Kuemlangan B. Teigenem H.*
Legal Officers Development Law
Service, FAO Legal Office, 00100 Rome, Italy
* The authors are legal officers of the Development Law Service of the FAO Legal Office. The views expressed in this paper are personal and do not necessarily represent the views of the FAO.
ABSTRACT
The fertile literature on community-based natural resource management (CBNRM) in general and in the fisheries sector in particular, shows that the implementation of such approaches to management will have a broad range of implications including policy, technical, institutional and legal implications. However, much discussion on utilising the community-based management approach in natural resource management to date has centred on its conceptual, economic and technical/management aspects. It is also important that the formal legal environment within which community-based management mechanisms be examined to determine whether it supports or will need necessary enhancement to support the implementation of CBNRM. It may even be necessary that such an examination takes place before or when CBNRM is being considered for utiliszation or trial. The question as to whether community based fisheries management (CBFM) is legally sustainable must be asked of the whole legal framework of the state - from fundamental laws such as the constitution, to subsidiary legislation. Amendments to existing legislation or new legislation may be necessary to implement CBFM. There is no blueprint as to how a CBFM should be set up in a legal framework, what number of rights with respect to management of the fish resources should be accorded, what should be the level of participation by the local community and whether it be at the level of consultation during the management process or through formal representation in consultative, advisory or decision-making institutions within the fisheries management framework, or whether it should be a devolution of management authority or of implementation powers, or both. It is important, however, to ensure that the constitutionality of all these aspects of fisheries management should be ascertained and to ensure that enabling legislation for CBFM consider the following issues: security, exclusivity, permanence of rights vested, flexibility of its provisions so as to allow the states to exercise choice that reflects its unique needs, conditions and aspirations for CBFM, and to ensure that CBFM harmonizes with the overall fisheries management legal framework. Attaining the right balance in the CBFM legal framework however is difficult and depends largely on local circumstances.
INTRODUCTION
Global and local awareness of the fact that many of the world’s fish stocks are over fished or depleted has seen moves to explore different approaches to fisheries management, including community based fisheries management (CBFM). The management of the fisheries resources of inland fisheries and large rivers systems resource management have obviously been part of this trend as evidenced by the amassing literature on the subject (e.g. Pomeroy 1994; Welcomme 2001). For the management of fisheries in Lake Kariba, FAO has assisted Zambia in a revision of its fisheries legislation to implement a community based management approach. This included the development of new fisheries legislation underpinning the creation of local and regional councils and committees having both management and enforcement functions and powers (Kuemlangan 1997).
When looking for reasons or causes for the failure to responsibly manage large parts of the world’s fish resources, one finding commonly agreed upon is the failure of the open access regime to provide the framework for sustainable and responsible fisheries. Thus the last decades have witnessed an expanding interest in the different types of limited access regimes for governing utilisation of fish resources. Among the limited access regimes looked at is the property or rights based regimes (FAO 2002). In one form of property rights regime, referred to as the common property regime, the management of the resource is carried out by a community that collectively enjoys the rights to withdrawal and access. This means the community as a whole has a property right that can be more or less extensive. As is typical of property regimes, the creation of rights and their assignment to the community is recognised as an economic interest. This in turn stimulates an interest in the maintenance and protection of this bundle of rights and the resultant management goal of sustainable utilizsation of the resource.
One other recognisable trend in fisheries management approaches is the growing focus on increased stakeholder participation and devolution of management functions (FAO 2002). This in part is in recognition of the fact that the top-down management approach with management authority heavily concentrated in the central government administration and agencies has often been ineffective. Fisheries management and development functions in many jurisdictions has been the principal responsibility of government. This responsibility is often exercised through a central government authority which initiates government fisheries plans and policies, controls, monitors and undertakes surveillance of fishing and related activities, conducts research and enforces the laws and regulations concerning fisheries. In this command-and-control approach to management, the authority usually dictates the terms and conditions of involvement of principal actors in a given activity or group of activities. This approach to management of fisheries is effective only to the extent where the central authority has the full and required capacity to fulfil its mandate. However, a command-and-control approach to management gives little deference to the advice of stakeholders which often creates lack of understanding between the regulator and the regulated and often frustrates the effort of the central authority to achieve effective management. In the management of inland, near shore or coastal fisheries resources of many jurisdictions, there is a lot of interest in and broad consensus that the command and control approach to management should give way to wider participation by stakeholders in fisheries management through implementation of community- based fisheries management whereby stakeholders are involved directly or indirectly in the policy formulation and decision making processes or some technical aspects of the functions of the central authority. This approach provides for consultation of the stakeholders or for the stakeholders to have some form of representation in the decision making process. It promotes a more transparent and accountable management authority on the one hand and creates a more responsive stakeholder in terms of implementation of the management programmes and objectives and greater respect for and compliance with the directives of the relevant government authority on the other.
Regardless of the reason behind the pursuit of CBFM, there are socio-political dimensions that go beyond its mere introduction. There is a growing realiszation of the need for fostering sustainable development of the small-scale fishery. This fishery may form the backbone of the national economy, is important for the livelihood of the poor or provides inexpensive food for domestic consumers. The maintenance of a viable, decentralised settlement pattern to prevent large-scale migration of fishers to urban settlements is increasingly recognised as being of paramount importance to States. To this could be added the growing socio-political pressure for decentraliszation of governance (Kurien 1999). Indeed the introduction of and emphasis on community based management of fisheries resources has raised hopes that this approach to management will contribute to a more equitable distribution of any jurisdiction’s fisheries resources, raised awareness about the fragility of the resource and the need to exercise caution in its exploitation and ultimately foster sustainable utilisation of the resources.
It is for the above socio-political dimensions and the other reasons given in the following sections of this paper that is important to examine legal issues and considerations for developing legal frameworks for CBFM. The substantive part of this paper provides an overview of broad legal issues relating to CBFM, which is preceded by a summary description of what CBFM is and the exposition of the current lack of consideration for legal issues relating to CBFM. The final part of the paper provides some basic considerations for legislating on CBFM.
WHAT IS COMMUNITY-BASED FISHERIES MANAGEMENT?
Community-based fisheries management, briefly put for the purposes of this discussion, is a form of participatory and common property rights based management which vests fishing rights in a group of individuals (communities) or involves the sharing of fisheries management and enforcement powers with local communities. It involves collective units (e.g. fishing communities) representing those who are directly involved in fisheries activities which may assume some or all control, monitoring and surveillance functions in relation to a fishery or are given differential rights to such fishery. In this arrangement, the central government authority performs the functions for which it is best suited (e.g. biological aspects of fisheries management, overall regulations) while the local communities are responsible for those tasks it can do best (e.g. gauging if there is excess fishing effort, local rules for fishing, monitoring, compliance).
WHY IS IT IMPORTANT TO CONSIDER THE LEGAL IMPLICATIONS OF CBFM?
The fertile documentation on the subject of community-based natural resource management (CBNRM) in general and in the fisheries sector in particular, shows that the implementation of such an approach to management by countries will have a broad range of implications including policy, technical, institutional and legal implications. However, much discussion on utilising the community-based management approach to natural resource management including in fisheries to date has centred on its conceptual, economic and technical/management aspects. Yet, once these technical aspects have been discussed, the operational aspects, particularly, the formal legal environment within which community-based management will function, will also need examination to determine whether it supports or will need necessary enhancement to support the implementation of CBNRM. The World Bank Report (1999) from the International CBNRM Workshop discusses considerations for establishing community-based natural resource management (CBNRM). It underscores the legalising of institutions as a basic requirement for establishing CBNRM. Indeed, it may well be that such an examination takes place before or when CBNRM is being considered for utiliszation or trial. The failure to examine exhaustively the legal implications of CBFM as in CBNRM, may have been due to the wish to avoid legal complications when things appear to be going smoothly (Lindsay 1998). Plain oversight could be another reason for the lack of such examination in other instances.
In considering CBFM, particularly in the context of rights-based fisheries, examining legal issues is important for the following reasons: first, it is documented that effective implementation of CBFM systems depend on supporting legislative framework. (Berkes 1994; Ruddle 1994); second, there is some evidence is that CBFM systems have had a measure of success in jurisdictions like those in the Philippines and Japan where there exists a favourable legal environment exists (Alcala Vande Vusse 1994; Ruddle 1994). In addition, and with respect to traditional community-based marine resource management systems, the noted functional systems have been those that exist in jurisdictions that accord them legal recognition and are protected by government (Karlsen 2001; Pomeroy et al. 2001; Ruddle 1998). Third, discussing and dealing with the legal aspects of right-based management approaches in fisheries management could avoid the legal complications and adverse consequences of the kind such as that which arose in Iceland where the ITQ based fisheries management system introduced by the 1984 Fisheries Act was found to be unconstitutional. The latter may be an extreme example and one that relates more to the issue of individual transferable quotas. However, it has a valuable lesson for policy and decision makers that innovative approaches to management including rights-based management be reviewed from all perspectives and that they are found to be legally functional in the national context before they are comprehensively applied.
BROAD LEGAL ISSUES
THE NATURE OF THE RIGHTS ACCORDED TO THE LOCAL COMMUNITY, PROPERTY, AND PROPERTY RIGHTS AND USUFRUCT.
The discussion on community-based management often focuses on the rights of local communities at different levels. Some talk about the right to the resources themselves, some the right of the local community to manage the resources, some to the exclusive right to exploit the natural resources. What is touched upon here is fundamental economic rights including property, property rights and usufruct. In outline, the legal view of property can be summarised as follows. Property is not a thing, but a right established by socially constructed conventions. Property is a bundle of rights or interest in an asset that may be apportioned between different holders. Rights can be established and supported within a given community and are only declared as such when tested in courts. Rights can be established, qualified and extinguished by statute. (Leria & Vanvan Houtte 2000).
Quite clearly a community-based management regime can be classified as a common property right regime, given that the community is in possession of a sufficient number of rights or powers over the thing or resource they manage. However, each community-based management regime will prove to be unique both in terms of legal underpinnings and with regards to the institutional and management arrangements that support it. How it will be defined in the context of property regimes will depend on its characteristics and how many or few of the sticks in the bundle of rights are held by the community-based managers. The views here will probably vary, and while some will claim that a common property regime exists, others will maintain that at the end of the day the state only accords the community usufruct rights, not property rights.
While it is useful to have a common theoretical foundation and understanding of the concepts when approaching this issue, it is in practical terms, difficult because the understanding of these concepts depends on the legal systems in which they exist. Given this background it is obvious that any discussion that tries, at the outset, to define whether a community-based management regime should or should not be regarded as a property rights regime will go down a long and hard road. Suffice it to say that a conscious consideration of what it is that one wishes to create and facilitate in advance is better than no consideration ab ititio. This must be done in close collaboration with the local communities, allowing the local community-based institutions to define, preside over and redefine the rules of resource use. Equally important is to recognise the place of the state legal framework and note that the establishment or perpetuation of a community-based natural resource management regime may require enhancing or establishing a legal framework to support it. In this broad context, the legal framework is viewed not only as an enabling factor for CBNRM, but also in terms of the constraints it imposes and therefore which should be removed.
THE FUNDAMENTAL LEGAL BASIS FOR CBFM
The question as to whether CBFM is legally sustainable must first be asked of the fundamental laws of a state. This is particularly important for those states that are established by constitution or whose legal systems recognize the constitution as the supreme law. If the fundamental law, whether it is the constitution, organic law or presidential or royal decrees, stipulates that certain prerequisites of CBFM are not possible, then this aspect of CBFM cannot be established legally. As touched upon above, there is no blueprint as to how a CBFM should be set up in a legal framework, what number of rights with respect to management of the fish resources should be accorded, what should be the level of participation by the local community and whether it be at the level of consultation during the management process or through formal representation in consultative, advisory or decision-making institutions within the fisheries management framework, or whether it should be a devolution of management authority or of implementation powers, or both. It is important however to ensure that constitutionality of all these aspects of fisheries management should be ascertained. In particular decentralization or delegation of resource management functions and appropriation of property or user rights could raise legal problems which are discussed as specific legal issues herein. If it is the resolve of the government as reflected in national policies and directives to establish CBFM, then effort should be redirected at amending the fundamental laws of the land to enable this.
THE FUNDAMENTAL LEGAL BASIS AND DECENTRALIZATION
Decentralization does not necessarily mean people participation in governance of the full range of their own affairs and much less in the management of resources. Some may say that decentralization is really the effective establishment of central government at the local level. However, there are instances that decentralization may instil a culture of stakeholder participation in management of resources. In the latter context and as it relates to CBFM, the comprehension of the notion and ensuring its effective operation may come easier to communities where decentralization is a national policy supported by law. In this respect, decentralization or the delegation of mandate for the management of fisheries resources is essential for CBFM. Such mandates would come with formation of local governments and may vest in those governments the power to make subsidiary laws, and to administer and enforce laws. This feature is evidenced in the institutional framework of governance as reflected in fundamental laws such as the constitution, or if the constitution is silent on this issue, it may be an inherent culture in the system of governance.
The 1987 Constitution of the Philippines is an excellent example of a fundamental law that leaves no room for doubt by it clearly providing that CBFM shall be established through decentralization. Article X provides that there shall be a tier of local governments who shall be granted under a code for the local governments, powers, responsibilities and resources and all other matters relating to the organization and operation of local government units. In addition, it is an inherent policy that the State shall encourage non-governmental, community-based, or sector organizations that promote the welfare of the nation (Article II, Section 23). Further, Section 7 of the same Article states that the "Local Governments shall be entitled to an equitable share in the proceeds of the utilization and development of the national wealth within their respective areas, in the manner provided by law, including sharing the same with the inhabitants by way of direct benefits.
When considering the possibilities for decentralization of fisheries management functions, not only fundamental laws, but also subsidiary legislation that implement fundamental laws and enable decentralization must also be considered. Jurisdictions with a decentralized system of governance would most probably have in place a web of subsidiary legislation that confer resource management or enforcement powers to local government administration, local communities or stakeholders. These legislations may pertain to the establishment of local governments and their functions and administration (government and administrative laws), the management of other natural resources or the environment. Within the existing legal framework and pursuant to the constitution, other fundamental laws, main administrative laws, existing fisheries laws or other laws related to the management of coastal areas, e.g. environmental laws, a web of subsidiary legislation probably exists conferring management or enforcement powers to local government administration, local communities or stakeholders. When considering whether the existing legal framework allows for the introduction of CBFM this web of legislation is necessary to be assessed to clarify, sort out and resolve possible competing or overlapping authorities. The same holds true if the fundamental laws (e.g. the constitution) or framework laws (e.g. the main fisheries law) are revised with a view to introducing CBFM. Subsidiary legislation pursuant to these laws needs to be revisited to ensure compliance with the amended framework laws, and with other legislation as appropriate. While this is indeed a tedious and time consuming task, it is of crucial importance that the management powers and responsibilities of the community managers are clear and undisputed. For example, for the management of fisheries in the Lake Kariba, FAO assisted Zambia in a revision of its fisheries legislation to implement a community-based management approach. This included the development of a new fisheries legislation underpinning the creation of local and regional councils and committees having both management and enforcement functions and powers (Kuemlangan 1997).
THE FUNDAMENTAL LEGAL BASIS AND ALLOCATION OF OWNERSHIP OR OTHER SUBSTANTIAL RIGHTS
Like decentralization, the issue of the allocation of property and use rights should be asked also of fundamental laws as well as specific laws relating to natural resource development. This issue is often to be found in national constitutions, either addressed directly or indirectly if such appropriation is contrary to other constitutional principles or rights.
The Cambodian Constitution, for example, neither states explicitly the validity of allocating property or use rights nor prohibits such allocation. The Constitution as the supreme law of Cambodia states:
State property notably comprises land, mineral resources, mountains, sea, underwater, continental shelf, coastline, airspace, islands, rivers, canals, streams, lakes, forests, natural resources, economic and cultural centers, bases for national defence and other facilities determined as State property. The control, use and management of State properties shall be determined by law.
The State shall protect the environment and balance of abundant natural resources and establish a precise plan of management of land, water, air, wind, geology, ecologic system, mines, energy, petrol and gas, rocks and sand, gems, forests and forestry products, wildlife, fish and aquatic resources.
Given these provisions and reading them in the context of the whole Constitution, it can be safely deduced that property and use rights may be allocated under subsidiary legislation for as long as these legislation are gauged in terms that are not inconsistent with the Constitution.
The Icelandic example on the other hand shows us that it could be problematic to allocate property rights or other use rights because of constitutional constraints. The Supreme Court held in 1998 that in its current form then, the ITQ system breached constitutional rules on equal rights and rights to work on the one hand, and the constitutional rule against discrimination on the other. A legislative amendment to render them transferable satisfied the Court in 2000 that their transferability did not effect any discrimination.
There are examples of successful CBFM where local ownership (or other substantial property rights) over fish resources is recognized by law. This is the case in Samoa where local council by-laws entrench traditional management and conservation practises (Taua 1999).
The establishment of CBFM in the context of the creation of property rights systems, with all their implications of the inclusion of some and exclusion of others, to a greater or lesser degree of permanence, conflicts directly with the hallowed right of the public to take fish from public waters. This has been expressed differently in various jurisdictions - in Iceland, for example, it was couched in terms of violating the constitutional principles of economic freedom and equality before the law.
For this reason, the introduction of property rights in fishing has encountered considerable difficulty, and sometimes, downright opposition. Even though a serious barrier, this need not be the end of initiatives towards CBFM.
Where the constitution or other fundamental law stands in the way of the allocation of such rights the political will to amend these laws must be mustered in order to implement CBFM. Otherwise such practises will continue to suffer from the effects of a weak legal basis.
THE NEED FOR NATIONAL LEGISLATION AND SOME PRINCIPAL LEGISLATIVE CONSIDERATIONS
In addition to the need for enabling legislation that is consistent with fundamental laws and which elaborate basic constitutional principles relating to CBFM, there is also the basic need for security and enforceability of a right. Legal insecurity and uncertainty is likely to originate from legal regimes which do not allow for local people to establish enforceable legal rights to the resources on which they depend, or to play a meaningful role in the planning and managing of such resources.
Legislation provides mechanisms for site-specific delegation to local people of some measures of management responsibility over state land and fisheries resources, either on an indefinite basis or for a definite period. A balance is normally sought through this mechanism for ensuring that the state level concerns for efficiency in fisheries management and the local-level concerns for self-governance, self-regulation and active participation are realised while defining the extent of their mandates.
Local institutions cannot define the rules by which they interact with an outsider. CBFM must naturally exist inside its larger legal environment and linked with sovereign authority, which is the state, and thus needs a legal status that outsiders can recognize and interact with. They need legal protection from trespass and the criminal behaviour of outsiders. They need state law to give legal recognition to community-based rules and to tell outsiders that they have to abide by those rules. This is elaborated hereunder in the discussion on security as a principal legislative issue.
Community rules cannot define the limits of state power. Thus it is crucial that national legislation address to what extent the state will respect local autonomy and where and under what conditions it will retain the power to intervene. From a property rights regime perspective, this touches upon the fundamental question of who owns the natural resources. Iceland, which has one of the worlds most advanced ITQ systems, has chosen to include as Article 1 of their 1990 Act Relating to the Management of Fisheries the following text: "Marine resources that are found in Icelandic waters and are utilized are the common property of the Icelandic nation. (...) The issuing of fishing permits, in accordance to this legislation, does not constitute any claim to ownership or irrevocable claims by individual parties over fishing rights."
Most fishing nations that implement a rights-based fisheries regime have retained the power to allocate and withdraw rights and change the regulations governing their administration. If the rules governing a rights-based regime are explicit in the form of legislation, it is less problematic in administering them and deflecting legal challenges.
State law has also an important role to play in providing protection for individuals against the abuse of local power.
Importantly, state law is needed to provide basic guidelines for protection of important wider social interests, such as environmental protection. In particular where wide rights have been allocated to the local community, this question surfaces strongly. Where the local community is given ownership (and other property rights) of natural resources, where does the State stand with respect to protection of wider interests? On the one hand the answer is simple, as the government always retains a regulatory function by which it can act to protect legitimate interests of outsiders, including future generations. On the other hand there is a problem of defining those interests. A wide definition and continued intervention by the state on this ground would clearly diminish the local authority.
SECURITY
When considering a legal framework for CBNRM, security of the rights allocated to the community are fundamental. Security can be described as the ability of the community to withstand challenges of others to the right. In particular when these rights take the form of property or use rights this aspect gains in importance. Such rights can be challenged by other individuals by displacement or court verdict. They may be challenged by the state, which can withdraw or terminate the right in accordance with law. Security requires, among other things, that there be clarity as to what the rights are, that the rights cannot be taken away or changed unilaterally and unfairly, and that rights are enforceable against the state (including local government institutions). An aspect of security is certainty both about the boundaries of the resources to which the rights apply and about who is entitled to claim membership in the group. Another important aspect which has been touched upon but not stated outright is the need for the to law to recognise the holder of the rights.
EXCLUSIVITY
This is the ability to hold and manage the right without outside interference. The right must be exclusive. This requires accessible, affordable and fair avenues for seeking protection of the rights, of solving disputes and for appealing decisions of government officials. The ability to enforce the right is an important aspect of exclusivity. Other fishers may interfere with a local community’s ability to harvest the fish in the manner they want. More significantly, the state by regulations, license conditions, gear, area and time restrictions etc. usually interferes to a considerable extent. The lines of authority need to be drawn clearly in order to provide for the exclusive exercise of the rights and powers allocated a local community.
PERMANENCE
This is the time span of the rights allocated a local community. In particular when the local community takes on wide management responsibilities and rights the security of permanence and duration is crucial. The duration of rights should be either in perpetuity or for a period that is clearly spelled out and is long enough for the benefits of participation to be fully realized.
FLEXIBILITY
Flexibility is the community-based managers need for flexibility or legal space to exercise choice that reflects their unique needs, conditions and aspirations.
Legal regimes should allow flexibility in deciding what the objectives of management should be and the rules that will be used to achieve those objectives.
Flexibility is required in regard to how state law handles the recognition of local groups.
Flexibility is needed on the definition of management groups and areas of jurisdiction.
INTEGRATING CBFM INTO THE BROADER FISHERIES MANAGEMENT LEGAL FRAMEWORK
CBFM will obviously have to exist within the wider legal and fisheries management framework given that the CBFM mechanism is usually introduced to achieve fisheries management goals. This must be properly reflected in legislation and in the policy making process by securing a role for the community managers in the overall picture of state fisheries management. To address this concern a number of matters may be considered for inclusion in legislation, or where they already exist, appropriate linkages will need to be made: (i) the policy-making framework and process must consider the place of the community managers in relation to overarching policy makers. Where the process of making and notifying a management plan is spelt out in legislation, securing the community managers a place in the planning process is paramount. Management planning should not be limited, but should enable any appropriate management unit divisions (Stewart 2002), (ii) the decision rules required for determining total fishing effort, e.g. total national quotas, need to address the role of the community managers in taking such decisions. In the same context, the relationship between the overall fishing effort and fishing effort within the community management area should be tackled, (iii) the delegation of responsibility, including regulatory powers to community managers and the structure of the management authority, (iv) enforcement powers of the community managers and its place in overall fisheries surveillance and enforcement, (v) if community managers will exercise judicial powers, this should be explicitly stated. For trans-boundary waterways including large river systems where international obligations relating to the use of the shared waterways features strongly, it is paramount to ensure that CBFM legal framework is compatible with the relevant international legal framework.
CONCLUSIONS
The fundamental question that needs to be asked in this respect and one which, unfortunately, has been raised rarely, “Is CBNRM legally sustainable?” (Lindsay 1998). A related question would be, “Do the circumstances require that a legal framework be established to support CBFM?”
Community-based management or other forms of rights-based management of natural resources as well as other approaches to management attempt to address fisheries problems in fisheries management including the fisheries of large river systems. It has been put that institutional and legal issues are the cause of most fisheries management problems (Garcia and Grainger 1997 et al.). This should be caution enough to suggest that the legal aspects of fisheries management approaches be thoroughly thrashed out. This requires a multidisciplinary approach. This requires, among others, as Fisher (1996) puts it in a discussion on legal regimes for fishery resource management, “It behoves scientists and lawyers to collaborate by providing their input and expertise not only when problems arise, but in anticipation of problems. In practice, this means that a multidisciplinary approach should be adopted for fisheries resource management from initial investigation through assessment and evaluation to policy formulation and implementation leading to operational involvement until termination of the project. The same is true for the adoption of community-based resource management in fisheries in large river systems which invariably support the livelihood of many riparian communities.”
Ultimately, it would have to be asked what the necessary elements for an appropriate legal framework that supports the effective implementation of CRBM would be. In addition, any law established for utilization of rights-based fisheries must be practical and flexible in effect to respond to the needs for effective implementation of such a management approach. In the final analysis and as Lindsay aptly puts it, it is a question of balance in establishing the legal framework for community-based management (Lindsay 1998). Attaining that required balance however is not easy and depends largely on local circumstances.
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