Do indigenous communities have a customary law right to access and exploit natural resources in a ‘protected area’?

October 1st, 2020
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Gongqose and Others v Minister of Agriculture and Others 2018 (5) SA 104 (SCA)

The National Environmental Management: Protected Areas Act 57 of 2003 (the Act) does not clearly define what a ‘protected area’ is; the Act merely lists the different types of protected areas. However, in the International Union for the Conservation of Nature Guidelines for Applying Protected Area Management Categories a ‘protected area’ is defined as ‘a clearly defined geographical space, recognised, dedicated and managed, through legal or other effective means, to achieve the long-term conservation of nature with associated ecosystem services and cultural values’. The basis of whether the indigenous communities have a customary law right to access and exploit natural resources in a ‘protected area’ is found in the landmark case of Alexkor Ltd and Another v the Richtersveld Community and Others 2004 (5) SA 460 (CC).

The Alexkor case

In the Alexkor case, a community of indigenous people (the Richtersveld community) successfully established a claim for the restoration of land. The court found that the content of the land rights held by the community must be determined by reference to the history and the usages of the community of the Richtersveld. Evidence presented showed a history of prospecting in minerals by the community and conduct that was consistent with ownership of the minerals being vested in the community.

The Constitutional Court (CC) took the view that the real character of the title that the Richtersveld community possessed in the subject land prior to appropriation was a right of communal ownership under indigenous law. The court, therefore, granted the land claim inclusive of mineral resources and the right to claim compensation for past use in terms of a settlement agreement. Alexkor confirms that customary law may serve as the basis for claims to natural resources and echoes the importance of customary law as a vital part of our law. The case furthermore, shows ‘the legal validity of customary claims to natural resources and that customary law, like any other source of law such as common law, provides the legal basis for claims to access and use’ (Loretta Feris ‘A customary right to fish when fish are sparse: Managing conflicting claims between customary rights and environmental rights’ (2013) 16.5 PER 555 at 566).

Magistrate’s court decision in the Gongqose case

In Gongqose, the three accused were found guilty in the magistrate’s court for ‘“entering a national wildlife reserve area (Dwesa-Cwebe Nature Reserve) without authorisation” and “fishing or attempting to fish in a marine protected area in contravention of section 43(2)(a) of the Marine Living Resources Act [18 of 1998] (MLRA)”, which prohibits fishing in a marine protected area’ (Feris (op cit)). The three accused plead not guilty, contending that they were exercising their customary right to fish. The court, however, could not pronounce on the constitutional validity of the MLRA, as a magistrate’s court lacks the jurisdictional capacity to do so. It thus convicted all three accused. It is noted that when the three accused were found guilty,
s 43 of the MLRA had not been repealed yet (S v Gongqose and Others (Elliotdale Magistrate’s Court) (unreported case no E382/10, 22-5-2012) (GS Nel)).

The High Court’s decision in the Gongqose case

The High Court held that when the MLRA was passed, the lawgiver took into consideration that there were people like the appellants who were exercising customary rights in respect of marine resources. The court, however, held that the appellants’ conduct was unlawful because they had not applied for an exemption. Therefore, the High Court found them guilty and upheld the convictions of the magistrate’s court (see paras 18 – 19).

Supreme Court of Appeal’s decision in the Gongqose case

The Supreme Court of Appeal (SCA) held that the Constitution recognises customary law as an independent and original source of our law. In terms of s 211 of the Constitution, the status of traditional leadership and their role in terms of customary law is recognised. Section 211(2) provides that ‘traditional authority that observes a system of customary law may function subject to any applicable legislation and customs’. Section 211(3) further provides that ‘the courts must apply customary law when that law is applicable, subject to the Constitution and any legislation that specifically deals with customary law’. In examining the status of customary law the SCA referenced Alexkor and held that: ‘As an independent source of norms within the legal system, customary law may give rise to rights, such as access and use rights to resources. Thus, in Alexkor, the [CC] found that the Richtersveld Community possessed a right of communal ownership under customary law in the relevant land, which included use and occupation of the land; and the rights to use its water and exploit its natural resources above and beneath the surface. The question is whether the appellants proved customary rights of that kind’. Therefore, in this case the SCA had to answer whether the appellants proved their customary right to marine resources. The court found that the appellants did prove their customary right to access marine resources.

The court had to further answer whether the MLRA extinguished the appellants’ customary rights. The court held that on a proper construction of the MLRA, it did not extinguish the appellants’ customary right of access to and use of marine resources. These rights continued to exist subject to the limitations already imposed by customary law. The court further held that the amended MLRA constitutes legislation that along with s 211(3) of the Constitution alters customary rights. The unamended MLRA did not. The interpretation that the appellants’ customary rights survived the enactment of the MLRA not only grants them the fullest protection of their customary system guaranteed by s 211 of the Constitution, but also accords with the position in international law, which ‘a court is enjoined to consider when interpreting the Bill of Rights – that indigenous peoples have the right to their lands and resources traditionally owned’. The appeal was upheld and the appellants’ convictions and sentences were set aside.

In conclusion, indigenous communities may claim customary rights to access and exploit natural resources in protected areas. However, there may be conflicts between custom and the conservation of the environment. Therefore, customary and environmental rights must be reconciled in a way that includes indigenous communities as a vital part of the natural resource management.

Uchizi Madhlopa LLB (UFS) is an LLB graduate in Bloemfontein.

This article was first published in De Rebus in 2020 (Oct) DR 32.