Most legal systems address the issue of ownership of wildlife, which has significant practical implications. There is a variety of approaches, but generally wildlife is regarded either as a part of the rights of ownership over land or as State property. In some laws wild animals fall under the definition of "forest produce" and may be subject to the same or a similar regime as regards their ownership, despite the difference in their nature.
Ownership either by the State or by private people or communities usually entails related benefits, such as entitlement to hunting rights and revenue derived from viewing or hunting tourism. It also usually entails some obligations, such as management responsibilities and liability for damage which may be caused by animals. However, these rights and obligations are not always automatic consequences of ownership. The examples in the following subsections present some of the possible variables.
There are also examples of countries where wildlife is considered as res nullius, as in Morocco (Mekouar, 1999). Pursuant to the law of Lithuania, wild animals found within fenced areas belong to the owner of the area, while animals in the wild may not be considered the property of any natural or legal person (arts. 3 and 4). Landowners may make personal use of wildlife found on their land, subject to obligation not to upset the balance of natural communities and to adopt protection measures (art. 14).
There are many countries where wildlife is State property, ranging throughout continents. In Uganda, ownership of wild animals and plants is vested in the government on behalf of and for the benefit of the people (sec. 4). Pursuant to the law of Tajikistan, animals are State ownership, as well as "common property of all citizens" (art. 2). In China, wildlife is also the property of the State (art. 3).
Where wildlife belongs to the State, either because this is the general rule or because it occurs on State lands, some customary rights to hunt may be recognized to traditional holders. This is the case in a number of African countries, but also in Norway, where wide areas of "State common lands" are open to hunting by indigenous people (Bouckaert, 1999).
In other countries, although ownership of wildlife is vested in the State, hunting rights on private land remain reserved to their owners. In Burkina Faso, for example, forests, fauna and fish are declared to be part of the national estate (art. 4), but owners have the exclusive right to hunt on their own land (art. 129). On the other hand, pursuant to the legislation of Chile (1996), which amended the civil code in this regard, hunting is allowed only on a person's own land, or on others’ lands with the permission of the owner.
In Botswana, landowners or other specified lawful occupiers hold the right to hunt without a licence on their land, subject to restrictions on the number of animals hunted and the payment of fees (sec. 20). A right of ownership in animals, however, is expressly recognized to the owner of land only in the case of animals kept or confined within a game proof fence (sec. 83). Owners may authorize third parties to hunt on their land upon approval of the administration, in which case they must also keep records of animals hunted (sec. 24). Hunting without the permission of the landowner or occupier is an offence (sec. 49)
In Malawi, the ownership of wild animals, as well as plants, is vested in the President, on behalf of and for the benefit of the people (sec. 4(1)), but specimens lawfully taken pursuant to a licence become the property of the licensee (sec. 4(3)), and entering private land without permission is not allowed even in the pursuit of wounded animals. The prohibition applies although there is a general obligation to use all reasonable endeavours to kill wounded animals. In this case, a report must be made to the owner, who has sole authority to decide whether to allow access into his land (sec. 79).
In other legal systems, the ownership of wildlife by the State, coupled with considerable hunting pressure, has determined significant limitations of the rights of private land owners, by allowing access of hunters into any private land. This is the case in Italy, where unlike in most other European countries wildlife is declared to be State property and to be protected in the interest of the national and international community (article 1(1) of the 1992 law). Hunting as well as free access of hunters have traditionally been allowed on any land, including private ones, unless fenced. With an innovation introduced by the law of 1992, landowners may apply to have their lands exempted from the general free accessibility of hunters, but must submit specific reasons, and may be granted the exemption "provided that it does not hinder the implementation of wildlife management plans". An exemption may also be granted on the basis of regional legislation, for particular economic, social or environmental reasons, such as experimental agriculture undertakings (article 15(3) and (4) of the same law). In any case, access to lands under current cultivation as well as to lands with a fence of a minimum height of 1.20 m is generally prohibited to wandering hunters (art. 15(7) and (8)). The situation was similar in Portugal, where a "right of non-hunting" has only recently been recognized to the owners by the Framework Law on Hunting of 1999 (art. 3).
Ownership of wildlife usually carries the obligation to compensate damage caused by it, although frequently with some limitations; for example, only to damage caused by protected species, only to cases in which adequate precautions have been taken, etc. In Italy a fund is established for this purpose in every region, and compensation is also due to private landowners whose lands are utilized pursuant to hunting management plans (article 15(1) of the 1992 law). In China, local governments are called upon to compensate damage which may have been caused by protected species of wildlife. However, people have an obligation to adopt appropriate precautionary measures to prevent such damage (reg. 10). In Romania, damage caused by wildlife must be compensated by the "manager" of the concerned hunting area (article 13 of the 1996 law).
Sometimes there is even an express general exemption from liability. This is the case for any loss of life or property "sustained by any person in Botswana by reason of the presence, action or depredations of any non-captive animal", whether or not within protected areas (sec. 87), although in the same country damage caused to livestock by specified animals (such as lions, leopards etc), if they have escaped into a national park before they could be killed, may be compensated (sec. 46(4)).
Many countries have found it difficult to address increasing pressures for compensation, whether or not their laws envisage it. Such pressures are frequently coupled with dissatisfaction regarding the considerable revenue which is or could be derived from wildlife and is reserved to the State, or simply with pressures to use wildlife resources for personal consumption. This has led to an increase of encroachment and illegal activities. In West Africa, concentration of ownership of wildlife and management responsibilities by the State authorities has also caused a tendency to expect a solution to all wildlife-related conflicts from them (FAO, 2001). These were among the reasons which caused an evolution in the policies of some countries, leading to the transfer of ownership from the State to the owners of land on which wildlife is found, as well as to more participatory approaches in wildlife management. An example is Zimbabwe, where the Parks and Wildlife Act of 1975 granted ownership of wildlife resources by "the owners or occupiers of alienated land".
The law of Mexico goes beyond the issue of mere compensation of damage caused by wild animals, requiring the administration to set out appropriate "mechanisms" to compensate local communities for the costs associated with environmental and biodiversity conservation and exploitation (art. 20(d)). The law does not automatically place related costs on any particular entity, and questions remain open in this respect, as the same law recognizes a right of landowners to sustainable exploitation of wildlife within their land, along with an obligation to contribute to the conservation of habitats, and liability of owners for "negative effects" on wildlife and habitats which may derive from exploitation (arts. 4 and 18). Landowners might therefore be expected to substantially contribute to the compensation of local communities. The studies which the administration is expressly required to carry out for the assessment and internalization of environmental costs (art. 20©) may contribute ideas in this regard.
In other places, such as Kenya and West Africa, the process seems to have gone in the opposite direction of Zimbabwe, i.e. the government has increasingly taken upon itself responsibility for wildlife. In the Kajiado districts of Kenya in the 1970s, hunting concessions had been successfully organized on some group ranches. Funds from hunting were used to build schools and other purposes generally appreciated by the community, which could thus obtain direct benefits from wildlife. However, this practice has not been continued (FAO, 2001; Kenya Wildlife Fund Trustees and United Nations Environment Programme, 1988).
As to countries where ownership of wildlife is vested in landowners, the example of Zimbabwe, where the abandonment of the principle of royal game has opened the way to a significant experience of participatory wildlife management, has already been referred to. At first, in this country a distinction was made between privately and communally held lands, as ownership of wildlife was first granted only in the former, and therefore only to white farmers and ranchers, and in practice not even to small-scale black farmers. With a view to expanding the successful development of wildlife experienced in private areas, an amendment of the Act in 1982 extended the management rights status given to commercial farmers to include also communal land. However, communal farmers did not have formal claim to the land, so ownership and management responsibilities were given to district councils rather than directly to customary holders. The amendment established that appropriate authority status could be given to any rural district council which demonstrated a commitment to the local level management of wildlife, thus giving the council the same use rights of wildlife as enjoyed by private landowners. This was the basis for the Communal Areas Management Programme for Indigenous Resources (CAMPFIRE).[30]
In theory CAMPFIRE included all natural resources but its focus has been on wildlife, as this resource in the concerned areas is among the most appropriate to provide a direct financial return, through safari hunting, photographic tourism, cropping, lodges, etc.[31] Since 1989 the programme developed successfully, combining in the same wildlife units ownership, management, cost and benefit (Kalèn and Trägårdh, 1998). However, several problems with the tenurial set-up have been reported: it is thought that communities still do not have appropriate authority, that councils which have been given authority, being simply administrative units, are not necessarily competent in wildlife management, and that the fact that the tenurial situation of farmers in communal lands remains less secure undermines the effectiveness of arrangements in these areas. Further evolution towards resource management as common property remains one of the objectives of CAMPFIRE.
Countries where the ownership of wildlife is vested in landowners are the majority in Western Europe. Here a distinction has been drawn between those in which the automatic right to hunt is granted to the owner, as the United Kingdom and Norway, and those in which such a right is not automatic, as France, Belgium and Spain (Bouckaert, 1999). A consequence of these arrangements is that owners are generally responsible for wildlife management within their land. As this is inappropriate in the areas where holdings are very small, various countries such as Belgium, France, Germany and Norway require a minimum size of land as a condition for their owners to exercise hunting rights (Burhenne, 1999).
There may also be other arrangements to facilitate appropriate management by landowners. In Belgium, for example, owners may hunt only if their property is above a certain size - in general 25 and 40 hectares respectively for the Walloon and Flemish Regions. The Flemish Region, in its decree on hunting of 1991, encourages the voluntary grouping of land into hunting areas, envisaging funding for this purpose (art. 12). In Germany, hunting areas may be private - in which case a minimum size of 75 hectares is generally required to be able to hunt (art. 7) - or "communal" - i.e. created upon initiative of a commune on any land not comprised within private hunting areas. In this case, the minimum size to be able to hunt is 150 hectares (art. 8).
In France, a minimum size was traditionally not required, but the "Verdeille Law" of 1964 envisaged the compulsory grouping of owners of areas smaller than 20 ha, with automatic devolution of hunting rights to the Communal Hunting Association (Association communale de chasse agréée) thus created. Within the concerned areas, all specified hunters, such as concerned landowners and other local residents, may hunt. A provision which allows individual owners to exempt their lands from such arrangements, without having to submit specific reasons, has been introduced by an amendment to article 222 of the Rural Code in 2000. Owners who have been exempted remain responsible for damage caused by wild animals coming from their land (art. L.222-10-5). The introduction of these new provisions follows a decision by the European Court of Human Rights[32] in which the previous French legislation, which made it compulsory for landowners to join hunting associations and allow hunting on the concerned land, was considered to be in violation of the European Convention on Human Rights, namely of article 11 on freedom of association, and of article 1 of Protocol 1 on the right of ownership. The latter authorizes the expropriation of a right of ownership exclusively for reasons of public interest, while in the Court’s view hunting interests may not be considered as such.
Ownership of wildlife should be connected with liability for damage caused by wild animals to people or property. Countries take different approaches as to compensation which may be due by wildlife owners (for example by the State), and sometimes limit it depending on whether or not the persons who have suffered damage have taken adequate action to prevent it or limit it. They also take different approaches regarding action which is allowed to be taken against wild animals which may threaten people or property. Killing of wild animals for this purpose is allowed more widely in defence of people than of property, but in any case various conditions are usually specified. Some of them appropriately aim at preventing abuses - for example those which require notification to an officer prior to killing animals or promptly afterwards.
In Uganda, for example, killing of animals is generally allowed in defence of people, while for the case of animals which may endanger property killing is allowed as a last resort, if it does not endanger the survival of a species, following notification to an officer, who must determine the necessary action (sec. 62).
Botswana recognizes a right of owners or occupiers of land to kill animals which threaten persons or crops or other property on their land. Circumstances must be reported as soon as possible to the wildlife administration. The law goes into some detail for the case in which specified animals such as lions, leopards, cheetahs, etc., which have caused damage, escape into protected areas, where killing them is prohibited. In this case, the Minister may pay compensation to any person who has suffered damage, unless the person has failed to kill the animal without reasonable cause (sec. 46).
Hunting for defence of people or protection of cultivated fields or livestock is allowed by the law of Mauritania without authorization, but immediate notice of any action taken must be given to authorized officials (art. 26). In Malawi, protected animals may be killed in defence of people, property, crops or domestic animals, "if immediately and absolutely necessary" (sec. 74). Facts must be reported to an officer. Wounded protected animals which enter private land may not be followed except upon authorization of the owner (sec. 79). Pursuant to the Flemish decree on hunting, the owner of property which may be significantly damaged by wild animals may drive them back or kill them, if he/she can give proof that no other measure is viable and holds an insurance against third parties’ liability, upon prior notice to the holder of hunting rights and the designated government official (art. 22).
It is less common to expressly authorize organized actions by the administration against animals which cause damage, although to prevent abuse this approach may be preferable to action by individual people. It may also be a way to protect animals where, with the more effective means which may be at the disposal of the administration, specimens which constitute a threat to people or property may be captured and moved elsewhere. Battues de destruction of noxious animals may be authorized exceptionally pursuant to the law of Guinea, must be reported in detail to the national Director of forests and fauna and meat resulting from them must be left to the local people who have suffered damage (arts. 174 and 175).
Less recent legislation sometimes included specific provisions to authorize the indiscriminate killing of "noxious" animals, such as poisonous snakes. Given the increased consideration of the role of every species, the concept of harmful animal or vermin had already come to be gradually abandoned in legislation in the early 1980s, and even aggressive behaviour of animals now tends to be justified on the basis of the modifications of their natural habitats and decreased availability of food. An example of a modern law which allows the destruction of noxious animals limits it to actually dangerous ones (poisonous snakes), and in any case prohibits it within national parks and nature reserves (Guinea, art. 176).
|
[30] Several institutions and
NGOs, grouped in the CAMPFIRE Collaborating Group, are engaged, including the
Departments of Environment and Tourism, Local Government and Rural and Urban
Development, National Parks and Wildlife Management, the Centre of Applied
Social Sciences of the University, WWF, Zimbabwe Trust, African Resource Trust
(Kalèn and Trägårdh, 1998). [31] Communal lands are the richest in spectacular wildlife species, particularly elephants. Holders of communal lands have progressively been involved in the business of safari hunting, which can be very lucrative (a trophy fee of US$ 7 500, plus a fee of US$ 1 000 per day for a hunt which usually lasts three weeks is envisaged). Each district develops a sustainable hunting quota in collaboration with the Wildlife Department. The quota is sold on the open market by the district council to a safari company which has capital and skill to find international clients, usually offering a concession of three/five years. Revenue now goes mainly to district councils and then to the rural communities where an animal is shot (now 80 percent) – so the majority of revenues goes to the community that bore the costs (Kalèn and Trägårdh, 1998). [32] Decision of 29 April 1999, Chassagnou et al. v. France. |
