Abstract
The enclosure of commons is a historical event not limited to homelands of developed nations. Instead it also characterized their colonialization of other nations. Obtaining additional land was one of the motives of colonialism, but – for indigenous peoples – it meant more than the loss of tangible resources. This chapter, based on fieldwork with the Namibian San, indicates that the enclosure of land led to a loss of social relations that had sustained their culture and identity. Despite the fact that most San live in circumstances far different from their hunter-gatherer days, they are compelled to choose between identities defined by others, in which they are seen as either ‘backward’ or living ‘in harmony with nature’. In order to reclaim land rights from states, the San are obligated to portray themselves as an essentialized, cohesive indigenous group.
The critical analysis of Namibia's land reform undertaken in this chapter reveals a contradiction: on the one hand, one can observe growing international recognition of the land rights of indigenous peoples; on the other the enclosure of their land continues nationally. Namibia is one of the world's newest nations and, in its focus on creating a unified state, its multilayered German and South African colonial past looms large. For example, colonial tribal chieftaincy rule marginalized San hunter-gatherer bands. Today, the San are Namibia's poorest, most vulnerable group, living as scattered itinerant labourers, often on the outskirts of cities or settlements, and their communities are rife with social and health problems.
The fieldwork described in this chapter indicates that there is little reason for optimism about their sustainability, and a key reason is the long shadow cast by colonialism. It transformed land use from a practice that regulated social organization through property relations into one in which property boundaries affirm political-economic power structures.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
1 For example: the Charter of the Indigenous-Tribal Peoples of the Tropical Forests, the Indigenous Peoples' Earth Charter and the Declaration of Principles of the World Council of Indigenous Peoples.
- 2.
2 For example: the Declaration on the Rights of Indigenous Peoples, the COICA-UNDP Regional Meeting on Intellectual Property Rights and Biodiversity, the UNDP Consultation on the Protection and Conservation of Indigenous Knowledge and the International Labour Organization's Convention 169 (ILO 1989) on Indigenous and Tribal Peoples.
- 3.
3 Res nullius is a principle derived from Roman law according to which res, which are objects in the legal sense, are not yet the objects or rights of any specific subject. In other words, res nullius are considered ownerless property and therefore usually free to be owned. Res nullius also has application in public international law, viz. terra nullius, referring to unclaimed territory: a nation can assert control of terra nullius. Building further on the philosophy of John Locke and Emeric de Vattel, terra nullius was the principle used to justify the colonization of Africa: even though there may be people residing on the ‘newly discovered’ land, it is the right of the ‘more civilized’ to take the land and put it to ‘good use’.
- 4.
4 Usufruct is the legal right to use, derive a profit from and benefit from property that belongs to another person.
- 5.
5 The formal status of ethnic minorities in Namibia is expressed in the Constitution (Republic of Namibia 1990). The guiding principle is the separation of ethnic and national identity, with the latter given priority. This is intended to assert the primacy of the state without disregarding the reality of ethnic diversity (Suzman 2002). Article 19 stipulates: ‘Every person shall be entitled to enjoy, profess, maintain and promote any culture, language, tradition or religion subject to the terms of this Constitution and subject to the condition that the rights contained in this article do not impinge upon the rights of others or the national interest.’
- 6.
6 The National Land Policy identified the San as the principal beneficiaries of any anticipated land reform initiative. When the Ministry of Lands, Resettlement and Rehabilitation came into existence in 1990 with the aim of alleviating poverty and improving access to scarce resources, including land, the San were prioritized as the most needy beneficiary of the Namibian resettlement policy. However, the resettlement policy has failed for a number of reasons, one of the main ones being the lack of participation of the San in the implementation policy (Harring and Odendaal 2002).
- 7.
7‘Fee simple’ is an estate in land in common law and represents the most ‘absolute’ ownership model of real property.
- 8.
8 Joint registration (usually by spouses) is allowed. After the title has expired, the land reverts back to the traditional authority.
- 9.
9 For the establishment, functions, and composition of communal land boards, see LAC (2003).
- 10.
10 Field notes, 12 August 2005.
- 11.
11 Field notes, July 2005. For more details about the tension between the San and Herero farmers see e.g. Harring and Odendaal (2006).
- 12.
12 Aboriginal title is a common law property interest in land sometimes also referred to as native title. However, native title is strictly taken as a concept in the law of Australia that recognizes the continued ownership of land by local indigenous Australians.
- 13.
13 Ülgen (2002) has argued that the conceptual framework of the Restitution of Land Rights Act does recognize the principle of native title.
- 14.
14 The Canadian Delgamuukw case recognized the ‘full’ meaning of aboriginal title, i.e. full proprietorial rights including ownership of subsurface minerals and the right of aboriginal owners to develop traditional lands in non-traditional ways.
- 15.
15 For example, large parts of South Africa could be subject to overlapping and competing claims where pieces of land have been occupied in succession by San, Khoi, Xhosa, Mfengu, Afrikaner and British people (Ülgen 2002).
- 16.
16 The sovereignty of the Western Sahara remains the subject of a dispute between the government of Morocco and the Polisario Front, an organization seeking independence for the region. In 1975 the International Court of Justice issued an advisory opinion on the status of the Western Sahara. The court held that while some of the region's tribes had historical ties to Morocco, these were insufficient to establish ‘any tie of territorial sovereignty’ between the Western Sahara and the Kingdom of Morocco. The court added that it had not found ‘legal ties’ that might affect the applicable UN General Assembly resolution regarding the decolonization of the territory, and, in particular, the principle of self-determination for its people.
References
Alexkor Limited and Another v Richtersveld Community and Others 2003 (12) BCLR 1202 CC.
Barsh, R. L. (1999). How do you patent a landscape? The perils of dichotomizing cultural and intellectual property. International Journal of Cultural Property, 8(1), 14–47.
Bennett, T. W., & Powell, C. H. (1999). Aboriginal title in South Africa revisited. South African Journal on Human Rights, 15(4), 449–485.
Berman, T. (2004). ‘As long as the grass grows’: representing indigenous claims. In M. Riley (Ed.), Indigenous intellectual property rights: legal obstacles and innovative solutions. Walnut Creek, CA: AltaMira Press.
Bishop, K. (1998). Squatters on their own land. Comparative and International Law Journal of South Africa, 31, 92–121.
Bruce, J. W. (2000). African tenure models at the turn of the century: individual property models and common property models. Land Reform, Land Settlement and Cooperatives, 1, 17–27.
Chachage, C. S. L. (1999). Land issues and Tanzania's political economy. In P. G. Forster & S. Maghimbi (Eds.), Agrarian economy, state and society in contemporary Tanzania. Aldershot, UK: Ashgate.
Chan, T. (1997). Land claims and past aboriginal group identity of the Richtersveld Namaqua, unpublished paper. Ann Arbor, MI: University of Michigan Law School.
Chanock, M. (1991a). Paradigms, policies, and property: a review of the customary law of land tenure. In K. Mann & R. Roberts (Eds.), Law in colonial Africa. Portsmouth, UK: Heinemann.
Chanock, M. (1991b). A peculiar sharpness: an essay on property in the history of customary law in colonial Africa. Journal of African History, 32, 72–88.
Cpt Diergaardt of the Rehoboth Baster Community et al v the State of Namibia Co.Nr. 760/1997 (Namibia).
Daniels, C. (2003). The struggle for indigenous people's rights. In H. Melber (Ed.), Re-examining liberation in Namibia: political culture since independence. Stockholm: Nordic Africa Institute.
Delgamuukw v British Columbia [1997] 3 S.C.R. 1010 (Canada).
Dodds, S. (1998). Justice and indigenous land rights. Inquiry, 41(2), 187–205.
Erasmus, M. G. (2002). The impact of the Namibian Constitution on the nature of the state, its politics and society: the record after ten years. In M. O. Hinz, S. K. Amoo, & D. van Wyk (Eds.), The constitution at work: 10 years of Namibian nationhood. Pretoria: VerLoren van Themaat Centre, University of South Africa.
Firmin-Sellers, K. P., & Sellers, P. (1999). Expected failures and unexpected successes of land titling in Africa. World Development, 27(7), 1115–1128.
Gibson, J. (2005). Community resources: intellectual property, international trade and protection of traditional knowledge. Aldershot: Ashgate.
Gordon, R. J., & Douglas, S. S. (2000). The Bushman myth: the making of a Namibian underclass. Boulder, CO: Westview Press.
Greene, S. (2002). Intellectual property, resources, or territority? Reframing the debate over indigenous rights, traditional knowledge, and pharmaceutical bioprospection. In M. P. Bradley & P. Petro (Eds.), Truth claims: representation and human rights. New Brunswick, NJ: Rutgers University Press.
Greene, S. (2004). Indigenous people incorporated? Culture as politics, culture as property in pharmaceutical bioprospecting. Current Anthropology, 45, 211–238.
Harring, S. L. (1996). The Constitution of Namibia and the ‘rights and freedoms’ guaranteed communal land holders: resolving the inconsistency between article 16, article 100, and schedule 5. South African Journal on Human Rights, 12(4), 467–484.
Harring, S. L. (2002). The ‘stolen lands’ under the Constitution of Namibia: land reform and the rule of law. In M. O. Hinz, S. K. Amoo & D. van Wyk (Eds.), The constitution at work: 10 years of Namibian nationhood. Pretoria: VerLoren van Themaat Centre, University of South Africa.
Harring, S. L., & Odendaal, W. (2002). ‘One day we will all be equal’: a socio-legal perspective on the Namibian land reform and resettlement process. Windhoek: Legal Assistance Centre.
Harring, S. L., & Odendaal, W. (2006). ‘ Our land they took’: San land rights under threat in Namibia. Windhoek: Legal Assistance Centre.
Hitchcock, R. (2006). Land, livestock, and leadership among the Ju/'hoansi of north-western Botswana. In J. Solway (Ed.), The politics of egalitarianism: theory and practice. New York: Berghahn Books.
ILO (1989). Convention (No. 169) Concerning Indigenous and Tribal Peoples in Independent Countries, International Labour Organization, Geneva. www.ilo.org/ilolex/cgi-lex/convde.pl?C169. Accessed 30 July 2008.
Keal, P. (2003). European conquest and the rights of indigenous peoples. Cambridge: Cambridge University Press.
LAC. (2003). Guide to the Communal Land Reform Act: Act No 5 of 2002. Windhoek: Legal Assistance Centre.
Lemert, C. (2002). Will there be land for community? In J. M. Curry&S. McGuire (Eds.), Community on land: community, ecology and the public interest. Lanham, MD: Rowman&Littlefield.
Mabo v Queensland (1992) 175 CLR1; 66 ALJR 408 (Australia).
Mamdani, M. (2005). Identity and national governance. In B. Wisner, C. Toulmin&R. Chitiga (Eds.), Towards a new map of Africa. London: Earthscan.
Mann, K.,&Roberts, R. (1991). Law in colonial Africa. Portsmouth: Heinemann.
Martin, G.,&Vermeylen, S. (2005). Intellectual property, indigenous knowledge, and biodiversity. Capitalism Nature Socialism, 16, 27–48.
May, C. (2000). A global political economy of intellectual property rights: the new enclosures? London: Routledge.
McGregor, D. (2004). Traditional ecological knowledge and sustainable development: towards coexistence. In M. Blaser, H. Feit&G. McRae (Eds.), In the way of development: indigenous peoples, life projects and globalisation. London: Zed Books.
Nelson, J. (2004). A survey of indigenous land tenure in sub-Saharan Africa. Land Reform Report 2004/1, Food and Agriculture Organization, Rome.
Nzioki, A. (2002). The effects of land tenure on women's access and control of land in Kenya. In A. A. An-Na'im (Ed.), Cultural transformation and human rights in Africa. London: Zed.
Okafar, O. C. (2000). After martyrdom: international law, sub-state groups, and the construction of legitimate statehood in Africa. Harvard Journal of International Law, 41, 503–528.
Olson, P. (1990). The struggle for the land: indigenous insights and industrial empire in the Semiarid World. Lincoln, NE: University of Nebraska Press.
Orth, I. (2003). Identity as dissociation: the Khwe's struggle for land in West Caprivi. In T. Hohmann (Ed.), San and the state: contesting land development identity and representation. Cologne: Rüdiger Köppe Verlag.
Platteau, J.-P. (1996). The evolutionary theory of land rights as applied to sub-Saharan Africa: a critical assessment. Development and Change, 27(1), 29–86.
Posey, D. A.,&Dutfield, G. (1996). Beyond intellectual property: toward traditional resource rights for indigenous peoples and local communities. Ottawa: International Development Research Centre.
Republic of Namibia. (1990). The Constitution of the Republic of Namibia. Windhoek: Government Printers.
Ribot, J. C.,&Oyono, P. R. (2005). The politics of decentralisation. In B. Wisner, C. Toulmin & R. Chittiga (Eds.), Towards a new map of Africa. London: Earthscan.
Richtersveld Community and Others v Alexkor Ltd and Another 2001 (3) SA 1293 (LCC) (South Africa).
Richtersveld Community and Others v Alexkor Ltd and Another 2003 (6) BCLR 583 SCA.
Riley, M. (2004). Indigenous intellectual property rights: legal obstacles and innovative solutions. Walnut Creek, CA: AltaMira Press.
Re Southern Rhodesia [1919] A.C. 211 (P.C).
Robins, S. (2001). NGOs, ‘bushmen’ and double vision: the ≠Khomani San land claim and the cultural politics of ‘community’ and ‘development’ in the Kalahari. Journal of Southern African Studies, 27, 717–737.
Roy Sesana and others v the Attorney General of Botswana, Misca 52 of 2002 (Botswana).
Scott, C. (1997). Property, practice and aboriginal rights among Quebec Cree hunters. In T. Ingold, D. Riches&J. Woodburn (Eds.), Hunters and gatherers: property, power and ideology. Oxford: Berg.
Seidman, A.,&Seidman, R. B. (2005). Legal frameworks. In B. Wisner, C. Toulmin&R. Chittiga (Eds.), Towards a new map of Africa. London: Earthscan.
Simpson, T. (1997). Indigenous heritage and self-determination: the cultural and intellectual property rights of indigenous peoples. Copenhagen: International Work Group for Indigenous Affairs.
Smit, P. (2002). The land issue of Namibia: some environmental, economical and planning perspectives. In M. O. Hinz, S. K. Amoo&D. van Wyk (Eds.), The constitution at work: 10 years of Namibian nationhood. Pretoria: VerLoren van Themaat Centre, University of South Africa.
Solomon, M. (2004). Intellectual property rights and indigenous peoples' rights and responsibilities. In M. Riley (Ed.), Indigenous intellectual property rights: legal obstacles and innovative solutions. Walnut Creek, CA: AltaMira Press.
Strang, V. (2000). Not so black and white: the effects of Aboriginal law on Australian legislation. In A. Abramson&D. Theodossopoulos (Eds.), Land, law and environment. London: Pluto.
Suzman, J. (ed). (2001). An assessment of the status of the San in Namibia. Windhoek: Legal Assistance Centre.
Suzman, J. (2002). Minorities in independent Namibia. London: Minority Rights Group International.
Suzman, J. (2004). Etosha dreams: an historical account of the Hai//om predicament. Journal of Modern African Studies, 42, 221–238.
Sylvain, R. (2002). ‘Land, water, and truth’: San identity and global indigenism. American Anthropologist, 104, 1074–1085.
Thorpe, J. (2005). Indigeneity and transnationality? An interview with Bonita Lawrence. Women and environments, 68(69), 6–9.
Tjombe, N. (2001). The applicability of the doctrine of aboriginal title in Namibia: a case for the Kxoe community in West-Caprivi, Namibia. Paper presented at Southern African Land Reform Lawyers Workshop, February, Robben Island.
Tucker, C. (2004). Land, tenure systems, and indigenous intellectual property rights. In M. Riley (Ed.), Indigenous intellectual property rights: legal obstacles and innovative solutions. Walnut Creek, CA: AltaMira Press.
Tully, J. (1994). Aboriginal property and Western theory: recovering a middle ground. In E. F. Paul, F. Miller Jr.&J. Paul (Eds.), Property rights. Cambridge: Cambridge University Press.
Ülgen, Ö. (2002). Developing the doctrine of aboriginal title in South Africa: source and content. Journal of African Law, 46(2), 131–154.
Werner, W. (1993). A brief history of land dispossession in Namibia. Journal of Southern African Studies, 19, 135–146.
Western Sahara Case [1975] ICJ Reports 12 (International Court of Justice).
Widlok, T. (2001). Equality, group rights, and corporate ownership of land. Working Paper No. 21, Max Planck Institute for Social Anthropology, Halle/Saale.
Widlok, T. (2002). Towards a theoretical approach to the moral dimension of access. Working Paper No. 37, Max Planck Institute for Social Anthropology, Halle/Saale.
WIMSA. (2005). Report on activities: April 2004–2005. Windhoek: Working Group of Indigenous Minorities in Southern Africa.
Woodburn, J. (1997). Indigenous discrimination: the ideological basis for local discrimination against hunter-gatherer minorities in sub-Saharan Africa. Ethnic and Racial Studies, 20(2), 345–361.
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Additional information
Some people call me a westernized Bushman. What did those peoples’ ancestors wear? Do they still wear that today? Some of the Basters who came here wore skin clothes. Does it change their children into something else if they don’t wear that anymore? (Petrus Vaalbooi, Rietfontein, South Africa)
Some people call me a westernized Bushman. What did those Peoples’ ancestors wear? Do they still wear that today? Some of the Basters who came here wore skin clothes. Does it change their children into something else if they don’t wear that anymore? (Petrus Vaalbooi, Rietfontein, South Africa)
Rights and permissions
Copyright information
© 2009 Springer Science+Business Media B.V.
About this chapter
Cite this chapter
Vermeylen, S. (2009). The Struggle for Indigenous Peoples' Land Rights: The Case of Namibia. In: Wynberg, R., Schroeder, D., Chennells, R. (eds) Indigenous Peoples, Consent and Benefit Sharing. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-3123-5_8
Download citation
DOI: https://doi.org/10.1007/978-90-481-3123-5_8
Publisher Name: Springer, Dordrecht
Print ISBN: 978-90-481-3122-8
Online ISBN: 978-90-481-3123-5
eBook Packages: Earth and Environmental ScienceEarth and Environmental Science (R0)