Maasai could take advantage of Kenya’s new constitution to secure rights to land. Photo: EC/ECHO/Malini Morzaria
LONDON, 4 April 2013 (IRIN) – In the great plains of northern Tanzania, close to the world-famous Serengeti National Park, a bitter row has broken out over an attempt to designate 1,500sqkm of Loliondo District as a game-controlled area.
The Maasai herdsmen in the area say their cattle cannot survive without access to traditional dry-season grazing in the area. The government says the land is needed as a wildlife corridor between the Serengeti and the Ngorongoro Conservation Area. Besides, the Minister for Natural Resources told the press, 2,500sqkm had already been, as he put it, “released to the local population”; the rest would be used for conservation purposes for the benefit of the nation.
Typical of recent land-grab controversies, this row involves the use of rangelands rather than farmlands. While farmers can show quite clearly that their lands are being used, semi-arid grasslands in areas like Loliondo cannot support animals year-round, so surveys often show the areas lying apparently empty.
Such tracts of land are often attractive for commercial agriculture – in Ethiopia, for instance, a number of controversial large-scale agricultural concessions have been granted along the Awash River. But the Loliondo dispute is not about commercial agriculture; it’s a so-called “green grab”, where access to land is lost for conservation purposes.
Here, one widely accepted good – the right of people to continue using their traditional lands – has collided with another – the need to conserve nature and biodiversity.
Many faces of conservation
The great majority of nations have signed the 1992 Convention on Biological Diversity, which sets as a target: “by 2020, at least 17 percent of terrestrial land and inland water and 10 percent of coastal and marine areas are conserved through effectively and equitably managed, ecologically representative and well-connected systems of protected areas and other effective area-based conservation measures.”
Neil Burgess of the UNEP World Conservation Monitoring Centre said, “These targets, set by nearly every nation on the earth, are the most ambitious conservation plan out there. It's a massive potential conservation plan – it's a lot of land, a lot of sea. Depending on how it's done, depending on how countries choose to do this, it could be a big land grab, it could be a big seas grab, or it could enhance community rights, it could give benefits to the communities – it could do a whole lot of different possible things.”
From 26-27 March, at a meeting on conservation and land grabbing organized in London by the International Institute for Environment and Development and other conservation groups, participants struggled with the question of how best to reconcile conservation, development and people’s rights to their way of life, and in particular what kind of land tenure arrangements achieve the best outcomes.
Some countries, like Chile, have gone down the route of extreme private ownership. Some of the country’s most important protected areas are in private parks and reserves, the largest of which – 630,000 hectares of Patagonia – belongs to a foreign national, the American businessman Doug Tompkins, founder of the North Face clothing company. The owners of these parks can and do use their private property rights to keep them clear of squatters and encroachment, but they can also, if they choose, abandon conservation and allow mining or logging on the land. The only recourse for indigenous communities looking to keep their traditional areas is to ask the government to buy the land on their behalf – and even the government cannot force an unwilling owner to sell.
"Kenya’s new constitution offers what is to be called ‘community land’ to any group formed on the basis of ethnicity, culture or shared interest. If the new form of tenure is a success, it could be the model for other African countries"
Other legal systems offer a more fluid approach to ownership and tenure. The Philippines, for example, has a bewildering array of instruments for holding land, such as designating it as “ancestral domain”. But these kind of conditional rights rarely have the strength of private ownership.
Jan van der Ploeg, of the University of Leiden, tried to help indigenous groups in the Philippines get formal tenure on their traditional lands in the hope it would help protect endangered species, but he came to the conclusion that it would not work. “In the end,” he said, “if you finally succeed in getting tenurial instruments for people, often conservation output is very limited. People still persist in clearing forest, and if a large company comes in, those legal rights simply don’t mean anything.”
Africa in general does not have a historical tradition of private ownership; land was more likely to be thought of as belonging to a community or tribe, with individuals having the right to use it rather than possess it completely. But very few African countries have formalized this idea into any kind of group ownership or collective tenure.
One that has is Kenya. In the late 1960s, Maasai living on the Kenyan side of the border with Tanzania were offered the chance to establish group ranches, defined as “a livestock production system or enterprise where a group of people jointly own freehold title to land… and herd their livestock collectively which they own individually.”
In practice, managing the communally owned land proved difficult, and one group ranch after another was subdivided into smaller, individually owned pieces. Eventually, many of the plots were sold for development.
But Kenya’s new constitution, adopted in 2010, is trying again. This time, it offers what is to be called “community land” to any group formed on the basis of ethnicity, culture or shared interest.
Stephen Moiko, of the International Livestock Research Institute, told IRIN that a key difference this time is that the initiative will come from the group. “It’s possible for communities to come up together and, through a legal process, obtain ownership of key resources which they depend on for their livelihoods, and it has legal mechanisms to protect that land from alienation. I think the nice thing about this new provision is that it recognizes the role of communities as owners and protectors and users of local resources.”
“If communities came together in groups to own resources jointly, it would be for their own benefit and this would enhance development,” Oliver Waindi, Kenya Land Alliance deputy coordinator, told IRIN. At present, “community ownership of resources is just on paper”, but a National Land Commission was inaugurated on 27 February of this year to raise awareness of the constitutional provision.
If the new form of tenure is a success, it could be the model for other African countries. Chris Bakuneeta, a lecturer in biological sciences in neighbouring Uganda, told IRIN, “In Uganda you can have a forest that belongs to the community, especially where people go in to worship, but they still don’t have any protection, because it is the community who know the boundaries, and they don’t have a title deed to that land. I would want to see the lawyers coming up with a legal mechanism to protect this forest so that the local people can own it and have a legal right over it.
“And that also applies to land that belongs to pastoral communities, large expanses of land where those communities go to graze their cattle – this land doesn’t have a land title. I would want a situation where communities can register a land title, and they can use that to get a loan, and everybody knows that if there is a benefit, it goes to these people.”
The impact of group tenure rights on conservation efforts remains to be seen.