Reproduced, with permission, from:
Groombridge, B., ed. 1992. Global biodiversity: Status of the Earth's living resources. New York: Chapman & Hall.
The most important form of legislative measure for the conservation of biodiversity is that for the protection of ecosystems and habitats. Control over the use of land is the essential means by which such systems are managed and protected. National legislation is the most common way for these controls to be established. There are several common types of such mechanism.
The US Endangered Species Act was cited above as an example of legislation which extended to protection of habitats, in this case 'critical habitats' of threatened species, these being defined as areas which are essential to the conservation of the species concerned. These areas must be designated and their boundaries precisely described in the Federal Register. As of October 1987, of the 168 listed species of wild flora there were 23 species for which critical habitats had been designated.
The critical habitat concept has also been used in the 1988 Flora and Fauna Guarantee Act of Victoria, Australia. Under this Act, where a critical habitat designation is made landowners are prohibited from collecting protected flora in the critical habitat. The Act also gives the Minister power to make interim conservation orders prohibiting or regulating any activity which takes place within or could have adverse effect on the designated critical habitat. An order may also contain a positive requirement that specified works or activities be undertaken. Interim conservation orders must be complied with by all persons and may be applicable to any land. However, the designation can only be made for a period of two years. Before it expires, the Minister must take all reasonable steps, including the conclusion of management agreements, to ensure the longterm conservation of the taxa, communities or critical habitats for which they were made.
The French Nature Conservation Act of 10 July 1976 contains a general provision prohibiting the destruction, alteration or degradation of the habitat of protected species. A decree adopted in 1977 to implement the Act provides that the central government representatives (préfets) may make regulations to promote the conservation of the habitat of listed protected species. The establishment of these protected areas, known as arrêtés de biotope, is not automatic. Three conditions have to be fulfilled. There must be an individual order from the préfet designating a certain area where particular prohibitions apply. The order may only prohibit activities that can affect the habitat of a species. It may only apply to a protected species, that is to say to a species listed in regulations made by the Minister of the Environment. Subject to these limitations the powers of the préfet are quite broad, as he may prohibit or otherwise regulate activities such as vehicle traffic, farming, drainage, construction or any other action which may be detrimental to the conservation of the species habitat. No compensation is provided to landowners.
An important feature of the arrêtés de biotope is the flexibility and simplicity of the procedure underlying their adoption. In contrast to the establishment of nature reserves, which requires a long and protracted consultation procedure, the arrêtés de biotope may be adopted with a minimum of formalities. They are, therefore, increasingly used as a substitute for nature reserves, which are meeting with growing opposition from local populations and authorities.
The network of arrêtés de biotope began to develop after 1982-1983. Most of the areas so protected are designed to preserve the habitat of animal species, for instance heronries, and the number which exclusively concern plants is still small. Examples are a few peatlands harbouring rare and specialised flora species (e.g. Andromeda polifolia, Drosera spp.) and certain sites of botanical interest containing species such as Gagea bohemica, Gagea lutea and Crambe maritima.
The world's protected area network, the status of which is examined in Chapter 29, plays a vital and essential role in the conservation of habitats and ecosystems. With 169 countries in the world having recognised protected area networks, their use for the conservation of biodiversity is universal. Whereas the initial purpose of many such areas was to protect spectacular scenery and provide recreational facilities, in recent years the concept has evolved to encompass habitats of endangered species and ecosystems rich in biodiversity. Even though the legislation used to establish such areas varies technically from jurisdiction to jurisdiction the mechanisms used to control or prohibit certain activities, the essence of the concept of a protected area, are more or less universal.
In countries where there are large tracts of public lands the establishment of protected areas under public ownership is relatively straightforward in theory in that the government can if it so wishes simply manage the area as a protected area. Unfortunately the simplicity of this solution from a legal point of view belies the practical difficulties which often arise. Frequently, the change of management will also require that control of the land changes from one government department to another; this change is often problematic. In some instances it will require legislative measures to be promulgated, in others cases it will require the transfer of the property at market prices even though the 'purchaser' is another government department.
One simple and effective way to ensure that government departments preserve natural habitats on public land is the 'wilderness area' concept as used in the USA. Pursuant to the Wilderness Act of 1964 it is possible to ban the construction of all roads and tracks and other means of access within a specified area. The National Wilderness Preservation System, which is made up of these specified areas, has developed rapidly and is intended to cover some 400,000km[2] of federal land under the control of various government departments. The potential of this type of measure is obvious because threats typically escalate following increasing access to wilderness areas by road construction.
If the land requiring protection is in private hands, governments have used a variety of mechanisms to establish the necessary protection. In some instances they have simply acquired the land from the owner. This mechanism can be expensive. One way that governments have sought to ameliorate this cost is to acquire a lessor interest in the land, such as the right of drainage, where such rights are separable.
Alternatively governments can and have used their rights of expropriation to force private owners to either relinquish the land or agree to controls over the use of the land. Governments are now reluctant to use such powers especially for conservation purposes. More commonly governments will impose restraints on the use of land by private persons by, for instance, banning all forms of use which are detrimental to the ecosystems present in the area.
Such forms of control are not always constitutionally possible, as in common law countries where such a curtailment of rights is generally perceived as unlawful. In these countries, the government is generally only able to impose such controls under a voluntary management agreement with the owner. Under voluntary agreements the owner commits himself not to use the land for certain purposes. One example of this type of agreement is that found in England where, under the Wildlife and Countryside Act 1981, English Nature (formerly the NCC) can enter into agreement with the owners of Sites of
Protection of private land is also facilitated by the legal system through the use of caveats. These rights attach to the land itself and will bind future owners. Such rights exist in most common law jurisdictions. In some countries the government has pre-emptive rights over the sale of certain land should it happen to be sold by the owner. Such provisions exist in several European countries. In the USA the government frequently negotiates a pre-emptive right individually with the owner. In France the pre-emptive right is also linked with a mechanism to finance the purchase of such properties which come onto the market. Under the legislation creating the pre-emptive right the particular department is also empowered to collect a tax on the construction of buildings the proceeds of which are hypothecated to the acquisition of private land.
Many countries have legislation limiting the use to which land may be put. Such land-use controls or zoning restrictions typically control activities such as construction or mining and are normally restricted to the urban environment. In a few countries zoning restrictions also extend to rural areas; however, agricultural and forestry activities are normally exempted from their provisions.
In a few countries such mechanisms are used to protect natural habitats. Examples of such mechanisms include: special protection orders for specific sites; the use of specially protected areas in local zoning plans; or the prohibition on altering of certain habitats without a permit.
A prime example of such a mechanism being used to protect natural habitats is the Danish Nature Conservation Act of 1969 (as amended). This Act establishes a strict system of permits applicable to all activities which may have an adverse effect on river beds, lakes, peatbogs, salt marshes, coastal vegetation and natural grasslands. This type of approach has also been adopted in many European countries, North America and parts of Australia.
Another important and common land-use control is restriction on felling of private forests. In most cases, the restrictions are not applicable to the government forestry department itself. One exception to this is found in the USA where, under the US Federal Forests and Rangelands Renewable Resources Planning Act of 1976 (as amended), the discretionary authority of the Forest Service is curtailed and the objective of the organisation must now include the maintenance of all plants and animal species and the promotion of the recovery of endangered species. Forest plans must be drawn up for each unit in the National Forest System using an interdisciplinary approach and including public participation. A common problem with this mechanism is that the purpose of the legislation is often not the preservation of natural forests but simply the maintenance of forest cover. This means that the replacement of native forest, rich in biodiversity, with comparatively sterile monocultures of production timber is not regulated by such controls.
A common legislative mechanism to help conserve natural habitats is the provision of incentives or disincentives to influence the activities of land users to conserve natural habitats. Examples of such mechanisms are the EC regulation providing for the subsidy payments to farmers to maintain the natural environment on their land, and the granting of land tax credits for the preservation of wetlands or natural prairie areas, or for the conservation of river banks, in the US State of Minnesota. Another important example of an incentive, although an indirect one, is the tax exemptions granted in many countries to many conservation organisations on the basis of their charitable status. In the USA, land owned by conservation organisations or land dedicated to conservation is frequently exempt from land tax.
Many countries not only provide incentives to preserve natural habitats but also penalise environmentally harmful activities. Measures of this sort include the refusal of subsidies and the imposition of special taxes on such activities. The UK Wildlife and Countryside Act 1981 contains such a mechanism. It provides that agricultural subsidies may be refused for activities which will adversely affect the flora, fauna and physiogeographical features of national parks or in areas specially designated for that purpose (e.g. SSSIs). The US Food Security Act of 1985 is also another example of such a mechanism. The purpose of this Act is to remove up to 40 million acres (16 million hectares) of erodible land from agricultural production to, inter alia, reduce erosion and enhance wildlife. It seeks to achieve this by removing a number of subsidies from crops produced on highly erodible soil or altered wetland.
The types of legislative mechanisms described above are all examples of direction protection of biodiversity. In many countries there exist numerous legislative mechanisms which while not directly protecting biodiversity do nonetheless play a vital role in its conservation. Examples of this type of legislation are pollution control laws or legislation regulating development and investment in a country. Such controls can and do have an important effect on the conservation of biodiversity in a country. If properly framed, they can be powerful forces for the conservation of biodiversity; if not, such regimes can have drastic consequences for its conservation.