A comparison of the legal systems in Asian and African developing nations finds similar regulatory defects putting great apes greatly at risk in the face of rapid agribusiness development.
Gabon, Liberia, Indonesia and Myanmar, for example, have all created conserved areas — protections deeply flawed by a lack of institutional capacity, inadequate funding, and poor enforcement.
These nations, like other developing countries, suffer from a top-down concentration of political and legal power with centralized urban elites far from the backcountry where environmental and societal harm unfolds.
The conservation laws of developing nations do not well address the leading cause of great ape decline: an explosion in habitat loss — the chief result of industrial agricultural expansion.
The countries of Gabon, Liberia, Indonesia and Myanmar may not seem to hold much in common, but each of these countries — two in West Africa and two in East Asia — possess a priceless natural heritage that is quickly being extinguished: they are home to some of the world’s last great apes.
Liberia and Gabon can boast of its chimpanzees, and Gabon can further brag about its lowland gorillas. Indonesia (along with Malaysia) is home to the last of the world’s orangutans, while Myanmar, formerly Burma, is home to a species of what are referred to, perhaps unfairly, as “lesser apes,” in this case the lar or white-handed gibbon.
Besides their high concentrations of great apes, each country shares another commonality: rapid, significant agribusiness development. All are also plagued by corruption, authoritarian tendencies, and exploitative foreign extractive industries. On the plus side, all four have laws on the books meant to protect their resident apes.
Myanmar and Gabon share the distinction of having fairly effective mechanisms in place to regulate large-scale forestry — mainly leftover frameworks from colonial concessions — but both nations are almost wholly lacking in regulations governing industrial agriculture, a recent arrival in these developing economies.
Gabon, Liberia and Indonesia have instituted procedural environmental impact assessments in order to assess the potential harms of proposed agricultural concessions. In Myanmar, a country fitfully emerging from decades of military rule, draft environmental impact assessments are just now being adopted.
So, with all these protective laws and regulations on the books, why are every one of these great ape species declining in numbers in their home nations — some to the extent that extinction in the wild is a distinct possibility in the near term?
“It is not enough to have good laws — they must also be put into practice.” So concludes an extensive study undertaken by Cambridge University and the Arcus Foundation entitled, State of the Apes 2015: Industrial Agriculture and Ape Conservation. This lengthy report finds pervasive lapses in the effective and consistent implementation of conservation laws that were meant to directly abet the illegal take of affected ape populations.
The four developing countries share even more in common: they have all adopted legislation creating protected areas for their great apes, and provided protections from direct take due to poaching.
But the enforcement of these laws is routinely undercut by a lack of institutional capacities and funding, ambiguities regarding the responsibilities and missions of sometimes conflicting government agencies, and a top-down concentration of political and legal power among a centralized urban elite generally far removed from the backcountry where environmental and societal harm unfold. Finally, well-meaning laws prohibiting poaching fail to staunch the leading cause of ape decline, and the chief result of industrial agricultural expansion: an explosion in habitat loss.
Dice loaded in favor of development over conservation
Gabon, Liberia, Indonesia and Myanmar possess societal traits shared by much of the developing world: centralized control of rulemaking and legal enforcement by often privileged governmental officials, disenfranchised local communities that are typically illiterate and far removed from governmental involvement, and a lack of legal transparency and accountability. These factors can work together to hide the insider deals that transfer sprawling expanses of ape habitat to multinational companies for conversion to industrial agriculture.
All four countries experienced European colonization. But independence, rather than devolving power to the populace, served to concentrate power among a governing elite, which allowed itself to acquire immense parcels of national real estate with the fuzziest of justifications (e.g., for a “public purpose” in Gabon, or for the “national interest” in Indonesia), justifications which have been interpreted by compliant court systems to mean pretty much whatever the elites tell the courts they should mean.
This capricious interpretation of vague laws by the courts can be used to force rural communities from their traditional lands, and then hand those properties over to usually foreign agribusiness companies. The result, says the study, is often a heightening of tensions between government and the governed, between urban and rural people, and among the ethnic or religious groups in control and those that are not.
Another legal commonality in these developing nations is the insistence on “productive use” agreements that often govern the granting of concessions to extractive industries. This “use it or lose it” contractual obligation was usually adopted by postcolonial governments out of sometimes justified fears over the absorption of national resources by overseas powers. Productive use provisions generally insist that leased property be quickly developed, and that portions of the profits made from extracted resources be paid to government — rather than concessions being left in an “unproductive” natural state.
Failure to quickly develop land concessions in many cases can result in the forfeiture of the concessionaire’s contractual rights, but as the State of the Apes report notes, “the requirements can create perverse incentives, as they might make it more difficult for companies to set aside conservation areas even if they are willing to do so.”
The study cites Indonesia as an example, where palm oil companies officially committed to zero deforestation have reported that their efforts to set aside areas of critical ape habitat have run into legal conflict with mandatory productive use requirements.
Top down governance leans toward profit and away from protection
Another systemic problem: agencies charged with agribusiness development tend to be powerful in the developing world, while environmental ministries are underfunded, understaffed and disempowered. As a result, the goals of sometimes-authoritarian central governments are often pursued despite popular sentiment supporting ape conservation. Likewise, civic institutions — including the NGOs that monitor and intercede on behalf of environmental issues — are bypassed by government agencies, or suppressed in the absence of effective civil liberty guarantees and a lack of popular representation.
In Liberia, for example, where agribusiness concessions require legal approval from the national parliament, 13 sweeping, large-scale concession contracts and their terms were set forth solely by the ruling executive.
In Indonesia, regional governments are granted some autonomy in concessionary decisions at the expense of full funding from Jakarta. As a result, those economically strapped regional governments are highly incentivized to exploit their natural resources for economic development, which in Indonesia, has resulted in rapid destruction of wildlife habitat. Last autumn’s acrid pyres of health-threatening smoke from burning Indonesian rainforest — cleared to make way for new oil palm plantations — is one visible outcome of this legal strategy. As is the rapid loss in great ape protected habitat.
Nation states — charged with the equal application and enforcement of laws — rely upon an unspoken agreement among the governed that some amount of personal liberty is necessarily surrendered to enable peaceful coexistence in an increasingly crowded world. But countries lacking inclusive democratic institutions, and well-established jurisprudence systems, can find it nearly impossible to impose legal requirements upon the rich and powerful. In many developing countries, these privileged special interests are increasingly represented by the agribusiness sectors, notes the report.
It’s easy to see why many rural communities in the developing world — lacking money, human resources, and the institutional capacities needed to monitor protected areas and provide local enforcement — are possessed by a sense of pervading powerlessness.
Of the four countries compared in this article, only Gabon has an adequate legal infrastructure for competent management of protected areas, though even here it’s not all good news. That’s because much of the loss of apes and their habitat occurs in unprotected areas. That situation became even more dire when Ebola outbreaks in northeastern Gabon and western Congo were believed to have killed thousands of gorillas and chimpanzees between the 1990s and 2005.
In 2015, Gabon joined its fellow West African countries of Angola, Cameroon, Central African Republic, Equatorial Guinea, and the Republic of Congo, along with NGOs such as the World Wildlife Fund (WWF) and the International Union for Conservation of Nature (IUCN), in a conference to map out the remaining strongholds of the region’s great apes.
A similar conference held a decade previously had met with some success in preserving critical habitat for chimpanzees and lowland gorillas, but according to an IUCN report published last spring, “the growing human population in the region coupled with the expansion of extractive industries and industrial agriculture are putting increasing pressure on the remaining great apes — so additional conservation measures are urgently required.”
CITES not the ideal tool for protecting great apes
An international agreement, the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) regulates the direct take — poaching and trafficking — of declining wildlife, and most of the countries in the State of the Apes 2 study are signatories in varying degrees to CITES regulations.
But direct take is a relatively small factor in plummeting ape populations, with the principle threat being habitat conversion. Furthermore the enforcement of CITES obligations routinely falls victim to institutional corruption, a lack of resources for law enforcement, and a lack of public knowledge and participation.
“In most of the countries reviewed,” the study finds, “there is no explicit prohibition against the clearing of forests outside protected areas.” In other words, while CITES forbids the killing of individual apes, it is largely silent in regard to habitat destruction outside protected areas — as occurs in the creation of large oil palm plantations. Such wholesale habitat conversion is the major threat to the survival of great apes.
A significant exception to this situation is found in Indonesia, where endangered species conservation is gauged in terms of individual animals as well as their habitat. Even there, though, “these provisions have not yet been fully implemented through subsequent regulations, and therefore their effectiveness in practice cannot be tested,” says the report.
A failure of the judicial review process
The cornerstone of Western law is judicial review — the appraisal of executive and legislative actions by the courts to determine whether they comply with current law and/or constitutional mandates.
In the countries where apes are found, the judicial review process is often severely flawed because legal actions have rarely involved challenges to government decisions harmful to the environment.
“Multiple factors may help to explain this situation,” says Lorenzo Cotula with the International Institute for Environment and Development and lead author of the State of the Apes” study, “including the fact that local communities are not normally recognized as legal persons; costly and inaccessible procedures; inadequate institutional capacity in government and civil society; and the limited independence and impartiality of the judiciary — as well as the resulting lack of faith in the court system.”
Mutual respect for the law and the governing institutions that spring from it is essential for effective government, but when a nation’s own people are intentionally marginalized (ie. “not normally recognized as legal persons”) their allegiance to that government can fray and fade.
And sometimes the system works…
The top down political power and wealth wielded in many developing countries, and the organized corruption such oligarchies foster, is fundamental to the plight of the world’s apes. Indonesia, for example, ranks 107 out of 174 countries in the 2014 Corruption Perceptions Index, and it is also known for the largely lawless development of its oil palm plantations often built on the ruins of prime ape habitat. But even here there is cause for hope, and a lesson in the power of the law when the people take up its equitable enforcement.
The Tripa Peat Swamp Forests of Indonesian Sumatra’s Aceh province are a matchless treasury of biodiversity in an otherwise ravaged landscape — hosting some of the last intact tropical rainforest in Southeast Asia. As the report states, it’s “the only place on earth where the Sumatran elephant, Sumatran rhinoceros, Sumatran tiger and Sumatran orangutan live side by side.” An Edenic hold-out, set in one of the most overpopulated countries on Earth.
With “the highest densities of orangutans recorded anywhere in the world, in the late 1980s, Tripa was covered by around 60,000 hectares (232 square miles) of primary peat swamp forest and was home to at least 3,000 orangutans.” But relativistic application of the law led to major oil palm concessions being awarded in the 1990s, and by 1999 about half of the peat swamp forest had been cleared and planted in oil palms.
Then development stalled. Aceh’s separatist rebels began ramping up their attacks on the Indonesian government, leading to the withdrawal of agribusinesses from the region, the abandonment of plantations, and the slow recovery of orangutan habitat.
A natural disaster, the December 2004 tsunami brought the adversaries to the table, leading to the 2005 Helsinki Peace Accord. That, unfortunately for the apes, meant a return to the former frenzy of deforestation in Aceh.
Between mid-2007 and 2010, another 28 percent of remaining habitat was destroyed, and despite strident acts by localities and environmental groups, Jakarta did nothing to slow the devastation. Then in May 2011, the government of Norway pledged $1 billion to help Indonesia reduce its carbon emissions through reforestation. Indonesian President Susilo Bambang Yudhoyono responded by signing a legal moratorium on granting new agribusiness concessions in the country’s remaining intact rainforests.
Just four months later, the governor of Aceh defied the federal ban by issuing a new oil palm permit for the conversion of 1,600 hectares (3,954 acres) of peat swamp — land clearly included in April’s moratorium. International NGOs and local activists filed suit; the case was dismissed by a lower court and appealed even as rainforests were being bulldozed.
In 2012, a local affiliate of Friends of the Earth called Walhi Aceh held a press conference featuring video of the mass clearance underway, with pyramidal mounds of burning trees, and rows of oil palm saplings marching to the sooty horizon. Media coverage of these events gained international attention, and the perpetrators of the Aceh plantation found themselves in the uncomfortable glare of the world press.
The High Court in Medan ruled in favor of Walhi Aceh on August 30, 2012, and ordered Aceh’s new governor to cancel the oil palm concessions. Then the central government in Jakarta, in the glare of the continuing global spotlight, sent investigators to determine the extent of the environmental damage, ultimately resulting in civil cases filed by the Ministry of Environment against two agribusiness companies. Criminal cases were filed against five companies in total, and included the indictment of some corporate executives that resulted in incarceration — imprisonment for environmental crimes that is rare in the developing as well as the developed world.
In January 2014, in the wake of mass protests by a newly awakened local populace, the provincial government began to dam the canals created by agribusinesses to drain the peat swamps in the now rescinded plantation areas, and set in place a landscape-level rainforest restoration program.
The revival of the Tripa peat swamps and restoration of ape habitat will take many years, even in the fast-growing tropics, but the precedent set by Aceh’s people in alliance with caring foreigners serves as an inspiration and a legal milestone worthy of emulation throughout the developing — and developed — world.
The State of the Apes report documents three chief reasons for this notable — and, rare — victory, all of which could be applied in conservation battles around the world:
- Precise, accurate and verifiable data collection and reporting on variables such as peat depth, hotspots (fires), deforestation and environmental infractions. This documentation has allowed for the development of strong, clear legal cases against the companies based on largely indisputable evidence.
- The successful use of this data by a consortium, including environmental, social and human rights NGOs and local community members, to publicize the issues. This joint effort eventually morphed into a major national and international campaign that gained and maintained global public support, putting significant political pressure on key government actors to pursue legal action and helping to minimize opportunities for interference in the legal process by industry and others.
- The presence of a government agency (or agencies) with the political will to take action. In this case, the now defunct UKP4, the Ministry of Environment and the Public Prosecution Service gathered a wealth of evidence and data on environmental wrongdoing and — under public scrutiny and pressure — used that information to prepare and prosecute cases.
“The case study from Aceh, Indonesia, highlights that some of the more promising enforcement mechanisms may come not from legislation that specifically protects apes from killing or hunting, but from forest regulations or public moratoria that indirectly protect ape habitats,” said the study. Simply put: protect the habitat and you protect the apes.
When study co-author Giedre Jokubauskaite was asked by mongabay.com if there were any legal or policy formulations that could serve as overarching and widely applicable systems that would offer deeply integrated protection for the world’s remaining ape habitat, the International Institute for Environment and Development lawyer replied with the cautious, measured tones of an international attorney.
“In this [study] we argue that there is no ‘golden bullet’ of governance that would ensure protection of apes,” she said. “The states we looked at varied in terms of ‘vertical’ distribution of decision-making power. Depending on the state, the decisions about forest management are made at the local, regional, or national levels. All systems we analyzed have their flaws and merits. For instance, national level forest management is often more effective when it comes to adopting conservation policies and laws (since the national governance is more likely to designate large territories of forested land as protected areas). On the flip side, national government often does not have the resources to implement these laws effectively. They need the local authorities and communities to be a part of the cause, and to keep an eye on illegal practices. Thus, the cooperation across all level of governance is crucial.”
For the great, and lesser, apes of West Africa and Southeast Asia, good government that is responsible to local communities and to nonhuman stakeholders — that strives to contain the rapacious instincts that often characterizes our species — cannot come too soon. If the events in Indonesia’s Aceh province are not to become the future norm, then the post-colonial status quo of unresponsive governing elites, rampant corruption, and natural resource profiteering must be increasingly tempered by the rule of law.
FULL DISCLOSURE: The Arcus Foundation, creator of the State of the Apes report featured in this article, is a Mongabay funder. However, the story author was unaware of that relationship when writing this article, and he reported it independently.