Volume 7/2

Synne Movik and Fieke de Jong

Licence to Control: Implications of Introducing Administrative Water Use Rights in South Africa

In recent years, there has been a prevalent trend towards implementing administrative water use rights in a number of countries. South Africa was one of the pioneers in this respect, implementing a progressive new water law in 1998, which introduced the concept of administrative rights in place of the old riparian system. This paper examines the implications of introducing administrative rights in the South African context. The main argument is that the institutionalisation of tradable water use licences in the face of an inherently uncertain resource – which is likely to become even more unpredictable due to climate change – is fraught with difficulty. The paper contends that the institutionalisation of administrative water use rights caused a profound shift in relations of authority, shifting from user-user correlative relations to State-user relations. This shift left the State with a large degree of discretion in terms of deciding on how to allocate rights but also burdened it with a cumbersome and unwieldy system of administration. Though the State’s new powers allowed it to embark on an effort to redistribute water to historically disadvantaged individuals, the progress is slow and with very mixed results due in part to the nature of the licensing system. The paper draws on individual empirical research by the authors in 2006 and 2009, focussing on policy-level processes as well as case studies from the Inkomati and Limpopo Water Management Areas.

Anwuli Irene Ofuani

Environmental Regulation of Offshore (E&P) Waste Management in Nigeria: How Effective?

The advancement of technology has led to the rapid development of the offshore oil and gas industry and a corresponding increase in the amount of wastes generated from the industry. These wastes must be properly managed so as to curtail their potential to negatively affect human health and the environment. As a result, environmental regulation of offshore oil and gas operations is becoming more stringent worldwide. The Environmental Guidelines and Standards for the Petroleum Industry in Nigeria (EGASPIN) were issued to ensure that oil and gas industry operators do not degrade the environment in the course of their operations in Nigeria. Nonetheless, more attention has been focused on the economic aspects of offshore oil and gas industry rather than environmental aspects such as waste management. This article examines the legal aspects of offshore oil and gas waste management in Nigeria. It assesses the effectiveness of the mechanisms for the management of offshore E&P wastes in Nigeria as provided under EGASPIN in relation to other jurisdictions.

Eshwer Kale

Social Exclusion in Watershed Development: Evidence From the Indo-German Watershed Development Project in Maharashtra

The concept of social exclusion is context-specific and there is no uniform paradigm of exclusion across the world. This paper attempts to analyse exclusion of resource-poor groups in watershed development programmes in the Indian context. It aims to explore excluded community groups from the perspective of people’s equal opportunity and equal access to newly generated economic benefits in watershed development programmes. The paper also traces the determinant factors responsible for denial and exclusion of resource-poor groups and describes the detailed processes involved in their exclusion from institutional and livelihood opportunities in watershed programmes. At the same time, the paper also explores suggestions and views of resource-poor groups about their meaningful social inclusion in watershed programme. The Gadiwat Indo-German Watershed Development Project in Aurangabad district in the State of Maharashtra is studied in detail in terms of its social, economic and political realities through mix-method and multi-stakeholder approaches.

The key findings of the paper are that landownership, caste, gender, membership in village institutions and/or watershed institutions or close relationship with members, as well as the limitations of the programme guidelines, are the major determinants of institutional inclusion and the extent of resulting economic benefits. The exclusion of resource-poor groups mainly takes the form of their exclusion from institutional representation. In order to promote meaningful social inclusion of resource-poor groups, there is need for a more livelihood-oriented focus and their equal representation and participation in watershed institutions.

Glen Wright

Indigenous People and Customary Land Ownership Under Domestic REDD+ Frameworks: A Case Study of Indonesia

Deforestation is an immense, complex and multifaceted problem, responsible for approximately fifteen percent of global emissions of carbon dioxide. The primary international response to deforestation and land degradation has been the development of the Reducing Emissions from Deforestation and Land Degradation (REDD+) mechanism whereby developed nations pay developing nations to keep their forests standing and well-managed, and generating carbon credits that can be sold on international carbon markets or used to offset other emissions.

The international legal arrangements for REDD+ are not yet finalised, yet projects are already being implemented, adding new voices and complexities to forest governance. A particular concern is the well-being of the people that live in forests – customary land owners and Indigenous People – and the need to ensure the recognition and protection of their rights.

This paper aims to explore the interaction between domestic legal frameworks implementing the REDD+ mechanism and customary land ownership by using the regulatory regime of Indonesia as a case study. The paper will analyse the domestic legal framework for land ownership, customary law and customary tenure, forestry and REDD+ in Indonesia, and assess how REDD+ projects interact with the rights of Indigenous People under this framework. This analysis explores how threats to Indigenous People and customary land ownership are entrenched at the domestic level.

The paper concludes that very little security of tenure is provided to Indigenous People by Indonesia’s domestic REDD+ legal framework and that this shortcoming is likely to result in poor protection of customary land rights under the REDD+ mechanism, regardless of the protection afforded by an eventual international agreement. The paper also notes that Indigenous People are unlikely to be protected unless land tenure reforms are undertaken as a matter of priority to ensure secure customary land tenure. Strong tenure must be used as the basis for the interaction of Indigenous People with the REDD+ mechanism.

Zia Akhtar

Aboriginal Determination:  Native Title Claims and Barriers to Recognition

The Australian government has proposed a referendum in 2012 to decide the constitutional status of its indigenous people. There is at present no mechanism to define the indigenous people as a domestic or foreign entity of the Commonwealth. This is an important issue because other settler governments have developed a framework to implement their relationship with the native people. As a result, it is difficult prove title to land that has been abrogated by the deeds of the settlers. In Mabo v Queensland (2),the Commonwealth government was found to have breached its fiduciary duty to the Aboriginal peoples. The judgment led to the Native Title Act 1993 that established the process of asserting native rights that were held to coexist with pastoral ownership. The promulgation of the Native Title Amendment Act 1998 reversed this process and augmented the powers of non-native landlords by providing the device to extinguish native rights. In Western Australia v Ward, a mining lease was held to have precedence over native title that was adjudged to be part of a bundle of rights. In implementing the Native Title Act the issue turns on the determination of the ties to land/ sea that the government allows to the Aboriginal peoples. The judgment in Harrington-Smith on behalf of the Wongatha People v Western Australia indicates that title can be excluded on procedural grounds and that there was an incompatibility between the claims of the Aboriginal peoples and the settlers’ claims. The road map towards a more effective regime of proving title can be achieved if the Aboriginal peoples are granted recognition as a nation in the Constitution and a treaty is signed with them.


Constitutionality of the Plachimada Tribunal Bill, 2011: An Assessment

by Sujith Koonan

The Plachimada Coca-Cola Victims Relief and Compensation Claims Special Tribunal Bill, 2011 was passed by the Kerala Legislative Assembly on 24 February 2011. The Bill provides for the establishment of a special tribunal to settle disputes between the local residents and the Hindustan Coca Cola Company in Plachimada for recovery of compensation for damages caused to individuals, property and the environment by the company. The Bill is reserved for the assent of the President of India. In the meantime, the central government has sought clarifications on the Kerala government’s competence under the Constitution to adopt the Bill. The major issue is the perceived inconsistency between the Bill and some of the central environmental laws. Thus, the constitutional validity of the Bill is in doubt. In this background, this paper examines the issue of legislative competence of the Kerala government to adopt the Bill.

Groundwater Security in Yemen: Who is Accountable to Whom?

by Frank van Steenbergen, Omar Bamaga and Adel Al-Weshali

The overuse of groundwater in Yemen is now recognized as a national security issue. Groundwater exploitation has increased rapidly over the last four decades. While this has boosted high value farming and created rural jobs, there are grave concerns whether agriculture is not bound for a potentially destabilizing setback. This paper discusses the emergence of local management rules – by water users themselves – and their interplay with formal state institutions. It argues that the existence of formal institutions – including the National Water Law – was more important than their actual almost non-existent implementation. Groundwater where managed is managed locally in Yemen – but in spite of this autonomy, the presence of the Water Law creates the context in which these otherwise contentious local rules develop. The implication is that further strengthening and promoting local regulation is the best option for groundwater management rather than refining and investing in national regulatory institutions.

Volume 7/1

Karen Sullivan

Technology Transfer and Climate Change: Additional Considerations for Implementation under the UNFCCC

Technology transfer is recognised as playing a central and critical role in the global response to climate change, as embodied in the Unite Nations Framework Convention on Climate Change (UNFCCC). However, technology transfer is a complex process, and despite numerous attempts to prescribe approaches to optimisation, there remain serious obstacles to its effective operation. The breadth of technologies and range of would-be recipient territories under the climate change regime serve to complicate things even further. Against this background, the Expert Group on Technology Transfer have produced a robust Strategy, which it will now fall to the Technology Mechanism announced in Cancun to implement.

However, despite the rigour with which the technology transfer strategy was produced, it is never possible to cover all possible eventualities. It is on this basis that this article presents a number of tactical and strategic issues which may merit further consideration as the implementation process moves forward. At the operational level, such issues include a possible role for a centralised or regional technology procurement effort, the need for greater emphasis on sectoral specific approaches to technology transfer, and a pragmatic approach to reducing the impact of some barriers to transactions by the expedient use of insurance to reduce risk, as opposed to the longer term approach of international standardisation.

At the strategic level, there are major issues with regard to prioritisation of resources applied to technology transfer, and in particular the resolution of the tensions existing between achieving sustainable development and the time critical need to achieve climate stabilisation.

Hans Morten Haugen

Approaches Towards Valuing Local and Indigenous Peoples’ Use of ‘Non-Timber Forest Products’ in the Context of Land Acquisition

The undervaluation of traditional harvesting from forest and other lands is a common pattern. This has made many persons claim that certain lands singled out for biofuels projects is ‘not in use’. Such erroneous statements can easily be challenged, but it is considerably more demanding to calculate the overall value of harvesting for local communities. The term “ecosystem services” has gained increased attention, primarily by emphasising the carbon capture capacity of both forests and other lands. This approach has enhanced the motivation for conserving the land. By acknowledging the need not only to conserve the land, but also allow sustainable harvesting from the land, in accordance with the governing the commons framework, the article identifies the most central human rights provisions and analyse their relevance in order to better acknowledge the importance of non-timber forest products. The emphasis will be on identifying the content and scope of the substantive human rights as they apply to control over and use of natural resources. The relevance of the article is evidenced by FAO’s initiative to adopt Voluntary Guidelines on Responsible Governance of Tenure of Land and other Natural Resources, scheduled to be adopted in 2011. FAO itself says that the Voluntary Guidelines-initiative seeks to build on a human rights approach, which makes the present analysis most pertinent.

Kabir Bavikatte and Daniel F. Robinson

Towards a People’s History of the Law: Biocultural Jurisprudence and the Nagoya Protocol on Access and Benefit Sharing

The Nagoya Protocol on Access and Benefit Sharing adopted by the Conference of Parties to the Convention on Biological Diversity has had its share of supporters and detractors. While some of its detractors rightly bemoan the limits of the Nagoya Protocol in living up to the standards set by the Declaration on the Rights of Indigenous Peoples, the Protocol nevertheless makes significant rights gains for communities vis-à-vis their traditional knowledge and genetic resources. In the present article we trace the trajectory of struggles of indigenous peoples’ organisations in securing these rights within the Nagoya Protocol. The article argues for a writing of the history of multilateral environmental agreements not as a litany of the efforts of State Parties but also as a result of the struggles of indigenous peoples and local communities. Through mapping a bottom up history of the Nagoya Protocol, the article also identifies the emergence of a discourse of biocultural rights that advocates for legal protection of the stewardship role played by indigenous peoples and local communities with regard to their ecosystems.

Hacia una Historia de la Ley de los Pueblos a través de la Jurisprudencia bioCultural y el Protocolo de Nagoya sobre Acceso y Participación en los Beneficios

El Protocolo de Nagoya sobre Acceso y Participación en los Beneficios aprobado por la Conferencia de las Partes en el Convenio sobre la Diversidad Biológica ha tenido una serie de partidarios y adversarios. Mientras que algunos de sus adversarios se quejan con razón de los límites del Protocolo de Nagoya, en relación a los estándares establecidos por la Declaración sobre los Derechos de los Pueblos Indígenas, el Protocolo, sin embargo, hace grandes avances en los derechos de las comunidades con respecto a sus conocimientos tradicionales y a sus recursos genéticos. En el presente artículo se traza la trayectoria de las luchas de las organizaciones de los pueblos indígenas para asegurar estos derechos dentro del Protocolo de Nagoya. El artículo argumenta a favor de una escritura de la historia de los acuerdos ambientales multilaterales no solo como la historia de los esfuerzos de los Estados Partes, sino también como el resultado de las luchas de los pueblos indígenas y de las comunidades locales. A través de un recorrido desde el principio de la historia hasta la adopción del Protocolo de Nagoya, el artículo identifica el surgimiento de un discurso de los derechos bioculturales que aboga por la protección jurídica del papel de guardianes de los ecosistemas desempeñado por los pueblos indígenas y las comunidades locales.

Joseph Henry Vogel et. al.

The Economics of Information, Studiously Ignored in the Nagoya Protocol on Access to Genetic Resources and Benefit Sharing

The economics of information has been studiously ignored in the ten Conferences of the Parties to the Convention on Biological Diversity. Nevertheless, an academic literature exists which recognises genetic resources and associated traditional knowledge as natural and artificial information. Its unambiguous prescriptions would widen the scope of the Nagoya Protocol on Access to Genetic Resources and Benefit Sharing (ABS) and resolve almost all of the contentious issues identified by Kamau et al. One begins with retroactivity: because biological resources exhibit tangible and intangible aspects, the latter can be conceptualised as a set of natural information where value currently added in a patent is access to a subset not previously accessed. The economics quickly leads to a justification for a biodiversity cartel among countries of origin, wholly analogous to monopoly intellectual property rights. To achieve such a sea change in policymaking, the justification must be accompanied by a narrative that can penetrate the social sphere, much as Trade Related Intellectual Property Rights achieved through the World Intellectual Property Organisation. Several examples of bio-discoveries drawn from a popular medium are analysed in terms of the contentious issues of the Protocol and the distinct ABS that would eventuate under cartelisation. History also offers an analogy. The Parties’ eighteen years of resistance (1993-2011) to applying the economics of information to genetic resources is reminiscent to the twenty-seven years that the British Parliament rebuffed David Ricardo’s economic analysis of the Corn Laws (1815-1842).