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6. Legal and institutional mechanisms for conflict resolution in ICAM


Cooperative conflict resolution cannot be forced upon unwilling parties, but is a voluntary process requiring the presence of particular factors and circumstances, as already discussed. However, the use of certain legal and institutional mechanisms may facilitate its implementation. In designing these mechanisms, particular consideration should be given to the need to:

The United States Environmental Protection Agency (EPA) has institutionalized its use of ADR in environmental enforcement actions, adopting an ADR Implementation Plan in 1990 to establish standard operating procedures and to obtain the services of outside mediators, arbitrators and other ADR practitioners in disputes to which EPA is a party. It also maintains a list of neutral individuals who have experience in environmental enforcement, to supplement the list of dispute resolution specialists which is held on a nationwide computer.

Protecting the Danube wetlands

In a section of the Danube wetlands near Hainburg, Austria, located between Vienna and the border with the Czech Republic, controversy erupted following publicity of a proposal to build a hydropower dam. Annual floods of the Danube have given rise to a maze of islands, gravel and sandbanks, rivulets and streams, still waters and flooded forests, steep erosion banks and swampy flats.

This diversity of biotypes has endowed the Danube wetlands with an abundance of life, pioneer habitats and a successions of forest communities unrivalled anywhere in Central Europe. The Danube wetlands are home to an estimated 5 000 animal species. Moreover, recent scientific research has furnished evidence that bank-filtered water from the groundwater reserves of river forests has become the most important source of clean, unpolluted water in the low-lying areas.

Conservation NGOs in Austria have staunchly opposed the construction of the dam because of their concerns over environmental damage. The conflict escalated when the electricity company started to clear several square kilometres of the unique Hainburg wetland. Thousands of conservationists occupied the site.

Nobel Prize laureate, Konrad Lorenz, then led a difficult negotiation with the government which resulted in the conservationists being granted an opportunity to investigate alternatives, even though powerful trade unionists and industrial leaders still wanted to see the dam built in the wetland forest. The peace pact also led to the founding of the National Park Institute, an NGO dedicated to furthering the creation of a national park on the Danube wetlands site. Following a suit by WWF, in 1985 the Supreme Court declared the dam project to be against the law on the grounds that its impact on drinking-water resources had not been sufficiently clarified.

In 1989, the National Park Institute initiated the purchase of a strategic area of wetland forest to prevent the land from being bought by the electricity company. A nationwide campaign gathered nearly US$11 million for this purpose. However, despite the success of this campaign, politicians are still undecided as to whether to save the ecosystem as a park or to build hydroelectric power dams. In this case, the struggle is not over.

Source: after Lölsch, 1996.


Negotiated rule-making procedures are already used informally in some countries to develop new laws. In the United States, EPA has used such procedures to formulate policies, rules and environmental standards in many areas. Using the so-called `reg-neg' (i.e. regulation-negotiation, or negotiated rule-making) process, they have developed rules, for example, for: granting emergency exemptions from pesticide controls; developing emission control standards for wood stoves; and regulating the underground injection of hazardous wastes. Negotiated rule-making procedures may also be formalized through legislation, and in 1990, in response to EPA's success, Congress passed the Negotiated Rule-Making Act, establishing a framework for negotiated rule-making in the future (see Box E.4).

The Negotiated Rule-making Act 1990 (United States)

Negotiated rule-making is defined in the United States Negotiated Rule-making Act 1990 as `the development of agency rules and regulations by the consensus of interested parties'. The Act provides for federal agencies to convene negotiated rule-making committees if the agency head determines that negotiated rule-making is in the public interest. In doing so the head must consider whether:

  • there is a need for the rule;
  • a limited number of identifiable interests will be significantly affected by the rule;
  • a balanced representation of those interests can be convened and has a reasonable likelihood of reaching consensus in a fixed period of time;
  • the negotiated rule-making will not unreasonably delay notice of a proposed rule and issuance of a final one;
  • the agency has adequate resources and is willing to commit them to the process;
  • the extent to which the agency will base its proposed rule on the version reached by the negotiated rule-making committee.
  • An agency that decides to use negotiated rule-making must publish a notice in the Federal Register announcing its decision, describing the issues and rules to be developed, and explaining how interested participants can become members of the committee. The committee, once convened, approves the selection of facilitators by consensus.


One way of encouraging consensual agreement is to use incentives to persuade conflicting parties to negotiate, on the basis that `carrots' may be more effective than `sticks'. A good example of this is the 1980 Massachusetts Hazardous Waste Facility Siting Act (see Box E.5), which uses incentives and compensation to encourage negotiation between the developers of hazardous waste facilities and opposing host communities.

The Massachusetts Hazardous Waste Facility Siting Act

This Act was introduced in an attempt to tackle the problem of siting proposals for new hazardous waste facilities being defeated by local community opposition (commonly known as the `not in my backyard', or NIMBY, syndrome). It lays down a procedure that provides for direct negotiation between the developer of the facility and the host community and incorporates incentives as a strategy to encourage cooperation and overcome opposition. The most important elements of the Act are as follows:

  • the developer has a right to construct a hazardous waste facility on land zoned for industrial use if the developer obtains the necessary permits and reaches a siting agreement with the host community;
  • the siting agreement must be negotiated between the developer and the host community, the latter being represented by a Local Assessment Committee. The agreement sets out the measures to be taken by the developer to mitigate adverse impacts associated with the facility and may provide for the payment of compensation to the community;
  • the siting agreement is reviewed and approved by the State Council, which may then declare it to be binding on the developer and the host community and enforceable against the parties in any court of competent jurisdiction;
  • an independent body, the Hazardous Waste Facility Site Safety Council, composed of representatives of all parties involved in and affected by the siting of hazardous waste facilities, oversees the negotiation process;
  • failing agreement by negotiation, the State Council may require the parties to submit the unresolved issues to `final and binding arbitration' to resolve them. The parties (or, in the absence of agreement, the Council) choose the arbitrator;
  • the host community receives technical assistance from the state to participate in the negotiation process;
  • abutting communities that are likely to be affected by new facilities in adjacent jurisdictions can apply to the Council for assistance grants to participate in the process, as well as compensation from the developer.

Source: Bacow and Wheeler, 1994.

This kind of dispute over the location of an unwanted facility typically ends in deadlock, as the only options appear to be either build or do not build, a so-called `zero-sum' dispute which produces a winner and a loser. Compensation introduces a third option; build but compensate, redistributing some of the benefits that would otherwise be distributed regionally while the social costs are borne locally. Compensation thus provides an incentive to negotiate on the basis that the recipients of the compensation will be better off than if they had simply rejected the facility outright.

Forest allocation and conservation in Tasmania

This case illustrates use of a consensus-building process that involved the establishment of a number of bodies to provide: the databases that had been agreed upon; independent panels of experts to provide advice; and regional advisory groups to ensure local community involvement throughout the process. The purpose of the process was to develop policies for forest land use for uncut forests outside forest reserves.

In the island state of Tasmania in southern Australia, forest land-use conflicts have arisen regarding uncut forests that are outside forest reserves. Fourteen percent of Tasmanians are dependent on forestry for their livelihoods and there is high demand for wood and wood-based products. The island's high endemism in both flora and fauna has also attracted the concern of conservationists. Efforts to resolve the conservation/utilization issues were initially carried out through a government-formed Commission of Inquiry in 1987 which was charged with investigating the land area in debate and with making recommendations on its possible designation as World Heritage status. However, this process, conducted in an adversarial, legal arena, failed to produce a satisfactory solution. The Commission's findings were rejected by the Commonwealth Government which came up with a compromise solution aimed at balancing the diverse interests. However, this decision failed to resolve the conflict. Nevertheless, some valuable lessons were gained in the process, including the importance of having expert opinion, the need for an agreed set of facts and data, and the problems related to resolving the conflict in a legal, adversarial setting.

In 1989, a parliamentary accord was signed, which subsequently led to an agreement between the major forest land-use disputants (i.e. the timber industry, private forest landholders, unions, environmental groups and government agencies) to develop jointly a Forests and Forest Industry Strategy. This agreement marked a breakthrough as it reflected each of the groups' willingness, for the first time, to recognize each other formally.

As a result of these negotiations, a new contract was drawn up in which community interests were integrated into the formulation of a protected park. For example, where grazing stock was to have been excluded from one area and phased out of two other areas, provisions were made for stock units to be reduced on a voluntary basis when alternative land was made available to pastoralists. In addition, in the initial government plan, the responsibility of the park management would have rested solely with the National Parks Board. In the subsequent arrangement, a Management Plan Committee would be formed consisting of four Parks Board members and four elected community representatives. The latter park plan also made provisions to set up a Richtersveld Community Trust to which the Parks Board would pay set fees per hectare per year and, in addition, it would channel its net profits to the community from its proposed nursery. Furthermore, residents of northern Richtersveld would get preference as employees of the park. As a result of the negotiations, all parties signed the Richtersveld National Parks contract which created the park and established the conditions under which it should be managed.

Source: Rolley and Brown, 1996.

Compensation, however, has its own limits. First, financial compensation may be inadequate to meet the concerns of the opponents; for example, where the objection to a development is over the loss of an endangered species, a more acceptable offer than money for the parties would be measures to avoid that loss in the first place. Second, the offer of compensation for irreversible loss of environmental quality or harm to health may be unacceptable or even morally repugnant. Third, where a number of interested parties are involved in the negotiations, all with different views of what constitutes fair compensation, it may be very difficult to agree on a solution that satisfies them all. Sometimes it may be appropriate to set up a trust fund to finance measures to mitigate the losses caused.

Integrating villages in a National Park Scheme, Pakistan

This case illustrates the depth of opposition/conflict that can arise when a new park is proposed that would exclude traditional grazing use of the land, and how negotiations resulted in a decision to allow some such use.

In the Pamir mountains of northern Pakistan, clashes between local people (including the Shimshali and Gojali) and government officials occurred following the establishment of the Kunjerab National Park in 1975. The national government had been pushing for this park, the management of which would exclude uses except wildlife protection. However, tremendous local opposition to the park arose as it became apparent that a part of the traditional grazing land had been included within the core of the park and that access to this land would be denied to villagers. Compensation for the loss of grazing rights had been promised by the government to the local villages but was never delivered. Consequently, illegal grazing and poaching in the park increased (with members of local security forces also implicated) resulting in the decline of wildlife.

In June 1989, a workshop was held in Gilgit in collaboration with the International Union for the Conservation of Nature and Natural Resources (IUCN), the United States Park Service and local and federal government agencies. The workshop discussed the existing park situation, developed certain management guidelines and stressed the need for preparing a detailed management plan for the park. The Government of Pakistan then commissioned the preparation of a management plan. The local communities of the park who had already lost a portion of their grazing lands and had no trust in the government agencies, developed further suspicions that, because of the workshop, they might lose the rest of their grazing lands as well.

From this situation, a series of confrontational events ensued, including a court trial over the villagers' rights to park resources, and illegal police removal, strikes and blockades carried out by local people against the park administration.. Subsequently, the Forests and Forest Industry Council was convened to engage in a multiparty, consensus-building dialogue (without the assistance of a professional, independent mediator) to develop a Forests and Forest Industry Strategy. This process involved: the establishment of a number of bodies to provide agreed databases and assessment overviews in cooperation with interested stakeholders; the establishment of independent panels of experts to provide advice on matters related to the development of the strategy; and the establishment of regional advisory groups to ensure local community involvement throughout the strategy development process.

The process broke new ground in relations between land-use adversaries to produce a win-win approach for resolving land-use conflicts. However, the final document did not gain unanimous support from all of the groups involved, notably, the environmental groups withdrew their support. Nevertheless, the state government proceeded to implement the major reforms negotiated by parties, many of which were also legislatively adopted in the Public Land Act of 1991. The key components of the strategy included protection of forested land areas of high conservation value, legislated security for wood production areas, processes to address changes to land tenure over time, greater public input to forest planning and acknowledgement by the main interest groups of the need to address community costs associated with the win-lose outcomes from past land-use conflicts.

Source: Ahmed, 1996.

23 For example, the `coastal forum' proposed by the World Wide Fund for Nature (WWF) and the United Kingdom Marine Conservation Society in their paper setting out proposals for a United Kingdom Coastal Zone Management Plan (Gubbay, 1990).

24 See also Section 5.2.4.

25 See also Section 6.3.

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