Electronic copy available at: http://ssrn.com/abstract=1864403

NATURAL RESOURCES, NEW GOVERNANCE AND LEGAL REGULATION: WHEN DOES COLLABORATION WORK? CAMERON HOLLEY AND NEIL GUNNINGHAM *

This article examines the implications for natural resource management of the “new governance”, a collaborative, participatory and deliberative approach to solving public and environmental problems that has important implications for the way we understand and apply law and regulation. Evaluating two distinct natural resource management programs developed under the Resource Management Act 1991 and the Local Government Act 2002, the article provides one of the first comparative and empirical examinations of the performance of new governance in New Zealand. Our analysis of these programs yields insights for new governance jurisprudence including an evaluation of the “default hybridity” relationship between traditional law and new governance. It also enables recommendations to be made as to how to increase the success of new governance collaborations in practice. These have considerable implications for the law and regulation of natural resource management in New Zealand.

I. INTRODUCTION A quiet revolution is taking place in the ways in which citizens and governments are seeking to engage with complex social and environmental issues.1 Traditionally – at least in the wide range of circumstances where unconstrained markets proved insufficient to achieve socially desired outcomes – such issues have been addressed though regulation by the state (ie laws and their enforcement). But today, numerous “experiments” are taking place in New Zealand and internationally which seek to address such problems through mechanisms that supplement, and in some cases supplant conventional regimes of legal regulation, administration and adjudication.2 Rather, the aim of domestic lawmakers is to manage public problems through localized collaborations and nonbinding agreements.3 *

Dr Cameron Holley is Lecturer, Legal Governance CORE (Concentration of Research Excellence), School of Law, Macquarie University. He is also a member of Climate Futures, Macquarie University, the National Centre for Groundwater Research and Training and the Climate and Environmental Governance Network, The Australian National University. Neil Gunningham is Professor, Director of the Climate and Environmental Governance Network, Regulatory Institutions Network, Australian National University. The research was partially funded by the National Centre for Groundwater Research and Training, and an Australian Research Council Discovery Grant, through the ANU Regulatory Institutions Network. We are grateful for the comments of Darren Sinclair, Bryan Jenkins and the anonymous reviewers.

1

Orly Lobel “The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought” (2004) 89 Minn L Rev 342 at 343; Graine De Búrca, “New Governance and Experimentalism: An Introduction” (2010) Wis L Rev 227.

2

Neil Gunningham and Cameron Holley Bringing the ‘R’ word back: regulation, environment protection and NRM 3/2010 Occasional Paper of the Academy of the Social Sciences in Australia (2010) 1.

3

Lobel, above n 1, at 343.

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These initiatives have come to be known as the “New Governance”. The term “governance” is preferred to “law” or “regulation” because these new forms of social steering are not necessarily (although they may be) dependent on formal legal regulation or other interventions by the nation state to drive them. The new governance literature does not derive from a single legal or socio-legal theory but rather has a diversity of intellectual underpinnings, as can be illustrated by the diversity of terms that have been used to describe it.4 Prominent amongst these are “experimentalism”, “modular regulation”, “collaborative governance”, “multilevel governance” and “regional collaboration”.5 But even though these ideas are diverse in their theoretical pedigree, they have significant commonalities, including an emphasis on collaboration, integration, participation, decentralisation, deliberative styles of decision-making and flexibility. Although there is no single new governance model per se, the term new governance is increasingly used to refer to legal and public policy approaches that encompass some or all of these principles.6 Although still evolving, growing numbers of scholars and policymakers believe that new governance has significant implications for the way we understand and apply conventional law and regulation.7 Indeed, new governance has been characterised as “an increasingly popular form of jurisprudence” that is “receiving support and consideration from across the political spectrum and in a variety of fields of law”.8 These include policing, work place/employment law and heath care. However it is environmental and natural resources law that has arguably been at the forefront of such trends and which forms the specific focus of this article.9 We use the term “new environmental governance” or NEG to denote this focus. Although the NEG literature has tended to focus more on theory than practice,10 there have been some emerging empirical studies in Europe,11 4

David Hess “Social Reporting and New Governance Regulation: The Prospects of Achieving Corporate Accountability through Transparency” (2007) 17(3) Business Ethics Quarterly 453 at 454.

5

For discussion and references see Michael Lockwood and others “Governance Principles for Natural Resource Management” (2010) 23(10) Soc and Nat Res 986; Cameron Holley “Facilitating Monitoring, Subverting Self-Interest, and Limiting Discretion: Learning From “New” Forms of Accountability in Practice” (2010) 35 Colum J Envtl L 127.

6

Neil Walker “EU Constitutionalism and New Governance” in G De Búrca and J Scott (eds) Law and New Governance in the EU and the US (Hart Publishing, Portland, 2006) 15 at 22; Bradley Karkkainen “‘New Governance’ in Legal Thought and in the World: Some Splitting as Antidote to Overzealous Lumping” (2004) 89 Minn L Rev 471 at 473.

7

Scott Burris, Michael Kempa and Clifford Shearing “Changes in Governance: A CrossDisciplinary Review of Current Scholarship” (2008) 41 Akron L Rev 1 at 2.

8

Lisa Alexander “Stakeholder Participation In New Governance: Lessons From Chicago’s Public Housing Reform Experiment” (2009) 16 Geo J Poverty Law and Poly 117 at 118–119, 124–129; David Hess “The Three Pillars of Corporate Social Reporting as New Governance Regulation: Disclosure, Dialogue, and Development” (2008) 18(4) Business Ethics Quarterly 447 at 450.

9

Charles Sabel and William Simon Minimalism and Experimentalism in the Administrative State Columbia Public Law and Legal Theory Working Paper 10-238 (2010); Lobel, above n 1, at 423, 463–464.

10

Bradley Karkkainen “Managing Transboundary Aquatic Ecosystems: Lessons from the Great Lakes” (2006) 19 Pacific McGeorge Global Business and Development Law Journal 209 at 212.

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When Does Collaboration Work?

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Australia12 and the United States.13 It is, however, in New Zealand under the auspices of the Resource Management Act 1991 and the Local Government Act 2002 that some of the most interesting and under-examined NEG experiments can be found and where empirical study can provide substantial insights for lawyers and policymakers.14 This article focuses on two programs introduced at the catchment and subcatchment scale by the regional council known as Environment Canterbury15 and provides one of the first comparative and empirical examinations into the performance of these innovative NEG processes in New Zealand. Drawing lessons from the program’s comparative achievements, the article sheds light on an issue that has been the subject of vigorous debate by legal scholars at both an applied and theoretical level: the specific relationship between traditional legal regulation and “new governance”. In particular, the article considers “default hybridity”, a hypothesised relationship between law and new governance that while being influential and also “optimistic and constructive”, is somewhat lacking in rigorous empirical exploration and validation.16 17 The article also evaluates the fundamental issue of collaboration. This analysis reveals a number of practical and policy insights for New Zealand and other Western government policy makers with regard to a range of underexamined issues including: the roles and forms of government intervention, law and institutional design conditions that might best overcome transaction

11

See eg Joanne Scott and Jane Holder “Law and New Environmental Governance in the European Union” in De Búrca and Scott, above n 6, at 211.

12

See eg Cameron Holley “Aging Gracefully? Examining the Conditions for Sustaining Successful Collaboration in Environmental Law and Governance” (2009) 26 EPLJ 457; Marcus Lane, Cathy Robinson and Bruce Taylor (eds) Contested Country (CSIRO Press, Collingwood, 2009).

13

Lawrence Susskind, Alejandro Camacho and Todd Schenk “Collaborative Planning and Adaptive Management in Glen Canyon: A Cautionary Tale” (2010) 35(1) Colum J of Envtl L 1; Paul Sabatier and others Swimming upstream: Collaborative approaches to watershed management (MIT Press, Cambridge, 2005).

14

Jason Solomon “Law and Governance in the 21st Century Regulatory State” (2008) 86(4) Tex L R 819 at 834; Wayne McCallum, Kenneth FD Hughey and Stefanie S Rixecker “Community Environmental Management in New Zealand: Exploring the Realities in the Metaphor” (2007) 20(4) Soc and Nat Res 323.

15

For recent developments regarding Environment Canterbury’s role in the region see Wyatt Creech and others Investigation of the Performance of Environment Canterbury under the Resource Management Act and Local Government Act (prepared for the Ministry for the Environment, 2010); Environment Canterbury (Temporary Commissioners and Improved Water Management) Act 2010, ss 7–23.

16

Graine De Búrca and Joanne Scott “Introduction: New Governance, Law and Constitutionalism” in De Búrca and Scott, above n 6, 1 at 4; David Trubek and Louise Trubek “New Governance and Legal Regulation: Complementarity, Rivalry, and Transformation” (2006) 13 Colum J Eur L 540 at 541; Cameron Holley “Removing the Thorn from New Governance’s Side: Examining the Emergence of Collaboration in Practice and the Roles for Law, Nested Institutions and Trust” (2010) 40(7) Envtl L Rep 10654 at 10683–10684.

17

Brian Head “Assessing Network-Based Collaborations” (2008) 10(6) Public Management Review 733; Richard Margerum “A Typology of Collaboration Efforts in Environmental Management” (2008) 41(4) Environmental Management 487.

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costs and drive collaborative processes toward successful outcomes;18 and when and under what conditions collaborations are likely to survive and deliver effective environmental outcomes.19 The analysis proceeds in five parts. Part two introduces NEG theory and its defining collaborative features. Part three outlines the two programs. Part four examines the conditions under which each of the NEG initiatives was able to form and/or sustain successful collaboration. Part five considers these conditions and provides recommendations for policy and theory regarding three key issues: bringing collaborators to the table; reaching agreement and implementing actions; and sustaining collaborative organisations. The section also suggests two important insights for new governance jurisprudence, the first relating to the relationship between traditional law and new forms of governing, and the second relating to normative debates in the literature as to when and whether NEG is a viable and convincing approach to regulating and governing natural resources problems. Part six concludes by summing up our arguments and identifying directions for further research. II. NEG THEORY, COLLABORATION AND LEGAL REGULATION There are many different bodies of work on “collaboration”, which makes it important to clarify how the term is used here.20 At the core of NEG collaborations are “consensus” processes, which seek to move towards some level of agreement among parties.21 These might be “once-off” negotiations between public and private stakeholders over the terms of a proposed regulation;22 or ongoing cooperative relationships that involve different mixes of agencies and/or volunteer local level actors negotiating rules and implementing and enforcing actions.23 Recognising this diversity, it is helpful for present purposes to define collaboration broadly as a process where two or

18

Eric Orts and Cary Coglianese “Collaborative Environmental Law: Pro and Con, Debate” (2007) 156 U Pa L Rev PENNumbra 289 at 302–303, 309; K Floress and others “Constraints to Watershed Planning: Group Structure and Process” (2009) 45(6) JAWRA 1352 at 1352– 1353; Carole Menkel-Meadow “Getting to ‘Let’s Talk’: Comments on Collaborative Environmental Dispute Resolution Processes” (2008) 8 Nev L J 835 at 850.

19

Menkel-Meadow, above n 18, at 847; Annecoos Wiersema “A Train Without Tracks: Rethinking The Place Of Law And Goals In Environmental And Natural Resources Law” (2008) 38 Envtl L 1239 at 1243-44.

20

See eg Robert Axelrod The Evolution of Cooperation (Basic Books, New York, 1984); Robert Putnam, Robert Leonardi, and Raffaella Nanetti Making democracy work: civic traditions in modern Italy (Princeton UP, Princeton, 1993); RAW Rhodes “Understanding Governance: Ten Years On” (2007) 28 Organization Studies 1243.

21

Bradley Karkkainen “Collaborative Ecosystem Governance: Scale, Complexity and Dynamism” (2001) 21 Va Envtl L J 189 at 240.

22

Cary Coglianese “Is Consensus an Appropriate Basis for Regulatory Policy” in E Orts and K Deketelaere (eds) Environmental Contracts Comparative Approaches to Regulatory Innovation in the United States and Europe (Kluwer, London, 2001) 93 at 96.

23

Elizabeth Moore and Tomas Koontz “A Typology of Collaborative Watershed Groups: Citizen based, Agency based and Mixed Partnerships” (2003) 16 Soc and Nat Res 451; Karkkainen, above n 21, at 222–225.

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more stakeholders pool knowledge and/or tangible resources (eg information, money, labour) to reach agreement and solve a set of shared problems.24 Proponents of NEG have widely asserted that such forms of collaboration are capable of (1) reducing conflict and increasing cooperation; (2) enhancing civic engagement and democracy; and (3) contributing to a rich understanding of and capacity to solve “wicked” problems.25 Notwithstanding this enthusiasm, there is no shortage of concerns and questions regarding NEG’s collaborative approach. Some, for example, suggest that when collaborative processes are devolved to local levels they marginalize the most vulnerable, such as indigenous populations.26 Others argue, more generally, that collaborative efforts will come up against extensive transaction costs (ie the personal time, resources and travel expenses associated with participating in the interactive process) and other well known “cooperation dilemmas”27 that may prove insurmountable in practice.28 A related problem here is volunteer fatigue.29 As discussed further below, NEG collaborations depend heavily on ongoing engagement from community volunteers and citizen participation to sustain successful collaboration. Yet, despite these challenges, a variety of legal and political science literatures have suggested that such cooperation dilemmas may be overstated and that more optimistic possibilities for cooperation exist under certain conditions.30 For example, many legal scholars will be familiar with alternative dispute resolution approaches, which claim that successful collaborative agreements are more likely to occur and be implemented where, inter alia, trust 24

Barbara Gray Collaborating: Finding Common Ground for Multiparty Problems (JosseyBass, San Francisco, 1989) at 10.

25

Alejandro Camacho “Beyond Conjecture: Learning About Ecosystem Management From The Glen Canyon Dam Experiment” (2008) 8 Nev L J 942 at 961; Karkkainen, above n 10, at 212, 228–229; Julia Wondolleck and Steven Yaffee Making Collaboration Work: Lessons From Innovation in Natural Resource Management (Island Press, Washington, 2000) at 23– 41.

26

MB Lane and LJ Williams “Colour Blind: Indigenous Participation in Regional Environmental Governance in Australia” (2008) 28 JPER 38. For further on the implications of NEG for democracy and participation see Cameron Holley, “Public participation, environmental law and new governance: Lessons for designing inclusive and representative participatory processes” (2010) 27 EPLJ 360.

27

Garrett Hardin “Tragedy of the Commons” (1968) 162 (3859) Science 1243 at 1244; Albert Tucker “The Mathematics of Tucker: A Sampler” (1983) 14(3) The Two-Year College Mathematics Journal 228; Mancur Olson The Logic of Collective Action Public Goods and the Theory of Groups (Harvard UP, Cambridge, 1965).

28

Marcus Lane Critical Issues in Regional Natural Resource Management (prepared for the Australian State of the Environment Committee, 2006) at 4–5; Sanford Gaines “Reflexive Law as a Legal Paradigm for Sustainable Development” (2003) 10 Buff Envtl LJ 1 at 15; Orts and Coglianese, above n 18, at 298; Wondolleck and Yaffee, above n 25, at 48–49; Richard Margerum “Overcoming Locally Based Collaboration Constraints” (2007) 20 Soc and Nat Res 135.

29

Archon Fung and Erik Olin Wright “Thinking about empowered participatory governance” in A Fung and E Wright (eds) Deepening Democracy: Institutional Innovations in Empowered Participatory Governance (Verso, London, 2003) 3 at 38; Rena I Steinzor “The Corruption of Civic Environmentalism” (2000) 30 Envtl L Rep 10909.

30

Donald Hornstein “Complexity Theory, Adaptation, and Administrative Law” (2005) 54 Duke L J 913 at 951–952; Karkainen, above n 21, at 226–233.

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is built between parties and a process of negotiation, facilitated by a neutral party, is followed to reach consensus outcomes.31 Recent Noble Prize winner Elinor Ostrom’s research on the effective and sustainable co-management of common pool resources (CPR) has similarly identified a range of conditions (such as trust, severe environmental problems and autonomy from external authorities) associated with an increased likelihood of successful collaboration in CPR contexts.32 Some NEG commentators have applied Ostrom’s findings to argue that the conditions for successful collaboration are more likely to be found in limited circumstances – small, relatively isolated and relatively homogeneous communities with simple economic structures tied closely to environmental conditions.33 But to what extent successful NEG processes are limited to such situations or are alternatively stymied by “cooperation dilemmas” remains a point of significant conjecture and one that we will revisit in our discussion section.34 Beyond the work of Ostrom and her collaborators, a range of conditions have been suggested in the NEG literature as necessary or desirable for successful collaboration. Some emphasise the need for a strong governmental role, including funding and/or in-kind assistance to offset transaction costs of volunteers.35 Others suggest that the existence of external and institutional triggers can open the way to successful collaboration. These include severe environmental problems (especially the perception of a crisis) that can bring parties to the “collaborative table”.36 Alternatively, harsh penalty “default” rules (or indeed other forms of social or economic pressure from third parties) may alter the incentives of actors, making the transaction costs of collaboration preferable to bearing the costs imposed by the default rule.37 Certainly, harsh legal regulation per se can often produce suboptimal outcomes (eg they are likely to be expensive and plagued by adversarial behaviour). However, as a default to the new governance regime, such rules can be used to create incentives for parties to work together, and thus foster actions that take advantage of their knowledge, achieve greater buy in and more closely approximate an optimum outcome.38

31

Susskind, Camacho and Schenk, above n 13, at 37–43; Rosemary O’Leary, Tina Nabatchi and Lisa B Bingham “Environmental Conflict Resolution” in R Durant, D Fiorino and R O’Leary (eds) Environmental Governance Reconsidered (MIT, Cambridge, Mass, 2004) 323 at 338.

32

Elinor Ostrom Governing the Commons (Cambridge UP, Cambridge, 1990); Elinor Ostrom “The Danger of Self Evident Truths” (2000) 33(1) Political Science and Politics 33 at 39–40.

33

Gaines, above n 28, at 17; Karkkainen, above n 6, at 476–477; Jon Cannon “Choices and Institutions in Watershed Management” (2000) 25 William and Mary Envtl L and Poly Rev 379 at 428.

34

Holley, above n 16, at 10682–10683; Karkkainen, above n 6, at 476–477.

35

Lane, above n 28, at 4–5; Jody Freeman “Collaborative Governance in the Administrative State” (1997) 45 UCLA L Rev 1 at 31.

36

Menkel-Meadow, above n 18.

37

Bradley Karkkainen “Information–Forcing Regulation and Environmental Governance” in De Búrca and Scott, above n 6, 293 at 297–98.

38

Charles Sabel and William Simon “Accountability without Sovereignty” in De Búrca and Scott, above n 6, 395 at 408.

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The concept of such penalty default rules was first explored in contract law and theory,39 and has generated subsequent interest in the broader regulatory literature.40 However their role has received little empirical scrutiny in the particular circumstances of NEG.41 This issue has however attracted theoretical attention as part of debates concerned with the relation of new governance and traditional law (conceived as top down control using rigid legislation, detailed rules and judicial enforcement).42 In this context (although a range of configurations between law and new governance systems are also being explored)43 so called “default hybridity” is viewed as having particular potential. The idea is that standard regulatory frameworks may act as a default regime (applicable only in the case of failure to conform to new governance demands), and should be set precisely for the purposes of inducing otherwise reluctant people to embrace NEG.44 Given the potential for default hybridity to overcome some of the biggest obstacles to effective NEG, there is considerable merit in examining the effectiveness of this mechanism in practice.45 Another under-researched issue concerns how to sustain successful collaboration. For many collaborative groups, delivering real improvements to environmental conditions, maintaining the interest of key participants and supporting the time consuming and resource intensive workings of collaborative organisations may be substantial ongoing challenges.46 Indeed, these difficulties have commonly been found to overwhelm volunteer collaborative NEG groups.47 There is accordingly a need for further investigation of the challenges to sustaining collaboration and of the forms of government assistance that might best address them over the long term. Default hybridity, the challenge of sustaining successful collaboration and when and whether NEG is a viable and convincing approach to governing natural resources problems will all be addressed in the following sections.

39

Ian Ayres and Robert Gertner “Filling Gaps In Incomplete Contracts: An Economic Theory Of Default Rules” (1989) 99 Yale LJ 87 at 91–93.

40

Ian Ayres and John Braithwaite Responsive Regulation: Transcending the Deregulation Debate (Oxford UP, New York, 1992).

41

Holley, above n 16; De Búrca and Scott, above n 16, at 4; Sabel and Simon, above n 38.

42

Lisa Blomgren Bingham “The Next Generation of Administrative Law: Building the Legal Infrastructure for Collaborative Governance” (2010) Wis L Rev 297; Trubek and Trubek, above n 16, at 543; Alexander, above n 8, at 178–184.

43

Michael Wilkinson “Three Conceptions Of Law: Towards A Jurisprudence Of Democratic Experimentalism” (2010) Wis L Rev 673; Trubek and Trubek, above n 16, at 544; De Búrca and Scott, above n 16, at 4–9.

44

De Búrca and Scott, above n 16, at 9.

45

Solomon, above n 14, at 833–884; Trubek and Trubek, above n 16, at 539, 558, 564; De Búrca and Scott, above n 16, at 4–9.

46

K Parker and others “Sustaining Watershed Collaboratives: The Issue of Coordinator-Board Relationships” (2010) 23(5) Soc and Nat Res 469.

47

Holley, above n 12; Menkel-Meadow, above n 18, at 847; Joseph Bonnell and Tomas Koontz “Stumbling Forward: The Organizational Challenges of Building and Sustaining Collaborative Watershed Management” (2007) 20 Soc and Nat Res 153 at 163; Lane, above n 28, at 4–5, 10.

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III. EMPIRICAL FOCUS – NEW GOVERNANCE IN NEW ZEALAND A. Introducing the Canterbury Regional Council, Resource Management Act and Local Government Act The site of research for the study was the Canterbury region in New Zealand. The regional council in Canterbury is known as Environment Canterbury (hereinafter ECan). Like other regional councils, ECan is a democratically elected government body. However, following a recent review of its performance, the national government passed the Environment Canterbury (Temporary Commissioners and Improved Water Management) Act 2010 that appointed commissioners to replace elected councilors until at least 2013 and provided the council with new powers. Our research was conducted prior to this change.48 Our reason for selecting ECan was its substantial history of experimenting with collaborative new governance approaches as a complement to their traditional regulatory role. The latter role arises under the Resource Management Act 1991 (hereinafter the RMA), an Act that on its introduction was hailed as far sighted and distinctive in seeking to achieve sustainable management through regional governance.49 Under it, the control and management of natural and physical resources was devolved to elected regional councils such as ECan.50 Councils have authority to develop regional policy and plans (and arguably even new governance initiatives) to promote the sustainable management of natural and physical resources and to govern their use, development and protection.51 The RMA also requires ECan to recognise and provide for the relationship of Māori with the environment and to take into account the principles of the Treaty of Waitangi (hereinafter the Treaty).52 In practice, this obligates ECan when exercising functions and powers under the RMA to consult with a statutory body know as Te Rūnanga o Ngāi Tahu, who represent the tribal collective that holds customary authority over the Canterbury area.53 This 48

For further on the causes and implications of these recent developments see Creech, above n 15; Environment Canterbury (Temporary Commissioners and Improved Water Management) Act 2010, ss 7–23.

49

P A Memon and B J Gleeson “Towards a new planning paradigm? Reflections on New Zealand’s Resource Management Act” (1995) 22 Environment and Planning B: Planning and Design 109; Neil Gunningham Innovative Governance and Regulatory Design: Managing Water Resources (Landcare Research, New Zealand, 2008) at 22.

50

Resource Management Act 1991, s 30. For further see Gunningham, above n 49.

51

Ibid, at 33.

52

The Treaty sets a framework in relation to resource ownership – both in terms of the treaty itself and in relation to the iwi or hapū’s customary authority exercised in an identified area incorporated in the Resource Management Act 1991, ss 6, 8. The Canterbury region lies in the area of one tribe, the Ngāi Tahu. The Ngāi Tahu are the iwi comprised of Ngāi Tahu whānui. Environment Canterbury [ECan] Natural Resources Regional Plan (ECan, Christchurch, 2007) at 2-2; Ngāi Tahu Claims Settlement Act 1998.

53

Te Rūnanga o Ngāi Tahu was established by the Te Rūnanga o Ngāi Tahu Act 1996 to give legal identity to the tribe, and is made up of the 18 local rūnanga, who are the tāngata whenua (people of the land) for the purposes of relevant Resource Management Act 1991 provisions. An elected representative from each rūnanga makes up Te Rūnanga o Ngāi Tahu. It services

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obligation was augmented by the introduction of the Local Government Act 2002 (hereinafter the LGA) which requires ECan to facilitate the participation of Māori in local government decision-making processes.54 In addition to consulting with Māori, the LGA provides ECan with a direct mandate for NEG experimentation. A form of “outcome-based” legislation, the LGA expressly requires ECan to achieve sustainable development (as defined by community outcomes)55 through government, industry and community collaboration, and these can be used in tandem with the provisions for regulating sustainable management under the RMA.56 Spurred by their LGA mandate, and using its discretionary powers under the RMA, ECan has been pursuing NEG within a “nested system” of governance that is designed to address issues at the smallest geographical scale relevant to the environmental issue and the stakeholders who have an interest in it.57 Within this system, the RMA regulatory framework is still the dominant mode of governance, particularly at the regional and project level. Under it, ECan continues to employ a spectrum of regulatory tools that range from voluntary and nonstatutory approaches to prosecution and regulatory plans.58 But ECan has also “been developing a model of collaborative community engagement to complement the adversarial effects-based statutory requirements”.59 Applied at a number of different geographical levels, this model reflects principles of “decentralisation”, “participatory processes” and “mutual learning and decision”.60 This article focuses on two specific examples of ECan’s model of “collaborative community engagement” at the catchment and subcatchment level. As single case studies they can offer only a partial view of Canterbury’s overall approach to water governance, not least because they do not cover all water issues or management responses, and offer only a snapshot of individual

the tribe’s statutory rights and is the ‘iwi authority’ for the purposes of the Resource Management Act 1991 and its application to the Canterbury region. ECan, above n 52, at 2-1. 54

Local Government Act 2002, ss 4, 14, 81.

55

Local Government Act 2002, ss 10, 14, 77–81, 91; Kenneth Palmer “Local Government Law and Resource Management” (2004) NZ Law Review 751 at 752–756.

56

Bryan Jenkins Canterbury Strategic Water Study: Briefing Document to Canterbury Mayoral Forum (ECan, Christchurch, 2007) at 2; Local Government Act 2002, ss 10, 14, 76–81, 91, 92.

57

ECan is also seeking to achieve the efficiency of subsidiarity, ie addressing issues at the most apposite/smallest geographical scale. Lance Gunderson and CS Holling (eds) Panarchy: Understanding Transformations in Human and Natural Systems (Island Press, Washington, 2001); Jenkins, above n 56.

58

For example, at the catchment level there is a spectrum of nonstatutory plans (such as the Orari catchment plan), nonstatutory plans with key elements being given statutory backing (such as the Greater Christchurch Urban Development Strategy) and regulatory plans (such as the Natural Resources Regional Plan). For further see Bryan Jenkins “Are Regional Councils Past Their Use-by Date?” (paper presented to Environmental Defence Society National Conference, Auckland, June 2009).

59

Bryan Jenkins “ECan’s approach to water management” (2008) Canterbury Public Issues Forum .

60

Ibid.

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programs within an ongoing change process that is currently being implemented in Canterbury.61 Nevertheless, our research does provide detailed insights into the operation of NEG in practice. The two selected programs embrace a substantial number of the characteristics of NEG, not least collaboration, decentralization and participation by interested or affected stakeholders. Moreover, each has been designed to bypass much of “the legalistic RMA process” and “the highly adversarial” decision making it has fostered by developing nonstatutory collaborative processes with volunteer local stakeholders.62 Our research into these programs relied primarily on 32 in-depth, semistructured interviews with key stakeholders,63 as well as a document analysis (eg relevant legislation, plans, agreements and guidelines). As with most social research, the ethical and confidentiality requirements of the research require us to preserve the anonymity of specific interviewees, save for a general description of their stakeholder category. As discussed below, in the two programs – Collaborative Catchment Management and the Living Streams Program – there were multiple “on-ground” collaborative groups in operation. We accordingly selected a sample of these “on-ground” collaborative groups to examine. Guided by advice from key regional council officials in each program, the selection of two Collaborative Catchment Management cases and three Living Streams cases was designed to select “information rich” cases (eg collaborative groups that had substantially implemented their plan of action), as well as capture some of the most relevant types of diversity between the onground collaborations (eg location within rural, coastal and urban areas, variations in problem focus and maturity of collaborations).64 B. Introducing the Programs 1. Catchment scale collaboration – Collaborative Catchment Management Our first program – Collaborative Catchment Management (hereinafter CCM) – involves the formation of community based collaborative groups who work with regional, local and often central government representatives and other 61

This includes the ongoing roll out of the Canterbury Water Management Strategy. See .

62

Bryan Jenkins “The Application of the Strategic Assessment Approach” (2009) (paper presented to Environmental Defence Society National Conference, Auckland, June 2009) at 11–13 ; Gunningham, above n 49, at 32– 33.

63

Interviewees were selected to represent the key stakeholder groups involved in each case. This included 17 interviewees from the Collaborative Catchment Management program and 15 from the Living Streams Program. In the catchment program this included seven residents/nongovernment groups (from approximately 13 participating in the cases); two industry/farmers (from approximately six participating in the cases) and eight government representatives (from approximately 11 participating in or associated with the cases). In the Living Streams Program this included two resident/nongovernment interest (from approximately three participating in the cases), seven industry/farmers (from approximately 36 participating in the cases) and six government representatives (from approximately six participating or associated with the cases).

64

Michael Patton Qualitative Evaluation and Research Methods (3rd ed, Sage, London, 2002) at 243–244.

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stakeholders to develop, implement and monitor a nonstatutory management plan for specific water resources (eg estuaries, lakes and coastal catchments). 65 At the time of writing there were five CCM groups underway in Canterbury. Consistent with the concept of facilitating “self-governing communities”, ECan uses CCM to support “the community to devise their own structure and method of working”, to improve integration between different government agencies and to improve the condition of natural resource issues at a catchment scale, such as polluted estuaries or lakes.66 Typically, CCM processes follow a number of general steps, including getting community and stakeholder engagement in a catchment to define issues and request information; compiling information for evaluation and a search for options; option development in consultation with the community and stakeholders; and responses by ECan to requests to resolve differences and achieve “consensus” agreement on a vision, goals, targets and a plan of action to improve the local resource. The intention is that the plan will provide “direction and information to help individuals and organisations make decisions about what needs to be done for the overall benefit of the [resource] and its users, by whom, when and how – a blueprint for action”.67 The plan itself must be consistent with existing laws and once agreement is reached, it is implemented and monitored by the collaborative group and government partners, with iterative reviews and implementation over time. 2. Subcatchment collaboration – Living Streams Program The second program involves a more limited set of stakeholders (usually consisting of local farmers, townspeople and ECan) who collaborate at a subcatchment scale. A handful of these subcatchment collaborations commenced in 1999/2000, and this process was formalised by ECan in 2003 as the “Living Streams Program” (hereinafter LSP). This program is designed to “maintain and improve the health of waterways … [using] working partnerships with … [the] region’s communities. The key people involved are those who manage land beside the waterway”.68 There are now more than 30 subcatchments managed under the LSP program. These involve small streams (often those that are highly degraded)69 and focus on “in-stream values and riparian habitat” with the objective of ensuring that “land use does not adversely impact on water quality, flows and ecosystems”.70 The specific process and actions taken can vary with stream 65

ECan Long Term Council Community Plan 2009 (2009) at 10, 31, 114; Bryan Jenkins “Water allocation in Canterbury” (keynote address to the New Zealand Planning Institute National Conference, Palmerston North, March 2007).

66

ECan, above n 65, at 31, 114; Jenkins, above n 56, at 3.

67

Waihora Ellesmere Trust A Community Strategy for the Future Management of Lake Ellesmere/Te Waihora and its Tributaries (2004) at 2. The plan itself will usually be quite detailed, and follow a structure that sets a vision, principles, goals, targets and actions to be delivered by collaborators. For further on CMM in action see Jenkins, above n 65; Kenneth Hughey and Kenneth Taylor (eds) Te Waihora/Lake Ellesmere: State Of The Lake And Future Management (EOS Ecology, Christchurch, 2008) at 8, 122–123.

68

ECan Living Streams (2009) at 2.

69

Ibid at 1–2; Ecan A Guide to Managing Waterways on Canterbury farms (2009) at 2, 10.

70

ECan Annual Plan 2005-2006 (2006) at 3, 24-25; ECan, above n 68.

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type, but they tend to involve land owners, nongovernment groups and members of the local community forming a collaborative group to reach “consensus” on a short plan of action.71 The group then implements the actions (eg fencing streams, improving land management practices) and ideally conducts ongoing stream monitoring and management.72 C. Designing Collaboration – Legal and Policy Frameworks of the Programs Recognising the obstacles to effective collective action, ECan and its policy partners were particularly conscious to design the programs so as to maximise their chances of success. For example, broadly consistent with the alternative dispute resolution literature and Ostrom’s work on self governing communities, the two programs have been designed with an intention to (i) address complex environmental problems that are severe (eg facing a crisis); and (ii) build trust between collaborators through facilitating negotiations and repeat interactions via face to face meetings.73 The programs have also been designed mindful of other conditions, including creating incentives and providing funding and support to offset transaction costs (albeit with a different emphasis in different programs).74 Across both programs, ECan provides in-kind government support (eg information provision such as monitoring data and technical information) to try and offset transaction costs for parties.75 In terms of the individual programs, LSP has been designed to harness available regulatory pressure as an incentive to get stakeholders to come to the table and make genuine commitments.76 For example, under the conventional regulatory framework of the RMA, when statutory levels of in-stream water quality (eg phosphorus, nitrogen, turbidity) are exceeded because of on-farm actions, ECan can inspect, enforce and carry out a prosecution or take other disciplinary measures.77 While ECan still relies substantially on its regulatory powers it believes that where practicable, persuading farmers to come to the collaborative LSP table (albeit in “the shadow of the law”) is less costly and is more likely to achieve long term results.78 Under this approach, the standard regulatory framework acts as something akin to the default hybridity thesis, 71

Interview with #331, LSP government partner (Cameron Holley, Canterbury, December 2008).

72

For examples of LSP in action see ECan, above n 65, at 10; ECan “Case Studies for the Living Streams Programme” .

73

Jenkins, above n 59.

74

There are of course a number of other factors that may play an important role here, such as leadership from ECan, however for present purposes these strategies are the most pertinent and significant in each case as they relate to points of interest in the NEG literature. Further, respondents confirmed that these factors were some of the most relevant matters for fostering the emergence of successful collaboration across the cases.

75

ECan Living Streams Handbook (2009).

76

This may also involve fostering more positive norms, such as arranging for farmers to view “success stories” achieved on other farms. ECan, above n 65, at 26.

77

ECan Water quality – what? Info Sheet 13 (2005); Resource Management Act 1991, s 30.

78

Resource Management Act 1991, s 30. For discussion of similar approach in Australia see Cameron Holley and Neil Gunningham “Environment Improvement Plans: Facilitative Regulation in Practice” (2006) 23 EPLJ 448.

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where traditional regulation can be used to “encourage” collaborators to not only come to the table but also to implement agreed actions, and in the event of default, can be invoked as a means of direct enforcement (eg prosecution). In contrast to the LSP program, the CCM program has not been designed to take advantage of ECan’s regulatory powers to garner stakeholder buy-in, nor in the case of CCM encourage or enforce implementation. Rather the hope appears to be that (i) stakeholders will volunteer their time because they are interested in the particular issue being addressed; and/or (ii) stakeholders involved in the CCM will have sufficient skills or leverage themselves to ensure implementation from partners. As one CCM document points out, “The draft community strategy has no legal status; that is, at the present time, none of the actions can be enforced … The expectation is that those identified as having a responsibility will work together co-operatively to achieve the targets contained in the strategy”.79 Regardless of whether the programs utilise incentives or not, the two programs have been designed to offset costs associated with collaboration and/or implementation. Indeed, the CCM program provides significant government funding from ECan and other key government organisations to compensate for travel and organisation tasks for nongovernment stakeholders.80 This funding is obviously logical given that the program focuses on relatively large catchment geographic scales and seeks to include a wide range of heterogeneous actors in extensive collaborative decision making and action. Understandably, the smaller-scale LSP does not provide any direct financial assistance to cover meeting times and plan drafting. Even so, this program does seek to counteract implementation costs for farmers by facilitating opportunities for collaborators to obtain money from available grant programs (eg to cover the costs of large-scale fencing projects).81 IV. THE FINDINGS – EXAMINING NEW GOVERNANCE IN PRACTICE This part examines whether and to what extent the programs were able to achieve successful collaboration in practice. Success here is gauged using respondents’ opinions and an analysis of data regarding whether the collaborations included relevant stakeholders, and whether these stakeholders were able to combine their capacity, resources and knowledge to achieve the programs’ stated goal(s) – be it to improve the condition of catchment water bodies (CCM) or small streams and their riparian margins (LSP).

79

Waihora Ellesmere Trust, above n 67, at 3; A Memorandum of Understanding between Avon-Heathcote Estuary Ihutai Trust, Christchurch City Council and Canterbury Regional Council (2003), cl 3.

80

Both ECan and key government partners in the collaboration, for example city councils, provide dedicated funding (approximately $30,000 annually).

81

For example, Environment Canterbury’s Environment Enhancement Fund: ECan, above n 65, at 26. ECan may also reduce costs of applying to ECan for consents to complete activities agreed to by the collaboration (eg spraying or removing weeds close to waterways): ECan, above n 69, at 28.

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A. The Challenges of Voluntary Catchment Collaboration – CCM The CCM collaborations selected for this study were two of the oldest processes in Canterbury. Both commenced in circumstances arguably favourable to collaboration: an environmental resource perceived to be in “crisis”. The first collaboration, referred to as CCM1, was one of the largest estuaries in New Zealand (700 hectares in total), home to many forms of bird life, and was surrounded by residential housing. However, over the last 15 years fragmented regulatory efforts by the regional and city councils saw the estuary’s water quality significantly decline from recreational activities, surface and stormwater runoff and, most significantly, a city wastewater outflow (ie treated sewage).82 The second collaboration, CCM2, was one of New Zealand’s largest lakes and a coastal lagoon (covering 20,000 hectares and draining a 276,000 hectare catchment). The lake had increasingly become the site of “resource use conflicts” due to declining water quality from drains and farming pollution around the lake and upstream.83 This degradation had “fallen through the cracks” of ad-hoc regulation and management by six government agencies, and, given its cultural significance, was of serious concern to local Māori who owned the lakebed.84 The upshot of these “crises” was public and stakeholder outrage about the condition of the water resources. As one respondent put it: “The community got seriously pissed off and went public”.85 Unsurprisingly, when ECan floated the idea of a CCM approach to address these issues, the agency had little trouble generating interest from the already riled local stakeholders. Indeed, hundreds of people attended initial meetings to identify the problems, the causes and what could be done to resolve them. Under the leadership of ECan, these meetings catalysed the formation of nongovernment charitable trusts (comprising approximately 10 members) which sought to restore the water resources to their former condition and educate the public about environmental issues.86 Under the guidance of ECan, these trusts engaged in a wider network of collaboration with officers/council members,87 interested local stakeholders, and other local authorities to develop a management plan for the respective water resources.88 82

In particular, it was a decision by the city council to try to extend a right to dump wastewater that catalysed the CCM1 process.

83

Interview with #222, CCM government partner (Cameron Holley, Canterbury, December 2008).

84

The lake bed was owned by the Ngāi Tahu tribe as part of it’s 1996 treaty settlement, but its management is carried out by Te Rūnanga o Ngāi Tahu, the Department of Conservation, ECan and three district councils.

85

Interview with #213, CCM government partner (Cameron Holley, Canterbury, December 2008).

86

The trust was established according to a deed and regular elections are held to select the 1015 trustees from between 100 and 200 person membership.

87

In CCM1, ECan, the City Council and the new trust entered into a non-binding Memorandum of Understanding, which outlined the relationship between the parties (eg codes of conduct, sharing information and funding arrangements).

88

This included three to five government stakeholders and one to seven organised nongovernment groups who were regular attendees at meetings.

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Two years of negotiations and meetings saw these collaborators reportedly improve their understanding of each other’s interests and build trust, as well as develop innovative ideas and tap into community expectations regarding the water resources.89 This improved knowledge, trust and relationships facilitated government and nongovernment actors to cooperate successfully to not only agree to, but also implement a management plan. Indeed, within four to five years of the agreement itself being reached, around 80 per cent of the actions specified in it had been implemented (with the remainder not yet achieved or planned for future action). According to respondents, these relatively successful processes of planning and implementation had also been achieved because in-kind officer support and funding from ECan and city councils (approximately $30,000 per annum) had helped to compensate for the overall costs of communication, information exchange and organisation.90 Further, with this government funding continuing, there were no signs of the collaborative groups slowing down or disbanding. Rather, both CCM1 and CCM2 were beginning to review and redraft their management plans and targets with a view to ongoing action.91 The result was a number of important outputs, including (i) raising community awareness about the water resources via public events (eg bus trips around the lake, information days and seminars); (ii) better integrating and coordinating government agency programs by updating long-term plans to reflect new objectives and jointly delivered actions; (iii) improving monitoring of the water resources via research projects; and (iv) achieving minor improvements to environmental conditions via planting days, weed removal, fish population restoration and fencing.92 While the above are all positive achievements, they must be weighed against two significant weaknesses that seriously constrained the effectiveness of CCM in achieving wide-ranging improvements to their water resources. First, there was a noticeable gap in representation of Māori interests. Although the collaborations in both CCM1 and CCM2 had consulted with tāngata whenua representatives for short periods during the CCM planning stage, the local rūnanga and Te Rūnanga o Ngāi Tahu had progressively scaled back their engagement and stopped attending meetings.93 89

Interview with #213, CCM government partner (Cameron Holley, Canterbury, December 2008); interview with #221, CCM non-government partner (Cameron Holley, Canterbury, December 2008), pointing out that “people understand themselves better and each other better and know what the drivers are”.

90

Note that CCM2 did experience some short term lulls in implementation because of transition between hired coordinators.

91

Indeed, respondents were quick to point out that such funding was vital to the survival of the group: “we are very dependent on funding … once they just say ‘oh not this year we’ve got to fund so and so’, we’re in trouble”: interview with #224, CCM non-government partner (Cameron Holley, Canterbury, May 2009).

92

Interview with #227, CCM government partner (Cameron Holley, Canterbury, May 2009) noting that “they’ve achieved one-offs with little areas”.

93

It appeared that local rūnanga and Te Rūnanga o Ngāi Tahu believed acting as one of a number of community stakeholders in the CCM process did not adequately reflect their rights under the Treaty of Waitangi as resource managers and/or owners. Accordingly they chose to act through other management mechanisms (eg in CCM2, the joint statutory management plan with the crown). See Te Waihora Joint Management Plan (Rūnanga o Ngāi Tahu, Christchurch, 2005).

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Considerable ongoing effort had accordingly been exerted by the charitable trusts to secure wider Māori representatives. However these efforts met with little success. This was because, even with government funding, the time and cost demands were simply too much for either volunteer collaborators (who lacked the time to identify an appropriate local Māori representative) or for potential Māori stakeholders (many of whom were already overstretched as representatives across other governance initiatives). As one respondent explained: “We’ve struggled with [Māori] representation and their organisations have struggled to have the stability to actually get involved in this, it’s a resourcing issue”.94 This lack of Māori engagement is problematic, not least because it reduces the overall effectiveness of the collaborative approach. Indeed, without a longterm Māori representative, the groups’ management decisions lack direct and ongoing input from what many have argued is vital local, historical and holistic cultural knowledge held by local indigenous peoples.95 The second major shortcoming of the CCM process was the reluctance of some key stakeholders to either voluntarily engage in CCM or work together with other collaborators to achieve agreed targets. The latter was aptly illustrated in CCM2 where respondents reported that district councils were largely stonewalling on their voluntary commitments made in the agreed plan. As one respondent explained:96 I think it’s fine to have the group all singing off the same sheet, but sooner or later [the district councils] have to do things … [they] sit there and say nothing … So they’re there, but they’re not participating … they tinker around the edges. And even then they’re hardly even tinkering.

Various motivations were suggested for why these authorities were acting like “free riders”. These included limited council resources in the face of competing priorities for rate payer funds97 and the need for an equitable allocation to activities that reflect priorities across the entire rating base (not just the stakeholders participating in the CCM2 process). It is a moot point whether councils prioritizing and funding the needs of CCM2 over others would necessarily produce overall better outcomes for society and the environment. Nonetheless, it remains that the councils had seen the issues in CCM2 as a sufficient public priority to commit themselves to a 94

Interview with #227, CCM government partner (Cameron Holley, Canterbury, May 2009).

95

For a general overview on Māori experiences with the RMA see Derek Nolan (ed) Environmental and Resource Management Law (Lexis Nexus, Wellington, 2005) at chapter 14. For a more specific focus on Māori and water governance see Jacinta Ruru (ed) “Contemporary Indigenous peoples’ legal rights to water in the Americas and Australasia” (2010) 20(5/6) Journal of Water Law (Special Issue) 221. For further on the role of indigenous peoples in natural resource management more generally see F Berkes and C Folke “Back to the Future: Ecosystem Dynamics and Local Knowledge” in L Gunderson and C Holling (eds) Panarchy: Understanding Transformations in Human And Natural Systems (Island Press, Washington, 2002).

96

Interview with #226, CCM non-government partner (Cameron Holley, Canterbury, May 2009), noting that “the councils have really had very little input”.

97

Indeed, as the Council’s Annual Plan process is an open democratic process, the failure to achieve funding also relates to relative priorities at a higher spatial levels (eg one district council has a three rivers policy which guides funding priorities for water management).

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process that not only developed a management plan of action, but was underpinned by an expectation that those involved would work together cooperatively to implement it. In this context, collaborators had repeatedly tried over almost five years to persuade the councils to live up to their commitments. However such actions failed miserably, largely because the collaborators lacked sufficient leverage to “persuade” the Councils into positive action.98 As one respondent explained, this hamstrung CCM2’s efforts to significantly improve the lake’s condition: 99 so the [collaboration] is doing revegetation and the like … I think it’s just painting over the cracks … the fundamental questions are the big water quality question, the big water quantity questions … it’s these people that actually have to do something, the Statutory agencies … but to be honest the district councils that can make that happen don’t want that to happen.

Notably, this lack of government engagement did not appear to be a major weakness in CCM1, where the Council had agreed to move their main polluting pipeline away from the estuary, which would likely lead to important improvements in the estuary water quality.100 Even so, respondents in this case suggested the extent of environmental improvements achieved by their collaborative process was palpably constrained by a similar lack of leverage to secure “buy-in” from key industry stakeholders responsible for polluting the estuary upstream:101 The industry or the developers they are an important group of people that should be in the [collaborative process] and they do get opportunity … but I’m not sure how you would pull people in without putting a lasso round their foot … I think they should be there, because we all know that’s where all that stuff is leaking from.

The above experiences suggest a flaw in the assumptions underpinning the design of CCM: that it will be possible to achieve collaborative solutions which all stakeholders will participate in and commit to voluntarily. Overall, the above analysis suggests that focusing on a resource in “crisis”, building trust and providing government funding and in-kind support can go a long way towards creating the right conditions for diverse stakeholders to engage in a sustained and relatively successful collaborative process. However barriers to Māori engagement and a lack of leverage or incentives to persuade 98

For example, one respondent relayed an experience where “a question came up that was about riparian fencing, so someone said ‘now listen you councils you’re all here at the moment, pass a by law that makes protection of riparian margins compulsory and fencing being a requirement’, and they said ‘Oh no couldn’t do that’. It was just junk”: interview with #223, CCM non-government partner (Cameron Holley, Canterbury, May 2009).

99

Ibid.

100 This action was, in part, driven by a broader public resource consent process that had commenced prior to CCM. The relocation of the pipeline had a long history, and this is not to suggest that the CCM process had no role to play in ensuring the council moved the pipeline. For example, although beyond the scope of this article, it is possible that the presence of a memorandum of understanding in CCM1 discussed above (see above n 87) helped enhance the capacity of stakeholders to persuade the council to take action. 101 There was a single business representative in the early stages of planning, however they no longer participate in CCM1: interview with #212, CCM government partner (Cameron Holley, Canterbury, December 2008) noting that: “there aren’t industry people in there … it would be better with industry people as members, definitely”.

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or enforce affirmative action appeared to limit CCM’s effectiveness and greatly reduce the magnitude of environmental improvements likely to be achieved. B. Successful Collaboration at a Subcatchment Scale and the Challenges of Sustaining Engagement – LSP Compared to the catchment level CCM program, the much smaller-scale LSP was arguably the most successful of the programs in fostering an effective collaborative process that delivered some significant environmental improvements. Of the 30 active LSP collaborations across Canterbury, this article focused on three of the more mature partnerships. Like the CCM program, the catalyst to all three collaborations in LSP was a perceived environmental “crisis” – a decline in water quality in local streams (eg increasing phosphate, nitrate and EColi levels). The causes of this crisis included intensified farming and poor land management practices.102 The decline in water quality typically sparked direct and tangible public concern.103 This included complaints to ECan about “dirty, very unappealing, foul smelling black sludge” in streams that flowed through urban communities and/or downstream farms.104 This “crisis” and associated public concern ensured townspeople and a number of seemingly more “altruistic” farmers were willing to come to the table to collaborate with ECan.105 However the more fundamental challenge for the LSP process was engaging with the reluctant farming polluters who either didn’t accept that there was an environmental problem or (more commonly) viewed any environmental improvement on their part as antithetical to their economic self interest.106 Against this backdrop, two main strategies were successfully employed by ECan to ensure that all farmers agreed to cooperate. First, ECan was able to leverage potential pressure from incensed farm and community peers to bring some farmers to the table. One government officer illustrated how this was achieved using evidence of poor farming practices in the area:107 102 Other problems also include effluent run-off from dairy sheds, stream bank erosion and cattle crossing through streams. 103 In some cases, poor environmental conditions were also identified by routine government monitoring of the creek. 104 Interview with #331, LSP government partner (Cameron Holley, Canterbury, December 2008). 105 The most successful of the three LSP cases saw up to 60 per cent of farmers voluntarily coming forward to engage in the program. Education and leadership from ECan sometimes helped “unlock” such altruistic forces (eg on-farm demonstrations). Note also that a few farmers were motivated to engage in LSP by economic concerns (eg preventing further loss of productive land from erosion). 106 Interview with #311, LSP government partner (Cameron Holley, Canterbury, December 2008), stating that many farmers believed “there’s no benefit, no perceived benefit coming along, so yeah it is a struggle getting people along initially”. 107 Interview with #331, LSP government partner (Cameron Holley, Canterbury, December 2008).

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The farmers were pretty antagonistic for a while … and I said “there’s a lot of photos there that you probably wouldn’t like shown at a public meeting” and they said, “you show your photos to ever you like!”, but they rang back a fortnight later and said, “look we’ve thought about it, we’d like to work with you” … the threat of peer pressure worked really well there.

Peer pressure was not, however, an adequate technique for some of the more recalcitrant farmers. Here, ECan routinely had to resort to a second strategy, namely using direct or tacit threats of enforcement and loss of water consents under the traditional RMA regulatory framework.108 Analogous to the default hybridity concept, the costs and penalties of these threats were typically enough to motivate even the most reluctant farmers to contemplate engaging in this new approach to environmental governance. As one ECan respondent illustrated:109 I said, “okay you’ve got a choice, you can either work with me… or we’ll send our enforcement people in and you’ll be facing abatement notices or potential environment court fines. It’s your choice”.

The effectiveness of these strategies was greatly enhanced by the small scale of the LSP. For example, the small population (usually less than 1000 people) ensured the main polluters (normally less than 20 farms) were readily identifiable by ECan. One respondent illustrated this point by comparing the LSP and CCM programs:110 Say in [LSP creek A], when there’s been a farmer’s cows walking in the creek, it’s pretty obvious that that’s probably done it. But in the urban [CCM] environment it’s impossible unless there are a couple of key polluters.

Further, the small area in which the LSP was applied (usually a 14 to 15 km long stream, 5,000 hectare area) contributed to high participation rates by reducing volunteers’ travel and time costs.111 Indeed, with 40 to 50 people from a 1000 person population attending initial meetings, it is unsurprising that the final collaborative groups reportedly captured “a cross section of who should be there”.112 As one respondent summed up: “we’ve had 100 per cent buy-in … there’s been no one sort of saying, ‘Oh, no, that’s a load of bullshit, bugger off’”.113 Having brought stakeholders to the table, the next stage was working towards an agreement on goals and actions. Again, ECan’s in-kind support 108 There were a variety of ways in which “the shadow of the law” was used to motivate action. For example: (i) threatening regulatory action to a farmer-owned irrigation cooperative that in turn exerted pressure on their farming customers; (ii) taking direct regulatory action against one farmer to “motivate” others to engage in LSP. 109 Interview with #331, LSP government partner (Cameron Holley, Canterbury, December 2008). 110 Interview with #311, LSP government partner (Cameron Holley, Canterbury, December 2008). 111 Ibid, stating that: “the population was about, 1,000, pretty small, so we were lucky it was a small community, it worked well”. 112 Interview with #332, LSP non-government partner (Cameron Holley, Canterbury, December 2008). 113 Interview with #322, LSP non-government partner (Cameron Holley, Canterbury, December 2008).

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such as facilitating negotiations and information provision was significant in reducing costs to volunteers. Further, while there was no direct funding to support the process, the small scale and limited number of polluters appeared to keep transaction costs of decision making relatively low. Not least, because the participants came from small communities they appeared to have a base level of pre-existing trust and/or reciprocity that made it “easy” and quick to collaborate and reach agreement. As one respondent put it:114 It’s not easy to accept that you’re not squeaky clean and for some people it’s harder than others. But if you and your neighbours are sitting around there on an amicable basis, you can talk about things that much easier.

As a result of these pre-existing relationships, the groups agreed in four to six months on a plan detailing the environmental problems and responses – relatively quick compared to the more complex CCM process.115 These plans were subsequently implemented over a four-year period, and included actions to reduce sediment, phosphorus and faecal coliform and improve riparian vegetation. The results, according to respondents, were firstrate. Successes included improved understanding of the problem, enhanced relationships and getting farmers to “buy into” the management of the stream environment.116 Perhaps more importantly, the LSP process had delivered substantial demonstrable environmental improvements. Indeed, although questions are raised below about the capacity of the group to deliver long-term environmental objectives, ECan monitoring of key pollutants such as EColi, phosphate and sediment in each LSP case demonstrated significant drops below pre-collaboration levels.117 ECan monitoring of aquatic life across 17 streams and catchments also demonstrated that spawning places for fish had increased in the streams where LSP had been implemented, but not in others.118

114 Interview with #312, LSP non-government partner (Cameron Holley, Canterbury, December 2008). 115 Ibid. 116 Interview with #311, LSP government partner (Cameron Holley, Canterbury, December 2008), noting: “When you get all those people together … there’s a bit of give and take and everyone is learning about everyone else’s point of view”; interview with #321, LSP government partner (Cameron Holley, Canterbury, December 2008), pointing out that: “Most of it is about building relationships and trust between parties … and community is built and then they are pleased with what they’ve done together and they’re encouraged”; interview with #323, LSP non-government partner (Cameron Holley, Canterbury, December 2008), noting that: “They’re all pretty positive, there’s nobody really anti now like there was when we started”. 117 Interview with #311, LSP government partner (Cameron Holley, Canterbury, December 2008) Although changes in river flows may have impacted results in some years, the large majority of respondents were confident that over the four- to five-year period the results had been statistically significant. Further, in comparative ECan monitoring of similar LSP streams and non-LSP streams, the LSP streams were the only ones to record an improvement in environmental conditions. All respondents also reported positive visual assessments of the creek and its riparian margin. 118 ECan, Boggy Creek Case Study .

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These improvements were attributable to a number of factors, including the trust and buy-in fostered by the collaborative process;119 available grants and financial assistance (eg $3,000–5,000) for actions;120 and perhaps most importantly, direct or tacit threats of further regulatory or peer pressure. Indeed, in contrast to the purely voluntary CCM process where a lack of leverage or incentives saw some reluctant stakeholders evade implementation, this pressure in LSP acted as a powerful ongoing incentive to ensure farmers carried out the actions in the LSP plans. As one respondent illustrated, for some farmers, “It’s not that big brother was watching, it’s just the neighbours watching”.121 However, neither peer pressure nor the shadow cast by ECan’s regulatory powers was effective on all farmers, with some “recalcitrants” resistant to delivering on their promises.122 In response, ECan turned to the direct force of law, which reportedly ensured even the most reluctant lived up to their commitments. Importantly, the use of the “stick” didn’t appear to damage the collaborative relationship between ECan and its farming partners:123 Well, we had one individual there who was steadfastly ignoring … and had all his cattle in the bloody creek there … we’d already written him about two or three warning letters … so we issued an abatement notice. So he’s been forced to do some fencing … he still comes along to the meetings and he’s taken it like a man [laughs].

Despite these impressive achievements, the one weakness of LSP was that it lacked the capacity to extend the above “episodic” successes into vital longterm monitoring and management of the stream. Certainly, LSP outputs such as property fencing and changes in behaviour (eg improved irrigation practices), may have lasting effects in terms of improved stream condition. However, without ongoing collaborative engagement to monitor behaviour, provide peer pressure to avoid regression and to respond to changes in the environment such as changing land uses and ongoing maintenance of weed growth, long-term achievements may well be limited. This is particularly concerning because, at the time of research, the collaborative groups were showing signs of formal shut down.124 Respondents pointed to the increasing “difficulty in getting the collaboration to take the next 119 Interview with #313, LSP non-government partner (Cameron Holley, Canterbury, December 2008) explaining that: “It’s emphasised to us that we need to own the problem and try and fix it”. 120 This included funding available for farmers through a competitive grant system, and ECan reducing the cost of applying for consents under the Resource Management Act 1991. 121 Interview with #312, LSP non-government partner (Cameron Holley, Canterbury, December 2008). 122 Interview with #332, LSP non-government partner (Cameron Holley, Canterbury, December 2008), noting: “In the four years, it’s not 100%, I would say there’s 10% of this whole farming package if you put us all together, there’ll be 10% of the component not done”. 123 Interview with #331, LSP government partner (Cameron Holley, Canterbury, December 2008). There is, of course, a risk that the wider application of laws could undermine collaboration and trust. 124 One interviewee did discuss an LSP collaboration they were aware of that had maintained its performance over the longer term, however this was reported to be the exception rather than the rule.

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step”,125 while a respondent from a different case pointed out:126 “They’re not attending any more meetings”.127 These problems were largely a matter of volunteer fatigue.128 The time and effort from people over the last four years (even with ECan officer’s in-kind support) had taken its toll. As one person put it simply: “we’re worn out”.129 As another respondent explained, the unfortunate result for the LSP program was that collaborations would likely disband, and environmental problems would reoccur:130 things will spring up along the banks of the creeks and someone is going to have to control them and it will cost an enormous amount of money … I can see that in the future it will become a mess again … I can see troubles ahead.

To conclude, LSP appeared to be the more successful of the two programs in fostering an effective collaborative process, which included all relevant stakeholders and delivered significant improvements to the local environment. This success was attributable to a number of key conditions, including ECan’s in-kind support, the small scale and small population involved, peer pressure, the hybrid relationship between traditional regulation and LSP, and short-term grants for new action. However the collaborations in the LSP program appeared likely to succumb to volunteer fatigue, and unlikely to survive long enough to deliver ongoing environmental management. V. DISCUSSION – RECOMMENDATIONS FOR POLICY AND NEG LITERATURE The above analysis reveals that both programs had considerable success in fostering processes that engaged diverse stakeholders and that both achieved some key outcomes. Both enhanced trust, improved understanding, increased awareness and/or relationships between different participants. Further, CCM improved government program coordination and delivery, and achieved social and some minimal improvements to environmental conditions. And LSP led to significant improvements in the environmental quality of local streams.

125 Interview with #313, LSP non-government partner (Cameron Holley, Canterbury, December 2008). 126 Respondents from another group suggested they would likely continue to exist as a latent network, which could mobilize if another significant environmental crisis and public concern arose, but that the LSP collaboration otherwise had “no real direction” for the future: interview with #323, LSP non-government partner (Cameron Holley, Canterbury, December 2008). 127 Interview with #332, LSP non-government partner (Cameron Holley, Canterbury, December 2008). 128 In addition to this fatigue, a few respondents also pointed out that having resolved many of the primary environmental issues, there were few incentives left to motivate them to take ongoing action. Indeed, pressure from peers or ECan appeared to have disappeared with the urban community and farmers downstream satisfied with the appearance of the creek and no longer making complaints to ECan. 129 Interview with #332, LSP non-government partner (Cameron Holley, Canterbury, December 2008). 130 Interview with #323, LSP non-government partner (Cameron Holley, Canterbury, December 2008).

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However, in their own ways, each program also suffered from a number of flaws. For example, CCM lacked engagement with Māori interests, and also appeared unlikely to achieve significant environmental improvements due to a lack of incentives and leverage capable of persuading reluctant partners to implement actions. While the LSP program appeared to avoid these weaknesses, the program seemed unlikely to sustain successful collaboration and deliver outcomes over the longer term. 131 What broader lessons can be gleaned from these studies? While there are inherent dangers in generalizing from this type of research, nevertheless, a number of insights can be drawn from our findings across the different contexts and institutional arrangements of the two programs. They suggest some key lessons with regard to the conditions that increase the likelihood of successful collaboration in NEG.132 These lessons can be grouped around three themes: getting collaborators to the table; making decisions and implementing actions; and sustaining collaborative structures. In terms of the first of these themes, the findings provide empirical support for the proposition that people are more likely to collaborate where environmental problems are perceived to be severe and in crisis (be it a degraded lake or a polluted local stream).133 However it was clear from both LSP and CCM that the magnitude of the “crisis” in these programs was not always sufficient to motivate all participants to meaningfully engage in collaborative action. In such situations, the use of regulatory or other incentives (such as funding) will likely be needed to bring the parties to the table. One significant such incentive may be harnessing peer pressure, as the findings in LSP confirmed.134 However, as we also saw, even in small close-knit communities where such pressures may be expected to work most effectively, there were limits to the ability of stakeholders to get their more recalcitrant “peers” to take action. 131 ECan was aware of these shortcomings and at the time of our research was seeking to compensate for them by utilising its suite of tools at different levels of its nested system of governance. For example, a recent initiative known as the Canterbury Water Management Strategy (CWMS) has sought to establish a region-wide framework for engagement with Ngāi Tahu. It is a nested system with Treaty issues involving central government as the Treaty partner; iwi management plans to address regional issues; and natural resource stewardship in Māori plans at the local zone level. In addition, aware of the risks of volunteer fatigue. ECan have reportedly sought to ensure that new CWMS local zone and region committees are less vulnerable to volunteer burn out. This includes giving members a small allowance ($2,000). The Committees will also receive a high level of technical, administrative and facilitation support. In CCM, ECan had also (i) set up a new collaborative group involving statutory agencies and the Trust to, in part, try to better coordinate and monitor implementation of the plan and other programs of statutory agencies, including Māori representatives; (ii) formed a local zone committee at the catchment scale to provide a mechanism for establishing funding priorities for a district council in CCM2; and (iii) held seminars every two years to update on progress. 132 Holley, above n 16, at 10683. 133 Tanya Heikkila and Andrea K Gerlak “The Formation of Large-scale Collaborative Resource Management Institutions: Clarifying the Roles of Stakeholders, Science, and Institutions” (2005) 33(4) PSJ 583 at 586; Cannon, above n 33, at 408. 134 Edella Schlager “Common Pool Resource Theory” in Durant, Fiorino and O’Leary, above n 31, 145 at 154–155.

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Instead, ECan had to resort to governmental authority to induce cooperation from a number of farmers. Such pressure (and in particular the threat of legal action) seems to be an essential underpinning to “softer” inducements, and fundamentally important in many NEG initiatives in inducing reluctant stakeholders to come the table to collaborate (commonly referred to as “bargaining in the shadow of the law”).135 As legal scholars have aptly argued in the United States, such regulatory incentives may also be used on lower-level public bodies through appropriately designed national legislation.136 Further, as discussed below, regulatory pressure also plays an important role in fostering effective implementation. A second difficulty in mobilising collaborators raised in the CCM program was the potential time and resource demands the programs made on volunteers. The primary lesson to be taken from the CCM program is that successfully engaging all stakeholders as volunteer partners will require funding to be commensurate with their time scarcity and financial needs. Without this, some groups – namely those with the least time and resources to spare (such as Māori stakeholders) – will not participate.137 A second set of lessons concerns decision making and implementation. The programs confirmed that negotiation (properly supported by funding or in-kind government assistance) generally enhanced knowledge and understanding of problems, built trust, encouraged ownership and accordingly lead to successful implementation. However such trust building and buy-in cannot be relied upon exclusively to secure commitments and implementation from all parties.138 As we saw in the case of CCM, policy designers anticipated voluntary buy in and successful implementation of actions, without the need to invoke government authority or incentives. In practice, such optimism was misplaced, with reluctant participants evading commitments made in negotiations, and stymieing the extent of environmental improvements. This suggests the desirability, and probably the necessity, of providing appositely designed regulatory or other incentives both to bring reluctant parties to the table and to persuade them to deliver on their commitments. This conclusion was reinforced by the findings in LSP, whose success in securing and enforcing implementation relied significantly on the existence of regulatory (and “peer pressure”) incentives, and even in some cases on the direct use of law. Although the use of these spurs to cooperation and affirmative self regulatory behaviour have been widely acknowledged in the broader regulatory literature,139 in the collective rush to experiment with NEG (and perhaps because it is commonly seen as an alternative to rather than a complement to other regulatory approaches) these lessons have apparently been overlooked.

135 Karkkainen, above n 10, at 229. 136 Karkkainen, above n 37, at 310–311, 314. 137 M Lane and T Corbett “The Tyranny of Localism: Indigenous Participation in CommunityBased Environmental Management” (2005) 7 Journal of Environmental Policy and Planning 141 at 153–154. 138 O’Leary, Nabatchi and Bingham, above 31, at 337. 139 Ayres and Braithwaite, above n 39; Karkkainen, above n 37, at 296.

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An alternate route to securing commitment and affirmative action could involve NEG going beyond voluntarism to give collaborative agreements legal backing. As Australian NEG experiments have shown, this can act as a reliable mechanism for ensuring that participants take their commitments seriously.140 Finally, what can be learned from the programs about the challenges of sustaining collaborations? Consistent with some previous studies, the LSP cases revealed that volunteer fatigue is very real threat to sustaining successful NEG.141 The CCM program suggested that supporting and maintaining collaborators via government funding may be crucial in this regard. In this case, funding was used to offset costs to volunteers by hiring staff to assist with collaborating and implementing actions in the longer term. Other Australian research has also shown that collaborative governance initiatives will generally collapse where resources to achieve their objectives are lacking.142 But as we saw in CCM, even modest amounts of funding may be sufficient to improve the chances of sustaining collaboration over the longer term. Beyond these recommendations, the findings provide significant insights for NEG theory with regard to two key issues. First, there is the issue of new governance’s interaction with “the law”143 especially as regards the fraught question of default hybridity. According to this hypothesis, law plays an “action forcing” role, and is used to induce people to “contract” out of standard regulatory frameworks and into new governance approaches.144 Does it do so in practice? At a descriptive level, only the LSP program approximated the conditions contemplated by “default hybridity”, relying heavily as it did on the RMA’s regulatory framework to induce reluctant farmers to engage and take action.145 Comparisons between the LSP and CCM program suggest that NEG approaches which fail to develop “default hybrid” relationships with the law are likely to be unsuccessful.146 Not least, they may lack the capacity to coerce polluting stakeholders who have no desire to enter into NEG, fail to curb free riding and thus significantly reduce the likelihood of environmental improvements. A further normative lesson as regards the role of “default hybridity” can also be taken from the LSP program. As we saw, while the regulatory “default 140 Neil Gunningham, Cameron Holley and Clifford Shearing “Neighbourhood Environment Improvement Plans: Community empowerment, voluntary collaboration and legislative design” (2007) 24(2) EPLJ 125 at 143. 141 Holley, above n 12. 142 Holley, above n 12, at 474–477. 143 De Búrca and Scott, above n 16, at 3–10. 144 De Búrca and Scott, above n 16, at 9. 145 It is beyond the scope of this article to examine exactly what other roles law may have played in the CCM cases and it is an issue that would require further examination; De Búrca and Scott, above n 16, at 6. 146 Such default process may also occur by “accident”. For example, although not examined in this study, the authors were made aware by respondents of a reportedly successful example of CCM where the development of an alternative to a Dam arose largely because the applicant group saw the regulatory consent process as too costly, uncertain and potentially unsuccessful.

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position” was sufficiently harsh to compel actors to engage in this new governance experiment, it was insufficiently menacing to ensure compliance (although this weakness can be sidestepped in some situations by the direct application of law). By implication, where existing legal regimes are used as a “default” for NEG, they will need to be tailored to offer sufficiently “harsh” default positions to induce the desired participants not only to contract out and agree to participate in new governance, but also to “compel” them to take affirmative action that they are otherwise disinclined to pursue.147 Although not examined in this paper, it is possible that NEG experiments at large scales will be more dependent on this hybrid relationship, because as discussed below, peer pressure mechanisms to bring actors to the table appear less readily available at larger scales. A second reflection relates to ongoing debates in the literature between those who argue that cooperation dilemmas make NEG an unviable approach to public problem solving and those who extol the virtues of NEG’s collaborative processes, asserting that such dilemmas can often be resolved. The truth, as in many such cases, is complex and appears to lie somewhere between these two polar positions. On the one hand, the very existence of cooperative processes across our two programs suggests that the critics of NEG may be overstating the cooperation dilemmas involved in NEG and that such experiments are not doomed to failure from the outset.148 On the other hand, comparative findings suggest it was “easier” to achieve success in the LSP settings than in those addressing larger catchment scale resources. In particular, the base level of trust present in the smaller local communities in LSP made it easier to collaborate and reach agreement. Further, norms and peer pressure were readily available and used by LSP’s intimate community members, as opposed to the CCM setting where a greater mix and number of interests appeared unable to leverage action by key stakeholders. Moreover, the small scale of LSP also naturally made collaborative processes less costly in terms of time and resource costs. While case studies, by their nature, cannot provide definitive answers, this analysis suggests that, subject to certain qualifications, size may be particularly important to the success of NEG collaboration. These qualifications are important. It is not argued that NEG is limited to or will only be successful in “small” settings.149 Such a conclusion places too little weight on conditions other than the small scale and stakeholder numbers in LSP, such as the presence of regulatory incentives and government funding that were both central to ensuring stakeholder buy in, commitment and action. Further, the significant collaborative achievements in CCM at the very least suggest the real potential for success at larger scales, albeit under more appositely designed institutions.150 147 De Búrca and Scott, above n 16, at 9. Karkkainen, above n 37, at 298. 148 Gaines, above n 28; Steinzor, above n 29; Karkainen, above n 21, at 231, 233. 149 See also Schlager, above n 134, at 162–163; Dewitt John “Civic Environmentalism” in Durant, Fiorino and O’Leary, above n 31, 219 at 236–237. 150 In a similar vein, it is important to remember that not all NEG collaborations are the same and what makes localized collaborations like LSP easier and more successful (e.g. peer pressure among neighbours to enforce action) may be less relevant to the success of other

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What can be said is that the chances of reaching successful collaboration will likely be higher in smaller settings and communities. In particular, because the local scale provides greater possibilities of repeated interactions and restricts the number of exchange actors in the network, collaborative approaches at the local level appear likely to more readily have access to “social coordination and control features” such as peer pressure, and will potentially have a greater store of social capital that can make negotiation easier.151 To many this argument will appear obvious, and in very broad terms, consistent with underlying principles of “collective action problems”.152 However, these conclusions remain important to the NEG literature where issues of size and scale remain contentious.153 VI. CONCLUSION NEG represents an important innovation in legal and governance processes that goes substantially beyond both command and control regulation and market-based incentives by invoking collaboration among diverse groups of affected stakeholders. This article has examined both the process and outcomes of NEG collaborations in New Zealand, illuminating the experience of one long overlooked innovator in NEG and providing insights into NEG in practice. It has argued that NEG can be demonstrably successful, but it is also likely to face substantial challenges, including the problem of “free riders”, inclusive stakeholder engagement and sustaining collaborative action. Drawing on the strengths and weaknesses of the CCM and LSP programs’ case studies, the article identified a range of mechanisms and conditions that, together or separately, appear most likely to overcome such impediments and to produce successful collaboration. These include environmental problems that are perceived to be severe and in crisis; regulatory and other incentives that motivate parties to both come to the table and implement actions; in-kind support and funding commensurate with the time and cost demands faced by all stakeholders; and legally backed agreements. Finally, the article’s empirical research has shed some important light on two key issues in new governance jurisprudence. First we demonstrated that default-hybrid relationships with traditional law are constructive to the success of new governance. Second, we argued that while NEG is likely to be a viable and convincing approach to regulating and governing a wide range of natural resource problems, its chances of success will likely be higher in smaller settings and communities. While these insights are important in their own right, they also raise a number of significant issues that warrant further inquiry by legal and governance scholars. First, there is need for both descriptive and normative collaborations that may be once off agreements or have other enforcement mechanisms available such as legally binding agreement. 151 Andreas Duit and Victor Galaz “Governance and Complexity – Emerging Issues for Governance Theory” (2008) 21(3) Governance 311 at 324. 152 Olson, above n 27. 153 Gaines, above n 28, at 17.

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work on default hybridity and NEG’s relationship with traditional law.154 For example, will relying on default rules to induce collaboration be routinely undermined by adversarial legalism (eg court challenges), or can these issues be avoided or overcome?155 Furthermore, what are the strengths and weaknesses of default hybridity relative to other potential hybrid relationships between law and new governance (eg baseline hybridity, developmental hybridity)?156 More generally, to what extent can holding on to elements of older legal models solve the challenges and problems facing new governance? Is it in fact more desirable and/or feasible to abandon hybrid solutions and instead perfect new governance itself by creating innovative ways to ensure democratic input and accountability?157 Our analysis of the demonstrably successful smaller scale LSP also revealed an important second issue for further research, namely when, and under what conditions the apparently “harder” large-scale collaborations can be made more successful in practice. While some scholars have begun this endeavour,158 the above analysis raises some important questions that will require further examination. These include: if the likelihood of effective collaboration decreases the greater the scale, are some issues (such as governing large regional ecosystems) beyond NEG’s capacities? And are there situations where larger or even “medium” scale collaborations operate more successfully than local collaborations?159 Such questions cannot be answered in the absence of appropriate empirical work, which is still relatively thin on the ground. This article cannot resolve these questions but it may add to the store of knowledge that will assist both policy makers and legal scholars when thinking about, debating and reformulating NEG institutions to ensure this emerging approach to solving public problems can be a success.160

154 Trubek and Trubek, above n 16, at 564; Wiersema, above n 19, at 1294–1299. 155 Orly Lobel “Governing Occupational Safety in the United States” in G De Búrca and J Scott (eds) Law and New Governance in the EU and the US (Hart Publishing, Portland, 2006) 269; Robert Kagan “Political and legal obstacles to Collaborative Ecosystem Planning” (1997) 24 Ecology Law Quarterly 871. 156 For further on these other relationships, see Wilkinson, above n 43; Alexander, above n 8; Lisa Alexander “Reflections On Success And Failure In New Governance And The Role Of The Lawyer” (2010) Wis L Rev 737 at 745–746; Blomgren Bingham, above n 42. 157 Sabel and Simon, above n 38; David Trubek and Louise Trubek “The World Turned Upside Down: Reflections on New Governance and the Transformation of Law” (2010) Wis L Rev 719 at 725. 158 Heikkila and Gerlak, above n 133; Karkkainen, above n 10. 159 Arun Agraal “Group Size and Collective Action: Third-party monitoring in Common-Pool Resources” (2001) 34(1) Comparative Political Studies 63. 160 Paul Sabatier and others Swimming upstream: Collaborative approaches to watershed management (MIT Press, Cambridge, 2005) 3 at 11.

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