This section of the module provides a historical background to the systemic exclusion of IPLCs from conservation and protected areas. There are long-standing land and natural resource conflicts that affect modern conservation areas and practises. Conservation is linked to the restrictions on humans and their actions in places where specific biodiversity is to be conserved (Agrawal and Redford 2009). IPLCs lost land and natural resource user rights - including hunting rights - as well as access to cultural and ancestral sites, particularly during the colonial period from the early 16th to the 20th century. They were often evicted from their land to make space for the new settler economies, which included the reservation of land and forests that was exclusively earmarked for wildlife conservation or hunting by the elite. According to Dowie (2009), 14 million people are estimated to have been evicted from their land in Africa during the colonial period. Protected areas were designed to provide a sanctuary in which certain species of wildlife could prosper, free from all human interference (Carruthers 1993). Conservation-benefits schemes and associated income became inequitable, privileging economic and political elites at the time. While the powerful and connected strata of colonial society benefited from the conservation economy, local communities bore most of the costs (see section on human wildlife conflict as an example) and only few found sustainable employment in or near protected areas. Conservation and nature management became tools for economic and social exclusion of IPLCs who, being grouped in communities, had no land ownership and no land rights. Conservation also became a tool for colonial governments to exert administrative control over remote areas (Dlamini 2020). Even today, conservation policies have been identified as one of the main threats to indigenous cultures (Dowie 2009). It is important to note that there has been a large spill-over effect of the colonial period into the post-colonial era. Colonial conservation practices such as land grabs and exclusionary institutions still have a lingering effect on IPLCs in many parts of the world. For example, India still relies on the Forest Act of 1927, albeit with a few amendments (see box below).
This section explains the origins of the wildlife crime narrative that turns local people from ‘hunters’ into ‘poachers.’ In the process of colonization, IPLCs lost property and hunting rights, and systemic exploitation was instituted by colonial rulers. The scales tipped towards overexploitation of the still-abundant wildlife shortly after the European colonizers arrived in many parts of the world, including Africa, South America and Asia. Colonial settlers often introduced firearms, unsustainable agricultural practices and access to overseas markets. Ultimately, the increasing commodification of wildlife led to its overexploitation (Carruthers 1988). The early colonial settlers survived through hunting, which provided not only income but also allowed the settlers to avoid slaughtering their own livestock. Settlers often employed the services of locals, relying on their tracking skills (Beinart 2003). Although local people and colonial settlers both contributed to the decimation of wildlife numbers, colonial regulators often considered local people and their cultural heritage as intrusive and destructive and chose to preserve what was left of the “wilderness” without local influences (Meskell 2012: 117).
Colonial-era laws and regulations were employed to explicitly criminalize ‘poaching,’ an act that was associated with IPLCs who often used hunting and fishing as means of survival and livelihoods. Meanwhile colonial settlers were free to carry on with ‘hunting.’ The notions of white hunter versus black poacher still animates stereotypes to this day in Africa (Steinhart 2006). As an example, the first colonial administrator of South Africa, Jan van Riebeeck, decreed the first anti-poaching law a mere five years after landing at the Cape of Good Hope, delineating hunting restrictions in the area of the Cape colony. According to Roman Dutch law, wild animals had the status of res nullius. According to this legal principle, whoever captured or killed a wild animal owned the animal, given that they were in possession of the right permits.The hunting or harvesting of wild animals would therefore not amount to theft, and once captured or killed, the wild animal remained the property of the hunter or captor (Couzens 2003). The objective of van Riebeeck’s Placaat of 1657, however, was to reign in the hunting by indigenous people and slaves. Subsequent laws further delineated who was allowed to hunt and who was proscribed from doing so. Annual “closed seasons” were introduced, during which the hunting of certain species was proscribed and the hippopotamus, elephant and bontebok were declared royal game, for which a special hunting permit was required.
Exclusionary legislation and policies are key to understanding how IPLCs were dispossessed, marginalized and excluded from forest governance, management and benefit/revenue sharing in India and how old legislation continues to frame modern conservation policies and practices.
Major consolidation of forest control commenced during the times of the British colonial regime, which ruled India from 1858 to 1947. The British diverted timber and forest products to meet the economic needs of the British Empire. Following independence in 1947, policies governing forests continued to promote state control and power in order to advance conservation and economic development (Lee and Wolf 2018). State-protected forests were maintained and expanded, and people living in these forests came to be seen as invaders with their customary rights left unsettled or outright denied (Sundar 2012).
The Indian Forest Act of 1927 aimed to regulate the supply and duty on timber and other forest products. The 1927 Act, and its predecessor from 1878, sought to consolidate and reserve areas with forest cover or significant wildlife, to regulate movement and transit of forest produce, and levy duty on timber and other forest produce. Once a reserved forest (the most restricted form of forest) has been declared, a Forest Settlement Officer is appointed to inquire into and determine the existence of rights of people in specific areas demarcated as reserved forests. While the procedure for settlement of rights was provided under the 1927 Act, such procedures were seldom followed through or only in communities that were powerful or influential (Rajagopal 2019). Many communities who had been living in the forests for many generations faced insecurity, harassment, and evictions following the enactment of the 1927 Act.
There are some similarities and continuities between colonial-era and post-colonial legislation. Policies such as the Wildlife Protection Act of 1972 and the Forest Conservation Act of 1980 further entrenched displacements and restrictions on local people by establishing “human-free wilderness zones” owned and managed by Forest Departments (Lee and Wolf 2018). The National Forest Policy of 1988 indicated a shift in the Indian government’s forest management practices, however. The emphasis was on conservation, restoration and sustainable utilisation. The relationship between forests and forest-dwelling communities was formally recognized and important objectives, such as meeting forest dwellers’ requirements for fuel-wood, fodder and minor forest produce, were incorporated. The Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Rights) Act (more commonly referred to as the Forest Rights Act or FRA) was enacted in 2006. It was enacted to protect the rights of the forest dwelling communities and to address the historical injustices and insecurities; however, it has been argued that the implementation of FRA, “especially in Protected Areas has been negligible and tardy” (Fenari and Broome 2017: 1). The FRA recognizes individual rights of local people regarding forest areas, if they can prove occupation before December 13, 2005. According to scientific studies and official records, a large number of claims of adivasis (forest dwellers) have been rejected, with substantial variation across states in India (Lee and Wolf 2018).
Protected areas were created to conserve biodiversity and halt the decimation of wildlife numbers. Nevertheless, the process of establishing national parks and other protected areas was often fraught with political, economic and social conflict. There were different trajectories in different parts of the world, such as the marked philosophical, institutional and regulatory differences underpinning the establishment of protected areas in Latin America compared to North America. The protectionist model was exported to Europe’s colonies in the southern hemisphere (compare with section on conservation paradigms). Many national parks and protected areas were founded in the context of colonial subjugation, economic deprivation, and systematic oppression of indigenous peoples. The creation of national parks and other protected areas became intimately linked to the greater colonial project. The associated structural and physical violence of colonial rule affected all aspects of local people’s lives and livelihood strategies. For example, IPLCs were frequently dehumanized and declared ‘premodern’, ‘primitive’ or ‘uncivilized’ by the colonizers, who often applied brutal force to gain power, territory and extract natural resources from the new territories. Moreover, the notion of terra nullius legitimized not only the expansion of colonial settlements but also provided the justification for the declaration of national parks and other protected areas. Historically, so-called fortress conservation – a conservation paradigm whereby wildlife conservation is deemed possible only when wildlife and communities are kept apart with physical barriers such as game-proof fences or walls – has built not only physical but also metaphorical barriers between conservation actors and the IPLCs. The practice of keeping IPLCs separate from protected areas continues today in some parts of the world.
Kaziranga National Park (KNP) is described by UNESCO as one of the few remaining ‘unmodified’ areas in Eastern India ‘undisturbed by a human presence.’ In 1905, Kaziranga was established as a forestry reserve, then in 1916 it became game sanctuary. In 1974, KNP was declared a national park and attained UNESCO world heritage site status in 1985 (Bhaumik 2005). In the official version, the creation of the forest reserve and game sanctuary is attributed to two British colonialists, Lord and Lady Curzon; Lady Curzon convinced her husband, the Viceroy of India, to take measures to protect the one-horned rhinoceros. KNP receives the highest legal protection under the provisions of the Indian Wildlife (Protection) Act of 1972, Indian Forest Act of 1927 and the Assam Forest Regulation of 1891. The Park has successfully protected and increased population numbers of the one-horned Indian rhino. It was also declared a tiger reserve in 2007. Park management has identified rhino poaching, riverbank erosion, invasive species, tourism pressure, heavy highway traffic and livestock grazing as key threats to the KNP.
The narrative of conservation successes detracts, however, from the “complex interplay of the Park’s socio-political dynamics” (Saikia 2009: 114). The successful conservation narrative, which culminated in the Park’s declaration as a UNESCO world heritage site, has been attributed to the “strict vigilance on the territorial sanctity of the Park” which includes shoot-on-sight orders for trespassers (Saikia 2009: 114). KNP is a typical example of fortress conservation, a model based on the belief that biodiversity protection is best achieved by creating protected areas “where ecosystems can function in isolation from human disturbance” (Doolittle 2007).
IPLCs are excluded from Park governance, management and benefits. Park rangers ensure that no trespassing is taking place, and only tourism and compatible uses are allowed. In 2020, it was announced that more than 3000 hectares of forest land would be added to the Kaziranga National Park and Tiger Reserve, leaving many communities in the vicinity of the Park worried about eviction (Dutta 2020a).
Although protected areas like KNP portray the image of ‘unmodified’ and ‘undisturbed’ by human presence, many of these lands are inhabited. In India, approximately 4.3 million people live in and around Protected Areas (Kalpavriksh and Fanari 2020). A recent study shows that between 1999 and 2019, some 13,445 families were displaced from the 26 Protected Areas in India. (Kalpavriksh and Fanari 2020). Although the numbers of rhinos and tigers may have increased in the KNP, IPLCs bore the brunt of the costs, which include repression and reduced natural resource user rights (Environmental Atlas 2017).
Kahuzi-Biega National Park is another example of fortress-style conservation. The protected area is located near Bukavu town in eastern Democratic Republic of Congo, near the western bank of Lake Kivu and the Rwandan border. When Kahuzi-Biega National Park was established in the 1970s, an estimated 6000 Batwa people were evicted from the land that became the Park (Lang 2020). Batwa people are a forest-dwelling indigenous peoples who are described “as one of the most marginalised of all minorities in the [African] Great Lakes region” (Dominguez and Luoma 2020: 8). Prior to their eviction, the forest provided the Batwa with food, medicine and fuel. The land was also seen as the Batwa’s sacred heritage, forming part of their spiritual and cultural belief systems (Dominguez and Luoma 2020). After living in conditions of extreme poverty for more than four decades, Batwa communities made several overtures to the Congolese government to allow them to return home or be relocated to land similar to that from which they had been evicted.
The Batwa receive no revenue from tourism or conservation efforts, and risk high fines or violence when they return to the forest to hunt, gather herbs or wood (Dominguez and Luoma 2020). This was evidenced by a case in 2017 when a Batwa boy was killed, and his father injured, by eco-guards who found them gathering medicinal herbs in the Park (Lang 2017). Several Batwa families decided to return to the Park in 2018, which has led to regular confrontations between the Batwa and the park rangers (WRM Bulletin 2020). In early 2020 these confrontations escalated, and eight Batwa community members were arrested, convicted and handed lengthy prison sentences. The charges included “conspiracy, illegal possession of firearms, associating with criminals, and malicious destruction of the park” (IFE 2020). Six men were each given 15 years in prison and $5000 fines, while two women were sentenced to one-year prison sentences (IFE 2020).
In 2015, Canada committed to “2020 Biodiversity Goals and Targets for Canada.” Target 1 aims to conserve “at least 17 percent of terrestrial areas and inland water, and 10 percent of coastal and marine areas, (…) through networks of protected areas and other effective area-based conservation measures” by 2020. Canada’s sixth National Report to the Convention on Biological Diversity in 2018 stated that Canada was on track to achieve its target of conserving 10 percent of coastal and marine areas; however, progress to conserve at least 17 percent of terrestrial areas has been slower. In December 2020, it was announced that the province of Quebec had reached its terrestrial commitment, making it the second province after British Columbia to do so
It has been argued that it is impossible to achieve these Goals without the involvement of Indigenous groups, whose lands overlap with many of the areas that have high conservation value (Artelle et al. 2019). In Canada, “conservation is increasingly guided by the development of “two-way” (Indigenous and western-scientific) approaches to land, water and sea management” (EGM 2019 Concept Note), although this has not always been the case.
The history of conservation in Canada has been blemished by exclusion and displacement of Indigenous Peoples. As elsewhere around the world, the establishment of protected areas was based on the idea of pristine wilderness (Dinneen 2020) and aesthetic appeal (Last 2020). Some have argued that fortress-style conservation still persists in Canada, where pristine wilderness is seen as “the ‘pinnacle of conservation goals’ erasing ‘the way that hundreds of generations of Indigenous people have co-evolved with their homeland” (Housty quoted in Dinneen 2020). Although conservation in Canada has moved away from creating parks based on ‘aesthetic appeal,’ as was the case of first national park at Banff (see Box), to more of a “science-involved process” (Moola quoted in Last 2020), this approach still continues “to leave out an instrumental part of the ecosystem: Indigenous land users” (Last 2020).
Banff National Park is the oldest national park in Canada. It is described as a place where “Rocky Mountain peaks, turquoise glacial lakes, a picture-perfect mountain town and village, abundant wildlife and scenic drives” come together (Parks Canada 2020). Yet, visitors will not find Indigenous Peoples who used to reside and hunt within the boundaries of the Park (Hamilton 2017). Banff has been described as having “a horrible history of forcing folk out” (Artelle in Wood 2019). Indigenous Peoples were forbidden to hunt in Banff National Park soon after its establishment in 1887, and officials intensified enforcement of these prohibitions. At the same time, Indigenous Peoples were excluded from provincial and city parks across Canada. Curiously, these prohibitions coincided with allowances being made for permanent human settlement inside national parks. For example, the number of permanent residents in Banff went from 650 to 2000 from 1887 to 1911(Binnema and Niemi 2006: 725).
In Canada, Indigenous Peoples were excluded from the national parks because of the interest in preserving game (rather than wildlife), sport hunting and tourism (Binnema and Niemi 2006). George Stewart, Banff National Park’s first superintendent, tried to justify the exclusion of Indigenous Peoples in his first annual report by claiming: “Their destruction of the game and depredations among the ornamental trees make their too frequent visits to the Park a matter of great concern” (quoted in Binnema and Niemi 2006: 729). The Indigenous who lived in the Park area were not the only Indigenous Peoples who were displaced to create national parks. In 1936, members of the Keeseekoowenin Ojibwa band were expelled from a fishing station that was located in the territory of the recently-created Riding Mountain National Park in Manitoba, and as they left, park wardens set alight their houses to ensure that they did not return (Hamilton 2017).
Frequently referred to by the pejorative concept of ‘poaching’, illegal wildlife hunting refers to the harvesting, catching, extraction or killing of wildlife that is not authorized by the state or private owners of wildlife. Duffy and colleagues (2016) point to the importance of context: the shooting of wildlife may be illegal in a protected area, but once the wild animal crosses into communal or private land, killing it may not only be legal, but life-saving.
Hübschle’s fieldwork (Hübschle 2016, 2017) sheds light on the issue of contested illegality. Interviews she conducted during the course of her research on the illegal rhino horn economy noted that many rural hunters legitimized bushmeat poaching in protected areas by putting forth cultural and economic justice reasons for their offences. In their eyes, hunting was as much a rite of passage as it was an expression of cultural conventions, practices and traditions which are not recognized by most modern law-makers and laws. Others rejected the label of illegality, arguing that hunting was not an illegal activity, as they were hunting on land that used to belong to them but had been taken away by colonial settlers, the state or private investors. Game farmers and wildlife professionals legitimized breaking the law or exploiting regulatory loopholes by criticizing the rule-makers, whom they saw as illegitimate rulers who were overreaching. They also critiqued the rules, per se, in terms of fairness and impact on conservation and their own economic objectives. Meanwhile, traders and consumers of illegally harvested wildlife were often aware of the illegality attached to their activities, but the prohibitions lacked legitimacy and they saw that it was socially acceptable to break the rules.
Scholars have long looked at the interface between legality and illegality and the blurred boundaries between what is considered legal or illegal, licit or illicit, and legitimate or illegitimate (Heyman 2013, Heyman and Smart 1999, Van Schendel and Abraham 2005, Hall 2013). Moreover, such boundaries, while situated in time and space, are also geographically, socio- politically, economically, and culturally mediated; the processes of delimiting these boundaries differentially impact social groups along axes of race, gender, caste and class. The production and regulation of these boundaries affect and transform the (natural) environments (and nonhuman actors) that mediate their possibilities as licit or illicit activities.
Most scholars rely on the state as their analytical point of departure when studying legislative and regulatory frameworks and their impacts. While the state delineates what it considers as legal or illegal, there may be a disconnect between the state and society regarding such legal definitions, their interpretation, and the legitimacy of such rules. Both agents of the state and members of society might flout some rules. Once an economic exchange moves beyond the political boundaries of the state (the exchange may happen in several different states or none at all, such as in virtual marketplaces), issues of jurisdiction muddy the waters. Moreover, the constructed and fixed dichotomies of legal/illegal or state-approved/forbidden ignore how illegal, informal and grey economic practices are frequently part of our daily lives (Van Schendel and Abraham 2005: 4-6). While a formal political authority may have criminalized (declared as “illegal”) an activity at some point in time, actors may not agree with this label.
The stated illegality of any activity may be subject to normative contestation, cultural sanctioning or social acceptance. In today’s digital world, marketing companies, powerful brands and influencers may sway our way of seeing the world. People from different walks of life, social strata or cultural and national backgrounds assign cultural frames with moral normative meanings that affect the legitimacy or illegitimacy of economic exchanges, the goods or services to be exchanged, the act of producing or exchanging the goods or services, the actor constellations involved in any segment of the market exchange or the impact of the economic action upon broader society, the environment or future generations.
Regulatory determinations outlawing an activity may also differ across jurisdictions and time, offering moral windfalls to actors. The economic exchange for certain goods – such as rhino horn and ivory tusks – was legal and legitimate until international regulators declared otherwise. National regulators have to transpose international decisions into national laws. Diffusion of the changed legal status along the supply chain may take time. In an ideal situation, the public and the constituents most affected by new rules pertaining to legality or illegality of an economic exchange should be consulted throughout the negotiation, drafting and implementation processes. In reality, the process of making something illegal is usually informed by social and cultural biases that reflect the preferences of rule-makers, elite formations and powerful economic interests (Heyman and Smart 1999: 203). The state, regulatory authorities and law enforcement agencies play a significant role in determining legal rules and norms pertaining to the legality or illegality of an economic exchange. Lobbyists and sponsors of legal rules and norms are often linked to economic elites or corporations. The influence of professional knowledge, scientific insights and disciplinary regimes is likewise not to be discounted in the process of legalization or illegalization. Still, the existence of a strong legal framework does not necessarily result in the reduction of wildlife trafficking. India is a case in point, which has a rather stringent legal framework through the Wildlife Protection Act of 1972, but these laws are poorly communicated and implemented.
What happens in scenarios where international actors (such as a multi-lateral treaty organization) impose a ban that lacks legitimacy at the local level? The hunting of endangered wildlife, for example, is illegal in range countries whereas trade hovers in a grey zone between legality and illegality, and consumption is socially legitimate in consumer countries. Noteworthy is the partial ban of the trade in rhino horn; the sale of live rhinos and trophy hunting of white rhinos is allowed in a few jurisdictions while a full trade ban applies elsewhere. As described in Module 2 of the Wildlife Crime Module Series, the CITES entered into force in 1977. Any wildlife products that predated the enactment of CITES can be traded in most CITES Parties provided that provenance can be shown. Pre-CITES processed ivory is traded legally in many jurisdictions whereas no commercial trade of post-CITES raw ivory is allowed in CITES Parties.
The case of conflict timber demonstrates the fluidity between legality and illegality when it comes to wildlife crime. Timber, in general terms, is easily harvested, valuable and in high demand. It has been used to fund several armed and civil conflicts (e.g. Cambodia, Sierra Leone and the Democratic Republic of Congo). Global Witness (2002: 5) defines conflict timber as “timber that has been traded at some point in the chain of custody by armed groups, be they rebel factions or regular soldiers, or by a civilian administration involved in armed conflict or its representatives, either to perpetuate conflict or take advantage of conflict situations for personal gain.” Conflict timber is in a separate category from legal and illegal timber trade due to its role in conflict situations; however, it shares many characteristics with illegal logging, such as particular trade networks and methods (Price, Donovan and De Jong 2007). According to the Fafo report (Global Witness 2002: 44), as soon as illegal and conflict timber leaves its country of origin, it is de facto laundered into the legal timber trade. Global Witness attributes the fluid interface of legal and illegal timber flows to the lack of international legislation and regulation. The merging of legal, illegal and conflict timber makes it hard - if not impossible - to distinguish from the legally sourced and exported timber. For more information, refer to Module 4 of the Wildlife Crime Module Series.
It has been argued that protected areas have become a lens through which many people see and understand nature and environment, which subsequently has imposed ‘the European nature/culture dichotomy’ in places where this dichotomy did not exist previously (West et al. 2006: 255). This is done, for example, through the IUCN process of cataloguing protected area types where national governments have to fit their protected lands into these international categories that do not fully take into the account national or local ‘descriptive categories’ (West et al. 2006: 256). As such, the nature and culture dichotomy has had significant material and social impact and consequences, such as exclusion of local people from their land or ‘holding them to discursive standards’ that are challenging comply with (West et al. 2006).
Another issue to consider when it comes to conservation is how the intervention regarding one species can affect another or how legislation can have unintended consequences. For instance, a study by Harihar, Pandav and Goyal (2011) showed that the conservation actions to facilitate the survival of tigers in India caused unintended consequences by causing a sharp decline in the leopard populations.
In Mexico, national laws created a system of designated lands called Wildlife Conservation Units (UMA, Spanish acronym) which are partly managed for biodiversity conservation, and their principal aim is conservation through active management and sustainable use of wildlife for economic gain; this is a move towards market-based approaches to conservation (Sisk, Castellanos and Koch 2007). In Sonora, Mexico the implementation of the UMA policy focused on the financial value of trophy hunting; for many landowners, the income from trophy hunting significantly surpasses the income derived from traditional animal husbandry (Sisk, Castellanos and Koch 2007). Although the income from trophy hunting encourages wildlife management, in some cases it has led landowners to focus on intensive management approaches, such as fencing previously open areas off, fostering the growth of exotic grasses and removing native vegetation, and moving animals among properties to increase the success of hunting. This can, however, have long-term impact on animal movements, reduction of native biodiversity and increased risk of fire and potential consequences for soil fertility (Sisk, Castellanos and Koch 2007).
The Forestry Act 1971 which continued operation when Papua New Guinea became independent in 1975 reflected a centralized approach to forest management upheld by colonial rule. The Forestry (Private Dealings) Act 1971 was designed to provide customary land holders with freedom to contract with private actors, provided that they had approval from the Forestry Minister. Ministerial assent could only be refused on limited grounds. Generally, the combination of these two pieces of legislation resulted in opportunities for corporations to negotiate directly with customary landowners to acquire access to land for logging and exploitation, with limited or no accountability. Furthermore, approval by a single Minister allowed for corrupt incentives that would bypass legitimate investigation into the quality and sustainability of a proposed project.
Following an inquiry into mismanagement and corruption in the forestry sector conducted in the late 1980s, Papua New Guinea’s forestry laws and management underwent major change. The Forestry Act of 1991 removes direct interaction between customary landowners and corporates by inserting the State as an intermediary. First, the National Forest Authority secures a Forestry Management Agreement (FMA) with customary land holders. From this point, the National Forest Authority has ownership of the trees, but not the land, and is then responsible for selling timber permits to logging companies. Although the apparent purpose of this legislative evolution was to remove the corrupt incentives provided to customary land holders by corporations and thus protect land in PNG from the ‘robber barons’, it simply reallocates the corrupt incentive from land holders to government officials, especially considering the extensive power of the Minister to direct the Forest Authority.