3 Policy instruments and the legal framework for area-based conservation in marine areas

3.1 National legal framework and policy instruments

Norway has for many years been using a variety of area-based conservation measures, which contribute in different ways to safeguarding the marine environment. In some cases, measures are introduced specifically to safeguard marine biodiversity. In other cases, the primary purpose is to regulate the harvesting and other use of natural resources, but the measures are nevertheless an important part of the overall framework for maintaining marine biodiversity through sustainable ocean management. Area-based conservation measures operate in combination with other measures that are not area-based.

3.1.1 Marine protection under the Nature Diversity Act

How is marine protection organised in Norway?

In the 1970 Nature Conservation Act, protected areas were divided into the categories national parks, protected landscapes, nature reserves and natural monuments, on the basis that these categories could also be used in the marine environment. In the 2009 Nature Diversity Act, marine protected areas (MPAs) were introduced as a new category. According to the legislative history of the Act (Proposition No. 52 (2008–2009) to the Storting), this was done to ‘take into account differences between marine and terrestrial environments’, and because it was considered to be ‘appropriate and more flexible not to be tied to different protection categories as is the case on land.’

An area that is entirely marine should be designated as an MPA under section 39 of the Nature Diversity Act. MPAs may be established on the grounds of their marine conservation value, but also to safeguard valuable marine areas that are ecologically necessary for terrestrial species. Other categories, for example national park or nature reserve, should still be used to provide protection for areas that include both land and sea.

The Nature Diversity Act applies to Norwegian land territory and territorial waters. Certain of its provisions, for example general principles and rules on genetic material, also apply to Norway’s 200-nautical-mile economic zone and on the continental shelf to the extent they are appropriate, as set out in section 2, third paragraph, of the Act. A number of fundamental principles therefore apply throughout Norwegian waters. For example, all official decision-making must be based on knowledge about biodiversity and the anticipated impacts of planned developments on biodiversity (section 8), the precautionary principle must be used as a basis (section 9), and the cumulative environmental effects on the ecosystem now or in the future must be assessed (section 10).

MPAs established under section 39 of the Nature Diversity Act may extend up to 12 nautical miles beyond the baselines. Decisions to establish protected areas in the sea must state whether the purpose of the protection and any restrictions apply to the seabed, water column, surface water or to a combination of these elements. The relationship between the Nature Diversity Act and the Marine Resources Act in this area has been clarified, so that if fishing is the only activity that must be regulated to achieve the purpose of protecting an area, restrictions should be imposed under the Marine Resources Act.

What does marine protection involve?

Section 39 of the Nature Diversity Act states that ‘in a marine protected area no person must do anything that reduces the conservation value of the area as described in the purpose of protection.’ At the same time, the Act requires that ‘any restrictions imposed on activity shall be proportional to the purpose of protection’. This reflects a basic principle of work on marine protection. The conservation value of a protected area and the purpose of protection are the factors that govern which activities are permitted there. Restrictions should be as strict as necessary to safeguard the value of the area, but no stricter.

In other words, it is not the case that all or even most activities are prohibited in MPAs. As a general rule, the regulations for each MPA should allow for the continuation of the types of activity that are being conducted in the area at the time when it receives protection. Ordinary outdoor activities such as bathing, diving, hunting and recreational fishing will be permitted in line with the provisions of other legislation. Harvesting of living marine resources in accordance with the Marine Resources Act will also be permitted, but where appropriate the protection regulations may regulate activities such as kelp trawling, bottom trawling and other specific types of harvesting in all or part of an MPA.

Activities that are not normally permitted in MPAs include those that result in major physical disturbance such as land reclamation, dredging and removal and deposition of material, blasting and anchoring and mooring. In addition, permits will not normally be issued for polluting activities, for example discharges of waste water.

MPAs are managed either at local or at regional level. The administrative authority for smaller protected areas is normally the relevant municipality. If an MPA is adjacent to an area where the board of a national park board or other protected areas is the administrative authority, the MPA may be included in the board’s responsibilities to ensure integrated management of contiguous areas. If an MPA stretches across several municipalities or is a Ramsar site (i.e. designated as a wetland of international importance under the Ramsar Convention), the county governor is generally the administrative authority. In addition, an administrative authority may appoint an advisory committee to assist in managing an MPA.

An administrative authority may on application grant exemptions for activities that are generally forbidden in an MPA. The protection regulations for each area include a list of activities for which it is envisaged that exemptions may be granted. These may for example include installing aids to navigation, laying cables and pipelines, and aquaculture activities. The administrative authority for an MPA assesses applications for exemptions on a case-by-case basis, and the purpose of protection and the conservation value of the area will be determining factors in its decisions. An administrative authority may also set conditions for exemptions to ensure that the conservation value of an area is not adversely affected.

Under section 48 of the Nature Diversity Act, an administrative authority may also grant exemptions from the protection regulations provided that this is not in conflict with the purpose of the protection decision and cannot make a significant impact on the conservation value, or if safety considerations or important public interests make it necessary. The legislative history of the Act (Proposition No. 52 (2008–2009) to the Storting) explains that this general exemption provision is intended to provide an opening in the event of unforeseen circumstances or special cases that were not considered at the time of the protection decision. The administrative authority is also responsible for preparing a management plan for each MPA.

Administrative procedures for protection

Before a new protected area is established, all relevant concerns, including current plans under the Planning and Building Act, current permits and user interests, must be registered and evaluated. In addition to the general rules following for example from the Public Administration Act, sections 41–43 of the Nature Diversity Act set out specific rules for the procedures to be followed in establishing protected areas. These rules are intended to ensure that anyone with an interest in the matter is invited to take part and has an opportunity to influence the process. A key element of the procedures is weighing up the protection of an area against other important public interests (section 14 of the Nature Diversity Act). Where Sami interests are relevant, due importance must also be attached to the natural resource base for Sami culture (section 14, second paragraph, of the Act).

A protection process formally begins when the Ministry of Climate and Environment asks the Norwegian Environment Agency and the relevant county governor(s) to assess a protection proposal. The county governors have the chief responsibility for carrying out the protection process. This starts with a broad-based announcement that a planning process is being started, giving all interested parties the opportunity to express their opinions. Once the formal announcement has been published, section 44 of the Nature Diversity Act applies, meaning that permits for projects under other legislation may only be granted if such projects will have no significant impact on the purpose of the protection proposal.

Next, the county governor considers the input received in response to the notification and prepares a consultation document describing the area to which the proposal applies, the purpose of protection, the delimitation of the area concerned, any qualities of the area in addition to its conservation value, and the anticipated consequences of the proposal. Before the consultation process, the county governor sends the consultation document to the Norwegian Environment Agency for review. The subsequent consultation process may include information meetings and consultative meetings at both local and regional level.

After the consultation process, the county governor reviews the input that has been received and sends a recommendation to the Norwegian Environment Agency. The Agency considers this, and then sends its n recommendation to the Ministry of Climate and Environment. The Ministry prepares the matter for consideration by the Government. The final decision is made by the King in Council.

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Source Norwegian Environment Agency

It is vital for the success of a protection process that anyone who has an interest in the matter, especially at municipal level, can participate actively and provide input as early as possible. Assessing such matters at local and regional level makes it easier to find good solutions for the substance of protection measures and to resolve any conflicts of interest.

3.1.2 Protection under the Svalbard Environmental Protection Act, the Act relating to Jan Mayen and the Act relating to the Norwegian dependencies

The Svalbard Environmental Protection Act

The Svalbard Environmental Protection Act applies to the entire land area of Svalbard and its waters out to the territorial limit (section 2 of the Act). Protected areas under the Act are divided into four categories: national parks, nature reserves, protected biotopes and geotopes, and cultural environments. Marine protected areas are not a separate category under the Act. However, this does not preclude the protection of marine areas in Svalbard. Under the rules for the different categories of protected areas, both the seabed and areas of sea can be protected.

Section 11 of the Svalbard Environmental Protection Act sets out the fundamental principle for the establishment of protected areas in Svalbard to ensure that the full variation range of habitats and landscape types in Svalbard is maintained. Its provisions require the protection of areas for both terrestrial and marine ecosystems. Section 12 of the Act states that protected areas are to be established by regulations, and determines what may be included in regulations on protected areas. It also provides the legal authority for protection regulations to prohibit or otherwise regulate any type of activity or project in protected areas.

When new protected areas are selected and protection regulations adopted for Svalbard, they must be in line with the strict provisions of the purpose clause of the Act. This states that the Act is intended ‘to preserve a virtually untouched environment in Svalbard with respect to continuous areas of wilderness, landscape, flora, fauna and cultural heritage’ (section 1 of the Act).

Section 16 of the Svalbard Environmental Protection Act states that no activity that has a lasting effect on the natural environment or cultural heritage is permitted in national parks. The provisions require the protection of the landscape and if applicable the seabed with plants, animal life and geological formations in a national park. Areas that are untouched or largely untouched may be protected as nature reserves. These areas must contain distinctive or vulnerable ecosystems, comprise a special type of habitat or special geological formations, otherwise be of special importance for the flora and fauna, or be of special scientific interest (section 17 of the Act). A nature reserve may be given absolute protection.

According to section 18 of the Act, areas of particular importance to the flora or fauna or that contain important or distinctive geological formations may be given protected status as biotopes or geotopes. In such areas, activities that may affect or disturb the flora or fauna or damage geological formations contrary to the purpose of the protection measure must be avoided. Under section 19 of the Act, areas of particular value in terms of cultural history may be protected as cultural environments. In such areas, activities that may reduce the historical value of the area must be avoided.

It is the conservation value and the purpose of protection that govern which activities are permitted in protected areas established under this Act, in the same way as for those established under the Nature Diversity Act. One general principle is that protected areas in Svalbard should contribute to the maintenance of wilderness and untouched nature.

The Governor of Svalbard is the administrative authority for protected areas in Svalbard. The Governor may on application issue permits or grant exemptions for activities that are generally prohibited. This may be done either under the specific rules on exemptions listed in each set of protection regulations, or under the general provision on exemptions in section 22 of the Act.

In addition, the Svalbard Environmental Protection Act includes specific provisions on administrative procedures for the establishment of protected areas (sections 13–15). The procedures are similar to those under the Nature Diversity Act, but the Governor of Svalbard is responsible for matters that are the responsibility of the county governors on the mainland.

The Act relating to Jan Mayen

Section 2 of the Act relating to Jan Mayen states that the King may lay down regulations relating to environmental protection on Jan Mayen. Under this provision, Jan Mayen and the territorial waters surrounding it have been protected as a nature reserve. The fauna, flora and landscapes are all protected.

The Act relating to the Norwegian dependencies

This Act applies to the Norwegian dependencies Bouvet Island, Peter I’s Island and Dronning Maud’s Land. According to section 2 of the Act, the King may issue regulations relating to environmental protection for the dependencies. Under this provision, Bouvet Island and the territorial waters surrounding it have been protected as a nature reserve. The fauna, flora and landscapes are all protected.

3.1.3 Area-based conservation under the Marine Resources Act

Marine protected areas under section 19 of the Act

Norway has also used been using area-based measures for many years as part of its fisheries management system. The 2008 Marine Resources Act applies in territorial waters, the economic zone of Norway, the fisheries protection zone around Svalbard and the fisheries zone around Jan Mayen, and on the entire continental shelf, including the part beyond the 200-nautical-mile limit (section 4 of the Act). The precautionary principle is one of the fundamental principles on which the Act is based. Section 19 of the Act provides the legal authority to ‘establish marine protected areas where harvesting and other forms of use of wild living marine resources is prohibited’.

Area-based conservation measures may apply to the surface water, the water column and/or the seabed. Furthermore, the Act states that ‘exemptions may be granted for harvesting activities and other forms of use that will not be in conflict with the purpose’ of the measure. According to the legislative history of the Act (Proposition No. 20 (2007–2008) to the Storting), it is important that restrictions on harvesting are no more extensive than is necessary to achieve the purpose of a conservation measure. This means that pelagic fisheries may be permitted in an area that is established to safeguard benthic habitats. The same applies to the use of conventional gear such as pole-lines and drift nets, provided that there is no risk of damage as a result of the loss of gear or the like.

Area-based conservation under the Marine Resources Act is similar to protection under the Nature Diversity Act, but restrictions apply only to harvesting and other utilisation of living marine resources. All such activities that are in conflict with the purpose of a measure are prohibited. Marine areas where the only conservation measures are specific provisions regulating fishing activities must be established under the Marine Resources Act.

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Source Mareano/Institute of Marine Research

The regulations relating to protection of coral reefs against damage as a result of fisheries activities are issued under section 19 of the Marine Resources Act. Their purpose is to protect a representative selection of coral reefs against damage from fisheries activities. The coral reef areas guarded in this way are considered as MPAs in the OSPAR system. The regulations include provisions prohibiting the use of certain types of gear in delimited geographical areas. They apply to gear that is towed during fishing and that may touch the seabed during these operations, and in addition pots, gill nets, longlining gear, and all other gear with hooks.

Other area-based measures under the Marine Resources Act

Other sections of the Marine Resources Act also provide the legal authority for various types of area-based measures. Section 20 prohibits harvesting using trawls inside the territorial limit around the Norwegian mainland, and also provides the legal authority to prohibit trawling or the use of other gear in certain areas. The prohibition is intended to enable smaller vessels to fish in coastal waters and harvest coastal stocks without having to compete with trawlers that are more effective and can operate over larger areas. The prohibition on trawling also protects resources and ecosystems in shallower waters against damage from trawling.

Section 21 of the Act gives the Ministry of Trade, Industry and Fisheries the authority to prohibit or limit harvesting in areas or of species that may be affected by pollution. The Ministry can use this provision to prohibit or limit harvesting in an area, on condition that the area or species may be affected by pollution.

Section 16 of the Act provides the authority for a range of area-based measures. A number of such measures have been adopted under the Regulations relating to sea-water fisheries sets out a number of these, including provisions on trawl-free zones and a requirement to show special care during fishing operations near known coral reefs. Most of these measures do not have the specific purpose of protecting marine biodiversity, but some of them nevertheless make an important contribution to its conservation, for example by prohibiting trawling or other specific types of fishing in particular areas. The Regulations relating to regulatory measures for fishing to protect vulnerable marine ecosystems, which were adopted under section 16 of the Marine Resources Act, apply to very large areas. They prohibit fishing using gear that may come into contact with the seabed during use. In order to implement international regulatory measures for fisheries, similar rules have been introduced that apply to all Norwegian vessels, regardless of where they are fishing throughout the North Atlantic Ocean. Thus, area-based conservation measures and a wide range of other measures under the Marine Resources Act are an important part of the regulatory framework that ensures sustainable ocean management in Norway.

3.1.4 Planning under the Planning and Building Act

Planning processes

Regional and municipal plans play an important part in ensuring long-term, integrated and predictable management of the coastal zone. Planning processes under the Planning and Building Act are also intended to ensure local support for and involvement in spatial management policy. The geographical scope of the Planning and Building Act extends to one nautical mile beyond the baselines. Under the Act, responsibilities for planning are divided between the municipalities, counties and central government, and there is a hierarchy of plan types, where overall plans determine the framework for more detailed plans and projects.

County authorities and municipalities must cooperate with central government authorities, business and industry and the general population to find sustainable solutions and ensure close coordination between the Planning and Building Act and other legislation. The Nature Diversity Act sets out general principles for how the authorities are expected to include biodiversity considerations in their decision-making and demonstrate that they have done so. These principles apply to planning activities as well. If biodiversity considerations are assessed at an early stage of the process, more options are available and it is easier to make adjustments and take steps to reduce conflict.

Furthermore, the rules on public disclosure and environmental impact assessment are very important for ensuring that plans are adequately assessed and enabling all relevant stakeholders to provide input. This applies to biodiversity issue as well. The Regulations relating to environmental impact assessment (21 June 2017 No. 854) include provisions intended to ensure that projects are assessed thoroughly. For plans under the Planning and Building Act, the geographical scope of the regulations extends to one nautical mile beyond the baselines. For projects and plans under other acts, the geographical scope of the regulations is determined by the relevant act. The Government is considering a mechanism for coordinating the Nature Diversity Act and the Planning and Building Act to ensure better spatial management, in line with the international Sustainable Development Goals.

Municipal planning in the coastal zone

Plans at municipal level must follow up guidelines and rules issued at regional and national level. This means that in areas where there are proposals to establish marine protected areas, the municipalities must take this into account in planning processes. Establishing MPAs also requires coordination and cooperation with a range of stakeholders. These processes are essential in the development of sustainable, integrated coastal zone management in Norway.

Municipalities can set aside areas of sea for various purposes. In many cases, an area is designated for multiple purposes, which requires knowledge about purposes that can suitably be combined. It is normally possible to combine access and passage, fishing, nature and outdoor recreation in the same area. Municipal master plans may include rules on use of the surface waters, the water column and the seabed. The spatial planning categories natural environment and outdoor recreation may for example be combined to safeguard benthic biodiversity. The categories that can in practice be combined with maintaining the natural environment will depend on which species and habitats are present. For example, fishing and outdoor recreation can generally be combined with maintaining benthic habitats such as eelgrass meadows or shellsand deposits.

The Planning and Building Act also allows for conservation measures for the natural environment in specific areas, as set out in section 11-8 on the designation of zones where specific considerations apply in the land-use element of municipal master plans.

In addition, municipalities may include rules to ensure sound nature management in the land-use element of their master plans, as set out for example in sections 11-9 (6), and 11-11 (3 and 6) of the Planning and Building Act. Rules may also be laid down determining which species, including species of aquatic plants, may be produced in areas designated for aquaculture, and access and passage may be prohibited in delimited areas. The municipalities must also take other matters into account in their planning processes, for example climate change mitigation and adaptation to anticipated climate change.

Municipalities can also use zoning plans to safeguard areas of the marine environment, as set out in section 12-5 (6) of the Act. This may be a suitable approach for river deltas, eelgrass meadows and other shallow-water marine areas. In such areas, rules on permitted types of use may be issued under section 12-7 (6) of the Act to ensure that the extent of habitat types etc is not reduced and that their ecological status does not deteriorate.

3.1.5 Area-based conservation measures under other legislation

The Aquaculture Act

Under section 14 of the Aquaculture Act, which also applies in Norway’s exclusive economic zone and on the Norwegian continental shelf, the Ministry of Trade, Industry and Fisheries may prohibit aquaculture operations, require them to be moved or other restrict aquaculture operations if this is necessary for the conservation of areas of particular value for aquatic organisms. This provision has for example been used to set rules for national salmon fjords in order to protect selected wild salmon stocks.

Legislation on ports and navigable waters

The Act relating to ports and navigable waters sets out rules for the administration and management of these areas. Its purpose is to facilitate safe, secure, effective and environmentally friendly operation of ports and use of navigable waters, and it is also intended as a tool for weighing up different user interests. The expression ‘environmentally friendly’ is to be interpreted broadly, so that environmental problems that are relevant at any given time are taken into account. Both the central government and the municipalities have powers to regulate passage and traffic at sea, and rules may apply generally or to delimited areas. Regulatory measures may for example be introduced on environmental grounds. The Act also includes requirements relating to permits for works in the sea. The authorities may include environmental considerations when considering such applications.

Petroleum legislation

The Petroleum Act applies to petroleum activities in connection with subsea petroleum deposits under Norwegian jurisdiction. It applies to activities both within and outside Norway and the Norwegian continental shelf to the extent provided by international law or a treaty with a foreign state. Licences are required for all petroleum activities. Only the state may conduct petroleum activities without any licence, approval or consent required under the Act. Production licences are most important. They are allocated to qualified petroleum companies through competitive procedures, and give the licensees exclusive rights to explore for and extract oil and gas in the area covered by a licence. Production licences are granted for specified time periods and defined areas in parts of the continental shelf that have been opened for petroleum activities. In addition, permits are required under the Pollution Control Act and the health, safety and working environment legislation.

The Petroleum Act does not contain provisions making it possible to use area-based conservation measures, but petroleum activities are regulated through licensing conditions. These may be included in licences, either when new production licences are issued or plans for field development and operation are approved, and/or in connection with infrastructure development. To safeguard species and habitats in an area, it is possible for example to restrict exploration drilling to certain times of year. Before field development starts, conditions may specify the location of installations or the choice of routes for pipelines and cables in order to protect coral reefs or other species and habitats. Such conditions apply for the duration of the production licence.

Activities of the Norwegian Armed Forces

The Norwegian Armed Forces currently have 87 offshore military shooting and exercise areas, from parts of the Oslofjord in the south to Kvænangen in the far north. They are intended to meet training and exercise needs for personnel, for testing equipment and for operational training for Norwegian forces alone and together with allies. Areas have been designated to permit training for airborne, naval and underwater operations. When using these areas for exercises or other purposes, the Armed Forces take environmental impacts into consideration, for example by restricting use at times of year when the fauna is vulnerable, by restricting traffic and passage, physical disturbance and installations, or by requiring minimum distances to areas of importance for biodiversity. Several of the current shooting and exercise areas overlap with marine protected areas. In these cases, the rules that apply to the MPA are incorporated into the instructions for use of the shooting and exercise area. The defence sector is currently working on a proposal to formalise a new nationwide structure for offshore military shooting and exercise areas. The Ministry of Defence is planning to adopt this in the course of 2021.

Access has been prohibited to a number of marine areas under section 7-5 of the Act relating to national security and the regulations on areas of importance to the Norwegian Navy where access is prohibited (20 December 2018 No. 2058). Most of these areas are near naval installations and other areas of naval importance. They are often relatively undisturbed, and may therefore have qualities of importance for the marine fauna and flora.

The Cultural Heritage Act

Under section 15 of the Cultural Heritage Act, the Directorate for Cultural Heritage may adopt individual protection orders for shipwrecks and underwater installations. This has for example been done to protect the wreck of the German warship Blücher in the Oslofjord. The area around such structures and sites may also be protected under section 19 of the Act. In addition, monuments and sites dating from before 1537 are automatically protected under the Cultural Heritage Act. The Act applies out to 24 nautical miles from the baselines, which is the outer limit of the contiguous zone. Section 14 of the Act regulates the right of ownership to shipwrecks, remains of shipwrecks and other objects that have been on board ships. Such finds are considered to be ‘ship finds’ under the Act. According to the Act, the State has the right of ownership if finds are more than 100 years old calculated from the date the vessel was launched. Section 14 also prohibits any measures that may damage ship finds, regardless of who is the owner. The cultural heritage on the seabed in Norwegian territorial waters consists largely of finds from the Stone Age and ship finds.

3.2 A local approach to the conservation of marine biodiversity

3.2.1 Coordination between local and central administrative levels

All the areas that have been proposed for inclusion as marine protected areas have special conservation value, and have also been selected because it is of national importance to safeguard their special qualities. Their importance may also encourage local involvement in the establishment and management of conservation areas. Protecting areas for example as MPAs or as national parks including marine areas may increase interest in them and raise their status. Protected areas may for instance be attractive for tourists who are interested in outdoor activities and as research areas for scientists.

Textbox 3.1 Lurefjorden and Lindåsosane MPA

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Photo: Magnus Johan Steinsvåg

This fjord system in Vestland county is unlike any other in the whole world. It includes Lurefjorden, which is deep but with shallow sills, and Lindåsosane, a system of small, shallow fjords. The Lurefjorden and Lindåsosane MPA was established in 2020. There was little conflict and attitudes to the protection process were generally positive. The decision to establish the MPA was widely welcomed. Protection of this area was an essential basis for the designation of the Norhordland Biosphere Reserve as part of the UNESCO Man and Biosphere Programme in June 2019. The municipalities in the region had been working towards this for several years.

Under the Planning and Building Act, the municipalities are responsible for planning the use and conservation of coastal waters out to one nautical mile beyond the baselines. This work includes setting aside areas for purposes such as commercial and industrial development, including aquaculture, or as areas of natural environment, outdoor recreation areas, or for fisheries or navigational purposes. This is dealt with further in Chapter 3.1. Sound municipal spatial management is vital for safeguarding the entire coastal zone in Norway.

Coordination between the central government, municipal authorities and relevant interest groups is essential when MPAs and other area-based conservation measures are established. In practice, the situation varies widely from one process to another. In some cases, coordination and cooperation function smoothly from the start of the process. In other cases, the pieces fall into place as the scope of the conservation measure becomes clear. In certain cases, difficulties have arisen because municipal and central government authorities have not been in agreement. This can be a result of different priorities for the use of an area, misunderstandings, or a situation where the implications of the conservation measure for use of the area and future developments are unclear.

Textbox 3.2 Saltstraumen MPA

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Photo: Erling Svensen

Saltstraumen MPA was established in 2013. Bodø municipality markets the area actively as a global attraction and a spectacular outdoor recreation area. The area is very popular for sports fishing from land and small craft, and for sports diving. In addition, there is a good network of paths near the shore, and various sites where there is information about the cultural heritage, provided through a project on traces of human activity around Saltstraumen from the past 10 000 years.

The tidal current through Saltstraumen is recognised as the strongest in the world. The area supports a rich fauna, including sessile species such as sea anemones, molluscs, sponges and corals. The current patterns are determined by the geological structures in the area and strongly influence the fauna and flora. Saltstraumen is also an important and popular outdoor recreation area. When the protection process for Saltstraumen began in 2009, there was some local scepticism because people were unsure how their use of the intertidal zone might be affected. During the protection process, a number of general exceptions and rules on exemptions were included in the protection regulations, without affecting the purpose of the protection or the conservation value of the area. This helped in achieving a satisfactory solution.

Experience shows that well-organised, transparent processes with clear communication between stakeholders are needed to reach a common understanding of the purpose of protection and the implications of conservation measures for user interests. In many cases, good solutions can be found by making minor adjustments to the originally proposed boundaries of a protected area or by including local exceptions or the possibility of applying for exemptions. It is often possible to make adjustments of this kind while at the same time maintaining the conservation value of an area.

The establishment of no-take zones for lobster is a good example of processes based on local initiatives. Proposals are developed by local stakeholders, then considered by the municipal council and sent on to the Directorate of Fisheries. If it is difficult to reconcile conflicting interests, the matter may be postponed or the proposal can be adjusted locally. These processes have given good results.

3.2.2 A local approach to environmental impact assessment

Ensuring broad local participation is a vital part of protection processes such as those under the Nature Diversity Act. Local reference groups representing a range of different interests are often established by the county governors to provide advice and assistance during a protection process. In addition, meetings with relevant municipalities and open information meetings are held. The northernmost counties, Nordland, Troms and Finnmark also have a joint working group that provides advice to the county governors during such processes.

All proposals for protection under the Nature Diversity Act and other conservation measures must be reviewed in accordance with Norway’s official instructions for planning and management of central government programmes and projects. These include requirements for different alternatives to be assessed. Proposals for conservation measures therefore often include two or more options for delimitation of the area and for regulatory measures. In some cases, the consultation documents have included two options for the form of protection to be used.

Another key requirement is that both positive and negative impacts of a proposal must be assessed. Here, it is particularly important to ensure coordination between local and central stakeholders. To ensure that a protection process is successful, local stakeholders must be as clear as possible about how they envisage future use of the area. This information is essential for evaluating the likely effects on local employment. Employment might be likely to increase with growth in tourism or research and other activities; on the other hand, restrictions on use could hinder the development of commercial activities and result in shrinking employment.

Protection proposals for areas exceeding 250 km² in size are assessed under the Regulations of 21 June 2017 No. 854 relating to environmental impact assessment, which include a requirement to draw up a study programme.

Textbox 3.3 Protection process for the Andfjorden transect

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Photo: Eli Rinde/ Norwegian Institute for Water Research

It is vital to obtain as much information as possible on biodiversity and conservation value for all protected areas. The Andfjorden transect is a relatively large area that has been proposed as an MPA. A study programme has been drawn up as part of the environmental impact assessment. The county governors of Nordland and Troms announced the start of the protection process in 2018. In 2019, the area covered by the environmental impact assessment was extended by 304 km² on the basis of new finds. This brought the total area to 1964 km².

The Institute of Marine Research has carried out supplementary mapping as part of the impact assessment, and has found rare types of coral habitats and maerl beds. The coral reef complexes in Andfjorden may be some of the largest in the world, and are unique in Norway.

These unique coral finds have aroused a great deal of interest. However, in such a large area there will generally be a range of interests that need to be taken into consideration. In the Andfjorden transect, these include aquaculture, fisheries and defence activities. A thorough evaluation of how all these interests can be reconciled with safeguarding unique species and habitats for the future will therefore be included in the administrative procedures.

3.2.3 Private ownership rights

Proposals for marine protection do not include much privately-owned land. An MPA may include the intertidal zone up to mean high tide level, but in many cases only areas where the water depth exceeds two metres are included, or the MPA extends only to where a steep underwater slope1 starts near the shoreline. In some cases, the boundary is deeper than this. The delimitation of the landward boundary of an MPA is assessed on a case-to-case basis, and will depend on the purpose of protecting the area. In cases where a proposal for protection does include areas in private ownership, the administrative process may be more challenging. However, it is generally possible to find good solutions that make it possible to use the shoreline and intertidal zone in ways that are not in conflict with the purpose of protection. Often, these are established traditional forms of use.

3.2.4 MPAs and local commercial activities

Aquaculture, fisheries, and other activities involving harvesting of marine resources are an important consideration in protection processes, at both local and central level. Maximising sustainable value creation and employment in the Norwegian ocean industries is one of the main aims of the Norwegian Government’s ocean strategy. Many settlements along the coast are hoping that these industries will result in growth and development, although it is not always clear what kinds of use or development projects may be involved.

The operation and maintenance of existing aquaculture installations is explicitly permitted in marine protected areas. The regulations for most MPAs also include a specific provision on exemptions, so that new aquaculture activities can be permitted if they will not be contrary to the purpose of protection. In addition, aquaculture installations must be licensed under the Aquaculture Act, and aquaculture activities must be in accordance with the land-use element of the municipal master plan. The establishment of an MPA may nevertheless be perceived as limiting local self-government by restricting future sites for aquaculture installations. If local stakeholders are as specific as possible about where they envisage such activities being located, it is often possible to resolve any difficulties. This can for example be done by adjusting the boundary of an MPA, by setting aside areas around existing installations to allow for expansion, or by finding alternative areas that are suitable and can be set aside for future aquaculture activities.

Harvesting of living marine resources in accordance with the Marine Resources Act is generally permitted in MPAs. In addition, protection against harmful environmental pressures will safeguard marine ecosystem functions and harvestable resources in the area, and thus provide benefits for local fishing activities. The regulations for some MPAs prohibit fishing operations using towed gear that may come into contact with the seabed, in order to avoid damage to corals and other vulnerable biodiversity. In such cases, the need for restrictions appears to be generally accepted by local fishermen and other stakeholders.

Some regulations for MPAs include prohibitions on harvesting vegetation. Opinions on such restrictions may be mixed locally. In some cases, commercial stakeholders may have objections while the municipalities agree with a ban on harvesting. This situation may arise where harvesting is largely driven by companies that are not local and the community perceives that it derives little benefit from their activities.

Fisheries-related measures that are intended to safeguard biodiversity often apply to areas well out to sea. In many cases, only the fisheries sector will be affected by rules of this kind. The Directorate of Fisheries follows the normal regulatory procedures when introducing such measures. The authorities and the fishery organisations have been cooperating closely in this field ever since the first coral reefs received protection in 1999, and this cooperation has been successful right up to the present. Public consultations are held on all proposals for new rules. This ensures transparency and gives organisations and others with an interest in the matter an opportunity to put forward their views, for example at the annual regulatory meetings with stakeholders.

3.2.5 Sami and Kven interests

Ensuring the participation of Sami (including Sea Sami) interests is an important aspect of work on marine protection. In some areas, the interests of the Kven people may also be relevant.

Sami interests are safeguarded through the procedures for consultations between the authorities and the Sámediggi (Sami parliament) and through guidelines for work on the marine protection plan in Sami areas. The Sámediggi and other Sami organisations have considered it particularly important to ensure that protection measures do not interfere with Sami culture and economic activities, and that they safeguard the natural resource base for these activities. In response to input from the Sámediggi, the section describing the purpose of protection in new regulations for MPAs now includes conservation of the natural resource base for Sami activities. Several MPAs have been given official Sami names in addition to the Norwegian names.

3.3 International framework, obligations, goals and instruments

Norway’s work on the conservation of areas of importance for marine biodiversity is also used to implement international legal obligations and political goals that the country has undertaken. Generally, international law combines a duty to protect marine biodiversity with a right to make use of marine resources. Countries decide for themselves how to implement international law and which measures to use. Norway plays an active part in international cooperation at both global and regional level. The international legal framework and the international agenda, which is constantly evolving, therefore also influence the conservation of marine areas at national level.

3.3.1 The Law of the Sea

The 1982 UN Convention on the Law of the Sea constitutes the basic international legal framework for all maritime activity. It sets out both rights to use resources and clear duties for coastal states to protect the marine environment. Some important obligations are contained in Part XII of the Convention. Article 192 sets out the absolute obligation for states to protect and preserve the marine environment. Under Article 194 (5), states are required to take necessary steps to protect rare or fragile ecosystems and the habitats of depleted, threatened or endangered species and other forms of marine life. The parties to the Convention are as a general rule free to choose the tools and instruments they consider to be appropriate within the framework of their own ocean management regime. According to Article 197, the parties also have an obligation to cooperate on a regional basis to protect and preserve the marine environment. The Convention does not include a specific obligation to establish marine protected areas, but MPAs and other area-based conservation measures are widely applied tools that can be used to implement the general obligations of coastal states as regards conservation of the marine environment.

3.3.2 The Convention on Biological Diversity

The Convention on Biological Diversity (CBD) is one of the multilateral environmental agreements that were adopted at the UN Earth Summit in Rio de Janeiro in 1992. It is considered to be an important global instrument for the conservation and sustainable use of biodiversity. It is based on the principle that states have the right to exploit their own resources in accordance with their own environmental policies, but that they must also as far as possible and appropriate conserve ecosystems and natural habitats and maintain and take steps for the recovery of viable populations of species.

In 2020, the parties to the CBD adopted a strategic plan for biodiversity 2011–2020. This includes 20 global targets, grouped under five strategic goals, for saving biodiversity by 2020, known as the Aichi targets. Strategic goal C is to improve the status of biodiversity by safeguarding ecosystems, species and genetic diversity. Under target 11, at least 10 % of coastal and marine areas should by 2020 have been conserved through effectively and equitably managed, ecologically representative and well connected systems of protected areas and other effective area-based conservation measures. This is a global political target and not legally binding. The parties are therefore not obliged to set specific quantitative national conservation targets, but the Aichi target can to some extent function as guidance for how different countries and regions can contribute to progress. The Aichi targets provide a flexible framework for developing national targets and measures based on countries’ own ocean policies and the problems they have to deal with in their own waters. Area-based conservation measures in areas beyond national jurisdiction can also play a part in achieving the targets.

Target 11 does not merely specify a percentage for conservation areas. It is not sufficient if conservation measures are introduced globally for a certain percentage of ocean area. The parties must take action to achieve the target, and especially for ‘areas of particular importance for biodiversity and ecosystem services’. In addition, networks of protected areas must be ‘ecologically representative and well connected systems’. The target also mentions protected areas and other effective area-based conservation measures separately. In 2018, the parties to the CBD adopted criteria for the identification of other effective area-based conservation measures, which are further discussed in Chapter 4.

Strategic goal B in the Aichi system, which is to reduce the direct pressures on biodiversity and promote sustainable use, is also important. According to Aichi target 6, all fish and invertebrate stocks and aquatic plants were to be managed and harvested sustainably, legally and applying ecosystem-based approaches by 2020.

3.3.3 The Sustainable Development Goals

A number of the Sustainable Development Goals (SDGs) correspond quite closely to the Aichi targets. SDG 14 on life below water is for people to conserve and sustainably use the oceans, sea and marine resources for sustainable development. Target 14.5 is also of key importance in this context. It states that by 2020, at least 10 % of coastal and marine areas should be conserved, consistent with national and international law and based on the best available scientific information.

3.3.4 High-level Panel for a Sustainable Ocean Economy

The High-level Panel for a Sustainable Ocean Economy, or Ocean Panel, was established in 2018 by serving heads of state and government from 14 coastal states, with Norway’s prime minister and Palau’s president as the co-chairs. The goal was to build momentum towards a sustainable ocean economy globally. The countries that are members of the Ocean Panel have adopted the aim of sustainably managing 100 % of the ocean area under national jurisdiction.

The Ocean Panel’s view is that rather than hindering economic development, conservation and restoration of ecosystems and habitats in the oceans and along the coast will ensure that the oceans can continue to deliver the ecosystem services we all depend on. The scientific basis for the Panel’s work highlights both the role of intact coral reefs and mangrove forests in protecting coastal areas against storms and sea level rise, and the role of marine protected areas in conserving and restoring biodiversity, ensuring the uptake and sequestration of CO₂ and increasing the productivity of fisheries in areas adjacent to protected areas. The Ocean Panel’s main recommendation is that countries should manage 100 % of marine and coastal areas within national jurisdiction in an integrated and sustainable manner. The states that are members of the Panel have undertaken to achieve this by 2025. Sustainable ocean plans will be developed as the most important tool for this work. In the Norwegian context, the system of ocean management plans fulfils this function.

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Source Ocean Panel/Norwegian Ministry of Foreign Affairs

The Ocean Panel supports the global target of protecting 30 % of the oceans by 2030 through marine protected areas and other effective area-based conservation measures. The Panel has specified, in the same way as was done in the Aichi targets, that this global target would not be binding for individual states. National decisions on the use of ocean areas and on MPAs and other effective area-based conservation measures will depend on ecosystem status and the scope and quality of ocean management regimes, and must take into account human welfare, sustainable food from the oceans and climate change.

3.3.5 New global instrument on biodiversity in areas beyond national jurisdiction

In accordance with a UN General Assembly resolution, negotiations have been started on a new international instrument on the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction. This is intended to strengthen implementation of the provisions of the Law of the Sea on protection of the marine environment, much as the Fish Stocks Agreement does for provisions on fisheries. It will take a precautionary approach. Norway has been actively supporting the process for a new instrument, and wishes the conference of the parties for the agreement to play an important part in global ocean management.

One of the major challenges in global ocean management is to achieve cooperation and coordination between organisations representing different parts of the ocean management regime. Cooperation under the OSPAR Convention has in many ways been groundbreaking by encouraging active coordination with the North East Atlantic Fisheries Commission (NEAFC), the International Maritime Organization (IMO) and the International Seabed Authority (ISA). In the new international instrument, rules are envisaged to ensure such cooperation and coordination between existing instruments and bodies involved in ocean management and as regards procedures for the use of environmental impact assessment and area-based management measures in areas beyond national jurisdiction. Parties should also have obligations relating to the goals for conservation and sustainable use in the new instrument in all forums where they are active. Global percentage targets, such as those under the CBD, include areas beyond national jurisdiction. They can therefore also be achieved through area-based measures in the high seas. The new instrument can become an important tool for achieving such targets by facilitating decisions to implement area-based conservation measures at regional level and through sectoral bodies.

3.3.6 Regional cooperation

OSPAR

The contracting parties to the OSPAR Convention for the Protection of the Marine Environment of the North-East Atlantic are the governments of Belgium, Denmark, Finland, France, Germany, Iceland, Ireland, Luxembourg, the Netherlands, Norway, Portugal, Spain, Sweden, Switzerland, and in addition the EU. These countries have been involved in close, binding cooperation on a wide range of ocean environment issues for almost 50 years. Their general obligations under the Convention are to ‘take all possible steps to prevent and eliminate pollution and […] take the necessary measures to protect the maritime area against the adverse effects of human activities.’

Work under the OSPAR Convention is based on the ecosystem approach to management, and the OSPAR Commission can adopt legally binding decisions and recommendations and guidelines. One of OSPAR’s objectives is the establishment of an ecologically coherent and representative network of marine protected areas. The parties to the OSPAR Convention nominate protected areas in their own waters as MPAs. This does not have any implications for the status of such areas nationally. The network of MPAs also includes areas beyond national jurisdiction. The MPA network now includes more than 400 areas, including seven in areas beyond national jurisdiction.

OSPAR and the North East Atlantic Fisheries Commission (NEAFC) have entered into cooperation on area-based management measures, and have in several cases taken action in roughly the same areas. The part of the OSPAR Area beyond national jurisdiction coincides to some extent geographically with the areas where NEAFC has adopted decisions prohibiting the use of bottom gear that may damage benthic habitats such as corals. Norway has been an advocate of the close cooperation between OSPAR and NEAFC.

The Arctic Council

The Arctic Council has prepared a framework of common goals and principles both for ecosystem-based management and for the establishment of marine protected areas, which member states can use when establishing such areas in the Arctic. Various management tools for marine protection have been developed, and states can use these in national work on MPAs and networks of MPAs and other area-based management measures. The member states themselves are responsible for identifying and selecting which marine areas are to be protected. However, cooperation between states can be used to coordinate marine protection and other area-based management measures in Arctic waters. Norway is working actively to strengthen cooperation under the Arctic Council.

The North East Atlantic Fisheries Commission

NEAFC is the regional fisheries management organisation for international waters in the North East Atlantic. Its objective is to ensure the long-term conservation and optimum utilisation of the fishery resources in the Convention Area, while also taking due account of the impact of fisheries on marine ecosystems and the need to conserve marine biodiversity.

In 2004, NEAFC decided for the first time to close certain areas to bottom trawling and fishing with fixed gear in order to protect vulnerable marine ecosystems. Since then, NEAFC has at intervals adjusted the boundaries of these areas and closed new areas, in line with advice from the International Council for the Exploration of the Sea (ICES). There are currently 13 areas in the Convention Area that are closed to bottom fishing. All these management measures are part of NEAFC’s follow-up of the UN 2006 resolution on fisheries and FAO’s deep-sea fisheries guidelines for the period from 2008 onwards. These include guidelines for identifying vulnerable marine habitats (VMEs), which are similar to the CBD criteria for identifying ecologically or biologically significant marine areas (EBSAs). The UN General Assembly is to review the status of regulatory measures for the conservation of benthic habitats again in 2022.

In 2014, NEAFC adopted a recommendation on a new and improved regulatory framework for bottom fishing and the protection of vulnerable marine ecosystems. This divides the NEAFC Regulatory Area into three parts: closed areas, existing bottom fishing areas and restricted bottom fishing areas. The closed areas are areas where vulnerable marine ecosystems have been identified and ICES has therefore recommended closure. In all, 98.1 % of the Regulatory Area is closed to bottom fishing. Areas that are neither closed nor classified as existing bottom fishing areas are the restricted bottom fishing areas, where strictly regulated exploratory fishing may be permitted.

As part of the regulatory framework, VME indicators have been developed for identifying vulnerable marine ecosystems (coral and sponge habitats). If vessels come into contact with such ecosystems, they are required to stop fishing, report the incident and move at least two nautical miles away from the area in question.

The Convention on the Conservation of Antarctic Marine Living Resources (CAMLR Convention)

The CAMLR Convention regulates the management of marine living resources in the geographical area within the scope of the Antarctic Treaty and in waters south of the Antarctic Convergence. The objective of the convention is the conservation and rational use of Antarctic marine living resources. The convention defines the Antarctic marine ecosystem as the complex of relationships of Antarctic marine living resources with each other and with their physical environment. This means that an ecosystem-based management approach is needed, which seeks to maintain the natural relationships between different species, both those that are harvested and those that are dependent on species that are harvested.

Management is the responsibility of the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR). CCAMLR uses scientific data reviewed by its advisory body, the Scientific Committee, as a basis for adopting regulatory measures on matters such as authorisation to take part in fisheries, quotas, bycatches, fishing gear, fishing areas and catch seasons, and various area-based management measures, including marine protected areas. In 2009, the parties represented in CCAMLR agreed on the objective of establishing a representative network of MPAs around Antarctica. In the same year, CCAMLR established its first MPA, the South Orkney Islands southern shelf MPA, with an area of 94 000 km². The Ross Sea region MPA was established in 2016 and is the largest MPA in the world to date, with an area of 1.55 million km². The parties are continuing to work on proposals to establish MPAs around the Antarctic Peninsula, off East Antarctica and in the Weddell Sea/Kong Haakon VII Sea (off Dronning Maud Land).

Norway is actively supporting efforts to establish MPAs under CCAMLR, and is seeking to ensure that the form and substance of proposals for specific measures are such that all parties can agree on them.

The EU

The EU’s Natura 2000 programme is often referred to as the largest coordinated network of protected areas in the world. It includes protected areas established under the Habitat Directive (Directive 92/43/EEC) and the Birds Directive (Directive 2009/147/EC). Coastal and marine areas have been given high priority in this work, which is intended to protect and conserve biodiversity. MPAs are one of the types of measures that member states use to achieve ‘good environmental status’ in the marine environment under the Marine Strategy Framework Directive.

In the EU system, areas of ecological and biological importance are identified before regulatory measures are adopted, and MPAs can be established once this has been done. In this respect, MPAs established by the EU are similar to the particularly valuable and vulnerable areas in the Norwegian management plan system. After this, economic activities in the MPAs can be regulated under relevant legislation, for example by introducing measures under the EU Common Fisheries Policy. In Norway, these two processes are carried out at the same time.

The directives mentioned above have not been incorporated into the EEA Agreement, and have therefore not been implemented in Norwegian legislation. Nevertheless, Norway is cooperating closely with the EU in this area on the basis of similar instruments and tools in the Norwegian management system.

Towards the end of 2016, the EU reported that it had already achieved Achi target 11. In May 2020, the EU published its biodiversity strategy for 2030. This includes a target of protecting 30 % of the EU’s seas by 2030.