From land rights to environmental entitlements: Community discontent in the ‘successful’ Dwesa-Cwebe land claim in South Africa

Abstract

This paper discusses the inability of successful land claimants to enjoy livelihood benefits from their newly acquired land rights. Based on long-term field observation, interviews and analysis of secondary material, the paper uses a case study of the Dwesa-Cwebe Nature Reserve in the Eastern Cape Province of South Africa to explore why it is that an agreement, as part of the land claim settlement, to allow local villagers regulated access to natural resources is not being implemented. The paper draws from the environmental entitlements framework to argue that full land rights that could allow livelihood benefits to be enjoyed are restricted by ineffective and conflicting institutional arrangements, such as the Land Trust, the Communal Property Association and traditional authorities. The paper calls for the empowerment of institutions to deliberately benefit local livelihoods.

Keywords:

• land claim
• environmental entitlements
• livelihoods
• Dwesa-Cwebe
• South Africa

1. Introduction

South Africa has often received praise for its relative success in transitioning from apartheid to democracy. In addition to avoiding a full-scale civil war, the country has formulated policies, and passed legislation, that seek to redress past racial imbalances. Given that land dispossession was central to colonialism and apartheid, the land reform programme has become one of the central avenues through which post-apartheid policies and legislation can be put into practice, to improve the lives of previously disenfranchised black people, many of whom are living in poverty. The rights-based land reform programme seeks to deal with land-related injustices and improve livelihoods, through land redistribution, land tenure reform and land restitution (Cousins, 1997). However, throughout the last 15 years of the implementation of the land reform programme, researchers have either highlighted the difficulty of converting land rights into reality (Cousins, 1997; Kepe, 2004; Ntsebeza, 2007) or have forthrightly concluded that these rights have not resulted in a better quality of life for millions of the formerly marginalised population in the country (Parker, 2004). While the land reform programme in general has come under criticism for not meeting its original targets of redistributing about 30 per cent of agricultural land within the first 5 years of the programme (Hall, 2004), others have pointed to ambiguous land rights or unenforceable rights to land gained through the land claims process as the main problem (Magome & Murombedzi, 2003; Kepe, 2004). Despite all these criticisms, and recent studies such as Hall (2009), there is still a need for more studies that examine the failure of post-settlement land rights to improve land-based local livelihoods.

Using the well-known case of the ‘successful’ Dwesa-Cwebe Nature Reserve land claim in the Eastern Cape Province, which was one of the earliest land claim cases affecting protected areas, this paper draws from the environmental entitlements framework (Leach et al., 1999) to explore the issue of rights to resources, as compared with the actual livelihood benefits received by members of the local community following the signing of the community forest agreement as part of the land claim settlement in 2001.

The paper is based on long-term fieldwork, lasting between 1992 and 2008, as well as on analysis of secondary material, including official government documents. Two of the authors have closely observed the unfolding of the land claim process in Dwesa-Cwebe as part of their duties as employees of the Transkei Land Services Organisation (TRALSO), while the other two have spent much shorter research visits between 2000 and 2007. TRALSO, a land rights non-governmental organisation, helped the local communities to organise themselves and eventually lodge the land claim in 1996. Following the request to TRALSO by the villagers to assist with their fight for land rights and access to forest, grazing and marine resources within the Reserve in 1992, observations that constitute fieldwork for this paper began in earnest through monitoring the land claim settlement ceremony on 17 July 2001. Between 2002 and 2004 TRALSO observed joint management meetings held by villagers and other stakeholders, and in 2006 it facilitated a week-long field-based learning workshop, where researchers and other stakeholders explored various aspects of the land claim and the progress of the post-settlement support for the claim's beneficiaries. Another informal visit was undertaken to monitor the success of the claim. In all these cases, observations were made and semi-structured interviews were conducted with villagers, focusing on various aspects of their livelihoods or political activities in the area.

Leach et al. (1999), drawing on an entitlement analysis framework first developed by Amartya Sen (1981), attempt to explain why it is that rights that individual people or groups hold are not sufficient to yield livelihood benefits from natural resources. According to their framework, which they named ‘environmental entitlements’, the rights to resources, or resources that people may own (such as land), are endowments that may or may not eventually translate into tangible benefits for the people who own them. They argue that a range of formal and informal institutions mediate the conversion of these endowments into environmental entitlements, which can be understood as legitimate effective command over alternative commodity bundles or sets of utilities. Leach et al. (1999), later supported by others such as Ribot & Peluso (2003), thus encourage a view of rights not as the ultimate goal but rather as one of many steps to obtaining a benefit. More specifically, the environmental entitlements framework points to the importance of the strength or weakness of a range of institutions (such as legislation, organisations, local rules and ethics) for either enhancing or restricting people's benefit from a resource. It is in this light that the case of the ‘successful’ Dwesa-Cwebe land claim is examined.

The paper has two main sections: first, a background description of the Dwesa-Cwebe area, including local livelihoods and the history of the land claim; and, second, a discussion of the disjuncture between the land claim settlement agreement and what is happening in practice.

2. The case of Dwesa-Cwebe's ‘successful’ land claim

The Dwesa-Cwebe Nature Reserve is located on the 300-kilometre Wild Coast, Eastern Cape Province. It falls within the boundaries of the Transkei former Bantustan. It is made up of two forest reserves, covering about 5700 hectares, that were established in the 1890s under the Cape Colony's Forest Act of 1888, and a marine reserve (Fay, 2007a). These were consolidated into one nature reserve in 1975. Between the 1890s and the 1930s African residents were forcibly removed from the demarcated forests and were settled a few kilometres from the Reserve. These displaced residents, occupying seven villages and numbering about 14 720 people in 2382 households in 2006 (SDC, 2006), were only allowed to make use of resources within the forest through the use of permits (Palmer et al., 2002; Fay, 2007b). In 1978 the Transkei Bantustan government declared the reserved forests the Dwesa-Cwebe Nature Reserve. Thus the forests were fenced off, wild animals brought in and all use of the area by local African people, including grazing and harvesting of natural resources, was prohibited.

The area in and around the Reserve has a mean annual rainfall of approximately 1200 mm and is dominated by extensive grasslands and interspersed with woodland and forest patches (Timmermans, 2004). The marine and terrestrial environments are considered highly productive and contain high levels of biodiversity, which is important to local livelihoods (Shackleton et al., 2007). Additionally, the Reserve is a tourist attraction, with a hotel in Cwebe and chalets in Dwesa.

2.1 Dwesa-Cwebe Nature Reserve, natural resources and local livelihoods

Consistent with findings from research done in other parts of the Wild Coast (Kepe et al., 2001; Hajdu, 2005; McAllister, 2005; Makhado & Kepe, 2006), this study found that in addition to non-local sources of income such as government welfare grants, migrant labour remittances and seasonal tourist-based jobs, the local people rely to a significant extent on land-based livelihood sources. These include crop and livestock farming, and the use of a range of natural resources (e.g. marine resources, non-timber forest products and other woodland resources). Recent studies by Pereira et al. (2006) and Shackleton et al. (2007) show that fuelwood, thatch grass, marine resources, wild spinaches, bush meat and material used for crafts make a significant contribution to local livelihoods as income generators or for home use or consumption. With livestock being important to many aspects of life among the amaXhosa people who live in this area, grazing resources and poles for fencing or building livestock enclosures are also needed (Timmermans, 2004). For most of these resources, Dwesa-Cwebe Nature Reserve has a significant role to play as the potential collection site.

The importance of the Reserve's natural resources to local livelihoods is not new. According to research (DLA, 2001; Ntshona et al., 2006) the local Bomvana people were using the area for livelihoods as early as 1857, and perhaps earlier, followed shortly by immigrant Mfengu people who were settled in the area between 1878 and 1903. However, just as the local people value the Reserve, so does the conservation lobby. In a study of the Dwesa Forest sponsored by the Wildlife Protection and Conservation Society of South Africa, Moll (1974) recommended giving the forest reserve conservation status because of its high ‘scientific value’. Moll also cited the increasing threat posed by surrounding communities, the forest's position as the southern limit of a great many species of fauna and flora, and the importance of the forest habitat for fauna and flora in view of forest destruction in other parts of South Africa, as further reasons for recommending a conservation status. Additionally, Moll suggested a further examination of the practice of harvesting forest resources, the implementation of controlled burning of grasslands, the control of cattle grazing, and the discontinuation of shellfish harvesting by local communities, to allow the forest reserve to recover.

According to Palmer et al. (2002), Ken Tinley was subsequently commissioned in 1975 to compile a reserve management plan. In addition to drawing up this plan, Tinley (1975) made more specific recommendations about natural resource use by local people and how the Reserve should respond to their needs. He recommended that thatch grass collection by local people should be allowed, to satisfy local requirements as well as to reduce fire hazard in the forest; rotational harvesting of shellfish should be implemented; herbalists should be given full cooperation in the collection of traditional medicines from the forests, but overuse should be guarded against; fresh produce for the Reserve should be supplied by local people; two-thirds of any revenue accrued from tourism should go to the local regional authority for distribution to neighbouring communities; locally recruited field guides should be used; and close cooperation with peripheral communities should be encouraged.

However, following the proclamation of the Dwesa-Cwebe Reserve in 1978, almost none of Tinley's policy recommendations concerning local people were implemented. Palmer et al. (2002) argue that, instead, there was greater exclusion of villagers from the natural resources and the running of the Reserve. The local people's history of settlement within the Reserve and their subsequent exclusion from use of its natural resources was to set up a string of conflicts and major discontent that culminated in a land claim, and the current stalemate. The following sections discuss these dynamics.

2.2 The land claim

The early 1990s, which were a period of unprecedented political change from apartheid to democracy for all in South Africa, saw many changes in the relationship between local people and the Dwesa-Cwebe Nature Reserve establishment. Spurred by the political freedom of expression that was sweeping South Africa, villagers articulated their demands for rights of access to the Reserve. One of the significant triggers was the drought of 1993–94 in the area, which put pressure on grazing land available for local livestock. Local people appealed to the conservation authorities and government to be allowed to use the Reserve for emergency grazing, but this was denied. It was then that over 2500 people organised a protest march to the Reserve to demand land and natural resource rights. This was reminiscent of another protest for similar demands in Mkambati Nature Reserve in 1992, where villagers from Khanyayo invaded the Reserve for 9 days (Kepe, 2004). Upon being ignored, the Dwesa-Cwebe villagers followed up with another protest march in September 1994, where hundreds of people invaded the Reserve, cutting down trees, harvesting shellfish and allowing their livestock to graze in the Reserve without permission. This latest protest and invasion was covered by the national media, including television stations, thus prompting the Reserve authorities to open negotiations with a locally elected Village Conservation Committee, and to establish a permit-based system for use of forest products and grazing land within the Reserve.

Eventually in 1996, with the assistance of TRALSO, the villagers formally lodged a land claim based on the Restitution of Land Rights Act (22 of 1994). Following a lengthy and conflict-ridden period of negotiation between the representatives of the villagers and the state, the claim was settled out of court on 17 June 2001. The seven villages formed the Dwesa-Cwebe Land Trust as a legal entity to hold land rights that were being returned. In all, the settlement agreement was R14 276 million. The focus was not on individual household compensation; rather, the money was to be invested in a number of development projects that were meant to yield benefits for all members of the community. These included ecotourism ventures through the use of Dwesa-Cwebe Nature Reserve, plus a number of infrastructural projects. Most important for local livelihoods and the land and resource rights of community members was the community forest agreement that became part of the land claim settlement.

2.3 The Community Forestry Agreement

The land restitution settlement agreement in Dwesa-Cwebe was designed to take full account of the importance of natural resources to the rural livelihoods of the local people (see DLA, 2001). Thus, while the settlement agreement has a clause that stipulates that the land (Dwesa-Cwebe Nature Reserve) will not be occupied or farmed by the former claimants but will be retained as a nature reserve, there is a Community Forestry Agreement (CFA) that accommodates use and management of natural resources by local people. The CFA provides for co-management of the Reserve by the Land Trust, the Department of Water Affairs and Forestry, the provincial conservation authority (Eastern Cape Parks, which acts as the delegated management authority), the Department of Land Affairs and local government institutions. These institutions came together as a Co-management Committee (CMC). Co-management of the Reserve was to be conducted in accordance with a management plan, which could be amended from time to time as the need arose, in accordance with the Management Framework (DLA, 2001). Co-management as part of the land restitution agreement was consistent with a trend in South Africa to settle land claims in protected areas in this manner (Kepe, 2008). However, as the following discussion explains, there have been numerous challenges to the realisation of livelihood benefits via the CFA. More specifically, the discussion examines whether the rights that should be extended through the CFA are being realised or not and what might be the problem.

2.4 Natural resource rights, livelihoods and institutions in post-land claim Dwesa-Cwebe area

Our field research in Dwesa-Cwebe revealed that local community rights to natural resources that were supposed to be enjoyed as part of the community forest agreement have not been fully realised. The Reserve management authority does not allow local people to access a range of natural resources for their livelihoods, which in the past was permitted with minor restrictions. Since the settlement of the land claim in 2001, fishing in certain areas has been banned, and there have been numerous incidents of arrests and court cases against villagers who either cut the fence to allow livestock to graze, or who cut trees illegally. Local livestock keepers have argued that their need for suitable grazing, such as that inside the Reserve, makes this ‘illegal’ action of cutting the fence necessary. However, there is another reason for cutting the fence: local informants say they do it to force the state to employ locals to fix it. The bottom line is that instead of enhancing livelihood benefits from the Reserve, the co-management arrangement that became a central feature of the CFA, and meant a heavy representation of the provincial conservation authority, has legitimised the restriction of local resource rights. Almost all the people interviewed had one common phrase that they remembered as part of the co-management agreement, which is that ‘Sizakuxhamla, kodwa ngendlela’ (‘We will benefit from natural resources, but in a regulated and orderly manner’). Thus, their argument is that the ‘regulated and orderly manner’ has been translated into outright restrictions.

There are probably many reasons why the CFA has failed to benefit local livelihoods, but in this paper we discuss only two. These are basic institutional issues that include conflicts and uncertainty in local administrative institutions, and challenges of co-management of the Reserve. In Leach et al.'s (1999) environmental entitlements framework, rights to resources or even ownership of an asset (such as land) do not guarantee direct benefit. Ownership or rights of access need to be converted to benefits (entitlement) via a number of formal or informal institutions. These institutions could either enhance or restrict the benefit, depending on how they play out in practice. Some examples are discussed below.

2.5 Conflict in local administrative institutions

A number of institutions that were supposed to facilitate a smooth transition into the post-settlement era at Dwesa-Cwebe have not worked according to plan. The Communal Property Associations (CPAs) that were established between 1997 and 1998 in each of the seven villages around the Reserve, and were supposed to hold land outside the Reserve, never really began to function adequately. The CPAs are based on the Communal Property Associations Act (28 of 1996) and designed to allow rural communities to form juristic persons that can acquire, hold and manage property under the guidance of elected committees. The CPAs have to draw up constitutions that allow for democratic decision making and participatory management (Oomen, 2005). Much as in other parts of South Africa, the CPAs in Dwesa-Cwebe area have faced a formidable challenge from the institution of traditional authorities, whose legitimacy is based on heredity rather than democratic elections. Traditional authorities have largely rejected the CPAs, arguing that they are effectively wresting from them their traditional land administration role (Ntsebeza, 2005). As if the conflict and confusion between the CPAs and the institution of traditional authorities were not enough, two pieces of legislation that have been passed over the last few years – the Traditional Leadership and Governance Framework Act (41 of 2003) and the Communal Land Rights Act (11 of 2004) – appear to give traditional authorities more power than the CPAs (Claassens & Cousins, 2008). With these new laws, the state has effectively presided over the disempowerment of the CPAs. Traditional authorities continue to be land administration authorities in the villages.

Secondly, the formal registration in 2001 of the Dwesa-Cwebe Land Trust, to receive, hold and manage the successfully claimed land inside the Reserve, has further compromised the attainment of rights by local people as agreed in the CFA. Even though the Land Trust comprises at least two elected trustees from each of the seven CPAs, there is a conflict between the two institutions. Given that the Land Trust is concerned with the Reserve land that has been returned to the claimants, and is also the community representative in the Co-management Committee responsible for managing the Reserve, CPA members, who preside on issues in the villages, view it with suspicion. This perception makes sense because, since the resolution of the land claim in 2001, the Land Trust has had very little to report back to the local people in terms of what progress is being made in the economic development of the area through the use of the Reserve. On the one hand, local people do not understand why there are endless meetings of the co-management committee (which includes Trust members), yet no tangible benefits have been seen for the last 7 years; on the other, the Trust is at the mercy of the co-management partners, which include the government's conservation authority responsible for the Reserve.

This conflict and misunderstanding between these institutions, which are all legally justified, appears to do more harm than good. Besides not being properly equipped and empowered, the institutions that emerged during the post-apartheid era have suffered from lack of political support from the state. It is therefore not easy for these institutions to mediate the process of converting rights into livelihood benefits effectively. We next discuss the dynamics of the co-management arrangement in the environmental entitlement failure for the local people in the area.

2.6 Co-management and power relations

The management authority appointed by the state to co-manage the Reserve – the Eastern Cape Parks – is in a more powerful position, and is in fact also perceived to be so by the Land Trust. Research elsewhere has shown that, following all land claims in protected areas in South Africa, co-management arrangements between the state, represented by conservation state agencies, have reinforced the unequal power relations that have historically characterised African conservation (Kepe, 2008). Many community members on the CMCs often feel out of place and dominated by the educated and confident conservation authorities. This is because most of the members of the CMCs represent their employers, who in most cases are government agencies, and are therefore well educated. On the other hand, many villagers have little or no education. In Dwesa-Cwebe, one of the signs of this powerful position of the management authority has been the fact that the first meeting of the CMC was delayed by at least 3 years. There are doubts whether the meeting would have taken place had it not been for the efforts of the Land Trust and TRALSO, who wrote a letter complaining of non-cooperation by the management authority. One example of the management authority's blatant disregard for the co-management principle was the way it turned down a proposal to allow local people some access to natural resources in the Reserve. This was despite very promising and accommodating provisions of the CFA, which clearly envisaged regulated natural resource use by local people. Additionally, members of the Land Trust, who are part of the CMC, have even voiced their own weak position, with one member saying: ‘Soyika nokubuza hleze sigxothwe nakuloo CMC’ (‘We are even afraid of asking questions for fear of being expelled from the CMC’).

3. Conclusion

This paper has drawn from an understanding of the environmental entitlements framework (Leach et al., 1999) to show that a successful land claim by poor local communities does not necessarily translate into land and resource rights that can benefit their livelihoods. As concluded by others for similar land claims in South Africa, claims that involve protected areas are always controversial, with state institutions working together to privilege environmental conservation over the immediate needs of local communities (Magome & Murombedzi, 2003; Kepe, 2008). In the case of Dwesa-Cwebe, while local people hold land rights and have the CFA to legitimise their right to benefit from natural resources within the Reserve, a host of institutional arrangements fail to ensure that their livelihoods improve as a result. The failure of these institutions, such as the conflict between elected land administration structures, such as the CPAs, and local traditional authorities, indicates a need to strengthen or clarify them before or at the same time as rights are awarded to people.

We argue that rights that are enshrined in policy documents and legal agreements should be informed by the capacity of people to access those rights. There have to be accompanying legal provisions and the capacity to enforce them. There also has to be a mechanism for constant monitoring of the implementation of policies built into the legal agreements, such as the settlement agreement, as well as institutions capable of monitoring such implementation in an unbiased way. This is where independent bodies such as non-governmental organisations can play a role. Additionally, we conclude that each settlement agreement needs to have a built-in post-settlement strategy that is based on the context and the needs of the claiming communities. The illegal use of the resources from the Dwesa-Cwebe Nature Reserve, even in the light of arrests that have happened over the last few years, is hardly a sustainable alternative. Rather, such a scenario breeds long-term conflict between the state and local people and, ironically, also makes biodiversity a victim of such conflict.