUCN for example proactively engages corporations in recognition of their influence over governmental policy.104 It collaborated with the International Association of Oil and Gas Producers (OGP) to formulate environmental protection guidelines and the World Business Council for Sustainable Development (WBCSD) in preparation for impending intergovernmental conferences.105 The distinctive attributes of the NGO partners to the EBI are readily apparent. Conservation International engages with firms on environmental issues where industry has an interest. Flora and Fauna International is the world’s oldest conservation organisation and co-operates with industry on biodiversity issues through its Global Business Partnership programme. The IUCN as noted above is the principal forum for the international conservation community composed of governments and NGOs and possessing well-established scientific networks. The Nature Conservancy is the largest environmental NGO in the United States and responsible for protecting some eighty million acres worldwide since 1951. Finally, the Smithsonian Institution applies its well-recognised scientific expertise through its Monitoring and Assessment of Biodiversity programme.
Restricting participation was intended to achieve a ‘balanced and limited’ representation of interests which was manageable, produced realizable outputs and possessed greater prospects for success given available time and resources.106 Each organisation contributed two personnel and consultants were subsequently recruited at the drafting stage. Although it was difficult for all individuals to balance their EBI commitment against their primary work obligations, the senior executive officers and environmental specialists appointed by firms were paired with bio-scientists having more wide-ranging responsibilities and NGO external affairs managers. This meant “both the companies and NGOs were represented from their ‘corporate centres’ and therefore didn’t bring enough on-the-ground reality/experience into the process”.107 The EBI partners are self-evidently market-leading multinationals and prominent NGOs headquartered within developed States. Their union is not entirely novel since the EBI amalgamates pre-established relationships. For example, Shell conducted a co-operative venture with the Smithsonian Institution during 1996 for an environmentally sensitive development project within Peru (the Camisea project) that is presently operating in Gabon.108 Moreover, the depiction of five corporations with five conservation organisations is not entirely accurate: IUCN includes government members, the Norwegian government is the majority shareholder of StatOil and the Smithsonian is a para-Statal organisation.
An initial challenge was therefore acquiring the views of Southern-based firms and NGOs, governments, local community or indigenous groups and international financial institutions. CELB resorted to IUCN’s membership, consultation ‘where appropriate’ with organisations selected by the EBI partners and conducting questionnaires or interviews. Other information sources included literature reviews, surveys, case studies, international conventions and other business-NGO initiatives. Opportunities for controlled dialogue with other senior corporate managers arose at industry fora, biodiversity workshops or health and safety conferences.109 Workshops were also arranged with selected investors, governments, development banks and export credit agencies. While there was ‘some exchange’ with government — including public presentations at the Sixth Meeting of the COP to the CBD — this was ‘not enough’.110 As much as the corporate partners were reluctant to approach industry with an imperfect product, so too was little attempt made to engage the broader NGO community. Indeed, the ‘NGO partners could have been more proactive in involving NGO partners’.111 Although other organisations ‘could have added valuable perspectives’, the EBI partners ‘decided to forge on without additional members after some initial effort to screen for interest/availability among additional groups. There was a general feeling, especially once trust started to build, that more members would have hindered progress in generating products’.112
The EBI ‘seeks to be a positive force for biodiversity conservation by bringing together leading energy companies and conservation organisations to share experiences and build on intellectual capital to create value and influence key audiences’.113 The mutual objectives were to improve business-NGO relationships, identify and promote best commercial practice and formulate operational guidelines for integrating biodiversity considerations into upstream oil and gas operations. The energy firms were additionally motivated by a lack of clarity in available guidance for industry and the difficulties this posed for externally communicating biodiversity issues. For example, an unsuccessful shareholder resolution proposed during BP’s 2002 Annual General Meeting requested clarification on risk management techniques applicable to mining within protected areas and prompted the Board to commit to greater information disclosure. Firms therefore sought to ‘establish industry-wide norms or standards for managing biodiversity’ and to obtain a ‘better understanding of links between biodiversity issues and oil/gas sector operations’.114
The partners adopted the following work programme:
site selection (IUCN and Shell International): to identify the legal and biodiversity-related criteria which industry, government and conservation organisations refer to when undertaking activity within ecologically sensitive environments;
the business case (Conservation International, The Nature Conservancy and Enron): articulating a persuasive commercial rationale for integrating biodiversity conservation into oil and gas operations;
biodiversity conservation practices (Smithsonian Institution and ChevronTexaco): transposing biodiversity conservation considerations into generic commercial health, safety and environmental (HSE) management systems to produce the best available technical and management practice; and
performance metrics (Fauna & Flora International and BP): to establish meaningful biodiversity indicators for measuring corporate performance.115
Enron’s departure from the EBI and its ultimate demise made the credibility of the business case working group ‘slightly problematic and unfair’.116 Rather than recruit another corporation, former Enron employees voluntarily provided a commercial perspective and the remaining four firms contributed additional financial resources. Although the loss of Enron changed the shape and form of the final EBI products, the overall objectives remained constant. Also noteworthy is that StatOil does not occupy a formal role notwithstanding that national oil companies are dominant industry participants. The EBI decided to omit consideration of indigenous rights, invasive aquatic species, tanker ballast water transfer and climate change on account of limited budgets, pressing timetables and the observation that parallel fora were addressing such matters.117 Interestingly, the decision not to address climate change was the ostensible reason why the World Wide Fund for Nature opted not to join the EBI. Nonetheless, one priority activity of the Initiative was to respond to one of its working papers.118 Inevitably, ‘the single biggest and most crucial area for us to get right and to get consensus on as a group was that of site selection’ with the Amman Recommendation at the ‘forefront of people's discussion’.119
Although pre-existing regulatory requirements and expectations were not important as an impetus for originally joining the EBI, they were as important as other considerations when formulating the final products.120 These included business guidelines, metrics, interim and final reports and discussion papers. In particular, international conventions ‘are a significant pressure driving the development of a strong business case for biodiversity conservation’.121 In addition to the country-specific obligations of national law, the most important regulatory expectations were the CBD, the Heritage and Ramsar Conventions, the Amman Resolution and European EIA directives. The EBI therefore attempted to align itself with CBD’s work programme by transposing the EIA guidelines developed under that Convention into guidelines for ready incorporation at the level of individual firms. To similar effect the CBD’s ecosystem approach was interpreted such that biodiversity conservation was integrated into each decision-making stage of the EIA process.122 Governments had also foreshadowed the development of national indicators for monitoring biodiversity.123 With that objective in mind but tailored for commercial use, the EBI’s methodology accommodates the practical needs of corporate staff as well as the expectations of HSE professionals.124
The EBI products are intended primarily for use by the commercial energy sector.125 They also ‘offer guidelines on what should be expected from companies’ operations and what policy standards should be’.126 The EBI products may be usefully applied during permit negotiations with government, when making commitments with local communities, for communicating corporate social responsibility to consumers and during collaborative efforts with international secretariats. In addition to making their own internal operating structures more effective, the energy partners will attempt to influence industry opinion as much as the NGO partners anticipate employing the EBI products in future discussions with other firms. By promoting the ‘best available guidance’ for industry, the EBI seeks additional commitments from other companies who are prepared to integrate the EBI products into commercial operations. In effect the EBI pools the environmental information of NGOs with the commercial practices of market leaders to enable more informed commercial decision-making throughout the industry.127 Hence, the EBI products are orientated towards updating existing management systems with biodiversity conservation and enabling regulatory compliance.128 However, in deference to commercial specialisation, the EBI permits firms to pursue slightly different trajectories by avoiding overly prescriptive demands. For example, the EBI expects that individual firms will further modify environmental management systems.129 Hence only a ‘menu’ of sound biodiversity conservation practices is presented.130
Generally speaking the EBI partners expressed the opinion that the objectives outlined above were partly realised. Three difficulties encountered during the process and identified as reasons for dissatisfaction were under-estimating financial costs, a lack of time and impasse on key issues. Attempts made to resolve these concerns included a commercial stipend to cover NGO expenses, satisfying resource needs collectively, extending deadlines and encouraging discussion. In terms of equitably sharing the workload, not surprisingly ‘some organisations/individuals worked a lot harder and put in much more effort than others’.131 Recruiting a consultant improved product quality ‘exponentially’ and an editor proved ‘very valuable’.132 To maintain member commitment and enthusiasm over the two and a half year period, continuous informal communication occurred in addition to nine formally convened meetings. That said, the first two sessions were ‘largely posturing with little accomplished’.133 It was therefore imperative to have ‘public milestones to push beyond dialogue to delivery’.134 Since a greater number of consultative workshops with selected government departments and other stakeholders were desirable, ‘the products haven’t pushed the boundaries around the issues as far as they might have been’.135 Nonetheless, the EBI was a ‘generally positive experience’ and provided expectations are realistic it is ‘possibly a model for joint collaboration’.136
Corporate-NGO partnerships are characterised by flexible experimentalism within closed self-contained environments. Their success is dependent upon identifying and satisfying mutual and partner-specific interests.137 The former includes impact maximisation (exploiting synergies and functional complementarities), avoiding duplication of effort (optimising core competencies, sharing resources and pooling expertise), externalising the costs of information acquisition and improving the knowledge base.138 For the EBI, NGOs and firms jointly contributed biodiversity information, environmental management systems and project management or facilitation skills whereas firms exclusively provided information concerning best commercial practices. Organisational capacity building includes enhanced advocacy skills, technology transfer and staff secondment in host organisations such that experienced personnel become conservation or commercial champions within their home entity. Partnerships also establish links within existing networks, thereby furthering opportunities to influence the policy and practice of related organisations, and a reputation as a reliable partner improves the prospects of building constructive working relationships.
Partnerships also form the basis for informed interventions into governmental decision-making. Corporations and NGOs have a mutual interest in shaping public policy and State practice with respect to commercial operations or environmental protection. Their advocacy activities ‘set in motion’ processes which ripen into international conventions and cannot be ‘completely discounted’ when identifying the governmental intent required for the formation of customary international law.139 Non-State actors for example assisted in drafting the European Union’s Biodiversity Strategy and regularly observe meetings of the European Biodiversity Expert Committee.140 Multiple corporate-NGO initiatives involving slightly different configurations of actors and employing specially tailored partnership models will compete for governmental endorsement.141 For example, the EBI received an award from the International Chamber of Commerce and the UN Environmental Programme at the Johannesburg World Summit for Sustainable Development during 2002 as one of the top four global multi-stakeholder partnerships.142
From the perspective of individual firms, NGO partnerships can enhance operational performance (through innovative product design, technological development and product differentiation), secure operational stability for long-term investment (by fostering local community acceptance, deterring political opposition and dissuading civil disruption) and attract novel sources of financing including development assistance by reference to environmental performance.143 Since EIAs may require independent third party audit or credible scientific methodologies, partnerships can improve regulatory compliance by increasing the accuracy of impact prediction and refining risk management systems. Partnerships may also form the basis for regulatory ‘credits’ at the national level.144 NGO association legitimates the firm’s commercial activities and provides an assurance however accurate of environmental respectability. As the preferred partner of choice with host governments firms may acquire preferential access to natural resources, strengthen their bidding position during public procurement applications or more easily satisfy the environmental performance conditions of concession contracts. Since local (typically smaller) companies and those from developing States lack the ability to partner other organisations, preconditioning market entry with this attribute could squeeze out competition from less managerially-sophisticated firms.
An appreciation of the commercial environment enables NGOs to undertake more effective government lobbying, informed access to political debates and bolder bargaining with companies.145 The donor-recipient model of corporate philanthropy, which hitherto characterised business-NGO relationships, is giving ground to the mutual profitability of joint action.146 In addition to harnessing commercial influences to their own ends, NGOs will experience organic organisational growth, become more commercially orientated and enjoy a greater degree of professionalism. Within the collaborative arrangement of a partnership NGOs assist businesses on internal operational issues and provide environmental advice or services.147 However, mutating the NGO role from civil society activist to technical consultant is not unproblematic. Just as firms are accused of going beyond the profit-making mandate to the detriment of shareholders or creditors, so too must NGOs be prepared to engage in reputational risk management on account of peer or member criticism when ‘engaging with the enemy’.148 NGOs lend their assumed public legitimacy and environmental credibility to partnered firms, possibly losing touch with the constituents they purport to represent. Partnerships with firms headquartered within Northern consumer markets may compromise their ability to strategically intervene within Southern supply chains or production points.
Albeit equivocal, the benefits of participating were shared equally between all the EBI partners. Notably, inter-organisational benefits — building constructive relationships, understanding organisational behaviour and information exchange — exceeded self-interested ones such as reputational enhancement, improved regulatory compliance and capacity building. However, the EBI also has limitations in terms of what lessons it offers for prospective corporate-NGO partnerships. Oil and gas operations should properly be differentiated from mineral extraction per se inasmuch as different issues arise with respect to protected areas.149 The latter is noteworthy for its legacy of disputes with NGOs, frequently contentious development proposals involving control over national resources or operations within sensitive environments, large-scale fixed investment cost and financially lucrative projects. Reputational damage is an important consideration that substantially affects the performance of leading firms enjoying high brand value as well as prominent NGOs with high public profiles.
Although partnerships can be the catalyst for resolving stalemates, partners may agree to a conflict-free period such that differing perspectives are merely acknowledged without the need to achieve group consensus. The EBI report is accompanied by a disclaimer that the ‘views expressed herein do not necessarily represent the views of every EBI member’. Although all partners concur with the EBI’s final recommendations, ‘this does not guarantee universal agreement on all aspects’. Neither firms nor NGOs are homogenous and their organisational temperament differs. In the words of one partner:
Probably the largest philosophical difference was that for the energy companies, biodiversity is one of suite of risk management issues that need attention for any new development or ongoing operation, while for the NGOs at the table, it is their central issue and primary area of focus. The substantive issues, especially the question of operating in or near protected areas was resolved through much discussion, review of sequential draft documents and negotiation about what the various parties could live with.150
Conducting an initial self-assessment would indicate whether partnerships are appropriate for an organisation’s character, culture, values, risk perception, state of development and agenda. Although the private sector within New Zealand has been encouraged to take the lead in incorporating biodiversity considerations into commercial operations, business support for partnerships with community organisations is limited to the margins.151 The selection criteria for NGOs include their credibility, prior track record, knowledge, facilitation skills, particular vision, acceptability to political elites and degree of professionalism.152 Similar evaluation criteria for firms are yet to be identified. Moreover, partnership products will be sub-optimal if indispensable actors are omitted in the interests of ensuring manageability or particular issues are considered beyond the partnership remit.
NGO attempts to control commercial behaviour could conceivably ‘decentre’ the regulatory function from government. ‘Civil regulation’ is the process whereby NGOs establish standards of corporate behaviour through direct dialogue with management and firms voluntarily adopt and adhere to those expectations.153 Partnerships as a form of civil regulation are constructed around memorandums of understanding that establish the rules of engagement and define the conditions upon which dialogue occurs.154 From the outset the structure, operation and governance of the partnership are selected by its members in terms of shared and individual visions, joint work plans, decision-making principles, financial arrangements, grievance procedures, exit strategies, progress reporting channels and performance measurement systems.155 Adequate and timely information is a prerequisite for effective monitoring and sufficient detail is necessary to meaningfully assess corporate performance. As a privately initiated arrangement partnerships need not be subject to information disclosure requirements or freedom to access information. The EBI sought to address these transparency concerns through meetings, workshops, seminars and making selected documents publicly accessible through its website.156 Although there was ‘some sense of agendas being tipped’, generally speaking decision-making was transparent and reasonably fair, information disclosure adequate and information exchange relatively free.157
Relevant to its credibility as a viable regulatory alternative to command and control, the supervisory responsibilities of NGOs may be incompatible with the concept of partner equality. To position NGOs as surrogate regulators first requires empowering them.158 Attention must also be directed towards capacity building.159 However, the independence and autonomy of NGOs must not be assumed since even reputable NGOs have supported false corporate claims.160 Conflicts of interest or agenda were resolved within the EBI ‘in open dialogue and recognition of positions’ or ‘simply moved off the agenda’.161 CELB was partnership broker notwithstanding that its parent organisation, Conservation International, simultaneously acted as partner. On the whole, however, the EBI partners considered there to be equality in terms of participating in discussions and formulating the final products. That said, relative bargaining power will be an issue should NGOs seek to exercise authority and assert control. Several EBI partners were satisfied with the degree of mutual responsibility since ‘we all had to agree final products’.162 Moreover, ‘each organisation is very well-known in its own field and is in itself accountable either to its members or shareholders’.163 However, another was concerned that members could not be prevented from taking self-interested action outside the bounds of the partnership. Several partners were ‘developing biodiversity-related products without being open with the rest of the group and have been promoting their contribution to biodiversity, including the EBI, without mentioning other EBI members’.164
Nevertheless, it is anticipated that corporate-NGO relationships will improve as a result of the EBI. Each partner concluded that the Initiative was effective in building trust and improving decision-making transparency. The former was achieved after an initial period as a result of time, isolation and continuity of representation. Albeit that the latter is also ‘work in progress’, the EBI partners have increased their biodiversity-related knowledge and acquired an understanding of each other’s operational capacity. However, it is not clear that corporate behaviour will change since the EBI products merely codify the existing commercial practices of its members and are not aspirational in nature. In the view of one energy firm, use of the EBI products ‘will potentially produce incremental improvements in how we focus on biodiversity in some specific relevant areas above our already good practice’.165 Since one must be appropriately cautious in making conclusions about the overall EBI effort from an industry perspective, the consequences for firms not privy to the Initiative, particularly non-market leaders, will become evident in the resulting inter-corporate dialogue. It is a matter of contention whether the EBI products accurately ‘indicate what standards and practices companies should be adhering to’.166
As a behavioural tool partnerships may be ultimately self-regulatory with the additional virtue of NGO cover. Since each of the EBI firms are commencing from ‘different’ points within their internal biodiversity policies and have ‘different needs and priorities’, ‘none is necessarily likely to fully implement’ the EBI recommendations in their entirety.167 Firms ‘cannot and should not be expected to resolve the challenges…on their own’.168 Instead, each has variously expressed a voluntary commitment to integrate the EBI products into commercial operations.169 Shell envisages implementing ‘all of the EBI conclusions in one-way or another’ and whereas several products are ‘already in place’, there is ‘more work to do’ on identifying a ‘best fit’ between the EBI products and existing management systems.170 StatOil intends to adopt the EBI products as ‘internal guidance documents’ that strengthen its biodiversity orientation.171 Although these products are intended to be ‘relevant, applicable and easy to use’, BP welcomes an ‘open and challenging debate’ when they are subjected to peer review.172 Following an internal evaluation ChevronTexaco will express its biodiversity intentions as a feature of its external corporate responsibility report for 2003.173 The conservation NGOs for their part are collectively ‘committed to continuing the EBI spirit of collaboration’ in their subsequent dealings with companies, industry associations and the development community.174
The ‘real challenge’ for the EBI as a regulatory device ‘is taking this knowledge and successfully applying it in the field’.175 Phase 2 of the Initiative contemplates a process of testing by industry to further refine the EBI products. Although the perspectives of actors originally excluded during the formulative period are acquired, NGO participation is not formally envisaged. The energy firms are free to decide whether to extend collaboration among existing partners or to initiate new bilateral agreements. Whereas NGO’s and firms have jointly negotiated standards of corporate behaviour, in the absence of an independent external verification mechanism each company is left to implement the EBI recommendations in light of their organisational structure and corporate philosophy ‘in ways most appropriate for them’.176 Interestingly, no EBI partner is wholly satisfied with this arrangement. Although the compliance pull of voluntary commitments within a marketplace cannot be discounted, non-binding measures may undermine any hard-fought group consensus. Since the energy firms are mindful that the EBI does not impose any legal compliance obligation and cannot therefore be ‘enforced’ against them, the utility of partnerships for compelling corporate obedience must be doubtful.
Corporate-NGO partnerships encourage further regulatory refinement by governments, influence comparable private expectations — in this instance, improving the quality of the IUCN’s classification system — and illustrate the potential for private protected area management pursuant to the CBD.
The EBI case study validates the hypothesis that public interest participation in collaborative arrangements with firms can improve the efficiency of government regulation.177 The governmental frame of reference is orientated towards reforming the perceived deficiencies of existing legal regimes within repeated (and ultimately self-regulatory) patterns of feedback and further refinement. Regulatory objectives identified by government initiates parallel processes within the private sphere analogous to treaty interpretation, implementation and monitoring by non-State actors but with additional tailoring to existing commercial practices and conservation effectiveness. Biodiversity is characterised by unclear regulatory expectations largely free from detailed prescriptive requirements at the national level, a reluctance of governments to intercede and is a source of ongoing controversy between NGOs and firms. Non-State actors are therefore motivated to interpret and operationalise vague normative goals within private institutional structures before re-introducing their understanding of biodiversity conservation back into the public domain for possible adoption or further modification by government. Incorporating commercial perspectives or environmental protection objectives under the guise of qualitatively improving international regulation will yield benefits for the firm or NGO when legislatively implemented at national levels.
Firms and NGOs self-interestedly need to achieve a common understanding on biodiversity, site selection and acceptable conservation measures that establish ‘the rules of the game’ between them. Environmental guidelines and codes of conduct are largely developed unilaterally by industry or NGOs.178 To justify the effort and expense, the EBI was dedicated to providing practical, measurable and focused outputs targeted to specific audiences including environmental managers within the energy sector. Participating in processes that establish industry performance standards ‘helped to keep the discussion focused on areas of interest to our company without letting it spin out of control’.179 The corporate members received a ‘stamp of approval’ by five highly regarded NGOs and the EBI recommendations enjoy a further ‘layer of legitimacy’.180 To produce agreed working documents with the assistance of environmental organisations ‘guaranteed good thinking’ and becomes a ‘very powerful mechanism’ for influencing industry.181 Both firms and NGOs engaged in a mutual learning process to demystify preconceptions: ‘NGOs learned of the real constraints business face, thus better able to give appropriate/relevant guidance’ and firms ‘better understand the complexity of the conservation agenda and diversity of views’.182 The ‘two together acted as a mutual assurance group regarding the reputation of the members and the credibility of the EBI products’.183 In sum: The value of consensus cannot be underestimated. NGOs now have a set of recommendations that were developed with companies, giving them more force in their negotiations with companies. Companies can demonstrate that it is possible to work with NGOs to come to conclusions on biodiversity-related issues and that cooperation is possible.184 Companies have the opportunity to free ride upon the well-recognised regulatory networks established by NGOs. For example, the EBI is a platform for corporate participation in the IUCN-convened Working Group on Extractive Industries and Biodiversity. It is additionally noteworthy that Conservation International, The Nature Conservancy and IUCN attend intergovernmental meetings as observers or experts, make submissions on the protected area programme of work and review documents for the CBD Secretariat.185 The Nature Conservancy also developed a site conservation framework that was subsequently adopted by governments at the national level.186 IUCN enjoys an advisory role with the World Heritage Committee and evaluates whether sites nominated by governments satisfy the listing criteria under the Heritage Convention. Since both it and The Nature Conservancy are also partner organisations to the RAMSAR Secretariat, they are influential actors for identifying potential threats to protected areas and recommending appropriate action. The same is true of NGO action at the national level.187 However, firms are not precluded from resorting to more orthodox means of espousing commercial opinions. For example, the EBI products will inform a Biodiversity Working Group jointly established by the two principal trade associations (IPIECA and OGP) and mandated to share best commercial practice and evaluate the prospects for new guidelines in the energy sector.
The main decision-making under the CBD — a framework convention — occurs at the national level. Firms and NGOs can collaborate with governments to add the requisite legislative details that satisfy a State’s biodiversity obligations. Governments are more receptive to proposals emanating from consultative processes that involve a range of organisations and represent disparate factional interests.188 Less effort is expended in regulatory design since it is simpler for governments to adopt partnership conclusions as field-tested, cost-effective and viable role models (turning lessons into legislation) or to ‘scale up’ and replicate best commercial practice as progressive national or international legal standards. However, the negotiated outcome of business-NGO partnerships may reflect the lowest common denominator and be presented to governments as a fait accompli. Partnerships do not obviate the governmental function of filtering and weighing competing public interest considerations including those not party to that arrangement. Although firms and NGOs are free to internalise politico-legal agendas, this process necessarily marginalizes the interests of trade unions, consumer groups and others. Conversely, including governments does not wholly rectify matters since partnerships processes are not comparable to democratic decision-making fora accountable to national electorates.
NGOs and firms seeking to influence public policy development would be prepared to contribute to those international legal regimes most receptive to their concerns. The Ramsar Convention employs the ‘wise use’ concept, the IUCN classification system is based upon management objectives and the CBD adopts an ecosystem approach. Since there is no single method for implementing the last-mentioned, a merger between these concepts is also possible.189 Most notably, stakeholder opinions are solicited when sites are assessed for prospective listing. For example, governments under the Ramsar Convention may permit activities of an ‘urgent national interest’ but which damage protected sites only after an EIA has been conducted with all stakeholders.190 Similar efforts are underway within CBD processes to increase stakeholder participation with a view to assessing the condition of the protected area network.191 Parallel developments seek to ensure the comprehensiveness, adequacy, representivity and efficacy of existing arrangements with respect to marine and coastal areas, forests, inland water ecosystems and dry or sub-humid lands.192 To provide input into each of these processes firms and NGOs could replicate the relatively more advanced model for peatland protected area management under the Ramsar Convention. The relevant guidelines envisage partnerships between government, the private sector and NGOs for the purposes of constructing consensus on terminology, advising governments on site designation, encouraging reviews of national politico-legal frameworks and introducing monitoring systems that detect changes of use.193
As outlined above in Part One, both NGOs and firms have an interest in rationalising the protected area classification system. Overlap exists between multiple legal regimes as much as gaps in protection. For example, although Ramsar sites are officially recognised as internationally important wetlands, legal protection for their biodiversity value is not automatically assured. Furthermore, biodiverse and environmentally sensitive areas outside the protected area network lack legally protected status. Conversely, protected areas need not be as critically important for biodiversity as their categorisation implies. For different reasons NGOs and firms therefore seek to strengthen the application of the IUCN categorisation system, to institute more rigorous, reliable, predictable and fair selection procedures, to improve decision-making transparency and encourage periodic government reviews. Independently verifying through certification that protected areas are assigned to the correct categories and are effectively managed has therefore been proposed.194 Comparable frameworks for evaluating conservation effectiveness include indicators for measuring the threat posed by mineral resource extraction.195 Interestingly, in the process of re-assessing the efficacy of its classification system the IUCN appears to have moderated its earlier position insofar as extractive industries will only be prohibited from protected area categories I (nature reserves or wilderness area) and II (national parks).196
National governments are being petitioned by non-State actors to improve legal regimes, lift governmental performance and enable economic development and environmental conservation to progress in tandem. The EBI recommended that energy firms contribute to the implementation of the CBD, partner conservation organisations, share biodiversity data, provide information to the public ‘whenever possible’, engage with stakeholders throughout the project life cycle and participate in government-led land use planning processes.197 The EBI companies moreover recognised the integrity of protected areas and undertook to avoid them in their commercial operations since the reputational risk of doing otherwise outweighed government approval or national legal compliance. However, where firms decide to operate in areas of high biodiversity value, the EBI site selection framework suggests that it is in the commercial interest to exceed minimum legal requirements and incorporate a more comprehensive set of management actions to conserve biodiversity. Although the EBI did not formally intend to resolve the issue, this recommendation notably falls short of an explicit ‘no go’ commitment but constitutes an incremental step towards bridging the gap between mining and conservation interests. However, in the view of one EBI partner, this perspective also represents ‘a breakthrough piece of work as it provided a rationale and logical approach to dealing with this contentious issue — and it was developed in such a way as to obtain agreement from all nine organisations’.198 Although firms are not encouraged to lobby for exemptions, re-designated protected areas, redefined boundaries or other means of acquiring government permission, biodiversity value should be verified during project planning and the ‘reality’ is that companies ‘may be inclined to undertake such efforts’.199
The ICMM, none of whose corporate members participated in the EBI, simultaneously undertook to respect legally designated protected areas. It will henceforth ensure that ‘all possible steps’ are taken such that existing and future operations in or adjacent to World Heritage sites ‘are not incompatible with the outstanding universal value for which these properties are listed and do not put the integrity of these properties at risk’.200 Since only the protected area classifications of the World Heritage Convention satisfy the expectations of its member firms, the ICMM will collaborate with IUCN to strengthen its protected area categorisation system. On 27 August 2003 Shell individually undertook not to explore or develop oil or gas resources within any natural heritage site. It also updated its Biodiversity Standard to include stakeholder inclusion within the EIA process, to publicly report activities within category 1 to IV protected areas and to pilot measures for strengthening protected area management in conjunction with conservation partners. The firm is already working with the WCPA to review the IUCN categorisation system and achieve an ‘active and central’ role within public policy debates.201
The impact of these developments was evident at the Fifth IUCN World Parks Congress in Durban, South Africa during 2003. Participants called for a ‘commitment by extractive industries to fulfil their responsibilities for the careful stewardship of protected areas’.202 The objectives of the Congress included enhancing the extractive industry’s contribution to protected areas and biodiversity conservation, increasing the conservation community’s appreciation of commercial opportunities and constraints and obtaining greater clarity and rigour within the protected area category system.203 Public, private and community partnerships between government, NGOs and firms are mentioned throughout the Durban Action Plan as appropriate mechanisms for implementation.204 The IUCN also intends to support co-management agreements that contemplate stakeholder participation particularly for local or indigenous communities.205 The Congress accordingly called upon governments to develop legal, administrative and financial instruments that benefit protected areas and private sector partners but also to formulate commercial standards that promote decision-making transparency.206
Significantly, ‘new uses of the system require that IUCN, working in collaboration with partner organisations, urgently produce, through an open, participatory process’ a redesigned matrix of management objectives ‘so as to relate better to current experience’.207 In a concession to firms, protected area management will henceforth be integrated into the broader sustainable development agenda of alleviating poverty.208 The process of updating IUCN’s 1994 guidelines envisages consultation with firms and NGOs for the purposes of defining protected area objectives, clarifying the procedures for assigning categories and formulating measures of practical implementation. A protocol will also be developed to verify that protected areas correspond with their management objective and that national evaluation systems are implemented by governments in collaboration with stakeholders. Firms become natural partners in fulfilling these tasks given their technical expertise in designing management systems and knowledge of economic appraisal methodology.
Although the Congress expects ‘responsible’ private investment activity within protected areas, concrete steps towards ensuring corporate responsibility are yet to emerge. The Congress urged the private sector ‘to adopt best practices that do not threaten, compromise or thwart’ protected area objectives and to consider the interests of indigenous peoples.209 Noting ‘with appreciation’ the commitments made by the ICMM and Shell, the Congress called upon companies to recognise World Heritage sites as ‘no go’ areas and to desist from activities which threatened their characteristics.210 Notwithstanding elements within the conservation and business communities prepared to engage in dialogue, the Congress observed that ‘there still remained considerable areas of disagreement and no conclusive agreement on a precise way forward could be reached at this time’.211 Since ‘many’ conservationists were ‘strongly opposed’ to initiatives such as the EBI ‘because they believe it has the potential to undermine conservation efforts’, the Congress reiterated support for the Amman Recommendation ‘to guide and test the commitment and support’ of industry.212 Several workshop participants went further to suggest strengthening protected area legislation and enforcing EIA procedures as a means of reiterating ‘their fundamental objection to destructive industrial practices’.213 Acknowledging such ‘real and legitimate differences’, the ICMM proposed that further dialogue was necessary to identify which economic activities were compatible with environmental protection.214
As an input into intergovernmental deliberations within the context of the CBD, the EBI’s impact will be discernable at the Seventh COP in Malaysia during 2004.215 IUCN has called upon COP 7 to promote collaboration between responsible companies and local communities and to secure greater financial support from industry.216 The EBI will also be showcased at this meeting in a deliberate attempt to influence governments on other policy matters.217 The possible elements of a CBD programme of work on protected areas includes experimenting with public/private partnerships, formulating guidelines which enhance stakeholder participation and identifying best commercial practice for use by the private sector. Governments are therefore likely to scrutinise the products of the EBI’s metrics working group with a view to quantifying habitat change and assessing protected area impacts.218
Continued resort to the partnership concept can also be anticipated at the Third World Conservation Congress during 2004. NGOs and firms have already been invited to contribute to implementing the Ramsar Secretariat’s Strategic Plan by forming partnerships for sustainable wetlands use.219 Partnerships can also be used to implement protected area national action plans.220 Such arrangements could become standard practice for all projects within environmentally sensitive locations.221 Indeed, NGOs and firms may be entrusted with ‘private’ protected area management since companies already enjoy a prominent management role over inland water protected areas.222 However, the principle of informed consent is being extended to stakeholders such that indigenous communities cannot continue to be excluded from prospective partnerships. Consultation derives local knowledge and ensures that corporate measures are acceptable to affected communities.223 However, it is a governmental responsibility to establish procedures through which indigenous peoples are consulted before mineral resource extraction from their customary lands is permitted.224 Local and indigenous groups must be included in ‘participatory management processes’ that assess environmental impacts upon wetlands.225 Private protected area management also contemplates co-management boards whereby stakeholders share rights and responsibilities.226 That said, national law might be unable to support such multi-partite partnership processes.227 The IUCN together with NGOs have accordingly formulated principles for engaging indigenous communities that are amenable to adoption by governments.228 Notably, the recognition by all participants of indigenous traditions and cultures is a precondition for protected area management.229 Hence, firms should respect the sanctity of ‘community controlled areas’ in their commercial operations and have regard to questions of land tenure, rights of access, decision-making institutions or processes, benefit sharing and incentives.230 Partnerships are also instrumental for encouraging private landowners to engage in biodiversity-friendly management activity.231 Governments are accordingly soliciting input from them together with the views of indigenous communities when designing appropriate national measures.232
The potential for stakeholder consent to limit prospective commercial liability is yet to be resolved. Given that the land disturbance inherent in oil and gas operations inevitably disrupts biodiversity, commercial operations may be legally preconditioned by the adoption of appropriate measures of mitigation. Firms are willing to abide by the principle of ‘no net biodiversity loss’ provided project-specific ‘offset’ measures can be employed. This includes additional conservation funding, designating land for protection, supporting scientific research, restoring habitats, re-introducing wildlife and reforestation. However, several governments demand an overall conservation benefit.233 Stakeholder consultation within a partnership arrangement is therefore one mechanism for identifying an acceptable level of compensation. However, since measures of mitigation can enable mining activity within protected areas, several NGOs suspect that permitting such precedents will make it difficult to defend other protected areas and ultimately threaten the integrity of the Heritage Convention. A related question is that of corporate legal liability for secondary impacts. This issue was insufficiently addressed by the EBI given a lack of information and possibly ongoing litigation involving one of the partners.234 Mining has direct or primary environmental consequences such as lost vegetation and pollution in addition to indirect, induced or secondary impacts triggered by the project’s presence and outlasting the mining activity itself.235 Secondary impacts include the consequences of providing access to remote areas (human colonisation, agriculture, illegal trade in protected species, fragmented habitats or invasion by alien species) and investment divestiture that simultaneously terminates valuable or essential conservation activity.
Partnerships are perceived to be one means of resolving chronic financial shortages. Hence, public-private partnerships are of ‘great importance’ for harnessing the private investment capital necessary for implementing the CBD.236 Governments are expected to provide special taxation arrangements, regulatory incentives and favourable lending opportunities.237 Firms are also to be afforded opportunities ‘to mobilise public funds to implement privately initiated biodiversity programmes’ including through resort to the Global Environmental Facility.238 In other words, governmental contributions will not be substituted by private financial sources. Attention has therefore been devoted to identifying the pecuniary and non-pecuniary benefits of biodiversity.239 Although firms may freely contribute to NGO budgets, competition for limited funding may inspire conflict between conservation and other interests, a consequential fragmentation within organised civil society and a dilution of the private drivers which spur the regulatory agenda of government.
Partnerships are a prominent mechanism for implementing national biodiversity strategies including that of New Zealand.240 The virtues of direct stakeholder engagement — instituting dialogue, building trust, realising mutual objectives and acquiring mutually assured information accuracy — find their institutional expression through this arrangement. However, caution is warranted where more ambitious objectives are sought to be achieved: the credibility and legitimacy of NGOs informally regulating corporations for example must inevitably be questionable. Private voluntary initiatives between firms and NGOs are a useful technique of concerted action for commercial benefit (formulating operational templates or updating existing risk management systems) but also enable these actors to influence the evolution of public policy (through subsequent intergovernmental approval or more informed lobbying activity). The EBI uniquely addressed the divide between energy firms and the conservation community by reference to the corporate reputation and illustrated how the resulting guidelines constituted an effective platform from which the protected area classification system could be authoritatively re-assessed. NGOs secured a commitment from market leaders to respect protected area characteristics and several firms now generally recognise a higher duty of care for investment projects located in or adjacent to environmentally-sensitive areas. An important NGO role continues to be mainstreaming biodiversity considerations into routine commercial decision-making but through more novel means. Although this paper focused upon the intermeshing of biodiversity conservation with protected area management, firms and NGOs are identifying further linkages within related fields and the products of their collaboration are contributing to international legal development.241
* Part-Time Teacher, Law Department, London School of Economics and Political Science. Thanks to Dr Julia Black (LSE), Greg Love (Conservation International), Kit Armstrong & Pat O’Brien (ChevronTexaco), Jeff McNeely (World Conservation Union), Sachin Kapila (Shell), Dr Tom Reed (Flora & Fauna International), Dr Greg Miller & Nigel Homer (The Nature Conservancy) and especially Dr Assheton Carter and Michelle Ognibene (Center for Environmental Leadership in Business). The empirical findings described herein were obtained during a Postdoctoral Fellowship at the Centre for Analysis of Risk and Regulation, LSE, 2002-3. Nine individuals from six of the nine organisational partners to the Energy and Biodiversity Initiative (EBI) responded to a questionnaire or were interviewed during 2003. Quotations are not to be attributed to particular organisations and records are retained with the author. Except where indicated, the opinions expressed are those of the author as are any errors and omissions.
1 Art 1, United Nations (UN) Convention on Biological Diversity (CBD) (1992) 31 International Legal Materials 818 (entry into force 29 December 1993). New Zealand ratified the Convention on 16 September 1993 and implements it pursuant to the Resource Management Act 1991(NZ) as amended.
2 Art 2, CBD ibid.
3 CBD, Preparations for the Seventh Meeting of the Conference of the Parties (COP), The Role of Protected Areas within the Convention on Biological Diversity, UN Doc UNEP/CBD/COP/6/INF/16 (2002), paras 31, 47.
4 Art 2, CBD above n1.
5 Art 8, CBD above n1.
6 CBD, COP Decision VI/26 (2002).
7 World Resources Institute (WRI)/World Conservation Union (IUCN)/United Nations Environmental Programme (UNEP), Global Biodiversity Strategy: Guidelines for Action to Save, Study, and Use Earth's Biotic Wealth Sustainably and Equitably, Baltimore, 1992.
8 New Zealand (NZ) Ministry for the Environment, The State of New Zealand’s Environment, Wellington, 1997, Ch 9.
9 Art 6, CBD above n1.
10 Art 10, CBD, above n1.
11 Cp International Chamber of Commerce (ICC), Comments on the United Nations Convention on the Protection of Biodiversity, Paris, 1992; US Government, Declaration made at the UNEP Conference for the Adoption of the Agreed Text of the Convention on Biological Diversity 31 International Legal Materials 848 (1992).
12 US Business Roundtable, Blueprint 2001: Drafting Environmental Policy for the Future, Washington DC, 2001, 10-13.
13 Eg ICC, ‘TRIPS and the Biodiversity Convention: What Conflict?’ Paris, 1999; International Council of Chemical Associations (ICCA), ‘Position on TRIPs and the Environment’ Virginia, 1999, 3.
14 S Tully, ‘The Bonn Guidelines on Access to Genetic Resources and Benefit-Sharing’ (2003) 12(1) RECIEL 84.
15 K A Goldman, ‘Compensation for Use of Biological Resources under the Convention on Biological Diversity: Compatibility of Conservation Measures and Competitiveness of the Biotechnology Industry’ (1994) 25(2) Law & Policy in International Business 695, 720.
16 Eg International Institute for Environment and Development (IIED), Biological Diversity: More Debate than Action? London, 2001.
17 World Business Council for Sustainable Development (WBSCD)/IUCN, Business and Biodiversity: A Guide for the Private Sector, Gland, 1997, 29, 58.
18 Eg NZ Ministry for the Environment, Environment 2010 Strategy: A Statement of the Government’s Strategy on the Environment, Wellington, 1995, Ch 8.
19 UK Government, Environment, Transport and Regional Affairs Committee, Report on UK Biodiversity, HC 441 (1999-2000), para 102.
20 Arts 10, 16(4), 23, CBD above n1.
21 Eg CBD, COP Decisions I/2 (1994) & II/3, II/4 (1995).
22 Art 2, UN Educational, Scientific and Cultural Organisation (UNESCO), Convention concerning the Protection of the World Cultural and Natural Heritage (the World Heritage Convention) (1972) 1037 UNTS 151 (entry into force 17 December 1975).
23 UNESCO Intergovernmental Committee for the Protection of the World Cultural and Natural Heritage, Operational Guidelines for the Implementation of the World Heritage Convention, UNESCO Doc WHC.02/2 (2002), para 44.
24 Art 2, (Ramsar) Convention on Wetlands of International Importance Especially as Waterfowl Habitat (1971) 996 UNTS 245 (entry into force 21 December 1975) as amended by the 1982 Protocol (1982) 22 International Legal Materials 698 (entry into force 1 October 1986) and the 1987 Amendments to Articles 6 and 7, Cm 983 (entry into force 1 May 1994).
25 Ramsar COP, The Criteria for Identifying Wetlands of International Importance as adopted by the 4th, 6th and 7th Meetings to Guide Implementation of Article 2(1) on the Designation of Ramsar Sites, Criterions 3 & 7.
26 Art 16(1), EC Directive 92/43/EEC of 21 May 1992 on the Conservation of Natural Habitats and of Wild Fauna and Flora (the Habitats Directive) OJEC L206, 7 as implemented for eg by the Conservation (Natural Habitats etc) Regulations 1994 No. 2716 (UK). Cp the 1995 Barcelona Protocol Concerning Specially Protected Areas and Biological Diversity in the Mediterranean (1999) OJEC L322/3.
27 International Petroleum Industry Environmental Conservation Association (IPIECA), The Oil and Gas Industry: Operating in Sensitive Environments, London, Draft, 2003.
28 D Austin & A Sauer, Changing Oil: Emerging Environmental Risks and Shareholder Value in the Oil and Gas Industry, WRI, Washington DC, 2002.
29 Eg (Espoo) Convention on Environmental Impact Assessment in a Transboundary Context (1991) 30 International Legal Materials 802 (entry into force 10 September 1997).
30 Cp EC Regulation 761/2001 allowing Voluntary Participation by Organisations in a Community Eco-Management and Audit Scheme (EMAS) (2001) OJEC L114/1 & UK Roundtable on Sustainable Development, Business and Biodiversity: A UK Business Guide for understanding and integrating nature conservation and biodiversity into environmental management systems, Earthwatch Institute, Oxford, 1999.
31 D Roe, B Dalal-Clayton & R Hughes, A Directory of Impact Assessment Guidelines, IIED, London, 1995.
32 Art 14(a), CBD above n1.
33 CBD, COP Decision VI/7 (2002) on Identification, Monitoring, Indicators and Assessments, Annex, Guidelines for Incorporating Biodiversity-related Issues into Environmental Impact Assessment Legislation and/or Process and in Strategic Environmental Assessment, UN Doc UNEP/CBD/COP/6/20, 70, paras 18(b), 20(g), 24, 28, 40.
34 Ramsar COP Resolution VIII (9) (2002) on Guidelines for Incorporating Biodiversity-related Issues into Environmental Impact Assessment Legislation and/or Processes and in Strategic Environmental Assessment adopted by the Convention on Biological Diversity (CBD) and their relevance to the Ramsar Convention, 8th Meeting, Spain.
35 A Bagri, J McNeely & F Vorhies, Biodiversity and Impact Assessment, IUCN Workshop, New Zealand, 1998.
36 EC Directive 85/337/EEC on the Assessment of the Effects of Certain Public and Private Projects on the Environment (the EIA Directive) (1985) OJEC L175/40 as amended by EC Directive 97/11/EC (1997) OJEC L073/5.
37 Eg European Court of Justice, Commission of the EC v Ireland C-392/96 (1999) OJEC 366/10, Commission of the EC v Portugal C-150/97 (1999) OJEC C/86 & Luxembourg v Linster and Ors C-287/98  ECR I-0000.
38 European Commission, Adoption of the Five Year Report on the Application and Effectiveness of the EIA Directive, Report to the European Parliament and the Council, 2003.
39 EC Directive 2003/35/EC providing for Public Participation in respect of the Drawing Up of Certain Plans and Programmes relating to the Environment and amending with regard to Public Participation and Access to Justice Council Directives 85/337/EEC and 96/61/EC (2003) OJEC L156/17; Economic Commission for Europe (ECE), (Aarhus) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, ECE Doc ECE/CEP/43 (1998).
40 Eg IUCN Centres of Plant Diversity; Conservation International’s Biodiversity Hotspots & Major Wilderness Areas; The Nature Conservancy’s (TNC’s) Last Great Places.
41 UN Economic and Social Council, Resolution No. 713 (1959), 27th Sess.
42 IUCN, World Parks Congress (WPC) Recommendation 4.17 (1992), Caracas as endorsed by IUCN General Assembly Resolution 19.4 (1994), Buenos Aires.
43 IUCN WCPA & UNEP WCMC, 1997 United Nations List of Protected Areas, Gland, 1998.
44 IUCN, Fourth World Congress, ‘Parks for Life’ Caracas, 1992. Cp ‘protected areas’ defined as legally-established land or water areas under public or private ownership regulated and managed to achieve specific conservation goals: WRI/UNEP/IUCN, Global Biodiversity Strategy: Guidelines for action to save, study and use Earth’s biotic wealth sustainably and equitably, WRI, Washington DC, 1992.
45 IUCN, Guidelines for Protected Areas Management Categories, Gland, 1994.
46 UNESCO, Report of the World Heritage Committee at its 23rd Sess, Marrakech, WHC Doc WHC-99/CONF.209/22 (2000), para 60.
47 IUCN Second World Conservation Congress, Recommendation 2.82 (2000) on the Protection and Conservation of Biological Diversity of Protected Areas from the Negative Impacts of Mining and Exploration, Amman, 2000.
48 Eg the Framework Convention on Climate Change (1992) 31 International Legal Materials 848 & Art 3(3), Kyoto Protocol (1998) 37(1) International Legal Materials 32; Washington Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) (1973) 993 UNTS 243; the Bonn Convention on the Conservation of Migratory Species of Wild Animals (1979) TIAS 11079; UN Convention to Combat Desertification in those Countries experiencing Serious Drought and/or Desertification, particularly in Africa, UN Doc A/AC.241/27 (1994).
49 UN General Assembly (GA) Res 3281 (1974) on the Charter of Economic Rights and Duties of States; Preamble, CBD, above n2; Art 6, World Heritage Convention above n22.
50 Recommendation 16, Fourth World Congress, above n44.
51 UNESCO, Man and the Biosphere Programme: <http://www.unesco.org/mab> .
52 Eg Art 6, World Heritage Convention above n23; Art 22 CBD above n1.
53 International Centre for the Settlement of Investment Disputes (ICSID), Compania del Desarrollo de Santa Elena SA v Republic of Costa Rica, Case No ARB/96/1 (2000) 15 (72) ICSID-FILJ 192, para 71.
54 ICSID, Tecnicas Medioambientales (TECMED) SA v Mexico Case No ARB(AF)/00/2 (2003).
55 ICSID, Southern Pacific Properties (Middle East) Ltd v Egypt Case No ARB/84/3 (1993), para 154.
56 A Phillips, Vice-Chair for World Heritage of the World Commission on Protected Areas, IUCN, Mining and Protected Areas, Mining, Minerals and Sustainable Development (MMSD) Project, IIED/WBCSD, Report No. 62, London, 2001, 14-5.
57 IIED/WBCSD, MMSD Project, Report of the First Workshop on Mining and Biodiversity, Report No. 201, London, 2001 & Report of the Second Workshop on Mining and Biodiversity, Report No. 212, London, 2001.
58 IIED/WBCSD, MMSD Project, Final Report: Breaking New Ground, Earthscan Publications Ltd, London, 2002, 162.
59 Cp Art 2, CBD above n1; Art 3(1), Ramsar Convention above n24 & Ramsar COP Recommendation 4(10) (1990), 4th Meeting, Montreux, Annex on Guidelines for the Implementation of the Wise Use Concept.
60 I Bowles & G Prickett (Eds), Footprints in the Jungle: Natural Resource Industries, Infrastructure and Biodiversity Conservation, Oxford University Press, Oxford, 2001.
61 E & P Forum/UNEP, Environmental Management in Oil and Gas Exploration and Production: An Overview of Issues and Management Approaches, 1997.
62 E & P Forum, Decommissioning, Remediation and Reclamation Guidelines for Onshore Exploration and Production Sites, 1996.
63 UNESCO, Bureau of the World Heritage Committee, Report of the Technical Workshop on ‘World Heritage and Mining’, Gland, 2000, UNESCO Doc WHC-2000/CONF.203/INF.7 (2000). See further IUCN/International Council on Mining and Metals (ICMM), Recommendations for Best Practice, Workshop on Mining, Protected Areas and Biodiversity Conservation: Searching and Pursuing Best Practice and Reporting in the Mining Industry, Gland, 2003.
64 Eg IUCN WCPA, (2000) 10(3) Parks, Partnership and Exchange Programmes, Gland.
65 Eg F K Long & M B Arnold, The Power of Partnerships, Harcourt Brace, New York, (1995).
66 Earthwatch Europe/IUCN/WBCSD, Business and Biodiversity: The Handbook for Corporate Action, ATAR Roto Presse SA, Switzerland, 2002, 43.
67 EBI, List of Common Terms, undated.
68 Eg International Bank for Reconstruction and Development (IBRD), Integrating Social Concerns into Private Sector Decision-making: A Review of Corporate Practices in the Mining, Oil and Gas Sectors, Discussion Paper No 384, Washington DC, 1998.
69 IBRD, World Bank Participation Sourcebook, Washington DC, 1995.
70 Business Partners for Development (BPD), Putting Partnering to Work: Results and Recommendations for Developing Country Governments, London, 2002.
71 UNGA Res 55/2 (2000).
72 International Council on Metals and the Environment (ICME)/UNEP, ‘Awareness and Preparedness for Emergencies at Local Level (APELL) Programme’ Press Release, Brussels, 2000, <http://www.mineralresourcesforum.org/news_events/release/apell052900.htm> .
73 Principle 2(d), Non-Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of All Types of Forests (1992) 31 International Legal Materials 881.
74 UN Secretary General, Guidelines for Cooperation between the UN and the Business Community, 2000, <http://www.un.org/partners/business/guide.htm> .
75 UNGA Resolution 56/76 (2002) (Towards Global Partnerships), para 2.
76 Eg the UN Staff College/International Business Leaders Forum, Partners in Action Programme, 1998.
77 UN Commission on Sustainable Development (CSD), CSD-11 Decision on Partnerships for the World Summit on Sustainable Development (WSSD), 2003, para 22; Guiding Principles for Partnerships for Sustainable Development (‘Type 2 outcomes’) to be Elaborated by Interested Parties in the Context of the WSSD, Explanatory Note, 2002, <http://www.iisd.ca/wssd/download%20files/annex_partnership.pdf> .
78 UN, Report of the International Conference on Financing for Development, Monterrey, UN Doc A/CONF.198/11 (2002), para 21.
79 Plan of Implementation of the WSSD, Report of the WSSD, Johannesburg, UN Doc A/CONF.199/20 (2002), para 3.
80 Johannesburg Partnership Plenary Meetings on water and sanitation, energy, health, agriculture, biodiversity and cross-sectoral issues (WEHAB), Report of the WSSD, ibid, Ch 3, paras 17, 18.
81 BPD, Putting Partnering to Work: Results and Recommendations for Bilateral and Multilateral Organisations, London, 2002, 6.
82 WSSD Plan of Implementation above n79, paras 44(d), (f).
83 CBD, The Role of Protected Areas within the Convention on Biological Diversity, UN Doc UNEP/CBD/AHTEG-MCPA/1/INF/2 (2001), paras 23-4.
84 CBD, Principle 9, Addis Ababa Principles and Guidelines for the Sustainable Use of Biodiversity, UN Doc UNEP/CBD/AHTEG-PA/INF/4 (2003), para 40.
85 International Institute for Sustainable Development (IISD), 9(87) Earth Negotiations Bulletin, 5 May 1998, 2.
86 Ibid, 9(88) Earth Negotiations Bulletin, 6 May 1998, 2.
87 NZ Ministry for the Environment, The New Zealand Biodiversity Strategy, Wellington, 2000, 90, 106, 133.
88 CBD, Synthesis of Information Contained in National Reports on the Implementation of the Convention, UN Doc UNEP/CBD/COP/4/11/Rev.1 (1998), para 77.
89 UK Government, Biodiversity – the UK Action Plan, HMSO, London, 1994.
90 IISD, 22(40) Earth Negotiations Bulletin, 7 June 2002, 1.
91 CBD, Preparations for the Seventh Meeting of the COP, UN Doc UNEP/CBD/COP/6/2 (2002), Annex 2.
92 CBD, COP Decision IV/15 (1998), para 6.
93 CBD, COP Decision III/21 (1996). See further CBD, Cooperation with Other Agreements, Institutions and Processes relevant to In Situ Conservation, UN Doc UNEP/CBD/COP/4/13 (1998).
94 Ramsar Secretariat, International Workshop on Partnerships for Integrating Wetlands and Water Resources Management, Montreal, 1997.
95 Ramsar COP Resolution VIII (1) (2002) on Guidelines for Allocation and Management of Water for Maintaining the Ecological Functions of Wetlands, 8th Meeting, Spain, para 23.
96 UN Development Programme (UNDP), ‘Multinational corporations join discussions with UNDP to establish global sustainable development facility’, UNDPFlash, 1999, 5.
97 Transnational Resource and Action Centre, A Perilous Partnership: The United Nations Development Programme’s Flirtation with Corporate Collaboration, San Francisco, 1999.
98 Eg IUCN/WWF, Challenges for Protected Areas in the 21st Century: Partnerships for Protection, Gland, 1999.
99 Principle 8, Global Compact, <www.unglobalcompact.org>, World Economic Forum, Davos, 1999.
100 IPIECA, Biodiversity and the Petroleum Industry: A Guide to the Biodiversity Negotiations, London, 2000, 6.
101 R Tennyson & L Wilde, The Guiding Hand: Brokering Partnerships for Sustainable Development, UN Department of Public Information, New York, 2000, Ch 2.
102 S Kapila, ‘Biodiversity at Shell’, Presentation, 2002 (held on file). Cp BP’s Biodiversity Strategy (contemplating constructive contributions to public policy debates) & StatOil’s Environmental Policy (strict legal compliance).
103 Eg TNC (BHP, ChevronTexaco); Flora and Fauna International (BP, Rio Tinto); Conservation International (Mobil). Cp BP (Birdlife International) & ChevronTexaco (WWF).
104 IUCN, The IUCN Programme: An Assessment of Progress 2001, Gland, 2002, 38.
105 WBCSD/IUCN, Business and Biodiversity: A Guide for the Private Sector, Geneva, 1997.
106 EBI, Frequently Asked Questions, Washington DC, 2001.
107 EBI Partner, Response to Questionnaire, 2003 (see explanatory note above n1).
108 Smithsonian Institution, Monitoring and Assessment of Biodiversity (SI/MAB) Program, Working for Biodiversity, Washington DC, c1999. See further BP & TNC in Papua New Guinea, Shell & the Smithsonian Institute in Gabon and Shell, IUCN & Fauna & Flora International in South Africa.
109 Eg IPIECA, Annual General Meeting, 2002.
110 EBI Partner, Response to Questionnaire, 2003.
113 EBI Mission Statement, 2003.
114 EBI Partner, Response to Questionnaire, 2003.
115 EBI, Terms of Reference for the Energy and Biodiversity Initiative Working Groups, Washington DC, 2001.
116 EBI Partner, Response to Questionnaire, 2003.
117 Eg Intergovernmental Panel on Climate Change (IPCC), Climate Change and Biodiversity, IPCC Technical Paper V, Geneva, 2002.
118 N Dudley & S Stolton, To Dig or Not to Dig? WWF Discussion Paper, Gland, 2002.
119 EBI Partner, Response to Questionnaire, 2003.
121 EBI, International Conventions, Washington DC, 2003, 2.
122 EBI, Integrating Biodiversity into Environmental and Social Impact Assessment Processes, Washington DC, 2003.
123 COP Decision IV/1A (1998) & V/7 (2000).
124 EBI, Biodiversity Indicators for Monitoring Impacts and Conservation Actions, Washington DC, 2003.
125 Center for Environmental Leadership in Business (CELB), ‘Energy Companies and Conservation Groups Release Collaborative Recommendations to Integrate Biodiversity Protection into Oil and Gas Development’, Press Release, Washington DC, 2003, 2.
126 EBI Partner, Response to Questionnaire, 2003.
127 Eg EBI, Online Biodiversity Information Sources, Washington DC, 2003.
128 International Organisation for Standardisation (ISO), Environmental Management Systems-Specification with Guidance for Use (ISO 14001), Geneva, 1996; Association of International Oil and Gas Producers Association, Guidelines for the Development and Application of Health, Safety and Environmental Management Systems, 1994.
129 EBI, Integrating Biodiversity into Environmental Management Systems, Washington DC, 2003.
130 EBI, Good Practice in the Prevention and Mitigation of Primary and Secondary Biodiversity Impacts, Washington DC, 2003.
131 EBI Partner, Response to Questionnaire, 2003.
137 BPD, Endearing Myths, Enduring Truths: Enabling Partnerships Between Business, Civil Society and the Public Sector, The Knowledge Resource Group, London, c2002, 7.
138 Eg BP’s Deep Sea Biodiversity Programme.
139 International Court of Justice, The Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), 2002, Dissenting Opinion of Judge Van Den Wyngaert, para 27.
140 European Commission (EC), Communication on a European Community Biodiversity Strategy COM (1998) 42; EC, Communication on Biodiversity Action Plans in the Areas of Conservation of Natural Resources, Agriculture, Fisheries, and Development and Economic Co-operation, paras 9, 46, <http://biodiversity-chm.eea.eu.int/convention/cbd_ec/strategy/BAP_html> . ChevronTexaco’s Pembroke refinery voluntarily participated in the EU’s ‘Biodiversity in Action on Industrial Sites’ pilot scheme during 2001.
141 Cp The British American Tobacco (BAT) Biodiversity Partnership (BAT, the Earthwatch Institute, Fauna & Flora International, Royal Botanic Gardens, Kew and the Tropical Biology Association) & the Bio+10 Initiative (BAT, the Earthwatch Institute, Fauna & Flora International, IUCN and Rio Tinto).
142 CELB, ‘Partnership of Conservation Organisations and Oil & Gas Companies Named Among Top Global Sustainable Development Partnerships at World Summit’ Press Release, Washington DC/Johannesburg, 2002.
143 Eg The UK’s Business in the Environment Index of Corporate Environmental Engagement.
144 BPD, Putting Partnering to Work: Results and Recommendations for Businesses, London, 2002.
145 BPD, Putting Partnering to Work: Results and Recommendations for Non-Governmental Organisations, London, 2002, 4.
146 M Rose, ‘Global Business Partnerships’ Fauna & Flora International, undated presentation (held on file).
147 D Murphy & J Bendell, Partners in Time? Business, NGOs and Sustainable Development, UN Research Institute for Social Development, Discussion Paper No 109, Geneva, 1999.
148 Eg Oilwatch Network, Open Letter to the NGO Partners of the EBI, undated (held on file).
149 Correspondence with Dr Paul Mitchell, EBI Environmental Consultant, 2003 (held on file).
150 EBI Partner, Response to Questionnaire, 2003.
151 L Lee, ‘Corporate Community Involvement in New Zealand’ The Open Polytechnic of New Zealand, 2002, 3.
152 BPD, Putting Partnering to Work, Tri-Sector Partnership Results and Recommendations, London, 2002, 22.
153 J Bendell, ‘Civil regulation: a new form of democratic governance for the global economy?’ in J Bendell (Ed), Terms for Endearment: Business, NGOs and Sustainable Development, Greenleaf Publishing, Sheffield, 2000, 239, 246.
154 J Jewell, British American Tobacco, First Progress Report, 2001, 2.
155 BPD, Tri-Sector Partnership Results, above n152, 23, 24.
156 <www.energy.celb.org> & <www.theebi.org>.
157 EBI Partner, Response to Questionnaire, 2003.
158 N Gunningham, P Grabosky & D Sinclair, Smart Regulation: Designing Environmental Policy, Oxford University Press, Oxford, 1998, 251, 411.
159 P Utting, Business Responsibility for Sustainable Development, UN Research Institute for Social Development, Occasional Paper No 2, Geneva, 2000.
160 P Romeijn, Green Gold: On Variations of Truth in Plantation Forestry, Treemail Publishers, Heelsum, 1999.
161 EBI Partner, Response to Questionnaire, 2003.
167 EBI, Frequently Asked Questions, Washington DC, 2003, 4.
169 EBI, Statement from Member Companies, 2003.
170 Ibid, 3.
172 Ibid, 1.
173 Ibid, 2.
174 Statement from the Member Conservation Organisations, 2.
175 EBI Partner, Response to Questionnaire, 2003.
177 I Ayres & J Braithwaite, Responsive Regulation: Transcending the Deregulation Debate, Oxford University Press, New York, 1992, 86, 100.
178 Correspondence with Dr Assheton Carter, CELB, 2003 (held on file).
179 EBI Partner, Response to Questionnaire, 2003.
185 CBD, Report of the Ad Hoc Technical Expert Group on Protected Areas, UN Doc UNEP/CBD/AHTEG-PA/1/3 (2003), paras 6, 23.
186 TNC, The Five-S Framework for Site Conservation: A Practitioner’s Handbook for Site Conservation Planning and Measuring Conservation Success, Arlington, 2000.
187 Organisation for Economic Co-operation and Development (OECD) Working Group on Economic Aspects of Biodiversity, ‘Conservation of the Pae O Te Rangi Area: A New Zealand Case Study on Biodiversity Incentive Measures’ OECD Doc ENV/EPOC/GEEI/BIO(1998)2/Final (2002).
188 Prince of Wales International Business Leaders Forum, Getting Real: The Challenges of Sustaining Biodiversity Partnerships, London, 2002, 7.
189 COP Decision V/6 (2000).
190 Ramsar COP Resolution VIII (20) (2002) on General Guidance for interpreting ‘urgent national interests’ under Article 2(5) of the Convention and considering compensation under Article 4(2).
191 CBD, Cross-Cutting Issues: Progress Reports on Implementation, Assessing the Status of the World's Protected Areas, UN Doc UNEP/CBD/COP/6/INF/25 (2002), para 10(e); CBD COP Decision VI/7 (2002), Sec C, para 4.
192 CBD, The Role of Protected Areas in the Existing Programmes of Work under the Convention on Biological Diversity, UN Doc UNEP/CBD/AHTEG-PA/1/INF/2 (2003).
193 Ramsar COP Resolution VIII (17) (2002) on Guidelines for Global Action on Peatlands, 8th Meeting, Spain, para 15(b).
194 CBD, The Role of Protected Areas within the Convention on Biological Diversity, UN Doc UNEP/CBD/AHTEG-PA/1/INF/1 (2003), paras 42-3.
195 Eg M Hockings, S Stolton & N Dudley, IUCN WCPA/WWF/World Bank Alliance/World Heritage Convention Task Force on Management Effectiveness, Evaluating Effectiveness: A Framework for Assessing the Management of Protected Areas, Best Practice Series Publication No 6, Gland, 2000; TNC, Parks in Peril Programme, 1990.
196 CBD, Ad Hoc Technical Expert Group on Protected Areas, Protected Areas and the Conservation and Sustainable Use of Biological Diversity, UN Doc UNEP/CBD/AHTEG-PA/1/2 (2003), para 55.
197 EBI, Integrating Biodiversity Conservation into Oil and Gas Development, Final Report, Washington DC, 2003, 38, 40.
198 EBI Partner, Response to Questionnaire, 2003.
199 EBI, Framework for Integrating Biodiversity into the Site Selection Process, Washington DC, 2003, 3, 17.
200 ICMM, ‘Landmark ‘no-go’ pledge from leading mining companies’ & ICMM Position Statement on Mining and Protected Areas, Press Release, London, 2003.
201 P Watts, ‘Is there a Business Case for Biodiversity ?’ IUCN Business Day Futures Dialogue, 2002, paras 9, 12.
202 IUCN, The Durban Accord: Our Global Commitment for People and the Earth’s Protected Areas, South Africa, 2003.
203 IUCN, Draft on Extractive Industries at the Fifth WPC, South Africa, 2003. .
204 IUCN, Durban Action Plan, Fifth WPC, South Africa, 2003.
205 IUCN, WPC Recommendation 5.01 (2003) on Strengthening Institutional and Societal Capacities for Protected Area Management in the 21st Century, para 1(b)(viii).
206 IUCN, WPC Recommendation 5.08 (2003) on Private Sector Funding of Protected Areas, paras 1(a), (b), (c), (f).
207 IUCN, WPC Recommendation 5.19 (2003) on IUCN Protected Area Management Categories, para 5.
208 IUCN, WPC Recommendation 5.29 (2003) on Poverty and Protected Areas, para 1.
209 IUCN, WPC Recommendation 5.04 (2003) on Building Comprehensive and Effective Protected Area Systems, paras 3, 9, 12.
210 WPC Recommendation 5.21 (2003) on The World Heritage Convention, paras 3, 5.
211 IUCN, WPC Recommendation 5.28 (2003) on Protected Areas: Mining and Energy, 2.
212 Ibid, paras 2, 4.
213 IUCN, Emerging Issues, Fifth WPC, South Africa, 2003, 1.
214 Wilson Sir R, Chairman, ICMM, Address to the Plenary Session on Extractive Industries and Protected Areas at the WPC, South Africa, 2003.
215 CBD COP Decision IV/16 (1998).
216 IUCN, Message of the Fifth WPC to the CBD, South Africa, 2003, 3-4.
217 EBI, Minutes of Consultative Workshop, 2002, 7, 9.
218 Cp Global Reporting Initiative, Sustainability Reporting Guidelines on Economics, Environmental and Social Performance, 2000.
219 Ramsar COP, Resolution VIII (25) (2002) on the Ramsar Strategic Plan for 2003-2008, 8th Meeting, Spain, paras 6, 9, 14.
220 Eg British American Tobacco, Fauna & Flora International and the Guyanan Government: J Jewell, British American Tobacco, Second Progress Report, 2002, 2.
221 J A McNeely, Expanding Partnerships in Conservation, Island Press, Washington DC, 1995.
222 IUCN, WPC Recommendation 5.31 (2003) on Protected Areas, Freshwater and Integrated River Basin Management Frameworks.
223 Earthwatch Institute, Business and Biodiversity: A Guide for UK-based Companies Operating Internationally, Oxford, 2002, 10.
224 Art 15, Convention No. 169 (1989) concerning Indigenous and Tribal Peoples in Independent Countries, International Labour Organisation, 76th Sess (entry into force 5 September 1991).
225 Ramsar COP, Annex to Resolution VII (8) (1999) on Guidelines for Establishing and Strengthening Local Communities’ and Indigenous People’s Participation in the Management of Wetlands, 7th Meeting, Costa Rica, para 4.
226 J Brown & G T Oviedo, ‘Building Alliances with Indigenous Peoples to Establish and Manage Protected Areas’ in S Stolton & N Dudley (Eds), Partnerships for Protection: New Strategies for Planning and Management for Protected Areas, Earthscan Publications, London, 1999.
227 CBD, Protected Areas: Their Role in the Maintenance of Biological and Cultural Diversity, UN Doc UNEP/CBD/AHTEG-PA/1/INF/3 (2003), para 22.
228 IUCN WCPA/WWF, Principles and Guidelines on Indigenous and Traditional Peoples and Protected Areas, 2000 & World Conservation Congress Resolution 1.53 on Indigenous Peoples and Protected Areas, Montreal, 1996.
229 CBD, Briefing Note from the Spanish and Colombian Governments on Protected Areas and Indigenous People, UN Doc UNEP/CBD/WG8J/1/INF/3 (2000), para 14.
230 IUCN, WPC Recommendation 5.26 (2003) on Community Conserved Areas, para 3.
231 NZ Ministry of the Environment, ‘Biodiversity Outside Public Conservation Lands: The Government’s Response’ Wellington, 2001, 2.
232 Ibid, ‘Biodiversity outside Public Conservation Lands: An Update on Government Progress’ Wellington, 2001, 2.
233 EBI, Opportunities for Benefiting Biodiversity Conservation, Washington DC, 2003.
234 Aquinda v Texaco Inc 850 F Supp 282 (SDNY 1994), 945 F Supp 625 (SDNY 1996) & 2nd US Cir Ct App (New York, 2002).
235 EBI, Negative Secondary Impacts from Oil and Gas Development, Washington DC, 2003.
236 CBD, Report on Additional Financial Resources, UN Doc UNEP/CBD/COP/4/17 (1998), para 17.
237 CBD, Note on the Design and Implementation of Incentive Measures, UN Doc UNEP/CBD/COP/4/18 (1998).
238 CBD, Report on Additional Financial Resources, above n236, para 24.
239 Eg Organisation for Economic Co-operation and Development, Handbook of Biodiversity Valuation, Paris, 2002.
240 NZ, Biodiversity Strategy, above n87, 125 & Action 8.2d.
241 Eg IUCN/Convention on Combating Desertification, Extractive Industries in Arid and Semi-Arid Lands: Environmental Planning and Management Guidelines for Mining and Oil and Gas Exploration in Arid and Semi Arid Lands, Draft, 2003, <http://www.iucn.org/themes/biodiversity/sbstta8/industrie.pdf> .
Lessons from the Energy and Biodiversity Initiative
New Zealand Yearbook of International Law