Transcript Environmental Governance and Sustainability – the Challenge of Soils

7th Annual Colloquium of the IUCN
Academy of Environmental Law,
Wuhan, China, 1-5 November 209
ENVIRONMENTAL
GOVERNANCE AND
SUSTAINABILITY – THE
CHALLENGE OF SOILS
PROFESSOR ROB FOWLER,
LAW SCHOOL, UNIVERSITY OF
SOUTH AUSTRALIA
INTRODUCTION
 Adequate legal measures are an essential
prerequisite to good environmental governance
 Significant gap remains (national and international)
re “soils law”
 Desertification, land degradation and drought
(DLDD) are significant and increasing problems
globally
 New legal measures for the protection of soils are
needed at both international and national levels
EXTENT OF DLDD PROBLEMS
“Unsustainable land use is driving land degradation. Land
degradation ranks with climate change and loss of biodiversity as a
threat to habitat, economy and society, but society has different
perspectives on various aspects of land degradation, according to
political visibility. Inaction means a cumulative addition to a long
historical legacy of degradation, from which recovery is difficult or
impossible.”
UNEP GEO-4 Report, 2007.
EXTENT OF DLDD PROBLEMS
Land degradation in the form of soil erosion, nutrient
depletion, water scarcity, salinity and disruption of
biological cycles is a fundamental and persistent
problem. The damage can be arrested, even reversed, but this
requires concerted, long-term investment across sectors, by all
levels of government and by individual land users, research to
provide reliable data, and adaptation of technologies appropriate
to local circumstances. Such a package of measures has rarely
been attempted.
UNEP GEO -4 Report, 2007.
“TRADITIONAL” APROACH OF SOILS LAW
 Regards soil primarily as a resource for agricultural
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(food) production
Reflected in conception of soils law as “agricultural” or
“agrarian” law in some countries
Focus primarily on managing the impacts of farming and
grazing activities
Reluctance to utilize regulatory mechanisms
Strategies based on education, technical assistance and
persuasion (self-regulation) e.g., “landcare” movement
Also payments not to farm in areas subject to extensive
land degradation (e.g., in USA) – land conservation
payments
RECENT TRENDS IN SOIL LAW
 Growing recognition of relationship between soils and related
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ecosystems (”ecosystem management approach”)
For soils within river catchments, has led to development of
new arrangements for combined management of soils and
water (“integrated catchment management” or ICM)
Extension to integrated natural resources management
(INRM) to also address pest plants and animals, protection of
surface vegetation, etc. – e.g., NRM Act 2006 (SA)
In dryland regions, similar focus on sustainable use of soils:
See also UNCCD, Article 2: “The objective of this Convention
is to combat desertification and mitigate the effects of
drought … with a view to contributing to the achievement of
sustainable development in affected areas”
PROPOSED NEW APPROACH TO SOILS
LAW
 IUCN EPLP 52 (2004): “Drafting Legislation for
Sustainable Soils : A Guide” (Ian Hannam and Ben Boer):
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Dominant characteristic of most soils legislation is that it is directed
to the physical problems caused by inappropriate land-use
(agriculture and forestry);
Most soils legislation does not acknowledge soil as a central element
of terrestrial ecology or its significance to the conservation of
biodiversity
Proposes various elements of legal and administrative framework
essential to achieve the sustainable use of soils
To date, only limited implementation of this approach in national
legislation – but includes recent projects in China, Mongolia and
FUTURE DEVELOPMENT OF NATIONAL
SOILS LAW – NEW DRIVERS
 EMERGING PRESSURES ON THE USE OF SOIL FOR
AGRICULTURE
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NEW, COMPETING USES FOR AGRICULTURAL LAND
NEW CHALLENGES RE FOOD SECURITY
PRESSURE FOR LOCAL, ORGANIC FARM PRODUCTS
 NEW ELEMENTS OF SOILS LEGISLATION
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RIGHTS-BASED APPROACH
SOIL CONTAMINATION
 NEW CONCEPTIONS OF THE FUNCTION OF SOILS
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BIODIVERSITY PROTECTION
CLIMATE CHANGE MITIGATION (AND NEED FOR
ADAPTATION)
NATIONAL SECURITY
EMERGING ISSUES – NEW CHALLENGES
SECURITIZATION
SOIL
CONTAMINATION
SOIL
BIODIVERSITY &
CLIMATE CHANGE
SYNERGIES
AGRICULTURE &
FOOD
EMERGING PRESSURES ON THE USE OF
SOIL FOR AGRICULTURE
 EMERGENCE OF COMPETING USES
Biofuel production
 Urbanization (cf., “soil-sealing”)
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Implications for soils legislation:
Traditional land-use planning laws not likely to be appropriate as
focus is on “generic” uses – e.g., “rural” or “agricultural” re
biofuels, or simply overwhelmed by population growth re urban
expansion – e.g., favellas in Brazil;
 Need to develop new types of laws to protect farming lands
 Regulation of biofuels production - e.g., standards?
 Possible control of types of uses through planning instruments
under soils legislation?
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EMERGING PRESSURES ON THE USE OF
SOIL FOR AGRICULTURE
 NEW CHALLENGES RE FOOD SECURITY
 Increasing food shortages since late 90’s (Lester Brown) –
population growth is outstripping production
 Increased pressure on soils re agricultural production
 Q? End of Green Revolution? Can biotechnology provide the
answer?
 Implications for soils legislation:
Even greater need for ecologically-based soils law
 Need for new legislation re:
 Regulation of biotechnology
 Access to, and benefit sharing, re plant and animal
genetic resources
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EMERGING PRESSURES ON THE USE OF
SOIL FOR AGRICULTURE
 PRESSURE FOR LOCAL ORGANIC FOOD PRODUCTS
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Primarily in developed countries
Focus on organic farm products, local production
Also increasing interest in the dismantling of “agri-business”
Implications for soils law:
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Stricter controls on use of farm chemicals
Food labelling measures
Possible laws re ownership of farmlands
NEW ELEMENTS OF SOILS LEGISLATION
 Rights-based approach:
 Procedural rights based on Arhus framework
 Special recognition of role of disadvantaged groups in land
management and care – e.g., women, ethnic minorities,
indigenous peoples
 Substantive rights : Land tenure and access to “commons”
lands for grazing
 Implications for soils legislation – new and additional
provisions to address these matters
NEW ELEMENTS OF SOILS LEGISLATION
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Contamination of soil by industrial pollutants:
Potential harm to human health – especially from groundwater used
as drinking water but also from agricultural produce
 Also impacts on ecosystems health
 Seen as essentially a developed country problem, but will confront
rapidly developing economies also
 extensive natural contamination – e.g., by arsenic in India,
Bangladesh and China
 Need for surveys of extent of soil and groundwater contamination in
developing countries
 Implications for soils legislation:
 Need new laws in many developing countries to establish rules for
assessment and remediation of contaminated sites
 In developed countries, focus to shift to “brownfields”, voluntary
remediation
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NEW CONCEPTIONS OF THE FUNCTION OF
SOILS (“SYNERGIES”)
 BIODIVERSITY PROTECTION
 little attention to protection of diversity in soil types per se
 essentially focused on relationship between soils and forests at
present
 recognition recently that DLDD also significantly impacts on
biodiversity
 Implications for soils legislation:
New measures re REDD at national level in countries with
extensive forest resources
 More effective (eco-system-based) soils legislation
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NEW CONCEPTIONS OF THE FUNCTION OF
SOILS (“SYNERGIES”)
 CLIMATE CHANGE
 Two relevant functions of soils:
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Sources of GHG emissions through DLDD
Sinks for the sequestration of carbon (80% of terrestrial carbon)
 Strategies:
 Mitigation through promotion of :
 changes in farming practices (soils laws and coverage of farming in ETS
laws)
 Reduced deforestation (REDD measures)
 Management of peat lands
 Enhanced bio-sequestration through
 Restoration of degraded areas (cf., CDM/LULUCF)
 Biochar ?
 Again, recognize in ETS laws?
 Adaptation (plans and policies under soils law to provide for changes of land
use in response to climate change)
NEW CONCEPTIONS OF THE FUNCTION OF
SOILS (“SYNERGIES”)
 NATIONAL SECURITY (“Securitization”)
 New conceptions of public security re DLDD
Environmental refugees
 Environmentally-driven armed conflict
NOTE: UNCCD DLDD Issue Paper No.2, Securitizing the Ground,
Grounding Security (2009), policy recommendation 10:
“On the national level, the countries affected by DLDD may enact
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legislation on soil security issues that supports improved agricultural
and land management practices”
 Links to future of human civilization
 Need for new international instrument on soils ?
CONCLUSIONS
 Need to ‘re-envision’ the function of soils from a broader ecosystem
perspective, including re biodiversity and climate change
 Need for new or revised soils law that is based on an ecosystem
management approach and also a “rights-based” approach
 New and additional measures also are required re:
 Site contamination
 Carbon sequestration
 Mitigation of GHG emissions and adaptation of farm lands to climate
change
 Regulation of biotechnology
 Access and benefits sharing re farm plant and animals
 Ultimately, soils are essential to the continuance of human
civilization and therefore require effective protection at the
international, national and local levels