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Legal framework for concessions in protected areas, Paul F J Eagles

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Presentation made at the CBD/IUCN TAPAS Group meeting on "Tourism partnerships and concessions in protected areas: Cooperating for success" meeting in the iSimangaliso Wetland Park

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Legal framework for concessions in protected areas, Paul F J Eagles

  1. 1. Legal Framework for Concessions in Protected Areas Workshop on Tourism Partnerships Time Block 5 Paul F. J. Eagles May 31, 2017
  2. 2. National Laws and Policies •  All contacts, leases, permits and concessions are subject to national and park laws. •  Head office should have at least one staff person with training in the legal aspects. •  Each park should have at least one staff person with training in the legal aspects.
  3. 3. Concessions and partnerships policies •  Keep tourism in balance with conservation goals outlined in the protected area management plan; •  Encourage sufficient volumes of tourism to ensure financial viability;
 •  Set limits for acceptable change associated with tourism; 
 •  Establish a framework to ensure that these limits are applied fairly and effectively; and, •  Create institutional and financial structures to manage tourism revenues.
  4. 4. Characteristics of concession law, regulations and policies •  Concession contract terms, such as length of contract operation. •  Process for obtaining concession proposals. •  Award process. •  Evaluation criteria. •  Protections for concessionaires. •  Control of concessionaire rates and charges for services to visitors. •  Concession fees (to government or the protected area authority).
  5. 5. Characteristics of concession law, regulations and policies •  How concession fee revenues are spent (i.e. on conservation, maintenance etc.). •  Economic development. •  Preferences (e.g. for local or community businesses). •  Assignments and transfers of rights. •  Suspension or termination procedures. •  Prosecution, breach, and penalties.
  6. 6. Tendering •  Subject to national and park laws. •  The process for negotiating a bid and selecting a concessionaire (i.e. the tendering process) is usually long, complex, and expensive for all parties. •  The high cost often creates an incentive for the protected area authority to use other approaches, such as long-term contracts, easy methods for contract renewal, or insourcing.
  7. 7. Contracts •  Contracts can be verbal, but this leaves important issues to later interpretation in the case of dispute. •  It is more preferable for all contracts to be written to make interpretation much easier and enhances the likelihood that disputes will be successfully resolved through mediation or legal action. •  Contract law underpins all outsourcing activities in protected area tourism. It is important that the responsibilities of each partner are listed in sufficient detail in a contract. Having a clear idea of these responsibilities allows for the regular measurement of contract performance. Typically, there are financial and other penalties for non-compliance.
  8. 8. Contracts •  The contract includes a section outlining the rules for cancellation of the contract in the case of major non-compliance with contract stipulations. •  Ultimately all the contract stipulations, including those dealing with contract cancellation will be subject to interpretation by the court
  9. 9. Outcome of Contract Dispute
  10. 10. Transboundary Parks •  A unique situation that involves bilateral negotiations is that of transboundary parks. •  This situation requires negotiation and legal clarification concerns the rights on contractors to operate across national boundaries

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