Customary right to fish when fish are sparse : managing conflicting claims between customary rights and environmental rights

Access to and the use of natural resources by indigenous communities has received considerable international attention. In the context of marine resources, indigenous claims to subsistence fishing rights have, in several countries,1 given rise to the recognition of aboriginal rights, the establishme...

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Published in: Potchefstroom electronic law journal Vol. 16; no. 5; pp. 554 - 580
Main Author: Feris, L
Format: Journal Article
Language: English
Afrikaans
Published: South Africa North-West University 01-01-2013
Subjects:
Law
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Summary: Access to and the use of natural resources by indigenous communities has received considerable international attention. In the context of marine resources, indigenous claims to subsistence fishing rights have, in several countries,1 given rise to the recognition of aboriginal rights, the establishment of aboriginal title, the conclusion of treaties, the creation of reserves and the carving out of fishing rights. These entitlements have enabled indigenous communities to access both freshwater and marine resources and maintain traditional subsistence economies. This, however, is only one part of the story, as over-exploitation of fisheries (primarily as a result of commercial fishing) and the collapse or near collapse of key marine resources has also grabbed international attention. In the wake of pending disaster more and more governments are utilising measures such as the creation of marine protected areas to conserve and manage key marine species in order to ensure long-term sustainable utilisation. What happens, though, when an indigenous community attempts to exercise its customary right to fish and the nearest access to marine resources is located in a marine protected area? This contribution addresses the potential conflict that may arise between customary rights and environmental rights in the face of dwindling natural resources and the need to find a balanced approach.
ISSN: 1727-3781
1727-3781
DOI: 10.4314/pelj.v16i5.13