2. Rooted in Ontology: Placing Axiology and Territory to One Side

Where axiology in relation to territory and land is about the human values that we ascribe to territory and land, ontology is the way in which one exists on territory or land.Footnote ²¹ A value of land, by way of example, is that land without animals is empty. Once the idea of “empty” is understood within the cultural and contextual framework, we can appreciate the statement as placing a value judgment upon that piece of land. An ontological idea is that the land as it exists forms the way in which I am. The latter may inform how I use the land and what I do in relation to the land, but it requires no judgment about value. Where ontological difference either presupposes or not the existence of power and right in human endeavour rather than a humble ability, there is a fundamental difference between these two as to how one engages with the world. It is more than simply valuing the land. It is not even seeing the right to claim it and use it at will. Any construct, societal good, or institution has a narrative for its development and justification. But where the alternative narrative or vernacular is not used, often an obvious consequence of systems imposed rather than home-grown, the ontological difference is lost. This piece is a discussion about ontological difference.

A Sobantu boy, mentioned by Chimhowu and Woodhouse, did not believe land, coming from God, could be bought or sold, or that one’s labour made personal property only.Footnote ²² This statement from a young boy from an African village, regardless of the similarity to a Lockean premiseFootnote ²³ or a Westphalian ideal, appears only convergent evolution: similarity of thought in time does not mean that its derivation has tracked the same route or come from the same premise. Deontological bases as part of the relation between people and land, as an example, requires no Westernised property conception. In the Dinka communities of South Sudan for example, wealth and property are communal because all belongs to their God (Yieth); there is no concept of ownership, the people have possession only.^{Footnote 24} Here then possession and ownership, similar to the distinct terms used in Western contemporary legal doctrine, are not the same. Cosmogony has its own laws, which supersede the desires of humans. Land, sea, sky, and shelter are provided to allow subsistence and nothing more.^{Footnote 25} According to Auret, divine-premised ontology had no role for property, ownership, or possession.^{Footnote 26}

Without embarking further on a deontologicalFootnote ²⁷ discussion regarding property, arguments for and against private property decentralisation, ownership of goods, titling, and a formal cadastral recognition system for the legal and easily discoverable property rights have been enunciated in academic discourse. The aims of this paper remain apart from this, deeper than the axiologic roots of the private property conception itself. They lie in the fundamental nature of being,Footnote ²⁸ the fundamental non-recognition of the ways in which various people relate to the land and to that which lies on and in and within the land: spirits of the soil, the rock, the tree. This paper aims to bring the discussion about belief and religion into the economic-legal superstructure. Specifically, in questioning the basis of the legal and economic system—the formal recognition of property rights, however described. Nevertheless, some of the “goods” proffered by those who insist on the good of institutionalised/formalised property rights are mentioned below for the sake of fullness.

The role of formalised property in its conception of and malleability around exclusion as a concept does touch on what is written here because the notion of exclusion is so central to territoriality.Footnote ²⁹ Territory describes that which can be bounded by a peoples and, by virtue of this can exclude the “other.” Even where territorial identity has become abstracted (for example amongst indigenous diaspora separated from their traditional lands),Footnote ³⁰ territory still possesses that aspect of exclusion that denotes a state of belonging. Whilst this may look to be part of the same inherently biased ontological idea as property, the marking out of a territorial exclusion zone does not necessarily equate to private (the individual)Footnote ³¹ legal ownership and attach itself to a series of personal property rights enforceable in law.Footnote ³²

3. The “Goods” of Westphalian Property, its Proponents, Discourses and Constructs

De Soto, the contemporary patron of private property rights, posits that converting dead capital (that accumulated extra-legally) to live capital (that which has value within the legal system particularly as regards legally recognised title over goods or property) is a good.Footnote ³³ De Soto considers the founding benefits of establishing a legal property system to be increased taxes for the government and better operation of markets.Footnote ³⁴ Underlying de Soto’s argument is that economic growth is a human good. That the ability to leverage capital in new ways is something desired or unquestionably wanted by everyone. However, it is too general and too presumptive to state that growth is a common good shared even by the majority, let alone diverse minorities. In an age where diverse forms of living are encountered even by the normally suspected Western propagators of property (i.e., those going off-grid who demonstrate a reluctance for growth and centralisation), it can no longer be presumed (if it ever could) that everyone desires continual and constant growth. It is this underlying notion—a unilateral axiology (and axiologic system)—that is problematic. De Soto’s argument neglects an alternative view of the role of land relations; one defended in the 1999 Bathurst Declaration on Land Administration for Sustainable Development, which noted that land administration was about more than the better operation of markets; it was about bringing property rights into a legal framework, disseminating of correct information to lower the level of disputes, and making better land-use decisions.Footnote ³⁵

Growth may not be conducive to the ideal of future generations being able to meet their needs.Footnote ³⁶ The plethora of legislative additions to the property matrix in the past thirty to forty yearsFootnote ³⁷ demonstrates the increasing interest in land administration that incorporates more diverse interests in land/property, but it also demonstrates an increasing awareness that the formally protected property interests seemed to miss something. The author believes the legislative projectFootnote ³⁸ was an embarkation at least on some level to arrive at a sounder and more egalitarian basis for property relations: that here was some acknowledgment that those hitherto non-legally recognised forms of property relation contained some other axiology.

Howard-Hassmann articulates the argument that property ought to be a human right,Footnote ³⁹ including property of one’s person and the physical labour to work,Footnote ⁴⁰ because property protects greater social goods such as liberty and dignity. Howard-Hassmann’s articulation of the idea of property and her subsequent defence of having a human right of property is difficult to argue against. Whilst the opposing theory that property results in dispossession (Proudhon, Mark and Engels, Macpherson, Andreasson) has been argued for and against, Howard-Hassmann brings the disagreement between the two into one question: “whether the best solution to this problem of violent accumulation is to abolish the concept of private property altogether or to protect the property rights of these vulnerable populations. I contend that it is better to protect property as a human right than to abolish property rights.”Footnote ⁴¹ It is disputed here that the proponents of each discourse cannot be compared. Proponents of the private property theory believe that cementing ownership, granting formal title, inventing a cadastral system or any of the mechanisms to legalise vested interests in tangible assets (leaving aside intellectual property) is the better course for individual human creativity (van der Walt); protection of human rights (Howard-Hassmann); or the ability to leverage capital (de Soto). Proponents against property are theorists examining whether the idea of property can deliver the said outcomes for the population at large by being so cemented. The distinction is difficult to measure out. The former seem to have a mindset that comes from the urban neighbourhood, with aims of curbing disputes and settling differences in a fairer and more efficient manner. Proponents of the latter school are less concerned with the urban jungle (or really any jungle). Their view is global. From the viewpoint of an expanding population and the need to protect vast areas of wilderness and agricultural land, there will come a point in the future where the protection of property for each individual or collective will simply not be possible. Here, the argument must be confined to speaking of tangible landed assets such as territory, buildings, and plots of farmed land: that is, actual space. The notion of property here cannot extend to personhood, identity, or labour, which may be classified alternatively as dignity, ontology, and work. It is a macro view. A view that simply sees that with every partitioning, every dividing, the land becomes less useful for production for an ever-expanding population. And with every partitioning and every claim by one or one collective, however one is defined, that partition is taken from another, whether human, animal, or environmental. The idea of private property working against the poor man in a situation of scarcity may be augmented by the narrative that the lack of coded individual rights in Africa was due to a situation of plenty which slowly changed due to population pressure.Footnote ⁴²

Failure to mention Locke may seem a significant oversight when speaking of property rights, even though direct application is anachronistic. Locke wrote a theory of property highly dependent on labour—that the accumulation of property began with labour.Footnote ⁴³ Locke considered the leveraging power in a capital (money-centric) market as a means by which man could accumulate perishable goodsFootnote ⁴⁴ but his writings also had a God-fearing beginning which recognised the essential communality of the space on which we live and that taking more than was needed was without cause or proper protection.Footnote ⁴⁵

Van der Walt’sFootnote ⁴⁶ argument ascribes to the higher moral purview of property: that there are other values which our legal system aims to protect—like the ability to have, to accumulate, or to work—which naturally provide a human dignity. These human rights ought to be protected, but the right to property is no longer required for such protection and ought not to be required to secure other non-property specific rights.Footnote ⁴⁷ In many instances, the values which are the subject of the protections are opposed to the private property—or exclusionary aspect of property—protection. Rights to life and dignity for example are “qualitatively different from a largely economic right like property.”Footnote ⁴⁸ Further, protections of non-property values are carried out elsewhere (Bill of Rights) including the protection of personhood and human flourishing.Footnote ⁴⁹ Thus any view or continued argument that property rights are required to protect some measure of “sovereignty” of the individual, where free action, free thought, the dignity to work, for example, is implied, van der Walt’s well-articulated argument stands to remove these non-propertied rights from the argument.

The foundational question is then overlooked in most discussions about property rights and whether formalisation/legalisation is a necessary conduit for a fairer system. To a large degree, the nature and extent of formalised relations sit infra the more fundamental question of what drives the argument supposing that formalisation is a good? De Soto argues convincingly that dead capital does not provide growth opportunities because dead capital (that which does not exist within the formalised system) cannot be leveraged.Footnote ⁵⁰ Taking a broader view and examining land rather than property does not change the outcome. Land as providing something other than leveraging capability—that is, as an inherent part of identityFootnote ⁵¹—does need to be protected, though whether it necessarily needs to be in the property form is contestable. Here, we are not simply referring to axiology—to the values one group might ascribe to a space vis-a-vis another group. We are talking of ontology, of the fundamental state of being and what comprises that state. To many—those who derive an existence from, those whose ancestors are part of, those whose soul becomes entwined with land—land is them. De Soto’s argument on this point fails to take consideration of underlying alternatives that suppose land and her value is ascribed differently.

4. The Failure of Westphalian Property in Africa

Regardless of the debate for or against, property rights and its attendant institutions have struggled to be effective in Africa.Footnote ⁵² This apparent failure has been attributed variously. It has been argued that insecure tenure enables dual allocation of land, either allocation of the same plot to different people, allocation of land belonging to neighbouring chiefs, or sale of land already sold to others, in order to generate fraudulent profit.^{Footnote 53} It has also been argued that there are incentives for keeping property rights institutions weak: that benefits accrue to those in power when property structures fail. Such benefits include: additional money for selling land already sold to generate revenue; giving land in return for political votes; or re-selling land to flood a constituency with voters who either oppose or support particular candidates.^{Footnote 54} A semblance of improved tenure rights de jure may encourage mining investment, yet de facto insecure rights allow the re-sale of agrarian-occupied land to mining corporations. Onoma argues that where profits from land accrue directly (for example, from the sale or mortgage of land) there is little incentive to bolster property rights institutions, such as property laws or land tribunals. The hazier the boundaries of land are, the more easily rights over land can be exploited. Profits from land that accrue indirectly—for example, where the productive use of the land through mining, farming or tourism generate profit—provide incentive for secure property rights institutions, because security encourages investment and so profitability.^{Footnote 55}

Private property rights in central Africa legitimise the sale of assets to capital, equity, and other institutional investors (including other states) but these sales may be no more legitimate in years to come than the wholesale humanitarian efforts to “civilise” central Africa. Whether mineral sales or humanitarian effort, both derive from an ethnocentric understanding of what “civilization” or “property” is. In other words, legitimacy comes from the perception of legitimacy, which is no more de facto than the notion of equality. They are both abstract notions of value. Reality ought to have us examine the connection between economic deprivation, poverty, sale of assets in mineral-rich countries, and the prevalence of conflict. Many researchers have drawn links between property rights and socio-economic disadvantage in African societies,Footnote ⁵⁶ often used as bolstering the relevance of using a (private) property regime. In so doing the system has enforced an exclusion of alternative conceptions of land.Footnote ⁵⁷

Brown argues that the pursuit of the private property doctrine has led to “social and economic exclusion, elite capture, displacement, intra-community conflict, and the enclosure of common pool resources.”^{Footnote 58} Private property rights and its institutions can be—and have been—abused by those in positions of power, local and foreign alike, to register land titles in their name, whether that land is occupied by others, farmed, or part of seasonal cattle routes.^{Footnote 59} The skewed understanding of property relations, and a system imposed which has effectively de-legitimated other forms of property relations, may well provide a basis for conflict.

Even where customary landholdings have been included in the formalisation/legalisation mandate, the process has not necessarily yielded the benefits expected. Land registration ipso facto does not necessarily provide additional security of existing unregistered interests but rather may be used “to achieve certain preferred outcomes.”Footnote ⁶⁰ Further, despite the view that formalisation of land tenure would replace existing non-legal structures,Footnote ⁶¹ convincing autochthonous people of the value of this system when its operation may be remote from the people (both in terms of physical location of a cadastral register and in terms of values or beliefs held) is altogether a different task.

Pragmatic concerns also affect the legitimacy of the institutionalised property system in Africa. Rural land in Africa held under customary tenure^{Footnote 62} is affected by registered exclusive access rights. In a Sudanese example, an Administrative Order left a 3km radius as the maximum of a village’s lawful occupation, so as not to interfere with mining exploration, irrespective of the position of farm or grazing land.^{Footnote 63} Furthermore, the lack of awareness of registration schemes, cost of access, and geographical distance to urban centres mean that many rural poor have neither the means nor ability to register their land interests.^{Footnote 64} As a result, many peoples are forcibly dispelled from their traditionally occupied lands.^{Footnote 65} Marginalisation, in this case, results from more than the rejection of legitimacy of collective property, as Solway argues,Footnote ⁶⁶ but the discord between a registered property interest in a centralised place and the inability to register an interest; “[g]iven the reality of legal pluralism, to argue that formalisation of title yields an efficiently functioning property system is to make a hollow claim.”^{Footnote 67}

The underlying question posed herein is whether a legal system is capable of inserting (in an ordinarily and historically skewed presumption for a ubiquitous singular-focused ontology) ontological difference, both to achieve equality before the law and encourage the better provision for competing and overlapping access claims.

5. A Different Narrative: Not My Land

The story of property relations, no different from any other history, is narrative. The evidence for what existed is only as good as those who tell or told the story.Footnote ⁶⁸ Within the African context we may only have had reliance upon the records of colonisersFootnote ⁶⁹ in constructing the system extant at the time of colonization. The understanding that extra-legal relations in pre-colonial African societies were not market-based is a narrative: there is a legitimate counter-narrative that land markets did (and do) exist informally and within the customary tenure system.Footnote ⁷⁰ “There is therefore evidence that the non-market nature of customary tenure in Africa, to the extent that it exists, is as much a colonial construction as it is rooted in any essentially African value system.”Footnote ⁷¹ Similarly, it is possible that a form of private property existed (and continues to exist) outside the formalised legal system in places like central Africa, if one chooses to create an alternative narrative from an African perspective.Footnote ⁷²

Whilst some African communities do not solely use formal property institutions to regulate access and use of land and may use a collective social regime to manage land use, it does not mean that such use is unregulated. Regulated access to land has a long history; for example, the Dina Code of the Macina Caliphate in modern-day Mali (around the mid-19th century) regulated access to the rich dry seasonal pastures in the Niger River.^{Footnote 73}

Ontological distinction therefore must acknowledge to some degree the re-creation of narrative or at least the deconstruction of Western narratives. The question remains: “[a]re they really African stories or stories about Africa?”Footnote ⁷⁴ There is the counter-narrative that the non-market nature of customary land holdings in African culture is entirely a colonial construct.Footnote ⁷⁵ Even changes in customary tenure driven by increased population and scarcity of resources, and the dynamics of a particular place, changes the narrative; depiction of stagnant historical relations with land are unreliable as a narrative.Footnote ⁷⁶

The dominant discourse or narrative which has held so much sway in regions suffering conflict and dispossession on a large-scaleFootnote ⁷⁷ has been that formalisation of legal title—that is, building up property institutions to protect the ability of individuals and collectives to build their way out of conflict and poverty according to de Soto—is necessary. This formalisation may involve elements of codification, titling, mapping, and cadastral recordkeeping, etcetera, and is Anglo-American in its institutional design.Footnote ⁷⁸ It is the imposition of an externally derived system, or the creation of narratives framed by early colonisers and purchasers of land in places such as Africa, which is the very denial ipso facto of an alternative ontological existence on certain land. For example, where titling is an Anglo-American construct, it serves reason to suggest that titling serves a legitimising purpose for those same interests.Footnote ⁷⁹ A different narrative needs to be acknowledged; at least the possibility and plausibility of its existing, the narrative that prior to colonization, a system of formalised tenure existed.

Regardless of the particular narratives or the idea that the property relations are dependent on a cyclical valuation between property as liberty and property as collective stability (or any other formulation), the vital point that remains valid is that there is no one absolute truth to the nature of property and its regulation of relations.Footnote ⁸⁰ The disagreement between proponents of the property concept applied to developing nations and those who disagree with Western ideology being transplanted is that those who talk of privatisation, liberalisation, democratisation, titling of land rights, still have an inherent bias to how one relates to the land. As liberalistsFootnote ⁸¹ they approach development with the myopia of one who looks at markets and thinks how they can better function. They examine little the disparity in trade positions (which is more than mere market) and fail to consider the likelihood of continual conflict where property rights are not the remedy for easing relations between people. The problem is that the underlying understanding around land or space is misunderstood, or else not considered. It is more than axiology—discussing human values attached to land—it is ontological because space and attachment to territory is not a metaphor for rights, life, market access, and opportunity—it is life. Further, the notion of land not being mine but rather another’s, that it cannot be bought or sold but is a home to something more encompassing, even beyond ourselves, or even to embody a notion of the Divine, was the central overlooked component (in the author’s view) of ontological bias missed in the Canadian Supreme Court decision in Ktunaxa Nation v. British Columbia,Footnote ⁸² discussed below.

6. Westphalian Thinking, Right of Property

The right to property and the concomitant ability of rights in property to enable social goods is a product of Westphalian thinking. More than this, it assumes that non-Westphalian-derived property holdings do not, nor ever did, have any role in mediating social goods for other societies. Today, with a more egalitarian and less ethnocentric point of view, we cannot possibly state this. The Western construct of property is part of the Anglo-American ethnogeography.^{Footnote 83} This conception, very generally, views land as an economic tool, imbibed with worth through labour and capital,^{Footnote 84} profits or benefits accruing to those who “own” such labour and capital. It describes entitlements and limitations one has in using a resource^{Footnote 85} and is defined by individual rights to exclude,^{Footnote 86} use, enjoy, and transfer.^{Footnote 87} This conception imbues land with worth only through a market and, conversely only the market has the capability to accurately ascribe value. Thus land, under the Anglo-American conception, has a singular value which a market imparts, necessarily a monetary value.Footnote ⁸⁸ Only market changes cause alterability in land value. The Anglo-American conception of property has definable value, interests and tradability; land can be owned, divided, or traded because it has been or can be discretely packaged. This conception of land cannot ascribe other values of land such as a cultural or social value, nor can it consider other types of access lifestyles including herding or nomadism, other than as an exception to the private property rule (i.e. easements). Conversely, a market in land only works where land has market value.

Yet landFootnote ⁸⁹ may be attached to social and cultural meanings, livelihood sources and relationships which stem from inclusion rather than exclusion.^{Footnote 90} Although, the exclusionary nature of the right to property remains true whether in the context of private property, tribal ownership, or collective ownership. In many parts of Africa, living and working on land is a process of negotiation,^{Footnote 91} a process which allows the relationship between people and land to evolve and change over time. In Kenyan Akamba customary land tenure, there are five types of land: Weu, Kisesi, Kitheka, Muunda, and Ng’undu.^{Footnote 92} The different names are attached to land depending on its use or function and relationship to the people: land “flows” or changes name as its purpose and relationship with its people change. For example, Weu refers to unsettled, open hunting, and grazing land. Kisesi, on the other hand, refers to “seasonal pasture usually relatively far away from homes, which served mostly as temporary grazing areas in drought emergencies. They would usually be abandoned when conditions improved in grazing areas closer to home.”^{Footnote 93} In this tribe, as people move through the landscape, their relationship to land changes also. For example, “a piece of land that may have started off as an unsettled Kisesi could end up as ng’undu as a result of subsequent settlement and cultivation,” where farmed by the same family for three or four generations. This type of land is hereditable or revertible to common property.^{Footnote 94} Land, what is on it, under it and moving through it, is not always definable or “stagnant.”

The preference for societal duty in African society is codified in the African Charter. Article 28 stipulates that “[e]very individual shall have the duty to respect and consider his fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance.” Article 27 states that “every individual shall have duties towards his family and society, the State and other legally recognized communities and the international community” and “[t]he rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest.”Footnote ⁹⁵ In communities where land is transferred with consideration of wider social and familial needs or where land has social value more than economic value, formalised private property rights and the concurrent institutions such as a market are not only unnecessary but problematic. Under a dynamic where land is transferred without exchange of money, a private property model only complicates.^{Footnote 96} Without the antecedents for a formal property or land system, such as a market in land and commodification of land or monetary transaction that formally accompanies a transfer of land, there is little point for the existence of the system itself nor for formalising the institutions of property. Such formalisation can only benefit fairly those who participate in the way recognised by the system. Such a system may also allow abuse where foreigners can pay the government for a parcel of land which is inhabited but not registered by a local population who do not operate under a system of market value.Footnote ⁹⁷ Reliance on Western property conceptions has led to the delegitimisation of alternative conceptions of property.^{Footnote 98}

7. Multiple Ontologies and Social-Juridical Consideration of the “Other”

The focus on the narrative within African discourse about landholdings has only served to detract from the overlying problem of ontological bias. Overall, the private property/customary land/regulated/legalised property holdings discussion has not yielded consistent answers. Whether individual property rights collide with communal indigenous land tenure,^{Footnote 99} that communal tenure is its own narrative that does not dispel the non-existence of private property or something like individual ownership prior to the 19th century occupation of Africa. Whether collective rights are largely constitutionally unprotected^{Footnote 100} or where customary land holdings vested in a Chief ostensibly to preserve rights for future generations,^{Footnote 101} there is inconsistency about the role of property relations in Africa. This is not a negative, that narratives are diverse and inconsistent. We should “seek to avoid imposing a false internal coherence and unity on a particular cultural community … Cultures are not generally unified and coherent but are dynamic and often contested.”^{Footnote 102} And in this, loosely defined property rights may curb the singularity of property relations which gives rise to so much angst in the African context, but also play a deeper role in legitimising the existence of the “other.”

The historical notion of exclusion as the core component of property rights is not as relevant today, after a time when property rights bolstered and were considered the foundation for the protection of non-property rights. Conversely, the exclusionary capacity as a core component still applies to territoriality as far as it governs relations between people on an exclusionary or “belonger status” basis. Exclusionary property is not a solely appropriate system because where formalised or legalised as an exclusive and singularly held right, it may prevent the operation of contestable overlapping interests based on territorial attachment.Footnote ¹⁰³ What needs to be remedied, once property right is no longer singular in meaning, is how and whether multiple ontologies can be accommodated within the property right. In other words, how and whether overlapping bona fide interests in natural resources and land can be recognised and made to work concurrently, above the current systems of non-exclusionary third-party access rights or easements. This is the place of differentiated constitutionality discussed below.

8. An Ontology of the Spirit-Temple-Home

Ktunaxa Nation v. British Columbia,Footnote ¹⁰⁴ decided in the Supreme Court of Canada, is an example of judicial consideration of an alternative ontology and, in the author’s opinion, a largely unsuccessful one. It is an example of where overlapping bona fide interests in land could not be made to work concurrently.

The case contains too many finer points to consider briefly. Primarily the case concerns the nature of religious freedom as a right under the Canadian Charter of Rights and Freedoms, s 2(a)Footnote ¹⁰⁵ and the Constitution Act, 1982, s 35.Footnote ¹⁰⁶ It involved a ministerial decision over the approval of a ski resort on land which included a sacred mountain known as Qat’muk used by the Ktunaxa and Shuswap First Nations peoples for spiritual purposes.Footnote ¹⁰⁷ Questions centred on the exercise of religious freedom, including whether the state had interfered in a manner that was more than trivial and insubstantial with the ability to act in accordance with that belief, and whether the ministerial decision to approve the construction of permanent structures for the resort were within the authority of the minister.

Ministerial exercise of power ultimately decided the case, the majority finding that the functions of office were appropriately exercised in accordance with the statute, on the basis that a twenty year period of consultation gave due weight to the serious and strong religious beliefs of the First Nations and had made appropriate concessions by reducing the impact of the resort and making arrangements for wildlife and conservation areas. The dissenting judgment by Moldaver and Côté JJ came to the same conclusion, though determining that the Minister correctly balanced statutory obligations for use of public land and the exclusive property right argued by the Ktunaxa. With regards to the latter, the Ktunaxa Nation held beliefs that entailed sole use over the Qat’muk mountain where Grizzly Bear Spirit resided.Footnote ¹⁰⁸

Judicial difference from the majority to the dissenting opinion is found in the classification and interpretation given to religious freedom. The majority, led by the Chief Justice, found that a religious freedom entails the right to hold and manifest personal beliefs, but excluded the right to preserve those places which were the focus of said beliefs. The minority opinion, in finding that the manifesting belief is only as vital and practicable as they are their practice. To the Ktunaxa Nation, absolute preservation of Grizzly Bear spirit-home is to persevere the religion in its practice, including its transfer to younger generations (being an important part of religious practice). A building on the mountain denies the home of the spirit being.

Fundamentally, these religious beliefs of the Ktunaxa tie spirit to land; they are indivisible. The ontology of belief around spirit and land-belonging are not distinct religious/land relationships, but rather the one religious-land relationship. The distinction is obvious to the Anglo-American ontology where use of land as property entails an exclusionary aspect. The Ktunaxa see “property” as spirit-land; perhaps better equated to temple (in Anglo-American parlance). So, destroying this spirit-land may be destroying a temple or temple-home. Perhaps more akin to destroying the monastery of a sect that only resides in that particular monastery. Or a cathedral. Protection of a cathedral may be considered a part of religious experience and practice.

However, a cathedral is also a poor equation because it can be rebuilt. Destroying a cathedral does not destroy the religious practice of worship, yet the destruction of Qat’muk does destroy the worship practice so intimately connected with a particular geographic place. The existence of Qat’muk, as a particular mountain, cannot be replaced unlike a cathedral. It is even more unique in its existence (arguably) than St. Paul’s Cathedral, as Grizzly Bear spirit only lives in Qat’muk whilst the spirit of the Divine in Christian tradition lives within and outside of St. Paul’s, though perhaps consideration of the destruction of a significant cathedral such as St. Paul’s would be a better equation.

Qat’muk is the object of religion required exclusively by the Ktunaxa for religious practice. In this case the exclusive use of “property” for the Ktunaxa, is exclusive right to practice religion. Both these terms—object and exclusive use—are ontologically biased and the majority deny strength in a spiritual claim for the exclusive use of the whole of Qat’muk, upholding the more amenable spiritual claims which enable a shared use of land.

The objective of the state here is found not to protect the object of religion, only the right to hold such beliefs and manifest them in worship,Footnote ¹⁰⁹ equating protection of Grizzly Bear Spirit as requiring the state to “assess the contents and merits of religious beliefs.”Footnote ¹¹⁰ But is not the protection required here misunderstood simply because the ontological foundation is not understood in the context of this judicial case? By comparison, would protection of a church yield the same decision? Further, protection of religious beliefs is not equal to being an arbiter of those religious beliefs or dogma.Footnote ¹¹¹ This is the domain of the priest. Indeed, in giving shared use over a spirit-residence-mountain, the court in this case did become the arbiter of religious dogma and placed a value on the dogma. Is this not another example of ontological difference and one that seems to have been misunderstood by a “Western” judicial structure with Western judicial thinking, to the exclusion of some of the thoughts of the minority judge? Another way of observing the difference is that to the Ktunaxa, the land-religion axis has no “property” attachment: it cannot be just used. The notions of property uncovered in the case remain primarily ethnocentric.

The second interesting and unconsidered ontological aspect of this case was that preservation of a sacred spirit-home-mountain is an inclusive claim. It seeks not to exclude other users but focuses rather on the inclusion of Ktunaxa generations to come in sharing ancestral spiritual beliefs. The notions of inclusion and exclusion are ontological. Here, the desire to maintain the land was however described as being exclusionary to those who sought its use for pleasure and profit purposes. The balancing of interests here weighed one person’s right of enjoyment and use/exploitation against another’s to pay reverence to the Divine.

Weighing claims to land or property, therefore, is contingent upon determining the strength of each claim. To do this, one needs to correctly identify the premise of the rights upon which each claim is based: enjoyment, exploitation, profit, religion. Utilising Kolers’ idea that those who are physically intimate with the land (and thus are able to ground an autochthonous claim) and can therefore describe certain features of the landFootnote ¹¹² ought to be prioritised, may work to be more inclusive of indigenous notions of spirit-land or even to subjugate mineral claims to indigenous claims. Indeed, this may be vital where recognising that, in the context of differing ontologies, we cannot even presuppose a layering of interests, which was assumed in this case. That is, we cannot assume that it is possible: that land can hold indigenous value and another’s values. For the Ktunaxa Nation, the claim to religious freedom was a claim to property (in the Anglo-American sense) and this meant a refusal to other claims, including that of the company. This particular point addresses an issue raised in the decision of the Chief Justice: that religious exercise or freedom cannot require others who “do not share that belief to modify their behaviour … [to cause] interference with the rights of others.”Footnote ¹¹³ Yet in this case there was to be no modification of behaviours extant or interference in rights extant—there was currently no skiing or profit-making on the mountain and hence specific modification/interference was not possible. Perhaps the modification of behaviours or interference in rights was merely the presumption for future potential in profit, sport and leisure activities.

A final anthropological point worth mentioning for fullness is around effective community consultation, which has become an area of academic study in its own right. The Minister was found to have fulfilled the duty of deep consultation in this case, due to the length of time and the range of inclusiveness. The decision to make concessions for both the resort and the First Nations was done with community consultation and proportionately. Thus, deference to the Minister’s decision was warranted.

Knowledge of Grizzly Bear spirit-home came to the attention of the minister late in the consultation process and was not known to the majority of Ktunaxa but only to Knowledge Keepers. Thus, it was considered by the majority to be a weak spiritual claim. Accommodation of interests is only expected where it is warranted and varies with the strength of the claim.Footnote ¹¹⁴ This appears to presume and indeed allows a unilateral decision based on ontological bias: that the beneficial use of public land means a sharing of interests, that is; granting exclusive use of the land to them or the other does not seem to enter the discussion. Anglo-American paper title to land, in a more ontologically sensitive system of understanding, may be merely an assertion of a claim on property, not necessarily equal to the right to that property itself. Leaving each property demand as simply a claim enables a better balancing of claims, based on the strengths of each.

It was found that there was no substantial interference with Ktunaxa rights, because the spirit-home was a weak claim. The test for trivial or insubstantial interference by the Minister is for a communal dimension of the right, as shown by disruption of communal institutions.Footnote ¹¹⁵ The majority held that as most of the community did not know of Grizzly Bear spirit’s residence in the mountain, it was not a communal belief. However, the fact that a Knowledge Keeper is entrusted with the knowledge of the spirit bear residence is still a communal dimension, the community entrusting that knowledge and the preservation of the sanctity of the spirit-home to the Knowledge Keeper. In much the same way as bishops are entrusted with divulging the word of God. Converse to the findings, it could fall to the responsibility of the Minister to seek out the Knowledge Keeper. The specific Knowledge Keeper was only sought out late in the process.Footnote ¹¹⁶

Community consultation must not just occur but must be effective, which includes having discussions with local experts, and consideration of the depth of underlying knowledge.Footnote ¹¹⁷ This requires a correct identification of the community, including relevant knowledge experts, at the outset.Footnote ¹¹⁸ Engaging with the community ensures that harm is minimised, trust is built, and the approach ensures correct understanding of the cultural and religious sensitivities of the people.

9. Constitutional Territoriality: Not a Tautology

Constitutional property, as an abstract and inalienable right with specific qualities,Footnote ¹¹⁹ is entirely distinct from the idea of property title.Footnote ¹²⁰ The argument of this paper is not directed at one particular type of property formalisation—whether cadastral record or other tenure security system—nor does it seek to engage with whether there are some forms of collective ownership which can be granted private property security. Much in the vein of Moroni’s differentiation between the abstract property right and definable/tradeable property title, the intra-property specifics and the particular institutionalisation is less the concern of this paper. Rather, it is the abstract property right—the value of the right of property and, even more so, the underlying ontology of this abstract “right”— which is the central concern of the discussion here, and whether this “right of property” ought to be constitutionally embedded. Furthermore, whether, entrenched constitutionally or otherwise, this idea is able to be culturally and ontologically pluri-lateral to a sufficient degree to be operable in societies where the semantics of the word may have no etymological origin.

Van der Walt suggests constitutional property is less a requirement where civil liberties are guaranteed elsewhere, than through the enforcement of the property paradigm. This however does not detract from the need to have a constitutionally embedded territorial right. Indeed, an extant Constitution usually defines an extant territory, for the foundational governance document of and over and for a peoples only exists in the presence of a territory upon which those people exist.Footnote ¹²¹ A Constitution then, as historically divined, necessarily curbs the need for a constitutional articulation of property, playing a broader function in defining the rights and responsibilities of the people in their dealings with each other in that space. Territoriality then, historically, is the land space on which these people in their collective property relations are governed.Footnote ¹²²

Could the argument be advanced that a Constitution, in delineating rights of access, right to subsistence or livelihood, right to vote, for example, define the rights “belonging” to that territory? The author believes it could. It defines those who are included from the socio-political benefits and those who are excluded. Thus, in defining not simply the rights and responsibilities of the Rousseaun social contract, the Constitution operates according to the “bright line” property proponent’s view that the primary purpose of property rights is to define, by an underlying discriminator of exclusion, who belongs. Hence, property rights articulation in a Constitution would not, historically, have been necessary.Footnote ¹²³ Is a Constitution today to be viewed as defining rights attached to and protected by this exclusionary right?Footnote ¹²⁴ The author argues this is the case,Footnote ¹²⁵ even where identity and self-governance claimed by Constitution-formation can occur in the absence of a defined territory.Footnote ¹²⁶

Constitutional territoriality aligns with a moral and jurisprudential approach to the freedom to dispose of one’s natural mineral wealthFootnote ¹²⁷ and with the political discourse on the multicultural nation-state, where various concepts as “‘differentiated citizenship’ … ‘liberal multinationalism’ … [or] ‘normative diversity’ replac[e] the concept of the ‘nation-state’ with a ‘composed or multi-layered nation.’”^{Footnote 128} In this way, constitutional differentiated territoriality becomes bound up in notions of the state and self-determination, which is highly relevant for current discussion surrounding African statehood.

State-driven territoriality excludes those who are not citizens in the territorially-bound state. In this regard, territoriality cements its justification as a foundational concept of constitution-formation, whereas property need not be considered a core constitutional right.Footnote ¹²⁹ Curiously, even Locke could be said to have recognised the distinction between property and territoriality: “in governments, the laws regulate the right of property, and the possession of land is determined by positive constitutions.”Footnote ¹³⁰

In early narratives about land, property was land and was power.Footnote ¹³¹ Thus, property and territory could perhaps be considered synonymous. We may know very little absolutely about how the property or territory relationships were formed or existed as far as considering those relations in early codification attempts.Footnote ¹³² Where territoriality is so important an aspect of property relations and identity, and where connection to space—that notion of belonging—is no longer definitely assured with pragmatic access rights, the feeling one has for a territory can exist without access to that space.Footnote ¹³³ This attachment may be described as ontological. Significantly, the Southern African Regional Poverty Network (SARPN) in 2006Footnote ¹³⁴ released a statement arguing for new agrarian reform which acknowledged the rights of traditional occupants to maintain their own ontological (spiritual and material) relationships with the land, arguing for citizenry based on the same.Footnote ¹³⁵ The declaration rejected privatization and the de-collectivization of land.Footnote ¹³⁶ Juridical territoriality (constitutional or otherwise) is problematic because it may be considered Anglo-American in origin. It assumes ethno-similarity in the idea of bounding or controlling land under a legal system.

Constitutional prescription may be bolstered by engagement of civil society through informal means of constructive contestation which may empower citizens to hold public and private sector actors to account in decisions concerning the extractive industries and increase their participation in land decisions and awards. It represents dialogue—the creation of a political space to air grievances and resolve issues—between rural populations, their governments and extractive industries. Common actors in dialogue for change include NGOs;^{Footnote 137} extractors (both local and foreign); and host governments. Civil society needs greater inclusion, particularly agrarian populations who live on the land. Discursive contestation may enable local communities to more effectively engage with the multinational extractive industry and their political elites. Civic action in general is growing and becoming more sophisticated in Africa, demanding better constitutional, environmental, and human rights governance, and arguing for more restraints on the exercise of executive power.^{Footnote 138} In particular, tools such as cyberspace and networks such as the African diaspora are being effectively utilised as informal contestation mechanisms.^{Footnote 139} Furthermore, national courts and regional or international fora may be utilised.Footnote ¹⁴⁰

Due to the reality of multiple and overlapping interests in land and natural resources it should be a government prerogative to instigate reforms which recognise and accommodate multiple and conflicting levels of rights: corporate, state, customary, seasonal access rights. History has shown that without recognised ownership, traditional “rights” to manage, access and use the land and its resources and to determine how the fruits of the land may be shared, are not legitimated.^{Footnote 141} This results in wealth being fraudulently taken from the people to whom it rightly belongs.^{Footnote 142}

A system of prioritised interests puts development back in the hands of the people and should encourage creative solutions and flexible thinking which might value long-standing or sustainable relationships with the land over newer and/or foreign interests. Such a prioritised system would consider a variety of collective (and individual) claimants and would value neither formal nor traditional law more or less than the other; it would utilise both to accord prima facie rights to those who have a territorial claim. This could provide some protection to agrarian populations when faced with more powerful yet foreign enterprises, particularly from eviction or re-sale of unregistered lands that are inhabited by them. Their inherent interests could be protected by a constitutional right, removing the need for title registration which is one of the biggest challenges especially in inaccessible places. It does not mean that activities such as extraction are prohibited outright, simply that extractors would find their place on the “belonger status” some way down and have a concomitant shift in monopolied access and control rights. Constitutional (differentiated) territoriality means that an ethnogeographic community who have demonstrable autochthonous ties to the land are able to robustly contest their collective (and constitutional) interests in mineral (and other) territory,^{Footnote 143} because such interests are augmented under the constitution.

Territoriality does not deprive others from asserting contesting claims over the same land and so recognises multiple and overlapping claims.Footnote ¹⁴⁴ However, it may not be capable of accommodating or prioritising them. What is required is a method of differentiating overlapping claims. Similarly, as “ethnogeographic community” is a multifarious concept, additional criteria are required to define a claim for territoriality in a way to legitimise certain claims and not others, or alternatively, where there are multiple legitimate claims, to prioritise them. The result is the recognition of constitutional differentiated territoriality—the recognition of multiple layers of rights over land—a concept for differential treatment of rights of access and control in a legal system.^{Footnote 145}

10. Differentiated Territoriality as a System to Support Alternative Ontologies

I have mentioned previously the idea of differentiated territoriality or differentiated territorial rightsFootnote ¹⁴⁶ and its use in leveling bargaining positions to iron out the power plays of those who wield greater dominance in the negotiating room.^{Footnote 147} Specifically, as a way of dealing with the perceived dispossession of African lands from Africans and a way of leveling the bargaining position between local agrarian populations and mineral extractors where the investment potential of capital and equipment could be extreme in its disparity. Differentiated territorial rights may also recognise multiple ontologies—which may result in different land use beliefs.Footnote ¹⁴⁸ In particular, those of autochthonous relations to the land have a greater territorial claim to those only visiting.

Constitutional differentiated territoriality would have the following prescriptions: a) an embedded principle based on the freedom to dispose of one’s natural wealth as embedded in the ICCPR Article1(2); b) recognition of the territorial rights of agrarian populations in particular non-exclusionary systems of access; c) acknowledgement of multiple and overlapping territorial claims to land and mineral and the non-partisan inclusion of formal and informal systems of justice; d) recognition of collective claimants, be they non-state or state; e) acknowledgement of multifarious ethnogeographic communities as legitimate collective claimants; f) establishing legitimacy of an ethnogeographic community’s territorial claim based on fluid concept of autochthony;^{Footnote 149} and h) codification of the above into national frameworks.^{Footnote 150} I stop here at determining exactly what and how the idea of differentiated property rights would be implemented. In many cases no doubt the pragmatics may defeat the idea. Yet it remains, at heart, an idea to understand that property rights are a function of property relations that are there to better conceive of and utilise the property (or other better suited idea) to manage the land and resources claims of person and people.

There is no confusion with territoriality. Territorial rights do not nullify the existence of property rights but may include determination of property rights.^{Footnote 151} Territoriality may determine legitimate state claims (though this may also be contested),Footnote ¹⁵² and legitimate claims to control and access land and natural resources of sub-national collectives of peoples. Sub-national collectives or ethnogeographic communities have a shared and unique attachment to land or ethnogeography and can use territoriality to advance a claim for a share in collective resources; eligible ethnogeographies with valid territoriality claims thus are able to contest land and mineral access.^{Footnote 153} Preference for territorial rights as the right to manifest an ethnogeographyFootnote ¹⁵⁴ leads to the need to establish exactly what sort of attachment will be acknowledged. Kolers, for example, uses autochthony and plenitude to make his determinations.Footnote ¹⁵⁵ The institutional formula for differentiated territorial rights requires separate examination. The notion of having an institutional framework for the concept is somewhat problematic because any definitive codification bends the idea to suffer the same problem as with property relations, which are at first solidly delineated and then become more nuanced and complicated over time, which is self-defeating. Distinguishing territorial from property and the existence of layered rights belonging to groups of autochthones or visitors could foreseeably inform the operation of property rights.

The concept of differentiated territoriality, by embracing and involving other ontologies of land, could be used to establish and differentiate overlapping and conflicting claims for mineral land and the mineral wealth which it holds. Differentiated territoriality enables a prioritizing or balancing of competing mineral and land interests including those of foreign companies, local populations, displaced and returning peoples, refugees, newcomers, and the governments.

11. Conclusion: How Far Have We Come?

We are heading towards a quarter century. One would hope that by the time we get there, the overriding allegiance to the private property regime, or any other narrative created from little cultural awareness, will have only been allowed to flourish at the will and demand of the people, not by the demand and political power of those who believe it is the correct path forward. Regardless of how the pursuit of just relations looks on the surface, the appearance of abstract values such as equality and fairness are struggle concepts, whose appearance de jure look correct only in hindsight. In other words, an end appearance cannot be aimed at from the start. To look at the old understanding, that peace cannot be sustained through violence and those who lead violent resistance do not necessarily have the scope of understanding to lead in peace. Fairness of agrarian property relations can only be achieved by understanding the fairness of property relations from the start and part of fairness is comprehending the relationship concepts of property and land from the perspective of the people who live on that land. It is a question of the value that is ascribed to alternative conceptions of relations with each other and with the land, within the legal system and thus the value, in turn, that a legal system can provide to its peoples.