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.
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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.
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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)
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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
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