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L’énergie dans le développement de la Nouvelle-Calédonie

Yves Le Bars
Elsa Faugère
Philippe Menanteau
et al.

What framework for an energy and climate policy promoting the development of New Caledonia

What governance is required in those domains? What roles for the different stakeholders? The legal aspect

Texte intégral

1The governance organises the cooperation between the political body, the administration, civil society and the economic world. Moreover, within the public sector as well as the private sector, most of those who use the term governance take it to mean, first and foremost, a sharing of decision-making, involving a large number of different stakeholders and sites. It implies the set-up of new modes of regulation which are more flexible and based on partnership between the different stakeholders.

  • 1 For a more in-depth analysis of the legal, economic and political context, see the publication Rev (...)

2These definitions bring out two general principles, one concerning the capacity of institutions to regulate and control, and the other concerning the transformation of the institutions themselves in the aim of improving decision-making. The issue of energy and climate in the development of New Caledonia requires a response in keeping with those two general principles. The ideas developed here fit into New Caledonia’s current statutory context, i.e. a status of shared sovereignty with a transfer of powers based on a process defined under the Nouméa agreement of 19981.


3The main stakeholders are described in the report’s introduction. Here, we will consider only those who need to be taken into account in an analysis of the legal context: they are the government of the Territory, the State, the Provinces, the municipalities and the electricity distribution companies – EEC (subsidiary of GDF-Suez), SAEM (Société Anonyme d’Economie Mixte), and the electricity producer Enercal.

  • Dimenc, which was created in 20042, plays a key role in this respect. On behalf of the State, New Caledonia and the three provinces, it is tasked with controlling and promoting industry in New Caledonia in a perspective of sustainable development (by delegation of powers or by agreement). Moreover, its Director is industrial adviser to the High Commissioner of France.
  • The CTME is not a permanent administrative service; it meets three to four times a year. It is made up of representatives of the government, provincial assemblies, Congress, mayors, ADEME, the Department of Agriculture and Forests and the Territory’s pay office. The Director of Dimenc acts as its secretary. He manages the fund for the management of energy in New Caledonia (FCME), and subsidises the purchase of equipment such as photovoltaic facilities and wind turbines solely in remote sites and finances energy diagnostics or feasibility studies as well as energy management studies. At the same time, he conducts awareness-raising and information actions. With the CTME’s contribution, a large number of energy management installations and actions have set up.
  • The Territorial Energy Management Programmes (PTME) set up by the CTME are co-financed by the ADEME and by New Caledonia (50 % each) through the Territorial Energy Management Fund (FTME) whose implementation is defined by an annual agreement. The resources of New Caledonia stem from a parafiscal tax on petrol of 0.6 F.CFP/l levied by customs.


4While the Institutional Act allocates the power for electrical regulations and hydrocarbon regulations to New Caledonia, the text does not mention energy savings nor renewable energies. In those new domains, where there are currently few or no regulations and which have not yet been allocated to an authority, the question of breakdown of powers must be raised, as they are very interdependent with environmental protection, which in itself is subject to interwoven powers. Based on the principle of main activity, it should be possible to allocate the power to one of the communities.

5A look at the breakdown of powers (see CD-ROM) brings out the following remarks:

  • The powers of the State are limited to controlling strategic petroleum stocks, large dams pursuant to civil security regulations (Article 21, III, 5 of the Institutional Act) and, for mines, substances used for atomic energy.
  • The powers for the control of large dams could be transferred from the State to New Caledonia, in order to ensure the consistent management of activities concerning water or electricity. However, the transfer of powers concerning civil security is only envisaged after modification of the Institutional Act, as decided by the Committee of Signatories on 8 December 2008. The Viret3 report explains the various issues linked to that aspect. At present, the State has no other direct power concerning energy.
  • As for municipalities, they have the same powers under general law as equivalent communities in metropolitan France. These include the electricity distribution concession and powers concerning pollution.
  • The Provinces have numerous responsibilities concerning regulations and control in the field of the environment and natural areas.
  • New Caledonia has no general power concerning climate change, as seen in the previous section. On the other hand, under general law it has environmental obligations concerning greenhouse gases as the provisions of the environmental code pertaining to the fight against global warming apply explicitly to New Caledonia.
  • Thus, New Caledonia and its agency Dimenc set the technical standards for transport and distribution and the municipalities set the specifications of the concessions. This situation, which was in actual fact complicated to manage, was clarified through a recent modification of the Institutional Act.

From this analysis of the current situation, we wish to emphasise six essential aspects

  1. Given the foregoing, the interweaving of powers does not seem to be a major difficulty in the field of energy in New Caledonia. This is supported by the small amount of legal disputes in the field (this data was confirmed during our meeting with Councillor of State Jean-François Merle, on 22 April 2009). The only issue which needed to be clarified concerned the construction of electricity distribution lines; this was done with a recent modification of the Institutional Act.
  2. The breakdown is more intertwined in the environmental domain, with significant consequences on energy law. The powers concerning the integration of environmental and energy stakes in New Caledonian policies are in fact shared between New Caledonia and the Provinces. The ambiguity on the respective responsibilities of the municipalities and Provinces concerning urban planning documents as well as the shortage of guidelines may have an indirect influence on the general energy principles. It therefore also seems necessary, for the energy sector as well as the environment sector, to clarify powers concerning environmental matters. While this is outside the scope of our report, an alert must be raised on that aspect. Earlier in this document, we stressed the complications involved and time required for a modification of the Institutional Act. Nevertheless, without paralysing existing initiatives, we feel that it would be appropriate to examine the possibility of such a modification to settle the question of powers in the field of the environment.
  3. If responsibility levels seem inappropriate, the pooling of powers within a single administration, Dimenc, is a practical solution. Regulations concerning polluting activities, water, impact studies and public enquiries, involving highly technical matters requiring the centralising of powers, are the responsibility of the Provinces, while they need a more global level of involvement in order to promote consistency. However, this administration, which acts on behalf of the government as well as the State and Provinces, does not have full and direct responsibility; it is guided by general principles which are not clearly defined by a fundamental policy or text and which may prove divergent or at the very least mutually inconsistent.
  4. The first and second parts of the report show how difficult it is to construct regulations and tariffs applicable to public and private operators. Is it necessary to adjust the interplay of stakeholders to deal with this issue in a more equitable way? The dominant weight of operators in relation to regulators is often considered as an impediment to the implementation of appropriate regulations. This is what has impelled France (within the scope of European regulations) to set up an Energy Regulation Commission (CRE), and dissociate the management of the electricity transmission network in a subsidiary of EDF (RTE).
  5. When a set of regulations is instituted, it is necessary to check that they are actually implemented in order to guarantee their efficiency; human resources must therefore be sufficient to ensure this verification.
  6. As concerns climate, the “industrial environment” dimension does not cover all topics. Land management for the production of biomass is closely related to the agricultural and forest policy: the corresponding stakeholders must be involved in the policy set-up process.


6In order to give real impetus to the sector of energy and the reduction of GHG emissions in the development of New Caledonia, the set-up of new forms of control may be envisaged. A redefinition, if envisaged, of the breakdown of powers among the four levels of responsibilities should be based on a certain number of principles, including:

  • the size of the projects and relations with users (whether strictly local or not);
  • the know-how gained in a particular field by a particular administration level;
  • the purpose of the powers in question: power to invest for the future, power to manage services or establish general standards;
  • the structuring power for the whole of New Caledonia, for example concerning taxation or the civil service. A structural overview must be built in those fields; its execution can then be entrusted to the Provinces;
  • the consistency of attributions to facilitate their pooling (for example, New Caledonia already has jurisdiction over mines, the public domain, real estate, the multi-annual investment programme and electricity);
  • attributions of powers which do not directly have the same objective but which are very interwoven, in order to promote their optimisation (for example, the powers concerning climate change should be given to the authority in charge of energy).

7We have examined two stakes that can be used as references for the redefining of powers: instruments for the coordination of energy and climate stakeholders and, based on foreign models, the possible reinforcement of the administrative authority in charge of controlling the sector.


8This started in 2008 with the creation of the Energy Observatory and Energy Consulting Committee, which now take part in the decisions-making process for in the field of energy. Dimenc acts as a technical coordinator for the different initiatives.

9According to the information we have obtained, the Energy Observatory has now taken the form of a database compiled by Enerdata Services. It is fed and updated by the Dimenc website and makes is possible to respond to the various statistics requests sent to it. As for the Energy Consulting Committee, it will involve a representative from the different communities (New Caledonia, the 3 Provinces, the mayors), a representative of ADEME and another from Dimenc. Its work programme has not yet been set.

10The ongoing coordination effort is linked to the set-up of general principles for the energy policy as recommended earlier in this document. Moreover, partnerships or collaborations can and must be developed, as this may sometimes have been done, in order to implement the recommendations of the first two parts of this report. The ADEME has a framework agreement with each of the Provinces. As for the partnership concerning energy, it exists since 1983, following the set-up of the AFME. Let us add that a functional analysis of the management of the electricity network could be useful (this requirement is driven by the increase in the number of producers of intermittent renewable energy).


11In a collective action field such as energy and climate and, in a more general way, the environment, proper governance requires more than an observatory and a permanent committee bringing together the main stakeholders. The capacity to steer and prepare decisions must be handled by a strong administrative body.

12Several solutions could be envisaged, but the choice is obviously not ours to make: these range from the preservation of the current organizational structure which would need to be marginally upgraded (particularly by increasing resources), to the set-up of an independent authority, separate from both New Caledonia and the Provinces (such a structure is difficult to imagine in the Territory’s current institutional and political context). Between those two options, the set-up of more or less autonomous structures has been tested in several countries.

13Irrespective of the structure chosen, its jurisdiction must, if possible, cover both energy and climate and comprise all energy components: fossil fuels, renewable energies, electricity, gas and mines, as well as the management of energy and that of greenhouse gases.

14With this comprehensive vision, such a structure will be able to deal with the contradictory aspects of a sector such as energy and integrate energy savings and the management of greenhouse gas emissions it its general policy.

A few examples of autonomous administrative structures

15Such structures exist in Canada (with the Energy Efficiency Agency which is a government agency with its own legal status, and the National Energy Office, an independent federal organisation), in France (the Nuclear Safety Authority and the Energy Regulation Commission, which are independent administrative authorities) as well as in Malta. The set-up of those agencies, with their various statuses, meets the need to have relatively simple structures in charge of several functions for greater efficiency.

16The example of the island of Malta is of particular interest: the Malta Resources Authority, instituted by an Act in 2000 (see appendix of “What framework for an energy and climate policy promoting the development of New Caledonia” on the CD-ROM). While it has its own legal status, it is directly linked to the Minister in charge of Mining Resources, Energy Resources and Water. The latter appoints the members of the Authority which has missions of a very broad scope and is tasked with regulating, controlling and reviewing operations and activities in the fields under its jurisdiction.

17In the field of energy, its mission is to promote, encourage and regulate the development and use of all forms of energy and to promote the use of alternative energy sources, via taxes on non-renewable energies and subsidies for production using renewable energies. It is also tasked with managing the distribution and sale of petroleum products. Its resources stem from various sources – taxes of various forms and public loans. It is composed of eight people and has three components: energy, water and ore4.

18There are also other types of administrative structures, without a specific legal status, based on the same model as the Agence France Nucléaire International or Agence Iter France (see CD-ROM): those agencies have autonomous administrative and budget authorities; they have precise missions, but are integrated in an existing public structure. The interest of such agencies is that they are autonomous, even though they come under the helm of the organisation in which they are integrated; in fact, they rely on that organisation’s human and functional resources, which enables them to pool support functions.

19In both cases, it would be desirable to bring in an executive board, such as the Energy Consulting Committee, integrating the current authorities, as well as the customary authorities, so that energy becomes a common and consensual issue, in a perspective of sustainable development, with mediumterm appointments renewable only once and possibly a revolving presidency.

20In the situation of New Caledonia, and as an extension to the Dimenc and its initial partnership with the ADEME within the CTME, we need to assert the need for consistent management in the preparation and implementation of the energy and climate policies. Irrespective of the form of this overall management capacity, it must allow the preparation of strategies and programmes, as well as the defining of regulations and their implementation.

21In this respect, we need to stress the importance of linking the energy policies with the climate ones, and establishing new links with the policies concerning land use for agriculture, forests and the production of biomass.

22The study of existing administrative organisations, particularly within micro-States, has revealed that energy is usually regulated in an environment-conscious way, but is not always entrusted to the same authorities. However, the trend in numerous countries is currently to combine energy and climate – this is what France has done by creating the Ministry in charge of Ecology, Energy, Sustainable Development and the Sea (MEEDDM) as well as climate negotiations.

23The set-up of Regional Departments for the Environment, Land Use and Housing (DREAL) in French regions follows the same pattern, even if the political levers for agriculture and forests are lacking in this set of structures.

24Concerning the reorganisation of powers between the municipalities, the Provinces and New Caledonia pertaining to energy and climate regulations, the examples of New Zealand and the Fiji Islands may be useful: there, the powers are allocated to a single authority, like in France. However, to achieve this solution in New Caledonia, a modification of the Institutional Act of 1999 would be required.

25At any rate, the issue regarding the climate and the fight against GHG emissions is more global than that of the protection of the environment at the local level and must be associated or combined with that of energy. In this respect, the monitoring of greenhouse gas emissions (for all gases) is required. To date, the State has jurisdiction over the fight against global warming (the articles of the Environmental Code are applicable to New Caledonia), but it has not yet been implemented in a concrete way (legislative articles of the Environmental Code on the fight against GHG emissions could be implemented through regulations).


26How should public decisions be made today and what processes should be used in this respect, when public opinion is often distrustful and the results of research work are more accessible and when public debate is advocated as indispensable?

27In New Caledonia, an original and ambitious process has been deployed for the drafting of the “New Caledonian Land Use and Development Plan”, initiated in March 2008, and supported by stakeholder conferences at Koné on 14 May 2008, and at the Tjibaou centre on 5 March 2009.

28The next section will focus on a few experiences outside New Caledonia, to promote the development of this experts’ report into a process, in keeping with the spirit of the procedure used for the drafting of the Land Use and Development Plan.

In the decision-making process, what place is there for experts’ reports and public debates

  • 5 La décision, L. Sfez, Que sais-je 2181, 3rd corrected edition, December 1994.

29With Lucien Sfez5, we say that decision-making is a whole process which is not limited to the brain of a single almighty “decision-maker”.

30Those responsible for making public decisions often ask a lot from the experts’ report. We have seen this in all health and environmental crises, and when a Prime Minister stated: I will stringently follow the experts’ opinions”. This subsequently paralysed their opinions…

31While decisions are based on scientific rationality, this is not the only element to be taken into account! Very often, people are unaware of the fact that scientific rationality is built within bounds which do not cover all aspects of the particular question: it is limited by the data brought in, the skills brought together, the imperfections of interchanges between specialists, etc.

32The limits of the dialogue between experts and decision-makers are frequently noted. All stakeholders (whether companies, users, local residents, partners or elected representatives of the territorial communities) insist on having their say. Public enquiry processes have shown their limitations, which are linked to their origin: they were initially intended to legitimize the possibility of limiting private property rights, which are sacred constitutional rights.

33This has resulted in a demand for public information and participation in the decision-making process through public debates. Different forms have been held. There are two in France which are well documented:

  • The citizens’ conference held in Paris in June 1998 by OPECST (the Parliamentary Office for the evaluation of scientific and technical choices) focused on the following topic: “The use of genetically modified organisms in agriculture and food”. With the backing of the media, this process has allowed citizens to become involved in political debates. But its conclusions were not explored…
  • Since the Act of 27 February 2002 on local democracy, public debates are now held on the legislative level and organised by the CNDP (National Commission for Public Debate); some of them now focus on policies (such was the case for radioactive waste in 2006) rather than solely on projects. In the experiences undertaken in France, the debate remains a goal in itself; it is not well linked to the steps that preceded it and the subsequent process is not well known. The public debate on the choice of the site for a 3rd air-port in the Paris region is a classic example of this. In fact, the questions focused much more on the reasons for a 3rd airport! The same thing happened at the debate preceding the decision to build the nuclear reactor (EPR) in Flamanville.

34Debates therefore have their limitations; they only make sense within the scope of a decision-making process.

35The CNDP expresses its interest in debates when it asks the project authority to supply it with a clear report explaining the reasons for the proposal made or alternatives put forward during a debate, and when it demands that a decision be made in line with the results of the debate. This is also a way of recognising that there are stages in the decision-making process.

36Thus the experts’ report stemming from research and the public debate are still both searching, each in their own right, for their relations with the public decision-making process.

For an engineering of decision-making processes suited to our times

37We wish to stress that it is no longer possible to content ourselves with improving relations between “research” and “public decision-makers” to succeed in “bio-social” risk management – and on a larger scale, any public policy. We need to build step-by-step processes involving all stakeholders, based on proactive research (in particular the analysis of the impacts of new technologies), leaving time for debate.

38Because we can no longer decide on public actions like before, in the post-war period at the time of shortages or in major crises, we need to make decisions within a strategy based on a relationship involving three groups of stakeholders: those in charge of public policies, the experts and researchers, and the representatives of civil-society stakeholders. This requires a coming together of the decision-making world and that of research, within those processes, integrating everyone’s concerns, whether partners, economic players or citizens.

39The New Caledonian Land Use and Development Plan fits into this type of process in its definition, its timetable and the role given to stakeholders. The method, which entails the common mapping out of scenarios for the future, makes it possible to highlight the areas of agreement or disagreement, by creating means of communication between scientists, the authorities in charge and the public.

Two other examples

40Two cases, fairly close to that of “Energy in the Development of New Caledonia” could shed light on the course of action to take further to this report: the drafting of flood-risk maps in the mid Rhone valley (Drôme department) and the defining of the Ecophyto programme to halve the use of pesticides in France.

The drafting of flood-risk maps in the mid Rhone valley

41The drafting of flood-risk maps is based on a decision-making process, with the identification of the following 3 groups of stakeholders: the decision-making bodies, the mayors, the department and the State; the study and investigation bodies; the consensus-building bodies working with all stakeholders.

42A territorial consensus-building committee was set up, with a specialised coordinator tasked with reformulating questions and giving the floor to all stakeholders to ensure genuine participation. A session record was kept by the group of experts for which the Diren Rhône-Alpes acted as secretary.

43What needs to be remembered from this case is the importance of the tripartite organisation, with the political management of the process, which is particularly delicate when several authorities must coordinate their efforts, the group of stakeholders and lastly a proper experts’ evaluation.

The defining of the Ecophyto programme to halve the use of pesticides in France

  • 6Pesticides, agriculture et environnement, réduire l’utilisation des pesticides et en limiter les (...)

44The joint investigation conducted in 2005 by INRA and CEMAGREF6 revealed that there was little knowledge on the use of pesticides and their associated risks. More or less in connection with this investigation, several decisions were made, within the scope of the 2006-2009 inter-ministerial plan to reduce pesticide-related risks (PIRRP).

45To find out about the possible courses of action for the significant reduction of pesticide use, the ministries concerned decided on a two-year study (Ecophyto R&D) on the building of scenarios of more or less radical changes in relation to usual current practices, and on the defining of a new, more comprehensive system for the acquisition and dissemination of benchmarks, in relation with the objective set out.

46Special attention was paid to the stakeholder structure. It more or less consisted of the same tripartite arrangement as that defined earlier:

  • INRA was tasked with coordinating the experts;
  • A steering committee, which met every two months, was made up of representatives of the Ministries concerned (Agriculture and Ecology), responsible for the decision;
  • a guidance committee was made up of potential stakeholders, as institutions.

47What needs to be remembered from this experience is the relationship between an experts’ report and the preparation of decisions on a difficult topic. The experts’ report made it possible to define a problem and set out its structure, on the basis of which stakeholders were able to deal with the subject more easily, and described possible scenarios to achieve an objective, which was given as a conclusion at the Grenelle de l’Environnement.

Extending the experts’ report with a process aimed at setting out energy and climate policies

48Numerous experiences and theoretical works give perspectives for a decision-making process which calls on better use of experts’ reports – particularly those stemming from research – and allows fruitful dialogue between all parties. This is a highly important stake in order to build a democratic society whose development is based on knowledge. This is essential to build confidence, as choices are increasingly technical and sensitive. It is also indispensable, so that all autonomous stakeholders keep within the same collective action logic.

49We therefore propose that the experts’ report on “Energy in the Development of New Caledonia” be extended with a process, along the same line as what is being done for the New Caledonian Land Use and Development Plan. It will need to rely on expertise, insofar as possible located on its own territory, capable of carrying out the more in-depth investigations deemed indispensable, given the shortcomings detected in this report, or which will be brought out in the discussions to come.

50Recommendation: Initiate a process to define an energy and climate policy involving all stakeholders, mobilising local experts insofar as possible, with a legitimate steering body, based on the results of the experts’ report, supplemented by more precise studies on the aspects which warrant it, in accordance with the main principles and general objectives laid down.


51To promote possible actions in the fields of housing, transport, energy production and the metal industry, the technico-economic analysis sets out a few priorities: the cost of technical solutions vary and so does their implementation time. Durable long-term solutions can be built through land use planning and by taking account of constraints concerning land ownership.

52Concerning the possible means of action, it is indispensable for the general principles to be translated into law. Moreover, education and awareness-raising actions must be broadly implemented and regulatory, pricing and fiscal instruments must be used.

53Energy and climate stakeholders need the support of training in the relevant trades, particularly in the field of construction, with high-quality environmental procedures. Economic action in favour of businesses could also be a very useful lever, even though we weren’t able to look into the details of its implementation. Lastly, New Caledonia must have access to a R&D potential for activities concerning energy and climate.

54Concerning governance, the appraisal of legal aspects has revealed possible courses of action for the sharing of responsibilities and which coordinations need to be better organised. Then, the appraisal of the socio-political aspect has made it possible to define the process which it would be useful to implement as an extension to this experts’ report – since this report is not intended to set out operational priorities nor deliver turnkey action programmes…


55For details of the recommendations set out below, please refer to the recommendation sheets which are collated at the end of the report following the “Conclusion and recommendations” section.

561. Initiate a process aimed at defining an energy policy associated with the climate policy:

  • through a well-structured evaluation using local experts insofar as possible, based on the results of this experts’ report and supplemented by more precise studies on the aspects which warrant it, in accordance with the main principles and general objectives laid down;
  • legitimately steered by a public authority;
  • involving the stakeholders concerned, within a guidance committee.

57Transform the conclusions of the process defining an energy and climate policy through a decision of Congress.

582. Launch the defining of a climate plan for each Province, for Greater Nouméa and the VKP (Voh-Koné-Pouembout) area.

593. Include the production of non-food biomass in development policies to reduce New Caledonia’s dependence in terms of food, forests and energy, while contributing to the reduction of global GHG emissions.

604. Initiate a process to clarify the responsibilities of public stakeholders for the environment and impacts on the climate: this involves dividing powers in a way which is suited to those new stakes.

615. Define priority actions for the management of energy, the development of renewable energies and the reduction of emissions, by introducing cost and impact criteria.

626. Support the industrial and service sectors linked to the production and management of energy, in keeping with the size of New Caledonia: training in the relevant trades, economic action in favour of businesses, the R&D potential which needs to be available.

637. Use available economic or regulatory instruments to support the energy and climate policy.

648. Initiate an education and awareness-raising programme to promote a change of practices.


1 For a more in-depth analysis of the legal, economic and political context, see the publication Revue juridique, politique et économique de Nouvelle-Calédonie, issues 1 to 13, directed by Professor Jean-Yves Faberon.

2 In 1973, the “Bureau des Mines” was set up. After numerous name changes, it was renamed “Service des Mines et de l’Energie” in 1981 and became Dimenc in 2004.

3 Le transfert de compétences à la Nouvelle-Calédonie en matière de sécurité civile, Jean Viret, August 2008, 73 p.

4 For further information:

5 La décision, L. Sfez, Que sais-je 2181, 3rd corrected edition, December 1994.

6Pesticides, agriculture et environnement, réduire l’utilisation des pesticides et en limiter les impacts environnementaux”, December2005.

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