Legal governance of the commons in promoting social ecological resilience in transfrontier conservation areas in South Africa

Abstract

Transfrontier conservation Areas (hereafter TFCAs) are defined as areas or components of large ecological regions that straddle the boundaries of two or more countries, encompassing one or more protected areas, as well as multiple resource use areas. This study discusses the South African side of three selected TFCAs namely the Kgalagadi, the Greater Mapungubwe and the Great Limpopo. Within the South African side of these TFCAs, there are Contract Parks, which are parcels of land that are owned by local community groups and private entities in the area. The Contract Parks are as a result of contractual agreements to jointly manage the land between the government through its representative South African National Parks and the land owners. The communities in the Contract Parks are reportedly experiencing various challenges. The Contract Parks within the TFCAs can be regarded as commons as they consist of a broad set of resources, natural and cultural that many people share. The term commons usually refers to a common-pool resource that is managed by a defined community, based on rules devised from their customs. The communities within these commons are facing challenges in relation to the limited recognition of local community members of the possible contribution they can make in governing the commons, human-wildlife conflict, and climate change impacts in the form floods and droughts which have an impact on natural resources within these areas. The TFCAs in terms of which the commons are located, as social-ecological systems consist of areas in which human beings and nature interact. The actions of the community, as resource users may therefore have an impact on whether or not social-ecological resilience within the TFCAs is enabled. Social-ecological resilience refers to the capacity of a linked social-ecological system to adapt, absorb and transform in the face of disturbance and still maintain functions through the cooperation of all resource stakeholders including local communities. The link between TFCAs as commons and as a social-ecological system may necessitate a different form of governance that was initially anticipated when the TFCAs were established. This study will determine how adaptive governance links to social-ecological resilience. This is done by analysing the legal system governing the

commons in the selected TFCAs which includes management documents for the commons, park management plans, AU and SADC law and South African law and policies. To determine whether this legal system recognises the commons contains provisions recognising social-ecological resilience and adaptive governance. It is provided that the AU and SADC law do not provide for a commons as such, but contain provisions within them that South African law can apply to the commons. Further it is gathered that the South African law and management plans recognise provisions that apply to the commons and social-ecological resilience and adaptive governance. However, these provisions are found fragmented across the law. For this reason, the study‘s principal recommendation is the amendment of NEMPAA which is the main legislation that applies to the South African side which contains the commons, to have clear provisions recognising adaptive governance with respect to the commons.