Neoliberal conservation and the potential for lawfare: New legal entities and the political ecology of litigation at Dwesa–Cwebe, South Africa

doi:10.1016/j.geoforum.2012.09.012

Geoforum

Volume 44, January 2013, Pages 170-181

https://doi.org/10.1016/j.geoforum.2012.09.012 Get rights and content

Abstract

Scholarship in political ecology on the neoliberalization of conservation has given scarce attention to ways that neoliberalization may foster a turn to law and litigation as the vehicle for political struggle. Drawing on literatures on neoliberal conservation and legal anthropology, the paper illustrates how key features of neoliberal conservation—the constitution of communities as legal entities, downsizing of the state, fragmentation of sovereignty and the formation of socially and economically heterogeneous networks of actors—foster a turn to contract and law as the medium of relationships, conflicts and politics. Recent events around Dwesa–Cwebe Nature Reserve, South Africa, illustrate how the neoliberal reliance on law and legal forms reconfigures the political ecology of conservation: relations between communities, local government, and conservation authorities are newly characterized by recourse to law, while litigation is being used to overturn the governing board of the legal entity (the Dwesa–Cwebe Land Trust) that owns the Nature Reserve and a hotel within the reserve. Increasingly widespread conservation strategies that rely upon formalizing communities as legal entities carry both risks and opportunities, requiring political ecology to engage more closely with legal dimensions of neoliberalization.

Highlights

► Neoliberalization of conservation may foster a turn to law as the medium of political struggle. ► “Rights-based” conservation, land restitution, and titling of communal property present unanticipated risks. ► Constituting communities as legal entities may create vulnerability to antagonistic litigation.

Section snippets

Introduction: an unsettled settlement

This is one of the areas that was identified by the president…[it] is earmarked for rural development and it also falls within the Wild Coast SDI [Spatial Development Initiative]….You are very fortunate, because this means that you will not waste time looking for funds, but will be able to get started immediately and plan what you will do as development is coming your way!
Deputy President Jacob Zuma, speaking at the Dwesa–Cwebe Land Restoration Ceremony, June 17, 2001

Neoliberal conservation and law

“Neoliberalism” is a term that easily risks being reified, ambiguous, polyvalent and imprecise. My approach here follows work that recognizes that neoliberalism is best conceived “less as a thing than as a bundle of processes…of ‘neoliberalization’, rather than neoliberalism in the abstract” (Igoe and Brockington, 2007, p. 436; cf. Castree, 2008a), drawing on diverse and variably mobile techniques of governance which are uneven in their spatial application and articulation with existing

A brief history of Dwesa–Cwebe: from conflict to negotiation, and back

The Dwesa and Cwebe forests surround the Mbashe River as it meets the Indian Ocean, on the southeast coast of South Africa. Between the 1890s and 1930s, the colonial and South African governments collaborated to remove many ancestors of local residents from their homesteads in the grassland within the forests and between the forest and the coast. Over the same period, whites established the Haven Hotel and holiday cottages in the same areas. In the late 1970s, the administration of the black

The potential for lawfare and the future of neoliberal conservation

Early in its history, Dwesa–Cwebe was cited as a model for the resolution of land claims on protected areas in South Africa. It was one of the first, and shares basic features with most contemporaneous and later settlements: the preservation of the conservation status of the land, and the reliance on financial compensation to appease the claimants. Soon after the settlement, Lahiff described the Dwesa–Cwebe claim as “[setting] the standard for [a] likely…series of similar settlements for nature

Acknowledgments

This research was supported by start-up funds from the University of California, Riverside in 2009 and 2010, a S.V. Ciriacy-Wantrup Postdoctoral Fellowship at the University of California, Berkeley, from 2004 to 2006, and grants from the Wenner-Gren Foundation for Anthropological Research (Grant #6329) in 1999 and the Research Institute for the Study of Man in 1998. Thanks are especially due to Kuzile Juza and the late Waphi Siyaleko of Hobeni, Mxolisi Nombona of Cwebe, the other members of the

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Neoliberal conservation and the potential for lawfare: New legal entities and the political ecology of litigation at Dwesa–Cwebe, South Africa

Abstract

Highlights

Section snippets

Introduction: an unsettled settlement

Neoliberal conservation and law

A brief history of Dwesa–Cwebe: from conflict to negotiation, and back

The potential for lawfare and the future of neoliberal conservation

Acknowledgments

World Development

Politics by Other Means: Law in the Struggle against Apartheid, 1980–1994

Conservation and displacement: an overview

Conservation and Society

Introduction: agrarian environments

Transforming Roles but not Reality? Private Sector and Community Involvement in Tourism and Forestry Development on the Wild Coast

Neoliberalizing nature? Market environmentalism in water supply in England and Wales

Land restitution and communal property associations: the Elandskloof case

Land Use Policy

Rules of Law and Laws of Ruling: On the Governance of Law

Capitalism and conservation: the production and reproduction of biodiversity conservation

Antipode

Nature Unbound: Conservation, Capitalism and the Future of Protected Areas

The conservationist mode of production and conservation NGOs in sub-Saharan Africa

Antipode

Contestation, confusion and corruption: market-based land reform in Zambia

Linking neoprotectionism and environmental governance: On the rapidly increasing tensions between actors in the environment-development nexus

Conservation and Society

Seeking ‘telos’ in the ‘transfrontier’? Neoliberalism and the transcending of community conservation in Southern Africa

Environment and Planning A

Rights-based approaches to conservation: an overview of concepts and questions

Neoliberalising nature: the logics of deregulation and reregulation

Environment and Planning A

Neoliberalising nature: processes, effects, and evaluations

Environment and Planning A

Land, Power and Custom: Controversies generated by South Africa’s Communal Land Rights Act

Law and Disorder in the Postcolony

Ethnicity

Reflections on the anthropology of law, governance and sovereignty

Legal claims to culture in and against the market: neoliberalism and the global proliferation of meaningful difference

Law, Culture and the Humanities

Shifting environmental governance in a neoliberal world: US AID for conservation

Antipode

A time of disintegration: The Coeur d’Alene and the Dawes act

The Western Historical Quarterly

The Pleasure of the Crown Anthropology, Law and First Nations

Religion, Race, Rights: Landmarks in the History of Modern Anglo-American Law

Precedent & Possibility: The (Ab)use of Law in South Africa

Deconstructing the stakeholder: a case study from Garig Gunak Barlu National Park, Australia

The International Journal of Biodiversity Science and Management

From subjects to citizens: legalism from below and the homogenisation of the legal sphere

Journal of Legal Pluralism & Unofficial Law

Territories of Difference: Place, Movements, Life

Mutual gains and distributive ideologies in South Africa: Theorizing negotiations between communities and protected areas

Human Ecology

Property, subjection and protected areas: the restitution of Dwesa–Cwebe nature reserves, South Africa

Prospects for redistribution of wealth through land reform in Dwesa–Cwebe

The uses of neoliberalism

Antipode

Global Shadows: Africa in the Neoliberal World Order

Why the haves come out ahead: speculations on the limits of legal change

Law and Society Review

Between Bolivar and bureaucracy: the Mesoamerican biological corridor

Conservation and Society

Disabling Globalization: Places of Power in Post-Apartheid South Africa

The New Imperialism

Neoliberal Environments: False Promises and Unnatural Consequences

The history of the public/private distinction

University of Pennsylvania Law Review

Neoliberal conservation: a brief introduction

Conservation and Society