Conservation of biodiversity and grazing rights

Abstract

Abstract provided by author

This paper examines the allocation of land use rights under customary law by the traditional leader and Authority in the Ovitoto area how this impacts the use of natural resources and whether there exist any knowledge on their preservation

Namibia as a signatory to the Biological diversity Convention is under an obligations to provide for the protection of species and ecosystems that warrant national protection; the sustainable use of indigenous biological resources; the fair and equitable sharing of benefits arising from bio-prospecting involving indigenous biological resources. Further the objectives of this Convention, are the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding

This paper operates from the assumption that traditional communities understood as socially defined societal entities with a distinct sub-statal structure of governance known as traditional governance and which follows legitimising strategies that are guided by the respective traditions,possesa repertoire of norms be it legal or mere social, suitable for the protection of biodiversity. Further the assumption that traditional communities also posses knowledge understood as a comprehensive code of not necessarily traditional, i.e. ancient information maintained and administered by the community in accordance with accepted rules about the societal value of biodiversity and thus the need to protect biodiversity against non-sustainable external and internal exploitation. Recognising further that the said traditional knowledge entails the potential to be transformed into societally efficient norms; and the eventual assumption that the normative mechanisms administered by the traditional communities have a more sustainable impact on the protection of biodiversity than concurrent norms of the state administered by agents of the state

The described focus finds support in the legal system of Namibia, which, on the one hand expects state policy (so the Constitution of Namibia), as well as traditional authorities (so the Traditional Leaders Act) to protect environment,ecosystem and natural resources. On the other hand, the Traditional Authorities Act makes it the task of traditional authorities to "uphold, promote, protect and preserve the culture, and the traditional values" of the community it is in charge of and also to make customary law"

The approach finds additional support in the international dabate about traditional knowledge and its protection. It was the fact finding mission of the world Intellectual Property Organization (WIPO) that highlighted the importance of customary law as an instrument to protect traditional knowledge. Compared to the conventional (national and international) intellectual property law, customary law appears to as the law to be much closer to the very peculiarities of traditional knowledge. Customary law has the capacity to accommodate what is special to traditional knowledge: its grounding in tradition thus not focussing on being novel and its being bound in a societal network, thus different from highly individualised and market-oriented modern intellectual property rights.