Progress on Land Claims in Protected Areas: briefing by Chief Land Claims Commissioner

Tourism

20 August 2013
Chairperson: Mr D Gumede (ANC)
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Meeting Summary

The Land Claims Commission briefed the Committee on the progress on land claims in protected areas. The Committee was provided with an overview of the Restitution Programme. Land restitution was one of the four elements of land reform, the others being land distribution, land tenure reform and development.

Restitution occurred either by restoration of a right in land, the provision of alternative land, payment of financial compensation, development or a combination of the previously mentioned. The processing of land claims took place in stages i.e. lodgement of claim, research on validity of claim, negotiations, and settlement by the Minister /court adjudication. The last stage was implementation of the order of the court. As at 31 March 2013, 77 334 land claims had been settled of which 59 758 were finalised. Three million hectares of land at a cost of R10.8bn had been awarded to qualifying claimants of which 1.444 million had been transferred. 

Progress in the settlement of claims on protected areas was that 150 land claims had been lodged in protected areas of which 46 had been settled. 44 claims were being researched and 13 were accepted and gazetted. A verification of households was taking place in four claims. 27 claims were at negotiation stage with a further nine being at settlement state. There were four claims before the courts for adjudication. Members were provided with a breakdown of claims in protected areas as per province. For example in the Eastern Cape Province there were 18 claims, two was being researched, one was being verified, four was in negotiations, one was in settlement, seven had been settled already, one claim had been dismissed and two claims were in the courts.   

Challenges with the settlement of claims in protected areas were overlapping and competing claims, conflict between claimants or legal entities and traditional leadership institutions, most land was unsurveyed/unregistered state land, the benefits of co-management agreements was minimal as management agencies argued that they could not afford the cost of co-management. Without clear funding commitments to support the four pillars of co-management, claimants objected to entering into co-management agreements. The way forward included that 50% of outstanding claims on protected areas would be finalised by the end of the 2014/15 financial year.

The settlement framework for claims in the Kruger National Park was also elaborated upon. In December 2008 SANParks and the Department of Environmental Affairs and Tourism informed Cabinet that communities were unhappy with their restricted titles in the Kruger National Park. Cabinet approved that only equitable redress would be the only means of settling land claims within the Kruger National Park. One of the principles guiding the settlement of claims in the Kruger National Park was that a beneficiation scheme had to form part of the equitable redress model in order to ensure fair and equitable compensation for the claimants. The beneficiation should be tangible, realistic and optimal. The Department of Environmental Affairs had conducted a scoping exercise to inform a beneficiation scheme that could be implemented in the Kruger National Park. Challenges attached to claims in the Kruger National Park were that some communities had engaged legal representatives to represent them in their claim for restoration of ownership rights even if there would be restrictions. When cabinet had approved that only equitable redress would be available to settle claims in the Kruger National Park it noted that the Commission was required by section 29(4) of the Restitution Land Rights Act to provide legal representation at its expense to assist claimant communities to refer their claims to court. The way forward for claims in the Kruger National Park was that the Department of Rural Development and Land Reform, the Department of Environmental Affairs and SANParks were developing a framework for the settlement of each claim to be discussed with claimant communities. Outstanding restitution processes were also being finalised and a task team had been set up to finalise claims in the Kruger National Park.
In conclusion the issue of land claims with tourism potential was touched on. The National Department of Tourism had requested of the Land Claims Commission to forward to them land claims that had tourism potential. It was a difficult task for the Commission as there were over 6000 land claims. The Commission did take into consideration strategies that the National Department of Tourism had developed on domestic tourism. A task team comprising of relevant departments had been established in order to share information and to assist one another. The Commission had information regarding property descriptions and land uses. On claims that had been settled a long while ago, unfortunately not all information had been captured. Unless one physically went to a property to check it was difficult to verify what was there.  The Commission intended to do a land audit. The audit would take about six months to complete and thereafter the Commission would be in a better position to know if land had tourism potential. Land claims had been made at tourist attractions like Sun City and the Fish River Sun.

Having just returned from oversight visits to the Free State and KwaZulu-Natal the Members felt that the Land Claims Commission needed to model co-management agreements where they worked well. It was felt that even though communities at Kruger National Park who had land claims were given a portion of the gate takings it did not necessarily mean that other communities at other national parks would be satisfied with the shares that they would receive since all parks were not as popular tourist attractions as the Kruger National Park. The Commission was asked whether it was aware that SANParks chose not to pay the Tourism Marketing South Africa (TOMSA) levy and had said that it would rather invest the funds in communities. The Committee raised the issue that land claimants felt that the Land Claims Commission took long to process land claims applications.

The briefing had alluded to the fact that where a dispossession of land was accompanied by compensation which was considered to be fair and just, there was no entitlement to a claim for land restitution. Members were keen to know what the criteria for making such a determination were and how was the value of land quantified.

Section 29(4) of the Restitution of Land Rights Act provided that the Commission had to cover the cost of legal representation to assist claimant communities who wished to refer their claims to court. The Committee asked whether it was not a strain on the finances of the Commission.
Members also felt that there should be a closer working relationship between the Commission and the National Department of Tourism. Members were concerned that communities in rural areas were not too clued up on land values and felt that perhaps on land restitution and on compensation they could be short-changed. Members furthermore communicated the sentiments of communities that government often placed the interests of conservation above those of communities. The Committee agreed that it would in writing highlight issues like concessions with the Commission.
 

Meeting report

Land Claims Commission
The Land Claims Commission briefed the Committee on the progress on land claims in protected areas.
The Commission was represented by Ms Nomfundu Gobodo Chief Land Claims Commissioner, and Mr Thami Mdontswa Deputy Land Claims Commissioner. Mr Mdontswa undertook the briefing.
The Committee was provided with an overview of the Restitution Programme. Land restitution was one of the four elements of land reform, the others being land distribution, land tenure reform and development. Restitution occurred either by restoration of a right in land, the provision of alternative land, payment of financial compensation, development or a combination of the previously mentioned. The processing of land claims took place in stages i.e. lodgement of claim, research on validity of claim, negotiations, and settlement by the Minister /court adjudication. The last stage was implementation of the order of the court. As at 31 March 2013, 77 334 land claims had been settled of which 59 758 were finalised. Three million hectares of land at a cost of R10.8bn had been awarded to qualifying claimants of which 1.444 million had been transferred. 

In October 2002 cabinet approved that land claims on protected conservation areas where claimants had opted for restoration of rights in land be settled by the award of ownership of the land albeit without physical settlement by the claimants. Cabinet directed that there should be economic benefits for the claimant communities but that settlements should not undermine the economic viability, financial sustainability and holistic management of protected areas, especially national parks world heritage sites and other areas of high conservation value. In May 2007 the Ministers of Environmental Affairs and of Agriculture and Land Affairs entered into an agreement providing a framework for the settlement of claims in protected areas. In early 2009 a national co-management framework was developed which required that co-management agreements must ensure that the claimants received tangible, realistic and optimal benefits without compromising the ecological integrity and the long term objective of financial sustainability of the protected area. In May 2009 a new mandate of rural development, land reform and agrarian transformation was given to the new Department of Rural Development and Land Reform to which the Commission was an entity. Cabinet approved the Comprehensive Rural Development Programme in the latter part of 2009. All policies of the Department of Land Affairs had to be aligned with the new mandate, including the manner in which land claims were settled. A green Paper on Land Reform was published in September 2011. A new development sub programme ie Recapitalisation and Development Programme (RAPD) was introduced and the national co-management framework was aligned to the sub-programme. The strategy of the RAPD was strategic partnerships, which could take the form of mentorships, co-management, share equity arrangements, contract farming and concessions. Co-management had four pillars i.e. tangible benefits, transformation, transparency and accountability and risk mitigation.

Progress in the settlement of claims on protected areas was that 150 land claims had been lodged in protected areas of which 46 had been settled. 44 claims were being researched and 13 have been accepted and gazetted. A verification of households was taking place in four claims. 27 claims were at negotiation stage with a further nine being at settlement state. There were four claims before the courts for adjudication. Members were provided with a breakdown of claims in protected areas as per province. For example in the Eastern Cape Province there were 18 claims, two was being researched, one was being verified, four was in negotiations, one was in settlement, seven had been settled already, one claim had been dismissed and tow claims were in the courts.   

Challenges with the settlement of claims in protected areas were overlapping and competing claims, conflict between claimants or legal entities and traditional leadership institutions, most land was unsurveyed/unregistered state land, the benefits of co-management agreements was minimal as management agencies argued that they could not afford the cost of co-management. Without clear funding commitments to support the four pillars of co-management, claimants objected to entering into co-management agreements. Some of the remedial actions taken by the Commission to address the challenges included partnering with the Human Sciences Research Council and the University of South Africa to assist with the research of claims especially if there were competing claims. A state land audit was being conducted and unsurveyed land was being surveyed. Alternative funding models for co-management through the development sub-programme were being explored. Communities were also being educated about the importance of conservation.

The way forward included that 50% of outstanding claims on protected areas would be finalised by the end of the 2014/15 financial year.

The settlement framework for claims in the Kruger National Park was also elaborated upon. In December 2008 SANParks and the Department of Environmental Affairs and Tourism informed Cabinet that communities were unhappy with their restricted titles in the Kruger National Park. Cabinet approved that only equitable redress would be the only means of settling land claims within the Kruger National Park. One of the principles guiding the settlement of claims in the Kruger National Park was that a beneficiation scheme had to form part of the equitable redress model inn order to ensure fair and equitable compensation for the claimants. The beneficiation should be tangible, realistic and optimal. The Department of Environmental Affairs had conducted a scoping exercise to inform a beneficiation scheme that could be implemented in the Kruger National Park. Challenges attached to claims in the Kruger National Park were that some communities had engaged legal representatives to represent them in their claim for restoration of ownership rights even if there would be restrictions. When cabinet had approved that only equitable redress would be available to settle claims in the Kruger National Park it noted that the Commission was required by section 29(4) of the Restitution Land Rights Act to provide legal representation at its expense to assist claimant communities to refer their claims to court.  The way forward for claims in the Kruger National Park was that the Department of Rural Development and Land Reform, the Department of Environmental Affairs and SANParks were developing a framework for the settlement of each claim to be discussed with claimant communities. Outstanding restitution processes were also being finalised and a task team had been set up to finalise claims in the Kruger National Park.

Mr Mdontswa continued by speaking on the issue of land claims with tourism potential. The National Department of Tourism (NDT) had requested of the Land Claims Commission to forward to them land claims that had tourism potential. It was a difficult task for the Commission as there were over 6000 land claims. The Commission did take into consideration strategies that the NDT had developed on domestic tourism. A task team comprising of relevant departments had been established in order to share information and to assist one another. The Commission had information regarding property descriptions and land uses. On claims that had been settled some time ago unfortunately not all information had been captured. Unless one physically went o a property to check it was difficult to verify what there was. As was stated earlier the Commission intended to do a land audit. The audit would take about six months to complete and thereafter the Commission would be in a better position to know if land had tourism potential. Land claims had been made at tourist attractions like Sun City and the Fish River Sun.

Discussion
The Chairperson informed members that both Ms X Makasi (ANC) and Ms M Njobe (COPE) had both been hospitalised. He said that get-well cards would be sent to both Members and reminded Members to sign the cards.

Mr S Farrow (DA) pointed out that the Committee had just recently returned from oversight visits to the Free State and KwaZulu-Natal Provinces and had seen how co-management agreements worked in practice. He asked whether the Land Claims Commission had a model that it could use elsewhere. The issue was about sustainability and financial stability. At some parks that members had visited trustees and beneficiaries were co-operating. The entire experience should be packaged. He agreed with cabinet that once land was established as a conservation area it was difficult to return it to land claimants.
The fact that communities at Kruger National Park were receiving an equitable share of gate monies did not mean that other communities at less profitable parks would benefit to the same extent. Perhaps there was a need for cross subsidisation. He felt that where the Land Claims Commission had identified tourism potential it should approach the National Department on Tourism on how they intended to contribute.
He pointed out that there was a levy called the Tourism Marketing South Africa (TOMSA) Levy which every tourism institution had to pay. He asked whether the Land Claims Commission was aware that SANParks had decided not to pay the levy but rather to plough the levy funds back into communities. Was SANParks doing as they say they were doing? He asked the Land Claims Commission to provide the Committee with a breakdown of information in terms of state owned protected areas versus privately owned protected areas.

Mr Mdontswa said that a model was in place but that it did not apply everywhere. He gave the example of twelve communities in KZN putting in land claims. One of the claims was on land zoned as a wilderness, which was a bird sanctuary. Persons were not even allowed to ride a bicycle in the area. A portion of the gate fees charged to enter the wilderness went towards the community. The compensation was however very little. He noted that parks were managed by integrated management plans. To develop parks by way of building accommodation etc involved many processes. Sometimes communities needed immediate benefits. In Kruger National Park there were many different claims. Some of the land claims were situated close to where development had taken place in the Park and hence those claimants received more compensation than those claimants whose claims were in remote parts of the Park. The Land Claims Commission did work with SANParks. They were however unaware of the fact that SANParks did not pay the TOMSA Levy. SANParks did help communities. He agreed to look into the issue. A breakdown of public protected areas would be provided to the Committee. On privately owned protected areas the Land Claims Commission would have to source the information from various sources like the various provinces.   

Ms C Zikalala (IFP) appreciated that fact that members were given insight into the process regarding land claims.  People at grassroots level were complaining that the processing of claims took too long. Was the processing of claims going better than what it did in the past? She supported the idea of projects being introduced to communities that lived around parks. It would make peoples’ lives better.

Ms Gobodo said that things at the Land Claims Commission were improving. It had spent 100% of its budget for the last three years. Generally processes were being strengthened. There was also a quality control committee in place.

Mr R Shah (DA) referred page 2 slide 4 of the presentation, which mentioned that where a person was compensated in a just and equitable manner at the time of dispossession such person was not entitled to a claim for land restitution. How was the criteria chosen for such a determination? How was the value of the land quantified? He gave the example where a person at the time of dispossession in 1963 was paid R2000. The land’s value at the time was R6000. Hence at the time there was a shortfall of R4000. How was the value of the land at present going to be quantified? Speaking to the benefits of co-management agreements, he asked how many had been signed and how many related to tourism products.
He asked about the Report on Economic Benefits and Opportunities in the Kruger National Park and asked where the Report at present was. Could the Committee and the National Department of Tourism obtain copies of the Report?

Referring to page 11 which spoke to the challenges of claims in the Kruger National Park and that the Commission was required by section 29(4) of the Restitution of Land Rights Act to provide legal representation at its expense to assist claimant communities to refer their claims to court. Did the Commission have sufficient funds to provide this service? Was it not a strain on the Commission?
Regarding the Commission’s relationship with the National Department of Tourism he asked whether the relationship should not be closer. The National Department should be involved at a closer level.

Mr Mdontswa said that where land was expropriated and there was just and equitable compensation was not the only instance where a claim for land would be excluded. There was a link between section 2(2) of the Restitution Act and section 25(3) of the Constitution, which set out how to determine what just and equitable compensation was. It listed factors that which needed to be met for there to have been just and equitable compensation. The Land Claims Commission applied these factors to the situation when the land was dispossessed. For example on the application of the Group Areas Act, a historical valuation was done. It looked at the value of the land at the time of the dispossession. A valuer was employed to determine the value of the land and to apply the factors listed in section 25(3) of the Constitution. It was however extremely difficult to quantify the factors under section 25(3). The Constitutional Court did take the factors into consideration but also found it difficult to quantify them. The Land Claims Commission had embarked on establishing an Office of the Valuer General whose task it was to set up norms and standards. In the future there would thus be greater clarity on how to quantify the factors listed in section 25(3). As in Mr Shah’s example where there was a shortfall, the Consumer Price Index would be applied to come to the final compensation figure.

Mr Madontswa replied that information on the number of co-management agreements signed would be forwarded to the Committee. He said that the Report on Economic Opportunities and Benefits in the Kruger National Park was the Department of Environmental Affairs’ report. The Land Claims Commission would request the Department of Environmental Affairs to make the Report available to members.

Ms Gobodo responded that providing legal assistance to claimants did put a strain on the finances of the Land claims Commission, but the Commission was strengthening its policy on access. She pointed out that the Commission tried its best to settle claims before it went to court. Regarding co-management agreements the Commission worked with committees to settle issues.

Mr F Bhengu (ANC) referred to land tenure in rural areas and asked what was being done about it. People in rural areas were not educated about the restitution of land process. They did not have an understanding of the value of land. Restitution of land at Port St John’s had excited some but not others. Some communities in the area had thought that government would take them on board on tourism projects. He understood that in some cases where land was part of game reserves communities were given financial compensation. What happened if people were short-changed? Would they be assisted?

Mr Mdontswa said that in rural areas through strategic partnerships the Land Claims Commission tried to assist communities. The Land Claims Commission partnered with government departments.

Ms Zikalala said that communities often complained that government placed the interest of wild animals above themselves. She said that people needed to be educated about animals and conservation.

The Chairperson added that persons in the KZN also felt that animals were given greater importance than people. The problem was that communities had not been consulted when areas were reclassified as conservation areas. He also asked what the timelines for district land reform committees were. Where were they at present? Was the Department of Rural Development and Land Affairs addressing the dissatisfaction of people where they were not allowed to physically occupy land that had once belonged to them but now they were only given monetary compensation?

Mr Mdontswa said that some of the land claims referred to in KwaZulu-Natal were problematic. The Land Claims Commission was working with communities to find solutions. Communities often had conflicts amongst themselves as well. He noted that on district land reform committees the Land Claims Commission had proposed land right management committees, which had been piloted in the North West Province. An extension of the Security of Tenure Act was being contemplated to establish the Land Right Management Board. The Board was to establish land right management committees. These committees would assist with dealing with disputes.
 
Mr Paki Mathebula Director: Policy and Knowledge Services, National Department of Tourism noted that the NDT had recognised areas where tourism opportunities lied with regard to protected areas. The NDT was liasing with the Department of Rural Development and Land Reform and the Land Claims Commission.

Mr Sibusiso Khuzwayo, the Committee Content Advisor, stated that co-management agreements needed to be modelled. The Committee would in writing raise and highlight issues with the Land Claims Commission. Issues pertaining to concessions at the Kruger National Park were but one issue that needed to be addressed.

The Chairperson noted that the point was to have a more effective government. The Committee was aware that there were limitations that were beyond the Land Claims Commission’s control. It was also accepted that many other departments impacted upon tourism.

Ms Gobodo thanked the Committee for the opportunity to brief the Committee.

Tabling of the Free State and KwaZulu-Natal provincial oversight Committee Report
The Chairperson stated that the Report was still in its first draft stage. The Committee however needed to deal with the Report in haste given that the Committee had only a few sittings left for the term.

Mr Farrow suggested that as members read through the Report comments could be forwarded to the Committee section. It would speed up the process.

The Chairperson said that members’ contributions would be welcome.

Mr Shah asked if there was a time frame for the finalisation of the Report. By when was members expected to submit comments.

The Chairperson proposed that members’ comments be in by Friday, 23 August 2013.

Mr Jerry Boltina, the Committee Secretary, said that it would be much appreciated if members could
submit comments by Friday, 23 August 2013. The comments would be incorporated into the Report and the amended Report would be circulated to members.  The sooner the Committee finalised the Report the better.

The Chairperson said that the Report highlighted many issues that needed attention.

 Mr Farrow agreed that the Report needed to get into the parliamentary cycle for tabling. The Committee only had four sitting days left. He suggested that on Tuesday, 10 September 2013 the Committee meet for an hour to deal with the Report and finalise it by the 17 September 2013.

The Chairperson noted that the Committee’s reports should also be sent to the provinces.

Mr Bhengu pointed out that there were some parliamentary committee reports on the Order Paper dating back to 2011. Recommendations made by committees in such an instance would be relegated to being part of history.

Mr Boltina informed the Committee that National Treasury had responded to recommendations made by the Committee on the Budget Report. Members should feel free to read the response by National Treasury.

The meeting was adjourned.
 

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