Sitting on the fence as it gets cut from below

South Africa's colonial and apartheid history meant that the majority of its people were denied their rights to its land. Meanwhile, the country's biodiversity was dwindling at an alarming rate.

Titled Sitting on the fence as it gets cut from below: Co-managing conservation and land reform agendas in South Africa's protected areas, Professor Alexander Ross Paterson used his inaugural lecture on 1 October to implore authorities to make the best use of the options available to both correct historical injustice and conserve our natural resources.

Paterson, who teaches in UCT's Institute of Marine and Environmental Law, shed some light on how the domains of land-reform law and conservation law need not necessarily be at odds with each other.

The discourse evolves

The 1990s in South Africa saw a shift in conservation discourse. Gone was the exclusionary, state-centred, protectionist view that exemplified the nationalist approach until the mid-90s, in favour of a more inclusive, participatory and human-centred approach.

There was the acknowledgement that communities previously excluded from owning land in South Africa could indeed play an important role in efforts to conserve the country's natural resources.

"Protected areas often sit at the intersection of these two worlds: conservation laws, and land-reform laws," said Paterson. "It's often in the context of land-restitution claims lodged within protected areas that the troubling competing imperatives arise."

The realities

The numbers spoke favourably of South Africa's performance in the land-restitution arena: 97% of 79 696 claims lodged in the first round were settled, comprising a total of 1.5 million hectares at a cost of R29-billion allocated to disenfranchised communities over the last nineteen years.

"But this belies the reality in the context of land restitution," said Paterson, explaining that two-thirds of the 150 claims in protected areas remain unsettled.

The number of outstanding land-restitution claims in the Kruger National Park alone shows the scale of the problem, and presents a massive challenge to authorities: Unsettled claims amount to 1.4 million hectares in geographical scope, and a potential compensation budget of R20-billion.

"We similarly have challenges in the context of conservation. Our biological resources are under significant threat. In the recent National Biodiversity Assessment [2011], it was estimated that 40% of our terrestrial ecosystem, 57% of our river ecosystems, 65% of our wetland ecosystems, 43% of our estuary ecosystems, and finally, 58% of our coastal and inshore ecosystems are threatened.

"The state of our biological resources is not pretty."

What about our protected areas?

While 6.5% of our terrestrial environment is incorporated into protected areas, the government has set itself a stiffer task, said Paterson.

"In the National Protected Areas Expansion Strategy, it sets a task of expanding our protected areas to 12% of our terrestrial environment by 2029.

"But we have a problem there, because a significant portion of South Africa '“ 79% of land, to be precise, in terms of the National Land Audit (2013) '“ falls within the hands of private landowners and communities."

The state has effectively exhausted its avenues for expansion on state land, and needs to turn to private and communal landowners '“ which poses another challenge.

"We have a decreasing budget with regard to conservation. It's decreased from 0.28% of the national budget in 1996 to 0.0047% in 2013. So where do we find the money? We have no money."

Co-management model

In 2010 the National Co-Management Framework was adopted, and remains the current policy framework to guide the resolution of land-restitution claims in protected areas.

This model involves three parties: claimant communities, land-reform authorities and conservation authorities.

Paterson explained the model in its simplest form: "A community is required to establish a trust and/or a communal property association to hold the property rights accorded to them through the land restitution process. The land-reform authorities allocate the title deed to the communal property institution, which is in turn effectively compelled to simultaneously enter into a long-term lease and co-management agreement with the conservation authorities. The long-term lease curtails the community's ownership rights in that it precludes residence in the protected area and generally significantly limits rights of access to, and the use of, the resources situated in the area. The co-management agreement purports to provide for the co-management of the area by the community and the conservation authorities (and often details limited-benefit sharing arrangements) '“ but in reality, the management of the protected area often remains under the control of the government-appointed conservation agency due to capacity and resource constraints on the part of the community."

South Africa's model is slightly more nuanced, as it distinguishes between protected areas with and without income-generating potential. The co-management model is reserved for protected areas with income potential, said Paterson. A lease model, meanwhile, is reserved for those with no income potential.

But has this nuance facilitated balance between land-reform and conservation authorities? "There's tension," admitted Paterson.

Is co-management the best option?

Co-management was designed to protect scarce resources, and not to deal with land reform, said Paterson. Add to this that the government has used it to co-opt support and improve their legitimacy rather than seeking to improve meaningful participation, and that the implementation ends up being more state-led than community-driven, and Paterson doubts that it is a theoretically appropriate model for land reform.

Commentators have identified prerequisites for co-management to succeed: trust between parties, certainty of tenure, appropriate institutions, and a common vision between the parties. But looking at many claims, settled or not, one can see that these prerequisites have often not been met.

By focusing almost exclusively on co-management, "South Africa's policy-makers have perhaps missed a trick," argued Paterson.

The international community is focusing more and more on governance by indigenous and local communities as the preferred model.

"Indigenous peoples and local-community-conserved areas are regarded as the most exciting development in the world of protected areas law, according to many spectators. So why are we not focusing on that?"

Role of communities in conservation

Paterson was unclear on the reasons for the anomaly '“ suggesting that perhaps it relates to a misunderstanding of the role communities could effectively play in protected areas.

The role of a community in a protected area stems from whether that community acts as the owner, manager or beneficiary of the land and resources, or a combination of the three, argued Paterson.

"These roles are not distinctive. One can group them."

We have many options regarding governance models. The next question then is, do we have the legal mechanisms to promote their use in South Africa?

"I've looked through South Africa's land-reform legislation, I've looked through all of our protected-areas legislation and all our conservation legislation, and we have all the options. With a little bit of creative interpretation of the law, we have the options."

So if we have these legal mechanisms to experiment with different models of governance, have we used them? For the most part, we've barely begun to explore the options, said Paterson.

"There are many other issues affecting the balance between conservation and land reform. Planning, institutions, land tenure, management issues, access and use issues, and finance and support issues."

Land tenure, management, and land access and use stand out among these, and Paterson proposed solutions for improving these aspects of the land-reform process.

Where are we in this divide?

Having attended the recent People and Parks Conference held in Mthatha in mid-September, and having followed the proceedings of the recent National Land Tenure Summit held in Boksburg in early September, Paterson is of the belief that South Africa's authorities are sitting uncomfortably on the fence between the country's land-reform and conservation agendas.

Reflecting on three key issues emerging from these conferences, he highlighted the following concerns. In the context of conservation: the continued reliance on the National Co-Management Framework, which he believes is theoretically flawed; the failure to focus on land-tenure issues in the context of land-restitution claims in protected areas; and the continued and very slow progress of the resolution of land claims in protected areas.

And in the context of land reform: the failure on the part of the Department of Rural Development and Land Reform to resolve the issue of communal law tenure; the apparent undermining of the role of communal property associations (CPAs) as effective and equitable land-ownership and administration structures in both urban and rural contexts; and the failure to resolve the relationship and roles of traditional leadership structures, CPAs and land trusts in the context of rural land administration.

These issues are about to be thrown into further turmoil by the recent re-opening of the land-restitution process in July 2014 '“ for a further window of five years, said Paterson.

Paterson concluded his lecture with an "inescapable truth" in this arena, courtesy of Barry Commoner, the noted scientist, activist and ecologist.

"In the words of Commoner, when any environmental issue is pursued to its origins, it reveals an inescapable truth: that the root cause of the crisis is not to be found in how people interact with nature, but in how they interact with each other; and to solve the environmental crisis, we have to solve the problems of poverty, inequity and racial injustice."

Listen to the audio recording of Prof Paterson's lecture.