Issues in the Governance of Marine SpacesDr. Michael SUTHERLAND and Dr. Sue NICHOLS, Canada
1) This paper is the introduction chapter of FIG publication “Administering Marine Spaces: International issues”. This publication is result of FIG Commissions 4 & 7 Working Group 4.3. FIG publication 36, Copenhagen 2006, ISBN 87-90907-55-8. AbstractGood governance is based on recognition of the interests of all stakeholders and inclusion of their interests where possible. Interests can be expressed in a variety of ways, for example: sovereignty, jurisdiction, administration, ownership (title), lease, license, permit, quota, customary rights, aboriginal rights, collective rights, community rights, littoral rights, public rights, rights of use, and public good. Coastal states are challenged with managing the multidimensional tapestry of these interests (and perhaps others) in the coast and offshore. Over the next few decades those responsible for marine policy and administration have been challenged with trying to understand this tapestry and communicating it to the various decision makers and stakeholders. However, addressing the complexities associated with these interests solely from a boundary delimitation perspective does not necessarily improve the governance of marine spaces. This paper explores a number of legal, technical, and stakeholder issues related to governing marine spaces. 1. INTRODUCTIONThe governance of any geographical area, including marine spaces, is actually the management of stakeholder relationships with regard to spatial-temporal resource use in the pursuit of many sanctioned economic, social, political, and environmental objectives. Good governance is based on recognition of the interests of all stakeholders, and inclusion whenever possible. Governance involves setting priorities that may establish hierarchies of interests, but the basis is recognition of what is excluded, as well as what is given priority in certain situations. These interests can be expressed in a variety of ways, for example: sovereignty, jurisdiction, administration, ownership (title), lease, license, permit, quota, customary rights, aboriginal rights, collective rights, community rights, littoral rights, public rights, rights of use, and public good. One feature of being a coastal state is that there is a multidimensional tapestry of these interests (and perhaps others) in the coast and offshore. Marine administrators are challenged with trying to understand and communicate this to the various decision makers and stakeholders. A marine cadastre, or other marine information management system, serves to meet the information requirements for governance of marine spaces by facilitating the management of thematic information and their boundaries and limits. In past research we initially assumed that spatial delimitation of interests would help clarify resource management and use regime in marine spaces. What was learned from our research was that this approach was very limited and probably impossible. The main reason is that there are numerous marine boundaries, and four dimensions at least had to be considered. Drawing lines on charts was often not feasible, legally valid nor of value. The legal profession taught us that there were a myriad of boundaries: at least one if not more for every resource and every resource use. Starting from the boundary perspective was a nonstarter. Effective governance of marine spaces requires that a number of things need to be considered including:
To address the listed considerations, this chapter will explore the governance of marine spaces by focusing on a number of stakeholder issues, legal issues, and technical issues. However what is meant by governance will first be discussed. 2. GOVERNANCEThe governance of marine spaces is the management of stakeholder activities in these spaces. To optimize this management and to address stakeholder issues requires that effective governance frameworks be in place. Collaborative, cooperative, and integrative governance are improved frameworks for dealing with stakeholder issues. Traditional governance models have been based on a management science approach where the premise is that leadership of organizations (public, private or civic) is strong, and have good understanding of their environment (future trends, rules of the game, and the organization's goals) [Paquet, 1999]. As such, the leaders provide direction for the groups they represent. A hierarchical governance model is one such example. This form of governance, usually practiced by the state or some other governing authority, is usually enacted through policies, laws and regulations [Hoogsteden, Robertson and Benwell, 1999; Paquet, 1999; Savoie 1999]. This hierarchical model assumes a top-down approach is always best, whereas subsidiarity (i.e., the principle based on the assumption that individuals are better able to take care of themselves than any third party) might alternatively provide a better solution in some circumstances. Subsidiarity would support, for instance, the devolution of responsibilities to citizens by provincial/state authority (or to states/provinces by federal authority) as much as possible unless they were unable to manage [Rosell, 1999; Chiarelli, Dammeyer and Munter, 1999]. The management science approach also assumes that organizations are operating in "a world of deterministic, well-behaved mechanical processes" [Paquet, 1999]. However, life is full of paradoxes, contradictions, and surprises [Handy, 1996], so the management science approach has been inadequate, continually faced with situations that are ill-defined, uncertain, unstable, or unreliable. As a result of the failure of the management science approach to governance to adequately handle all the complexities of life, other models have been proffered. These models are based on cooperation, coordination, collaboration, integration or other principles of shared responsibilities. The similarities or overlaps in the definitions of these models again underscore the absence of general principles to help guide in the design of good governance structures [Paquet, 1999]. Among these models are:
These models are by nature subversive to those organizational structures based on traditional models of governance. They challenge the view that an "omnipresent person or group has monopoly on useful knowledge and can govern top down" [Paquet, 2000]. There are many definitions of governance. Some of these include:
A number of points essential to governance are alluded to in the above definitions. Firstly, governance is all encompassing, touching virtually every area of human existence. Secondly, governance can take many forms, and takes place on many levels. This is supported by Masson and Farlinger [2000]. Each form of governance makes use of facilitative processes, mechanisms and systems to pursue goals. Thirdly, governance is about the provision of direction towards the achievement of objectives. The direction taken must take cognizance of the interests, rights, responsibilities, and differences among all stakeholders. 3. STAKEHOLDER ISSUESPractical problems in governance include:
This can be summarized as defining the governance process in terms of liaising, listening, learning, and leading. Too often agencies responsible for programs and projects focus only on the last step. 3.1 Stakeholder identification One of the greatest limitations in most marine programs and projects is having a narrow approach to stakeholder participation. This is often driven by issues such as: time constraints, lack of knowledge, single issue focus, or governmental silos. It is particularly true in coastal region were there may be jurisdictional uncertainty, overlaps, and gaps. However, the top down approach, while perhaps being the easiest to manage, is also the least likely to have sustainable results. Spending time at the local level in the initial stages of marine activities (e.g., through workshops and town hall meetings) can help to identify the breadth of stakeholders and their interests. 3.2 Effective Stakeholder Engagement Effective consultation is not just “this is what we are going to do for you.” Frequently, information meetings allow question periods but do not include processes for taking and putting input to use. A variety of means can be used to obtain input including web portals. The information provided for consultation also has to have the right message and medium for the variety of different audiences. 3.3 Managing Stakeholder Input Once input is obtained, consensus building strategies are required to establish priorities and identify appropriate solutions. Frequently the priorities are different at the local, regional, and national level. Whoever is leading also has to listen and learn if the differences are to be accommodated or resolved. And this is an on-going process that will effect the life of the governance activity. The above may seem simplistic, but ignoring these issues can undermine the best intentioned activities. Some examples in Canada include:
4. LEGAL ISSUESAnother way of viewing marine governance is through an analysis of governance functions that link governance to the law and information. These include the following (Nichols, Monahan and Sutherland, 2000):
This approach highlights the role of the legal frameworks within each nation in managing marine space. These frameworks are generally multi-layered ranging from the United Nations Law of the Sea Convention (UNCLOS), international customary law, and international treaties to national, state, and local level laws derived from tradition, legislation, and the courts. 4.1 The Legal Complexity of Interests in Marine Space The United Nations Law of the Sea Convention [UN, 1982] establishes a framework for national and international governance by, among other provisions, establishing limits of national resource use and control. However, each nation must also have a set of procedures for allocating resources within these zones. In many cases, this depends on tradition and legal frameworks. These frameworks may be defined by the local, regional (provincial/state) and/or national legal systems and constitutions. Even when only government interests are considered, the resulting marine/coastal legal arrangements are usually complex. To illustrate this complexity, consider the following terms often used interchangeably or inappropriately [Cockburn and Nichols, 2002]:
4.2 The Specific Nature of Marine Interests In theory, land and marine spaces both have this complex legal regime. However, three characteristics of marine interests make the complexity more apparent:
This fragmentation of interests is also usually reflected in (or caused by) the institutional structures of government. Thus the Ministry of Fisheries may administer an area of marine space for fishing and related activities and the same space is subject to different regulations for navigation that is regulated by the Ministry of Defense. One result is the fact that information about the stakeholders, their interests, and activities is widely scattered throughout government. 4.3 The Elusive Land-Water Interface Much of marine activity is focused on the coast. Similarly, the intensity of land use in many countries is greatest at the coast in large part because of traditional transportation and shipping through ports. The result is that the number of stakeholders, the opportunities for conflict among their interests, and the value they or society places on those interests is at a maximum at the coastline. This results in and is affected by the following issues, among many others:
5. TECHNICAL ISSUES5.1 The importance of information Information is an essential technical component of the governance of marine spaces. Information on resources that currently exist, the nature of the environment within which those resources exist, as well as on the users and uses of those resources is always a requirement for effective evaluation and monitoring of marine areas. Information on, for example, living and non-living resources, bathymetry, spatial extents (boundaries), shoreline changes, marine contaminants, seabed characteristics, water quality, and property rights can all contribute to the sustainable development and good governance of coastal and marine resources. All of these types of information have spatial components and therefore spatial information is important to the good governance of marine spaces (Figure 2) [Sutherland, Wilkins and Nichols, 2002].
Figure 2: The role of spatial
information in governance Boundary information is one type of spatial information that is essential in the management and administration of marine spaces. However in some cases it may be better not to focus on boundaries, as boundary uncertainties (e.g., as with federal and provincial boundary uncertainties in some coastal regions in Canada) are sometimes the cause of social and administrative conflicts in coastal and marine spaces. Recent governance research supports the relevance of imprecise or ill-defined boundaries insofar as the existence of these boundaries is not a catalyst for dispute [Nichols, Monahan and Sutherland, 2000]. The precise delimitation of boundaries usually become important in relation to the need to allocate equitable resources perceived to be dissected by the potential boundary [Hildreth and Johnson, 1983]. For example, such is the case with the boundary dispute between Nova Scotia and Newfoundland [Arbitration Tribunal, Nova Scotia-Newfoundland Dispute, 2002]. 5.2 The issue of four-dimensional rights in marine spaces When considering marine environments from a right-based perspectives, one ought to consider that in one column of the marine environment there are rights to the surface of the water column (e.g. navigation), to the water column it self (e.g. fishing), to the seabed (e.g. fishing and mineral resources), and to the subsoil (e.g. mineral resources). The very nature of the marine environment requires that rights be considered in terms of at least three dimensions, in snapshot, and more practically in four dimensions considering that rights to marine spaces change over time. Technically, therefore, tools developed to manage and administer rights to marine spaces should consider the inherent multidimensional nature of those rights [Ng’ang’a et al, 2004]. 5.3 Dealing with multiple interests for the same space at the same time Concepts such as the marine cadastre or marine administration systems have been discussed in many academic papers as technical means for aiding in the management and administration of rights in marine spaces. Any technical tool such as a marine cadastre or marine administration system is faced with the challenges of not only dealing with the multidimensionality of rights to marine spaces but also with the fact that in many international jurisdictions there is the added complexity of overlapping interests (e.g., jurisdictional rights, administrative rights, title, leases, customary rights, aboriginal rights, public rights, etc.). The design of marine information systems dealing with the management of rights information ought to take the possibility of overlapping and co-existing rights into consideration [Ng’ang’a et al, 2004]. 5.4 Fitting into larger ‘information’ initiatives The management of marine spatial information is an asset to the efficient management of marine resources, and can in many instances help to avoid minimize conflict among the many stakeholders. Recognizing this, and the fact that no one stakeholder possesses all necessary information, many jurisdictions have begun initiatives to better manage coastal and marine spatial information and to apply information technology and concepts to the management of marine spatial information [Ng’ang’a et al, 2004; Nichols, Monahan and Sutherland, 2000]. In order to coordinate the dissemination of marine spatial data that can support good governance of coastal and marine spaces, marine geospatial data infrastructure initiatives are underway in many parts of the world. Initiatives such as Canada’s Marine Geospatial Data Infrastructure (MGDI) and the U.S. Federal Geographic Data Committee (FGDC) are considering the information and other infrastructure components necessary to provide geographically dispersed stakeholders with spatial data to support governance decision-making. Regional bodies such as the Permanent Committee on GIS Infrastructure for Asia and the Pacific (PCGIAP) are also taking steps to implement marine geospatial infrastructures. The components of any marine geospatial data infrastructure are expected to include key spatial data, computer network infrastructures, spatial data management software and other software, data- and other standards, metadata, stakeholders, and possibly a spatial data clearinghouse. Table 1 shows spatial data infrastructures as part of a marine information system from a property rights perspective. Table 1: Components of a Marine
Information System from a Property Rights Perspective
5.5 Issues in defining coastline boundaries Tidal boundaries along coasts in North America are defined in law either by the “intersection of a specific tidal datum with the shore” or by “tide marks left on the shore by the receding waters of a particular stage of tide” [Nichols, 1983]. Internationally this is more or less true. Because tidal datums are related to specific sea levels and therefore subject to temporal and spatial variations, and because the marks left by tidal actions on shores also vary with the changes in sea level and tides, boundaries defined by these methods are sometimes subject to ambiguous positioning in 3-dimensional space. Constant tidal action against the shore can cause the deposit of material on the shore or the erosion of shore material and therefore the physical configurations of shorelines are subject to constant change [Flushman, 2002; Lamden and de Rijcke, 1985; Nichols, 1983]. This means that resurveys are sometimes necessary in order to keep coastal boundary information up to date. These and other factors are issues in defining coastline boundaries and therefore indirectly affect the governance of marine spaces since, for example, the implementation of jurisdictional and administrative rules and regulations often depend upon defined boundaries. 5.6 Science and Local Knowledge As on land, traditional or local knowledge can play an important role in marine governance. Unfortunately the value of local knowledge is not always appreciated or is ignored because: it is not standardized; it is not considered ‘objective’; or it is difficult to obtain. However science has only begun to give a picture of the vast ocean territory, even near the coast. We have snapshots and sporadic data, which like lead line depth measurements, leave much to be discovered and understood. Local knowledge is an asset not to be underestimated in filling in those gaps, validating the scientific sample and theories, or in understanding the interconnection within ecosystems. Fishers along the East and West Atlantic coasts, for example, could have advised the scientists who helped governments who established fishing quotas in the 1970s-1990s that many north Atlantic the fish stocks were declining, long before the science driven government policies endangered the fishing resources. 6. DISCUSSIONMarine cadastres and other marine administration information systems have been proposed as technical solutions to the management of information about interests in marine resources in support of coastal and ocean governance. It is easier to design such systems to be useful for managing information on single activities or resource use (e.g., petroleum leases) occurring in marine spaces. However, in order to be of maximum benefit to the governance of marine spaces these information systems will have to be able to manage and visualize information on multiple marine resource interests that overlap in 3-dimensional space, and time. These systems should also function in an environment of efficient and effective governance and legal frameworks, and optimal institutional arrangements that meet the often diverse needs of identified and engaged stakeholders. Therefore, we would like to propose that activities affecting the rights and responsibilities, including information management, need to consider the following:
The oceans provide an opportunity to not make the same mistakes we have made in land resource management and land information systems. Perhaps what we can create for marine space can help to improve our governance and information systems on land. REFERENCESArbitration Tribunal, Nova Scotia-Newfoundland Dispute (2002) http://www.boundary-dispute.ca/. Accessed March 2002. Black, H. C. (1979). Black’s Law Dictionary Fifth Edition, by Henry Campbell Black (5th Ed. By the Publisher’s Editorial Staff), West Publishing Co., St. Paul, Minn. 1979. Charette, N. and A. Graham (1999). "Building partnerships: Lesson learned." In Optimum, Vol. 29, No. 2/3. Chiarelli, B., M. Dammeyer and A. Munter (1999). "Why regions matter: Perspectives from Europe and North America". In Gouvernance, No. 1, March. Cockburn, S. and S. 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Paper presented at Coastal Zone 2000 conference, Saint John, NB, September. Meltzer, E. (2000). "Oceans governance: A paradigm shift or pipe dream?" Paper presented at Coastal Zone 2000 conference, Saint John, NB, September. Ng'ang'a, S. M., M. Sutherland, S. Cockburn and S. Nichols (2004). "Toward a 3D marine cadastre in support of good ocean governance: A review of the technical framework requirements." In Computer, Environment and Urban Systems, 28 (2004), pp. 443-470. Nichols, S. (1983). “Tidal Boundary Delimitation.” Technical Report # 103, Department of Geodesy and Geomatics Engineering, University of New Brunswick, Canada. Nichols, S., D. Monahan and M. D. Sutherland (2000). "Good Governance of Canada’s Offshore and Coastal Zone: Towards and understanding of the Maritime Boundary Issues." In Geomatica, Vol. 54, No. 4, pp. 415-424. Nichols, S., O. Chouinard, H. Onsrud, M. Sutherland, and G. Martin [2006]. “Adaptation Strategies” Section 4.8 in Impacts of Sea-Level Rise and Climate Change on the Coastal Zone of Southeastern New Brunswick, R. Daigle, ed., Environment Canada (in press). Paquet, G. (1994). "Reinventing Governance." In Opinion Canada, Vol. 2, No. 2, April. Paquet, G. (1997). "Alternative service delivery: Transforming the practices of governance." In Alternative Service Delivery: Sharing governance in Canada. Eds. Ford, R. and D. Zussman, KPMG • The Institute of Public Administration • University of Ottawa Libraries. Paquet, G. (1999). Governance Through Social Learning. University of Ottawa Press. Paquet, G. (2000). "Subsidiarity is an ugly but powerful design principle." In The Hill Times, Ottawa, October 2nd Rosell, S. A. (1999). Renewing Governance: Governing by learning in the information age. Oxford University Press. Savoie, D. J. (1999). Governing from the Centre: The concentration of power in Canadian politics. University of Toronto Press. Sutherland, M. D. (2005). “Marine Boundaries and the Governance of Marine Spaces”. Ph.D. Dissertation (University of New Brunswick) and University of New Brunswick technical paper, 2005. Sutherland, M. D., K. Wilkins and S. Nichols (2002). "Web-Geographic Information Systems and Coastal and Marine Governance." In Optimum, Issue 3, Spring 2. United Nations (1982). United Nations Law of the Sea Convention. New York: UN. Walker, D.M. (1980). The Oxford Companion to Law. Oxford: Clarendon Press. BIOGRAPHICAL NOTESDr. Michael Sutherland is a graduate in land information management from the Department of Geodesy and Geomatics Engineering, University of New Brunswick, Canada. He is currently engaged in marine environment-related research activities at the School of Management, University of Ottawa and Department of Oceanography, Dalhousie University, Canada. He lectures part-time at Ryerson University, Canada. Michael is a member of the Canadian Institute of Geomatics, and is Chair of the International Federation of Surveyor’s Working Group 4.3, Commission 4 (hydrography, coastal zone management, ocean governance, and marine cadastre). Dr. Sue Nichols is a Professor in Land Administration and Property Studies at the University of New Brunswick and has conducted research on tidal and marine boundaries for over 20 years. Sue is a Past-President of the Canadian Institute of Geomatics and has been on the Advisory Committee for the Canadian Minister of Natural Resources. She engaged in research as Project Leader on a multi-year, interdisciplinary research project on "Good Governance of Canada's Oceans: The Use and Value of Marine Boundary Information" that included examination of boundary uncertainty, marine cadastre, and other issues related to ocean governance. CONTACTSMichael Sutherland, Ph.D. Sue Nichols
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