Legal Geographies of Intellectual Property, ‘Traditional’ Knowledge and Biodiversity: Experiencing Conventions,Laws, Customary Law,and Karma in Thailand

This article explores the existence of customary laws relating to ‘traditional’ knowledge of plants in Thailand through micro‐ethnographic case studies. This is juxtaposed against global and national frameworks of intellectual property laws that have a privatising effect on knowledge under the rubric of discovery or ‘invention’, as well as liability rights approaches of compensation and benefit‐sharing for research access. By understanding scale and legal jurisdiction as socially and politically constructed phenomena, we explore how laws at different scales and in different jurisdictions may override each other, discriminate against foreign laws and practices, and ignore customary laws. In doing so, the paper presents complex legal geographies of plants and associated knowledge, which suggest that the customary laws and norms of Indigenous groups and traditional healers are often ignored by ‘outsiders’. The paper notes that the possibility of ‘injury’ to traditional healers remains considerable without appropriate consent and given the discriminations surrounding knowledge made by patent laws. However, the ethnographies also point to the possibility of local remedies to these injuries through ritual processes, and we note resistant co‐constitutions of law and scale through the Nagoya Protocol.     

The Symbolic Making of a Common Property Resource: History,Ecology and Locality in a Tank-irrigated Landscape in South India

Today there is a pervasive policy consensus in favour of ‘community management’ approaches to common property resources such as forests and water. This is endorsed and legitimized by theories of collective action which, this article argues, produce distinctively ahistorical and apolitical constructions of ‘locality’, and impose a narrow definition of resources and economic interest. Through an historical and ethnographic exploration of indigenous tank irrigation systems in Tamil Nadu, the article challenges the economic-institutional modelling of common property systems in terms of sets of rules and co-operative equilibrium outcomes internally sustained by a structure of incentives. The article argues for a more historically and politically grounded understanding of resources, rights and entitlements and, using Bourdieu's notion of ‘symbolic capital’, argues for a reconception of common property which recognizes symbolic as well as material interests and resources. Tamil tank systems are viewed not only as sources of irrigation water, but as forming part of a village ‘public domain’ through which social relations are articulated, reproduced and challenged. But the symbolic ‘production of locality’ to which water systems contribute is also shaped by local ecology. The paper examines the historical and cultural production of two distinctive ‘cultural ecologies’. This serves to illustrate the fusion of ecology and social identity, place and person, in local conceptions, and to challenge a currently influential thesis on the ecological-economic determinants of collective action. In short, development discourse and local actors are seen to have very different methods and purposes in the ‘production of locality’. Finally, the article points to some practical implications of this for strategies of ‘local institutional development’ in irrigation.     

Dynamic and Flexible Aspects of Land and Marine Tenure at West Nggela: Implications for Marine Resource Management

At West Nggela, access to high value marine invertebrate stocks is controlled by consanguineal corporate groups holding primary rights (which include rights of exclusion) over reefs bearing these stocks. Disputes over primary rights appear to result in a breakdown in management practices, resulting in overfishing and severe depletion of stocks. An understanding of the common causes of disputes is therefore of considerable importance to marine resource management, and development, in this region. This paper outlines first the essential, or ‘ideal’, processes of descent reckoning and property transfer that underpin the Customary Marine Tenure (CMT) system at West Nggela as they are presented to ‘outsiders’ such as government officials and anthropologists. It then deals with some of the many exceptions to this norm, and the ways these variations can contribute to disputes over primary rights to property. The pressures of economic development, and the resultant commodification of resources and property, in our view catalyse the conflict between the ideal, simplified model and the complexity of actual praxis in respect to property rights. Recent dramatic increases in the perceived value of many properties as a result of proposed lucrative developments may underlie present day conflicts which in the past would not have arisen. Examples are drawn from interview data as well as case studies of two formal property disputes which were heard in local courts at West Nggela in 1995.     

David J. Starkey,Chris Reid and Neil Ashcroft: England's Sea Fisheries. The Commercial Sea Fisheries of England and Wales since 1300. Chatham Publishing,London 2000, 272 pages

Abstract

This article explores the management practice of protection notices, fredlysning, in the traditional practice of eider down harvesting in Northern Norway. Previously, private initiatives were legitimate for protecting land and resources from public utilization, while today only the state authorities have this privilege. By juxtaposing empirical material from current eider down harvesting activities with childhood memories of growing up in this area during the 1960s, and available legal documents, the author finds that some quite radical changes have tacitly taken place, indicating rather tense dilemmas concerning local perceptions of land use issues. Analytically, Olwig's distinction between customary and natural law is used as a tool for addressing the political dimensions of the landscape concept historically. In this perspective, fredlysning fluctuates in and out of codified law through the centuries, and under growing impact of natural law rationale. Land issues, both concerning property rights and public access and use of the common resources of the outlying fields, utmarksressurser, are here understood as very powerful means to bind the people to the land, as a way of transforming the legitimate scale of polity, of building bonds to the nation.     

Mapping Common Futures: Customary Communities,NGOs and the State in Indonesia's Reform Era

The post‐Suharto ‘Reform Era’ has witnessed explosive revitalization movements among Indonesia's indigenous minorities or ‘customary’(adat) communities attempting to redress the disempowerment they suffered under the former regime. This study considers the current resurgence of customary claims to land and resources in Bali, where the state‐sponsored investment boom of the 1990s had severe social and environmental impacts. It focuses on recent experiments with participatory community mapping, aimed at reframing the relationship between state and local institutions in planning and decision‐making processes. Closely tied to the mapping and planning strategy have been efforts to strengthen local institutions and to confront the problems of land alienation and community control of resources. The diversity of responses to this new intervention reflects both the vitality and limitations of local adat communities, as well as the contributions and constraints of non‐governmental organizations that increasingly mediate their relationships to state and global arenas. This ethnographic study explores participants’ experiences of the community mapping programme and suggests its potential for developing ‘critical localism’ through long‐term, process‐oriented engagements between communities, governments, NGOs, and academic researchers.     

The Double Movement of Immovable Property Rights in Papua New Guinea

ABSTRACT

Papua New Guinea (PNG) is one of many countries around the world where the relationship between customary land tenure and economic development has been hotly debated for a long time. A commonplace of the debate in PNG is that 97% of the nation's land is held under customary tenure, while only 3% has been alienated, and these proportions have not changed since the country became independent in 1975. This paper shows that the boundary between customary and alienated forms of land or immovable property was already showing signs of instability in the late colonial period, and this instability has been greatly magnified in the post-colonial period. The areas of land subject to some form of partial alienation have increased along with the ways and means by which immovable property has been ‘mobilised’, while a variety of customary claims to previously alienated areas have grown stronger over the same period. Although Karl Polanyi's idea of a ‘double movement’ can throw some light on this phenomenon, the PNG case also reveals a new side to the application of this concept.     

The End of Regional Assistance Mission to Solomon Islands (2003–17)

The Regional Assistance Mission to Solomon Islands (RAMSI) ended in June 2017 after 14 years. It was an initiative of the Pacific Islands Forum authorized under the Biketawa Declaration of 2000, which enabled a regional response to crises in the region. Between 1998 and 2003, Solomon Islands had undergone a period usually called the ‘tenson’ in Solomons Pijin, or the ‘Tension’ or ‘Ethnic Tension’ in English, when government processes failed and two rival militia groups out of Malaita and Guadalcanal terrorized Honiara and its surrounds. Prime Minister Ulufa‘alu was removed in a de facto coup in 2000. Although all Pacific Islands Forum nations participated, Australia paid 95 per cent of the costs. This was the first time Australia and New Zealand had led a substantial intervention mission beyond their borders that was not under United Nations auspices. The article places Solomon Islands politics and governance issues into a 20-year perspective and examines the success and failures of RAMSI, which was far more adaptable than is usually admitted. The article also considers the appropriateness of the Westminster system to government in Solomon Islands.     

Vulnerability,Control and Oil Palm in Sarawak: Globalization and a New Era?

In the post logging era, Sarawak is being restructured to make way for large‐scale oil palm plantations. In this restructuring, the vulnerabilities of particular areas are being used in a wider battle to control production, particularly for export. Native customary lands, considered ‘unproductive’ or ‘idle’ by officials, are the target of oil palm plantation development under a new land development programme called Konsep Baru (New Concept). This article looks at the contradictions generated by the complex process of laying claims to ‘idle’ native customary land and focuses on Dayak organizing initiatives in northern Sarawak, Malaysia.     

‘Best Practice’ Options for the Legal Recognition of Customary Tenure

Is there a ‘best practice’ model for the legal recognition of customary tenure? If not, is it possible to identify the circumstances in which a particular model would be most appropriate? This article considers these questions in the light of economic theories of property rights, particularly as illustrated by the World Bank's 2003 land policy report. While these theories have their flaws, the underlying concept of tenure security allows a typological framework for developing legal responses to customary tenure. In particular, this article suggests that the nature and degree of State legal intervention in a customary land system should be determined by reference to the nature and causes of any tenure insecurity. This hypothesis is discussed by reference to a wide variety of legal examples from Africa, Papua New Guinea and the South Pacific. The objective is not to suggest that law determines resource governance outcomes in pluralist normative environments, but to improve the quality of legal interventions in order to assist customary groups to negotiate better forms of tenure security and access to resources.     

‘Saving the Solomons’: a New Geopolitics in the ‘Arc of Instability’?

The recent crisis in the Solomon Islands is reviewed in the context of historical and regional antecedents. In the past two decades political and ethnic disputes have flared in several parts of Melanesia and nearby parts of the ‘arc of instability’. Tensions and violence in the Solomon Islands, based on social, economic and political issues, exemplify regional development concerns. The collapse of the economy and civil order resulted in the Solomon Islands being characterised as a ‘failed State’. Localised warfare brought external military intervention, with a regional assistance mission led by Australia, which paralleled other involvement in the region. Involvement has emphasised renewed Australian interest in the region, in the light of global geopolitical shifts, and a more controversial approach to regional security and development.     

The Spatially Splintered State: Myths and Realities in the Regulation of Marine Fisheries in Tamil Nadu,India

The spatial dimension of law is a neglected field of study. This article responds to suggestions that have been made to develop a ‘geography of law’, and investigates expressions of State‐centred law regarding common pool natural resources. It asks how variations in law between lower‐level territorial units are to be explained in situations where patterns of resource exploitation are similar and the overarching State proclaims an even approach. To explore these issues, the article focuses on a case study of Tamil Nadu marine fisheries. Comparing the reality of State regulation in different coastal districts, the author argues that the State occupies a relatively weak position vis‐à‐vis user groups, and strives to maximize its legitimacy by adapting to local political circumstances. The end result is a legal patchwork with strong spatial connotations.     

Está listo (Are you ready)? Gender,race and land registration in the Río Plátano Biosphere Reserve

Geographers and political ecologists are paying increased attention to the ways in which conservation policies disrupt indigenous customary tenure arrangements. However, much less attention is given to the particular ways protected area management shapes natural resource access for indigenous women. With this in mind, this article examines how a recently proposed state land project in Honduras, Catastro y Regularización, requires that Miskito residents individuate collective family lands in the interests of ‘sustainable development’ and ‘biodiversity protection’. In the debates that followed the project's announcement, Miskito women feared that such measures would erase their customary access to family lands. As the state's project seeks to re-order Reserve land, intra-Miskito struggles intensified among villagers. Such struggles are not only gendered but are shaped by longstanding processes of racialization in Honduras and the Mosquitia region. Drawing upon ethnographic research, I argue that Miskito women's subjectivity and rights to customary family holdings are informed by their ability to make ‘patriarchal bargains’ with Miskito men inside the Río Plátano Biosphere Reserve. Such findings suggest that scholars and policy makers continue to reflect on the ways global conservation and sustainable development practices may undermine indigenous customary tenure securities, whether intentionally or not.     

Aquatic Identities,Fluid Economies: Water Affinities and Authenticating Narratives of Belonging in East Timorese Myth and Ritual

ABSTRACT Customary land tenure claims provide a useful analogy for customary access and usage rights to critical water resources. In an increasingly water‐constrained future, such rights are at risk of political and economic contestation and local communities may find themselves abruptly divested of critical water resources just when they need them most. The new nation of East Timor is not abundantly endowed with water and inland sources are particularly vulnerable to the impacts of reduced rainfall and groundwater contamination. Recently McWilliam (2003) has suggested that in future disputes over Timorese sea tenures, the recognition of customary access or exclusive property rights to specific water resources will depend upon clearly articulated evidence of longstanding cultural associations and interactions with the aquatic landscape. The ethnographic literature provides substantiating accounts of the centrality of water in the local cosmologies of various East Timorese ethnic groups. This paper extends McWilliam's marine argument to inland water resources by reviewing the salient ethnographic evidence for Bunaq, Mumbai and Eastern Tetum populations to show that water is a key organising metaphor in the expression of Timorese kingroup affiliation, social identity and power relations. Local ritual practices further affirm customary rights of access and water use. There is an urgent need for such customary rights to water to be recognized in the current redistribution and demarcation of internal boundaries in East Timor, as well as in future struggles against vested economic and political interests.     

Helpem Fren:

In its first three years (2003–06), the Pacific Islands Forum-sponsored and Australian-led Regional Assistance Mission to Solomon Islands (RAMSI) was successful in stopping violence, confiscating weapons and restoring peace. But RAMSI must now tackle difficult questions concerning its role and the underlying challenges of national development in Solomon Islands. Concurrently, relations have deteriorated between Australia and RAMSI on the one hand and, on the other, a new Solomon Islands Government under Manassah Sogavare. This Introduction offers a review and analysis of recent events and ‘opens windows’ onto the five articles and final comment that follow. As indicated by the title of this Special Issue, ‘Tingting baek, lukluk raon: Solomon Islands, History and Predicament’, these papers collectively look back on the past, survey the present, and look forward to the future.     

Mare Nullius: Indigenous Rights in Saltwater Environments

This article uses two case studies to illustrate the subjection of indigenous peoples’ marine territories to a ‘double jeopardy’ of exclusion — jurisdictional and proprietary — through the legal and administrative practices of European ‘settler’ states in Australia and Canada. While the fiction of terra nullius as a legal rationale for refuting indigenous rights of property and governance has steadily eroded in recent decades, its counterpart mare nullius has proven, so far, more resistant. The authors examine how state conceptions of jurisdiction, property and boundary‐making in coastal areas accomplish the distortion and fragmentation of the coastal and marine spaces of Torres Strait Islanders in northern Queensland, Australia, and of the Cree and Inuit peoples of James and Hudson Bays in northern Que´bec, Canada. Assumptions of land–sea continuity underlie these peoples’ cultural constructions of coastal and marine environments. In examining the progress that each has made in reasserting ownership and control of coast and sea, it seems that recognition and reinforcement of their institutions for managing marine spaces and resources offer the best prospect for reconnecting fractured jurisdictional domains, and for bringing about social equity, environmental protection, and self‐determined regional development.     

The Failure of Popular Justice in Uganda: Local Councils and Women’s Property Rights

Advocates of alternative dispute resolution argue that informal, community‐based institutions are better placed to provide inexpensive, expedient and culturally appropriate forms of justice. In 1988, the Ugandan government extended judicial capacity to local councils (LCs) on similar grounds. Drawing on attempts by women in southwestern Uganda to use the LCs to adjudicate property disputes, this article investigates why popular justice has failed to protect the customary property rights of women. The gap between theory and practice arises out of misconceptions of community. The tendency to ascribe a morality and autonomy to local spaces obscures the ability of elites to use informal institutions for purposes of social control. In the light of women’s attempts to escape the ‘rule of persons’ and to seek out arbiters whom they associate with the ‘rule of law’, it can be argued that the utility of the state to ordinary Ugandans should be reconsidered.     

The Culture of Agreement Making in Solomon Islands

Current growing interest in mining in Solomon Islands warrants critical reflection on the centrality of natural resources in the post‐colonial formation of state‐society interactions, in particular, as they have been shaped by decades of forestry resources extraction. Since independence in 1978 waves of Malaysian, Taiwanese, Korean, Australian and Japanese investors have developed natural resource extraction projects. Not only have these projects been poorly regulated, they have entwined politicians, leaders and landholders with the state as an economic agent with its own base of economic power. As a result, wealth in Solomon Islands is highly politicised and dependent on the bargaining position of the state and foreign investors (Bennett 1987, 2002). Instead of looking at the failures of the state, as is common in political science approaches to Solomon Islands, we draw on case studies in forestry, mining, and customary land dealings on the island of Malaita and on the Weathercoast of Guadalcanal to highlight the kinds of social networks that enable agreements over the use of natural resources. Challenging common assumptions about the division between state and society, we show that leaders in rural regions of Solomon Islands behave like landlords, that brokers from the communities see themselves as actors equalling the state, and that the state performs like a capitalist actor.     

Selling surf and turf: throwntogetherness and real estate advertising on the suburbanising east Australian coastline

New residential development is transforming coastal places in Australia. This paper untangles perceptions of coastal change by analysing representations of nature and lifestyles in marketing new residential developments on the New South Wales (NSW) coastline. We focus specifically on master-planned estates (MPEs). In this context MPEs are primarily a consequence of housing affordability and supply dilemmas in capital cities. Their form and character is derided as ‘suburbanisation by the sea’: vandalism of ‘authentic’ coastal cultures. We draw on Massey’s theorisation of place as ‘event’ and a relational politics termed ‘throwntogetherness’ to understand the role of real estate advertising in blending coastal places and MPEs. Our insights are drawn from visits to 19 MPEs for sale on the NSW coast, and discourse analysis of 76 advertisements collected in situ (billboards, signs, banners and brochures). Advertising narratives for new MPEs both sustain and contradict the idea of coastal suburbanisation: portraying permanent settlement by young families as a culture shift and implicating ‘sea change’ configurations of coastal places to do so. This makes lifestyle expectations with coastal nature perplexing. In the throwntogetherness of contemporary coastlines, marked by landscape change and development pressures, real estate advertisements are pivotal in establishing, grounding and guiding change.     

Property and Authority in a Migrant Society: Balinese Irrigators in Sulawesi,Indonesia

Multiple definitions of resources as property lead to competition over legitimate authority between state and non‐state organizational and institutional arrangements. This article focuses on the overlapping and competing domains of the water users’ association, WUA, and the ‘traditional’ Balinese irrigators’ institution, subak. While the former is backed up by the power of state regulation and administration, the latter derives legitimacy from Balinese irrigators. The author presents a case study of the establishment and transformation of property rights in an irrigation‐based Balinese migrant society in Indonesia; he concludes that, in the ongoing process of competition for authority and mutual adjustment, both institutions undergo important transformations.     

Ruling by Record: The Meaning of Rights,Rules and Registration in an Andean Comunidad

This contribution looks at land property relations in a peasant community in the central highlands of Peru. Rather than using a rights‐based approach, the authors propose a ‘practice force field approach’ for their analysis of property relations under communal land tenure regimes. Their study combines qualitative ethnographic case studies with quantitative analysis of data on land distribution. In contrast to rights‐based approaches, this perspective understands the legal discourses that people draw upon to explain property relations as ‘justifying rule talk’ rather than the reflection of a system of property rights. It is shown how property relations are shaped in mediated interactive processes, where official rules, moral principles, shared histories and strategic games come together. The authors use this practice force field approach to study Usibamba, an Andean community that has developed a true disciplinary regime of communal governance based on control over land. The role of ‘rule talk’ and the function of elaborate local systems of land registration are examined in the context of the annual reallocation of communal land. Particular attention is paid to the performance of the president of the comunidad during this delicate process and his reflections on the course of events.