Designing Marine Spatial Planning Legislation for Implementation: A Guide for Legal Drafters
This article was originally published by Environmental Law Institute.
To date, little attention has been paid to how countries can give their marine spatial planning initiatives the force of law. Designing Marine Spatial Planning Legislation for Implementation: A Guide for Legal Drafters is intended to fill this gap, and to provide a starting point for the busy government lawyer who has been asked to “draft a marine spatial planning law.”
The Guide contains information about essential components and subcomponents of marine spatial planning legislation, describing each and highlighting its role and significance. The Guide also provides examples of textual provisions from existing marine spatial planning laws and regulations, along with sample provisions prepared by the authors, to illustrate how legislative or regulatory language can address each component. In addition, the Guide offers tips for legal drafters.
A product of the Blue Prosperity Coalition, this Guide was prepared by the Environmental Law Institute (ELI) and Animals | Environment PLLC (AELaw). The authors wish to express their gratitude to the Waitt Institute, especially Kathryn Mengerink and Vanessa Dick, for their ongoing input and support, and to the Waitt Foundation for its generous funding. A special thank you to all the participants of the Blue Prosperity Workshop on Drafting Legislation to Support Marine Spatial Planning, conducted in Auckland, New Zealand in September 2019, for their invaluable feedback and insights. ELI is also grateful to IUCN Oceania for help in organizing the workshop.
We have prepared a series of short training videos summarizing the main takeaways from each section of the Guide. Below, you can find links to the videos, summaries, and a transcript for each. All the videos are presented by Sofia O’Connor, Staff Attorney at the Environmental Law Institute.
Summary: This first video provides an introduction to the Guide, while each subsequent video focuses on one of the eight components outlined in the Guide. The first video explains why it’s important to incorporate marine spatial planning into a country’s legislative framework, who the intended audience is, and how the Guide should be used by legal drafters.
Summary: The second video focuses on the 1st, Preliminary, component of marine spatial planning legislation, covered in the Guide. Relevant subcomponents include the short title, definitions (interpretation), scope of the law, objectives, guiding or interpretive principles, and ocean policy.
Summary: The third video focuses on the 2nd component of marine spatial planning legislation, Institutional & Administrative provisions. This component addresses the governmental institutions and other entities responsible for administering the law. Key subcomponents include: identifying the ministry or other governmental entity responsible for coordinating planning activities under the law, and any new powers; providing for a marine advisory body; and clarifying the role of traditional institutions in marine spatial planning.
Summary: The fourth video focuses on the 3rd component of marine spatial planning legislation, Marine Spatial Planning. Provisions governing the contents of a marine spatial plan and the process for adopting or modifying a marine spatial plan are a crucial part of marine spatial planning legislation. The subcomponents covered here include: plan elements and criteria; zones; plan adoption, modification, and revocation; all ocean areas and uses; plan duration and periodic review; binding effect of a plan; and relationship of the plan to other laws.
Summary: The fifth video focuses on the 4th component of marine spatial planning legislation, Public Participation & Access to Information. Effective marine spatial planning depends on successful public engagement. Stakeholder consultations are necessary to understand what uses and restrictions should exist in each zone and how each zone should be delineated. Relevant subcomponents include identifying what information is public, ensuring access to information, and responding to and incorporating public input.
Summary: The sixth video focuses on the 5th component of marine spatial planning legislation, Sustainable Funding. Effective management of zoned ocean areas requires a sustainable stream of funding. The task of the legal drafter is to ensure the existence of a workable mechanism for receiving and directing funds that become available – from the full range of potential sources.
Summary: The seventh video focuses on the 6th component of marine spatial planning legislation, Enforcement and Compliance. Enforcement mechanisms facilitate compliance with the law and provide the government with ways to respond to violations. To the extent enforcement and evidentiary provisions already exist in a country’s legal framework, the legal drafter should ensure that at least one set of provisions applies to violations of the new MSP law, and consider whether those provisions should be updated. Relevant subcomponents include offenses and penalties; forfeiture; natural resource damages; evidentiary presumptions; citizen suits; and authorized officers.
Summary: The eighth video focuses on the 7th component of marine spatial planning legislation, Miscellaneous provisions. This component covers the following subcomponents: Regulations; Data & Monitoring; Conflict Resolution; Regional & International Harmonization; Grandfathering of Existing Activities; Repealers & Savings Clauses; Binding the Crown; and Schedules. Particular attention is given to provisions allowing for the promulgation of Regulations.
Summary: The ninth video focuses on the 8th component of marine spatial planning legislation, Traditional Rights & Management. In some countries, indigenous people enjoy rights over certain ocean resources by custom and tradition. In cases where traditional rights and management form part of the legal and policy framework, it is important to take them into account in marine spatial planning legislation.
We have also prepared a self-assessment questionnaire that viewers can use to assess their understanding of the material covered in the educational videos. We hope you have enjoyed the videos.