Who Owns Protected Areas Time to Tackle the Last Bastion of Mass Dispossession
Liz Alden Wily
Independent land & natural resources specialist
lizaldenwily@gmail.com
This presentation examines ownership of Terrestrial Protected Areas in 2015 with a
focus on Africa. It argues that the PA sector has become a residual and resistant bastion
of state ownership despite mounting evidence that this remains a primary factor in
continuing losses and degradation in their regard and barely remedied by half-hearted
co-management regimes with original customary owners. Tenure reformism since 1990
has moved unsteadily but inevitably towards devolutionary tenure and governance
worldwide but almost everywhere stops at the gate of Protected Areas. This is proving
particularly self-defeating where traditional forest dweller or rangeland pastoralist
populations are more than able and consciously prepared to secure resources in return
for recognition of tenure and jurisdiction. The paper explores specific cases under
dispute at this time in Kenya, a matter that the African Court on Human and Peoples’
Rights has also seen fit to seize.
Summary
In November 2014 the new African Court on Human and Peoples’ Rights heard a case
brought by the African Commission on Human and Peoples’ Rights against the
Government of Kenya in respect of its treatment of the Mau Ogiek, including repeated
and often violence evictions. The 35,000 Mau Ogiek are one of five forest peoples in
Kenya who share the fate of having their ancestral homelands declared as state-owned
and managed national forest reserves. Although originally for commercial logging
purposes, retention of these land thefts is justified today as essential for conservation,
grossly poor state performance on this score notwithstanding.
The case in the African Court focused upon the rights of Mau Ogiek the ruling
(anticipated in March 2015) and will affect the rights of all 105,000 traditional forest
dwellers in Kenya. As the Commission reminded the Court, its ruling will also have
implications for communities around the continent who define themselves as
marginalized minorities or indigenous peoples. These groups usually have huntergatherer or pastoralist origins. Their total number is small at less than 30 million people
in a continent of one billion inhabitants. However the lands for which these
marginalized minorities seek lawful ownership are both immense in size and partly or
fully absorbed today by state-owned forest and wildlife parks and reserves. In this
respect the ruling will also impact upon the status of customary land rights in general,
affecting upwards of 750 million rural Africans.
In responding to the complaints of the ACHPR, the respondent Government of Kenya did
not directly deny that the Mau Ogiek are marginalized group, or indeed that they may be
traditional owners of the Mau Forests. However, it argued that, first, as Ogiek no longer
depend entirely upon the forests for livelihood, they have no need to remain in that
‘hostile’ environment; second, that leaving the forest is critical for their ‘development’ as
citizens following modern ways of life known to the majority; and third, and most
strongly argued, that, in any event, the needs of conservation trump recognition of land
rights when it comes to precious forests. Much emphasis was (correctly) laid upon the
function of the concerned forests as water towers, and which functions are in jeopardy
due to rampant degradation and deforestation (notably under State management since
the 1930s). The presumption underlying the Government of Kenya arguments is a
presumption still dominant through much of the world; that the State is the only safe
pair of hands for conservation nationally important conservation requires state
ownership and management. Eviction and resettlement of traditional forest dwellers is
therefore a sad but necessary strategy.
This last argument brings to the fore the issue this paper addresses: the presumption
that forests of national importance must therefore be owned – and managed – by the
state. To examine this, the origins of protected areas are briefly revisited with an
emphasis upon early Russian developments, this time from a perspective of how
community-derived land rights have been interfered with and the resulting effects.
Trends over the last quarter century enabling community owned and conserved areas
are also critiqued, testing claims around the decline in state owned and managed forests
in favour of local community rights. Third, progress is critiqued in the provision of
modern tenure paradigms that allow communities to register communal assets such as
forests as their collective property, a critical foundation in secure community ownerconservator management.
The main result of this exploration may be summarized here. It is found that while
progress is significant on above fronts and despite stops and starts unlikely to
disappear, that there has also been widespread polarization in where and how citizens
and the state may respectively own and govern protected areas. Ironically, despite the
steady rise in their occurrence, community conserved forests and rangelands remain
even more trenchantly a poor second to state forest tenure than early in the post-Rio
years.
This can be seen in the failure to thoroughly overhaul IUCN conservation categories in
respect of who may own and govern these; in a hardening divide between off-reserve
and on-reserve conservation, allowing for community owned and conserved forests in
mainly only presently unreserved lands; and in a hardening of constitutional and land
law stipulations as to state ownership of valuable forest and other resources.
Overall, it is concluded that inroads into the “little forests for little people” syndrome
that marked the early community forest initiatives has not been eroded as far as popular
advocacy (including by this author) suggests. Even where (mainly indigenous peoples
such as in India or Latin America) see important forest areas restituted to their care,
governments tend to retain a tight hold upon forests within those domains, which it
claims must be subject to its own tenure and governance for conservation reasons.
It is also observed that while a handful of states (including in Africa) have of necessity
(e.g. through constitutionally-required land restitution claims), fierce local resistance, or
sometimes simple common sense, enabled the odd valuable existing Forest Reserve to
become community property, this halts well short of structural separation of forest
ownership from protected area status as general principle.
Why such structural separation of tenure and conservation status is desirable is
explored and the fate of one or two cases where this has been adopted (e.g. Tanzania,
South Africa) scrutinized for delivery. Kenyan Forest Reserves that are immediately
subject to litigation in the African Court are examined as example of structural necessity
to enable reserves of highest national priority to be owned and managed by historical
owners.
The long and short of the arguments made in their regard are neither radical nor new,
but evidently require reiteration and pursuit in the present climate of conservation
revisionism which allows for community owned forests – but only in respect of forests
which the state itself has not already captured.
The facts are that conservation does not only need people, it needs those citizens in
particular who have the most rooted and lasting incentive to rehabilitate and maintain
intact forest, and for reasons which include, but go beyond, immediate livelihood
interests. Vested interest comes in more diverse and powerful forms including
environmental, socio-organizational, cultural and spiritual dependencies, and usually
the whole is underwritten with a sense of territory and wrongful dispossession when
precious resources are taken from them.
This sense of possession applies very widely among all manner of forest adjacent
communities but is obviously less easily (or wisely) surrendered where the community
constitutes an ancient forest people whose society has been so profoundly shaped by
the forest environment. It is questionable that such communities should surrender their
rights and of which they are increasingly aware, in service of outdated conceptions of
how conservation works. Nor should such surrender in any event be to national
administrations with a clear track record of failing repeatedly at the first conservation
hurdle when this inhibited state or private-state aligned commercial extractive interest,
or claimed political necessity, disposing of forest conservation as necessary. Democratic
decentralization has been bandied about as an objective since Rio in 1992 with evasive
delivery, and yet deforestation and degradation within the State Reserve sector
continues virtually unabated in a host of important forested states. It is more important
than ever that not only the “little forests” but also forests of national importance are
speedily made available to local citizen tenure and management. Obviously this can
proceed under clear conditions of conservation accountability and state oversight. What
comes out clearly from this analysis of practical cases is that affected forest dweller
populations are more than ready to make compromises in locales of habitation, exercise
of forest use, and obligations to restore degraded areas, in order to secure founding
tenure. Governments, communities and conservation can all gain.
While protected areas still comprise a modest proportion of traditional common
properties around the customary land world affecting several billion rural poor, failure
to challenge this last bastion of dispossession cannot bode well for either civil peace or
effective conservation, and which shows more not fewer signs of needing citizen
empowerment than ever before. To tackle this, change needs to begin at the top, with
the most precious, not the least precious of natural forests rightfully due to mass
restitution to citizens.