Biodiversity at crossroads

Abstract

The idea of property is indeterminate at the margin. The reason for this is that it is not possible to define the exact constellation of characteristics or "incidents" that go towards making up what is 'ownership.' Research among the Mbunza of Kavango Region Namibia confirms that the concept and philosophy of ownership is itself ambiguous and uncertain, thus cannot be described definitively and is open to a case by case interpretation. The History of Namibia demonstrates that ownership of communal land and forest resources thereon was transformed by history through the transformation of the constellation of characteristics which made up the traditional communities' philosophy of ownership Further,ownership of forest resources, in particular the ownership of trees on communal land cannot completely be divorced from the ownership of communal land. In Namibia the ownership of communal land poses a great difficulty whenever one interprets the nature of communal rights over land. It is intricate to decipher through current legislation whether it is the state which owns trees on communal land or not. Empirical research has however shows that communities regard themselves as owners of the trees. This position is the general position with variations existent in Community Forests where the involvement ofGovernment law enforcement machinery is felt at a high level

The perception and position of the community that it owns the trees on communal land emanates from the concept of aboriginal title to land which is a primordial right held by the pre-colonial occupants of land.1 Because this title predates and supersedes any right granted under colonial laws, and under the current state laws, it poses an obvious threat to the success of conservation laws and policies being implemented in the concerned communities hence conflict of laws which puts biodiversity is at crossroads

Research among the Mbunza as documented herein indicates that controversy regarding ownership of trees can hardly be avoided, however, for communal title is one of the most radically disruptive concepts to have emerged in modern legal systems. The philosophical position regarding ownership of trees among the Mbunza is supported by natural law principles. Arguing a source in natural law, in countering State positive laws seems to be a viable position for it legitimizes ownership by laying the validity of community ownership in higher principles of the universal order. The State, though, may not lightly accept that position because such a claim of community title is based on policy and justice, and stands as a calculated decision to step outside accepted legal authority of the State.2 This seems to be the reason which made many respondents to be uneasy with condemning the government position, and those who dared clearly verbalising it asked for anonymity

In the light of the foregoing, among the Mbunza as the recorded statistics show now, few people see a dichotomy between protected area conservation and community-based conservation. Some accept that the two approaches are complimentary routes towards the same goal. Whereas there is alleged devolution of real rights to the traditional communities, it appears that the management style remains top down and enforcement of the applicable statutes is evidently coercive. Whereas those who stay in Community Forests are more receptive to government initiatives, those outside have a different and divergent approach to conservation. Traditional authority office holders have a play in both areas however with variations caused by the extent of government involvement in day to day survival of the community. The government inevitably needs these institutions and section 15 of the Forest Act makes it clear that without their consent there cannot be a community forest on communal land. This demonstrates that it is these local institutions that offer a real opportunity not only for eco-region planning and forest conservation, but also for their actual implementation and enforcement of conservation laws made at state level

It should be mentioned that humans interact with their environment through systems of property rights that are embedded in social, political, cultural, and economic context.3 The outcome of that interaction affects both the quantity and quality of environmental resources. It is becoming increasingly clear that although national and international economic policies have often ignored the environment, economic development ultimately depends on institutions that can protect and maintain the environment's carrying capacity and resilience. The knowledge of how property rights regimes, as particularly important types of institutions, function in relation to humans and their use of the environment is critical to the design and implementation of effective environmental protection.