In the name of conservation, human and customary tenure rights are violated

In South Africa, and other regions of the Global South, biodiversity conservation has long been intimately intertwined with colonialism and racial segregation. Indigenous communities have been stripped of their ancestral land and their access to natural resources in the name of creating fortresses of nature. The rationale behind such displacement is that human beings constitute the foremost threat to conservation. The end of apartheid did not entirely halt these conservation practices either. Rather, over the past three decades, an imperative discourse has taken hold of global sustainability and conservation, which then leads to new forms of neocolonialism, such as green grabbing and the commodification of nature. Acts of physical violence have even been committed in the name of conservation. Members of fishing communities in South Africa claim that they have been attacked for seeking access to their livelihoods. Their food sovereignty is at risk, as well as their culture and customary systems.

Fisher communities suffer violence inside World Heritage Site

The night of 16 September 2020, Celimpilo Mdluli and two of his friends from the Nibela community were fishing at Lake St Lucia, part of the iSimangaliso Wetland Park (IWP) in South Africa, when a group of wildlife rangers allegedly attacked them and shot Celimpilo Mdluli to death. The other two fishermen managed to escape, one of them sustaining a gunshot in his thigh. Fourteen months later, on 12 November 2021, with the investigation of Celimpilo’s death still pending and his family still grieving, his brother, Thulani Mdluli, was allegedly killed by rangers when he was setting up a net on the shore of the same lake. When members of the Nibela community gathered at the scene to find out what had happened, they were unable to locate his body. Celimpilo’s brother remains missing to date.

The Nibela community is an Indigenous fishing community descendant of the Thonga people, a Bantu ethnic group from Maputaland, the territory along the border between South Africa and Mozambique. They settled on the Nibela peninsula adjacent to Lake St. Lucia before the area was colonized. For centuries, their livelihood has centered around fishing: using traditional nets, fish traps, and boats made from natural materials they find around the lake such as twine. It was not until the 1990s that they started using new techniques such as nylon gillnetting, which was encouraged by conservation authorities. Throughout their history, the community has developed their culture and customary laws in relation to the lake and their ancestral land based on a sustainable community management system of access and use of natural resources such as trees, reeds, and water. 

But with the advent of colonialism, everything changed. South African authorities gradually converted the coastal area between Lake St Lucia and Kosi Bay into a protected area by forcibly removing traditional communities from their land. The initial reserve, which was much smaller than its present size, was established in 1895 after a drastic drop in the wild elephant population due to professional hunting. It became the first conservation area in South Africa. During apartheid, sections of what is today the iSimangaliso Wetland Park, such as Lake St. Lucia, Kosi Bay, and False Bay, were declared protected areas, each with its own management policy.

In 1979, Maputaland (on the northern end of the park) and St. Lucia (in the south) were converted into Marine Protected Areas, thus fishing and harvesting became strictly controlled or, in some areas, prohibited entirely. In 1986, St. Lucia Lake was proclaimed a Ramsar site to protect its wetlands; and in 1990, a larger area became the Greater St. Lucia Park. In 1999, after being successfully saved from dune mining, the park was recognized as a World Heritage Site by UNESCO. Thus, the 13 separate but contiguous conservation areas were combined under a unified management system, and human activities were restricted to a third of the total area and became strictly controlled and monitored. In 2007 it was renamed to iSimangaliso Wetland Park, and in 2019 the park was further expanded. It now comprises 9% of the entire South African coastline and is the country’s second-largest conservation area. 

With the advent of colonialism, white authorities gradually converted parts of the South African coast into protected areas by forcibly removing traditional communities from their land.

Source: iSimangaliso Wetland Park

These conservation efforts have aimed to convert the area into a nature fortress: this has involved severely restricting the Indigenous communities’ access to natural resources. Thus, the rights to food and land of the people who have lived there for centuries have been and continue to be violated. Traditional fisherfolk are treated as poachers and experience constant harassment for fishing and using marine resources. Despite customary laws and customary fishing rights being protected and recognized under South African law, these fisherfolk continue to be attacked, harassed, and even murdered for fishing as a means of survival. Since 2002, the Ezemvelo KwaZulu Natal Wildlife, the provincial conservation authority, has been working with traditional fishing communities to establish joint management systems. However, many communities are unaware of any co-management and feel left out of the central decisions that directly affect their livelihoods and limit their access to natural resources. For instance, the Nibela community was never consulted or informed of the 2016 decision to demarcate a large part of the lake as a non-fishing zone and prohibit gillnetting, even though their fishing rights are recognized under South African law.

The death of Celimpilo and his brother was caused, in part, by a lack of clarity and consistency across the policies and permits provided by the different conservation authorities that control the park. These include the Department of Environment, Forestry, and Fisheries (DEFF); the iSimangaliso Wetland Park Authority (IWPA); and the provincial organization Ezemvelo KZN Wildlife. With the goal of implementing the Small-Scale Fisheries (SFF) Regulations which recognize the rights of small-scale fisher collectives, in 2017 the DFFE made a call to provide small-scale fishing permits. 108 out of 140 members of the Nibela Community applied and although the process took more time than expected, the fishers finally received their permits on 24 August 2020. This process coincided with the COVID-19 pandemic. Lockdown regulations declared small-scale fishing an essential activity, thus small-scale fishers were allowed to fish.

Therefore, when Celimpilo and his friends were attacked for fishing on 16 September 2020, they had firmly believed they had the right to fish. Because fishing is their primary form of subsistence, prohibiting these communities from fishing forces them into an even more precarious situation of food insecurity and lack of opportunities, all of which has been further exacerbated by the COVID-19 pandemic. So far, no one has been prosecuted or sanctioned for the death of Celimpilo and the body of Celimpilo’s brother has yet to be found.

Despite customary laws and customary fishing rights being protected and recognized under South African law, fisher communities claim that they continue to be attacked, harassed, and even murdered for fishing as a means of survival

Manifestation of the Nibela fishing community. / Masifundise

Colonialism, apartheid, and the global conservation fortress model

The history of conservation in South Africa dates back to the 20^th century and apartheid (1948-1994), when many of the protected areas in the country were demarcated, placed under state control, fenced, and policed. The rationale behind their establishment was that the people constituted the foremost threat to conservation. Thus, Indigenous communities had to be removed from their ancestral land and were forbidden access to natural resources, while their customary rights were completely ignored. Protected areas were often located in segregated homelands, where communities were poor and lacked political participation. This often resulted in loss of ownership and use of land; and the gradual loss of customary knowledges and practices. 

In this manner, conservation became part of colonialists’ efforts to grab land, impose segregation policies, and limit the access of the Black and indigenous population to natural resources, thus forcing them to become a cheap labor force for the white-owned capitalist mines and industry. The Land Act of 1913 forbade the “native” or indigenous population from buying or renting land across 93% of the South African territory. With the end of apartheid, the new Constitution of 1996 recognized the right of any person or community who was dispossessed after 19 June 1913 to reclaim their property or obtain equitable redress. Within the IWP enclosure, there have been 14 land claims, 9 of which have been settled and 5 remain in process. However, conservation imperatives could be used to block land reform. 

The end of apartheid coincided with a boom in the international conservation movement. South Africa joined this movement in 1992 by signing the Convention of Biodiversity. When IWP was declared a World Heritage Site, the new international rules of biodiversity governance were imposed. The imperative discourse on global sustainability and conservation is based on limiting the access of traditional communities or communities with customary tenure systems to natural resources. It maintains a North-South power imbalance by imposing the worldview that humans and nature are separated entities, instead of interconnected members of the same ecosystem. On the ground, this translates into heavy-handed penalties for Indigenous communities and other communities with customary tenure systems if their social and economic activities are considered a danger to biodiversity and conservation.

Meanwhile, the IWP development plan was crafted in a free-market context and as part of a national push to boost economic development by embracing neoliberalism. Eco-tourism was viewed as an alternative to the extraction of natural resources, while continuing to use these resources for socio-economic development through job creation and rural economic growth. With this shift, land in protected areas has become a biodiversity conservation product with a high market value, instead of a social right. This strategy of nature commodification is currently spreading across the world and fosters market-based initiatives and false solutions to the climate crisis while encouraging ‘green grabbing’: the appropriation of land and resources for the sake of  protecting “the environment”.  Biodiversity conservation has become a new form of neocolonialism that continues to benefit the same old players. 

In the context of the IWP, this phenomenon translates into an egregious paradox. While fishing communities are prohibited from using a vessel to fish on the lake as their means of subsistence, owners of luxury ecotourism lodges can take tourists on boat rides on the very same lake. Moreover, tourist lodges limit the access of fishing communities to the sea. Meanwhile, these communities remain some of the most impoverished people in South Africa. 

The imperative discourse on global sustainability and conservation is based on limiting the access of traditional communities to natural resources

Nibela community meeting. / Masifundise

Tenure Guidelines can safeguard customary tenure rights 

The Tenure Guidelines provide a framework for the legal recognition of the tenure rights of Indigenous peoples and other communities with customary tenure systems, such as the Nibela community and other communities that inhabit the iSimangaliso Wetland Park. The guidelines stress that in the case of state-owned or controlled land, fisheries, and forests, customary tenure systems should be recognized, respected, and protected; and states should acknowledge that these spaces have social, cultural, spiritual, economic, environmental, and political value for these communities (Article 7, 8 & 9). 

The TG also strongly urge states to include Indigenous peoples and other communities in consultation, participation, and decision-making processes if their customary tenure rights are affected (principle 6 and 9.9). At the same time, they force states to provide access to justice when these rights are violated (principle 4); and promote an equitable distribution of benefits that may be derived from state-owned land, fisheries, and forests (Article 8.6). In the case of past evictions, the guidelines also offer a framework for successful land claims and redistributive reforms (Article 14 & 15).

As we have seen with the case of the Nibela community, although customary tenure systems are recognized under South African law, their rights are constantly violated. The South African state does not guarantee customary rights nor a fair judicial process for violations of human rights in the name of conservation. The impacted communities are left out of consultation, participation, and decision-making processes, even in the case of established co-management systems for natural resources.

Moreover, conservation policies are inconsistent across different park authorities and the processes for obtaining fishing permits are unclear and lack transparency and accessibility. Although the Protected Area Act stipulates that communities should benefit from development activities, such as ecotourism, and shared partnerships have been established, the communities are not even aware of these partnerships. Clearly, there is a harmful lack of transparency and access to information. 

A law to protect customary tenure rights exists, but it is not implemented successfully. Conservation authorities should be trained in a human-rights based approach through the principles of the Tenure Guidelines; and traditional communities should be able to meaningfully participate in crafting environmental and resource management policies that affect their livelihoods. These changes would help avoid conflict, protect the environment, and promote a more sustainable use of natural resources while respecting the fundamental rights of fishing communities.

Traditional communities should be able to meaningfully participate in crafting environmental and resource management policies that affect their livelihoods

This article has been possible thanks to the information and support provided by Masifundise.

Other sources used for the article:

• Hansen, Melissa (2014) Struggles over conservation space Social justice in the iSimangaliso Wetland Park, South Africa. Doctoral Dissertation, Lund University
• Sunde, Jackie & Isaacs, Moenieba. (2008). Marine Conservation and Coastal Communities: Who Carries the Costs? A Study of Marine Protected Areas and Their Impact on Traditional Small-Scale Fishing Communities in South Africa.
• Sunde, Jackie (2013). Marine Protected Areas and Small-scale Fisheries in South Africa: Promoting Governance, Participation, Equity and Benefit Sharing, International Collective in Support of Fishworkers
• Letter from Hogan Lovells International to the IUCN and World Heritage Site about human rights violations against the Nibela Community in the iSimangaliso Wetland Park (IWP), a World Heritage Site in South Africa.