Rättens förhållande till komplexa och dynamiska ekosystem : En studie om rättsliga förutsättningar för adaptiv och ekosystembaserad reglering och planering för bevarandet av biologisk mångfald vid jakt

Sammanfattning: Biological diversity, i.e., the variety of genes, species and ecosystems, is fundamental to all life on Earth. The conservation of biodiversity is consequently recognized both in national and international law as one of the prerequisites for achieving a sustainable development. However, the decrease in biodiversity is continuing, at all levels. One hypothesis for the failures is the lack of consistency between ecological and legal criteria, in particular regarding the incorporation of legal criteria relating to the complex and dynamic characteristics of ecosystems. A first purpose of this thesis is therefore to analyze whether the legislation on hunting and management of wildlife populations is developed with enough respect to ecological criteria necessary for achieving the goal of conserving biodiversity, at all levels. This also includes an assessment of legal preconditions for adaptive management as a means of handling ecosystem dynamics and limited ecosystem knowledge. Both national and EC legislation on hunting and management of wildlife populations have been included in the analysis. The result of the analysis shows that there are considerable differences between legal and ecological criteria, especially on the ecosystem-level, both in Swedish law and EU-law. However, the deficits are even more profound in Swedish law. The legislation is mainly concerned with the use of single wildlife species and there are few legal obligations to preserve or to consider interspecies relations, ecosystem functions or other ecosystemic characteristics. However, even on the species-level there are few legal requirements to guarantee that sustainable ecological limits are not infringed due to hunting decisions. The analysis also shows that there are few substantial legal requirements for ensuring adaptive management. There is therefore a risk that the necessary adjustments to eliminate environmental goal deficits will not be achieved. The analysis furthermore shows that the Environmental Code, with its general rules of consideration and the goal to preserve biodiversity, in principle, has an important function in forcing decision-making towards an increased ecosystem approach. However, as the Code lacks efficient instruments for control and enforcement related to hunting specifically, the Code has no essential impact on decisions on hunting in practice. A second purpose of the thesis is to discuss new legal approaches to wildlife management. To achieve this purpose a study of environmental legislation on the management of natural resources in New Zeeland, with emphasis on planning systems, has been conducted. From the result of the study, several implications for the development of Swedish law can be drawn. It is for example concluded that an increased integration between the regulation on hunting and wildlife management and the Environmental Code, can be an efficient way of achieving holistic and ecosystemic decision-making. Such integration is suggested either through including environmental hunting rules under the Environmental Code or through developing a new legal framework for the regulation, planning and management of wildlife, with functions to secure horizontal integration with the Code and other relevant sectoral laws (such as the Forest Act). Another conclusion is that a top-down-approach in the legislation is necessary, given that the goal of biodiversity is to be achieved. A lack of a top-down approach in the legal system will increase the risk that overriding complex and dynamic ecosystem goals are neglected at the lower administrative levels due to conflicts with other interests. However, it is also promoted that the legislation at the central level should be conducted as a framework legislation, leaving responsibility to regional or local levels to determine the specifics, in particular where ecological preconditions differ between areas or when detailed rules cannot be expected to hold for a long time. Given the non-linearity, unpredictable changes, uncertainty and lack of ecosystem knowledge, especially on the ecosystem level, too detailed regulation may in fact even counteract the achievement of the biodiversity goal. However, when a legislation is of framework character, it is important that it also include guiding principles, clear legal definitions and legal standards to steer the decision-making at lower levels. Such guiding rules must also be complemented with requirements of regulations and decision-making at lower levels to be consistent with higher levels. When possible and necessary, legal limits to ensure that the use of wildlife resources and biodiversity are maintained within ecological sustainable limits, should be included. A legal planning system is here promoted for achieving complex and dynamic goals in relation to wildlife regulation and management. Such a planning system must be ecosystemic and include functions for adaptive management. If so, it can be a legal approach for vertical integration and full implementation of legal requirements which are in consistency with the framework goals. Such a planning system should also be developed with the purpose to implement EU-requirements. In general a more clear and precise implementation of EU-law is motivated, not only from a legal perspective, but from a goal fulfillment perspective as well, considering that legal criteria on the EU-level in some aspects are more consistent with ecological criteria. The overall purpose of this thesis is thus to contribute to the discussion on new legal approaches for wildlife management that will achieve international, EU- and national goals on the preservation and sustainable use of biological diversity.