Naguran, Property Rights And Protected Areas - Ndumo

Property Rights and Protected Areas: The case of Ndumo Game Reserve

Ray Naguran University of Durban-Westville, South Africa Paper presented at the research seminar on Property Rights and Environmental Degradation, organised by the Beijer International Institute of Ecological Economics 27 - 30 May 2002, Durban, South Africa

Introduction

The essence of South Africa's conservation policies under apartheid was to give special attention to formal conservation areas, even at the expense of local people. From the earliest days local communities have been evicted from areas designated as reserves.

Unlike the

reserves of East Africa where people and their livestock remain an integral part of these regimes, in South Africa local people were not permitted to continue their customary way of life in the reserves. National Parks in South Africa were managed according to the American model of nature conservation, the so called Yellowstone Model, where settlement in parks was prohibited and the use of the park's resources either for subsistence or commercial use was banned (Stevens 1997).

Forced removals were undertaken in many areas including the famous Kruger National Park and the Ndumo Game Reserve - the area of focus for this study. The establishment of parks and reserves meant that many black people were denied opportunities to gain access to grazing, water, hunting, medicinal plants, firewood, and thatching grass. The conflicts that arose between the authorities and the indigenous 'poachers' continue to influence conservation policy in South Africa. Indeed, it has become a contentious political issue in which the well being of wildlife is seen by some as more important than the well-being of people. This paper analyses one such conflict - the land claim of the Mbangweni community to a portion of the Ndumo Game Reserve. This conflict must, however, be viewed in the broader context of the land reform process that is currently under way in South Africa, and the Ndumo land claim raises

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some serious questions regarding the design and development of common property institutions for the management of conservation areas in South Africa.

This paper begins with a theoretical discussion of property rights regimes, especially common property rights, and analyses why clearly defined property rights are important for sustainable development . The details of the Ndumo land claim, and the controversy that this claim has sparked are then discussed. In the final section, a case for co-management of the reserve is made, with recommendations being made for the design and development of co-management institutions that may be applicable to other protected areas as well.

Property Rights

Property rights may be defined as a bundle of entitlements defining the owner’s rights, privileges, and limitations for the use of natural resources (Bromely 1991). Property rights specify the different types of claims one has to a resource by specifying what one can and cannot do and what one is entitled to. They determine long-term incentives to invest in, sustain, and improve resources.

Four types of property rights are usually identified in the literature.

These are: State property, where the state has the right to determine use/access rules and individuals have a duty to observe these rules. Private property, where individuals have the right to undertake socially acceptable uses and have a duty to refrain from socially unacceptable behaviour. Others, (called non users) have a duty to refrain from preventing socially acceptable uses and have a right to expect socially acceptable ones will occur. Common property, where the management group (the owner) has the right to exclude non members, and non members have a duty to abide by exclusion. Individual members of the management group have both rights and duties with respect to using the common resource. Nonproperty, where there are no defined 'owners' and so the benefit stream is available to anyone. The asset is regarded as an 'open access resource.' (Bromley 1989)

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The differences between all these regimes can be clearly understood only in terms of the basic features of all property regimes: property is by definition a structure of rights and corresponding duties, and these imply a set of legal entitlements enforced by a system of authority

Hardin's famous parable of 'the tragedy of the commons' (1968) has been influential in analysing communal resource use in Africa. Hardin argues that the private benefit of grazing an additional animal on a common range exceeds the private cost because the costs of maintaining the rangeland are shifted onto the group as a whole. This provides an overriding incentive to overexploit and thus degrade the resource. The model has been increasingly challenged, however, particularly as a guide to policy making. Ciriacy-Wantrup & Bishop (1975:715) first drew attention to Hardin's failure to distinguish between open access and common property: 'Common property is not "everybody's property". The concept implies that the potential resource users who are not members of a group of co-equal owners are excluded. The concept of "property" has no meaning at all without this feature of exclusion of all who are not either owners themselves or have some arrangement with owners to use the resource in question.

Under common property the use rights of individuals can be delimited and regulated to prevent overexploitation of the resource. Runge (1986:631) provides a critique of the 'tragedy of the commons' perspective using game theory, in which he demonstrates that once the decision to limit grazing in the interest of the common good is made by the group, the critical variable is uncertainty about the level of collective co-operation. Overgrazing is then not the inevitable result of common property institutions but arises because of the 'inability of interdependent individuals to co-ordinate and enforce actions in situations of strategic interdependence'.

In their analysis of the formation of property rights, Ostrom and Schlager(1996) distinguish between rights at an 'operational' level and rights at the 'collective-choice' level. The difference between the two is that the former involves merely exercising a right, while the latter involves participation in the definition of future rights.

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Operation level rights include 'access' and

'withdrawal' rights, while collective-choice rights relate to management, exclusion and alienation rights. These rights are defined as follows:

Access:

the right to enter an area and enjoy only non-consumptive benefits (e.g., photography, hiking etc.). Those who possess these rights are referred to as 'authorised entrants.'

Withdrawal: the right to harvest resource units (e.g., fish, gather wood etc.). Those having both access and withdrawal rights are labelled as 'authorised user.' Authorised users, however, do not have the authority to determine their own harvesting rules or to exclude others from gaining access to the resource.

Management: those holding these rights have the authority to determine how, when and where consumptive use of resources may take place, and whether and how the structure of a resource may be transformed. Persons or groups owning these rights are known as 'claimants.'

Exclusion:

the right to determine who will have access rights, and how that right may be transferred. Those who possess these rights are called 'proprietors.'

Alienation:

the right to sell or lease either or both of the above, collective-choice rights. Owners are persons or groups that possess this right.

Therefore, for properly defined property rights to exist, resource users must possess both operational level rights, as well as collective-choice for the management of their common property resources. In the next section, the classification of rights as outlined by Ostrom and Schlager (1996) is used to analyse the management of a protected area, the Ndumo Game Reserve, in South Africa.

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A Case Study of the Ndumo Game Reserve

The Ndumo Game Reserve is situated in the area known as Maputaland on the east coast of South Africa, bordering Mozambique. The Maputaland region is home to many of South Africa's most renowned protected areas including Tembe Elephant Park and the Kosi Bay National Park. These areas form an ecological link with the Greater St Lucia Wetland Park - a World Hertitage Site, which lies to the south of Maputaland. Although small in area, Ndumo Game Reserve is considered to be significantly rich in the diversity of species in comparison to other protected areas. In view of its unique wetlands and biological diversity, this protected area has been inscribed on the list of Wetlands of International Importance in terms of the Ramsar Convention. Also present in the Ndumo Game Reserve are populations of animal species of high conservation importance and priority, including white and black rhinoceros, hippopotamus, crocodile and a variety of antelope species. Given its remarkable wildlife the reserve is an extremely popular ecotourism destination in South Africa.

Ndumo was proclaimed

a game reserve in 1924 with the primary goal being the strict

protection of its biodiversity. Based on what has become known as the "Yellowstone Model", (Stevens 1997) settlement in the reserve was prohibited, and consumptive use of the natural resources, either for subsistence or commercial use was banned. The Mbangweni community, who were the original inhabitants of the land prior to the establishment of the reserve, were evicted from the area and lost all rights to their ancestral land. Similarly, millions of other of black people were forced to leave their ancestral lands and settle in what became overcrowded and environmentally degraded reserves.

With the advent of democracy in 1994, the first priority of the new South African government was to develop and implement a new land policy that was aimed at addressing, amongst others, the injustices of racially based land dispossession of the past. The thrust of the government's land policy is the land reform programme based on three pillars namely, land restitution, land redistribution and land tenure.

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Restitution, for those who lost their land as a result of forced removals and other racially discriminatory laws; cases of forced removals are being dealt with by a Land Claims Court and Commission established under the Restitution of Land Rights Act, 1994, which deals with individual or group land claims which originate since 1913. All claims are against the State which is obliged to compensate current landholders.

Redistribution of productive land to those who were previously disadvantaged, especially poorer people, and women in particular; in the short-term, redistribution of land has taken place in pilot districts in all nine provinces, mainly through the Land Reform Pilot Programme, providing finance and credit for land acquisition and basic needs, as well as support to people to plan, negotiate and implement settlement projects.

Tenure reform which aims to extend security of tenure to all South Africans while recognising and supporting diverse forms of tenure. Tenure reform is being addressed through a review of present land policy, administration and legislation to improve the security of tenants and to accommodate more diverse forms of land tenure, including types of communal tenure.

Legislation requires that all land that has been redistributed or restored to beneficiaries must be registered in one or other form of ownership (Department of Land Affairs, 1997:62). In cases where the rights to land belong to a group, the group may through a democratic process, choose the form of land holding that best suits their needs. One vehicle for group ownership is the Communal Property Associations Act, 28 of 1996 which allows for the establishment of a new legal entity "through which members of disadvantaged and poor communities may collectively acquire, hold and manage property in terms of a written constitution" (Department of Land Affairs, 1997:59). The intention is that the group should develop their own management rules which are appropriate to their specific circumstances.

As part of the land restitution process the Mbangweni community lodged a claim to 1000 hectares of land within the boundaries of Ndumo Game Reserve. The community argued that it had a right to restitution of rights in this land because they were dispossessed of unregistered rights of beneficial occupation as contemplated in the definition of 'right in land' in Section 1 of

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the Restitution of Land Rights Act No. 22 of 1994. Furthermore, they lost these rights as a result of racially discriminatory laws and practices as contemplated in the Act.

Following almost a decade-long malaise characterised by endless negotiations, delays, suspicion and even violence, the government agreed to hand a part of the Ndumo Game Reserve back to the community. The Mbangweni community, who were now the legal owners of that portion of the reserve, demanded the right to grow their crops in the fertile soil along the banks of the Pongola river, as well as fishing rights to the river. The government, represented by the Land Claims Commissioner, was initially sympathetic to these demands and considered the possibility of de-proclaiming a portion of the reserve to allow for agricultural activity. The commissioner argued that this step was necessary in order to avoid any 'bitterness-based' vandalism of the Ndumo fence and to satisfy the community's growing need for land and food (Sunday Tribune 8 October 2000: 6)

This caused a public outcry and concerns that resources in the area will be depleted. Conservation bodies, both locally and internationally, were opposed to any human settlement of Ndumo Game Reserve, and any excision or deproclamation of any part of the Reserve, which they contend would lead to serious degradation of this highly sensitive wetland reserve. A headline in a local newspaper that read, " From wetland to cabbage patch" succinctly summed up the conservationists' concerns ( Sunday Tribune, 8 October 2000:6).

The government was caught in an unenviable dilemma. It was accountable on the one hand to the impoverished people living around the Ndumo Game Reserve who have pressing short-term needs for agricultural land. On the other hand it had a responsibility to the broader South African community and indeed the world to prevent the degradation of this wetland of international significance.

Finally after protracted negotiations the government managed to convince the community that the best form of land-use for the reserve is conservation of biodiversity and ecotourism. An agreement was reached with the community that was based on both the consideration for the upliftment needs of both the Mbangweni community, as well as protecting the integrity of

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Ndumo Game Reserve as a conservation area. The central theme of the agreement is that the Mbangweni community, who live in the corridor between the Ndumo and Tembe reserves will be granted title to their land claim of the eastern 1 262 ha section of the Ndumo Game Reserve, without actual physical occupation either now or at any time in the future. The state put for forward the following reasons for this:

the land is part of a protected area as proclaimed in terms of the KwaZulu-Natal Nature Conservation Management Act. it is a wetland of international importance listed in terms of the Ramsar Convention it contains important biodiversity requiring protection for future generations

Restitution of the lost rights in land is made in the form of vesting ownership in the claimant community by way of registration of a title deed in the office of the Registrar of Deeds. A condition of the agreement is that the community shall not acquire the right to dispose of its title to the land by selling or donating it. The community will be allowed 'reasonable' access to the protected area for the purpose of harvesting natural resources and also reap the benefits of ecotourism.

As part of the agreement, the community has stated that they will not, as previously speculated, occupy the land inside the reserve, but leave it to be managed in the interests of conservation and the development of ecotourism ventures. This settlement has been hailed by the government as 'one of the most progressive and innovative breakthroughs in the delicate land claim process' and, for the time being, both the conservationist lobby and the community seem to have been appeased.

Analysis of the settlement agreement

The Ndumo land claim settlement, transformed the eastern part of the Ndumo Game Reserve from what was essentially a state property regime to a common property regime. This is a positive move and in line with land tenure reform policy in South Africa which aims at recognising the ecological, economic and social legitimacy of common property regimes.

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However, when measured against the conditions for well defined property rights in common property regimes (Ostrom and Schlager 1996) then the settlement falls short.

"The significance of a well-established property-rights system is the security that enforced property rights give to individuals and groups of individuals that their access, withdrawal, management, exclusion, and/or alienation will be recognised in the future by potential competitors" (Ostrom and Schlager 1996:137). The problem with the Ndumo settlement is that although the community is given title to the land on paper, the agreement in effect grants them only operational level rights, - namely, access and withdrawal - and restricts their collective-choice rights of management, exclusion and alienation. There are vague references in the agreement to joint-management of the protected area, but ultimate management responsibility is heavily weighted on the side of government ( represented by KZN Wildlife)). To quote from the agreement:

"The parties further record that the Conservation Services (KZN Wildlife) is appointed by the state as the management authority of Ndumo Game Reserve in terms of all relevant conservation legislation, and the claimant community recognise the Service's paramount legal right and duty to continue to perform this function, notwithstanding transfer of the title to the claimant community, in terms of the settlement of their land claim by the state" (KZN Wildlife 2001:3).

If we accept the widely held view that 'management' of natural resources implies elements of control and manipulation of the resource (Noronha 1997), then without these collective-choice rights the community, in effect, have become 'authorised users' rather than proprietors or owners according to the classification in Table 2.

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Table 2 Bundles of Rights Associated with Positions Owner

Proprietor

Claimant

Authorised User

Authorised entrant

Access

X

X

X

X

Withdrawal

X

X

X

X

Management

X

X

X

Exclusion

X

X

Alienation

X

Source: Ostrom and Schlager 1996:133

What the community has in fact done is forfeited its collective-choice rights for some benefit stream from future ecotourism development projects - the details of which are unclear in the agreement.

It won't be long before the community becomes impatient with the slow pace of

delivery (the benefits of ecotourism may take years to materialise), and start reverting to their original demands for occupation of their portion of the land in the Ndumo Game Reserve. Without greater participation of the community in the management of their reserve, the potential for further conflict exists. Direct state management of natural resources has rarely worked well, particularly in Africa. Customary institutions and rules may prove appropriate (Swift 1993). The case for co-management of the reserve becomes compelling.

Towards Co-management

The concept of co-management, as used in this paper, is defined as ' a situation in which two or more social actors negotiate, define and guarantee amongst themselves a fair sharing of the management functions, entitlements and responsibilities for a given territory, area or set of natural resources (Borrini-Feyerbrand 2000:3) It involves the participation of resource user groups and communities in the decision making process and in the planning and implementation of conservation and management programmes. Co-management requires that property rights be clearly defined because they determine the manner in which producers and

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X

consumers use the environmental resources in an area. For any co-management arrangement to be successful, the following processes are necessary (adapted from Borrini-Feyerbrand 2000).

1. Identification of the ecological and sustainable use services that the resources in the reserve provide. 2. Establishing who the users/beneficiaries of these ecological services are. 3. Determining the benefits and categories of rights that each user/beneficiary is entitled to. 4. Determining how the various categories of rights should managed i.e. how functions and responsibilities should be assigned to the various role players.

What is required in the case of the Ndumo Game Reserve, is to analyse the situation in terms of the processes listed above, and then define a co-management arrangement on the basis of this analysis. This is presented in the following section in the form of a model for the comanagement of the Ndumo Game Reserve in (Table 2). This model may be criticised on the grounds that it is too idealistic, but it should rather be seen as a general methodological tool which can be used for the design of co-management structures for the management common property institutions in other protected areas as well.

Co-Management Structure

The institutions that are created to facilitate co-operative management between government agencies and local resource users are extremely important in determining the success of comanagement . The role and functions of these organisations are also central factors in determining whether the involvement of local organisations in protected area management is truly co-operative or merely co-optative (Sneed 1997). In the case of Ndumo the following comanagement organisational structure, together with their associated functions, recommended.

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is

Figure 1 Co-Management Structure for the Ndumo Game Reserve Mbangweni Community

Common Property Association Defining community membership Rules for resource management based on local knowledge Defining sanctions and resolving conflicts at local level.

KZN Wildlife Biodiversity conservation Scientific Research Law enforcement

Co-management Board Joint Policy formulation for reserve management Building institutional capacity at local level Joint management of ecotourism operations Defining conflict resolution mechanisms

The main institutional actors are the Mbangweni community - represented by their Common Property Association, KZN Wildlife - a state agency responsible for nature conservation, and a proposed new Co-management Board made up of representatives from the Common Property Association and KZN Wildlife.

The Mbangweni Community who currently number approximately 700 people (114 homesteads), are presently the legal title holders of the eastern portion of the reserve. At the time of writing, they were in the process of constituting themselves as a landholding entity by establishing a Communal Property Association. This will give them the legal mandate to

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manage their portion of the Reserve in accordance with their own values and circumstances. The Communal Property Association is the ideal vehicle to represent the community's interest in any co-management arrangement.. It is a democratically elected body, its constitution and management rules are drawn up by the community members themselves, and it is a legal entity recognised in terms of the Communal Property Associations Act, 28 of 1996. The Act also provides for the imposition of sanctions against anyone who violates any of the rules as set out in the constitution. The functions of the CPA should include:

defining community membership, that is rules for entry and exit formulating rules for resource management based on local and indigenous knowledge defining sanctions and resolving conflicts at local level

KwaZulu-Natal Wildlife (KZN Wildlife) is a state organisation entrusted with managing all public reserves and protected areas in the province of KwaZulu-Natal. It is also responsible for ecotourism operations in the reserves under its control. KZN Wildlife has an international reputation for excellence in nature conservation. The roles and responsibilities of KZN Wildlife should include: the conservation of the parks biodiversity, for which its is world renowned the undertaking of scientific research which assists in the management of the reserve it has the legal capacity for law enforcement, especially in anti-poaching operations

It is proposed that a Co-management Board made up of representatives from the Common Property Association and KZN Wildlife be established with joint responsibility of managing the reserve. The Board will be responsible for management policy formulation, building institutional capacity at local level to enable local people to effectively participate in comanagement structures, establishing conflict resolution mechanisms, and the joint management of ecotourism operations.

Once the co-management organisations have been put in place, the next step is to identify the ecological services that the reserve offers, who the user/beneficiaries and who is responsible

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for the management of the various rights. I have offered a summary of these processes in the table below, which is followed by a discussion.

Table 3 A Co-management Matrix for Ndumo Game Reserve

Ecological Services

Users/ Beneficiaries

Categories of Rights Access

Withdrawal

Manage Exment clusion

Alienation

Management Responsibility CPA KZNCoWildlife Man

Direct Use

Fishing Thatching Grass Game Agriculture Tourism

X Individuals in Local Community Individuals in Local Community

X

Individuals in Local Community Individuals in Local Community Domestic and International visitors Individuals in Local Community

X

X

Medicinal Plants Indirect Use Value of All members of Biodiversity society : Rights held by State Non-use value Existence Global community Value

X

X

X

X

X

X

X

X

X

Bequest Value direct possession of this right indirect possession of this right through the CPA

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Ecological functions and sustainable uses offered by the Ndumo Game Reserve

Wetlands provide many important ecological services to humans. They prevent storm damage, support fisheries and absorb waste. They can also be used for recreation, and their resources can be exploited for fishing, agriculture, wildlife products and water supply (Barbier et al (1995). The ecological services provided by the Ndumo Game Reserve are outlined below.

Tourism is the reserve's primary economic activity and a large number of local and overseas tourists visit the Ndumo Game Reserve annually. The reserve caters for both day and overnight visitors. Tourist facilities include accommodation in small hutted camps, picnic sites, a network of nature trails and hides for game viewing. A community levy, included in the entrance free, is charged on all visitors to the reserve. The proceeds from this levy are used for community development projects in the adjacent areas.

The reserve with its extensive system of wetlands is also renowned for its prolific birdlife with over 421 recorded species and boasts the largest recorded bird list per hectare in South Africa. Many tropical species occur here at the southernmost limit of their range and the pans in the reserve attract a host of aquatic birds.

The maintenance of biodiversity, which includes all species, genetic variations of species and varieties of ecosystems and habitats, is one of the most important benefits of protecting natural areas (Dixon and Sherman (1991). The Ndumo Game Reserve was established for this specific purpose. The reserve's rich diversity results from its tropical location, diverse topography, terrestrial, riparian and wetland systems, which together have created the habitats suitable for the richness of both animal and plant species

The riverine or fringing forest found within the reserve plays an important role in the stabilisation of stream banks, the creation of protected breeding areas for fish, birds and other animals, and help in the attenuation of devastating floods.

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The Ndumo wetland system functions as a reservoir and nursery for fish on which the rest of the Pongola and Rio Maputa (in Mozambique) wetland system depends for restocking. An extensive human population associated with the Pongola/Rio Maputa floodplain is dependent on this fishery as a principal source of food and protein in their diet. That portion of the Pongola system within the Ndumo Game Reserve plays an important role in the production and supply of fish stocks into the Pongola floodplain system south of the Ndumo Game Reserve, and the Rio Maputa floodplain system to the north.

Present in the Ndumo Game Reserve are populations of animal species of high conservation importance and priority, including white and black rhinoceros, hippopotamus, crocodile and a variety of antelope species. Game viewing is the primary tourist activity in the reserve.

As a formal protected area, no consumptive use of the resources in the Ndumo Game Reserve was allowed. However when the population of certain species of animals exceeds the carrying capacity of the reserve, excess animals are either culled or captured and sold to other parks or private reserves. Park officials usually carry out the culling operation and the meat is processed at a plant in the reserve. Some of the meat and hides are given to the local community and the rest is sold to retail outlets in nearby towns.

The more fertile soils found on the floodplain areas, offer productive areas for agricultural activities. However due to the seasonality, regular inundation and resultant inaccessibility of the floodplain, these types of activities on the floodplain can not be regarded as sustainable in the long term. There have been significant problems associated with the small scale farming activities found further along the Pongola floodplain, as a result of the natural flooding of these sites. Additional factors that must be considered include the impact that problem animals such as bushpigs, hippo, crocodiles and other animal species will have on the farming activities in the area.

Grass for thatching and the manufacture of craft products is an important resource for neighbouring communities. The grass in the Maputaland area is highly valued, especially for

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producing baskets and mats. Besides grass, local communities also harvest certain plants and roots that have medicinal value.

Besides the uses discussed above, protected areas also possess what has been termed by economists as ""non-use value, " which include existence value and option value. Existence value is the non-consumptive and non-excludable benefit a user derives from knowing that a good or service exists. Option value is the benefit received by a person knowing that he/she has the option of using a resource in the future, even though that possibility may not occur (Dixon and Sherman 1991).

Rights and Entitlements

The users and beneficiaries of the resource, together with the rights that they are entitled to are identified in the second and third columns of Table 3. The beneficiaries include members of the Mbangweni Community, KZN Wildlife, local and international tourists, and the global community at large.

Since ecotourism in the reserve is a non-consumptive activity, local and international tourists possess only access rights which are granted upon payment of the required entrance fee

Individual members of the community should be granted access and withdrawal rights for the sustainable harvesting of thatching grass, medicinal plants and fish. Management of these rights should be vested with the CPA which would determine appropriate quotas in consultation with KZN Wildlife. The CPA will also perform a monitoring role and impose appropriate sanctions for transgressors. As far as game is concerned, KZN Wildlife should allow the local community hunting rights to hunt excess animals that are destined for culling. These rights should be transferable, allowing the community the option of selling these rights to private hunters, thereby gaining an additional source of income.

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The conservation of biodiversity, and the preservation of the reserve for its existence and option value should be the responsibility of KZN Wildlife, in consultation with the CoManagement Board.

Conclusion

This paper has argued that questions of common property management are likely to be important within the land reform programme in South Africa. The case of the Ndumo Game Reserve indicates that conflict over the various dimensions of common property management are inevitable if property rights are not clearly defined. Some of the recommendations outlined in this paper can assist in addressing these problems by emphasising institutional development as a major priority in the co-management of natural resources.

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