Legal Policy for Biodiversity Management
This article is written using a legal policy approach, examining issues from the perspective of existing laws (ius constitutum) towards the necessity of new policies based on societal needs and developments (ius constituendum). In this context, legal policy must be understood as the legal interests required by society today.
There is an urgent need to establish regulations regarding biodiversity management that extend beyond Law Number 32 of 2009 on Environmental Protection and Management and Government Regulation Number 46 of 2017 on Environmental Economic Instruments. From a legal policy perspective, there are societal interests regarding biodiversity that are not currently covered by existing regulations.
Biodiversity management has undergone rapid dynamics both nationally and globally, particularly after Indonesia ratified the Paris Agreement through Law Number 1s6 of 2016. As a megadiverse nation with the second-largest biodiversity in the world, the question remains whether this biodiversity is being managed optimally in accordance with Article 33 of the 1945 Constitution.
Biodiversity represents the natural wealth referred to in the phrase ‘the earth and its waters and the natural resources contained therein’ under Article 33, Clause (3) of the 1945 Constitution. Indonesia is currently in a prime position to implement this constitutional mandate through the global momentum of climate change. For countries ratifying the Paris Agreement, fulfilling Nationally Determined Contribution (NDC) targets is crucial.
Meeting NDC targets regarding climate change is closely linked to reforestation efforts. Currently, there are two approaches to reducing greenhouse gases: technological approaches, such as Carbon Capture, Utilisation, and Storage (CCUS), and reforestation. The technological approach requires massive investment and comprehensive mapping, making it nearly impossible to implement in an archipelagic nation as large as Indonesia. The second method, reforestation, is directly related to the management of Indonesia’s biodiversity. Large-scale reforestation correlates positively with biodiversity management, as much of this biodiversity is found in forests, as well as in seas, rivers, and other landscapes.
In recent literature, biodiversity management is being approached through a ‘nature positive’ framework. This involves efforts to prevent extinction, maintain ecosystem services, and provide fair and balanced benefits to society within specific locations and timeframes. This ‘nature positive’ practice has already been implemented in countries such as the United Kingdom and Australia.
Philosophically, the ‘nature positive’ concept is appropriate for Indonesia, as its goal is to provide fair and balanced benefits to society, including indigenous communities living within biodiversity management areas. This aligns with the objective of biodiversity management under Article 33, Clause (3) of the 1945 Constitution, which states that resources shall be ‘used for the greatest prosperity of the people.’
The terminology of ‘biodiversity credits’ differs from carbon trading. While carbon trading involves transferable commodities, biodiversity credits refer to the ‘nature positive’ terminology. This distinction exists because carbon trading uses units such as Verified Carbon Units per ton (VCU/Ton), whereas Biodiversity Units represent the integrated condition of biodiversity at the ecosystem, habitat, and species levels, making them more complex and unsuitable for treatment as mere commodities.
The paradigm for biodiversity management credits is based on the concept of incentives for actions that support positive biodiversity outcomes. This differs from greenhouse gas mitigation based on carbon credits, which has a business dimension through carbon trading, although biodiversity credits can serve as a co-benefit to carbon credits based on reforestation.