Abstract
Spatial justice concerns not merely how space is distributed and managed, but how accessible spaces and places are in relation to how they are defined and understood. This ontological and epistemological position aims to understand how people relate to space, how they create place and how spaces and places relate to identity. From legal and spatial planning disciplines, spatial justice considers the relationship between space and law. In this research we use spatial justice as an ontological and methodological position to explore spatial imaginaries at the coast. Using a detailed case study of the development of new fishing byelaws affecting the Wye and Usk rivers in Wales, we explore how legislative requirements related to environmental regulation can collide with lived experience of coastal communities and how a spatial justice lens allows for deeper understanding of why coastal regulatory conflicts can occur. We explore the implications of applying spatial justice to coastal space and coastal regulatory decisions before presenting detailed decision process mapping and narrative of the byelaw’s development. Our findings attest to the need to rethink the relationship between laws and values and further to explore ways of building capacity within coastal regulators to manage regulatory processes with increased reflexivity, deliberation and partnership forms of engagement to enable enhanced embodiment of the diverse values in coastal areas.
Introduction
In the UK, coasts are subject to numerous regulatory mechanisms designed to protect this uniquely liminal space, where land and water meet and where values collide regarding its purpose and status. The coast provides a unique spatial arena where established and emerging management frameworks collide and overlap. These challenge each other’s practices and the accessible nature of coasts, as opposed to marine spaces mean that stakeholder experiences of terrestrial regulatory practices, for example experience of local development plan and planning permission consultation practices and planning committee decision-making, can overshadow the establishment of newer processes designed to manage the “watery” side of the coast. In the UK, terrestrial and marine planning and consenting regimes have different antecedents, both of which have developed incrementally within different regulatory and legal frameworks. For practitioners and researchers these differences may be obvious, and the result of spatial management in different types of environments, but these differences may be less clear to members of the public whose engagement with them is place-based and not necessarily cognisant of complex legal histories.
This paper focuses on fishing byelaws as applied to Welsh inshore waters and tidal rivers, designed to conserve the coastal environment and manage inshore fishing activity. Made by regulatory public authorities, the byelaw process has been developed through evolving practices and incorporate a wide range of values from multiple sources and stakeholders. Our research explores the development of fishing byelaws for the Wye and Usk rivers in Wales. The byelaws were a simple update to existing protections and therefore were not envisaged to be controversial. The revised byelaws attracted opposition from local anglers which leads to this case providing opportunity to explore how place-based opposition from specific minority interest groups provides a lens through which to explore wider publicness and accessibility considerations related to the handling of byelaw drafting and decision-making process. These considerations relate to Aarhus Convention provisions of public access to information, participation in decision-making and access to justice which byelaws, as an “environmental matter” are required to maintain. 1
The key contribution that this article makes is to introduce the merits of applying a spatial justice lens to considerations of public environmental decision-making. For decision-making in coastal and marine environments to adhere to the legal requirements for public accessibility and justice, all spatial regulatory decision-making needs to be clearly explained and practised in a publicly acceptable manner. This requires reflexivity from regulatory decision-makers to ensure that their values, and the values of all impacted stakeholders are identified, codified and considered within the processes and outcomes of their decision-making. To support this argument, the remainder of the article is structured as follows. Section “Conceptual Framing: Spatial Justice and the Byelaw ‘Lawscape’” introduces our conceptual foundations. We provide a brief overview of fishing byelaws in the UK context before outlining our approach to spatial justice. The concept of the “lawscape” is then introduced and its relevance and utility explained. Section “A Spatial Justice Methodology for Exploring Coastal Regulation” details our methodological approach, including how we map decision processes and identify key “entry points” through which values enter regulatory systems. Section “Findings: Identifying Decisions, Decisions Within Decisions, and Externalities” presents our findings, identifying how the byelaw decision-making process was undertaken, how values were articulated within this and how external legal and policy contexts shaped the practice. Section “Discussion: Barriers to Value Inclusion as Barriers to Spatial Justice?” discusses these findings through a spatial justice lens and reflects on barriers to value inclusion. Section “Conclusion and Wider Application” draws out wider implications for coastal governance and suggests opportunities for more reflexive and collaborative approaches to regulation.
Conceptual Framing: Spatial Justice and the Byelaw “Lawscape”
Before introducing the Wye and Usk byelaws we first introduce byelaws, in the Welsh/UK context, before exploring the spatial justice literature, from both legal and spatial planning disciplinary perspectives. We explore the term “lawscape” as a concept which draws together the physical and the legal into a socio-spatial concept within which space is co-created and mediated often at several spatial scales. In this section we articulate the core conceptual differences between spatial and social justice and demonstrate the value of “spatialising” justice in environmental and place-based regulation (Section “Spatialising Justice”). The Section concludes with confirmation that a spatial justice framing provides a more integrated view of recognitional, procedural and distributive dimensions (more commonly articulated within social justice) through which to explore the case study throughout the remaining sections of the article.
A Brief Introduction to Byelaws
Byelaws allow local authorities, including local councils and other regulatory bodies, to create and enforce laws within a limited geographic area. 2 Byelaws are inherently place-based, applying to specific locations for specifically locally defined purposes. While local councils in England and Wales are the main byelaw making authorities, powers to make, enforce and revoke byelaws also extend to the Environment Agency (EA) (England) and Natural Resources Body for Wales (NRW) (Wales) in relation to managing inshore fishing activities. For the purposes of this research, we focus on the use of byelaws by NRW and EA as enabled by the Water Resources Act 1991. Schedule 25 of the Water Resources Act 1991 sets out byelaw making powers in relation to the use of inland waters (Sch 25, para 1), the use of navigable waters (Sch 25, para 2), control of certain forms of pollution (Sch 25, para 4), flood defence and drainage (Sch 25, para 5) and fishing functions (Sch 25, para 6). Under this Act, NRW and EA have the power “to make byelaws generally for the purposes of. . . (a) the better execution of the Salmon and Freshwater Fisheries Act 1975”. 3 Aligned with the making of terrestrial byelaws under the Byelaws (Alternative Procedure) (England) Regulations 2016, byelaw making authorities are required to prepare drafts of any proposed byelaws and undertake a regulatory assessment to ensure that the byelaw is proportionate. 4 Consultation is also required. 5 Byelaw making provisions are nested within the wider legislative landscape of England and Wales and as such any proposed byelaw must adhere to legal requirements of national legislation such as the Equalities Act 2010 and, in Wales, the Wellbeing of Future Generations Act 2015.
Essentially byelaws provide local authorities and other public bodies to make specific laws related to specific functions within local areas. This allows for a local nuance to the regulation of space and resources, and a timely process within which to address matters relevant to local governance.
Spatialising Justice
Several, and growing, determiners have been put before “justice” and applied to considerations of fairness related to environmental impacts and land uses. Social-, environmental-, climate-, intergeneration- and spatial justice have further been given different nuance by writers within urban studies, spatial planning, and socio-legal and legal geography scholarship. 6 Spatial justice itself has multiple conceptualisations, distinct in their relationship to theory, politics and normativity. 7 In this research spatial justice is used in its broadest sense as an ontological socio-spatial dialectic 8 with conceptual roots in the spatial theory of Lefebvre 9 and the relational theory of space and time originating from Leibniz. 10 This conceptualisation abstains from normativity related to climate adaptation outcomes and focuses, instead, on relational understandings of spatiality and it’s intertwining with social processes. 11 The emphasis on justice-in-space is a minimum definition for spatial justice. 12 Where the “space” of “spatial justice” is limited to its materialist conception, spatial justice becomes limited to considerations of fair and unfair distribution of resources, access to place, and other matters of territorial inequality and inherently normative. 13 Instead, taking space to be relational and socially produced aligns with broader conceptualisations which “elevate space from a mere matter of geographic scale or a passive substratum” 14 The spatial justice used in this paper is about more than fair distribution, use and access to spaces or places. It is about our relationship with space, how it is given meaning, and therefore how it is produced.
To understand justice and injustice requires an understanding of the interplay between the physical, the conceptual and the experiential. 15 Space is not a void to be filled, but rather a constant becoming imbued with meaning by its actors and their underlying beliefs, values and experiences of the material world. As an ontological position spatial justice seeks to explore three challenges of thinking about space, justice and society: (1) the spatial dimension to (in)justice, (2) the false dichotomy between procedural and distributive justice, and (3) that justice has tended to focus on the city as its geographical sphere. 16 The first of these challenges are unpacked in the following Sections “Entering the Lawscape” and “Justice and Fairness: Process, Distribution and Recognition”, with Section “Entering the Lawscape” exploring how laws contribute to the spatial and temporal dimensions of (in)justice (challenge 1) and Section “Justice and Fairness: Process, Distribution and Recognition” exploring a more integrated view of what constitutes justice (challenge (2)). The third challenge is addressed in Section “A Spatial Justice Methodology for Exploring Coastal Regulation”, in which the byelaw case study is introduces as a distinctly non-urban locale in which to apply spatial justice.
Entering the Lawscape
In practice law, and specifically how it is applied in particular places, is one of the most pervasive drivers of spatial (in)justice. Local byelaws, the focus of this article, are a case in point, but their application needs to be understood in the context of other legal instruments operating over multiple spatial and temporal scales. We use legal geography to address this due to the disciple’s explicit focus on the inextricable relationship between law and space. Along with the socio-cultural systems, space influences, and is influenced, and indeed defined by, written law. 17 This relationship is the “lawscape”. The legal-geographic literature provides several conceptualisations of lawscapes which can be broadly categorised as instrumental (methodological) or theoretical (ontological). Instrumental lawscapes provide frameworks through which to explore the plethora of ways that law shapes and is shaped by space. Regulatory decisions do not take place solely within a local legal framework “but rather within overlapping and sometimes contradictory local, national, transnational, and international legal spaces”. 18 Current laws and legal instruments are also influenced by both legislation, and case law, extending the lawscape temporally as well as spatially. 19 This instrumental use of lawscapes has been used within coastal research as a lens which “both illustrates and takes account of the complexity of coastal climate change adaptation”, 20 framing how coastal adaptation is framed by multi-scaled policies and laws, with multiple and diverse actors, landowners and cultural understandings exerting their productive force within the governance framework. 21 Through elucidating the lawscape in this way, normative claims can utilise this process literacy to exert power in the system and attempt to bring about certain outcomes. 22 At the same time, normative claims about who should be included in these decision-making processes, and how the process should be operated, can also make use of the process literacy gained through demystifying the lawscape. 23
Thinking of lawscapes in more conceptual terms adds important socio-cultural elements to the task of outlining the legislative framework for a specific decision or framework. The conceptualisation of lawscape by Philippopoulos-Mihalopoulos extends the term from descriptive to socio-critical use. 24 In claiming that “law is entrenched in everything that takes place in geographical space (to wit, everything)”, 25 Philoppopoulos-Mihalopoulos extends our thinking of law from being an abstract use of text and procedure layered on to spatial entities and fully incorporates the social production of space into legal theory. Textual law represents space, but in doing so translates reality into legal language, 26 but as a representation of space, it cannot exist without material and experiential space. At the same time, “space without law is a fantasy of pure possibility, some utopia where everything is settled because there is no difference, therefore no conflict”. 27 It is the constant conditioning of law and space by each other that gives this theoretic version of the lawscape so much power, and so much possibility. Spatially grounded law concerns the relationship between (legal) bodies in space. No two (legal) bodies can occupy the same space and therefore law is necessarily a struggle for place. 28 For Philoppopoulos-Mihalopoulos this struggle is a conflict; an aggressive act between bodies, with the use of atmospherics as a weapon to convince others that the way things operate is “just the way they are”: a settled matter which cannot be altered. 29 When combined with wider relational, co-productive, spatial thinking this struggle becomes more nuanced, softer, and more pragmatic. Bodies cannot occupy the same space, but this spatial positioning can be agreed through collaboration and negotiation. 30
It is in identifying the atmospherics of a situation that spatial justice can be used to explore injustice and work towards more equitable outcomes. Atmospherics can include accepted acknowledgement that some bodies – individuals, groups, companies, positions – “weigh more than others”. 31 Through its interactions with the ideological and economic processes rooted in colonialism and capitalism law generates and perpetuates injustices. 32 In other words, legal frameworks, rooted in wider cultural structures, give power to some actors and activities over others. Working in the lawscape allows for these power relations to be both explored and exploited through re-examining the everyday and challenging assumptions about doing things in the way that they have always been done.
Justice and Fairness: Process, Distribution, and Recognition
In spatialising Rawls, Soja added a “geographical dimension to distributive justice”. 33 With distributive justice concerned with fair outcomes from decision-making processes, procedural justice is also needed to ensure that the processes leading to these outcomes are fair and transparent. 34 Considering distributive and procedural justice to be part of the same, overarching process, within a spatial justice ontology, allows for integrated understanding of the pathways to justice which also brings in important consideration of wider socio-spatial contexts and the necessity to meaningfully include stakeholders in decision-making processes. 35 Where recognitional justice is often added as a third pillar of justice in addition to distributive and procedural justice, by collapsing the dichotomy between process and outcome, spatial justice provides recognition of wider social processes and stakeholder power relations as integral to justice. As law is inherently spatial and cannot be decoupled from spatial practices, when applied in this way law is understood as a codification of existing spatial and socio-cultural practices. This recognitional element of spatial justice understands that “spatial injustices are produced and reproduced by the existing institutions and norms within specific geographic areas across scales reflecting inequalities within and between locales”. 36 Within the case study which follows, the values conflicts relate to existing institutional norms, through the practice of byelaw drafting, and the specific spatial practices of the minority-interest recreational angler community. Thus, the spatial justice conceptualisation provides a lens through which to explore perceived in(justices) within a non-urban environment, and the case study that follows adds a valuable contribution to both the legal geographic and marine regulation literature.
A Spatial Justice Methodology for Exploring Coastal Regulation
Regulation and planning – environmental, spatial, coastal – are about action; about making decisions about development, land or resources uses. It is political and never a neutral act. 37 Using spatial justice as a methodology, provides a lens through which to illuminate these political choices, and their multi-scale geographically unequal outcomes. 38 Spatial justice is, in other words, “an effective analytical tool to explain and understand how place, its physical realities and structural conditions, its socially valued resource allocation, its influences confining or enhancing opportunities for people, and its histories play an essential role in how social (in)justices can be exacerbated or improved under just transition”. 39 In addition, spatial justice allows for internal and external framework coherence to be considered when designing and implementing place-based adaptive solutions. 40
In practical terms regulatory “decision” is simply defined as the “material” end point at which a determination is made. This could include granting a planning consent, the publication of a spatial or sectoral plan, the implementation of a new management measure. In other words, the point at which a change is made which made a physical difference to how an area of land or a resource is used or accessed. In the case explored in this paper it is the confirmation of byelaws related to salmon and sea trout catch restrictions on the rivers Wye and Usk, explored below. The final decision for a regulatory process is, however, not the only point at which choices are made. Regulatory decisions do not occur at a single point in time, but rather they come at the end of a “decision-making process” within which there are numerous decision points. These second-tier decisions can be called “choices” and include considerations of the process used to make the material determination, what data is needed to assess potential impact and, crucially, the inclusion of which stakeholder values to seek and include in the process.
It is in both the final material decision, and these second-tier decisions that spatial justice considerations can be made. We refer to these as “entry points” which operate within decision-making processes and are where values can be expressed to influences the choices made both during the process, and the final decision, both specifically within the remit of the process itself, and external to it. Entry points have the potential to exert strong productive power within social space and find multiple expressions within a decision-making process. A decision could display entry points such as the inclusion of stakeholder values through meaningful consultation (within the process) and the application of wider atmospherics through legal processes (external to the process). Analysing a given decision by exploring entry points can identify opportunities for more fundamental change. Examples of entry points therefore include legislative or policy change (as an external entry point), re-drafting information or altering the ways diverse values are elaborated and presented within decision-making documentation or redefining what “counts” as evidence within the decision. They could also include capacity building within regulatory bodies to allow for more awareness of diverse values within stakeholder communities and how they can be brought into decision-making to increase spatial justice. Along with the identification of entry points within regulatory processes, we also include barriers within our analytical framework. This provides pragmatism to any resultant recommendations and guards against the identification of utopian aims.
Under this methodology, a decision “case study” provides an opportunity to identify different types of intrinsic, instrumental and relational values 41 expressed within it. Spatial planning most commonly displays consideration of the intrinsic (value in and of itself) and instrumental (use value) of environmental resources. Any values expressed as intrinsic can also be understood, within this framework, as being influenced by the relational values and underlying ethical positions of the valuer. Through the spatial justice lens, laws can be understood as providing materiality to intrinsic values: protection of species through the application of law provides an example of how atmospherics are formed. In this way atmospherics are both the accepted practices within a process and form the exogenous influences for the process. In the case study we attempt to delineate the typology of the values identified, however the important point here is to understand that value expressions can fall into these categories or indeed be expressions of multiple types of value. Values related to the protection of species, for example, can be considered as intrinsic and also expressions instrumental for broader ecosystem health or relational for intra and inter-generational values.
Applying this methodology to coastal regulation provides a more-than-physical lens through which to explore the multiple, often contradictory, imaginaries of coasts. As a liminal space with contested and fluid meanings and assemblages, 42 it is challenging to meaningfully consider distributive and recognitional justice within coastal geographies. Multiple terrestrial and marine communities – both human and non-human – overlap spatially and temporally, and the addition of intertidal cycles requires more abstract thinking than the more geographically straight-forward land-use planning paradigms which govern urban developments in which boundaries are less fluid. Working within spatio-legal theory provides an opportunity to explore how laws, with a longer lineage of terrestrial application, affect coastal spaces and how, in turn, coastal fluidity challenges legal frameworks more suited to rigidly definable spaces.
Application and Methods
To explore the merits of applying spatial justice to coastal regulation we purposefully selected a case study “decision” on which to focus our exploration of “process”. In this section we set the overarching context of the case study before providing details in Section “Findings: Identifying Decisions, Decisions Within Decisions, and Externalities” below.
The case study “decision” was the “Rivers Wye and Usk Salmon and Sea Trout Byelaws 2021”. This decision involved the determination of three “sets” of byelaws within one decision-making process, 43 henceforth referred to as “the byelaws”. The River Wye is located on along the Welsh/English border in the southern UK with its mouth located in Chepstow where it feeds into the River Severn. The River Usk is located entirely within Wales and joins the River Severn at Newport (see Figure 1). The byelaws set restrictions on what can be caught by recreational rod and line anglers in the above rivers and when, and by what methods, and are summarised as follows: “statutory catch-and-release (C&R) fishing for all salmon and sea trout caught by rod on the River Wye (in Wales) and on the River Usk for all salmon throughout the season, and for any sea trout caught before the 1st May”. 44 This decision scenario relates to the proposed extension of existing byelaw provisions for an additional ten years, with clauses added from wider Welsh national recreational angling byelaw provisions to align local arrangements with national protections.
Case study location.
Using publicly accessible data from regulatory portals, and Welsh Government websites, the decision process was mapped using Miro which allowed for easy expansion of the process maps as additional source material was reviewed. Our data collection was deliberately limited to publicly available documents. As these provide the “public record” of the decision process, we wanted to establish the extent to which values could be identified within this record as this provides key findings related to the application of the Aarhus “access to information” provision. 45 We discuss the opportunity to enhance this method further through a series of “validation” interviews with key stakeholders in Section “Conclusion and Wider Application”.
Once the decision was mapped, the points at which consultation with stakeholders was undertaken were identified, along with the key institutions and their roles within the decision. This was undertaken to understand where external stakeholder values could be seen as having an opportunity for inclusion in the process. The map was also annotated with details of wider contextual processes which formed the lawscape for this case study. The map was then used to create the narrative description and discussion presented below.
Findings: Identifying Decisions, Decisions Within Decisions, and Externalities
River Wye and Usk Decision-Making Process
The final process map for the Wye and Usk byelaw decision-making process is presented in Figure 2. Key actors identified within the process, and their roles within the case study context are presented in Table 1.
Wye and Usk Byelaws decision mapping.
Key Case Study Actors and Their Role in Decision-Making Process.
The byelaws were proposed in 2021 and subjected to a consultation exercise. Following this exercise, the draft byelaws were confirmed, and their provisions became enforceable in 2022. On reviewing consultation comments for the proposed byelaws, it became evident that the proposing of these legal instruments came at the end of a wider regulatory process related to the rules for salmon and sea trout angling across the whole of Wales. This is explored below.
The Context of Wider Decisions
While the main technical cases for the proposed 2021 byelaws were made by NRW, it is within the consultation responses collated by the Environment Agency that the first indication of this decision being more complex than first appears is found. Three consultation responses are published on the Environment Agency’s consultation website, 46 and these provide a rather confusing account of the objection to the implementation of the byelaws, which extend existing recreational fishing restrictions for further ten years. One respondent stated that while they agree that “salmon stocks on the Wye have declined within recent years and agree[s] with the salmon and sea trout assessment”, they do not support the “proposed catch and release fishing byelaw. . . [because] it denies a traditional livelihood and will not cure the root problems causing decline in fish numbers” (Response 1038105144). A second respondent stated that while they agree that salmon stocks have declined in the River Wye, “If Catch & Release alone is hoped to solve the problem the unique wye [sic] salmon family will die out and the river as a habit will also die” (Response 1029187115). A third respondent was critical of mandatory catch and release, stating that “there are of course many reasons why salmon should be released but a blanket ban destroys the whole ethos of salmon fishing” (Response 498997656). These published objections appear as the only public comments made in relation to the associated Welsh decision. It is therefore surprising, based on these documents, that the decision should result in a local inquiry, as explored below.
It should be noted that the 2021 byelaws do not, in themselves, mandate catch and release practices but rather bring the existing Wye and Usk written byelaws into specific alignment with byelaws drafted to apply to all Welsh salmon rivers. It was through the Wales Rod and Line (Salmon and Sea Trout) Byelaws 2017, also known as the “All Wales” byelaws, that mandatory limitations on rod and line fishing throughout Wales, including catch and release (CAR) practices for all salmon at all times, were introduced. Mandatory CAR was also introduced for sea trout through these byelaws, between 1 January and 1 May each calendar year. The Cross Border Rivers Rod and Line (Salmon and Sea Trout) (Wales) Byelaws 2017 set the same mandatory limitations on any cross-border rivers, including the rivers Wye and Dee. In the context of the All Wales byelaws, the 2021 decision our case study focuses on can be interpreted as correcting a contradiction within local statute whereby the restrictions in place on recreational fishing practices in the Wye and Usk are split across two different byelaws leading to the potential for confusion on what was and was not legal.
The objections raised to the EA consultation therefore evidence a misunderstanding or miscommunication regarding the purpose and remit of the Wye and Usk byelaws. This evidence fostered the need to consider the wider context and externalities related to this case and resulted in a re-scoping of the decision-making process to include the “All Wales” byelaws stated above. 47
Referring to the decision map in Figure 2, the Wye and Usk byelaw decision-making process is more accurately defined as commencing with the drafting of the All Wales and Cross Borders byelaws due to the geographic coverage of these and their interaction with the later river-specific byelaws. Once proposed by NRW, six months of consultation was undertaken for the All Wales and Cross Border byelaws related to the introduction of catch limits for salmon and sea trout for all Welsh rivers. NRW state that fifty local placed-based meetings were held with Local Fisheries Groups in development of the byelaws. In addition, a three-month public consultation was held for the All Wales byelaws along with ten local meetings. 48 It appears from the local inquiry notification sent by the Cabinet Secretary that “numerous objections” were submitted for the byelaw proposals, 49 however this reference is not supported within the documentation by actual numbers of objections to the formal consultation process. It is therefore assumed that the objections were raised via other local democratic processes such as in constituency surgeries.
The Inspectors report for the local inquiry states that the inquiry revolved around the one primary issue of necessity, proportionality and reasonableness of the proposed Byelaws. 50 Objections discussed in the Inquiry fell, essentially, into two categories: (1) The proposals would not bring about conservation objectives, (2) A “philosophical point” regarding the proposed mandating of catch and release. 51
In the Inquiry the validity of NRW and objectors’ claims were directly opposed. NRW’s submitted evidence was stated as being considerable and detailed, including various main, rebuttal and supplementary proofs of evidence . . . and relevant peer-reviewed academic papers”. 52 The objectors were perceived to have shown a “general reluctance to accept the expert scientific evidence . . . [and] a great deal of suspicion and scepticism”. 53 Evidence put forward by the objectors was perceived as “simply the assertion of opinion, and anecdotal evidence”. 54
The Inquiry Report states the view that “the heart of the objectors’ criticism of NRW’s community engagement was that NRW had not agreed with what they had told it to do, and that this therefore meant that NRW had not listened”. 55 An example is given of one objector who “suggested, erroneously, that a public body was under some form of obligation to agree with the majority of responses it received in making its decision (as though consultation were a form of popularity contest”. 56
The All Wales Byelaws were finally confirmed in early 2020 after the Inspector concluded that the byelaws were necessary, proportionate and reasonable. The English version of the Cross Border byelaws was confirmed by The Environment Agency in June 2020. These decisions provided the legal context within which the Wye and Usk byelaws were proposed, and subsequently made, following a standard consultation exercise and supported by a detailed regulatory assessment in the form of a technical case. 57
Externalities: Defining the Lawscape
An additional layer of contextualisation is necessary in order to understand where different values observed within the case study decision have originated from, and why the decision-making process was undertaken in the way that it was. This contextualisation required identifying both the purpose of the byelaws and the legislative landscape within which the decision was made, which is summarised in Table 2.
Wye and Usk Byelaw Legislative Lawscape.
What is surprising here is the amount of legislation, plans and policies related to what appear, on the surface, to be rather limited control mechanisms for fisheries activities. In other words, byelaws appear, upon this contextualising reflection, to carry considerably more weight than their provisions express. Returning to the opening introduction to byelaws, it is here that the use of byelaws as legal instruments to regulate local areas of environments contends with the numerous national policy and legal requirements within which local areas are nested. NRW acknowledged that their conservation objectives could be reached through voluntary CAR provisions which would align with the recreational anglers proposed solution. 68 The decision to require mandatory compliance instead appears to align more closely with wider NRW principles related to making evidence-based decisions. Both NRW and the local anglers agree with the need to protect Atlantic salmon, so the values expressed by NRW in this case appear to relate more to procedural law and the principles of evidence-based decision making at the expense of local sentiment. The key point here is the perceived negative view of the anglers from NRW through this reliance on evidence-based decision making over voluntary practices.
Identifying Values: A Foundation for a Spatial Justice Critique
As demonstrated on the decision timeline in Figure 2, public consultation was undertaken for the Wye and Usk byelaws, both in Wales and, for the Wye, in England. The values expressed throughout the consultations, for both the Wye and Usk byelaws, and the contextualising All Wales byelaws and Salmon and Sea Trout Plan of Action, can be summarised as follows:
Scientific/technical view of species decline from stock assessments, water quality, habitat loss etc.;
River as system which includes those who interact with it (fishers as part of the management of that system through being “eyes of the ground” or local custodians/stewards);
Social value of fishing as activity (livelihood, way of life, etc.);
Sustainability and sustainable development as the broad contextual background;
Intra- and inter-generational equity in relation to future uses of the river for recreational angling;
The precautionary principle and its use in evidence-based decision making.
The technical case submitted in support of the byelaws, and inquiry documents, focus on the scientific evidence, and provide a justification of why byelaws are necessarily based on “the science” while not impacting social value in an unmanageable way. The local inquiry appears to demonstrate the expression of values related to the river being a system which includes fishers, with fishers fulfilling a stewardship role. These values are able to be expressed in the decision process but appear to have been considered as secondary to the scientific view based on established data sources and standard methodologies, rather than lived experience of river users. Through the lens of spatial justice these established practices appear as atmospherics within which lay values and non-technical beliefs are perceived as less supportive of decisions than evidence-based scientific methods. While an alternative view could also be stated here of the importance of making evidence-based, defendable, decisions, the wider challenge here is that by using technical language as the justification for action, non-technical stakeholder values are diminished. It is not possible to ascertain the reasoning here; however this does point to the consideration of whether it is possible to meet value-needs related to socio-environmental matters within current decision-making processes. Enhanced stakeholder engagement, more widespread and creative, would facilitate additional value gathering, shared understanding and knowledge co-creation. However the burden of this on public regulators would need to be assessed against the potential benefit on a case-by-case basis.
Discussion: Barriers to Value Inclusion as Barriers to Spatial Justice?
The main perceived barrier for the inclusion of a more diverse array of values in this decision-making process, from the perspective of objectors, was that the byelaws appeared to have been finalised prior to consultation, with objectors accusing NRW of having “already made up [their] minds”. 69 The proposed byelaws were justified by NRW as “the best option for protecting the vulnerable salmon and sea trout stocks on the Usk and Wye, while also allowing fishing to continue maintaining much of the socioeconomic benefits”. 70 This perceived barrier demonstrates a lack of clarity within the objector community regarding how byelaws are drafted and made, and the role of evidence within decision-making. The nature of the byelaw decision-making process means that, unlike, for example, a marine development application, the proposer for the change is the statutory nature conservation body or regulator rather than a private applicant. In other words, the decision is pro-active on the part of the regulator, rather than reactive from a consenting perspective. This means that NRW came to the proposed decision, including the need for change, prior to consultation or engagement with stakeholders, based on technical evidence. While the byelaws were created through engagement with local fishing groups, the action situation was initiated by the decision-maker, based on reported science and Welsh Government and UK environmental targets and commitments. In this way the decision could be viewed as being imposed on stakeholders rather than, for example in the case of a planning consent, the decision coming at the end of a process which includes consultation without pre-determination. In this case, it is difficult to gain consensus on many spatial justice issues given decision-makers efforts to engage with all stakeholders within the requirements and processes of byelaw creation. To overcome the challenges this case suggests more innovative/non-traditional approaches to communication, engagement and partnership would be required which would deviate from standard byelaw drafting procedures.
Based on legal requirements and agreed targets for salmon population recovery, NRW can be seen as operating in a space with limited room to manoeuvre in relation to the requirements to impose measures to protect salmon: powerful atmospherics set the agenda. The byelaw decision-making process occurs in a “legally congested” wider lawscape. While this is certainly evidenced in this case study, this conclusion requires a perspective of laws as burdensome and restrictive. Another perspective here would be that the laws designated to protect salmon species demonstrate widely held, or at least democratically accountable, values that salmon merit legal protection and thus these atmospherics prevent harm to protected species: We value salmon therefore we legally protect them. Regardless of ones’ views on the role of law in resource management decision-making, byelaws are a tool through which multiple legal requirements find expression. Decision-makers are required to align their thinking with these legal instruments, and in addition ensure their determinations align with policy requirements. What does this mean for justice?
Considering this case study using the forms of justice – distributional, procedural and justice as recognition – provides a support for the use of spatial justice. The final decision could be considered as distributionally just because it does not privilege any individual stakeholders/anglers over others and increases the likelihood of the fish being there for future generations. However, the fact that the byelaws limit actions to all equally does not adequately address the heart of the matter, which is based on how river resources – salmon and sea trout – should be managed. Likewise, the byelaws decisions followed due process, as set out in Welsh and UK statute, which included statutory consultation, and therefore can be considered procedurally just. Indeed, the decisions were also justified on a legal grounding and evidenced as necessary with reference to established laws, policies and procedures. And yet, given the controversy caused by the proposed byelaws, and the “philosophical point” raised in the All Wales byelaw inquiry related to the stewardship role local anglers believed they had for salmon and sea trout, evidenced through voluntary code for catch and release practices, the perception remains by some actors, namely the local anglers, that distributional fairness and procedural compliance were not satisfactorily practiced. The collapsing of “process” and “outcome” when considering fairness within spatial justice provides a more integrated lens through which to consider the “philosophical point” raised by objectors. Operating within the existing lawscape, with its existing institutions and norms, provided the arena within which the stewardship role of NRW had legislative designation. Splitting justice concerns into process and outcome components limits the ability for critique of established processes within wider contextual landscapes, to a conclusion which would satisfy all interested parties.
In this example, “best practice” decision-making processes and past precedence were utilised to improve salmon population numbers. By utilising scientifically supported technical measures, within an “evidence-based decision process”, to implement a statutory restriction on landing salmon and sea trout, anglers’ autonomy to choose to implement CAR practices have been challenged. This has consequences for spatial justice as it diminishes the value placed on this community to do the right thing. For the anglers, the mandate was not required due to their best practice, and the byelaw restrictions were therefore perceived as a lack of trust in the community to act as they stated they would. Anglers appeared to feel removed from the process, with their evidence and values demerited as “non-scientific”. For the All Wales byelaws, there appears some evidence of an attempt to explain decision-making to stakeholders through the “Compiled Note on Responses to Representations”. 71 This document does state that NRW “valued all comments received” and that the decision-maker “carefully reviewed and responded to all those who provided contact details”. 72 Generic comments from respondents are addressed through frequently asked questions and while this does address the comments, it bases its justification solely on scientific data, with reference to the legal framework.
Using a spatial justice lens here allows for critique of the process as being partially exclusionary to recreational anglers’ values and, going further, applying the production of space thesis provides an example of these stakeholders being limited in engaging in spatial production. Of course, the extent to which this is perceived depends on wider value judgements and it is challenging to separate objector dissatisfaction with the outcome of the decision-process with the treatment of their comments within it. However, in a spatial production sense (their ability to define the use of their space) the objectors power to manage their own activity, and also to shape the social space of the river, is partially diminished. The merit of using a spatial justice lens for this critique, rather than considering forms of justice within a process individually, is that it provides a holistic exploration of a process and does not allow for a conclusion in which the presence of one form of justice – for example distributive justice – permits the absence of the others. In other words, spatial justice does not permit the ends to justify the means, or vice versa. A spatially just decision would therefore be challenging for decision-makers to make in cases of conflicting values as it implies the need to go above and beyond existing consultation practices. Pragmatically a balance is needed between maintaining “ideal” spatial justice and making spatial decisions. Spatial justice provides an opportunity to consider where processes could be improved to work towards this “ideal”. Given the wider context of the lawscape within which these types of decisions are made, the “ideal” may simply not be possible within public service, and indeed the effort required for comprehensive consultation which results in total agreement would potentially result in wider (in)justices through resource requirements than current “non-idealised” processes. There are a growing number of examples of enhanced engagement, such as citizen science approaches which provide an opportunity to extend evidence-gathering to include local communities in shared stewardship of resources and through doing so build mutual trust and confidence between opposing parties. 73
Relating this case back to the literature reviewed in Section “Conceptual Framing: Spatial Justice and the Byelaw ‘Lawscape’”, our findings offer a clear example of the utility of applying a spatial justice lens to the consideration of contested values within coastal, marine and estuarine environments. This adds to the literature related to marine stakeholder engagement generally, and to the specific challenges of encapsulating the values held by recreational and commercial fisheries stakeholders. 74 These marine and riverine users can be considered within the wider category of stakeholders who hold Indigenous and Local Knowledge (ILK). 75 Integrating this valuable knowledge into marine and coastal management decision-making provides both spatial justice and ecosystem benefits. 76
Conclusion and Wider Application
The spatial justice methodological approach provides conceptually grounded toolkit for the analysis of spatial regulatory decisions. Due to the evolving, and less established, nature of marine decision-making in the UK, and across the world, this methodological approach allows for consideration of both the explicit and implicit value judgements which can be perceived as intentionally – and unintentionally – privileged within marine and coastal governance, where the more established terrestrial regime overlaps with the less mature marine management framework. As coastal regulation practices become increasingly established, our approach provides a critical opportunity to take stock of coastal decision-making processes to increase accessibility for stakeholders to the decisions which impact them.
For the terrestrial planning practices applied to coastal areas, spatial justice provides a lens through which to explore and challenge the established processes, institutions and overarching atmospherics within which decisions are made. The increased amount of case law related to terrestrial decisions exerts a stronger precedence than the relatively young practices of marine and coastal management. But precedent can be overturned, and future decisions do not necessarily need to follow past examples. The understanding of the relationship between law and space that spatial justice brings allows for value judgements to be debated and existing spatial uses challenged. There is power here, and that power is democratised. The application of the concept of lawscapes allows for values and power-relations to be foregrounded within consideration of spatial management decision-making. This approach therefore aids in attempts to ensure that decision-making remains just, fair and effective at managing conflicting interests and uses of both marine and terrestrial space. Furthermore, this allows the underlying values hidden within representations, practice and policy to be unearthed, examined and, where necessary, challenged.
In expanding the definition of justice as recognition away from one of “three pillars” of just processes to instead focus on understanding how justice and injustices are (re)produced within and by existing institutions and spatial norms, spatial justice asserts the need to take a holistic view towards just decision-making. This is, on the one hand, complex and not easily stratified into neat components of study. We cannot judge decisions on their ends or means alone. But on the other hand, this approach feels more human, more embodied in our lived experience of justice and fairness, and more able to accommodate indigenous and local knowledge as well as scientific evidence.
The case study in this paper demonstrates the linkages between spatial justice and placemaking: when stakeholders feel excluded from spatial regulatory decisions those same stakeholders are limited in their ability to shape the places they inhabit. Spatial justice provides an approach in which different regulatory regimes exist within one larger lawscape, collapsing the binary distinction between marine and terrestrial into a one spatial just “place”, which better aligns with local community lived experience. Applying a spatial justice lens to the Wye and Usk Byelaws case study demonstrates the opportunity the methodological approach provides: When apparently simple decisions result in complex value conflicts, exploring the relationship between law and space helps explain embedded values, hidden values and excluded values and how law and space reinforce each other. It is in these place-specific cases of values conflicts that considering wider contexts for decision-making requires a step back and consideration of how legal and regulatory frameworks operate to imbue spaces and places with values, and these very “spatial” legal values cannot be understood without physical, geographical context. This research attests for the need for regulators and other decision-makers to ensure stakeholders are able to access decision-making processes and meaningfully contribute to (re)establish spatial norms for the places that they are connected to. There is an obvious challenge here, given constrained resources within public authorities and the time required for “adequate” participation. Capacity building is required. To this end, our case study methodology could be expanded through researcher engagement with the decision-makers and stakeholders within a given process. While we limited our data to publicly available documentation to ascertain the extent to which decisions could be understood through this data, “validating” our findings with actors from within the process would allow for capacity building for decision-makers and add further pragmatism to research findings.
Capacity building starts with understanding what is at stake. For spatial justice this starts with understanding the spatially-productive power of decisions made for and on behalf of the public and the risk of exclusion and injustice that comes from following established processes without collaborative and reflexive practices that seek to enhance spatial decision-making and coastal management for the benefit of all. Further, our findings suggest that rather than being burdensome, there is an opportunity for enhanced stakeholder collaboration, which works towards increasing spatial justice, to heal old wounds inflicted from historic decisions, and set a new precedent of fair, inclusive and just regulatory processes.
Footnotes
Acknowledgements
The authors would like to thank the wider Diverse Marine Values team at University of Portsmouth for their interdisciplinary insights into this research.
Ethical Considerations
This research drew on publicly available grey literature, decision documents and case law and as such ethical consideration was minimal and limited to ensuring accurate representation of the publicly available documents.
Consent to Participate
This research drew on publicly available grey literature, decision documents and case law and as such informed consent was not applicable.
Funding
The authors disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This research was funding through the Sustainable Management of Marine Resources Diverse Marine Values project (UKRI award number: NE/V017497/1).
Declaration of Conflicting Interests
The authors declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Data Availability Statement
Data, in the form of the decision-mapping figures, is available upon request.