Course:FRST370/Customary marine tenure on Ngarchelong and the islands of northern Palau, Oceania.

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A map of Palau The state of Ngarchelong is highlighted red

This case study examines the Customary Marine Tenure on Ngarchelong state and the islands of northern Palau, Oceania, and references various documentation that highlight the changes of the Customary Marine Tenure system and community-based fisheries management practices over time. There are still areas that need to be improved upon but have been acknowledged for their ability to conserve new Marine Protected Areas using traditional and historical practices. There has been a great loss of the customary authority to practice traditional resource conservation over the last three or more decades according to the Elders in these communities. Further exploration of the transition from community-based to polycentric governance will be necessary for realizing potential implications and ensuring this community's future success.

Description

As stated in the 2015 Statistical Yearbook, the Republic of Palau has a population of approximately 18,000 and a land area of only 189 mile2, making it one of the world’s smallest nations.[1] Located approximately 600 miles east of the Philippines, Palau consists of more than 340 islands, eight of which are inhabited: Kayangel, Babeldaob, Koror, Peleliu, Angaur, Sonsorol, Pulo Anna, Hatohobei and Helen’s Reef.[1] Babeldaob Island then consists of ten states, one of which is Ngarchelong.[1] The Republic of Palau has a robust tourism sector, a UNESCO World Heritage Site, and highly publicized commitments to environmental conservation.[2]

According to Carlisle and Gruby, Koror State is home to two-thirds of the country’s population and a majority of industries, including tourism.[2] Koror also hosts Palau’s only hospital, public secondary school, and community college.[2] Therefore, many Palauans from rural villages have left their ancestral homes over the years to resettle in or near Koror for economic, health, education, and marriage.[2]

The flag of Ngarchelong

Ngarchelong is a rural and fishery-dependent state in the Republic of Palau, which is on the northern tip of Palau’s largest island, Babeldaob, about an hour’s drive from Koror.[2] Ngarchelong’s resident population stands at approximately 316, distributed among eight small rural hamlets.[2] Ngarchelong has a large marine territory and a relative abundance of marine resources.[2] Despite a land area of only about 5 mile2, Ngarchelong has over 76 mile2 of marine territory in what is colloquially known as the Northern Reef of Palau.[2] Its fishery is a typical tropical multi-species fishery in that well over 50 species of fin-fish are exploited by fishers using a variety of gears and methods.[2]

Tenure arrangements

According to Putney, Palauans had effectively used marine protected areas (MPAs) in the form of Customary Marine Tenure (CMT), which is village-based ownership of reefs and lagoons, for thousands of years.[3] Each village owned the reefs and lagoons directly in front of their land, so villagers were invested in the long-term sustainability of marine resources since they provided their main source of protein.[3] In Palau, ownership was at the village level and was previously an effective tool for resource management.[3] This was due to the cultural context and respect that the villagers had for elders and their community.[3]

CMT historically served important social functions, including conflict minimization and resource distribution.[2] More recently Carlisle and Gruby defined CMT as “a situation where a social group controls access and use of marine resources on traditional nearshore fishing grounds”.[2] Present-day customary marine tenure in Ngarchelong sees the right to access and use fishery resources existing in a state of legal pluralism.[2] Legal pluralism is seen as the successor to historical CMT and is a combination of state law, bul, norms, strategies, and historical artifacts” according to Carlisle and Gruby.[2]

To possibly explain the evolution of CMT in Palau, Carlisle and Gruby suggest the resource distribution and the securing of benefits associated with the sharing of marine resources under village control.[2] Sharing and reciprocity were among the basic views of traditional Palauan society, and village control over CMT was flexibly administered to accommodate these principles.[2]

Administrative arrangements

Palau’s governmental institutions were modelled after the United States of America’s federal system because Palau went through the process of decentralization from the USA in 1994 (Carlisle & Gruby, 2018)[4] Therefore, the government includes a national level and a state-level, which consists of 16 states[4].

The national government’s constitution went into force in 1981 and also, each state has a separate constitution (Carlisle & Gruby, 2019).[2] According to Ngarchelong’s constitution, it is the “Supreme Law of the State”; however, it conforms with the national constitution (Constitution of the state of Ngarchelong, 1982).[5]

While the national constitution gives each state “exclusive ownership of all living and non-living resources,” (Constitution of the Republic of Palau, 1979)[6] this is limited in the state of Ngarchelong because the Palau government claims ownership over the 12 square miles of the Northern Reef.[4] However, rising tensions over de jure natural resource claims have led to the creation of shared resources between national and state governments.[4] While both national and state constitutions address that the government’s law is cohesive with traditional law, otherwise known as bul, traditional leader ownership of the Northern reef remains unwritten.[2]

Both levels of government institutions share management authority over the Northern Reef[2][6]. Also, the national constitution states that the “[s]tatutes and traditional law shall be equally authoritative (Constitution of the Republic of Palau, 1979).[6] In practice, the state authority of Ngachelong's fishing waters has weakly been enforced due to a lack of resources within the state government patrol unit.[4] Before state control of fishing grounds was enacted, citizens of Ngarchelong had customary rules that still play a heavy role in the enforcement of fishing restrictions today.[2]

In general, state and customary laws are noticeably aligned with one another, and this could be due to the close relations residents and chiefs of Ngarchelong have with their state government, and the constitutional support bul has.[2] For example, bul declares no-take fishing areas that are supported by state legislation in which they are formally known as MPAs.[4] According to the Ngarchelong Marine Managed Area Management Plan, which was a proposed state-level management plan that aims to protect the Northern Reef and restrict fishing practices, traditional leaders are inclined to advise the other interested stakeholders and approve the plan before it is legally implemented by the state authority (Ngarchelong State Government, 2012).[7]

Non-governmental organizations (NGOs) also contribute to state laws in a similar way to what bul does, which is through advisement in the making of written laws.[7]

Affected Stakeholders

The tiger grouper or marbled grouper (Epinephelusfuscoguttatus) is one of the Ngarchelong government's management target species because it is of importance to the local community.[7]

The stakeholders affected by the laws of the Northern reef are the residents of Ngarchelong, and the extent of their power varies under the customary criteria declared by the clan.[2]

The clan acquires numerous traditional and ancestral benefits from fish that are of great importance.[2] For one, an exchange network between fish and other material or non-material values that have existed over generations has resulted in the fruition of social norms.[2] Social norms such as an individual’s duty and responsibility aids in the maintenance of relationships as well as generational security within the clan.[2] This is all in addition to the identity values the clan obtains through fish and the practices that surround the animal, as it plays a role in their rituals, is heavily tied to their ancestors and encourages social cohesion within the community.[2] The clan exercises their power through their establishment of Customary law that declares an individual’s fish usage guidelines.[2] If an individual is of clan descent they have “universal fishing rights” and can consume, sell, and customarily use fish.[2] It is important to note that most residents of Ngarchelong obtain these kinds of rights. Individuals who are from, but do not reside in Ngarchelong, who are of clan descent may fish with the unspoken expectations that they will contribute to the community.[2] Individuals who are not from Ngarchelong are not allowed to fish unless granted permission from the chief to do so under special circumstances.[2]

The residents of Ngarchelong exercise these rights through word of mouth and already established social norms, therefore making bul hard to implement in matters of illegal fishing of non-resident and out of state individuals.[2] However, the pressure of the social norms has greatly contributed to the penalties on overfishing amongst residents of the state, as well as the greater promotion of bul amongst the people of Palau via radio.[2]

The state government is somewhat of an affected stakeholder as each hamlet within Ngarchelong is represented in the state government by “its chief and one elected representative who shall be elected by the voters of that [hamlet]” (Constitution of the state of Ngarchelong, 1982).[5] Considering voters are mostly residents that hold lineage to the clan and the hamlets have a small population, traditional principles are sure to have a strong say at the state level.[4] The government of Ngarchelong's main objectives is to prevent the illegal catching and selling of fish within the Northern Reef and to enforce these restrictions through the use of patrol boats and the issuing of fishing permits and citations.[2]

Interested Outside Stakeholders

The national government is an interested stakeholder because they are not in direct association with the Northern Reef yet exercise their power through written laws and the enforcement of those laws. They exert their power to a broad extent, as the laws they enact apply to the whole country, such as restrictions on certain fishing practices and fish species to prevent ecosystem destruction and overexploitation.[2] The national government has also established MPAs through the implementation of the Palau Protective Areas Network (PAN) in 2003 to reach these objectives (Friedlander et al., 2017).[8] PAN has shown to be effective in the conservation of biodiversity, as well as a positive stimulant for economic growth.[8]

Other interested stakeholders are NGOs that influence both the national and state governments by providing their expertise and resources in the conservation of ecosystems.[2] At a national level, the United Nations have influenced the Palau government through the Micronesia Challenge, where part of the goal “is to effectively conserve at least 30% of the near-shore marine resources” by 2020 (Micronesia Challenge, 2012).[9]

At a state level, NGOs such as The Nature Conservancy have worked closely with the Marine Resource Planning Team who produced the Ngarchelong Marine Managed Area Management Plan.[7] Along with the primary goal of conservation, the plan has sustainable economic and social purposes, such as to “[s]upport limited, small scale commercial fishery” and “Meet subsistence food fish needs of the people of Ngarchelong".[7]

Timeline

1981, January 1st - Palau's constitution went into force.[6]

1994:

  • Palau gained independence and became a constitutional democracy in free association with the US.[4]
  • Palau's Marine Protected Act which was modelled on traditional knowledge to protect fish and establish MPAs.[8]

2000 - State law that limits fishing access to citizens goes into effect and has a little amount of practical effect.[2]

2003 - Palau Protected Areas Network (PAN) went into effect.[8]

2006 - Palau participated in the Conservation Action Planning (CAP) workshop conducted by The Nature Conservancy's Pacific Marine Efroymson Program.[7]

2007 - bul that limits fishing access is issued by Ngarchelong's highest chief and grants the state authority to enforce a fishing law.[2]

2009, February - Ngarchelong's planning team participated in the 2nd iteration of the CAP process, where they determined:

  1. conservation targets
  2. threats
  3. a situational analysis
  4. one priority objective with strategies and actions
  5. measures and monitoring indicators
  6. a capacity assessment [7]

2009 - 2011 - Planning team developed the Ngarchelong Marine Managed Area Management Plan with funding assistance from the German LifeWeb Initiative and the technical advice from The Nature Conservancy[7]

Late 2011 - The Palau Conservation Society was contracted to write the Ngarchelong Marine Managed Area Management Plan with directions from the planning team.[7]

2012 - Northern Reef fishery co-management initiative, organized by NGOs, is initiated between the governments, traditional leaders, and fishers of the Ngarchelong and Kayangel states.[4]

2014 - Marine Protection Amendment "to establish a Giant Clam Seed Sustainability Project Fund, and for other related purposes" passes into law.[10]

2015 - Marine Protection Amendment "to control the export of any living resource that primarily inhabits the reefs of Palau, and for other related purposes" passes into law.[11]

Discussion

The Republic of Palau has had many changes over the years. There has been active dialogue during the past few decades regarding reincorporating Customary Marine Tenure (CMT) into community-based fisheries management practices in the Western Pacific.[3] CMT in the local villages of Ngarchelong weakened by the formal transfer of resource ownership & management responsibility to the state.[2]

Societal changes associated with colonization, development, and nation-building in Oceania have greatly impacted customary property rights throughout the region.[2] In some cases, they have adapted and persisted, while in others they have collapsed.[2] Some people think that adaptation of CMT in the face of social and demographic changes may be more likely to occur when rights holders live in proximity to one another and hold a higher degree of social and cultural bond, while others find that continued maintenance of CMT is associated with greater distance from markets, lower migration, higher dependence on fishing, and more conflicts over resources.[2] Ideas like these are where some of the successes and failures may stem from.

Some of the assessed successes include: increased the number of MPA’s with more than 45% of the country’s nearshore waters now under protection (~500,000 km2)[8]; Palau’s Marine Protected Act of 1994[8]; Micronesian Challenge: designate 30% of their marine resources and 20% of their terrestrial resources as conservation areas by 2020[8]; collaborative approach to co-management of Northern Reef fishery between Ngarchelong and Kayangel[4]; the national government enacted prohibitions on destructive fishing methods, seasonal closures on several fish species, bans on harvest of two over-exploited fish species.[4]

Some of the assessed failures include: issues of outsiders not respecting fishing laws, overfishing/damaging areas after the constitution effectively removed authority from village chiefs; independence contributed to the erosion of traditional tenure and management systems[12]; rapid economic development (2008) leading to loss of TEK; increasing resource scarcity owing to increasing fishing pressure, increasing demand by the booming marine-based tourism sector, and impending resource degradation from physical development.[12]

Assessment

It can be determined that the governance of Ngarchelong’s territory in the Northern Reef is a combination of state law and bul.[4] These overlapping systems of authority have led to the weak enforcement of fishing rules in the Northern Reef that prevent fish decline. Both state law and bul restrict fishing in the Northern reef to citizens only, yet, both define “citizen” somewhat differently, which leads to an overall confusion on fishing laws.[2] Circumstances such as these are what Carlisle & Gruby have termed as to be in a state “legal pluralism” (2019).[2] They define this term as “a circumstance where different legal systems or legal orders apply to identical situations” (Carlisle & Gruby, 2019).[2] In bul, citizens of the state require an extra requirement which is that they must participate and support the community of Ngarchelong, and in the past, this has caused conflict.[2] Furthermore, this has lead chiefs to no longer enforce bul as it has been overridden in certain circumstances, therefore the community worries that bul will start to fade.[2]

Matters of enforcement are the main issue with the governance of Ngarchelong because high levels of poaching and law violations still exist with the Ngarchelong's marine territory.[4] However, in general, the coexistence between decision-makers remains cooperative "as the national and state governments as well as traditional leaders collectively have full jurisdiction over access and appropriation of fish populations of concern", and this is present in the selection process of MPAs (Carlisle & Gruby, 2018).[4]

It is important to note that in some cases affected stakeholders were “inadequately represented” due to a variation in types of deliberation forums, as well as NGOs had the most dialogue control in such forums.[4] For the most part, leaders of each stakeholder group remain accountable to their parties due to the high-dependency rate they have with the territory and each other.[4]

Recommendations

The Republic of Palau has a lot of admirable things about their community and marine sustainability. They have made the most out of the changes in authority they’ve had to endure. They can be commended for establishing sustainable tourism policies that encourage environmental protections above any economic gains. According to Pollack, in 2015, the Republic of Palau declared 80% of its Exclusive Economic Zone a marine sanctuary in an effort to ensure food security for the local population and conserve the nation's marine resources.[13] Their growth has no doubt been tied to its conservation legacies, where acting as stewards of the ocean and surrounding environment has prepared them for future risks.[13] In collaboration with local elders, government officials have successfully passed marine legislation that integrates practices of customary marine stewardship with modern technical strategies.[13]

Pollack said, “In order to understand the conditions under which marine areas exist, we must ultimately understand the history of beliefs, practices and traditions attributed to those environments, by groups who have occupied those areas for generations.”[13] A recommendation would be to uphold this mentality as something that needs to be acknowledged and supported. It gives the Palauans the credit for overcoming challenges and holding on to some of the values that have given them success over thousands of years. They continue to prioritize their cultural, historical, and spiritual connections which have helped them to establish a successful framework for marine protections beyond what others have achieved.

References

  1. 1.0 1.1 1.2 Republic of Palau, Bureau of Budget and Planning (December 3, 2019). "2015 Statistical Yearbook" (PDF).
  2. 2.00 2.01 2.02 2.03 2.04 2.05 2.06 2.07 2.08 2.09 2.10 2.11 2.12 2.13 2.14 2.15 2.16 2.17 2.18 2.19 2.20 2.21 2.22 2.23 2.24 2.25 2.26 2.27 2.28 2.29 2.30 2.31 2.32 2.33 2.34 2.35 2.36 2.37 2.38 2.39 2.40 2.41 2.42 2.43 2.44 Carlisle, Keith; Gruby, Rebecca (August 2019). "Customary Marine Tenure in Palau: Social Function and Implications for Fishery Policy". Human Ecology. 47: 527–539 – via Springer Link.
  3. 3.0 3.1 3.2 3.3 3.4 Putney, Robin (2008). "Customary Marine Tenure and Traditional Ecological Knowledge in Palau". ProQuest. ProQuest Dissertations Publishing.
  4. 4.00 4.01 4.02 4.03 4.04 4.05 4.06 4.07 4.08 4.09 4.10 4.11 4.12 4.13 4.14 4.15 Carlisle, Keith; Gruby, Rebecca (2018). "Why the Path to Polycentricity Matters: Evidence from Fisheries Governance in Palau". Environmental Policy and Governance. 28(4): 223–235 – via Wiley Online Library.CS1 maint: multiple names: authors list (link)
  5. 5.0 5.1 Constitution of the State of Ngarchelong (1982). Retrieved from https://oxcon-ouplaw-com.ezproxy.library.ubc.ca/view/10.1093/law:ocw/law-ocw-cd854.regGroup.1/law-ocw-cd854
  6. 6.0 6.1 6.2 6.3 Constitution of The Republic of Palau: Palau Constitutional Convention (1979). Retrieved from http://www.unesco.org/education/edurights/media/docs/c4679995d1bddd3ef509ddc66c3cb38e80d492fe.pdf
  7. 7.0 7.1 7.2 7.3 7.4 7.5 7.6 7.7 7.8 Ngarchelong State Government, Republic of Palau. (2012). Ngarchelong Marine Managed Area Management Plan. Retrieved from http://www.palaupanfund.org/ebiil.html
  8. 8.0 8.1 8.2 8.3 8.4 8.5 8.6 Friedlander, A.M.; Golbuu, Y.; Ballesteros, E.; Caselle, J.E.; Gouezo, M.; Olsudong, D.; Sala, E. (2017). "Size, Age, and Habitat Determine Effectiveness of Palau's Marine Protected Areas". PLoS One. 12(3) – via ProQuest.CS1 maint: multiple names: authors list (link)
  9. Micronesia Challenge (2010–2012). "About the Challenge". Micronesia Challenge. Retrieved November 29, 2019.CS1 maint: date format (link)
  10. The Republic of Palau National Government (Dec 3, 2019). "Marine Protection Amendment (RPPL No. 9-28 of 2014)". EcoLex. Retrieved Dec 3, 2019.
  11. "The Republic of Palau National Government". EcoLex. Dec 3, 2019. Retrieved Dec 3, 2019.
  12. 12.0 12.1 Graham, Tom; Idechong, Noah (August 1998). "Reconciling customary and constitutional law: managing marine resources in Palau, Micronesia". Ocean & Coastal Management. 40 (2–3): 143–164 – via ScienceDirect.
  13. 13.0 13.1 13.2 13.3 Pollack, Alana (2018). "Bridging the Gap: The Nexus of Tradition, Tourism and Collaborative Marine Management in the Republic of Palau". ProQuest. ProQuest Dissertations Publishing.


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