Rights to Resources Interactive Map: Definitions, Usage and Caveats
Definitions of Natural Resources
“Water” means all fresh water, including groundwater, surface water, rainwater, lake water, etc.
“Trees” means individual trees and groups of trees, such as savannah woodland and high-canopy rain forests used for timber, and includes bushes or shrubs.
“Minerals” means all minerals, including sub-surface minerals and surface minerals (e.g., sand and gravel), but does not include petroleum, sometimes referred to as energy minerals.
“Wildlife” means fauna but not flora, and includes all wildlife, from insects to large mammals to birds and fish.
“Petroleum” means hydrocarbons in all their natural forms, such as oil, natural gas, tar sands, etc.
Usage of Terms
In the set of questions, terms and phrases are generally based on their common definitions and usage. However, the following terms and phrases may be susceptible to different interpretations or may be vague. We would like to clarify the definitions and usage we used for purposes of our legal review:
In Question 2, “private ownership” refers to legally recognized property rights to the natural resource, entitling the owner to access and withdraw the resource (i.e., take, use, appropriate, extract, or harvest), to exclude others therefrom (i.e., to determine who will have access to and use of the resource), to alienate (i.e., to sell or transfer the natural resource for personal or commercial purposes), and to manage the resource (i.e., to determine how, when and where harvesting from a resource may occur). Note, though, that many laws provide that the exercise of private ownership rights to the natural resource shall be subject to the provisions of the law.
In Question 3, “customary or traditional rights” refer to rights to the natural resource based on customary rules and norms, sometimes known as “informal,” “indigenous,” or “traditional law,” as opposed to statutory law. Customary rights vary from place to place, there is no single uniform customary system prevailing in sub-Saharan Africa or in any country within the region. However, customary systems share the same attribute of being community-based and largely ethnic in origin, usually operating only within the area occupied by a particular ethnic or indigenous group.
In Questions 4 to 11, ““free” natural resource use rights” refer to the use of natural resources by any person without authorization from the government or payment of fees.
In Question 5, “link to land rights” refer to natural resource use rights based on rights to land that include: (a) private ownership or title to land; (b) customary or traditional rights to the land, whether on individual, family or communal basis; (c) rights as lessee, occupant, possessor, holder or any similar established legal right; (d) community land rights recognized under statutory law; and (e) local residence in the area where the natural resource is located.
In Question 9, “registration of “free” use rights” includes: (a) the formal process of acquiring government authorization or consent prior to exercising the right; (b) a declaration or notice to public authorities of the exercise of the right, the consent for which is already given under the law; (c) the filing of a report to public authorities after the exercise of the right; (d) the giving of information required under the law in relation to an inventory of the natural resource; and (e) the keeping of records subject to inspection by public authorities.
By mapping ownership and local use rights to natural resources, we hope to provide useful information towards an expanding recognition of the importance of clearly-defined, meaningful, secure and enforceable rights to natural resources. But some caveats apply--
The legal review focused on principal national laws governing the five natural resources--water, trees, minerals, wildlife and petroleum. When there were no principal national laws, we reviewed the national policy specific to the natural resource or national environmental laws if they contain information that are useful in answering the set of questions. When there are no principal national laws and other laws apposite to the questions asked, we indicated “No National Law” or “No Information Available.” Implementing rules and regulations, which may contain additional details and explain further the provisions of the principal national laws, were outside the scope of review. So were pending bills.
The legal rights described in principal national laws may not necessarily be exercised in practice, and may conflict with customary rules and practices that actually govern the exercise of local resource use rights in some communities.
Legislation is open to interpretation. For our legal review when more than one interpretation is possible, we assume the interpretation that has the clearest inference that can be drawn from the relevant provisions. Recognizing that some provisions in the laws may have particular interpretations based on the national or cultural context, we invite comments on the accuracy of the inferences drawn in the “implied” answers.
Most of the laws in French and Portuguese do not have official English translations, hence we relied on unofficial translations for our legal review. Recognizing the possibility that in some instances the intended meaning in the original language may not be captured in the unofficial translation, we invite comments on the accuracy of our interpretation of provisions of law.