Session 8. 5.

Thirty years post-1994, ‘the Natives’ still lack ‘property’. This cannot be remedied until the ‘common’ law is returned to them.

Three decades after all South Africans became citizens with socio-economic rights under the Constitution, widespread material inequality and social marginalisation on the basis primarily of race render the defiant afterlives of colonial-apartheid self-evident. If the democratic constitutional order was designed to address these legacies, then ‘transformative constitutionalism’ is a failure. This paper takes seriously increasing sociopolitical challenges to the legitimacy of the post-apartheid legal order in South Africa and scorching critiques of the constitutional settlement, against which many in the legal establishment bristle. It argues that the prevailing attitude among jurists that the worst thing that could happen to the Rule of (un)common Law is for ‘liberal constitutionalism’ to be abandoned is perplexing in the face of the persistent sense of constitutional crisis pervading the country’s social and political air. The paper contends that the real ‘worst-case scenario’ is that South African liberal constitutionalism should stubbornly continue its unresponsiveness to ordinary people’s alienation from the so-called ‘common law’ and its colonial logics, ultimately leading to the ‘anarchy’ uncommon law jurists fear. To avoid this dire future, the paper offers Alter-Native Constitutionalism as grounding of the country’s system in the indigenous normative convictions expressed in ‘vernacular law’.

This paper is for scholars interested in indigenous law and state property regimes that exclude their common property regimes. Combining methods from anthropology, historical linguistics, and doctrinal law, it canvasses social justice solutions to property problems that are made available when law, as land, is common to the people it should serve.

The conservation of tropical forests is essential for climate change mitigation and biodiversity preservation. While National Protected Areas (NPAs) are the most prominent conservation tool globally, they often struggle to align with local socioeconomic realities. In Bolivia, Municipal Protected Areas (MPAs), a subnational type of protection, offer a distinct conservation model rooted in decentralized governance. Unlike NPAs and Indigenous territories, whose establishment stalled after the 2010s despite persistent community demands, MPAs address these gaps by providing a subnational alternative. Although many indigenous territories are officially titled, significant areas remain unresolved. MPAs emerge from community-driven initiatives, with municipalities leveraging technical and financial support from NGOs and international cooperation to formalize these conservation efforts.
We employed a staggered Difference-in-Differences (DiD) approach to analyze the effects of MPAs on reducing deforestation rates. Additionally, we conducted matching on baseline characteristics (e.g., slope, elevation, population density, travel time to NPAs, forest and farming area shares, etc) to ensure comparability between treated and control units. This method allows for the comparison of municipalities with MPAs established at different times, comparing municipalities that have already established MPAs (treated) with those that have not yet done so but are scheduled to in the future (not-yet-treated). By including not-yet-treated municipalities as part of the control group, the approach enables a dynamic analysis that accounts for the evolving context of conservation efforts.
The findings suggest that MPAs contribute to reducing the rate of deforestation, particularly in regions with formally recognized indigenous territories. An anticipation effect is observed, with deforestation rates starting to decline up to two years before the formal establishment of MPAs. This may reflect the lengthy process required to create these areas, during which preliminary conservation actions might begin. This effect could also be linked to the involvement of external conservation initiatives that work with communities during the preparatory phase. These results highlight the role of MPAs in supporting more sustainable land management practices by addressing local needs and aligning with decentralized governance structures.

This study explores Wangari Maathai’s Unbowed: A Memoir as a powerful testament to the role of indigenous leadership in environmental governance, illustrating the profound connections between land, culture, and community health. Maathai’s narrative encapsulates how Indigenous communities, drawing on traditional knowledge and practices, actively engage in protecting their lands and ecosystems against the threats of climate change. Her advocacy for initiatives like the Green Belt Movement exemplifies the creation of community-conserved areas that not only restore ecological balance but also reinforce cultural identities and food sovereignty. Through the lens of Bioregionalism theory, which emphasizes place-based approaches and prioritizes local ecological knowledge, Maathai’s Unbowed is contextualized within broader implications for environmental stewardship. The memoir underscores the vital link between land health and community well-being, asserting that the health of ecosystems directly influences both the physical and cultural vitality of indigenous peoples. Maathai confronts the constraints imposed by colonial systems and structures, which marginalize indigenous voices, practices, and land. Despite these challenges, her resilience and commitment to environmental justice serve as a beacon for contemporary measures advocating for land return and restored access to natural resources. Through her experiences, Maathai sheds light on key strategies employed by indigenous communities to adapt to climate-related challenges, such as emergency preparedness and hazard reduction. These strategies are supported by research and advocacy that recognize the value of integrating Indigenous Knowledge Systems with modern scientific approaches. Unbowed not only reflects on the ongoing history of oppression and resistance faced by indigenous peoples but calls for a collaborative framework that uplifts indigenous leadership in environmental governance, fostering a holistic approach towards climate adaptation that honors people and place.