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Un droit à inventer

Olivier Barrière
Catherine Barrière


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Law and rights to be defined

Landholding and the environment in the inner Niger delta (Mali)

1Land ownership relations formed the starting point of this study through a double questioning. As an expression of social relations with regard to land, real estate cannot be limited to agricultural land but must also include the environment. However, the legal relationship between man and the natural environment is not expressed in terms of appropriation but rather as spatial control and the right of access to resources. These legal relations between societies and their natural environment are addressed in the inner Niger delta, a vast wetland in Sahelian Africa where environmental issues are becoming crucial.

2Several occupations coexist or are superposed in this region and the territorialisation that has long been dominant is centred on pastoralism. Pastoral landholding logic is based on the authority of the grazing leaders and on the regulations governing access to rangeland, whose status may vary but that is never under personal or private ownership. However, this pastoral order has recently been weakened by the expansion of crop farming. It is true that this carries constraints; for example, the fields used are only exclusive during the cropping season whereas the rice fields are for exclusive use at all times. Nevertheless, the general trend in the use of the delta is compromising the pastoral areas, with a decrease in wetland grazing land, damage to grazing infrastructure and destruction of the delta ecosystem, especially during drought periods. At the same time, animal husbandry is contributing to the deterioration of grazing land through the increase in the numbers of livestock, whose management is way out of graziers' control. Changes are also taking place in the fisheries. Seasonal control related to the use of specific fishing gear resulting in the dividing of areas and the limiting of the duration of fishing is being replaced by year-round fishing with use of several sets of gear and the establishment of a logic of permanent exclusion from fishing zones. These main occupations are accompanied by forest and hunting activities, with the result that the delta areas are often multifunctional. Each resource in the flood plain is the subject of exploitation that sometimes interferes with other exploitation Systems. These are shown by territorial marking of varying strength and duration. The 'resource areas' correlated with farm holdings are comprehended by law in a specific manner, not in terms of property that can be appropriated but as heritages managed by groups with rights to them.

3These complex relations with the environment in the inner Niger delta are analysed in the framework of a pastoral province, the Wuro Neema leydi. The 27 village communities that make up this province display a mosaic of human groups. The ethnic composition of each village community and its socio-political structure affect its relation with the environment. Although the link between an ethnie group and a natural resource is tending to weaken, the Fulani still award great importance to the burgu wetland grazing areas, especially when the rules of use are not respected for crop farming or even grazing. In contrast, both the Malinke and the Bozo would like control of water for the development of rice growing.

4A survey of 15 percent of the population of Wuro Neema performed on three age ranges of both sexes gave better knowledge of representations of the environment. Knowledge concerning useful trees and plant species with cultural values varies greatly according to ethnic criteria. Conversely, the passing on of knowledge of the natural environment differs according to sex. The notion of practices that are harmful for the environment does exist but as it is not very marked it does not go on to include awareness of ecological responsibility. This may be related to religious beliefs. Whereas nature is filled with religion in animist religions, Islam seems to deconsecrate it. Catastrophes are then ascribed to behaviour that is reprehensible from the moral point of view but not from that of ecology.

5Competition for natural resources takes the form of landholding disputes, a list of which has been drawn up for the Niger delta. Analysis of these conflicts first brought out the main characteristics. In contrast with the common idea, those involved in the disputes often belong to the same ethnic group and covet the same type of resource. The issues and locations of the disputes are often wetland pasture and fields. The disputes listed arose after the colonial period but some have lasted for a long time or resurface. These land disputes used to be settled by the administration but are now examined by the courts, but magistrates can refer to several bodies of law. Except when fishery resources are concerned, traditional law is generally applied but with common law being interpreted to outline norms.

6Beyond these features, disputes result from antagonistic strategies of stakeholders with regard to natural resources. The types of dispute vary according to the resource involved—exclusive family daims to land, lineage or village type claims to fisheries and exclusive management of grazing land at province scale. The aim of exclusive management is put forward for each resource. In addition, a landholding dispute is often the sign of a more general social problem. The analysis of several conflicts reveals their links with social malfunctioning at various scales—the village, the province or the delta. In the context of expansionist practices, attempts by the authorities at maintaining a balance have been aimed above all at grazing areas. 'Conferences on the bourgoutières' have often recommended the organisation of access to delta grazing land, boundary marking, the officialisation of grazing land reserved for sedentary livestock and the management of transhumance arrivais and departures. These conferences are true platforms for expression by the rural world; they have made recommendations but have they been confirmed by the legislature?

7Legal recognition of practices can contribute to the establishment of viable management of natural resources. Intervention by the government of Mali in legal regulation by legislative means is approached in a diachronic manner— before and after decentralisation. Until decentralisation, the legislature in Mali allowed State appropriation of the environment in the form of public property (private and public land) covering practically all the agrarian land, forests and water in the country. This resulted in an absence of landholding security for the population, concerning all natural resources. It is true that land could come under private ownership in several stages, but the procedure was long and expensive. The use of forests was defined restrictively (hunting was forbidden); they were strictly governed, which could lead to a whole series of offences. Centralised State land law was found to be particularly poorly adapted to traditional uses of forests; it depersonalised populations and subjected them to exclusive, repressive rules. The same applied to the fauna with the Hunting Code, which did not allow villagers the right to hunt and established protected areas for the conservation of fauna. Fishing is an important occupation in the delta and was severely hit by the state's appropriation of fisheries, intended to manage fishing instead of the traditional authorities. By controlling fishing gear and instituting a fishing tax, it operated at catch level without taking the landholding aspect into account, with the exception of the notion of protected areas. In fact, local fisheries agreements toned down state rights somewhat by means of village fishing committees. Pastoral resources were not covered by the legislature. A draft Pastoral Code attempted to reconcile traditional practices and State rights by the creation of pastoral or agro-pastoral communities but the project was not completed. The same happened with another project for agro-pastoral units in which management by users' groups was proposed. Both projects planned State control and superimposed an egalitarian System on a hierarchic pastoral reality. As the burgu wetland grazing lands play an essential role in pastoral Systems, regional regulations were instituted to control exploitation, taking common law rights into account, but this legislation was not really applied.

8The administrative decentralisation adopted by the government of Mali in the 1990s applies particularly to the management of natural resources, involving populations in the management of the environment. To what extent does this principle guide recent legislation? According to the forest law of 1995, classified or registered forests depend on the state or decentralised local authorities. The rights of use for the population are still restrictive in these forests, with the same offences as before. The effort made to make populations feel responsible with regard to forests does not exclude the purely repressive aspect of the law. A new law concerning fauna maintains State centralisation, in particular of the right to hunt as the awarding of this is not shared with decentralised authorities. However, the legislature rendered fishing rights in conformity with decentralisation by awarding areas conceded by the State to the decentralised authorities, but the previous structures were not called into question. Legislative innovation concerns the creation of decentralised regional authorities but these do not possess a public natural area; they just perform management by transfer from the State. The 'lineage' character of natural areas is not recognised and the traditional authorities are not involved in their management. The legislature does not therefore draw ail the consequences of decentralisation.

9Thinking of another type of relation between societies and their environment calls into question the state right to appropriate all natural areas. It also calls into question the concept of ownership itself by, in contrast, rehabilitating common law rights to natural resources. An endogenous legal reading of relations to natural resources is not reduced to the right of ownership alone but identifies five types of rights: rights of passage, of taking something, of exploitation, of exclusion and of deliberate management. The first types are seen from a utilitarian viewpoint whereas the last is based on the joint viability of societies and ecosystems. An environmental landholding matrix is then constructed, with the intersecting of the stakeholders that take decisions concerning natural resources and the land areas in the delta. A table shows the identified rights in the Niger delta. This is a reading of local reality.

10Each type of right concerning resources leads to control giving its holder both power and an obligation with regard to the resource. A range of Controls defined as minimal, periodic, specialised, exclusive and deliberate therefore corresponds to the series of rights above. All these environment landholding Controls form a specific legal regime whose basis is different to that of the French Civil Code. Indeed, each level of control applies to an environmental component considered as a heritage common to the group in question. The transition from rights to control thus implies the taking into account of patrimonial logic in relations with the natural environment.

11The traditional common law authorities must be involved as the relays of deliberate management for patrimonial management of the environment to be effective. Two types of area are imbricated in the environment: on the one hand continuous, relatively permanent administrative areas and on the other resource areas that are often discontinuous and unstable in the Sahel environment. Two types of power correspond to this spatial imbrication: political and territorial power and common law powers over resources. We propose to include the local authorities taking action concerning resources at the political level by including them in management committees that would be competent at several scales from rural community to region. In Mali, decentralisation provides an institutional framework suitable for the joint management of environmental problems.

12In Africa, opposition between common law regimes and appropriation has often resulted in the primacy of private or public property rights. For the environment, this principle has resulted in public appropriation of the natural environment but the State, as owner, has not succeeded in assuming its management responsibilities. Rethinking law on the environment therefore involves rethinking the position of the state. Appropriation of the environment by a public power should be replaced by patrimonial power exerted by deliberate management consisting of guiding local stakeholders towards ecological rationalism. Rethinking the role of populations means making them responsible in viable management of their environment through participation in the protection of the latter while conserving its economic interest. The dual ecological and economic importance of the environment is clear in the inner Niger delta. Its multifunctional nature and the instability of its natural resources are in contradiction with exclusive, absolute appropriation. It therefore seems necessary to redefine the rights and duties of the State and of populations with regard to the environment. This project means going beyond the coercive approach to populations, developing a legal regime with a patrimonial theme and finally achieving a consensus to replace the constraints and inequalities of a contract.

© IRD Éditions, 2002

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