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Published online by Cambridge University Press: 25 February 2021
If land is divine and ought not be bought or sold,1 then bounded land, that which we term territory2 regardless of its form of being bounded, cannot be bought or sold without divine assent either. It may be defended, nurtured, utilised but not bought or sold. In defence of this is the human right to life and liberty. Were life and liberty to depend on access to land or territory then no hindrance would stand to merit. Theologically,3 the Divine created the land so the land belongs to the Divine.4 Similarly where humans labour (to work) and create (to make or build), such which is created is the property of the human, whether it is manufactured, built, sown. And from these personal properties flow the rights and privileges of personal property: alienation, transfer, purchase.5
I gratefully acknowledge the insightful comments made on an earlier draft by Professor Botterell and an anonymous reviewer.
1. “…from a school boy from Sobantu in South Africa (Lambert 1999, 1). ‘I do not believe people should be allowed to buy and sell land … The land is a gift from God to the People. It is not like a house. A house is made by man’s effort; land is not. That’s why the land should not be for sale. I would not pay even a shilling for it. The land is my blanket. I wear it like my ancestors wore it.’” Admos Chimhowu & Phil Woodhouse, “Customary vs Private Property Rights? Dynamics and Trajectories of Vernacular Land Markets in Sub-Saharan Africa” (2006) 6:3 J Agrarian Change 346 at 348.
2. An articulation of that which can be bounded and controlled by this group as opposed to that group, if we begin with the premise that the term territory indicates some form of possession.
3. Academic discussion around the concept of the Divine, regardless of tradition or faith.
4. Divine and divinity are not delineated in this paper, rather they refer to any being which exists above human capability and may be experienced as spirit-experience, for example Shamanism.
5. All of these are Anglo-American traditions attached to the idea of property. They form the underlying contention of this paper.
6. Who the “other” is has been a point of philosophical interest. It is here used to mean that which is not of “us”, however each of us defines it. In this paper, as the author herself is from the Anglo-American tradition, she uses the term to mean that which is not from the Anglo-American tradition.
7. Used more extensively today with land use mapping and policy decision-making. There is an interesting study by François Waldner et al, “National-scale cropland mapping based on spectral-temporal features and outdated land cover information” (2017) 12:8 e0181911 Public Library of Science ONE, DOI: 10.1371/journal.pone.0181911.
8. For an argument on the benefits of private ownership of resources, see Erika Weinthal & Pauline Jones Luong, “Combating the Resource Curse” (2006) 4:1 Perspectives on Politics 35.
9. A major proponent of market-based land reform and private ownership and the re-invigorator of its application to Africa is Hernando de Soto, The mystery of capital: Why capitalism triumphs in the West and fails everywhere else (Basic Books, 2000).
10. Taylor Brown, “Contestation, confusion and corruption: Market-based land reform in Zambia” in Sandra Every, Marja Spierenburg & Harry Wels, eds, Competing Jurisdictions: Settling Land Claims in Africa (Afrika-Studiencentrum Series, 2005) 79 at 80.
11. This article acknowledges the changing nature of property and the wider and more encompassing notions of what may be considered property under an Anglo-American conception. Considering a diverse and more flexible idea of “property” is progressive and beneficial, but when considered without context is anachronistic. For a current study of the evolution of the idea of property, see Liz Alden Wily, “Collective Land Ownership in the 21st Century: Overview of Global Trends” (2018) 7:2 Land 68, DOI:10.3390/land7020068. The creation of land policy which recognises alternative ontologies may begin with customary law which has been said to be “a near perfect piece of law—a responsive system that is in very practical terms a vantage instrument for economic and social engineering” according to Andrew Chukwuemerie, “The internationalisation of African customary law arbitration” (2006) 14:2 African J Int’l & Comparative L 143 at 167. It can constantly evolve and adapt to its members’ needs and changed circumstances (Discussed in relation to South African customary law in Willem van Genugten, “Protection of Indigenous Peoples on the African Continent: Concepts, Position Seeking, and the Interaction of Legal Systems” (2010) 104:1 AJIL 29-65 at 57-62). Traditional systems of land control, possession, access, and dispute resolution have retained legitimacy for agrarian peoples according again to Chukwuemerie, supra note 11 at 158.
12. Of or relating to the written constitution of a peoples. Whether a constitution is nation-forming and whether the nation-state has semantically the same meaning among indigenous nations and international law is not discussed in this paper.
13. Joel M Ngugi, “Re-Examining the Role of Private Property in Market Democracies: Problematic Ideological Issues Raised by Land Registration” (2004) 25 Mich J Int’l L 467 at 470.
14. Pertaining to the initial state, or underlying ethos of how one is.
15. Pertaining to values.
16. Frances Cleaver, “Reinventing Institutions: Bricolage and the Social Embeddedness of Natural Resource Management” in Tor A Benjaminsen & Christian Lund, eds, Securing Land Rights in Africa (Frank Cass, 2005) 11.
17. Ibid at 28.
18. The debate in Africa around the codifying, or writing down, of titles to land; to “formalise” relations over land and people, for example by a cadastral register.
19. The argument by Block, in criticism of Ostrom, that there are “only four possibilities regarding how mankind can interact with nature. They are, respectively, private ownership, government ownership (socialism), state regulation and control of ostensibly private property…and the commons” misses the idea of digging under the foundations of the concept of property. Regardless of the form given to controlling aspects of nature jointly, the idea that controlled sharing is better than complete exclusion of the common by an individual, or whether private property has morphed sufficiently to incorporate greater public goods aspects or not, the foundation of a single ontological belief remains. Walter E Block, “Review of Ostrom’s Governing the Commons” (2011) 3:21 Libertarian Papers 1 at 1.
20. Andreas Kalyvas, “Popular Sovereignty, Democracy, and the Constituent Power” (2005) 12:2 Constellations 223 at 224, citing the idea of Hans Kelsen, General Theory of Law and State (Harvard University Press, 1945) at 387.
21. I use the argument of Feibleman which places axiology as a subdiscipline of ontology. In Feibleman’s analysis Ontology is the overarching philosophy, under which questions of knowing, valuing, and thinking come. James K Feibleman, Ontology (The Johns Hopkins Press, 1951).
22. Chimhowu & Woodhouse, supra note 1 at 348.
23. John Locke, Second Treatise of Government (Hackett Publishing Company, 1690), ch V.
24. Luka Biong Deng, “Social Capital and Civil War: the Dinka Communities in Sudan’s Civil War” (2010) 109:435 African Affairs 231 at 234.
25. For the sake of fullness, I include the entire quotation: “Moreover, the laws of the African cosmogony do not allow such ownership. Neither the land, nor the sky, nor the sea, the pillars of the universe and shelters of the ancestors, can belong to a man. All the lands together make up the patrimony of the community, having been put at men’s disposal by God, to enable them to subsist, and so that the race can survive.” Kéba M’Baye, “The African Conception of the Law” (1974) 2 Int’l Encyclopedia of Comparative Law 138 at 149.
26. Diana Auret, “The Mhondoro spirits of supratribal significance in the culture of the Shona” (1982) 41:2 African Studies 173.
27. One’s ontological understanding of the Divine.
28. It agrees with de Coulanges that many who postulate theories often do so with their own basic assumptions not articulated, thus “who yield to it [to an idea or theory, for example that property of individual ownership ever existed in Africa prior to colonialization] without being aware that they do so.” Quoted in Donald A Krueckeberg, “Private Property in Africa: Creation Stories of Economy, State, and Culture” (1999) 19:2 J Planning Education Research 176 at 181.
29. Territorial integrity has been considered a central principal of international law, particularly during the 19th century: see a contemporary discussion of the concept in Christian Marxsen, “Territorial Integrity in International Law—Its Concept and Implications for Crimea” (2015) 75:1 Heidelberg J Int’l L 7.
30. The importance of the distinction becomes clear around the issue of deterritorialised identity and consequent claims for deterritorialised sovereignty.
31. This article does not consider the use of “individual” anachronistically. It necessarily considers this to include collectively held private rights.
32. It may have very strict consequences for other rights and responsibilities and may reflect the eligibility to claim certain property interests be considered legally enforceable but does not directly do so.
33. De Soto, supra note 9 at 350-52.
34. Ibid at 360.
35. Rohan Bennett, “Property rights, restrictions and responsibilities: their nature, design and management” (PhD Dissertation, University of Melbourne, 2007) [unpublished] at 4.
36. Ibid at 5.
37. Ibid. Bennett mentions the creation of national parks, emergence of water rights and indigenous rights down to private car parking places. Public rights attempted to constrain the traditional private ownership model and were poorly recognised and designed.
38. The project to incorporate into law a private property regime and thereafter to create certain tenure and title and the institutional providers of such certainty.
39. Rhoda Howard-Hassmann, “Reconsidering the Right to Own Property” (2013) 12:2 J Human Rights 180.
40. Ibid at 189.
41. Ibid at 182.
42. Krueckeberg, supra note 28 at 181.
43. Locke, supra note 23 at section 27. In Chapter V the large omission is the idea of restricted access, the theory apparently operating from the premise that all have equivocal access to be able to pursue his/her right to claim possession and therefore ownership. A thorough discussion of the Two Treatises is beyond the scope of this article, though may be historically interesting as far as a consideration of ontology is concerned; that is, whether alternative ontologies are part of Lockean theory, or could be (and whether therefore humanity has managed to subdue the original intent of what property and/or land relations could be).
44. Ibid at section 47 and 48.
45. Ibid at section 51.
46. AJ van der Walt, “The Modest Systemic Status of Property Rights” (2014) 1 JL Property & Soc’y 15.
47. Ibid at 31, 37, 94.
48. Ibid at 50.
49. Ibid at 41.
50. De Soto, supra note 9.
51. Howard-Hassmann, supra note 39 at 189.
52. Thus, the goods argued for in relation to the formalisation of property have not taken effect. The ontological premise upon which they have been implanted, it is argued here, was not aligned. Values, such as respect for labour, owning personal items, etcetera, if the narrative of African property ownership were constructed differently may well find resonance with Anglo-American thinking. It is not this level of value-attachment that is the concern. Rather, the ontological derivation of the method and means by which one associates with the space around them.
53. Ato Kwamena Onoma, The Politics of Property Rights Institutions in Africa (Cambridge University Press, 2010).
54. Ibid.
55. Ibid at 24-27.
56. Susana Lastarria-Cornhiel, “Impact of privatization on gender and property rights in Africa” (1997) 25:8 World Development 1317 and Chimhowu & Woodhouse, supra note 1.
57. Alexandra Carleton, “Predation and dispossession in Africa: enabling constructive contestation over natural resources” (2014) 32:1 J Contemporary African Stud 56.
58. Brown, supra note 10 at 81.
59. In relation to Zambia, Brown asks: “Why is it that only Zambian elites and foreign investors, and not small-scale commercial or subsistence farmers, have secured title to land? One obvious reason is that few rural villagers are aware of the Land Act and that conversion is a possibility. As will be described below, many chiefs and local government officials are only partially aware of the technicalities of land administration in Zambia. It is hardly surprising, therefore, that subsistence farmers would also be ill informed about land policy.” Brown, supra note 10 at 90.
60. Ngugi, supra note 13 at 485, describes in detail the failure of formalisation in Kenya after 1939.
61. Ibid at 483.
62. In relation to Zambia, in which 94% of land is customarily held. See Brown, supra note 10 at 82.
63. Liz Alden Wily, “Whose Land Is It? Commons and Conflict States: Why the Ownership of the Commons Matters in Making and Keeping Peace” (July 2008) The Rights and Resources Initiative at 15, online at https://rightsandresources.org/publication/whose-land-is-it-commons-and-conflict-states/.
64. Brown, supra note 10 at 90-91, and Genugten, supra note 11 at 33, citing the Report of the African Commission on Human and Peoples’ Rights Working Group of Experts on Indigenous Populations/Communities, noted “the targeted pastoralist and hunter-gatherer communities have only, to a very limited extent, legal titles to their land as their customary laws and regulations are not recognised or respected and as national legislation in many cases does not provide for collective titling of land. Collective tenure is fundamental to most indigenous pastoralist and hunter-gatherer communities, and one of the major requests of indigenous communities is therefore the recognition and protection of collective forms of land tenure.”
65. Brown, supra note 10 at 90-91.
66. Cited in Quentin Gausset, Justin Kenrick & Robert Gibb, “Indigeneity and autochthony: a couple of false twins?” (2011) 19:2 Soc Anthropology 135 at 138.
67. Celestine Nyamu-Musembi, “Breathing Life into Dead Theories about Property Rights: de Soto and Land Relations in Rural Africa” (October 2006) IDS Working Paper 272 Institute of Development Studies at 11, online at https://opendocs.ids.ac.uk/opendocs/handle/20.500.12413/4035.
68. Ngugi, supra note 13 at 486 makes an interesting argument in this regard, citing Duncan Kennedy, A Critique of Adjudication: Fin de Siècle (Harvard University Press, 1997) at 4, that legal discourse and interpretation is structured by ideology. The author interprets this to align with her view that our underlying assumptions frame the way in which we articulate a topic. The author takes Ngugi’s discussion on the mapping of rights, and the difficulties involved with mapping them between legal systems as a discussion aligned with the difficulties of mapping rights between different ontologies. Creating a base for legitimate claims is difficult, or even impossible, when the legitimacy already inherent in one system has no ontological foundation within the incoming system. Furthermore, problematic was the interpretation given by implementers both of the incoming system and the customary system extant. Ngugi mentions the example of a custom of registering land in the male name, as head of the household yet questions whether such a customary norm in fact existed, Ngugi, supra note 13 at 487-89.
69. Krueckeberg, supra note 28 at 177-78.
70. Chimhowu & Woodhouse, supra note 1 at 349-52.
71. Ibid at 352.
72. Krueckeburg, supra note 28 at 177.
73. Tor A Benjaminsen & Christian Lund, “Formalisation and Informalisation of Land and Water Rights in Africa: An Introduction” in Tor A Benjaminsen & Christian Lund, eds, Securing Land Rights in Africa (Frank Cass, 2005) at 1.
74. Krueckeberg, supra note 28 at 177.
75. Chimhowu & Woodhouse, supra note 1 at 352.
76. Ibid at 353 and 356.
77. Dispossession was a direct result of the Kenyan land reform era and brought about the Mau Mau Revolt according to Ngugi, supra note 13 at 499. Land reforms under the Swynnerton Plan which introduced individual land tenure, also created a “landed African gentry that would participate more soundly in intensive and large-scale agriculture thereby creating a stable and conservative middle class to provide a bulwark against nationalism.” Ibid at 500.
78. The author argues that building institutions is anathema to trying to get to the root of the problem of poorly performing markets which are heavily dependent on good government and the way investors in a country believe entitlements are structured.
79. Krueckeberg, supra note 28 at 180, mentions research conducted by the Wisconsin Land Tenure Center that found titling did not provide greater security of interests to landowners/possessors nor did it alter the constructs around buying and selling.
80. Ibid at 181.
81. Van der Walt raises the work of Peñalver and the idea that the utilisation of economic theory in dealing with property institution development avoids the more complicated moral questions around land use. Van der Walt, supra note 46.
82. Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations) [2017] 2 SCR 386 [Ktunaxa].
83. Ethnogeography is a term Kolers borrows from a geography subdiscipline articulated by Blaut. Kolers uses the term to identify “culturally specific conceptions of land.” Avery Kolers, Land, Territory and Justice: a political theory of territory (Cambridge University Press, 2009) at 3; “An ethnogeography is a culturally specific ontology of land and our relationship to it.” (ibid at 59).
84. Ibid at 59. This is essentially the same view as classical economists: see Abiodun Alao, Natural Resources and Conflict in Africa: The Tragedy of Endowment (University of Rochester Press, 2007) at 17.
85. Tom Tietenberg, Environmental Natural Resource Economics, Pearson International Edition, 7th ed (Pearson Education, 2006) at 63.
86. Exclusivity often fails because owners of rights do not always bear all the costs (ibid at 68)—particularly the cost of public goods like environmental preservation or social stability which are externalised. Tietenberg argues that markets are concerned about future profitability (ibid at 140) and that without foresight externalities will eventually impinge future profits. I argue that it depends on the length of the telescope. Owners are interested in securing economic advantage over time but one hundred years in the future, the current owner has no interest in the profitability or productivity of the property; these concerns have been passed to another owner.
87. Thomas Allen, “Commonwealth constitutions and the right not to be deprived of property” (1993) 42:3 ICLQ 523 at 537.
88. Carleton, supra note 57 at 68.
89. Detaching the notion of land here from property which has a semantic connection to ownership and possession.
90. Nyamu-Musembi, supra note 67 at 18-19. For example, the meaning and relationship which was the focus of the Ktunaxa Nation case revolved around inclusion of the Ktunaxa Nations peoples in their spirit world, where a mountain was known as a spirit-home, not simply land to be used, but home and temple. As discussed further below, the interesting aspect of this case was that the need to preserve the mountain could be seen as a way of including Ktunaxa generations to come in the ancestral spiritual beliefs, while in the case their desire to maintain the land was described as being exclusionary to other peoples who wanted, not to revere the mountain, but use it for enjoyment. The balancing of interests here effectively weighed one person’s right of enjoyment and use/exploitation against another’s to pay reverence to the Divine. Social and cultural meanings again are ontological at the root, but may involve social-networks of neighbours who build communities of reliance and interconnection: Lai Ming Lam, “Cultural Perspectives of Land and Livelihood: A Case Study of Shuklaphanta Wildlife Reserve in Far-western Nepal” (2011) 9:4 Conservation & Soc 311 at 312. Further, “relationships between social networks, livelihood and a particular place” are interlocking (ibid at 312).
91. Benjaminsen & Lund, supra note 73.
92. Nyamu-Musembi, supra note 67 at 13.
93. Ibid.
94. Ibid at 14.
95. Intriguingly this sentiment about bearing responsibility for the greater good in what one takes resounds of Lockean theory. See Locke, supra note 23.
96. It is arguable that private property cannot logically exist in Africa, because the Roussean premise for its existence is not found, that is, where there is no social contract (voluntary creation of a body politic through common alienation of natural liberty, in return for mutual allegiance and mutual civilian duty), there is no ability to create a “legal right of property” (Jean-Jacques Rousseau, The Social Contract (1762), translated by Maurice Cranston (Penguin, 1968), Book 1, ch 8). In other words, property only comes into being when society is established, voluntarily. Legal ownership cannot arise without the formation of a legal state. The argument that many African states were imposed (not voluntarily created) implies that there is no legitimate government or authority and so no social contract, created upon the formation of such, exists. It follows that no rights of property per se can exist. Therefore, private property rights cannot exist in Africa. No legitimate authority nor society in the sense of Lockean or Rousseauan theory exists and therefore property, cannot exist. If one is inclined to believe that acceptance of colonial structure has since constituted consent to the idea of the state, the continuation of regimes which allow no contestation from the people still undermines the social contract and raises doubt on the very concept of property held in such a State. Where companies are granted property rights over the land by a government with illegitimate authority these rights are void as no such thing can exist. The legal title of the company is meaningless because there has been no common consent to either the laws governing the land or the government, to create legal title. If it is accepted that no true society, no state, exists, title reverts to the first occupant with possession being the dictator of recognised interests in land and resources (ibid at ch 9). Property entitlements gain legitimacy from the collective from which it seeks to take power, typically a community. In this the author takes that Locke granted legitimacy only to those social contracts from a collective free to choose— that is, whether a contract was granted by the legitimate collective able to actually grant the entitlement. A system imposed or a community forced— for example by virtue of a powerful occupier that recreates the narrative of property relations— cannot afford such legitimacy.
97. Property formalisation has been blamed for facilitating dispossession. Howard Stein & Samantha Cunningham, “Land Grabbing and Formalization in Africa: A Critical Inquiry” (2015) African Studies Centre Working Paper 124, online at https://openaccess.leidenuniv.nl/bitstream/handle/1887/37024/ASC-075287668-3722-01.pdf?sequence=2
98. Rather than trying to re-engineer society: Toulmin, forward to Benjaminsen & Lund, supra note 73. The author finds De Wit’s quotation worth scribing here: “A land policy process therefore never has a beginning and an end. It might have phases, each of which can be identified with specific changes in the society to which it is being applied. But it is a grave mistake to pretend that somehow a new policy can be started from scratch, starting with the “slate wiped clean”…It is more a question of looking at the disassembled pieces of a large jigsaw, and seeing if they can be put together again but with a different result from the picture on the box.” Paul De Wit et al, “Land Policy Development in an African Context: Lessons Learned from Selected Experiences” (October 2009) Land Tenure Working Paper 14, Land Tenure and Management Unit (NRLA) Food and Agriculture Organization of the United Nations.
99. Felix Mukwiza Ndahinda, “Victimization of African Indigenous Peoples: Appraisal of Violations of Collective Rights Under Victimological and International Law Lenses” (2007) 14:1 Int’l J Minority Group Rights 1.
100. Ibid.
101. Lewanika mentions the example of custodianship over land and natural resources to preserve it for future generations recognised in Barotseland (a semi-autonomous region in western Zambia), where the Litunga (king) is the custodian of all land on behalf of the people. Kusiyo Mbikusita Lewanika, “The Traditional Socio-Economic Systems for Monitoring Wetlands and Wetland Natural Resources Utilization and Conservation: The case of the Barotseland, Zambia” (Paper delivered at the Conference on Environmental Monitoring of Tropical and Subtropical Wetlands, Maun, Botswana, 4-6 December 2002), online at http://www.globalwetlands.org/ConferenceBotswana/Botswana2002.htm., 8.
102. Judge Kate O’Regan in MEC for Education: Kwazulu-Natal v Pillay 2008 (1) SA 474 (CC), [2007] 2 ZACC 21 at paras 153-56, cited in Genugten, supra note 11 at 61. In South Sudan, the Southern Sudan Secretariat of Legal and Constitutional Affairs with World Vision International have researched customary laws in Southern Sudan aimed at analyzing and recording different tribal systems, which may be of use in establishing a better system of land interest priorities. See Sara Pantuliano, “The land question: Sudan’s peace nemesis” (December 2007) Humanitarian Policy Group Working Paper at 6, online at https://www.odi.org/publications/3182-land-question-sudans-peace-nemesis.
103. Even where access has been granted to another party by way of easement, for example, there is reduced contestation over that access. I am not speaking in this paper of unsettled access rights, which create layers over singularly held property rights but rather where access is not settled or denied contrary to constitutional articulation.
104. Ktunaxa, supra note 82.
105. Canadian Charter of Rights and Freedoms, s 2(a), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
106. Constitution Act, 1982, s 35, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
107. Ktunaxa, supra note 82 at para 4.
108. Ibid at para 59.
109. Ibid at para 71.
110. Ibid at para 72.
111. Ibid.
112. Kolers, supra note 83.
113. Ktunaxa, supra note 82 at para 55.
114. Ibid at paras 79-81.
115. Ibid at para 55.
116. Ibid at para 80.
117. P Donohoe, YB Garrawurri & R Trudgen, “The place of dogs in traditional culture” (2000), online at Proceedings of AMRRIC ARDS Big Lick Conference http://www.amrric.org/resources/view/159.
118. Rachel Jewkes & Anne Murcott, “Community representatives: representing the ‘community’?” (1998) 46:7 Social Science & Medicine 843.
119. The five qualities that Moroni details are rank, nature, domain, variability, alienability. See Stefano Moroni, “Property as a human right and property as a special title. Rediscussing private ownership of land” (2018) 70 Land Use Policy 273 at 274.
120. Ibid. Constitutional property is the ultimate expression of the idea of property right, as opposed to property title.
121. The author notes that the link between Constitutions and territoriality may see a change in future years as far as claiming territorial identity amongst indigenous diaspora. It is this fragmentation which brings to the fore the need for a better articulation of what role territoriality plays in the political and social framing of rights and responsibilities of a people.
122. In this sense territoriality need not be aligned with a Constitution. Several territories may exist within one country; see Karl H Offen, “The Territorial Turn: Making Black Territories in Pacific Colombia” (2003) 2:1 J Latin American Geography 43 at 44. As far as this may be the case, territoriality is certainly not synonymous with property and may provide a system whereby a centralised system is responsible for governing a territory, but property rights within a territory— where comprised of a unique and homogenous cultural group— may be self-administered. Territories still describe those included and those excluded from making a claim of access to property. This is distinct from federation and ought not to be confused. It is the central government designing a system based on ethnohistorical (as Brazil did in the first years of the twenty-first century: ibid at 47) territoriality, as the “higher” exclusionary right over the more personal property relations.
123. In this case, constitutional property need never be discussed as a necessity, as the rights attached to ownership/belonging to or in a land—as one possible articulation of property— are already protected in the constitutional territoriality. Here, the proponents of property constitutionalism for protecting non-property liberties create an unnecessary duality. Moroni, for example, argues whilst property title is post-constitutional, the right to property may be constitutional (Moroni, supra note 119 at 275). However, there is a question, not discussed in this article, whether the non-property right to liberty, work, and dignity etcetera are in fact more natural derivatives of territory.
124. As argued by the progressive proponents who see property rights as attached to and forming the protection of other social rights like life, liberty and dignity. Van der Walt, supra note 46 at 19-21.
125. The author disagreed with the opposite view—that the rights to property of the private individual or collective ought to be protected in a Constitution—as articulated by BH Siegan, “Constitutional protection of property and economic rights” (1992) 29:2 San Diego L Rev 161 at 168. In Siegan’s argument, both property and economic rights ought to be protected in a Constitution, which suggests Siegan’s view that these are distinct rights and that rights of contract and work are not derivative of property rights.
126. Even in this instance the Constitution maintains its exclusionary capability in an equally important sense as to who can claim attachment to an identity. Where the territory claimed either is not occupied by those peoples at present or if the people are a diaspora.
127. Aligning with the International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171, art 1(2), Can TS 1976 No 47 (entered into force 23 March 1976) [ICCPR].
128. See Miodrag A Jovanović, “Recognizing Minority Identities through Collective Rights” (2005) 27:2 Hum Rts Q 625 at 627 for a list of various political concepts which surround the debate on multiculturalism and Nicole Topperwien, Nation State and Normative Diversity (Institut du Fédéralisme Fribourg Suisse, 2001).
129. I am concurring with the view of van der Walt, supra note 46 at 35, that “a generalization that would abstractly classify property rights as systemically central to the constitutional order is too broad to be meaningful.” Van der Walt’s comprehensive analysis of the virtue of including property rights within a constitutional framework, as primarily responsible for safeguarding non-property rights, grants preference to the possibility of a Bill of Rights, or even the judicial preference to ex officio protect certain personal liberties outside of the property concept.
130. Ibid at section 50. The distinction between property and possession has a long history, mentioned by Rousseau, supra note 96 at ch 9. Yet the synonymity of the property concept with other concepts such as belonging and possession has made the concept abstruse. What is required for a clearer understanding of our relationship to the land and the finite resources which lie both on and within it, is a disentangling or separating of the concept of property from other phrases in which new land and resource relationships can be based and the dismantling of the discourses based on them. Possession and use do not have to imply property even within the Anglo-American ethnogeography. In this vein, possession of land in the sense that only certain peoples are morally able to possess certain determined land, makes this Lockean statement appear a grounding for territoriality. Given Locke’s predisposition to religious and moral foundation for his theory on property and its relations, and the lack of mention of access one must draw inference from other places. In particular, Chapter V of the Second Treatise refers to America in contrast to England which may, considered within the context of the Chapter alone, be grounds for granting access based on belonger-status.
131. Krueckeberg, supra note 28 at 178. Krueckeberg discusses the role of colonial formulation of different “creation narratives” as justification for the ways in which occupiers made it legitimate in the eyes of their own culture, to take land (or territory) away from African communities for example, by vesting control of land in Chiefs and denying the existence of private property.
132. Ibid.
133. A simplistic example is one’s continual connection to a homeland that one has not set foot on for many years. The connection still exists although the physical connection is not there. Indigenous claims of sovereignty, absent a territorial component, demonstrate something of a continuing form of ontology that rests with a space and forms part of an identity, but which has nothing to do with the legal codification of property relations.
134. Southern African Regional Poverty Network (SARPN) in 2006 Final Declaration: “Land, Territory and Dignity” Forum, ALAI, América Latina en Movimiento, 6 Mar 2006 accessed at https://sarpn.org/documents/d0001933/index.php 9 July 2020.
135. In June 2006, the UN Human Rights Council adopted the draft Declaration on the Rights of Indigenous Peoples. See Declaration on the Rights of Indigenous Peoples, GA Res A/RES/61/295, UNGAOR, 61st Sess, Supp No 53, (2007), 1. The Declaration included the right to maintain distinctive spiritual ties with traditionally occupied and used lands. Genugten, supra note 11 at 34-35. It has never achieved consensus and debate has stalled with African countries arguing against the protection of indigenous rights as problematic to territorial integrity and the ownership of natural resources. Genugten, supra note 11 at 35-36.
136. Ibid.
137. Such as Global Witness, Human Rights Watch and RAID, all of whom have released many reports aimed at bringing land access issues in central Africa to the fore. For example, “Sudan, Oil, and Human Rights” (2003), online at Human Rights Watch www.hrw.org/reports/2003/sudan1103/8.htm [perma.cc/D4XM-AUHG].
138. H Kwasi Prempeh, “Africa’s ‘constitutionalism revival’: false start or new dawn?” (2007) 5:3 Int’l J Constitutional L 469 at 489.
139. Ibid at 490. See also the response to an article by Jackie Kemp, “Mining giants continue plundering Billions of Dollars from Zambia” (30 September 2010), online at Zambia Watchdog www.zambiawatchdog.com/mining-giants-continue-plundering-billions-of-dollars-from-zambia/ [perma.cc/6JWB-29GE].
140. The latter where a national court is unable or unwilling and there is a moral and legal imperative under international law to do so.
141. Liz Alden Wily, “Reconstructing the African Commons: a review of the handling of common property in Eastern and Southern Africa” (Paper delivered at the Eighth Biennial Conference of the International Association for the Study of Common Property, Bloomington, Indiana, 29 May-4 June 2000) (2001) 48:1 Africa Today 77 at 99.
142. The view that wealth created on African soil was extracted from African peoples received support from members of the European elite in colonial West Africa. See Peter Thomas Bauer, West African Trade: A Study of Competition, Oligopoly and Monopoly in a Changing Economy (Cambridge University Press, 1954) at 9.
143. Such interests should be codified in the constitution in order to be effectively enforced or defended. Legitimation and enforcement of the right is synonymous to Lund’s command (where one has rights over a resource) and certainty (the practical assurance that these rights can be used) theory: that a person requires both over resources. See Christian Lund, Rie Odgaard & Espen Sjaastad, “Land Rights and Land Conflicts in Africa: A review of issues and experiences” (June 2006) Danish Institute for International Studies at 18, online at https://www.diis.dk/node/18647.
144. John Agnew, “The territorial trap: The geographical assumptions of international relations theory” (1994) 1:1 Rev Int Polit Econ 53.
145. Paul Vandenberg, “Risk, Ethnicity and Property Rights: Towards a Political Economy of Africa’s Institutions” (1998) Working Paper Series No 84, Department of Economics, School of Oriental and African Studies, University of London at 8 and Carleton, supra note 57 at 71. In this sense, the concept is closer to the ideal of democratic land governance where multiple actors vie to control access to and control over land, in consideration of those landless. Saturnino M Borras (Jr) & Jennifer C Franco, “Democratic Land Governance and some Policy recommendations” (2008) Discussion Paper 1, Oslo Governance Centre, UNDP at 23.
146. The breadth of this concept does not even touch on Moroni’s “general right to hold private property” let alone the specific property titles.” Moroni, supra note 119 at 274.
147. Changing embedded power structures and associated bargaining positions is important for states in Africa to resurrect their function as regulators of national natural wealth and, in so doing, become legitimate and accountable to their peoples. States who regulate resurrect their function as contestants in the balance of power, removing the notion that international companies are expected to act in the interests of the host state, and the host state itself can act for its own peoples’ interest. Rather than attempting to incentivise foreign extractors to hold an obligation to a host states’ peoples, which may be antithetical to the shareholder or out-of-country investor interest, the State is responsible for legal abidance. The process for resolving competing territorial claims need not be purely litigative but may include alternative dispute resolution means where “[a]gencies are needed which can ascertain the legitimacy of claims, and then address them without being confined to a legalistic, adversarial, either/or solution.” Christian Lund, ed, Development and Rights: Negotiating Justice in Changing Societies (Frank Cass, 1999) at 46-47.
148. Carleton, supra note 57 at 71-72.
149. Perhaps using the criteria of plenitude as Kolers suggests: Kolers, supra note 83.
150. As suggested by Jean-Pierre Chauveau and Paul Richards, “West African Insurgencies in Agrarian Perspective: Cote d’Ivoire and Sierra Leone Compared” (2008) 8:4 J Agrarian Change 515 at 547.
151. Kolers, supra note 83 at 28.
152. Saskia Sassen, “When Territory Deborders Territoriality” (2013) 1:1 Territory, Politics, Governance 21.
153. Kolers, supra note 83 at 62, 67, 98 and Carleton, supra note 57 at 70.
154. Ibid at 67 and 97.
155. Kolers, supra note 83. Autochthony, broadly speaking, describes belonging and those who claim such attachment are autochthones. Autochthonous attachment to land carries moral weight and sits within a broader understanding, different to the Anglo-American conception of land as an economic potentiality, that certain people belong to the land. Autochthonous people may be aligned with what Ramaga’s minority on a piece of land which has undergone invasion, but this— the true autochthone— is not central to this paper. Under Kolerian theory, an autochthonous group must prove that the land holds a certain quantum of attachment. Autochthonous groups may have valid territoriality only where their patterns of land use fulfil a plenitude criterion: where they are able to demonstrate the fullness of the land according to their ontological beliefs in a juridical territory. Ibid at 5 and 151. Se also Philip Vuciri Ramaga, “The Group Concept in Minority Protection” (1993) 15:3 Hum Rts Q 575.