ATNS - Agreements, Treaties and Negotiated Settlements project

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Makuleke Community Land Settlement
Date:	30 May 1998
Sub Category:	Land Restitution Agreement (South Africa)
Place:
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State/Country:	Northern Province, Republic of South Africa
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	The Makuleke area is in the north-west of South Africa, near the borders with Zimbabwe and Mozambique.
Alternative Names:	Kruger National Park Land Settlement Contractual Park Agreement between the Makuleke and South African National Parks (SANParks)
Summary Information:
The Makuleke Community lodged their claim to restitution of lands under the Restitution of Land Rights Act 1994 on 20 December 1995. The right to land restitution for land alienated due to racially discriminatory laws or practices is one that has constitutional protection. They argued that: 'They were deprived of their land rights in the furtherance of discriminatory legislation and by means of discriminatory policies which would be unlawful under the current Constitution of South Africa; and Inadequate compensation was offered to them for the land and possessions lost.' (Australian Indigenous Law Reporter ('AILR') The community reached agreement with South African National Parks, nine government departments and several non-government organisation on 30 May 1998. This agreement makes provision for: The grant of around 24,000 hectares in full ownership to the Makuleke Communal Property Association; Co-management of parts of the Kruger National Park, including the right to use the park for commercial gain in accordance with conservation values; Restrictions on land title to ensure that the land is maintained as a conservation area; Mineral rights to be retained by the State; The waiver by the community over several portions of their claim; Pre-emptive rights in favour of South African National Parks in respect of certain land, and in the Makuleke Communal Property Association in respect of mineral rights; Skill and employment incentives for the Makuleke community; and The continued use of certain land by the South African National Defence Force. This agreement was discussed by the Land Claims Court in The Makuleke Community concerning Pafuri Area of the Kruger National Park and Environs, Soutpansberg District, Northern Province (Case No. 90/98), and several aspects of it, including the transfer of land, were made an order of the court.
Detailed Information:
The Makuleke Community were removed from their land in 1969 by the then Department of Bantu Affairs, land that was subsequently incorporated into the Kruger National Park, forming the northern section of the Park, as well as the Madimbo Corridor (used as a military buffer zone between South Africa and Zimbabwe) and the Venda homeland. The area of this land totalled 25,000 hectares, and the community were offered 6,000 hectares of land as compensation. The Land Claims Court found that the Makuleke Community had been living in the area somewhere between 150 and 200 years. It was common cause between the parties that they had been removed from this land as a result of racially discriminatory legislation and practices, which is the test set out in the Restitution of Land Rights Act, 1994 ('the Act'). The court noted that the issue of restitution was a complicated one, as the land is not only strategically important - parts of the land border both Zimbabwe and Mozambique - but also had mineral deposits and, being part of the Kruger National Park is 'patently of importance for purposes of conservation and the promotion of biodiversity' [para 3]. However, with the assistance of mediators from the Commission on Restitution of Land Rights (see below) these groups were able to reach agreement. The AILR states that the agreement reached after an 18 month negotiation period 'is widely held in South Africa to be a benchmark for land claim settlements affecting national parks and other conservation areas.' The community originally claimed ownership of the land, along the lines of Aboriginal title 'presumably�as it has been developed by Australian courts and legislation' [para 4, per Dodson J], but this issue was not considered relevant to the final judgment due to the fact that agreement had been reached between the parties. The court noted that the Makuleke community intended on staying on the land to which they had been removed in 1969, and using their restored ownership rights in the areas of national park to aid in economic development for the community while not disturbing the existing natural conservation usage of the land. The court declared that 'this is in keeping with the modern trend whereby it is recognised that a national park's human neighbours should share in the management of, and the benefits properly derived from, that park, rather than being excluded from it.' [para 12, per Dodson J]. According to the AILR, the community was willing to let it remain as part of the Kruger National Park on a contractual basis for at least 25 years, and it now operates under a joint management regime, supervised by a Joint Management Board. For a discussion of this arrangement from the Makuleke point of view, see the article by Livingstone Makuleke below.