exploring the right to diversity in conservation law ... · exploring the right to diversity in...

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Exploring the Right to Diversity in Conservation Law, Policy, and Practice

Policy Matters 17, 2010

A new international law on access and benefit sharing (ABS) is currently being negotiated by the 193 Parties to the United Nations Convention on Biological Diversity (CBD). The discussion of access to and sharing of benefits from genetic resources and Indigenous knowledge brings into focus conflicting worldviews about the place of humanity in the ecosystem and humanity’s responsibilities when interacting with the environment. Ginawaydaganuk,1 a principle of Algonquin law that acknowledges the web of life or the interconnectedness of all things,2 stands in stark contrast with Canadian law and policy, which presumes humanity’s superiority to and fundamental disconnection from nature.3

This paper will show how Canadian environmental law and policy – combined with policies of cultural hegemony4 – operate to exclude Indigenous peoples and a common essential Indigenous value from environmental decision-making. Canada appears set to travel the same path in its current approach to the development of an international ABS regime, ignoring Indigenous rights and promoting a worldview fundamentally at odds with many Indigenous cultures. This arguably contravenes Canada’s constitutional and international obligations, ultimately defeating the stated objectives of the CBD. Evidence of the consequences of this approach can be seen both in terms of harm to Algonquin culture and the decline in biological diversity. To restore its good name on the international stage, demonstrate respect for the rule of law, re-establish good relations with Indigenous nations, and support the retention of biological diversity, Canada must at least meet its legal duty to consult with Indigenous Peoples and accommodate the exercise of Indigenous rights in the development 1 Pronounced with a soft ‘g’: gee-na-way-dag-a-nook.2 The English language does not accurately express some of the concepts under discussion here. The notion of people and land being one thing is not properly captured in English terms of ‘land and resources’ or ‘environment.’ This makes it challenging to convey the meaning of Ginawaydaganuk. The Algonquin are not alone in this challenge, nor are they alone in seeing the world as an interconnected whole with humanity as part of the environment. See comments by Jose Kusugak, past President of the Inuit Tapiriit Kanatami, at the House of Commons, Parliamentary Standing Committee on the Environment and Sustainable Development (April 25, 2002) at 1040: “Traditionally, there was no definition of avitiliriniq in Inuktitut. It was all one, the Inuit being part of the ecosystem. So there was no Inuit and then the environment. When it came to negotiations, we had to bow to the western world trying to define what ‘environment’ is, outside of the human, the oneself. So we struggled through all that, and we came up with a word, avitiliriniq, which means anything outside of the human form. But at the same time, when we’re talking about the environment in Inuktitut, we always include ourselves as part of the environment. Thus, the Inuit are part of the ecosystem, and it has been proven a number of times.” Last accessed May 21, 2010, at http://cmte.parl.gc.ca/Content/HOC/committee/371/envi/evidence/ev521305/enviev68-e.htm#Int-212078.3 In general, land and things on the land are presumed to be owned by the Crown in Canadian property law and may be allocated to individuals to generally use as they wish. The principles of land tenure in Canada are outlined and contrasted with Mik’maq perceptions of land in Henderson, J. S. Y., M Benson, and I. Findlay, 2000. Aboriginal Tenure in the Constitution of Canada. Carswell: Scarborough.4 This has been well-documented by the Royal Commission on Aboriginal Peoples, which states, “We retain, in our conception of Canada’s origins and make-up, the remnants of colonial attitudes of superiority that do violence to the Aboriginal peoples to whom they are directed”. Canada, 1996. Report of the Royal Commission on Aboriginal Peoples. Queen’s Printer: Ottawa. Last accessed September 2, 2010, at: http://www.ainc-inac.gc.ca/ap/rrc-eng.asp. While Canada apologized in 2008 for over a century of forced assimilation of Indigenous Peoples in Canada through the Residential School system (see Canadian Broadcast Corporation, 2008. “PM cites ‘sad chapter’ in apology for residential schools”. Last accessed June 6, 2010, at: http://www.cbc.ca/canada/story/2008/06/11/aboriginal-apology.html), in 2009, Prime Minister Harper denied there was any history of colonialism in Canada. See Canadian Business on Line, September 29, 2009. “Prime Minister Harper Denies Colonialism in Canada at G20”. Last accessed June 6, 2010, at: http://www.canadianbusiness.com/markets/cnw/article.jsp?content=20090929_172501_0_cnw_cnw.

‘Ginawaydaganuk’: Algonquin Lawon Access and Benefit Sharing

Larry McDermott and Peigi Wilson

Ginawaydaganuk, which is loosely translated as the interconnection of all things, is an Algonquin law outlining our responsibilities to each other and the earth. It is the basis of an 18th-century agreement between the French, the English, and the Algonquin to respect Algonquin law and share the resources of Algonquin territory. Three centuries later, Canada and the other parties to the Convention on Biological Diversity are negotiating a new access and benefit sharing regime, but in doing so, Canada is ignoring its historic and current obligations to the Algonquin and other Indigenous Peoples in Canada. This paper explores the exclusion of Indigenous Peoples in Canada from environmental decision-making, the resulting decline of Indigenous cultures, and the interrelated decline in biological diversity. It argues that reconciling the rights of Indigenous Peoples with State sovereignty in an Access and Benefit Sharing Protocol is an essential means to support the retention of Indigenous cultures and reverse the decline of biological diversity.

Abstract

Theme III: Challenges and Opportunities

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of the international ABS regime. Recommendations are made for a new way forward that is respectful of Indigenous rights and our collective obligations to the earth.

Algonquin lAw: ginAwAydAgAnuk

The Algonquin are an Indigenous People whose traditional territory is in east-central Canada, transected by the present-day Québec-Ontario border. Algonquin law, derived from the Creator, defines sacred responsibilities to others and to the earth. A key principle of Algonquin law is ginawaydaganuk. The traditional Algonquin worldview conceives of physical, emotional, mental, and spiritual connections to all of life and the life-givers, including the plants, animals, water, air, earth, and fire. Under Algonquin law, there is a collective and individual responsibility to honour these sacred gifts and ensure that they thrive. “Algonquin laws are based on that respect, and [Algonquin people] continue to abide by the principle of placing conservation, and respect for the natural world, ahead of human consumption.”5 It also requires respect for the needs of those to come and consideration of the effect of each act that we take upon the next seven generations. Rather than a reductionist approach, Algonquin law requires consideration of the cumulative impacts of actions on the entire web of life; this is how the Algonquin define sustainability.

The Welcoming and Sharing Three Figure Sacred Wampum Belt6 negotiated in the early 18th century was one of the first ABS agreements produced in Canada. The belt depicts three figures holding hands, representing the French and English flanking the Algonquin. The symbol of the cross indicates that the agreement was witnessed by a representative of the Vatican. Today, esteemed Algonquin Elder William Commanda carries the belt. He is responsible for sharing the legal history of the agreement and informs us that the commitment expressed through the Wampum Belt was to accept the sacred responsibilities to care for the life-givers, to respect each other, and to share the “grand resources of the land.”7 Elder Commanda reminds us,

As you will know, respect for Mother Earth and all species and forms of life is fundamental to the true Indigenous way of life. Over the course of my own lifetime, I have witnessed our natural heritage damaged almost irrevocably at every level by unbridled greed, opportunism and development, and uncoordinated federal and provincial management – evident particularly in the history of logging, hydro electric generation, nuclear development and mining within the Ottawa River Watershed, the ancestral territory of the Algonquin Peoples, and the land that originally gave life to the dream of Canada. The record of devastation now impacts not just Aboriginal Peoples, reserves and wildlife,

5 Former Algonquin Chief Clifford Meness, 1992. Minden and Area ’92. Kevker Publications Ltd.: Minden, Ontario. 6 A wampum belt is a mechanism for recording agreements in traditional Algonquin and other North American Indigenous cultures. Agreements recorded via a wampum belt are considered by Indigenous Peoples to be solemn promises of the highest order, demanding honourable observation.7 Elder Commanda is an Officer in the Order of Canada. In 2010, he received the National Aboriginal Achievement Award Foundation Award for Lifetime Achievement. See Commanda, W., 2008. “The Circle of All Nations”. Last accessed May 23, 2010, at: http://www.circleofallnations.ca/.

Figure 1. The location of the Algonquin land claim in Canada (top) and in the eastern part of the province of Ontario (bottom). The total area of the claim is 36 000 square kilometers. © Andrea Beauvais/Larry McDermott, Plenty Canada

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but our national health and global future. Indigenous peoples have been impoverished and rendered invisible and voiceless by this ceaseless exploitation of our natural resources, while others have appeared to thrive. But now the time for reckoning is upon us.8

Canada has usurped Algonquin territory and resources without compensation, contrary to both the Welcoming and Sharing Wampum Belt and Canadian law.9 Canada and a few other nation-states have relied on an international legal construct known as the Doctrine of Discovery to ignore early promises to respect the traditional laws of Indigenous Nations. As the United Special Rapporteur on the Impact of the Doctrine of Discovery on Indigenous Peoples wrote in 2010, “the Doctrine of Discovery has been institutionalized in law and policy, on

national and international levels, and lies at the root of the violations of indigenous peoples’ human rights, both individual and collective. This has resulted in State claims to and the mass appropriation of the lands, territories and resources of indigenous peoples.”10

The Algonquin in Ontario have benefitted from the growing body of successful litigation by other Indigenous Peoples in Canada and have won a concession from Canada and the Province of Ontario to negotiate a comprehensive treaty.11 However, Canada continues to pursue policies of divisiveness and exclusion, frustrating Algonquin efforts to practice ginawaydaganuk and sustain the biological diversity of their homeland. The negotiation of a new international ABS regime – if adopted by Canada and applied to Algonquin territory without the involvement of the Algonquin after centuries of reneging on their original agreement – cannot be countenanced under national or international law.

CAnAdiAn lAw And PoliCy

Canada is a federal state. The Constitution of Canada12 divides jurisdiction over matters between the ten provinces and the

federal government.13 Environmental matters are not listed in the Constitution; they are addressed instead in the context of other heads of power of both the federal and provincial government (such as the regulation of shipping and commerce under federal authority or forestry management under the exclusive purview of the provinces). “Indians14 and Lands

8 Commanda, W., 2006. Manoshkadosh The American Eel. Circle of All Nations: Algonquin Territory.9 The Royal Proclamation of 1763 (R.S.C. 1985, App.II, No.I), found to be good law in Canada (see Calder et al. v. Attorney-General of British Columbia, [1973] S.C.R. 313), requires a treaty with Indigenous Peoples in Canada before moving into their lands or taking resources from these lands. The Welcoming and Sharing Three Figure Sacred Wampum Belt is considered by the Algonquin to be a legally binding agreement that guarantees sharing the land, but in no way surrenders title to the land or resources. There is at present no other treaty between Canada and the Algonquin. In R. v. Sparrow, [1990] 1 S.C.R. 1075, Supreme Court of Canada Chief Justice Dickson wrote, “there can be no doubt that over the years the rights of the [Indigenous Peoples in Canada] were often honoured in the breach”, at paragraph 49.10 United Nations Economic and Social Council Permanent Forum on Indigenous Issues (UN ECOSOC PFII), 2010. United Nations Economic and Social Council Permanent Forum on Indigenous Issues (UN ECOSOC PFII), 2010. Preliminary study of the impact on indigenous peoples of the international legal construct known as the Doctrine of Discovery, for the 9th session of the Permanent Forum on Indigenous Issues, New York, April 19-30, 2010, E/C.19/2010/13.11 The legal rights of Indigenous Peoples to lands and resources were acknowledged in 1973 in Canada in the Calder decision. Note that neither Canada nor the Province has accepted any legal liability to the Algonquin with respect to this claim. See Indian and Northern Affairs Canada, 2008. “Frequently Asked Questions - Algonquins of Ontario Land Claim Negotiations”. Last accessed August 9, 2010, at: http://www.ainc-inac.gc.ca/ai/mr/is/aol-eng.asp; and Ontario Ministry of Aboriginal Affairs, 2009. “Claim History”. Last accessed August 9, 2010, at: http://www.aboriginalaffairs.gov.on.ca/english/negotiate/algonquin/history.asp.12 Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.13 The three territories have limited delegated authority from the federal government. The three territories have limited delegated authority from the federal government. 14 Terminology for Indigenous Peoples in Canada is fraught with colonial overtones. “Indians” is a misnomer left over from the days of Terminology for Indigenous Peoples in Canada is fraught with colonial overtones. “Indians” is a misnomer left over from the days of

Figure 2. The Welcoming and Sharing Three Figure Sacred Wampum Belt. © Bill Allen

Figure 3. Algonquin Elder William Commanda. © Paulette Caley


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reserved for the Indians”15 fall under federal jurisdiction. Most Indigenous Peoples in Canada, including the Algonquin, are subject to control by the Minister of Indian and Northern Affairs and Interlocutor for Métis. Provincial governments have no authority to legislate with respect to Indigenous Peoples directly, but provincial authority over other matters, particularly natural resources, can have profound negative impacts on Indigenous Peoples’ rights.

In 1982, the Constitution was amended to include, among other things, provision for the recognition of Indigenous rights: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”16 A body of jurisprudence is building in Canada, helping to define these rights and the obligations on the Crown to respect them. Among other things, these cases have recognized that Indigenous Peoples were independent nations prior to contact with European colonizers.17 They hold rights to land and self-government and full capacity to enter into treaties with Canada.18 The Courts have made it clear that the Crown must justify any infringement of Indigenous Peoples’ constitutional rights, including by consulting with them at the earliest point that the Crown contemplates actions that may impact these rights.19 The Courts have provided direction on the process of consultation, urging honourable negotiation and reconciliation of the sovereignty of the Crown with the rights of Indigenous Peoples; this includes reconciliation of Canadian and Indigenous laws.20

While the Supreme Court has greatly aided efforts to give respect to Indigenous Peoples’ rights, these cases have also exposed divisions in the Court.21 While one Court gave priority to Indigenous rights, another would permit virtually any field of commercial enterprise to take precedence.22 Recently, in the province of British Columbia, an area of high Indigenous diversity and few treaties, lower courts have been more willing to acknowledge the reliance of Indigenous cultures on the environment and accordingly limit disruption of these rights from economic activities of the non-Indigenous majority.23 A court in Nunavut (a Territory with a majority Inuit population) recently halted seismic testing in Lancaster Sound, citing possible “significant and irreversible” damage to Inuit culture in the area if the testing were to proceed.24

Despite Constitutional amendments and rulings of the highest court, much of Canadian legislation and policy remains at direct odds with the legal obligation to respect Indigenous rights. Canada and the provinces continue to regularly

Christopher Colombus, who believed he was in India when he sailed to North America. The term “First Nations” is used today to refer to the collective of “Indian” peoples such as the Algonquin, Mik’maq, or Haida. There are two other groups of Indigenous Peoples in Canada who do not refer to themselves as First Nations: the Inuit and Métis.15 Constitution Act, 1982, Section 91(24).16 Constitution Act, 1982, Section 35.17 R. v. Sparrow.18 These various rights have been enumerated in assorted Supreme Court of Canada decisions. See, among others, These various rights have been enumerated in assorted Supreme Court of Canada decisions. See, among others, R. v. Calder, Delgamuukw v. British Columbia [1997] 3 S.C.R. 1010, and R. v. Sioui, [1990] 1 S.C.R. 1025. See also, Borrows, J., 2005, “Tracking Trajectories: Aboriginal Governance as an Aboriginal Right”. UBC Law Review, 38(285).19 See See Haida Nation v. British Colombia (Minister of Forests), [2004] 3 S.C.R. 511, Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 S.C.R. 550, and Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388.20 See Note 19 above. Also, Justice McLachlin, in the minority, in See Note 19 above. Also, Justice McLachlin, in the minority, in R. v. Van der Peet [1996] 2 S.C.R. 507 examines how reconciliation between distinct legal cultures might be achieved stating, “a morally and politically defensible conception of aboriginal rights will incorporate both legal perspectives: of the ‘two vastly dissimilar legal cultures’ of European and aboriginal cultures” (emphasis added), at paragraph 310. Also see Walters, M., 1992. “British Imperial Constitutional Law and Aboriginal Rights: A Comment on Delgamuukw v. British Columbia”. Queen’s Law Journal, 17(350).21 In a decision of May 14, 2010, In a decision of May 14, 2010, Quebec (Attorney General) v. Moses, 2010 SCC 17, the Supreme Court of Canada split 5-4 on the interpretation of the James Bay Northern Quebec Agreement, a constitutionally protected comprehensive treaty with the Eeyou Istchee (Grand Council of the Cree). The issue at bar was the environmental assessment provisions of the agreement. The majority concludes that a federal law of general application – the Canadian Environmental Assessment Act, which came into force after the negotiation of the treaty – takes precedence over the treaty. The minority insists that the ‘supra-legislative status’ of the treaty precludes the imposition of laws of general application. The minority writes of the majority decision, “Our colleague would now condone a decision by the federal government to unilaterally renege on its own solemn promises. This is hardly what one would expect this Court to endorse in such stark contradiction to the honour of the Crown” (paragraph 58). This strong language conveys the depth of the division within the Supreme Court.22 R. v. Sparrow, recognized Indigenous rights to fish as a prior right. Conversely, R. v. Van der Peet, R. v. Gladstone [1996] 2. S.C.R. 723, and Delgamuukw v. British Columbia, authorizes limitations on these rights to give effect to social, political, and economic interests of the community of the whole. The current Chief Justice is in dissent in R. v. Van der Peet on this latter interpretation, but has not yet distinguished it.23 See, for example, See, for example, West Moberly First Nations v. British Columbia (Chief Inspector of Mines), 2010 BCSC 359, and Tsilhqot’in Nation v. British Columbia, 2007 BCSC 1700. In Tsilhqot’in, the Court states at paragraph 1350, “Governments do not recognize and affirm minority rights for the benefit of the majority. Rather, the purpose of s. 35(1), as suggested in Sparrow, is remedial. Aboriginal rights have been constitutionalized precisely in order to promote a just settlement for Aboriginal peoples by strengthening and legitimizing their claims against the Crown” (emphasis in the original). Also see Dufraimont, L., 2000, “From Regulation to Recolonization: Justifiable Infringement of Aboriginal Rights at the Supreme Court of Canada”. UT Faculty Law Review, 58(1).24 VanderKlippe, N., August 9, 2010. “Nunavut judge blocks seismic testing in Lancaster Sound”. Last accessed August 9, 2010, at: http://www. VanderKlippe, N., August 9, 2010. “Nunavut judge blocks seismic testing in Lancaster Sound”. Last accessed August 9, 2010, at: http://www.theglobeandmail.com/news/national/nunavut-judge-blocks-seismic-testing-in-lancaster-sound/article1665972/.

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ignore the constitutional duty to consult with Indigenous Peoples, let alone meet the obligation to accommodate or reconcile Indigenous rights. The general disregard of customary Indigenous laws and values and only limited processes to facilitate cross-cultural dialogue is evident in Canadian environmental law and policy. 25 For example, there is no framework or capacity to understand and integrate Indigenous knowledge in environmental law and policy, despite international recognition of its value in protecting biological diversity and despite references in federal environmental legislation of the need to engage Indigenous Peoples and the value of Indigenous knowledge. The legislation itself contains few legal

mechanisms to fulfill these objectives. The sole piece of national environmental legislation that explicitly acknowledges a connection between land and people is the Canadian Environmental Protection Act, 1999,26 which addresses environmental degradation that may negatively impact human health. The failure of the rest of Canadian environmental legislation to acknowledge this connection stands in direct contrast to the Algonquin concept of ginawaydaganuk.27

The opportunity for Indigenous Peoples to bring their perceptions of the relationship between humanity and the land to national environmental decision-making is virtually non-existent. For example, the National Aboriginal Council on Species at Risk established

under the Species at Risk Act28 is an advisory body only.29 No Indigenous governments participate on the Canadian Endangered Species Conservation Council, the body with decision-making power that is composed of federal, provincial, and territorial ministers of environment.30 Consideration of traditional knowledge is conducted by a poorly resourced Indigenous subcommittee of the Western scientist-dominated Council on the Status of Endangered Wildlife in Canada. A maximum of six Indigenous governments are permitted to participate on the National Advisory Council established under the Canadian Environmental Protection Act, 1999; the Algonquin do not qualify because they are not considered by the federal government to have rights of self-government.31 There are no provisions outlining how Indigenous knowledge is to be incorporated into the operation of this Act.

Environmental assessments are one of the few means available to Indigenous Peoples to influence environmental decision-making, but the Canadian Environmental Assessment Act32 makes no concrete provisions for the incorporation of Indigenous knowledge in assessments. Recent federal efforts to streamline approval of major natural resource projects are making it even more challenging for Indigenous Peoples. In 2009, the federal government introduced changes to the Navigable Waters Protection Act,33 removing obligations for environmental review for many types of projects that are proposed to take place on Canadian lakes and rivers.34 In March, 2010, the government announced changes to the Canadian Environmental Assessment Act that further curtails national environmental assessment.35 Provincial environmental laws and policies tend to be equally exclusionary.36

25 See, for example, Assembly of First Nations, Resolution 20/2007. Last accessed August 12, 2010, at: http://www.afn.ca/article.asp?id=3835. See, for example, Assembly of First Nations, Resolution 20/2007. Last accessed August 12, 2010, at: http://www.afn.ca/article.asp?id=3835. The Assembly of First Nations is the largest Indigenous organization in Canada, representing over 750 000 Indigenous People.26 Canadian Environmental Protection Act, 1999, S.C., 1999, c.33.27 Also see Henderson Also see Henderson et al., 2000.28 Species at Risk Act, S.C., 2002, c.29.29 Species at Risk Act, Section 8.1 obliges the Minister to establish the National Aboriginal Council on Species at Risk to advise the Minister on the administration of this Act and to provide advice and recommendations to the Canadian Endangered Species Conservation Council. However, the Minister and Canadian Endangered Species Conservation Council are not obliged to adopt this advice.30 Species at Risk Act, Section 7.31 Canadian Environmental Protection Act, 1999, Section 6 establishes the National Advisory Council to provide advice to the Minister on the Canadian Environmental Protection Act, 1999, Section 6 establishes the National Advisory Council to provide advice to the Minister on the administration of the Act. Section 6 also sets out the membership of the advisory body which includes representatives for each of the Ministers and provinces and up to six representatives of aboriginal governments, to be selected on a regional basis. Section 2 of the Canadian Environmental Protection Act, 1999, defines ‘aboriginal governments’ to mean “a governing body that is established by or under or operating under an agreement between Her Majesty in right of Canada and aboriginal people and that is empowered to enact laws…” The Algonquin do not yet have such an agreement and so do not qualify to sit on the National Advisory Council.32 Canadian Environmental Assessment Act, S.C., 1992, c.37.33 Navigable Waters Protection Act, R.S., 1985, c. N-22.34 Lake Ontario Waterkeeper, 2009. Lake Ontario Waterkeeper, 2009. The Amended Navigable Waters Act, 11 Feb 2009. Last accessed April 23, 2010 at: http://www.waterkeeper.ca/2009/02/11/research-conclusions-regarding-the-amended-navigable-waters-protection-act-as-included-in-the-budget-implementation-act-bill-c-10/.35 At least 20 First Nations have protested this action. Canadian Press, 2010. “Aboriginals warn PM not to weaken environmental law”. Last At least 20 First Nations have protested this action. Canadian Press, 2010. “Aboriginals warn PM not to weaken environmental law”. Last accessed August 9, 2010, at: http://toronto.ctv.ca/servlet/an/local/CTVNews/20100422/harper_letter_100422/20100422/?hub=TorontoNewHome.36 For example, the Ontario For example, the Ontario Environmental Assessment Act, R.S.O. 1990, Chapter E.18, and the Environmental Protection Act, R.S.O. 1990, Chapter E.19, which apply in Algonquin territory, make no reference to Indigenous Peoples, their rights, their knowledge, or their participation in decision-making. Two protests in 2007 by Indigenous Peoples in Ontario, including by the Algonquin, over mining in their traditional territory without their

Despite Constitutional amendments and Supreme Court rulings, Canadian

legislation and policy remain at odds with

Indigenous Peoples’ rights.


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Canada’s foreign policy on Indigenous Peoples’ rights and environmental agreements has been developed in a similar vacuum. Canada fought the recognition of Indigenous rights in the international arena and was one of only four countries to vote against the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).37 While two of the four have since approved it, the Canadian government continues to suggest that UNDRIP has only limited application in the country.38 Canada has not held consultations with Indigenous Peoples in Canada on the development of domestic ABS policy or, by extension, the negotiation of the international ABS regime. At a meeting on ABS with the federal environment ministry on June 2, 2010, multiple representatives from Indigenous organizations and communities across the country rose to protest the lack of consultation with them.39 The government’s actions (or lack thereof) are contrary to federal stated policy and Constitutional obligations to consult with Indigenous Peoples when their rights may be affected by proposed legislation, policies, or programmes.40

Canada has been reluctant to acknowledge the rights of Indigenous Peoples in the negotiations on an international ABS regime.41 Objections have also been lodged by Canada to the non-binding requirement under UNDRIP to ensure that Indigenous Peoples’ free, prior, and informed consent is obtained for access to resources rightfully owned by them.42 Canada has instead proposed “approval and involvement” of Indigenous Peoples in the international ABS negotiations.43 It is unclear how Canada would interpret ‘approval and involvement’ or how it differs from free, prior and informed consent. Canada has also opposed provisions on traditional knowledge in sections of the draft ABS protocol that address compliance. Finally, Canada has refused to adopt a holistic approach to referencing genetic resources and Indigenous knowledge, treating them instead as disconnected elements.44

free, prior and informed consent, resulted in the jailing of Indigenous leaders. 37 United Nations Declaration on the Rights of Indigenous Peoples GA Res. 61/295 UN GAOR, 61st Session, Agenda Item 68, UN Doc. A/RES/61/295, (2007). See United Nations General Assembly, Sixty-First Session, 107th plenary meeting Thursday, September 13, 2007, 10 a.m. New York, A/61/PV.107 at page 12 for an explanation of why Canada voted against UNDRIP.38 In the federal Speech from the Throne (Canada (Governor General), March 3, 2010. In the federal Speech from the Throne (Canada (Governor General), March 3, 2010. A Stronger Canada. A Stronger Economy. Now and for the Future, Speech from the Throne, at 19), the government states: “We are a country with an Aboriginal heritage. A growing number of states have given qualified recognition to the United Nations Declaration on the Rights of Indigenous Peoples. Our Government will take steps to endorse this aspirational document in a manner fully consistent with Canada’s Constitution and laws” (emphasis added). This approach is based on the ideology of the current federal administration, which rejects the notion that the Canadian Constitution grants Indigenous Peoples collective rights, a fundamental principle of UNDRIP. Asserting that national legislation trumps international law is inconsistent with international legal principles and supports the retention of the status quo. The government’s interpretation has been rejected by over 50 human rights lawyers and constitutional experts. See Abell, J., et al. (signed open letter), May 1, 2008. “UN Declaration on the Rights of Indigenous Peoples: Canada Needs to Implement this New Human Rights Instrument”. Last accessed May 20, 2010, at: http://www.amnesty.ca/index_resources/open_letters/un_ip_declaration_experts_letter.pdf. Also see, Joffe, P., 2010. “Canada’s Opposition to the UN Declaration: Legitimate Concern or Ideological Bias?”, pages 70-94 in Hartley, J., P. Joffe, and J. Preston (eds.), Realizing the UN Declaration on the Rights of Indigenous Peoples: Triumph, Hope and Action. First Nations Summit Society: Saskatoon.39 Also see Assembly of First Nations, Resolution No. 5, 1999 (“Control and Management of Non-Timber Forest Products Resolution”) Also see Assembly of First Nations, Resolution No. 5, 1999 (“Control and Management of Non-Timber Forest Products Resolution”), Resolution No. 27, 2003 (“Protection Of Intellectual Property Rights And Traditional Knowledge”), and Resolution No. 58 (“Traditional Knowledge”). Assembly of First Nations, 1999. Last accessed June 30, 2010, at: http://www.afn.ca/article.asp?id=891; http://www.afn.ca/article.asp?id=1273; and http://www.afn.ca/article.asp?id=4087, respectively.40 In all instances “when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and In all instances “when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it” (Haida at paragraph 35), Canada is obliged to consult, which includes obligations ranging from information sharing to obtaining Indigenous consent, depending on the potential impact on Indigenous rights. The honour of the Crown is at stake when addressing Indigenous rights in Canada. In Haida, the court notes, at paragraph 27, “To unilaterally exploit a claimed resource during the process of proving and resolving the Aboriginal claim to that resource, may be to deprive the Aboriginal claimants of some or all of the benefit of the resource. That is not honourable.” The Haida decision forms the backbone of the Aboriginal Consultation and Accommodation Interim Guidelines for Federal Officials to Fulfill the Legal Duty to Consult, 2010. Queen’s Printer: Ottawa. Last accessed July 6, 2010, at http://www.ainc-inac.gc.ca/ai/arp/cnl/intgui-eng.asp.41 Canada brackets text proposed by the International Indigenous Forum on Biodiversity (IIFB) that the “international regime shall uphold the Canada brackets text proposed by the International Indigenous Forum on Biodiversity (IIFB) that the “international regime shall uphold the rights of indigenous peoples and local communities to benefit-sharing when their genetic resources and/or associated traditional knowledge are accessed.” See Earth Negotiations Bulletin, 2009. “Summary Of The Eighth Meeting Of The Working Group On Access And Benefit-Sharing Of The Convention On Biological Diversity, 9-15 November 2009”. Last accessed July 6, 2010, at: http://www.iisd.ca/vol09/enb09489e.html.42 “Canada requested bracketing all references to PIC [prior informed consent] and to ‘genetic resources and/or’ associated traditional knowledge “Canada requested bracketing all references to PIC [prior informed consent] and to ‘genetic resources and/or’ associated traditional knowledge throughout the text.” Earth Negotiations Bulletin, 2009.43 “Canada added reference to ‘approval and involvement’ of indigenous and local communities as an alternative to PIC.” Earth Negotiations “Canada added reference to ‘approval and involvement’ of indigenous and local communities as an alternative to PIC.” Earth Negotiations Bulletin, 2009. Also see Earth Negotiations Bulletin, 2010. “Summary Of The Ninth Meeting Of The Working Group On Access And Benefit-Sharing Of The Convention On Biological Diversity, 22-28 March 2010”. Last accessed July 6, 2010, at: http://www.iisd.ca/vol09/enb09503e.html.44 Earth Negotiations Bulletin, 2010. Earth Negotiations Bulletin, 2010.

Although it has the potential to support Indigenous Peoples’ cultures and development, the current draft of the ABS protocol threatens to exacerbate the abuse of Algonquin rights.

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An international ABS regime that is respectful of Indigenous cultures and rights has tremendous potential to alleviate poverty, support Indigenous economic development, and promote greater respect for Indigenous cultures. By way of example, the Nunavik Inuit, who negotiated comprehensive treaties with Canada in 1975 and 2008, established the wholly Inuit-owned Nunavik Biosciences Incorporated to investigate possible uses of local genetic resources.45 Among other things, they have developed a line of high-end cosmetics using seaweed that grows in Ungava Bay. The seaweed is harvested in a sustainable fashion by local Inuit, providing both an income for the harvesters and respect for Inuit traditional laws, which, similar to the Algonquin laws, demand deference for the capacity of the land. As the Nunavik Inuit are the shareholders of Nunavik Biosciences Incorporated, any profits are invested in fulfilling the Makivik mandate, including the protection of Inuit language and culture.46

At this point in the negotiations, without greater respect for Indigenous Peoples’ rights, the ABS regime could become another abuse of Algonquin constitutional and international rights, further robbing the Algonquin of the wherewithal to practice their traditional culture. In its current state, the ABS regime directly conflicts with the concept of ginawaydaganuk. At its ninth session in April, 2010, the United Nations Permanent Forum on Indigenous Issues reviewed progress on the ABS regime and reiterated (addressing the Parties to the Convention on Biological Diversity),

[C]onsistent with international human rights law, States have an obligation to recognize and protect the rights of indigenous peoples to control access to the genetic resources that originate in their lands and waters and any associated indigenous traditional knowledge. Such recognition must be a key element of the proposed international regime on access and benefit sharing, consistent with the United Nations Declaration on the Rights of Indigenous Peoples.47

Despite concurring that respect for Indigenous knowledge, practices, and innovations are a positive means to support the in situ conservation and sustainable use of biological diversity,48 Canada has failed to establish the precedent of conditions necessary to support them. Indigenous Peoples are excluded from environmental decision-making, have little control over the use of natural resources in their territories, and had their spiritual and other cultural practices outlawed, disrespected, and suppressed by a state intent on assimilation, not reconciliation.49 The suppression of Indigenous cultures and rampant environmental degradation has resulted in a predictable decline of biological diversity.

ConsequenCes

Canada is experiencing the consequences of a positive feedback loop50 between the decline of biological and cultural diversity. The imposition of colonial cultural hegemony has facilitated the well-documented degeneration of biological diversity.

Indigenous peoples in Canada have suffered the results of the decline of traditional culturally important species. The famine experienced by Indigenous Peoples of the prairies with the deliberate slaughter of the buffalo is just one example.51 The Algonquin have been similarly affected. The American Eel, for instance, once a mainstay of the Algonquin diet prized as a highly nutritious travelling food, has practically disappeared from Algonquin territory. The Algonquin have argued for its inclusion on the federal list of endangered species to no avail. Deficient though it is, the sobering national list of endangered species includes 17 mammals, 25 birds, eight reptiles, six amphibians, 20 fishes, 14 arthropods, 12 molluscs, 78

45 Makivik Corporation (no date). “Subsidiary Companies / Wholly Owned / Nunavik Biosciences Incorporated”. Last accessed July 7, 2010, at: Makivik Corporation (no date). “Subsidiary Companies / Wholly Owned / Nunavik Biosciences Incorporated”. Last accessed July 7, 2010, at: http://www.makivik.org/en/subsidiary-companies/wholly-owned/nunavik-biosciences.46 Makivik Corporation (no date). “Corporate/Makivik Mandate” (Makivik Corporation, Kuujjuak, 2008). Last accessed August 9, 2010, at: Makivik Corporation (no date). “Corporate/Makivik Mandate” (Makivik Corporation, Kuujjuak, 2008). Last accessed August 9, 2010, at: http://www.makivik.org/en/corporate/mandate.47 UN ECOSOC PFII, 2010b. UN ECOSOC PFII, 2010b. Report of the 9th Session, 19-30 April 2010, E/2010/43-E/C.19/2010/15.48 Article 8(j), Article 8(j), Convention on Biological Diversity, June 5, 1992, 1760 U.N.T.S. 79, C.T.S. 1993 No. 24 (entry into force December 29, 1993, ratified by Canada on December 4, 1992).49 See Canada, 1996. See Canada, 1996.50 A positive feedback loop entails a system or conditions that elicit other conditions that, when left unmitigated, increase the magnitude of the original system or conditions. Though it is referred to as a ‘positive’ feedback loop, in reality, its consequences can be devastatingly negative and can lead to the destruction of the system itself. See Wiener, N., 1948. Cybernetics or Control and Communication in the Animal and the Machine. John Wiley & Sons, Inc.: New York.51 See for example, CBC Learning, 2001. “Buffalo Slaughter: Greed kills the magnifi cent prairie beast and changes native life forever”. Last See for example, CBC Learning, 2001. “Buffalo Slaughter: Greed kills the magnificent prairie beast and changes native life forever”. Last accessed August 12, 2010, at: http://www.cbc.ca/history/EPISCONTENTSE1EP10CH2PA2LE.html; and Office of the Treaty Commissioner, 2008. “Frequently asked Questions”. Last accessed August 12, 2010, at: http://www.otc.ca/ABOUT_TREATIES/FAQs/#2.


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vascular plants, six mosses, and two lichens.52 Many others are threatened or are of special concern.53 In Algonquin territory in Ontario, 18 fish, 30 birds, three mammals, 23 plants, 16 reptiles, four insects, one mollusc, and one lichen are either extirpated, threatened, endangered, or of special concern.54 Some of these, including the Golden and Bald Eagles, Eastern Wolf, American Ginseng, Butternut, Goldenseal, Whip-poor-will, and Lake Sturgeon, are important foods, medicines, or emblematic species for the Algonquin. The survival of these species cannot be presumed and their chances are worsening.

In correspondence with declines in biological diversity, Indigenous Peoples are also facing declines in cultural diversity. The review conducted for the Secretariat of the CBD on the status of traditional knowledge in North America noted the challenge of making categorical statements about the status of traditional knowledge.55 There is great variation in the retention of Indigenous knowledge and practices, depending on a host of factors. However, the Parties to the CBD have adopted the degree of retention of traditional languages as one indicator of cultural health.56

There is uncertainty about how many languages and dialects were once spoken in Canada.57 Estimates range up to almost 80 different Indigenous languages in Canada prior to contact,58 61 of which were still spoken in 2005.59 Only Inuit, Cree, and Anishinaabemowin (Ojibwa) are considered viable, but even they are in decline.60 The Canadian Task Force on Aboriginal Languages and Cultures states that “all languages, including those considered viable, are losing ground and are endangered.”61 It is estimated that only 2 430 Algonquin speak their traditional language, Anishinaabemowin, and

52 Environment Canada, Environment Canada, Species at Risk List on the SARA Public Registry, listing dated 02-01-2008. last accessed April 21, 2010, at: http://www.sararegistry.gc.ca/species/schedules_e.cfm?id=1.53 Environment Canada, 2008. Environment Canada, 2008.54 Ontario Ministry of Natural Resources, Species at Risk List (last modifi ed March 24, 2010). Last accessed April 21, 2010, at: http://www.mnr. Ontario Ministry of Natural Resources, Species at Risk List (last modified March 24, 2010). Last accessed April 21, 2010, at: http://www.mnr.gov.on.ca/en/Business/Species/2ColumnSubPage/276503.html.55 Secretariat of the Convention on Biological Diversity, 2003. Secretariat of the Convention on Biological Diversity, 2003. Composite Report On The Status And Trends Regarding The Knowledge, Innovations And Practices Of Indigenous And Local Communities: North America, for the Ad Hoc Open-Ended Inter-Sessional Working Group On Article 8(j) And Related Provisions of the Convention On Biological Diversity, third session, UNEP/CBD/WG8J/3/INF/8. Last accessed August 9, 2010, at: http://www.cbd.int/doc/meetings/tk/wg8j-03/information/wg8j-03-inf-08-en.doc.56 See CBD COP 9 Decision I�/13, Article 8(j) and related provisions Part H, 2008. “Indicators for assessing progress towards the 2010 See CBD COP 9 Decision I�/13, Article 8(j) and related provisions Part H, 2008. “Indicators for assessing progress towards the 2010 biodiversity target: status of traditional knowledge, innovations and practices”. Last accessed August 9, 2010, at: http://www.cbd.int/decision/cop/?id=11656.57 Secretariat of the Convention on Biological Diversity, 2003 Secretariat of the Convention on Biological Diversity, 2003, at page 2.58 Gordon, R. G., Jr., (ed.), 2005. Gordon, R. G., Jr., (ed.), 2005. Ethnologue: Languages of the World, Fifteenth edition. SIL International: Dallas. Last accessed August 9, 2010, at: http://www.ethnologue.com/.59 Canadian Heritage, 2005. Canadian Heritage, 2005. Towards a New Beginning, A Foundational Report for a Strategy to Revitalize Aboriginals, Inuit, and Métis Languages and Cultures. Queen’s Printer: Ottawa, at page 2.60 Canadian Heritage, 2005. Note that Inuktitut is also considered viable. See First Peoples’ Heritage, Language and Culture Council, 2010. Canadian Heritage, 2005. Note that Inuktitut is also considered viable. See First Peoples’ Heritage, Language and Culture Council, 2010. 2010 Report on the Status of B. C. Fist Nations Languages. First Peoples’ Heritage, Lange and Culture Council: Brentwood Bay, B. C. Last accessed September 2, 2010, at: http://www.fphlcc.ca/language/language-report.61 Canadian Heritage, 2005. Canadian Heritage, 2005.

Figure 4. The American Eel plays an important role in its relationship with Indigenous peoples connected to the Caribbean basin and much of eastern North America. However, pollution, over-fishing, and hydro dams without fish passages have severely harmed this relationship for Anishnabe and Haudenosaunee nations. © Raymond R. Skye

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less than 10% are unilingual.62 Out of 2 036 registered Algonquin at Pikwaknagan,63 45 speak their traditional language.64 The loss of cultural continuity resulting from the loss of traditional languages undermines community well-being, including triggering higher rates of youth suicide.65 Youth suicide is a scourge of Indigenous communities and Canada’s shame, with rates at five to seven times the national average.66

It has been demonstrated that where there is interference with the exercise of traditional Indigenous cultures, biological diversity falls into decline. As Luisa Maffi, co-founder and president of Terralingua: Partnerships for Linguistic and Cultural Diversity notes, “Due to its place-specific and subsistence-related nature, [Indigenous] ecological knowledge is at especially high risk of being lost, as people are removed from their traditional environments or become alienated from traditional ways of life and lose their close links with nature.”67 With the loss of biological species, the traditional words, ceremonies, or values associated with those species become meaningless; this has been referred to as an “extinction of experience”.68

A positive feedback loop is thus perpetuated as traditional Indigenous cultures fall into decline, with the loss of traditional languages fuelling the extinction of experience. As words for places and ideas are lost, the unique relationship between the people and the land is weakened. The species that were relied upon by Indigenous cultures lose their value and their central place in daily life, and they fall into decline from neglect.

ReConCiliAtion

The Canadian courts have called for the reconciliation of Indigenous and Canadian law as a means to reconcile the rights of Indigenous Peoples with the sovereignty of the Crown. To reconcile means to become friends again, arguably best achieved through conversation, respectful exploration of views, and consensus-building. As the courts themselves have confirmed on numerous occasions, the courts are no place to resolve disagreements of this nature.69

In the field of environmental law, reconciliation means respecting the Algonquin law of ginawaydaganuk, as well as other Indigenous and Canadian environmental laws, policies, and procedures. It means recognizing the value of the concept of ginawaydaganuk as a legitimate philosophical basis on which to order decision-making and the establishment of an enabling framework in the Canadian governance continuum. The Welcoming and Sharing Wampum must be recognized as an instrument of Algonquin law that is considered just as important and legally binding as the Canadian Constitution. The Algonquin must be included in decision-making processes at the municipal, regional, provincial, and federal levels, with sufficient and appropriate resources provided for their full and meaningful participation. Reconciliation also means negotiating a treaty with the Algonquin to ensure that Canada complies with its own laws,70 resolves land

disputes, compensates the Algonquin for the expropriation of resources, and establishes new methods that support, encourage, and ensure Algonquin participation in decision-making, implementation, monitoring, and enforcement. Respect for Algonquin, federal, and international law requires meaningful consultation with the Algonquin, respect for their right to provide or deny free, prior and informed consent for access to Algonquin resources and knowledge, and the equitable

62 Gordon, R. G., Jr., 2005. Gordon, R. G., Jr., 2005.63 Indian and Northern Affairs Canada, 2010a. “Registered Population”. Last accessed April 20, 2010, at: http://pse5-esd5.ainc-inac.gc.ca/fnp/ Indian and Northern Affairs Canada, 2010a. “Registered Population”. Last accessed April 20, 2010, at: http://pse5-esd5.ainc-inac.gc.ca/fnp/Main/Search/FNRegPopulation.aspx?BAND_NUMBER=163&lang=eng.64 Indian and Northern Affairs Canada, 2010b. “Languages”. Last accessed April 20, 2010, at: http://pse5-esd5.ainc-inac.gc.ca/fnp/Main/ Indian and Northern Affairs Canada, 2010b. “Languages”. Last accessed April 20, 2010, at: http://pse5-esd5.ainc-inac.gc.ca/fnp/Main/Search/FNLanguage.aspx?BAND_NUMBER=163&lang=eng.65 “In Canada … Aboriginal youth suicide rates vary substantially from one community to another. The results reported demonstrate that … “In Canada … Aboriginal youth suicide rates vary substantially from one community to another. The results reported demonstrate that … youth suicide rates effectively dropped to zero in those few communities in which at least half the band members reported a conversational knowledge of their own ‘Native’ language.” Hallett, D., M. J. Chandler, and C. E. Lalonde, 2007. “Aboriginal language knowledge and youth suicide”. Cognitive Development, 22: 392-399, at page 392. In this study, they reported that language retention was the best cultural indicator for predicting youth suicide – the higher the level of retention of traditional languages, the lower the suicide rate.66 Health Canada, First Nations, Inuit and Aboriginal Health, 2006. Health Canada, First Nations, Inuit and Aboriginal Health, 2006. Suicide Prevention. Queen’s Printer: Ottawa. Last accessed August 9, 2010, at: http://www.hc-sc.gc.ca/fniah-spnia/promotion/suicide/index-eng.php.67 Maffi , L., 1999. “Language and the environment”, pages 22-35 in Posey, D. A. (ed.), Maffi, L., 1999. “Language and the environment”, pages 22-35 in Posey, D. A. (ed.), Cultural and Spiritual Values of Biodiversity. United Nations Environment Programme: Nairobi, at page 30.68 Nabhan, G., and S. St. Antoine, 1993. “The Loss of Floral and Faunal Story: The Extinction of Experience”, pages 229-250 in Kellert, S. R., Nabhan, G., and S. St. Antoine, 1993. “The Loss of Floral and Faunal Story: The Extinction of Experience”, pages 229-250 in Kellert, S. R., and E. O. Wilson (eds.), The Biophilia Hypothesis. Island Press: Washington, D. C.69 Van der Peet, at paragraph 313.70 Royal Proclamation of 1763. Royal Proclamation of 1763.

Reconciliation, called for by Canadian courts, must include

the simultaneous pursuit of the protection of human rights

and the environment, and respect for both cultural and

biological diversity.


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sharing of benefits that are derived from that access.

The Canadian federation must be expanded to include the Algonquin and other Indigenous nations. New mechanisms may be required; above all else, they must facilitate respect and equity. Traditional Algonquin law, practices, and knowledge must be allowed room to flourish in order to achieve collective objectives of peace and sustainable development.

Neither respect for human rights nor protection of the environment alone will ensure the protection of biological diversity. These must be pursued simultaneously. There must be respect for both the land and the people by all governments. Respect for the land is demonstrated by preserving the environmental means to sustain cultural diversity. Respect for people is demonstrated by respecting human rights such as rights to self-determination and self-government. The land and the people are integrally connected and the protection of one is only found through respect of the other. If the retention of both cultural and biological diversity together is not supported, neither will be sustained. To respect both is true reconciliation.

ConClusion

The symbiotic connection between humanity and the land is captured in the Algonquin law of ginawaydaganuk. Current Canadian law and policy threatens the retention and practice of this concept, undermining our collective capacity to sustain cultural and biological diversity. To restore a balance between biological and cultural diversity and between Canada and the Algonquin, Canada must support the domestic reconciliation of Algonquin and Canadian law. In the international arena, Canada can take the lead in supporting the recognition of the collective rights of Indigenous Peoples in the negotiation of the international ABS regime.

The commitments expressed in the Welcoming and Sharing Wampum, Canada’s first ABS agreement, still exist today. The new international regime on ABS must be founded on the sacred responsibilities to the earth that are enshrined in the wampum; only through joining good hearts and minds can we honour all of our children for seven generations to come.

Larry McDermott ([email protected]), MA, is an Algonquin elected councilor with the Shabot Obaadjiwan First Nation. He is the Executive Director of Plenty Canada, serves as the co-chair of the Biodiversity Caucus of the Canadian Environmental Network, and is a member of the Ontario Species at Risk Public Advisory Panel. Peigi Wilson ([email protected]), LLM, LLB, BA (Hons), is a Métis lawyer and policy analyst working on environmental and Indigenous issues. She is a Director of the Centre for Indigenous Environmental Resources and a National Trustee of the Canadian Parks and Wilderness Society. Raymond R. Skye ([email protected]), Tuscarora artist of the American Eel in Figure 4, was born at Six Nations Grand River Territory in Southern Ontario. He credits much of the inspiration for his artwork to the traditional teachings of his father, who was a member of the Seneca Nation. Raymond firmly claims those teachings have given him a strong cultural foundation that continues to inform his work.

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Julie Gardner and Robert Morales1

Some initiatives of Canadian federal and provincial governments towards area-based marine and coastal conservation have met with resistance from various Pacific coast First Nations. Canadian government agencies are striving to increase the number of marine protected areas by implementing federal and provincial statutes, while unresolved issues of rights and title hamper implementation of arrangements that could achieve biodiversity conservation in ways that are also consistent with First Nations rights and interests.

First Nations in the province of British Columbia on the west coast of Canada have had a profound cultural, economic, and physical relationship with the ocean since time immemorial. Their role as communities and governments with authorities

respecting marine resources is gaining prominence in today’s complex coastal milieu. In particular, the experience and perspectives of the Hul’qumi’num Treaty Group, a group of First Nations located in southeastern British Columbia, are drawn on in this paper to highlight current issues.

The Hul’qumi’num Treaty Group is an organization that was formed in 1991 by six First Nations for the purposes of negotiating a modern treaty under the Treaty process with the governments of British Columbia and Canada (often referred to as “the Crown”). The member nations are the Cowichan Tribes, Halalt First Nation, Lyackson First Nation, Lake Cowichan First Nation, Penelakut First Nation, and the Stz’uminus First Nation. The member nations are unified by culture, language, family connections, and a common objective of reaching a Treaty with the

1 The authors would like to thank the Canadian Parks and Wilderness Society (Gordon and Betty Moore Foundation funding) for the use of material from their 2009 publication by J. Gardner, First Nations and Marine Protected Areas: An introduction to First Nations Rights, Concerns and Interests Related to MPAs on Canada’s Pacific Coast. They would also like to thank the Hul’qumi’num Treaty Group for the use of material from their 2005 publication by B. Evans, J. Gardner, and B. Thom, Shxunutun’s Tu Suleluxwtst – “In the Footsteps of our Ancestors” – Interim Strategic Land Plan for the Core Traditional Territory of the Hul’qumi’num Treaty Group.

Shifting Currents: Seeking Convergence in the Pursuit of Conservation Arrangements that Respect First Nations’ Rights on Canada’s Pacific Coast

Various initiatives of Canadian federal and provincial governments to establish marine protected areas have met with resistance from some Pacific coast First Nations. At the same time, some (such as the six member nations in the Hul’qumi’num Treaty Group) have been generating approaches to marine conservation that can address their rights and interests while protecting biodiversity. Convergence has been found in the co-management of existing Park Reserves, but other opportunities remain unrealized due to Canada’s unwillingness to support First Nation-generated protected area arrangements such as the Hul’qumi’num Intensive Traditional Use Areas and Hul’qumi’num Management and Harvest Areas. Both First Nations objectives and ecosystem protection could be advanced if Canada recognized Aboriginal rights through legislation, policy, or treaties that include conservation arrangements tailored to First Nations territories.

Abstract

Figure 1. Core Traditional Territory of the Hul’qumi’num Mustimuhw (submitted to the BC Treaty Commission in 2002). © Hul’qumi’num Treaty Group


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Crown. The population of the nations is over 6 000. Figure 1 shows the location of the 334 000 hectare Core Traditional Territory of the Hul’qumi’num Mustimuhw2, who have always owned and have never relinquished through treaty the Core Traditional Territory lands and waters. Hul’qumi’num rights and title were not displaced by the Crown’s imposition of its jurisdiction. Thus two legal systems now apply in the Territory: the Crown’s system and Hul’qumi’num customary laws and sovereignty. Key Canadian agencies with mandates and jurisdiction related to the coastal and marine environment of the area are Fisheries and Oceans Canada and Parks Canada, as well as the province of British Columbia’s parks agency3.

Hul’qumi’num ConneCtion witH Coastal and marine eCosystems Oral histories connect Hul’qumi’num Mustimuhw to the land from the beginning of time, clearly expressing the customary laws that root Hul’qumi’num people to their traditional territories. Connection to place is based in land use, occupancy, property, language, residence, and identity.4 Every bay, every peninsula, every hill, and every bend in the river has a Hul’qumi’num name that provides a key to the extensive knowledge needed to harvest and steward the resources of the territory.

Throughout their history, Hul’qumi’num Mustimuhw decided and guided the access that other peoples had to their lands and the resources on them; however, this was ignored by more recent settlers. Systems of management were conducted by laws that ensured the sustainability of resources. These Hul’qumi’num laws lay the foundation for how Hul’qumi’num people must continue to meet their obligations in relation to the natural world. Traditional and direct dependence on renewable resources and ecosystems, including sustainable harvesting, continues to be essential to the cultural, economic, and physical well-being of the Hul’qumi’num Mustimuhw. Viewed as part of the ecosystem, integral to its function and health, and impacting it and being impacted by it, the Hul’qumi’num feel a connection with nature at a first-hand level. Respecting each other and respecting marine resources is a fundamental principle of Hul’qumi’num culture.5 Their relationship to the coast and the ocean is neither preservationist nor utilitarian; it is a holistic perspective that combines both. A fundamental implication is that protected areas cannot be imposed in a way that separates First Nations from the ocean and its resources.

Intertidal resources are especially significant to Hul’qumi’num Mustimuhw.6 In the past, foods from the foreshore were plentiful and were relied upon to supplement salmon harvests.7 Virtually every accessible beach would have been visited regularly for resource harvesting and other economic and cultural purposes. Beaches were actively managed to improve growing conditions and prevent over-harvesting. In the words of an elder, “the people created an industry around clams and it goes back as far as 2000 years. It was a food commodity as well as a trading commodity.”8 Collecting shellfish, especially clams, for food and cultural events is still very important to Hul’qumi’num Mustimuhw.

alienation of Hul’qumi’num mustimuHw from sea resourCes

2 Mustimuhw means people.3 BC Parks, in the British Columbia Ministry of Environment.4 Thom, B. D., 2005. Coast Salish Senses of Place: Dwelling, Meaning, Power, Property and Territory in the Coast Salish World, Ph.D. thesis McGill University: Montreal, page 384.5 Ayers, C., 2005. Marine Conservation from a First Nations’ Perspective: A Case Study of the Principles of the Hul’qumi’num of Vancouver Island, British Columbia, M.Sc. thesis. University of Victoria, Interdisciplinary Studies: Victoria.6 Hul’qumi’num Treaty Group, 2005. Shxunutun’s Tu Suleluxwtst – “In the Footsteps of our Ancestors” – Interim Strategic Land Plan for the Core Traditional Territory of the Hul’qumi’num Treaty Group (British Columbia). Last accessed September 2, 2010, at: http://www.hulquminum.bc.ca/pubs/HTG_LUP_FINAL.pdf.7 Rozen, D., 1985. Place Names of the Island Halkomelem Indian People, M.A. Thesis. Department of Anthropology and Sociology, University of British Columbia: Vancouver.8 Qwustenuxun (Ernest Wesley Modeste), from an affidavit.

Figure 2. Intertidal resources play an important cultural and economic role in the livelihoods of Hul’qumi’num Mustimuhw. © Holly Shrumm

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Colonialism imposed many injustices on First Nations in Canada, including interruption of access to traditional territories. The government of British Columbia has argued that the justification for the small size of Indian reserves9 was that coastal First Nations depended on the sea resources for their livelihoods and therefore did not require large parcels of land. In the late 1850s and early 1860s, the colonial government in Victoria invited colonists to “purchase” Hul’qumi’num lands outside of the small reserves.10 Today, close to 84% of Hul’qumi’num traditional territory is privately owned. The 23 reserves in the traditional territory represent less than 2% of the area.

The Hul’qumi’num Traditional Territory is now characterized by a complex mixture of land uses, including extensive agricultural development, numerous towns and cities, and an extensive network of roads. At the same time, this coastal lowland has specialized biophysical conditions that are unique in Canada. The combination of intense development with unique biogeography means that a large number of ecosystems and plant and animal species are catalogued as rare and/or endangered.11

Throughout British Columbia, the colonial paradigm has compromised First Nations’ access to the wealth of the ocean. During the time that Indian reserves were being allotted, the Crown also imposed Canadian fisheries law on the Pacific coast, effecting a reallocation of the fisheries from Native peoples to the owners of capital and, in some cases, to sport fishers. Over recent decades, Canada’s fishery management policies further marginalized First Nations, who are struggling to regain access.12 Hul’qumi’num communities have suffered in particular from the loss of ‘usability’ of coastal resources such as clams that are no longer edible due to pollution, loss of access to the shoreline due to development, docks, and other structures, and government regulations contrary to their interests. An overwhelming concern in Hul’qumi’num communities is that the management and enforcement structures of the Canadian and British Columbia governments set up barriers that prevent them from harvesting traditional foods, especially fish and seafood.13 There are also concerns about over-harvesting of marine species (for example, abalone and urchin) by others, which, combined with habitat loss, has led to a severe

decline in these species’ populations. The depletion and degradation of the environment and resources is antithetical to Hul’qumi’num interests, beliefs, and priorities, and these issues are of grave concern and consequence to the Hul’qumi’num Mustimuhw.

9 An Indian Reserve is a tract of land, the legal title to which is held by the Crown, set apart for the use and benefit of an Indian band. First Nation is a term used in place of Indian band (both terms refer to Indigenous peoples).10 Morales, R. (no date). The Great Land Grab on Hul’qumi’num Territory Colonialism and the Esquimalt & Nanaimo Railway Land Grant in Hul’qumi’num Territory. Hul’qumi’num Treaty Group: British Columbia. Last accessed September 2, 2010, at: http://www.hulquminum.bc.ca/pubs/HTGRailwayBookSpreads.pdf.11 Oro, F. S., and J. P. Secter, 2005. Co-management strategy Investigations and Analysis. Prepared for the Hul’qumi’num Treaty Group: British Columbia. An example is the Gary Oak ecosystem, many species of which are at risk or already extinct. Last accessed September 2, 2010, at: http://www.goert.ca/about_GOE_where.php.12 Jones, R., 2006. “Canada’s seas and her First Nations: A colonial paradigm revisited,” pages 299-314 in Rothwell, D. R., and D. L. VanderZwaag (eds.), Towards Principled Oceans Governance: Australian and Canadian Approaches and Challenges. Routledge Research: UK.13 Fediuk, K., and B. Thom, 2003. “Contemporary and desired use of traditional resources in a Coast Salish community: Implications for food security and Aboriginal rights in British Columbia”, paper presented at the 26th Annual Meeting of the Society for Food Security and Aboriginal Rights in British Columbia.

Figure 3. Generalized land status in British Columbia. © Crown Land Registry Services


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aboriginal rigHts and title The Supreme Court of Canada has stated in a series of decisions14 that Aboriginal title and rights continue to exist in British Columbia. In Vanderpeet,15 the court stated that the rights are those practices, customs, and traditions that were integral to the distinct society at the time of contact. Coastal First Nations generally view their territories and their Aboriginal rights and title to those territories as extending not just over the marine areas that they have used, occupied, and controlled for thousands of years: “For First Nations, the existence of sea title is as obvious as Aboriginal title to dry land as there are no dividing lines when you step out your front door onto the beach or when you board a canoe to travel to a nearby fishing ground.”16

“Existing rights” are now recognized and protected according to the Constitutional reform of 1982, in Section 35.17 However, Canada has taken a narrow view of the word ‘existing’ and has chosen to implement Section 35 by forcing First Nations to prove that the rights exist in court before allowing them to be recognized by government officials. Nevertheless, the Supreme Court of Canada has stated that the government has a duty to consult with Aboriginal peoples and accommodate their interests, even in circumstances where a First Nation has not yet proved in court that it has Aboriginal title or other Aboriginal rights.18

The Hul’qumi’num Treaty Group member nations have been pursuing effective recognition and implementation of their rights and title over a number of decades. Progress toward effective recognition through the treaty negotiation process and other efforts has been so slow that the Hul’qumi’num filed a complaint against Canada before the Organization of American States’ Inter-American Commission on Human Rights in 2007. Lack of effective implementation of both domestic and international recognition of Aboriginal rights and Indigenous human rights is at the heart of the Hul’qumi’num complaint. The initial justification for small reserves no longer holds true, since Hul’qumi’num people can no longer rely on the sea resources for their livelihoods due to economic and environmental factors beyond their control. The Inter-American Commission’s decision on admissibility stated that Canada has failed to provide adequate, effective, and available domestic remedies on the issue of the taking of Hul’qumi’num lands and alienation of them through granting of private title.19

marine Conservation initiatives in Hul’qumi’num territory: Collision Course or opportunity?While First Nations have been working towards recognition of their rights and title, proponents of marine conservation in British Columbia such as non-governmental organizations, Parks Canada, Fisheries and Oceans Canada, and the province of British Columbia have been working towards a system of marine protected areas under a mix of jurisdictions. For example, over a decade ago, Parks Canada launched a feasibility study for a National Marine Conservation Area in the southern Strait of Georgia, much of which falls in Hul’qumi’num territory. The provincial and federal government staff working on the study recognize that First Nations values and interests associated with marine resources are important and a parallel consultation process has engaged First Nations who have interests in the area.20 These federal and provincial protected area initiatives do not easily align with the First Nations argument that Section 35 recognizes their Aboriginal rights and title and offers Constitutional protection. The customs, practices, and traditions related to the harvesting of sea resources and the fact that these were and are integral to Hul’qumi’num society is beyond dispute. Therefore, the provincial and federal governments would face serious legal risks if they established marine protected areas in the absence of an arrangement with First Nations that either avoids infringing upon their rights and title or accommodates them.

14 Starting with Calder [1973] S.C.R. 313, Sparrow [1990] 1 S.C.R. 1075, Delgamukw [1997] 3 S.C.R. 1010 , Vanderpeet [1996] 2 S.C.R. 507, Gladstone [196] 2 S.C.R. 723 and Haida [2004] 73. [1996] 2 S.C.R. 507.15 R. v. Van der Peet [1996] 2 S.C.R. 50716 Jones, 2006.17 Section 35(1) of Canada’s Constitution Act, 1982, states, “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”18 Haida First Nation v. British Columbia (Minister of Forests) and Weyerhaeuser, SSC [Supreme Court of Canada] 2004 73.19 Hul’qumi’num Treaty Group v. Canada, Organization of American States (OAS), Inter-American Commission on Human Rights (IACHR), Case No. 12.374.20 Parks Canada, August, 2009. “Southern Strait of Georgia NMCA Reserve Feasibility Study”. NMCA E-NEWS, 4(1).

Despite Supreme Court decisions in their favour, coastal First Nations still struggle to gain effective recognition of their rights in practice due to Canada’s failure to remedy issues of land dispossession and tenure.

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The Inter-American Court on Human Rights has stated that it is not enough for a state to say that Indigenous peoples can go to court to prove their rights; the state must provide effective implementation of domestic Aboriginal constitutional protected rights and international Indigenous human rights.21 Provided that Canada is prepared to recognize the existence of an Aboriginal right to not only access the resources, but to also actively participate in the management of these resources, there is an opportunity to explore new systems for meeting First Nations’ objectives for recognizing and supporting customary ways of life, collective knowledge systems, and bio-cultural heritage, while simultaneously achieving biodiversity and other aims sought by marine protected area proponents. Before describing the potential of Hul’qumi’num protected area designations, two other approaches under current legislation could play a transitional or complementary role: co-management and tailoring of Canadian protected area arrangements.

Co-management under Current legislation

Some First Nations may be willing to support the establishment of a marine protected area if their harvesting rights can be recognized and protected and if a co-management agreement can be established through which they have a significant role in the management of the area. International experience reviewed by Smyth22 illustrates that Indigenous peoples have more difficulty exercising their authority over their traditional coastal and marine areas in Australia, New Zealand, and North America than in regions where government agencies are under-resourced or central governments have little authority. Experience in cooperative management in four national parks in Canada23 is consistent with this observation, in that the issues of most concern were associated with jurisdiction, authority, and who should have the final say in decision-making.

The Hul’qumi’num Treaty Group and Parks Canada nevertheless found that they share enough common interest in the management of cultural and resource values to sign an agreement concerning the cooperative planning and management of the Gulf Islands National Park Reserve in 2006. This Park Reserve is established under the Canada National Parks Act, which includes coastal areas of Hul’qumi’num territory. The word ‘reserve’ in this designation essentially puts the public on notice regarding the First Nation’s interest in the area and the possibility that the long-term ownership and management of the protected area may in future be transferred to the First Nation through treaty negotiations.24 Section 40 of the Parks Act states that “[t]he application of this Act to a park reserve is subject to the carrying on of traditional renewable resource harvesting activities by Aboriginal persons.”25 The Interim Consultation Agreement Concerning the Cooperative Planning and Management of Gulf Islands National Park Reserve establishes a committee comprised of one representative from

each of the six member Nations of the Hul’qumi’num Treaty Group, one Elder appointed by Hul’qumi’num Chiefs, two other Hul’qumi’num positions, and one representative of Canada. This Committee advises the Park Superintendent on specified planning and management matters such as signage and research. The Committee must be consulted on seven key matters, including management of resource harvesting and culturally significant sites, deletions from or additions to the park reserve, and Park Management Plans. These are essentially veto rights; thus, this co-management agreement starts to approach the free and informed consent standard set out in the 2007 United Nations Declaration on the Rights of Indigenous Peoples26 and perhaps the American Declaration of the Rights and Duties of Man.27

The agreement for the Gulf Islands National Park Reserve is consistent with the Hul’qumi’num Treaty Group’s efforts towards effective implementation of their member Nations’ rights and title in the following ways: it states that “the lands,

21 Hul’qumi’num Treaty Group, 2009. Report No. 105/09, Petition 592-07, Admissibility, Hul’qum’inum Treaty Group: Canada.22 Smyth, D., 2005. Report as Coordinator of Cross-cutting Issues 1: Indigenous Peoples and Local Communities for the International Marine Protected Area Congress (IMPAC), Australia, October 23-28, 2005.23 Weitzner, V., and M. Manseau, 2001. “Taking the pulse of collaborative management in Canada’s national parks and national park reserves: voices from the field,” pages 253-259 in Harmon, D. (ed.), Crossing Boundaries in Park Management: Proceedings of the 11th Conference on Research and Resource Management in Parks and on Public Lands. The George Wright Society: USA.24 Section 4(2) states, “Park reserves are established in accordance with this Act … where an area or a portion of an area proposed for a park is subject to a claim in respect of aboriginal rights that has been accepted for negotiation by the Government of Canada.”25 The National Marine Conservation Areas Act contains similar provisions for “Reserve” status, although in Section 4(4), it also calls for “at least one zone that fully protects special features or sensitive elements of ecosystems.”26 United Nations Declaration on the Rights of Indigenous Peoples, UN Doc A/RES/61/295 (opened for signature September 13, 2007).UN Doc A/RES/61/295 (opened for signature September 13, 2007).27 Organization of American States, 1948. American Declaration of the Rights and Duties of Man, adopted by the 9th International Conference of American States, Bogotá, Colombia. Last accessed September 2, 2010, at: http://www.cidh.org/basicos/english/Basic2.American%20Declaration.htm.

First Nations may be willing to support

marine protected areas if their harvesting rights are protected

and they have a significant role in

managing the area.


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waters, and resources belonging to Hul’qumi’num people are subject to the collective and individual rights of the First Nations”28; it aims to support negotiations towards treaty; and it provides a forum for meaningful consultation as required by the courts. The Parties to the agreement recognize that the process is breaking new ground and will need to be evaluated and adapted as necessary.

tailoring Canada’s marine proteCted area arrangements to address first nations’ interests

In order to hold a favorable view of marine protected areas, Hul’qumi’num feel that “they must be involved in planning and implementing these areas, must see the benefits locally, and must relate through their first-hand experiences and TEK [traditional ecological knowledge] to how these measures can help maintain all native species.”29 In order to reconcile the difficult fit of Canadian marine protected area designations with First Nations’ rights and interests such as these, variations on purposes, objectives, values, interpretations, and types of restrictions typically associated with marine protected areas could be explored. The following five options may provide a way to move this issue forward.30

no-take areas on first nations’ terms No-harvesting zones generally cannot be imposed on First Nations. In addition, First Nations on Canada’s Pacific coast traditionally did not permanently close areas to fishing as a conservation measure. Nevertheless, under particular circumstances, they may recognize the need to protect areas for certain species. Measures limiting harvesting are more acceptable if they acknowledge that continued rights to harvest are not extinguished and if they do not set out the First Nation decision not to harvest as a permanent, legal, or precedent-setting arrangement.

priority on proteCtion of arCHaeologiCal and Cultural sites Marine protected areas could increase the protection of First Nations’ cultural and archaeological sites along the coast. The designation of a marine protected area could increase respect for these important places through appropriate visitor education, protection of the sites could be improved through increased surveillance, and sites where cultural values and sensitivity are particularly high (such as burial sites) could be placed off-limits.

spatial and temporal flexibility Another possibility for adapting marine protected areas to suit First Nations’ priorities lies in the spatial flexibility of zones and boundaries using ecosystem-based management. Findings from monitoring and research could point to adjustments in boundaries, size, and location of marine protected areas, consistent with accomplishment of conservation objectives. While impermanent marine protected areas might not be acceptable to many protected area advocates, the pros and cons of a clause that requires review of protected area effectiveness after a reasonable period of time (for example, a number of decades) could be considered.

aCCommodating food, soCial, and Ceremonial Harvesting There is a natural convergence of First Nation-driven marine conservation with community-based fisheries management. While a fisheries focus may preclude no-take marine protected areas, the conservation benefits of an area in which only an artisanal-style food-, social-, and ceremonial-oriented fishery is allowed might be as significant as those resulting from small no-take areas. Through effective management, zones in protected areas that accommodate this rights-based use, but no other, can serve conservation objectives at the same time, leading to improved biodiversity outcomes31. As harvesting contributes to community wellbeing, it creates more buy-in to sustainable fishing measures. Catch monitoring can provide feedback on the effectiveness of conservation measures. Furthermore, a key indicator of sustainability at the local level sets

28 The customary laws of the Hul’qumi’num Mustimuhw recognizes both collective and individual rights. Certain harvesting areas could be managed by an individual, but available for use by the community, especially through kinship connections.29 Ayers, 2005.30 These are based on research in Gardner, J., 2009. First Nations and Marine Protected Areas: An introduction to First Nations Rights, Concerns and Interests Related to MPAs on Canada’s Pacific Coast. Last accessed September 2, 2010, at: http://www.cpawsbc.org/files/First_Nations_MPAs_Full_Report_Oct2009.pdf.31 Smyth, 2005.

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a high standard, that is, populations of fish sufficiently abundant to be caught by a hook and line or intertidal fisherman. Under the Oceans Act,32 administered by Fisheries and Oceans Canada, marine protected areas have the flexibility to accommodate food, social, and ceremonial harvesting, and Parks Canada’s National Marine Conservation Areas may be flexible enough to provide for traditional harvesting within the ‘fully protected’ area required by the legislation – for example, through seasonal activities or fishing in the water column only.

tHe ConservanCy designation A Conservancy, a protected area designation of the province of British Columbia, has begun to meet some coastal First Nations’ priorities in terrestrial protected areas. The new measures are set out in the Park (Conservancy Enabling) Amendment Act, 2006.33 The legislation was developed specifically to address First Nations’ traditional use and enable collaborative stewardship, respecting and acknowledging Aboriginal title and rights. The Conservancy designation explicitly recognizes the importance of these areas to First Nations for social, ceremonial, and cultural uses34 as one of four reasons for establishing conservancies.

Hul’qumi’num-generated proteCted area arrangements: a promising designation Calling for reCognition First Nations on Canada’s Pacific coast have been generating approaches to designating areas that would conserve biodiversity in a manner consistent with their profound and long-standing interests in the resources of their territories. Two types of designations covering land and/or water have been put forward by the Hul’qumi’num that would be consistent with their traditional approaches to conservation while responding to the increased pressures on biodiversity in their territory today: Hul’qumi’num Management and Harvest Areas and Hul’qumi’num Mustimuhw Intensive Traditional Use Areas. Neither the concepts nor designations have yet been supported by Canada or implemented.

Hul’qumi’num management and Harvest areas The proposed Hul’qumi’num Management and Harvest Area is a designation for coastal and marine areas that would be co-managed under a proposed Joint Fisheries Management Board with Canada (see Figure 4). The areas would be managed on a community-based and ecosystem level by including all species and habitats and building a conservation ethic into the management and harvest zoning for the area. The objective would be to establish a network of Areas for the sole use and management of the Hul’qumi’num people. In their governance, the areas would reflect the tradition and culture of the Hul’qumi’num and ensure that Hul’qumi’num Mustimuhw regain access to marine resources.35 Hul’qumi’num Management and Harvest Areas have been proposed by the Hul’qumi’num Treaty Group in the treaty negotiation process, but there has been no willingness by Canada to consider the designation. Citing the Magna Carta,36 legal counsel for Canada argued that the designation may have a negative impact on the general right to fish

32 Department of Justice, Canada, 1996. Oceans Act (1996, c. 31).33 Legislative Assembly of the Province of British Columbia, 2006. Park (Conservancy Enabling) Amendment Act (2006, Bill 28).34 BC Parks, 2010. “Summary of Parks and Protected Area Designations.” Last accessed July 19, 2010, at: http://www.env.gov.bc.ca/bcparks/facts/prk_desig.html#Conservancy.35 Ayers, 2005.36 Magna Carta is an English charter, originally issued in the year 1215 and first passed into law in 1225. The 1297 version, described as The Great Charter of the Liberties of England, and of the Liberties of the Forest, still remains on the statute books of England and Wales.

Figure 4. Hul’qumi’num Management and Harvest Areas.© Hul’qumi’num Treaty Group


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that was established and that Canada cannot violate this.

Hul’qumi’num mustimuHw intensive traditional use areas An Interim Strategic Land Plan for the Core Traditional Territory was produced by the Hul’qumi’num Treaty Group in 2005. Its purpose is “to describe the Hul’qumi’num people’s vision for how land and intertidal (beach) resources should be used, managed, and protected to sustain them indefinitely and provide benefits for Hul’qumi’num people.”37 Non-Hul’qumi’num governments in Hul’qumi’num territory are not prepared to implement or integrate the Hul’qumi’num land use plan, holding the view that there are already sufficient land use plans in place in this area. The Plan identifies three types of Hul’qumi’num Mustimuhw Intensive Traditional Use Areas: ‘A’lu’xut, Xe’xe’, and Syuth (see Box 138).

The Plan for the Core Territory described above identifies 42 of these areas at a watershed or landscape scale, explains the management objectives for each type, and organizes them into six Hul’qumi’num planning units, one of which is largely marine.

The Hul’qumi’num Treaty Group has proposed Hul’qumi’num Mustimuhw Intensive Traditional Use Areas arrangements to Canada through treaty negotiations, but Canada has not yet been willing to consider them. The Treaty Group has also proposed a shared decision-making model39 that could be integrated into treaty agreements or expressed as an interim agreement. This is another approach that could have enabled the implementation of Hul’qumi’num Management and Harvest Areas and Hul’qumi’num Mustimuhw Intensive Traditional Use Areas, but this call to action has not been taken up by British Columbia or Canada.

tHe way forward

Given the many pressures on the lands and waters of Hul’qumi’num traditional territory, the overlapping layers of decision-makers (Federal, Provincial, and First Nation), and the lack of capacity within the Hul’qumi’num Nations to unilaterally enforce regulations for their protected area designations, the Hul’qumi’num could not effectively implement either Management and Harvest Areas or Intensive Traditional Use Areas without federal and provincial collaboration.

Both First Nations’ objectives and ecosystem protection needs could be met if Canada was prepared to recognize Aboriginal rights and act on this recognition by implementing it through legislation, policy, or treaties that include conservation arrangements tailored to First Nations’ territories. The ways forward include co-management, tailoring of Canada’s marine protected area provisions under existing legislation, and establishment of First Nation-generated protected area designations. Specific mechanisms that governments could use to effectively implement the Section 35 recognition of Aboriginal rights and international human rights while supporting the implementation of arrangements to protect biodiversity include:

• passing legislation that recognizes governance of protected areas by First Nations, reflecting “one of the most important contemporary developments in conservation”;40

• cooperatively developing policies that provide direction on how these protected areas would function;• cooperatively implementing regulations under current laws to support the protection of First Nation-

governed marine protected areas (for example, closures under the Fisheries Act);

37 Hul’qumi’num Treaty Group, 2005.38 Bullet 3: Hul’qumi’num oral narratives recite Xeel the Transformer’s travels through the world where he left marks on the land to remind the people of his benevolence.39 Olding, B., J. Rogers, and B. Thom, 2008. A Call to Action: Shared Decision Making, A New Model of Reconciliation of First Nations Natural Resource Jurisdiction. Hul’qumi’num Treaty Group: British Columbia. Last accessed September 2, 2010, at: http://www.hulquminum.bc.ca/pubs/A_Call_To_Action_HTG2008.pdf.40 Dudley, N. (ed.), 2008. Guidelines for Applying Protected Area Management Categories. IUCN World Commission on Protected Areas: Gland, Switzerland, page 29.

• ‘A’lu’xut traditional use areas are especially important for hunting, gathering, and harvesting resources such as beaches for gathering clams, oysters, cockles, seaweed, and other beach foods.

• Xe’xe’ places are especially important for cultural and spiritual uses such as vision questing, spirit dancing regalia, and bathing.

• Syuth areas are historical lands that represent deep historical and spiritual connections between Hul’qumi’num Mustimuhw and their ancestral history, origins, and territory. They include First Ancestor Sites, Xeel’s Transformer Places, and Oral Tradition Sites. These powerful sacred places entrench Hul’qumi’num people as inextricably linked to their territory.

Box 1. Types of Hul’qumi’num Mustimuhw Intensive Traditional Use Areas.

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• providing for First Nation protected areas through treaty settlements;• negotiating provisions in treaties that provide for joint decision-making for existing protected areas;

and• negotiating agreements prior to treaty or outside of treaty to provide direction for joint decision-

making or co-management of protected areas.

There is clearly opportunity for convergence in the pursuit of the conservation and sustainable use of biodiversity through protected areas in the traditional territories of First Nations on Canada’s Pacific coast. It is up to the governments involved to enable this prospect to be realized.

Julie Gardner ([email protected]), PhD, is a principal in Dovetail Consulting based in Vancouver, British Columbia. She specializes in environmental planning and policy analysis, particularly in the areas of ocean and fisheries conservation, and collaborative governance. Robert Morales ([email protected]), LLB, is Chief Negotiator for the Hul’qumi’num Treaty Group and past Chair of the British Columbia First Nation Summit’s Chief Negotiators Forum.

In Southern Africa, most state protected areas have been established on lands previously held as common property by Indigenous peoples and local communities. Protected areas have largely undermined the rights of such communities through displacement or severely restricting access to land and natural resources1. As a result, community engagement in the direct management and sharing in the benefits of state protected areas is often minimal. In response to similar issues around the world, there is an increasing global call for the use of rights-based approaches to conservation. However, the applicability of rights-based approaches in Southern Africa is arguably limited due to the historical and current complexities of competing legal, political, and social frameworks.

wHat are rigHts-based approaCHes?A rights-based approach to conservation recognizes that local communities are not merely stakeholders whose views need to be taken into account; they also have a fundamental right to participate effectively in decision-making processes that affect them2. This right is embodied in various international human rights instruments3 that provide a series of internationally accepted benchmarks, norms, and standards to ensure the accountability and compliance of states and other actors as duty-bearers. A common principle in these rights frameworks is participation in decision-making, a process through which rights-holders can make effective claims to duty-bearers. Decision-making is acknowledged as an explicitly political process 1 Cernea, M. M., 2006. “Population Displacement Inside Protected Areas: A redefinition of concepts in conservation policies”. IUCN-CEESP Policy Matters, 14: 8-25.2 Campese, J., T. Sunderland, T. Greiber, and G. Oviedo (eds.), 2009. Rights-based approaches: Exploring issues and opportunities for conservation. CIFOR and IUCN: Bogor, Indonesia.3 Key instruments include the 1948 Universal Declaration of Human Rights, 1966 International Covenant on Civil and Political Rights, and 1966 International Covenant on Economic, Social and Cultural Rights, among others. In addition to these human rights treaties, other non-binding international instruments that address the rights of Indigenous peoples include the 1989 International Labour Organization Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries and the 2007 United Nations Declaration on the Rights of Indigenous Peoples. Articles 8(j) and 10(c) of the binding 1992 Convention on Biological Diversity also provides rights for Indigenous peoples and local communities.

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inwhicheveryonehastherighttoparticipate;emphasisisplacedontakingconsultativeprocessesbeyondmerelyprovidingrights-holderswithrelevantinformationandmovingtowardsmeaningfulengagementandrepresentationof apluralityof voices.OtherkeyprinciplesandrightsininternationalinstrumentsthatparticularlypertaintoprotectedareasinrelationtoIndigenouspeoplesandlocalcommunitiesincludeequalityandnon-discrimination,accountability,self-determination,self-representationthroughtheirowninstitutions,restitutionof Indigenouspeoples’lands,andcompensationforlossesendured4.

Humanrightsframeworksestablishtwomaincategoriesof rights:proceduralandsubstantiverights.Thesearedefinedasfollows:

Substantiverightsdefinerightstothe“substance”of humanwellbeing(suchasrightstolife,housing,water and a healthy environment), while procedural rights define procedures that protect and fulfillsubstantiverights.These includethemeanstoclaimsubstantiverights,suchasaccessto information,participationinandinfluenceondecision-making,andaccesstolegalredress.5

Inconservationpractice,themostcommonwaytoapplyrights-basedapproacheshasbeentopromoteproceduralrightsasameansof claimingsubstantiverightsandtoraiseenvironmentalrightstothelevelof substantiverights6.However,theeffectiveapplicationof rights-basedapproachestoconservationinSouthernAfricahasarguablybeenlimited,astheypresentmultifacetedchallengesatthepracticalimplementationlevel.

issues and challenges for rights-based approaches to conservation in southern africa

In Southern Africa, the identification of right-holders andduty-bearersandtheeffectiveconsiderationof correspondingclaimstorightsandresponsibilitiesoccurwithinamyriadof complexities of identity politics and inequalities in gender,class,andethnicity7.Theinequalitiesunderpinningthesesocialand political dynamics strongly influence different rights-holders’access to landandresources,aswellas thefairandequitabledistributionof costsandbenefits,andoftenresultinoverlappingandcompetingrights8.Theapplicationof rights-based approaches to conservation in protected areas thuspresentsanumberof challengesthataredeeplyrootedintheregion’shistoryof conservationandlandtenure.

Conservation, particularly the declaration of exclusionaryprotected areas, led to the wide-scale displacement of communitiesduringthecolonialera.Intheprocessof declaringprotected areas, communal lands were seen as terra nulliuswithnopre-existingrights9.Protectedareaswereestablishedagainstasocialandpoliticalbackdropthatprioritizedspeciesconservation and the values of wilderness, but this came attheexpenseof localcommunitieswhowere thenno longer

4 Colchester,M.,2003.“SalvagingNature:Indigenouspeoples,protectedareasandbiodiversityconservation”.WorldRainforestMovementandBiodiversityConservationProgramme,onlinepublication.LastaccessedAugust30,2010,at:http://www.wrm.org.uy/subjects/PA/texten.pdf.5 Blomley,T.,P.Franks,andR.M.Maharjan,2009.From Needs to Rights: Lessons from the application of rights based approaches to natural resource management in Ghana, Uganda and Nepal.RightsandResourcesInitiative:Washington,D.C.,page7.6 Blomleyet al.,2009.7 Suzman,J.,2001.“Indigenouswrongsandhumanrights:Nationalpolicy,internationalresolutionsandthestatusof Sanof SouthernAfrica”,pages273-297inBarnard,A.,andJ.Kenrick(eds.),Africa’s Indigenous Peoples: First People’s or Marginalized Minorities’?Centreof AfricanStudies,Universityof Edinburgh,2001.8 Brockington,D.,J.Igoe,andK.Schmidt-Soltau,2006.“ConservationHumanRightsandPovertyReduction”.Conservation Biology,20(1):250-252.9 SeeMurombedzi,J.,2003.“Pre-ColonialandColonialConservationPracticesinSouthernAfricaandtheirLegacyToday”,pages21-32inWhande,W.,T.Kepe,andM.Murphree(eds.),Local communities, Equity and Conservation in Southern Africa. PLAAS/ART/TILCEPA:CapeTown,SouthAfrica.

Figure 1. Demarcation of protected areas has led to thedisplacementof manylocalcommunitiesinSouthernAfrica.Membersof acommunityinChiawa,Zambia,picturedherehave lost access to land and natural resources due to theestablishmentof theLowerZambeziNationalParkinZambiaandtheManaPoolsNationalParkinZimbabwe.©MasegoMadzwamuse

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abletoaccessthenaturalresourcesthattheirlivelihoodsandwell-beinghaddependedonforcenturies10.Protectedarea-relateddisplacementstookplace inthebroadercontextof colonialappropriationof landsforsettler interestssuchasfarming,mining,andthedevelopmentof citiesandtowns.Intheseprocesses,scoresof localandIndigenouspopulationswerenotonlystrippedof theirtraditionalrightstolandandresources,butwerealso forced intoovercrowded,unproductive, andmarginal lands. In thepost-colonialera,withsuchahistoryof wide-scaledispossession,stateprotectedareashavearguablybecome‘protestedareas’,aroundwhichneighbouringruralcommunitiescallforrestorationof collectiveandindividualrightsand,insomecases,forreallocationof landstootheruses(suchasagriculture)thataremoredirectlybeneficialtolocallivelihoods11.Rights-basedapproachesthereforethreatenmoststateprotectedareasintheregionbyopeningthemuptoclaimsbyIndigenouspeoplesandlocalcommunitiesseekingredressandrestitutionforhistoricalandcurrentinjustices.

Accesstoresourceswasalsostratifiedduringpre-colonialtimes.Practicessuchastheallocationof totems12,theexpropriationof labourforconservation,andthedemarcationof sacredspacesdidnotreflectegalitarianism,butratheranexerciseof poweroverpeopleandresourcesbydominantclans,tribes,andclasses13.Forexample,intheTswanaculture,theinstitutionof Chieftaincy(Bogosi)controlledaccesstonaturalresources.Chiefswereconsideredtheownersof wildlife,whichtheyheldintrustforthetribe14.Thechiefscontrolledwhereandwhenhuntingtookplaceandas‘owners’of thewildlife,they

wereentitledtoshareinanddistributetheproceedsof huntingexpeditions15.However,notalltribesandtheirleadershiphadaccessorclaimtoresources,particularlyinBotswanaandNamibia.Althoughtheroleof traditionalinstitutionsinthemanagementandcontrolof protectedareasandnaturalresourceshaslargelybeeneroded,theinteractionof thesepre-colonialsocialandpoliticaldynamicswiththoseinthecolonialandpost-colonialerashaveimplicitlyshapedthecontinuedstruggleof ethnicminoritiesandIndigenouspeoplesforrightsandaccesstonaturalresources16.

Inthepost-colonialera,mostSouthernAfricangovernmentshavehadtofulfilpromisesgivenduring liberation strugglesof restoringappropriated land to local communities17.Thisprocessof restitutionhastakenplacedifferentlythroughouttheregion,withsomepolicyreformsgivinggreater scope for the recognition of community rights and the application of rights-based

approachestoconservation.Forexample,post-apartheidSouthAfricaembarkedonamajorpolicyandlegislativeoverhaultoreflectthetransformationagenda18.Thesubsequentlandrestitutionprocessinthecontextof protectedareaselicitedresultsforcommunitiessuchastheMakulekeclan,whoweregiventitleoverlandthattheywereforcefullyremovedfromintheKrugerNationalPark19.Thistypeof reformisnotyetevidentinpolicyorpracticeincountriessuchasBotswana

10 Murombedzi,2003;Murphree,M.,2004.“Whoandwhatareparksforintransitionalsocieties�”,pages217-231inChild,B.(ed.),Murombedzi,2003;Murphree,M.,2004.“Whoandwhatareparksforintransitionalsocieties�”,pages217-231inChild,B.(ed.),Murombedzi,2003;Murphree,M.,2004.“Whoandwhatareparksforintransitionalsocieties�”,pages217-231inChild,B.(ed.),“Whoandwhatareparksforintransitionalsocieties�”,pages217-231inChild,B.(ed.),Whoandwhatareparksforintransitionalsocieties�”,pages217-231inChild,B.(ed.),”,pages217-231inChild,B.(ed.),pages217-231inChild,B.(ed.),Parks in Transition: Biodiversity, rural development and the bottom line.IUCN:SouthAfrica.11 Murphree,2004.SimilarobservationshavebeenmadebyMagome,H.,andJ.Murombedzi,2003.“SharingSouthAfricanNationalParks:Murphree,2004.SimilarobservationshavebeenmadebyMagome,H.,andJ.Murombedzi,2003.“SharingSouthAfricanNationalParks:SimilarobservationshavebeenmadebyMagome,H.,andJ.Murombedzi,2003.“SharingSouthAfricanNationalParks:“SharingSouthAfricanNationalParks:SharingSouthAfricanNationalParks:Community,landandconservationindemocraticSouthAfrica”,pages108-134inAdams,W.,andM.Mulligan(eds.),Decolonizing Nature: strategies for Conservation in a Post-Colonial Era. Earthscan:London.12 Theallocationof totemsunderpinnedtotemiclaw,whichistheoldestformof customarylawintheregion.Forinstance,theTswanawereTheallocationof totemsunderpinnedtotemiclaw,whichistheoldestformof customarylawintheregion.Forinstance,theTswanawereTheallocationof totemsunderpinnedtotemiclaw,whichistheoldestformof customarylawintheregion.Forinstance,theTswanaweretraditionallydividedintomanygroups,distinguishedfromoneanotherbytheirtotems,whichwereoftendifferentspeciesof animals.Oneof themostcommonobligationsconcerningtotemswasthattheanimalcouldnotbekilledoreventouched,thusprotectionwasconferreduponarangeof animals.SeeSpinage,C.,1991.History and Evolution of Fauna and Flora Conservation Laws in Botswana.TheBotswanaSociety:Gaborone,Botswana.13 Murombedzi,2003;Spinage,1991.Murombedzi,2003;Spinage,1991.Murombedzi,2003;Spinage,1991.14 Madzwamuse,M.,2004.AMadzwamuse,M.,2004.AMadzwamuse,M.,2004.Adaptive Livelihoods of Basarwa Communities.LambertAcademicPublishers:Saarbrucken,Germany;Spinage,1991.15 AfundamentalprincipleamongsttheTswanawasthatallfur-bearinganimalsbelongedtothechief,regardlessof whohuntedthem.AfundamentalprincipleamongsttheTswanawasthatallfur-bearinganimalsbelongedtothechief,regardlessof whohuntedthem.16 Forexample, interactionsbetweentheSanandothergroupshaveoftenbeentothedisadvantageof Sancommunities,duetodifferencesinForexample, interactionsbetweentheSanandothergroupshaveoftenbeentothedisadvantageof Sancommunities,duetodifferencesincultureandlandusesbetweentheprimarilyhunter-gatherergroupsandneighbouringagro-pastoralsocieties.Thelackof recognitionof huntingasalegitimatelandusesystemhadfar-reachingconsequences.Theallocationanddemarcationof nativereservesduringthecolonialeratendedtobebiasedtowardsdominanttribalgroups;theSanlostlandandlandrightsandthemajorityremainlandlesstothisday.Asaconsequence,theSaninSouthernAfricaarefacedwithanalmostuniversallackof de jurelandrightsandequitableaccesstonaturalresources.SeeHitchcock,R.K.,M.Biesele,andW.Babchuck,2009.“EnvironmentalanthropologyintheKalahari:Development,resettlement,ecologicalchangeamongtheSanof SouthernAfrica”.Explorations in Anthropology,9(2):170-188;Suzman,2001;andSuzman,J.C.,2000.An introduction to the regional assessment of the San in Southern Africa.LegalAssistanceCentre:Windhoek,Namibia.17 Murphree,2004.Murphree,2004.Murphree,2004.18 Thelandrestitutionagendahas,however,beencriticizedforfailingtoadequatelyresolveruralclaimsandbeingbiasedtowardssupportingThelandrestitutionagendahas,however,beencriticizedforfailingtoadequatelyresolveruralclaimsandbeingbiasedtowardssupportingtheemergenceof blackcommercialfarmersattheexpenseof small-scalefarmers.Landrestitutionhasthusbeenlargelyselectivebyfailingtoadequatelyaddresshistoricaldispossession.Apartfromthepoorbeingmarginalizedfromtheprocess,therightsof ethnicminoritiesandIndigenouspeoplessuchastheSanhavestillnotbeenrestored.SeeCousins,B.(nodate).“LandReforminPostApartheidSouthAfrica–adisappointingharvest”.LastaccessedAugust29,2010,at:http://www.lalr.org.za/.19 Jones,B.,S.Metcalfe,andR.Zolho,2009.Jones,B.,S.Metcalfe,andR.Zolho,2009.A Study of the Policy and Legal Framework Governing Transboundary Natural Resource Management in the Great

Rights and responsibilities

occur within a myriad of

complexities of identity politics

and inequalities.

Decision-making is a political process that moves towards representation of a plurality of voices.


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andZambia,wherethestatecontinuestoplayadominantroleinthemanagementof naturalresourcesandprotectedareas20, thereby restricting the roles that communitiescanplay indecision-makingandpreventing theequitablesharingof benefitsarisingfromprotectedareas.

Another major challenge with the application of rights-basedapproachesliesinthecontextof Indigenouspeoples’rights.Therightsandstatusof IndigenouspeoplesinAfricaaregenerallycontested,mainlybecausemanycommunitiesthroughout the continent lay claim to Indigenous statusin opposition to former colonial powers21. For example,while historical records indicate that the San have acultural continuity within the lands of Southern Africaof more than 400 centuries, far exceeding that of othergroupssuchastheTswanaandHererofoundinpresent-dayBotswana andNamibia,22 theirunique identity isnotrecognizedwithin government policy. Both governmentsinsist that ‘indigenousness’ is defined exclusively inreferencetoEuropeancolonialismandthus,italsoappliesto themajority Bantu populations23. This view is sharedbymostAfricangovernmentsthatrefusetorecognizeandgrantspecialstatustoIndigenouspeoples(asrecognizedinternationally24),includingthroughrefusingtoadoptthe1989InternationalLabourOrganizationConventionNo.169onIndigenousandTribalPeoplesinIndependentCountries25.AlthoughmostAfricangovernmentshavesincesignedthe2007UnitedNationsDeclarationontheRightsof IndigenousPeoples,alotof workisrequiredinorderforthisgesturetotranslateintorealpolicychangesandsubsequenttangibleimpactsatthelocallevel.Acriticalstepinthisregardispoliticalbuy-infortheapplicationof rightbasedapproaches,aswellascommitmenttoaddressingthemaincausesof marginalizationof Indigenouspeoplessuchasquestionsof cultural

identity,secureaccesstoland,andpoliticalrelations.

Rights-basedapproachestoconservationoftencallforthefairandequitableredistributionof diversemanifestationsof power.However, given thehistorical and current complexities of accesstoandcontrolovernaturalresourcesinSouthernAfrica,thiscallmayleadtomultipleandoverlappingclaimsandconflictoverresources.Insuchcases,itisunclearwhoserightstakepriorityandhowmultiplelegitimateclaimscanbeaccommodated.Withahistoryof resourceconflictsthatareoftenexacerbatedbyethnicdivides,mostAfricangovernments,includingthoseinSouthernAfrica,maybereluctanttoimplementrights-basedframeworks,particularlythosethat underscore Indigenous rights26. Ethnic differences and conflicts over natural resources

Limpopo Transfrontier Conservation Area.IUCN/DGCS/CESVI:SouthAfrica.20 Forexample,between1997and2002,theGovernmentof BotswanaremovedtheSanfromtheCentralKalahariGameReserveonthebasisForexample,between1997and2002,theGovernmentof BotswanaremovedtheSanfromtheCentralKalahariGameReserveonthebasisthathumanactivitieswithintheprotectedareawerenolongercompatiblewithconservationobjectives.21 Barnard,A.,andJ.Kenrick,2001.“Preface”,pagesvii-xvinBarnard,A.,andJ.Kenrick,Barnard,A.,andJ.Kenrick,2001.“Preface”,pagesvii-xvinBarnard,A.,andJ.Kenrick,Barnard,A.,andJ.Kenrick,2001.“Preface”,pagesvii-xvinBarnard,A.,andJ.Kenrick,“Preface”,pagesvii-xvinBarnard,A.,andJ.Kenrick,Preface”,pagesvii-xvinBarnard,A.,andJ.Kenrick,”,pagesvii-xvinBarnard,A.,andJ.Kenrick,inBarnard,A.,andJ.Kenrick,Africa’s Indigenous Peoples: First People’s or Marginalized Minorities’?Centreof AfricanStudies,Universityof Edinburgh:Scotland.22 SeeBarnardandKenrick,2001.SeeBarnardandKenrick,2001.SeeBarnardandKenrick,2001.23 Suzman,2001.Suzman,2001.Suzman,2001.24 UNPFII,2004.UNPFII,2004.UNPFII,2004.The Concept of Indigenous Peoples,backgroundpaperforworkshopondatacollectionanddisaggregationforIndigenouspeoples,January19-21,2004.UNPFII:NewYork,page2.Althoughthereisnouniversallyaccepteddefinitionof Indigenouspeoples,thecommonlyaccepteddefinitionistheoneadvancedbytheSecretariatof thePermanentForumonIndigenousIssues:“Indigenouscommunities,peoplesandnationsarethosewhich,havingahistoricalcontinuitywithpre-invasionandpre-colonialsocietiesthatdevelopedontheirterritories,considerthemselvesdistinctfromothersectorsof thesocietiesnowprevailingonthoseterritories,orpartsof them.Theyformatpresentnon-dominantsectorsof societyandaredeterminedtopreserve,developandtransmittofuturegenerationstheirancestralterritories,andtheirethnicidentity,asthebasisof theircontinuedexistenceaspeoples,inaccordancewiththeirownculturalpatterns,socialinstitutionsandlegalsystem”.Historicalcontinuitymayconsistof thecontinuation,foranextendedperiodreachingintothepresent,of someorallof thefollowing:occupationof ancestrallands,oratleastof partof them;commonancestrywiththeoriginaloccupantsof theselands;andcultureingeneralorinspecificmanifestations(suchasreligion,livingunderatribalsystem,membershipof anIndigenouscommunity,dress,meansof livelihood,lifestyle,etc.),amongotherfactors.25 SeeSuzman,2001.SeeSuzman,2001.SeeSuzman,2001.26 SeeBlomleySeeBlomleyet al.,2009;Suzman,2001;andPatrick,E.,andI.Nhantumbo,2008.“LandPolicy:devolutionof resourcerightsandMillennium

Figure 2. Protectedareasandotherdevelopmentshaveledtoalargelypoorandlandlessruralpopulation.AnelderlywomanfromacommunitynearSiavonga,Zambia,crushesandsellsstonestobuildersforalivelihoodafterbeingdisplacedbytheconstructionof theKaribaDam.©MasegoMadzwamuse

The call for rights-based approaches

to conservation may lead to overlapping claims and conflict

over resources.

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thatthreatennationalsecurityandunderminepost-colonialgovernments’nation-buildingeffortsmayariseorbefurtherexacerbatedthroughtherecognitionandassertionof differentindividualandcommunityrights.Furthermore,SouthernAfricanstatesarefacedwithalargenumberof poorandlandlessruralcommunitieswhoseneedsmustbeequallytakenintoaccount.

conclusion

Theapplicationof rights-basedapproachesinSouthernAfricafacesmanychallenges,nottheleastof whichisbalancingmultipleandcompetingclaimstoresources,particularlyfromIndigenouspeoplesandlocalcommunities.Restitutionfordisplacementfromprotectedareasandredressforhistoricalinjusticesisacomplicatedprocess,astheseinjusticesoccurredwithinchangingsocial,political,andlegalcontextsoveranextendedperiod.Thus,thewideapplicationof conservation

approachesthatarebasedoninterpretationsof rightsthatdonotaccountforandadapttothesehistoricalandcurrentcomplexitieswillhavelimitedsuccessintheregionandmayevenfurtherexacerbateconflictsoverresources.

However, rights-based approaches may be applicable within the localized context of particularprotectedareasinSouthernAfricathatalreadyhaveinplace(orhavethepotentialtodevelop) enabling legal andpolicy frameworks. In such cases, therewouldneed tobeclear incentives for utilizing rights-based approaches and subsequent support for legaland policy frameworks that can manage multiple and sometimes overlapping claims byIndigenouspeoples,localcommunities,thepoor,andothermarginalizedpeoples.Arights-

basedapproachtoconservationinandaroundprotectedareasshouldenabletheactiveparticipationandfullengagementof Indigenouspeoplesandlocalcommunities indecision-makingprocesses,thefulfilmentof customary,national,andinternationalrightstoown,access,andusenaturalresources,andthefairandequitablesharingof benefitsarisingfromprotectedareas.Therealizationof suchproceduralandsubstantiverights,however,mustremainsensitiveandadaptivetothehistoricalandcurrentlegal,political,andsocialcomplexitiesinordertoachievetheoverallaimof theeffectiveandjustconservationof naturalresources.

DevelopmentGoalsAchievementsinAfrica”,pages39-42inSADCLandReformSupportFacility,Land Reform for Poverty Reduction in Southern Africa: proceedings of a multi-stakeholder conference 18-19 June 2008.SADCFANRDirectorate:Gaborone,Botswana.

Rights-based approaches must adapt to historical

and current social, political, and legal

complexities, or risk exacerbating conflict.

Masego Madzwamuse([email protected])isanenvironmentanddevelopmentconsultantbasedinSouthAfrica.Herareasof expertiseincludesustainablelivelihoods,naturalresourcemanagement,landtenureandsecurity,sustainablelandmanagement,protectedareamanagement,waterconservation,traditional/Indigenousnaturalresourcemanagementsystems,community-basedconservation,andgenderandtheenvironment.SheistheIUCNCEESPRegionalVice-ChairforSouthernandEastAfrica.


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In Africa, claiming civil and human rights is not only difficult and sometimes dangerous, but it may also not be the most constructive way to get attention from national States. Concentrating exclusively on a rights-based approach can marginalize Indigenous peoples and overlook important policy opportunities. The alternative approach, engaged in additionally to a rights-based approach, involves looking for mutual interest between States and Indigenous peoples and the mobilization of expert traditional ecological knowledge1 in addressing problems of environmental degradation, loss of biodiversity, governance in relation to natural resources and protected areas, and livelihoods. The strategy described here emphasizes making Indigenous values, knowledge, and skills more transparent and understandable to bureaucrats and policy-makers.

Since the early 1990s, there has been a dynamic and rapidly growing Indigenous peoples’ movement in Africa, composed primarily of hunter-gatherers, former hunter-gatherers, semi- and fully nomadic pastoralists, and mountain- and lake-based peoples. In 1997, Indigenous organizations formed the Indigenous Peoples of Africa Coordinating Committee (IPACC) and have subsequently been involved in both rights-based advocacy and other forms of engagement with national States and multilateral forums.

In 2003, the African Commission on Human and Peoples’ Rights (ACHPR) adopted a policy decision recognizing that there are indeed Indigenous peoples in Africa who have specific characteristics that set them apart from dominant peoples2. Despite advances in the recognition and definition of rights, including Africa’s support of the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) in 20073, the line between ‘Indigenous peoples’ and other local communities in Africa is often not taken seriously by those in powerful positions.

African Indigenous peoples have prioritized getting recognition from their national States in relation to the standards enshrined in UNDRIP and have done so primarily by using international norms and standards and lobbying the ACHPR.

1 Traditional ecological knowledge, also referred to in the United Nations (UN) system as Indigenous Knowledge Systems, refers to bodies of knowledge (including skills, values, and beliefs) concerning the environment and natural systems which is transmitted from generation to generation through various culturally embedded processes. Transmission methods may include songs, stories, myths, didactic teaching methods and apprenticeships. For a discussion on traditional ecological/Indigenous Knowledge Systems transmission amongst indigenous peoples in Africa, see Crawhall, N., 2009. “African Hunter-Gatherers: Threats and Opportunities for Maintaining Indigenous Knowledge Systems of Biodiversity”, pages 107-127 in Bates, P., M. Chiba, S. Kube, and D. Nakashima (eds.), Learning and Knowing in Indigenous Societies Today. UNESCO: Paris; Also see Rambaldi, G., J. Muchemi, N. Crawhall, and L. Monaci, 2007. “Through the Eyes of Hunter-Gatherers: participatory 3D modelling among Ogiek indigenous peoples in Kenya”. Information Development, 23(2-3): 113-128.2 See African Commission on Human and Peoples’ Rights, 2005. Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities. IWGIA: Copenhagen. Last accessed August 11, 2010, at: http://www.iwgia.org/graphics/Synkron-Library/Documents/publications/Downloadpublications/Books/AfricanCommissionbookEnglish.pdf.3 Indigenous peoples’ rights are a new phenomenon in Africa. The major policy breakthrough came with the ACHPR report in 2003 that formally recognized Indigenous peoples in Africa. The ACHPR decision was influenced by the emerging standards at the United Nations. After some delays, the Africa Group of States at the UN General Assembly supported UNDRIP with only 3 abstentions in 2007 and no votes against. The 2003 ACHPR decision creates pressure on members of the African Union to recognize and respect the rights of Indigenous peoples. The African Charter explicitly notes that UN standards are applicable to the Charter signatories; hence, UNDRIP serves as a formal and influential normative standards document in Africa. Though the African Charter is not binding in most African national court systems, it is influential and part of the treaty obligations under the African Charter.

Valuing Traditional Ecological Knowledge: Supplementing a Rights-Based Approach to Sustainability in Africa

Nigel Crawhall

Figure 1. Harvesting edible tubers in Yaeda Valley, Tanzania, a community conservancy owned by the Hadzabe people. © Nigel Crawhall

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This approach has shown some success, but the living standards of most Indigenous peoples remain unchanged by these interventions4. Making use of human rights standards requires a substantial amount of capacity to hold the State accountable to its national legislation and constitutional standards and even more resources to pressurize States to adhere to multilateral norms and standards that may or may not have the force of law in national courts or policy contexts.

ContradiCtions between rights and Power

There is a fundamental contradiction between Indigenous peoples trying to defend their rights to govern natural resources in a sustainable manner and the interests of national and international elites who may want to destabilize autonomous subsistence economies in favour of extractive, surplus-producing economies. Extractive, surplus-producing economies displace local peoples, undermine local governance, and force people into wage labour, usually below poverty levels. Indigenous peoples typically become ‘surplus’ peoples, losing both autonomy and rights in the face of elite interests5.

Colonialism ensured that the autonomy and decision-making of rural peoples were replaced by their loss of land and integration into the national wage and surplus-producing economies. The interests of the post-colonial African State and allies in international capital are arguably to ensure that control of the means of production shifts from an autonomous means of subsistence (for example, horticulture, hunting, and pastoralism) into commodity and wage economies; this creates a labour pool and even a displaced non-labouring class that moves off the land, giving way to capitalist commodification of natural resources.

If such a contradiction exists, it means that a rights-based approach to territorial control may struggle from the outset. It is evident that the principal complaint of Indigenous peoples in Africa is that their traditional land governance is ignored by national legislation and they are subject to accelerating land alienation, usually to service the needs of extractive industries. This requires Indigenous peoples to be creative about other avenues of cooperation with State elites and to find areas of mutual interest to favour Indigenous self-determination that do not directly threaten elite and foreign interests.6

Mutual interest arguMents

One area of mutual interest is where Indigenous peoples’ knowledge systems can be applied to support nature conservation and related aims, for example, in tourism, wildlife management, anti-poaching, conservation and sustainable use of medicinal plants, and traditional healing and shamanism. Articles 8(j) and 10(c) of the 1992 United Nations Convention on Biological Diversity (CBD) explicitly spell out the principle and obligation that Indigenous peoples are holders of traditional ecological knowledge, that this is important for biodiversity conservation, and that States are obliged to respect this and protect customary use and equitable benefit sharing.7

Conservation efforts inevitably involve international donor assistance and income from tourism. In IPACC’s advocacy work in Africa, it is evident that the State and elites are open to the idea of applying traditional

4 There are some important examples of progressive legislation and policy changes in Africa since the start of the UN’s two International Decades on the World’s Indigenous Peoples. For example, the Central African Republic has ratified the International Labour Organization Convention on Indigenous and Tribal Peoples in Independent Countries (ILO 169). Burundi has adopted a mechanism to allow Batwa to sit in Parliament and Senate. Morocco has created a Royal Commission on Amazigh cultural and language issues. The Republic of the Congo has drafted legislation on the rights of Indigenous peoples, directly associated with UNDRIP. Kenya has adopted its new constitution with explicit reference to the land rights of hunter-gatherers.5 This argument is spelled out by Goran Hyden, who comes to the opposite conclusion than the one presented here, namely, that African socialist states must break the autonomy of autonomous peasant economies to force them into national production. See Hyden, G., 1980. Beyond Ujamaa in Tanzania: Underdevelopment and an Uncaptured Peasantry. Heinemann: London.6 The argument about the problems with a rights paradigm and the political economy of Indigenous peoples in Africa is discussed more fully in Crawhall, N., 2007. Indigenous Peoples in Africa. Norwegian Church Aid, Occasional Paper 03/2007.7 United Nations Convention on Biological Diversity, opened for signature June 5, 1992 (entered into force December 29, 1993).

Figure 2. Dunes of the southern Kalahari near the entrance of the Kgalagadi Transfrontier Park in South Africa. © Holly Shrumm

Indigenous peoples in Africa need to be creative about asserting the right to self-determination in a way that doesn’t directly threaten elite and foreign interests.


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ecological knowledge to promote conservation and, more particularly, the tourism industry. In a related domain, again focusing on economic benefits for the State, there was substantial official interest in efforts by San peoples to secure intellectual property rights over Hoodia (hoodia gordonii), a desert plant that was due to be exploited internationally by foreign pharmaceutical companies8. Not only did South Africa develop specific legislation about collective intellectual property rights, but a number of African governments also opened dialogue with regional non-governmental organizations (NGOs) such as the Working Group of Indigenous Minorities in Southern Africa and IPACC about this seemingly lucrative area of mutual interest.

The idea that Indigenous peoples should gamble with their knowledge systems and culture to win over elites may be offensive to some people and there are undoubtedly risks involved in such engagement. Hence, the strategy needs to be embedded in knowledge of rights, international norms and standards, and consensus by the primary actors to embark on such a strategy with a clear sense of the risks and opportunities. If the options are land loss, displacement, land degradation, and poverty, or negotiation for recognition and rights using areas of mutual interest, it is perhaps clear why Indigenous leaders have found the latter strategy worth exploring9.

A mutual interest approach allows the State and Indigenous peoples to find partnerships that are not determined by foreign agendas and are more African in their focus. State elites, though they may be Western educated and tied into global capitalist economic interests, are nonetheless Africans and sometimes express support for the rights of Indigenous peoples and Africa being able to gain benefits from local knowledge systems. Political leaders regularly emphasize pride of knowledge and shared cultural heritages and they do not bring into question the all-engrossing theme of State sovereignty. Frequently, dominant African peoples have symbiotic spiritual and healing traditions with Indigenous peoples. Indigenous peoples are often seen as closer to ancestral spirits or natural animistic forces. This partnership in the spiritual and ancestral realm is a relatively less politicized space within which to negotiate new types of partnership.

reCognition of traditional eCologiCal Knowledge in southern afriCa

Traditional ecological knowledge is vitally important for contemporary priorities of monitoring biodiversity, documenting the impacts of climate change, and ensuring successful wildlife conservation. There is a shortage of management and scientific capacity in Africa for effective conservation purposes, yet there is a vast untapped resource of knowledge and competence within rural communities that is ignored by the State and most conservation agencies. These principles are clearly articulated in the CBD and supporting binding documents such as the 2004 Addis Ababa Guidelines and Principles on the Sustainable Use of Biodiversity10, as well as the United Nations Educational, Scientific and Cultural Organization (UNESCO) 2002 Universal Declaration on Cultural Diversity11.

In the past two decades, there has been a shift in thinking in southern Africa and governments are becoming more open to the idea that oral (non-literate) knowledge and skills may be of importance in wildlife

8 Vermeylan, S., 2007. “Contextualizing ‘Fair’ and ‘Equitable’: The San’s Reflections on the Hoodia Benefit-Sharing Agreement”. Local Environment, 12(4): 423-436.9 The IPACC strategy on environmental advocacy is described in IPACC, 2007. IPACC Strategic Plan on Indigenous Peoples, Natural Resources and the Environment. Bujumbura, Burundi. Last accessed August 11, 2010, at: http://ipacc.org.za/uploads/docs/Bujumbura_English_StrategicPlan.pdf.10 See Secretariat of the Convention on Biological Diversity, 2004. “2004 Addis Ababa Guidelines and Principles on the Sustainable Use of See Secretariat of the Convention on Biological Diversity, 2004. “2004 Addis Ababa Guidelines and Principles on the Sustainable Use of Biodiversity”. Last accessed August 11, 2010, at http://www.cbd.int/doc/publications/addis-gdl-en.pdf.11 See UNESCO, 2002. “Universal Declaration on Cultural Diversity”. Last accessed August 11, 2010, at: http://unesdoc.unesco.org/ See UNESCO, 2002. “Universal Declaration on Cultural Diversity”. Last accessed August 11, 2010, at: http://unesdoc.unesco.org/images/0012/001271/127160m.pdf.

Figure 3. |Ui (centre), a Ju|’hoansi tracker from the San community, identifying spoor with CyberTracker pioneer Louis Liebenberg (left) and colleagues in the Nyae Nyae Conservancy, Namibia. © Nigel Crawhall

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conservation and tourism. In southern Africa, Indigenous leaders have agreed that advocating for the formal recognition of their knowledge and skills of tracking and conserving wild animals and plants through National Qualification Standards12 would help consolidate their rights and relationships with both the State and the conservation sector. South Africa has played a leading role in this administrative and policy transformation. Namibia and Botswana are now preparing to adopt their own legislative and National Qualification Standards, which will help strengthen recognition of rural skills, competencies, and knowledge.

Tracking involves two sets of skills: tracking, which involves identifying the spoor of a particular animal and being able to analyze it for sex, age, direction of movement, health, and behaviour; and trailing, which involves being able to use tracks and other signs to pursue and locate an animal. According to expert and community sources, tracking and trailing skills are rapidly dying out amongst Indigenous peoples in southern Africa due to various causes, including displacement from traditional territories, changes in economies and land tenure systems, formal education that does not allow children to learn traditional ecological knowledge at home, and legal impediments to subsistence hunting.

The IPACC programme is designed to support Indigenous peoples in Southern Africa to work with experts to establish tracking and plant knowledge assessment techniques and international certification and to then support members to lobby governments to create National Qualification Standards. The programme is designed to bring in a broad range of stakeholders, engaging rural communities, State agencies, conservation NGOs, and the private sector to invest in training and assessment of local peoples. In the second phase of its programme on advocating for national qualification standards for trackers, IPACC works with regional San organizations, Cybertracker Conservation, and World Wildlife Fund Namibia to run workshops on the formalization of tracking knowledge. Cybertracker Conservation has been conducting the initial assessments and helping to identify possible local evaluators and trainers13. In 2009, IPACC decided that in order for Namibia to formalize San tracking, there was a need to assess specific trackers for international accreditation and then draw together the key stakeholders to encourage the

national qualifications process to gain momentum. With the assistance of Cybertracker Foundation and support from Integrated Rural Development and Nature Conservation, re-assessments were conducted of San trackers and international accreditation was awarded14.

new relationshiPs and PartnershiPs

The purpose of the State recognizing and protecting Indigenous knowledge systems and related skills is to contest the power relations between the State and rural Indigenous peoples. There is a deep historical and structural prejudice against Indigenous peoples in Africa, based on the preconceived notion that they are not productive or producers of surplus. The use of knowledge as a site of negotiation brings Indigenous peoples into a different area of the economy where they are recognized as experts rather than rural poor people and, by doing so, shifts from a deficit model to a model of adding value. This is an important consideration when assessing rights-based frameworks for development in contrast with other options; rights-based frameworks tend to be built on deficit models and may not challenge the site of negotiations and

12 National Qualifi cation Standards are bureaucratic tools to defi ne the levels of competence and sets of skills required to perform a recognized National Qualification Standards are bureaucratic tools to define the levels of competence and sets of skills required to perform a recognized occupation. They are normally tied to formal school qualifications, but increasingly there are equivalent National Qualification Standards that relate to learning, skills, and competence gained from prior experience or while doing a particular occupation. IPACC is working with Namibian agencies to establish National Qualification Standards specific to traditional tracking competences and skills. A similar Standards system is already legally applicable in South Africa.13 Cybertracker Conservation is a South African NGO that provides assessment and international certifi cation to trackers. It is also the owner of Cybertracker Conservation is a South African NGO that provides assessment and international certification to trackers. It is also the owner of Cybertracker technology, a GPS/database hand-held computer system that allows traditional trackers to capture geo-referenced wildlife information (such as species information, game counting, plant sightings, and tracking and trailing information) while in the field. Traditional knowledge can be converted into data and used to analyze biodiversity information, including species density, disease vectors, poaching patterns, and so forth. See CyberTracker (no date). Last accessed August 19, 2010, at: http://www.cybertracker.co.za/. For another example of the use of CyberTracker technology, see Kennett, R., M. Jackson, J. Morrison, and J. Kitchens, 2010. “Indigenous Rights and Obligations to Manage Traditional Land and Sea Estates in North Australia: The Role of Indigenous Rangers and the I-Tracker Project”, pages 135-142 in this issue of Policy Matters.14 The Namibian National Qualifi cation Standards and tracking livelihoods project has been funded by the Finnish Embassy in South Africa. The Namibian National Qualification Standards and tracking livelihoods project has been funded by the Finnish Embassy in South Africa. Based on the regional consultations in 2006, IPACC has worked with communities and Cybertracker Conservation to identify and assess elders with the highest levels of competence in tracking and trailing. This is in part to show the government and other stakeholders the sophisticated level of competence, but also to create a benchmark at the top of the qualifications system. Elders can then provide more focused training and assessment of junior trackers. See IPACC, 2007. “IPACC Southern African Regional Workshop on the Formalisation of Traditional Knowledge”. Last accessed August 19, 2010, at: http://ipacc.org.za/uploads/docs/Tsumkwe_English.pdf.

The recognition and protection of Indigenous

knowledge systems contests the power relations between

the State and Indigenous peoples.


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power.

Formalization of knowledge recognition has the potential to validate and mobilize knowledge systems and cultural systems to support livelihoods, maintain cultural and linguistic diversity, and motivate policy-makers to not arbitrarily displace Indigenous peoples from their territories. Additionally, the strategy has created new alliances and partnerships between Indigenous peoples and conservation NGOs, both national and international, that would have been unlikely a decade ago. Evidence of the effectiveness of the approach will emerge from current IPACC negotiations with African States. Namibia has demonstrated an interest in the National Qualifications Standards for trackers and interest has been shown by both Botswana and Gabon in the same regard.

The rights-based paradigm of development and international cooperation has helped strengthen international legal norms and standards and has provided recourse for some vulnerable communities. It is, however, an approach that relies on emphasizing claims against those in power and it assumes the resources to ensure that rights can be adequately defended and enforced. In some contexts, a supplemental approach of finding common ground and arguments of mutual interest may be more effective in encouraging elites and State parties to engage with Indigenous peoples and look for convergence. One such area is the application of traditional ecological knowledge of Indigenous peoples in national policy and practices in Africa to help secure livelihoods, strengthen conservation and tourism sectors, and valorize one of the great strengths of Indigenous peoples. Coinciding with the provisions of the CBD, Indigenous peoples are thus holders of both knowledge and rights and able to enter into new types of relationship with elites and State authorities.

Nigel Crawhall ([email protected]), PhD, MPhil, is Director of Secretariat of the Indigenous Peoples of Africa Coordinating Committee (IPACC). He is Co-Chair of the IUCN Strategic Direction/Theme on Governance, Communities, Equity and Livehood Rights in Relation to Protected Areas (TILCEPA). He is an occasional consultant to the UNESCO Sector for Culture, Division for Cultural Policies and Intercultural Dialogue.

Recognizing Indigenous peoples as experts and finding areas of mutual interest with elites and States may be more effective than rights-based approaches built on deficit models.

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Fred Nelson1

As rights-based conservation becomes more prominent in global conservation discourse and practice, it is apparent that human rights and conservation efforts enjoy both strong synergies and enduring conflicts.2 Natural resource governance entails many interconnected rights: property rights to use, access, and trade land and resources; rights to participate in decisions made at multiple scales, including policies and legislation; and wider political and civil liberties. Citizenship is defined by these rights, by the way they are granted and withheld by governance institutions (policies, laws, constitutions), and by the bodies that enforce them (police, courts of law, government agencies). Rights and rights-based conservation, more specifically, are therefore premised on the operation of the rule of law and legal principles of constitutionalism that give meaning to such rights.

Importantly, though, there are vast differences in the performance of the rule of law, and thus in the meaning and function of rights and citizenship, in different regions and countries.3 In sub-Saharan Africa, the rule of law tends to be weak, with governance processes strongly influenced by informal or personal interests and networks. In such contexts, rights as defined by laws or constitutions can be, in practice, of limited practical meaning.4 As a result, efforts to strengthen local rights and tenure in relation to natural resources, as well as participation and accountability in decision-making and wider civil and political rights, are widely constrained. Moreover, current political and economic trends in sub-Saharan Africa, particularly the growing market value of many natural resources, create incentives for policy-makers and political elites to weaken local rights rather than strengthen them.

Rights-based conservation efforts are thus inherently tied to local, national, and transnational struggles over a range of political and civil rights in African countries. Promoting local rights entails engaging with political processes that structure

1 This article draws on material from the edited volume, Nelson, F. (ed.), 2010. Community Rights, Conservation and Contested Land: The Politics of Natural Resource Governance in Africa. Earthscan: London. This volume includes contributions from 17 colleagues from east and southern Africa and was organized through the IUCN Southern Africa Sustainable Use Specialist Group, with financial support from the Norwegian Ministry of Foreign Affairs and the Sand County Foundation Bradley Fund for the Environment. I am also grateful to Jessica Campese and Holly Shrumm for helpful editorial comments and guidance during the process of developing and revising this article. The views presented in this article, however, are mine alone and I am responsible for any errors of fact or interpretation. 2 Greiber, T., 2009. Conservation with Justice: A Rights-based Approach. IUCN: Gland, Switzerland.3 Kaufmann, D., A. Kraay, and M. Mastruzzi, 2009. Governance Matters VIII: Aggregate and Individual Governance Indicators, 1996-2008. World Bank Policy Research Working Paper No. 4978, Washington, D.C. Last accessed June 29, 2010, at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1424591.4 This situation has been termed, in relation to constitutional law, as ‘constitutions without constitutionalism’, meaning that the rights enshrined in African constitutions are frequently not matched by political traditions or institutions (such as independent courts) required to uphold them. See Okoth-Ogendo, H. W. O., 1993. “Constitutions without constitutionalism: Reflections on an African political paradox”, pages 65-82 in Greenberg, D., S. N. Katz, M. B. Oliviero, and S. C. Wheatley (eds.), Constitutionalism and Democracy: Transitions in the Contemporary World. Oxford University Press: New York.

Conservation and Citizenship: Democratizing Natural Resource Governance in Africa

Rights-based conservation depends on institutions that give citizens clear and enforceable rights to manage lands and natural resources. Such rights hinge on citizens’ abilities to strengthen and defend their rights and on the operation of the rule of law and impersonal forms of government for legal reforms to take place and have meaning. Across much of sub-Saharan Africa, local rights and citizenship are constrained by enduring institutional structures and power relations that favour the centralization of authority and weaken the rule of law, and which create disincentives to devolving secure rights to local groups of citizens. Current political-economic trends in many parts of eastern and southern Africa are increasing conflicts over resource governance as governments and political elites reconsolidate control over lands and resources. These struggles are part and parcel of wider contests over political rights and democratization in the region and the scope and meaning of citizenship. If more sustainable natural resource governance arrangements are to emerge, rights-based conservation efforts must work to understand these political dynamics and to build the capacity of local groups to work towards institutional change and reform.

Abstract


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and shape those rights, as well as strengthening local social movements and civic organizations, which are ultimately the key to democratizing natural resource governance institutions and the wider political landscape that they are situated within. Rights-based conservation efforts need to develop strategies for influencing political and institutional changes, including through better links between local groups and global networks, as well as generating improved understanding of the political dynamics surrounding natural resource governance processes. This article discusses rights-based conservation in relation to these wider political and governance processes and trends in eastern and southern Africa, with a more detailed discussion of Tanzania as a case example.

ResouRce Rights and the state in afRica

During the past thirty years, a wide range of scholastic and practitioner efforts across eastern and southern Africa have placed the issue of local rights at the centre of natural resource management paradigms and practices.5 These efforts have taken place in diverse social, ecological, and political contexts and have assumed a range of names, including community-based natural resource management (CBNRM), participatory forest management, and community-based conservation, among others.6 These overlapping terms share in common basic underlying assumptions about natural resource governance: first, that local groups of people are key actors in managing lands and resources as the basis for sustaining local livelihoods, wider regional economies, and ecosystem services; and second, that a combination of local collective property rights and economic benefits provide the key behavioural incentives for the sustainable use and conservation of biodiversity.7

Practical experimentation with devolving rights over natural resources spans over four decades in southern Africa.8 Zimbabwe, South Africa, and Namibia granted private landholders rights over wildlife starting in the 1960s. Such usufruct rights over wildlife were later expanded to communal lands such as through Zimbabwe’s CAMPFIRE9 and later, Namibia’s communal conservancies. These programmes and reforms have had a wide range of livelihood and conservation impacts, in some instances leading to large-scale expansion of wildlife-based land uses and considerable growth in locally-captured benefits from natural resources.10 Similarly, albeit with different origins and influences, forestry reforms aiming to strengthen local rights and abilities to benefit from forests have emerged, most strongly in eastern African countries such as

Tanzania and Uganda.11 Overall, natural resource policy reforms that promote local participation, empowerment, and broad resource governance shifts from central to local scales have been widespread across the region for much of the past twenty years in one form or another.12

While conservation and natural resource governance efforts centred around local rights have become widely embraced, it has also become clear that there are major obstacles to such institutional reforms occurring in practice. Across eastern and southern Africa, devolved resource governance regimes have often been promoted

in government policies, donor projects, and rhetorical narratives, but rarely do communities actually possess secure rights and tenure. In some places, rights that were gained have subsequently been taken away or contravened.13 A fundamental cause of this gap between policy rhetoric and institutional reality lies within the political arena, where governance

5 Suich, H., B. Child, and A. Spenceley, 2008. Evolution and Innovation in Wildlife Conservation: Parks and Game Ranches to Transfrontier Conservation Areas. Earthscan: London; Alden Wily, L., and S. Mbaya, 2001. Land, People and Forests in Eastern and Southern Africa at the Beginning of the 21st Century: The Impact of Land Relations on the Role of Communities in Forest Future. IUCN-EARO: Nairobi, Kenya.6 Roe, D., F. Nelson, and C. Sandbrook, 2009. Community Management of Natural Resources in Africa: Impacts, Experiences and Future Directions. IIED Natural Resource Issues No. 18, International Institute for Environment and Development: London.7 These assumptions are grounded in the work on common property regimes of scholars such as Elinor Ostrom and, within southern Africa, Marshall Murphree, who observed nearly 20 years ago: “The evidence is that communities can become effective institutions for sustainable resource management, but only if they are granted genuine proprietorship, that is, the right to use resources, determine the modes of usage, benefit fully from their use, determine the distribution of such benefits and determine rules of access.” See Murphree, M., 1993. Communities as Resource Management Institutions. IIED Gatekeeper Series No. 36, International Institute for Environment and Development: London.8 Suich et al., 2008.9 Communal Areas Management Programme for Indigenous Resources (CAMPFIRE).10 Roe Roe et al., 2009.11 Alden Wily and Mbaya, 2001. Alden Wily and Mbaya, 2001.12 Roe Roe et al., 2009.13 Nelson, F. (ed.), 2010. Nelson, F. (ed.), 2010. Community Rights, Conservation and Contested Land: The Politics of Natural Resource Governance in Africa. Earthscan: London.

Promoting local rights entails engaging with the political processes that structure and shape them.

Devolving rights to lands and resources to local citizens is often

incompatible with the political logic that underpins many

contemporary African states.

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regimes and decisions are negotiated amongst parties with divergent interests.14 Natural resources are valuable capital assets, particularly in agrarian African societies with relatively low levels of industrial production. As valuable resources in economically poor countries, natural resources play a key role in providing patronage goods for politicians that control governmental functions.15

African states are highly centralized, with strong concentration of powers in the hands of the executive branch as a result of both colonial and post-colonial history; they are also institutionally fragile and prone to outbreaks of violent competition for winner-takes-all control of the executive branch.16 African states tend to be governed more through personal networks and informal processes than states where the rule of law (which is ‘impersonal’) is well-established.17 Citizens tend to be highly constrained in their ability to hold political leaders accountable and those leaders are thus able to pursue private interests.18 Centralized control over valuable natural resources plays an important role in this context, enhancing the capacity of those in power to dispense patronage and control the flow of resources.

Despite the importance of local rights in terms of encouraging sustainable use, government officials often possess strong disincentives to devolving authority.19 Devolving rights to manage and control the value of lands and resources to local groups of citizens is consequently often incompatible with the political logic that underpins many contemporary African states.

These political and economic realities create a fundamental challenge for development and conservation efforts predicated on strengthening local rights and tenure: how can more devolved and democratic natural resource governance regimes be achieved in political settings that are often effectively hostile to their emergence? Resource rights are bound up with much wider questions of citizenship, accountability, and democracy.

contested gRound: natuRal ResouRce goveRnance tRends in tanzania

Tanzania provides a useful case study to illustrate some of the wider contemporary trends in natural resource governance in sub-Saharan Africa. Several key points from the Tanzanian experience must be emphasized. First, the economic importance of natural resources has increased dramatically during the past decade due to a range of global economic factors. Second, there is a marked contrast between policies promoting devolution or decentralization of rights and benefits to the local level and actual changes occurring in natural resource governance institutions. Third, this divergence between democratic rhetoric and governance realities is reflective of broader social struggles over political rights and accountability in contemporary Tanzania.

Tanzania is one of sub-Saharan Africa’s most resource-rich countries. It has unmatched wildlife populations that provide the basis for a tourism industry that generates more than 1 billion USD in total annual revenue, extensive forests and woodlands with many valuable hardwoods in a growing export trade, major fisheries in both inland lakes and along the coastal shelf, large areas of fertile arable land, and many lucrative mineral deposits.20 All of these natural resource-based industries have grown rapidly since the economy effectively collapsed in the early 1980s, prompting the abandonment of the socialist development paradigm of the late 1960s and 1970s. Tourism grew by 10% annually during

14 ‘Institutions’ refer to the formal and informal ‘rules of the game’ that govern human societies. Institutions themselves are the outcome of ‘Institutions’ refer to the formal and informal ‘rules of the game’ that govern human societies. Institutions themselves are the outcome of bargaining amongst different groups and actors with different interests, as those interests are defined by various economic, cultural, and ethical factors. ‘Politics’ refers to societies’ decision-making processes in the governance of states or polities, including this bargaining amongst different actors over the rules of the game (policies, laws, constitutions, etc.), as well as both electoral and bureaucratic processes. See North, D. C., 1990. Institutions, Institutional Change and Economic Performance. Cambridge University Press: Cambridge.15 Gibson, C. C., 1999. Gibson, C. C., 1999. Politicians and Poachers: The Political Economy of Wildlife Policy in Africa. Cambridge University Press: Cambridge; Nelson, 2010; see also Nelson, F., and A. Agrawal. 2008. “Patronage or participation? Community-based natural resource management reform in sub-Saharan Africa”. Development and Change, 39(4): 557-585.16 Ake, C., 1996. Ake, C., 1996. Ake, C., 1996. Development and Democracy in Africa. Brookings Institute: Washington, D.C.17 North, D. C., J. J. Wallis, and B. R. Weingast, 2009. North, D. C., J. J. Wallis, and B. R. Weingast, 2009. Violence and Social Orders: A Conceptual Framework for Interpreting Recorded Human History. Cambridge University Press: New York.18 Diamond, L., 2008. ‘The state of democracy in Africa’, pages 1-14 in Diamond, L., 2008. ‘The state of democracy in Africa’, pages 1-14 in Democratization in Africa: What Progress Toward Institutionalization? Conference report from October 4-6, 2007, Center for Democratic Development/National Intelligence Council: Accra.19 See, for example, Gibson, 1999. See, for example, Gibson, 1999.20 World Bank, 2008. World Bank, 2008. Putting Tanzania’s Hidden Economy to Work. World Bank: Washington, D.C.

The divergence between democratic rhetoric and

governance realities is reflective of broader social

struggles over political rights and accountability.

As the economic value of Tanzania’s natural resources has increased, so have the stakes for rights to access, control, and utilize those resources.


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the 1990s and is now one of the top contributors of foreign exchange.21 Timber harvesting has expanded considerably as a result of demand for hardwoods from China and other Asian countries.22 These and other commercial activities based around natural resource use have been central to Tanzania’s attainment of up to 7% growth in annual Gross Domestic Product in recent years.23

As the economic value of Tanzania’s natural resources has grown, the stakes have also increased for how rights to access, control, and utilize those resources are defined and allocated. In the 1990s, a range of donor-sponsored reforms were adopted, particularly from 1995-1999, when new national policies were produced for sectors such as land, forestry, wildlife, tourism, and environment. These policies all prioritized providing greater recognition and security for local rights to lands and natural resources and creating new economic opportunities for rural communities to benefit from resources such as forests and wildlife. In most cases, new laws followed such as the 1999 Land Act and Village Land Act, which replaced colonial-era land tenure legislation, and the 2002 Forest Act. The Forest Act provides a secure legal framework for local communities to formalize rights over forests on community lands (as defined under the 1999 Land Act and Village Land Act) and led to a considerable expansion of community-managed forests in Tanzania.24 These reforms of the 1990s were also reflective of wider changes in Tanzanian society, including the shift from socialism towards more liberalized economic policies and the adoption of multi-party politics in 1992.

During the past decade, however, the reformist tenor of the 1990s has not been matched by actual progress in devolving authority over economically valuable natural resources; even local rights clearly defined under the law are highly constrained in practice. These dynamics have been most evident in the realm of wildlife management. As perhaps Tanzania’s most economically and strategically valuable natural resource,25 wildlife has been the subject of some of the fiercest struggles over use and management. The 1998 Wildlife Policy of Tanzania described the future management paradigm for wildlife in Tanzania as one that would devolve rights to use and benefit from wildlife outside the core protected areas (national parks and game reserves) to local communities living alongside wildlife, with the aim of making wildlife a beneficial and competitive local form of land use.26 This policy recognized that for wildlife to be sustained outside state protected areas, local communities needed to capture more direct benefits from wildlife. The core mechanism for achieving this is through establishment of Wildlife Management Areas, where local communities would, according to the 1998 policy, be given “full mandate” of using and benefitting from wildlife.27 After the release of the 1998 policy, expectations were that a new law would be passed to replace the 1974 Wildlife Conservation Act and give legal meaning to the new policy and that this law would accordingly devolve greater rights to villagers.28

21 Mitchell, J., J. Keane, and J. Laidlaw, 2008. Mitchell, J., J. Keane, and J. Laidlaw, 2008. Making success work for the poor: Package tourism in northern Tanzania. Overseas Development Institute and SNV: London.22 Milledge, S. A. H., I. K. Gelvas, and A. Ahrends, 2007. Milledge, S. A. H., I. K. Gelvas, and A. Ahrends, 2007. Forestry, Governance and National Development: Lessons Learned from a Logging Boom in Southern Tanzania. TRAFFIC East/Southern Africa/Tanzania Development Partners Group/Ministry of Natural Resources and Tourism: Dar es Salaam, Tanzania.23 World Bank, 2008. World Bank, 2008.24 Blomley, T., K. Pfl iegner, J. Isango, E. Zahabu, A. Ahrends, and N. Burgess, 2008. “Seeing the wood for the trees: Towards an objective Blomley, T., K. Pfl iegner, J. Isango, E. Zahabu, A. Ahrends, and N. Burgess, 2008. “Seeing the wood for the trees: Towards an objective Blomley, T., K. Pfliegner, J. Isango, E. Zahabu, A. Ahrends, and N. Burgess, 2008. “Seeing the wood for the trees: Towards an objective assessment of the impact of participatory forest management on forest condition in Tanzania”. Oryx, 42(3): 380-391.25 For a range of useful background information on wildlife management in Tanzania, see Tanzania Natural Resource Forum, 2008. For a range of useful background information on wildlife management in Tanzania, see Tanzania Natural Resource Forum, 2008. Tanzania Natural Resource Forum, 2008. Wildlife for all Tanzanians: Stopping the Loss, Nurturing the Resource and Widening the Benefits. An Information Pack and Policy Recommendations. TNRF: Arusha, Tanzania. Last accessed August 30, 2010, at: http://www.tnrf.org/node/8339.26 For a fuller account of this institutional history, see Nelson, F., R. Nshala, and W. A. Rodgers, 2007. “The evolution and reform of Tanzanian For a fuller account of this institutional history, see Nelson, F., R. Nshala, and W. A. Rodgers, 2007. “The evolution and reform of Tanzanian Nelson, F., R. Nshala, and W. A. Rodgers, 2007. “The evolution and reform of Tanzanian wildlife management”. Conservation and Society, 5(2): 232-261.27 Ministry of Natural Resources and Tourism, 1998. Ministry of Natural Resources and Tourism, 1998. The Wildlife Policy of Tanzania. Government Printer: Dar es Salaam.28 It is important here to bear in mind the distinctions between policies, laws, and regulations as different types of governing institutions (or It is important here to bear in mind the distinctions between policies, laws, and regulations as different types of governing institutions (or

Figure 1. Maasai pastoralists in northern Tanzania are dispossessed from their customary lands for private hunting concessions and state protected areas. © Fred Nelson

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In the 12 years following the release of the 1998 Wildlife Policy, the institutional dynamics in the wildlife sector have taken a very different turn from the reformism of the 1990s. Wildlife Management Areas were introduced without clear mechanisms for sharing benefits between government and local communities. For many local communities the benefits of Wildlife Management Areas were not clear, which created fears that so-called community-based conservation was in practice little different from traditional, exclusive national parks.29 The government released new tourism regulations in 2000 and 2007 that redirected revenues paid to villagers under local tourism concession agreements to central authorities, reducing the flow of benefits to villages from wildlife and tourism and effectively counteracting the espoused objectives of the Wildlife Policy. An array of national parks and game reserves continued to be created or expanded, leading to loss of local communities’ access to resources across large areas.30

A number of recent episodes highlight the degree to which wildlife governance institutions are actually being centralized, rather than decentralized, by the Tanzanian state. In early 2009, the Wildlife Conservation Act, a new general wildlife law, was passed through Parliament.31 Contrary to earlier policy pledges, this law provides few new rights for local communities and does not establish mechanisms for greater accountability and transparency in wildlife-based industries such as tourist hunting. Instead, the Act creates a range of new types of protected areas to be governed according to Ministerial

regulations (which do not have to be passed through Parliament) and upgrades the provisions governing some existing land use categories (see Figure 2).32

The changes that the Act makes to the governance of Game Controlled Areas in particular are of great concern to some local communities. Game Controlled Areas were created during the colonial era, when utilization of wildlife was not regulated or restricted everywhere in the country (as it has been since 1974), in order to regulate wildlife use in particular areas. Many Game Controlled Areas were established in areas that had long been inhabited by large human communities, particularly in the northern part of the country where local pastoralists and wildlife share savannah and grassland ecosystems. The 2009 Wildlife Conservation Act, however, summarily makes any livestock grazing or agricultural cultivation in Game Controlled Areas illegal. Debate on the Act resulted in an amendment to ensure that areas classified as village lands (under local communities’

formal rules). Policies are a statement of intent and have mainly a declaratory meaning; policies have no legal meaning and are not part of the legal code and thus cannot be enforced as such. Laws are the main way that societies establish and modify formal rules of governance and are what enforcement bodies such as the police and the judiciary base their activities on. Regulations are a part of the legal code that can be propagated administratively, rather than by the legislature, because they are provided for by a given statute or ‘parent law’.29 Igoe, J., and B. Croucher, 2007. “Conservation, commerce, and communities: The story of community-based wildlife management in Tanzania’s Igoe, J., and B. Croucher, 2007. “Conservation, commerce, and communities: The story of community-based wildlife management in Tanzania’s Igoe, J., and B. Croucher, 2007. “Conservation, commerce, and communities: The story of community-based wildlife management in Tanzania’s northern tourist circuit”. Conservation and Society, 5(4): 534-561.30 Brockington, D., H. Sachedina, and K. Scholfi eld, 2008. “Preserving the new Tanzania: Conservation and land use change”. Brockington, D., H. Sachedina, and K. Scholfield, 2008. “Preserving the new Tanzania: Conservation and land use change”. International Journal of African Historical Studies, 41(3): 557-579.31 Wildlife Conservation Act No. 5 of 2009. Government Printer: Dar es Salaam. Wildlife Conservation Act No. 5 of 2009. Government Printer: Dar es Salaam.32 For example, the Act provides for the Minister of Natural Resources and Tourism to designate buffer zones and migration routes outside state For example, the Act provides for the Minister of Natural Resources and Tourism to designate buffer zones and migration routes outside state protected areas on communal or private lands and to impose (undefined) land use restrictions in these areas.

Contrary to the reformism of the 1990s, wildlife governance institutions are actually being centralized, rather than decentralized, by the Tanzanian state.

Figure 2. Map of different protected areas and land categories in Tanzania.© Andrew Williams


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management) do not overlap with the Game Controlled Areas in the future, as they have for many years. Nevertheless, this change of the meaning of Game Controlled Areas poses a major threat to local land tenure security, particularly in northern Tanzania where the Areas overlay at least four entire administrative districts, establishing a showdown between state authorities and villagers over the definition of the boundaries between village lands and Game Controlled Areas.

The potential ramifications of this growing conflict over local land use in areas where wildlife lives outside state protected areas was also apparent in 2009 in the Loliondo area of northern Tanzania (see Figure 3). This locale has been the site of a long-running conflict between local Maasai pastoralist communities and the holder of a hunting concession situated in legally titled community lands. This hunting concession was originally granted to a member of the royal family of the United Arab Emirates in 1992, without approval and consultation with local communities in an episode that became a national and international controversy.33 After years of uneasy co-existence, the conflict assumed a new dimension in July, 2009, when government security forces carried out an operation to clear villagers out of their own village lands-cum-government hunting concession at the beginning of the annual hunting season.34 This operation involved burning a large number of homesteads and resulted in a wide range of alleged human rights abuses.35 The villagers were essentially evicted from lands that they have clear and unambiguous legal rights to under the Land Act and Village Land Act.

The Loliondo episode highlights the increasing tensions between central government, villagers, and private investors over local land, human rights, and access to wildlife for commercial use and investment. The central government appears committed to maintaining land access for private investors with contractual arrangements with government agencies, even when such arrangements conflict with local livelihoods and existing land and resource rights. The interests of government decision-makers in this case range from the formal interest in promoting foreign investment to the informal public and private benefits that may accrue from such investments at various levels of government.36 At a practical level, the Loliondo case illustrates how in countries such as Tanzania, where the rule of law is weak and informal or personalized decisions play a central role in governance processes, formal legal rights are circumvented when those rights conflict with other private or state interests.

Tanzanian organizations and groups of citizens have mobilized in response to these struggles over local rights and livelihoods. Civil society organizations representing a range of rural and global constituencies sought to influence the Wildlife Conservation Act, but the legislative process in Tanzania continues to be predominantly shaped by ruling party interests and Parliamentarians are often more accountable to the party than to their constituents. The Loliondo conflict has prompted multifaceted local and national efforts to address alleged human rights abuses and prevent the loss of local lands and resource access.37 Nevertheless,

33 Honey, M., 2008. Honey, M., 2008. Ecotourism and Sustainable Development: Who Owns Paradise? 2nd Edition, Island Press: Washington, D.C.34 Ihucha, A., 2010. “Govt under fi re over new hunting license”. Ihucha, A., 2010. “Govt under fire over new hunting license”. The East African, August 16-22, 2010, page 1.35 Renton, A., 2009. “Tourism is a curse to us”. Renton, A., 2009. “Tourism is a curse to us”. The Observer, September 9, 2009. Last accessed May 17, 2010, at: http://www.guardian.co.uk/world/2009/sep/06/masai-tribesman-tanzania-tourism.36 Such informal fl ows of resources are diffi cult to document, but are widely reported in the case of Loliondo. See Renton, 2009. Such informal flows of resources are difficult to document, but are widely reported in the case of Loliondo. See Renton, 2009.37 For example, the Dar es Salaam-based Feminist Activist Coalition organized a fact-fi nding mission to Loliondo shortly after the confl ict began For example, the Dar es Salaam-based Feminist Activist Coalition organized a fact-finding mission to Loliondo shortly after the conflict began and issued a report that was strongly critical of the government and described a range of abuses. See Pambazuka News, 2009. “Tanzania: Loliondo report of findings”. Last accessed August 30, 2010, at: http://www.pambazuka.org/en/category/advocacy/58956.

If the rule of law is weak, formal legal rights

are circumvented when they conflict with other

private or state interests.

Figure 3. Map of Loliondo area in Tanzania. © Fred Nelson

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these efforts have had limited impact thus far, as elected officials in both parliamentary and executive branches have demonstrated limited interest in addressing local grievances. These struggles over wildlife governance illustrate how citizenship in Tanzania, in terms of the ability of individuals and groups to participate in and influence governance decisions and processes and to defend their rights, is heavily constrained by existing power relations and political arrangements, particularly the concentration of authority in the executive branch, curbs on the media and civil society organizations, and the continued effective domination of the state by a single party.

These dynamics cut to the heart of broader contemporary struggles over control of the economy, the orientation of public policy, and political accountability in Tanzania. Despite a decade of strong macroeconomic growth, poverty levels across Tanzania have changed very little, with rural poverty levels nearly stagnant.38 A central reason for this is that the governance of key productive sectors such as land, natural resources, and agriculture continues to enable many extractive or predatory forms of governance and administration. Economic value and market access is often captured by urban elites and politically-connected companies due to persistent or resurgent institutional distortions.39 As existing resource use and governance arrangements are increasingly questioned by economically and politically marginalized citizens, Tanzania’s de facto one-party state is facing a renewed crisis of legitimacy. The 2008 resignation of the country’s Prime Minister and Cabinet in a grand corruption scandal is the most notable embodiment of this changing political climate, with more subtle changes such as revitalized opposition parties and parliamentary debate playing an equally important role.40 Ultimately, the debates over the distribution of rights over and benefits from natural resources are fundamental to these wider struggles for citizenship, accountability, and democracy in Tanzania today, and are likely to play a key role in the reconfiguration of political relationships and institutions in the future.

RefoRming ResouRce goveRnance and the ReconstRuction of citizenship

Similar dynamics are apparent across eastern and southern Africa, where a number of the enabling laws, policies, and community-based initiatives developed during the 1990s have been challenged or contravened by more recent efforts to reconsolidate or expand direct central control over natural resources.41 For example, in Mozambique, the democratic reforms to land and natural resource policies carried out from 1997-2001, while still in place, have been marginalized and provisions designed to give communities greater rights over land have seen relatively limited implementation, as the government has greatly expanded the area under centralized management as either protected areas or commercial timber, tourism and hunting concessions.42 In Zambia, a model devolved system for managing wildlife and hunting revenues in the Luangwa Valley has been replaced with a system that gives villages a lower

proportion of wildlife revenues and less direct say in how those revenues are used.43 In Botswana, local rights to benefits from joint venture tourism or safari hunting ventures have been reduced in a new official CBNRM policy that recentralizes

38 For an interesting discussion of these realities, see Policy Forum, 2009. “Is less more? Business environment from the bottom up.” Policy For an interesting discussion of these realities, see Policy Forum, 2009. “Is less more? Business environment from the bottom up.” Policy Brief 8.09. Last accessed June 24, 2010, at: http://www.policyforum-tz.org/files/BusinessEnvironmentfromtheGround-up.pdf; United Republic of Tanzania, 2009. Poverty and Human Development Report 2009. Research and Analysis Working Group, MKUKUTA Monitoring System, Ministry of Finance and Economic Affairs: Dar es Salaam.39 For an example concerning agricultural policy developments, see Cooksey, B., 2003. “Marketing reform? The rise and fall of agricultural For an example concerning agricultural policy developments, see Cooksey, B., 2003. “Marketing reform? The rise and fall of agricultural Cooksey, B., 2003. “Marketing reform? The rise and fall of agricultural liberalisation in Tanzania”. Development Policy Review, 21(1): 67-91; for an example on forestry products value chains, see Milledge et al., 2007.40 For an interesting insider’s discussion of some of these dynamics, see Sitta, S., W. Slaa, and J. Cheyo, 2008. For an interesting insider’s discussion of some of these dynamics, see Sitta, S., W. Slaa, and J. Cheyo, 2008. A Parliament with Teeth. Africa Research Institute: London.41 Nelson, 2010. Nelson, 2010.42 Anstey, S., 2005. “Governance, natural resources and complex adaptive systems: A CBNRM study of communities and resources in northern Anstey, S., 2005. “Governance, natural resources and complex adaptive systems: A CBNRM study of communities and resources in northern Mozambique”, pages 138-193 in Dzingirai, V., and C. Breen (eds.), Confronting the Crisis in Community Conservation: Case Studies from Southern Africa. University of KwaZulu-Natal: Pietermaritzburg, South Africa; Tanner, C., S. Baleira, S. Norfolk, B. Cau, and J. Assulai, 2006. Making Rights a Reality: Participation in Practice and Lessons Learned in Mozambique. LSP Working Paper 27, FAO: Rome.43 Lubilo, R., and B. Child, 2010. “The rise and fall of community-based natural resource management in Zambia’s Luangwa Valley: An illustration Lubilo, R., and B. Child, 2010. “The rise and fall of community-based natural resource management in Zambia’s Luangwa Valley: An illustration of micro- and macro-governance issues”, pages 202-226 in Nelson, F. (ed.), Community Rights, Conservation and Contested Land: The Politics of Natural Resource Governance in Africa. Earthscan: London.

A number of enabling laws, policies, and community-based initiatives

developed during the 1990s post-Cold War resurgence of democracy have been challenged or contravened

by more recent efforts to reconsolidate or expand direct central control over

natural resources.

Debates over the distribution of rights over and benefits from natural resources are fundamental to wider struggles for citizenship, accountability, and democracy.


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control over wildlife revenues.44 Across the region, there are rapidly growing concerns about large-scale leasing or alienation of community lands for biofuels and agricultural investments.45 Africa trails far behind Latin America and Asia in formal community forest ownership,46 even as new concerns emerge about forest conservation financing under a global climate regime47, potentially leading to greater central or private claims and control over forests.48

Trends in African natural resource governance highlight how current political dynamics shaping the region are starkly different from the 1990s’ post-Cold War resurgence of democracy. In the 1990s, democracy was spreading as conflicts ended in countries such as Mozambique and citizenship was transformed in post-apartheid South Africa and Namibia. International support for democratic reform helped citizens in countries such as Zambia, Tanzania, Malawi, and Kenya regain many political liberties and revitalized multi-party competition. Electoral politics has been widely institutionalized, even if, as has happened within the past three years in Kenya and Zimbabwe, electoral results can be superseded by informal political interests and sources of power.49 Despite this spread of electoral and multi-party democracy, the ability of citizens to hold rulers accountable remains highly curtailed, either because electoral results can be manipulated or, more fundamentally, because institutional structures, with their heavy centralization of discretionary authority and high coercive powers, continue to treat people as subjects rather than devolving powers necessary for more active exercise of citizenship.50

Just as Larry Diamond describes a resurgence of ‘predatory states’ as a result of global political and economic trends across parts of the developing world this past decade,51 efforts to promote rights-based approaches to natural resource management have witnessed the democratization of the 1990s gradually giving way to heightened conflicts over rights and tenure and a reinforcement of centralized and extractive institutional arrangements. While earlier reformist trends may have carried an air of inevitable progression52, there needs to be a clearer recognition that the political-economic settings have changed and such assumptions about linear or irreversible patterns of reform have proven false.

For practical efforts to promote local rights and resource governance regimes, the starting point is to understand the drivers of existing patterns of institutional change, particularly their political dimensions, as well as the inherent connectivity between natural resource governance reforms and wider questions of citizenship and democracy in African states. As Catherine Boone notes, “the terms of land access remain the hard core of the social contract between the post-colonial state and rural populations.”53 Jesse Ribot also effectively captures the wider salience of contemporary struggles over forest use and governance in Senegal in referring to these as “a last frontier of decolonization.”54 Rights-based conservation is thus inherently woven together with ongoing struggles over citizenship and statehood in African nations.

44 Rihoy, L., and B. Maguranyanga, 2010. “The politics of community-based natural resource management in Botswana”, pages 55-78 in Nelson, Rihoy, L., and B. Maguranyanga, 2010. “The politics of community-based natural resource management in Botswana”, pages 55-78 in Nelson, F. (ed.), Community Rights, Conservation and Contested Land: The Politics of Natural Resource Governance in Africa. Earthscan: London.45 Cotula, L., S. Vermeulen, R. Leonard, and J. Keeley, Cotula, L., S. Vermeulen, R. Leonard, and J. Keeley, Land Grab or Development Opportunity? Agricultural Investment and International Land Deals in Africa. FAO/IIED/IFAD: Rome and London.46 RRI (Rights and Resources Initiative), 2009. RRI (Rights and Resources Initiative), 2009. RRI (Rights and Resources Initiative), 2009. Who Owns the Forests of Africa? An introduction to the forest tenure transition in Africa, 2002-2008. RRI: Washington, D.C.47 The United Nations Collaborative Programme on Reducing Emissions from Deforestation and Forest Degradation in Developing Countries The United Nations Collaborative Programme on Reducing Emissions from Deforestation and Forest Degradation in Developing Countries Reducing Emissions from Deforestation and Forest Degradation in Developing Countries (REDD), 2009. Last accessed 31 August 2010, at: http://www.un-redd.org/48 Gomera, M., L. Rihoy, and F. Nelson, 2010. “A changing climate for community resource governance: Threats and opportunities from climate Gomera, M., L. Rihoy, and F. Nelson, 2010. “A changing climate for community resource governance: Threats and opportunities from climate change and the emerging carbon market”, pages 293-309 in Nelson, F. (ed.), Community Rights, Conservation and Contested Land: The Politics of Natural Resource Governance in Africa. Earthscan: London.49 Posner, D. N., and D. J. Young, 2007. “The institutionalization of political power in Africa”. Posner, D. N., and D. J. Young, 2007. “The institutionalization of political power in Africa”. Journal of Democracy, 18(3): 126-140.50 Ansety, S., and L. Rihoy, 2009. “Beacon and barometer: CBNRM and evolutions in local democracy in southern Africa”, pages 41-57 in Ansety, S., and L. Rihoy, 2009. “Beacon and barometer: CBNRM and evolutions in local democracy in southern Africa”, pages 41-57 in Ansety, S., and L. Rihoy, 2009. “Beacon and barometer: CBNRM and evolutions in local democracy in southern Africa”, pages 41-57 in Mukamuri, B. B., J. M. Manjengwa, and S. Anstey (eds.), Beyond Proprietorship: Murphree’s Laws on Community-Based Natural Resource Management in Southern Africa. Weaver Press: Harare, Zimbabwe; also see Mamdani, M., 1996. Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism. Princeton University Press: Princeton, New Jersey.51 Diamond, L., 2008. “The democratic rollback: The resurgence of the predatory state”. Diamond, L., 2008. “The democratic rollback: The resurgence of the predatory state”. Foreign Affairs, 87(2): 36-48.52 In 2004, CBNRM in southern Africa was referred to as “a process of devolution and democratization of natural resources from which there is In 2004, CBNRM in southern Africa was referred to as “a process of devolution and democratization of natural resources from which there is n 2004, CBNRM in southern Africa was referred to as “a process of devolution and democratization of natural resources from which there is no turning back”. Fabricius, C., E. Koch, S. Turner, H. Magome, and L. Sisitka, 2004, page 281. “Conclusions and recommendations: What we have learned from a decade of experimentation”, pages 271-282 in Fabricius, C., E. Koch, H. Magome, and S. Turner (eds.), Rights, Resources, and Rural Development: Community-based Natural Resource Management in Southern Africa. Earthscan: London.53 Boone, C., 2007. “Property and constitutional order: Land tenure reform and the future of the African state”. Boone, C., 2007. “Property and constitutional order: Land tenure reform and the future of the African state”. Boone, C., 2007. “Property and constitutional order: Land tenure reform and the future of the African state”. African Affairs, 106: 557-586.54 Ribot, J. C., 2008. Ribot, J. C., 2008. Authority over Forests: Negotiating Democratic Decentralization in Senegal. Working Paper 36, Representation, Equity, and Environment Working Paper Series, World Resources Institute: Washington, D.C.

The democratization of states and of natural resource governance must come from long-term social struggles, negotiations over rights, and challenges to established power relations.

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Beyond understanding the nature of the stakes and interests at play in rights-based initiatives is the key work of identifying practical entry-points and effective strategies that promote institutional change. The democratization of states and of natural resource governance must inevitably come from long-term social struggles, negotiations over rights, and challenges to established power relations, as has been the case throughout modern human history.55 Despite the enduring challenges to exercising citizenship in African countries, wider political changes are occurring, from the mobilization of local groups as in Loliondo to major constitutional reform, as recently took place in Kenya. Larry Diamond observes, “To a degree far beyond the early years of nationhood, the construction of democracy in Africa is a bottom-up phenomenon” in

contemporary times.56 Influencing political processes in favour of local rights and interests requires developing political strategies and constituencies that can produce new types of social movements and organizations with local legitimacy, cultural underpinnings, and resonance. Given the constraints to collective action in many parts of rural Africa, many of which are created by existing political relations and structures, supporting rural social movements and organizations must be the fundamental strategy for promoting rights-based conservation.

International processes can however play a useful role in supporting these bottom-up forces for democratization. For example, international human rights and justice bodies provide a valuable alternative in settings where national institutions are weak and unable to provide justice or arbitration. This is clearly illustrated in the widespread support in

Kenya for the International Criminal Court to bring perpetrators of the 2008 post-election violence to justice, particularly in light of the perceived inability of domestic legal and judicial institutions to do so.57

conclusion

Supporting rights-based conservation in the African context is fundamentally about working with local communities, civil society organizations, and social movements and networks to develop effective and adaptive strategies for enhancing and defending local rights. Rights-based conservation efforts are thus inherently and explicitly political, in that they are part of a wide set of processes that are ultimately reshaping the form and function of citizenship. Devising and supporting effective strategies from the local to global scale that support such democratic shifts is fundamental to more sustainable patterns of natural resource use and rural livelihoods across sub-Saharan Africa.

55 See, for example, Acemoglu, D., and J. A. Robinson, 2006. See, for example, Acemoglu, D., and J. A. Robinson, 2006. Acemoglu, D., and J. A. Robinson, 2006. Economic Origins of Dictatorship and Democracy. Cambridge University Press: Cambridge.56 Diamond, 2008, page 6. Diamond, 2008, page 6.57 Maathai, W., 2010. “ICC our only shield from crimes against humanity”. Maathai, W., 2010. “ICC our only shield from crimes against humanity”. Daily Nation, June 18, 2010. Last accessed June 19, 2010, at: http://www.nation.co.ke/oped/Opinion/ICC%20our%20only%20shield%20from%20crimes%20against%20humanity/-/440808/941116/-/es55s6z/-/index.html Accessed 18 June 2010.

Fred Nelson ([email protected]) is Executive Director of Maliasili Initiatives and has worked on natural resource policy and governance, community-based conservation, and enterprise development in Tanzania since 1998. He has researched conservation policy throughout eastern and southern Africa and is a member of CEESP (TILCEPA/TGER) and the IUCN Sustainable Use Specialist Group.

Supporting rural communities, organizations, and social movements must be the fundamental strategy for promoting rights-based

conservation and reshaping the form and function of

citizenship.