The role of legislation in river conservation
C. G. Palmer, B. Peckham and F.Soltau
After preparing the penultimate draft of this chapter, Brian Peckham died very suddenly from lung cancer. Brian was not just amazing in the way he coped with being a quadriplegic – though he was – he was an extraordinary person in himself. His great gift to everyone who knew him was just that, knowing him. We experienced his formidable intelligence, wicked twinkle and infectious guffaw; his warm hugs and quick riposte; his integrity; his clear, robust faith; his curiosity and questioning, his optimism and his pragmatism.
‘He was a verray parfit gen til knight…’ (Chaucer, Canterbury Tales – General Prologue)
Ultimately, it is in legal structures that society expresses its values, and environmental conservation is one of the emerging values of the late 20th century. This chapter explores the role of legislation in securing and defining the manner in which river ecosystems can be, and are, conserved.
As a primary practical mode of expressing and enforcing human values, law can play a major role in river conservation. There are, however, key factors which determine the success of the three main stages in legislation – policy development, legal drafting and implementation – especially if the ultimate goal is the sustainable, integrated management of freshwater ecosystem health (as is consistent with ‘Agenda 21’ resulting from the 1992 United Nations Conference on Environment and Development, in Rio de Janeiro).
These key factors include a good ecological understanding of river functioning (Boon, 1995; Palmer, 1999; Moss, 2000), together with adequate monitoring, referencing and classification of riverine ecosystems (Howell and Mackay, 1997; Pollard and Huxham, 1998) and, most importantly, an integrated approach which takes account of terrestrial-aquatic links and accepts the catchment as the unit of legislation and management (Newson, 1992; Department of Water Affairs and Forestry – DWAF, 1996a; Pollard and Huxham, 1998; Moss, 2000). It is also vital to understand the social and economic values that interact with environmental values in decisionmaking, as legislation can only succeed if its requirements are practicable, and reflect values accepted by – or at least not actively opposed by – society (Hahlo and Kahn, 1968). The political and moral will of the legislators plays a leading role in determining legal content (Hart 1984). Finally, there needs to be the capacity to implement the law. Frequently there are limitations to policing – places may be inaccessible, and, particularly in developing countries, skills, personnel and financing may be limited. The use of inducement and agreement needs to be actively explored as adjuncts to enforcement in implementation (Howell and Mackay, 1997). The goal of legislation in promoting the ‘constructive interplay of sound ecological science and societal values which ensures ecological integrity and allows a sustainable yield of ecosystem goods and services’ (Pollard and Huxham, 1998) requires the multidisciplinary cooperation of legal specialists, water resource managers and users, land-use specialists and aquatic scientists (Caponera, 1992).
However, the complexity both of riverine ecosystems
Global Perspectives on River Conservation: Science, Policy and Practice. Edited by P.J. Boon, B.R. Davies and G.E. Petts. © 2000 John Wiley & Sons Ltd.