Regional : Sustainable Capacity Development for Safeguards in the Pacific – Phase 1

Energy / Energy sector development and institutional reform

Transport / Transport policies and institutional development

Water and other urban infrastructure and services / Urban policy, institutional and capacity development

There are significant challenges in the Pacific, not least the number of fragile and conflict-affected situations and small island developing states, as well as the frequency of disasters and the increasing fragility caused by climate change. Limited and often expensive air and marine transportation presents additional challenges. Each of the drivers described below compound the complexity of implementing safeguards in the region.

Existing staff (and local consultants) have limited familiarity with international standards and practices and sometimes lack authority and/or resources. For the environment, all but one Pacific DMC (Nauru) has in place environmental impact assessment and/or environmental protection legislation. For land matters and resettlement, land laws in some Pacific DMCs focus more on acquisition and alienation of land and less on protection of landowners or their assets.

The Pacific DMCs have varying histories of colonization and conflict, along with differing local traditions and customs, which have left legacies that affect and shape institutional and regulatory arrangements for land and marine tenure. All Pacific DMCs, except for Tonga, legally recognize customary land ownership, although land rights are managed according to unique processes linked to each society's social and traditional belief systems.

Varying forms of customary tenure, coupled with land scarcity and parallel use of both formal and customary systems, frequently complicate the process of obtaining access to land for development projects.

Customary matters and indigenous structures are typically addressed within land law frameworks and within the application of involuntary resettlement safeguards. In terms of the involuntary resettlement safeguard requirement. All Pacific DMCs, except Nauru, permit expropriation by the government for public purpose development projects, but to date only the governments of Papua New Guinea and Samoa are known to regularly exercise expropriation laws. Most expropriation laws were enacted during colonial times to provide for eminent domain, compulsory acquisition, and alienation of custom land and, post-colonialism, are often not exercised because of a range of reasons. The use of negotiated settlements for development projects is common in Pacific DMCs. Such arrangements can enhance human rights and security of land tenure for customary landowners but necessitate complex due diligence requirements to avoid and reduce social risks.

Weak capacity of government agencies, inadequate legal frameworks, lack of coordination, and weak enforcement of regulations where they do exist are the key constraints on safeguard implementation in Pacific DMCs. There are gaps in country safeguards systems (CSS), compounded by shortages of comprehensive guidance products and implementing regulations, despite past positive efforts in this area. An evaluation of the CSS for equivalence with the 70 key principles of the environment safeguard requirement in the Safeguard Policy Statement 2009 (SPS) indicates that 59% of Pacific DMC domestic laws and regulations overall were fully or partially equivalent with the environment policies. The equivalence assessment results for involuntary resettlement policies showed that domestic laws and regulations had no equivalence with more than two-thirds of the SPS policy principles and key elements. The differing demands of development partners relating to safeguards further complicates implementation in Pacific DMCs.

In the Pacific, the CSS focus on development/project approval and less on implementation. Assessments conducted at the feasibility study stage are often not updated, and in turn bidding documents are released and construction activities commence with weak environmental management plans, affected persons are not fully compensated, and at times national approvals are not obtained. Contractors lack capacity and/or experience in environmental management, and health and safety matters are not uniformly addressed, leading to increased risks on projects.

Pacific DMCs challenges and constraints require continued collaboration between development partners through mechanisms such as the Pacific Learning Partnership for Environmental and Social Sustainability (PLP-ESS), which was established by ADB, World Bank, University of the South Pacific, and the Secretariat of the Pacific Regional Environment Programme (SPREP) in April 2019 to foster training, knowledge exchange, and coordinated capacity development activities. ADB's PARD also is an active member of the Pacific Regional Infrastructure Facility (PRIF) Safeguards Working Group to help Pacific DMCs to implement more efficiently their respective environment and social requirements. The PRIF Safeguards Working Group has also made significant progress in developing a framework for development partners to use that seeks to promote common terminology and approaches to safeguards, in a publication titled The Shared Approach. The SPREP plays an important role by helping the Pacific DMCs strengthen and implement their CSS; however, SPREP has focused on implementation of environmental impact assessment legislation and has not yet segued into social impact aspects (as they relate to EIA) or post-approval environmental management requirements. In the Pacific region, there is no equivalent to SPREP for social safeguards.

The PLP-ESS is looking to help develop social safeguard training and provide resources to SPREP to deliver social safeguards focused training, in addition to SPREP's comprehensive program of environmental safeguards training. Also, the PLP-ESS has helped the University of the South Pacific develop a post-graduate diploma program. The Postgraduate Diploma in Islands and Oceans Stewardship will be one way to effectively support the needs of the region in further developing capacity for environmental and social safeguards and further embed and expand environmental and social management learning opportunities already offered by the university to both existing and future practitioners.

The lessons learned from projects and implementing capacity building activities during previous TA, as well as the findings from an independent evaluation of PARD's TA projects, provide direction for future safeguards capacity development. Key lessons learned include the need to: (i) consider alternatives to standard approaches for safeguards implementation and capacity development (including technologies and different outsourcing modalities); (ii) repeat capacity development efforts over time to address understaffing, underfunding, and high staff turnover in regulatory agencies; (iii) address limited knowledge of government staff of their own CSS requirements and complex issues of safeguards implementation; and (iv) address findings on access to land including (a) the limited role of negotiated settlements, especially in situations where customary ownership prevails, (b) the misunderstandings that may occur during implementation based on differing understandings of customary roles and responsibilities, and (c) balancing land access for development projects with the need to support customary land ownership tenure and associated traditions, beliefs, and practices. The recommendations from the Independent Evaluation Department's Pacific safeguards TA performance evaluation (footnote 9) included: (i) developing a long-term vision and strategy for capacity strengthening in the Pacific, (ii) addressing gaps in regulatory frameworks, (iii) furthering current partnerships, and (iv) conducting follow-up assessments on land issues.

This TA initiates a multiyear process to deliver on lessons learned and recommendations. Phase 1 will implement short-term actions. The strategy and lessons learned during phase 1 will identify medium and longer-term needs and actions, which will drive a planned phase 2 TA.

Environmental and social risk and impact management implementation in Pacific DMCs is improved. (TA defined)

A coordinated and sustainable approach to strengthening environmental and social risk and impact management is under implementation in Pacific DMCs

Region-wide safeguards capacity development strategy and plan prepared, and pilot capacity development activities implemented

Targeted safeguards support delivered

Selected capacity development interventions, identified in TA phase 1 regional strategy, are delivered in at least eight selected Pacific DMCs.