T.J.P. McHenry
Thomas J.P. McHenry is a partner in the environmental law firm of McClintock, Weston, Benshoof, Rochefort, Rubalcava & MacCuish in Los Angeles, California. He also serves as a research fellow with the Natural Heritage Institute in San Francisco, California.
Drawing on the experience of the author in drafting wildlife policy and legislation in a number of developing countries, this article focuses on three central wildlife management issues. The first is the role and potential value of an articulated national wildlife management policy. The second is the dual question of the definition of wildlife and the nature of wildlife "ownership". The third and perhaps most important issue is how to provide sufficient structural flexibility to vest wildlife management in local authorities and individuals.
Wildlife management in developing countries suffers from a variety of problems governmental neglect, insufficient financial resources and incentives, a lack of training and conservation education and poor or nonexistent regulatory structures. The most perplexing problem has been the development of a system that perverts historical practice by denying local communities the traditional benefits of wildlife utilization except in violation of the law. This problem has been caused, at least in part, by the failure of established management structures, generally colonial or postcolonial adaptations of centralized legal and bureaucratic models, to accommodate traditional methods of wildlife usage and to provide more flexible means for the conservation of wildlife. Recently, much attention has been directed towards providing local communities with a greater measure of control over natural resources in recognition of the fact that, without their involvement, wildlife conservation efforts are destined to fail, apart from some strict nature reserves. At the same time, there is an increasing awareness of the value of wildlife, particularly from the viewpoint of biological diversity.
Two caveats should be raised at the start. First, the draining of policy and legislation (and accompanying regulations) is rarely susceptible to forms or models. While the management experience of one country may be useful to a neighbouring one or to one with similar conditions, efforts to adopt or borrow legislation from other countries have generally been unsuccessful because the cultural and legal foundations that fostered them cannot be imported. Resource managers should use legal and policy experiences as a reference point from which to begin developing their own approaches, not as a blueprint to be imposed.
Second, in drafting wildlife and other natural resource policy and legislation, the "process" can be as important as the "product". The evaluation and revision of national wildlife policy and laws, if done correctly, will bring together experts in the fields of animal biology, management, enforcement, financial, legal and other governmental and private sectors (many of whom do not ordinarily communicate) and will often lead in directions that were unanticipated by the participants.
The necessity for and use of wildlife policy is typically underestimated. Many countries do not have an official wildlife policy and most existing policies do little more than just state the value of wild animals without attempting to reconcile the competing pressures on them. There is no more important tool available to the wildlife manager than a clearly articulated and well-reasoned national policy for the management of the resource. Without policy support and "political will", management efforts are destined to fail. This is particularly true in countries where the enforcement of law is less than comprehensive and uniform.
The specific elements of a wildlife policy will of necessity vary from country to country and, as such, are beyond the scope of this general article. At a minimum, however, a policy should describe the status and role of wildlife in the country and articulate the variety of reasons for the regulation of its use. These should include food values, economic motivations, aesthetic and moral concerns and cultural and historical reasons such as the protection of national animals, human health and the conservation of genetic resources. The policy should describe the major factors affecting wildlife populations and the institutional and structural means for conserving them, going on to state government intentions with regard to wildlife management, e.g. tourism, food sources, revenue, and describe the anticipated benefits of wildlife management. When wildlife is conserved in protected areas such as national parks, the policy should explain the purpose and use of these areas.
The policy should authorize the government to vest the control and management of wildlife in local communities where appropriate, and should provide for the establishment of local government structures to accomplish this. Of course, simply "authorizing government" is not enough to ensure a move to local management. For example, in the eastern Caribbean nation of St Vincent and the Grenadines, the forestry legislation was amended to provide authority for the establishment of conservation areas to be managed by representatives of local communities and government. Regulations to support the legislation established a management structure and by-laws for the administration of these conservation areas.
The policy should also take into account the impacts of non-wildlife laws, the most important being those relating to forestry and land tenure, as well as fiscal law and local government law on wildlife management and use. As Moore (1985) pointed out, the impacts of other legislation may have a greater impact than the resource-specific law itself.
A wildlife policy can take any number of forms: it may be an explicit national policy, part of a national nature conservation strategy or a component of a national development plan. For example, the national environmental action plans (NEAP) now being prepared in many countries under World Bank auspices will incorporate wildlife policies. Historically, many wildlife policies have been short and simple statements of governmental objectives, often as brief as a single page. Some countries have more detailed wildlife policies which go beyond a statement of objectives to explain how these objectives will be accomplished. For example, the Botswana Wildlife Conservation Policy is a nine-page document which addresses, among other things, the place of wildlife in land-use planning, the purpose of and the relationship between wildlife management areas, national parks, game reserves and controlled hunting areas, wildlife migratory patterns, the potential economic significance of wildlife and the benefits and costs of wildlife conservation. The advantage of these more detailed policies is that they not only provide the "what" (what government wants to do) but also the "how" (how government will do it); however, they tend to require more frequent revision.
Whether a wildlife policy is simple or complex, if it is to have any force, it must be approved and supported at the highest level of government, i.e. by the president, cabinet or the legislature. Many wildlife policies that lack such support begin as consultants' reports and languish at the lower governmental level. A technique being used increasingly to focus attention on the importance of policy is that of linking policy evaluation with efforts to revise legislation. In this way, policy and legislation are reviewed, revised and approved at the same time.
Having described the need and importance of policy, we next turn to an examination of two threshold legal issues: What do we mean by wildlife, i.e. how broadly do we define it? And, having defined the term, who owns or controls the bundle of rights associated with wildlife? The answers to these questions have significant implications for local communities' greater management control over wildlife. Historically, legal protection was extended only to a limited number of wildlife species listed in the law or in associated regulations, so-called "protected" species. The term "game" was used to designate those species worthy of protection, typically for sport hunting. A small number of additional species, for example birds of prey, were also often given protection for cultural, national or other reasons. All other species, both animal and plant, were assumed to be of little or no value - at least as a matter of law - and therefore subject to unlimited consumption. "Modern" legislation has expanded the term "wildlife" to encompass all animals, including fish, mammals, birds, reptiles, amphibians and invertebrates but excluding domestic animals. While this broader definition recognizes that wildlife offer both a known and potential value and may therefore be worthy of protection, a legal structure that subjects all or almost all species to protection may have the undesirable effect of transforming local people who hunt wildlife for food (usually rodents and other small mammals and reptiles) into lawbreakers. Moreover, a system in which all wildlife is protected does not focus on the specific species that warrant protection - a major drawback in the face of limited resources.
Early legislation also designated certain less desirable species as "pests", such as rodents, wolves and certain birds, and encouraged their eradication through the payment of bounties and other means. Modern wildlife management rejects this designation for all native species. Nonnative species, however, while not likely to be labelled as "pests", may be subject to programmes to reduce their numbers. A management distinction may also be made between "wild" animals reared in captivity and those that exist in the wild.
The question of who owns or controls wildlife resources is a particularly thorny one. In fact, the World Bank has identified ownership or proprietorship as the most important issue concerning the relationship between rural people and wildlife (Kiss, 1990). Wildlife in the natural state is not explicitly "owned" by anyone. Given the mobility of wild animals, ownership is not established until an animal is reduced to possession through hunting or capture. However, there has been a tendency in more recently framed legislation to make wildlife state property. For example, in Ethiopia, Burkina Faso, the Central African Republic, Liberia and the United Republic of Tanzania, all wild animals are the property of the state. As pointed out by Forster (1991), legislation that "nationalizes" wildlife and other natural resources is designed to ensure a mechanism for their management (both conservation and utilization) at a level that permits a strategic viewpoint and (supposedly) allows for the maximization of their value. However, in practice, these objectives have rarely been realized.
In most cases, the vesting of ownership and exclusive use rights to wildlife resources in the central government has meant that individuals and communities who had traditionally utilized wildlife resources could no longer legally derive any benefits from them. It also left the government with an insupportable burden in terms of the need for centralized human and financial resources for wildlife management. In many cases, it has served to produce an attitude of disinterest in local populations, and even antagonism between these populations and the state-run wildlife management.
The ultimate test of ownership is the right to use wildlife and the authority to manage it. The World Bank has identified three central policy issues for wildlife resource management with local participation in Africa: defining the role of wildlife resources in national economic development; ownership or proprietorship of wildlife; and the distribution of management authority and benefits between local and national levels (Kiss, 1990). The most significant of these for the development of wildlife policy (and the law that supports it) is the issue of shifting from centralized management of wildlife resources to management authority and benefits in local communities.
Given the difficulties that centralized management of wildlife has had to deal with, one of the most challenging issues facing resource managers is how to preserve or grant local rights and authority. An example of such a grant is in Nyaminyami in northwestern Zimbabwe where local people have been given management authority, including the right to: cull impala herds and to use or sell the various products generated; sell concessions to hunt lions or elephants (within sustainable levels as determined by the government); and set up joint ventures to promote tourism. From these activities, they have the right to retain nearly all of the income (Bonner, 1993). This provides a legal source of protein and removes the financial incentives of illegal hunting. What was once poaching has now become a managed, legal activity. The extent and scope of the grant of local authority and/or ownership over wildlife will vary from country to country but, as a general rule, modern wildlife policy and legislation should specifically provide for the granting of such authority.
It is important to recognize that the existence and management of wildlife impose constraints on the use of other resources, particularly cattle grazing and agriculture. The elimination of wildlife, through direct means such as poaching or indirect means such as fencing and the spread of disease, clears the way for the conversion of the land to other uses and may be evidence of a resource use conflict. Policy and legislation should take such potential conflicts into account.
An example of this quandary is illustrated by the establishment of Lake Mburo National Park in Uganda to protect remnant populations of wild ungulates that are not found elsewhere in the country. Management of the park was complicated by large cattle populations which had historically rotated through the area on a seasonal basis. With increased population growth and the expansion of agriculture, the grazing base for the cattle was limited and their reliance on the park increased. At the same time, local herdsman profited little from the sale of cattle because of insufficient butchering and marketing facilities and so attempted to increase their income by increasing the size of their herds, thereby adding to the pressure on the resource. One of the management recommendations that resulted from an FAO review was to establish local butchering facilities near the park to help herdsmen augment their income without increasing the size of their herds.
As part of the emphasis on local community involvement, the preparation of wildlife policy and its implementation through law should not overlook the role of customary law and practice. These may have a substantial impact on the management of wildlife resources. For example, in many countries the taking or the consumption of specific wildlife species or groups of species is culturally encouraged while, in others, it is limited by religious and cultural beliefs.
The privatization of certain governmental activities, such as the management of wildlife populations and protected areas through concession agreements, is another technique that offers opportunities for greater local community control and, as such, has been the subject of renewed interest. The potential advantages of a contract or concession lie in the direct granting of management authority over the land and wildlife resource and the degree of specificity that can be designed into the individual agreement.
An example is the concession agreement between the Republic of Uganda and a private contractor for the management over a ten-year period of a several thousand-hectare game reserve adjacent to Queen Elizabeth National Park. Under the terms of the agreement, the management of the game reserve is vested in the private concessioner in return for the payment of fees to the government and local community. The agreement is designed to provide a reasonable rate of return to the concessioner as well as significant financial, employment and training benefits both to the central government and the local community while improving management of the game reserve.
The lack of success of centralized state-owned wildlife management has led to an evaluation of ways of involving rural peoples in the management of these resources. With the growing recognition of the importance of the management of wildlife resources for protein, biodiversity, economic and touristic and other reasons, greater emphasis must be placed on the development of more effective and appropriate regulatory mechanisms. We can conclude that the existing systems of management are neither providing an adequate and sustainable stream of benefits to local communities nor preserving the viability of threatened wildlife populations. While there are many reasons for this situation, a clearer expression of governmental policy on the management of wildlife is a necessary starting point for improvement. At the same time, the legal and regulatory structure for wildlife management should also be evaluated to determine whether or not it provides the needed incentives (especially to local communities) for proper management.
It is important to note that efforts to "empower" local communities with management over natural resources are only in the beginning and, for the most part, experimental stages. Apparently successful models, such as the CAMPFIRE programme for wildlife management in Zimbabwe [Ed. note: see reference in article by Wynter, p. 26 and Unasylva, 43(168): 20], have been implemented so recently that they cannot yet be conclusively evaluated. It is also an unfortunate fact that the failures in experiments with wildlife management outnumber the successes. This is not to suggest that efforts to vest greater control in local communities over wildlife and other natural resources should not be pursued. On the contrary, it is essential to continue experimenting with these management systems.
Bonner, R. 1993. At the hand of man: peril and hope for Africa's wildlife. New York, Knopf.
Forster, M. 1991. Some legal and institutional aspects of the economic utilisation of wildlife. In Proc. 10th World Forestry Congress, Vol. 5. Nancy, France, Engref.
Kiss, A., ed. 1990. Living with wildlife: wildlife resource management with local participation in Africa. World Bank Technical Paper No. 130. African Technical Department Series. Washington, DC, World Bank.
Moore, G. 1985. Impact of non-forestry laws on forestry. In Proc. 9th World Forestry Congress, Mexico, 1-10 July.
