Notions of Ownership - Our Mountains and our Natural Resources

1997 MCSA Journal Editorial by FRANÇOIS JUNOD

In these modern times we all frequently need to escape to the silent places to find ourselves again in the wilderness of our earthly existence - as did Christ and other prophets. 'And seeing the multitudes, he went up into a mountain.' These words from the beginning of Matthew 5 precede one of the greatest messages to mankind; the Beatitudes - 'blessed are the meek for they shall inherit the earth,' recently re-translated as 'You are blessed when you feel you're at the end of your rope. With less of you there is more of God'. The prophet Mohammed also chose to scale the high ground of Mount Thour, Mount Ararat and the Hira Cave to listen to the first words of the Koran spoken to him from above.

Ever since I came back from America where I witnessed the depredations brought upon the environment by the erection of billboards advertising beauty spots up to 1 000km before reaching them, I have developed a phobia that this beautiful country of ours will itself fall prey to a similar pattern of action when exploiting the environment for gain. It is with this in mind that some of us have tried over many years to assist various mountain clubs in South Africa to protect for posterity the mountain heritage upon which we so desperately rely, not only for our climbing, but also for our sanity and our peace of mind.

If today we take the 4,6 billion years of the life-span of this planet since its birth as occurring within a single year, we get a true perspective of man's place within that year. Our own lifespan over our three score years and ten represents only the last half a second of the last minute of the last day of that whole year. If we take the 100 years we are presently celebrating in this centenary issue of the Journal, that represents only one fifth of a second longer! In relation to that single year, Christ was born 14 seconds before midnight, homo sapiens and civilisation 70 seconds before midnight and primitive man (australopithecus) seven hours before midnight of New Year's eve. Let us compare that year with the approximate age of our and other mountains, as given to me by the well-known geologist, Dr Tony Brink as well as Mr Peter Bosch of the Council for Geoscience (see table):

Thus the hillocks that we lowly up-country Vaalies walk upon during our week-end traverses in the Magaliesberg are something like 140 times the age of the Matterhorn in the Alps and 40 times older than Mount Everest in the Himalayas, and four and eleven times older than those ‘majestic peaks' climbed by our Cape and Natal brethren respectively! Yet, however old or new all these mountains may be, they have a vitally important message to impart, if we will only take the trouble to listen to and respect them. They have suffered enormous upheavals; they have been covered with ice for more than a hundred million years. The depth of the original eroded material above what we walk upon today has been up to several kilometers thick in places. They have been twisted and tortured by the elements, by heat and by untold upheavals ever since they were first born. The remaining ripples we see on the numerous quartzite slabs which abound in the Magaliesberg tell of an immense shallow sea that preceded at the beginning of time any cracking or twisting of the earth's surface. So I pose the Psalmist's question: 'What is man that thou art mindful of him; he is like a puff of wind, his days are like a passing shadow.' And yet he adds: 'Thou madest him to have dominion over the works of thy hands; thou has set all things under his feet.'

It is in this setting that mortal man now sets himself to have dominion over the mountains and waters of the world. It is man who, by the expenditure of a few hard-earned shekels from his back pocket, purports to claim the right of ownership of creation - to the extent that he demands either to be left totally alone in his enjoyment of that part of creation which he claims 'belongs' to him or that he be paid for sharing its commercial use! Aye, to what depths of depravity and arrogance have we not sunk as willing victims of our own greed and rapacious dependence on money? Should we not echo the words of Tecumseh, the Shawnee Chief, when he exclaimed: 'Sell the earth? Why not sell the air, the clouds, the great sea?' Frank Tenorio, a fellow chief of the San Felipe Pueblo, put it thus: 'A great deal has been said about the sacredness of our land which is our body, about the values of our culture which is our soul; but water is the blood of our tribes, and if its life-giving flow is stopped or polluted, all else will die and the many thousands of years of our communal existence will come to an end.'

Should we not then accept to share the mountains we climb, the air we breathe, the water we drink - all these things, are they not "so particularly a gift of nature's bounty", to use a phrase of Prof Joseph Sax of California, that they belong to no one and yet belong to all? That is what our Roman and Roman Dutch ancestors proclaimed to be right - and Hammurabi long before them. What is it that has engendered in man a notion of ownership so strong that he, as proprietor of the land he 'owns', even refuses his neighbour a right of access over his land or denies his labourer the right to bury his dead on that same property? I have come across this acquisitive instinct for restriction of access so often in the Magaliesberg and other rural areas.

In the recent contribution I have been privileged to make over the last three years to the drafting of principles and legislation for the new Water Law of this country, I have been able to delve into and reassess our whole legal notion of 'property' as understood by our Courts and those of the western world. It is interesting to note that even in the most advanced capitalistic system in the world, namely the United States, a niche has been found in law for the concept of public ownership of the world's natural resources, in terms of a doctrine known as the 'public trust doctrine'. Built on the foundation that all grants of land by the king or sovereign power throughout the ages were subject to an inherent servitude enjoyed by the public and the sovereign to certain forms of access and use (navigation, fishing and commerce), the Courts, particularly in states such as California, Idaho, Massachusetts, Illinois, Montana, have slowly but surely decreed that no sovereign power, not even Parliament, can allow the State to abdicate its legal responsibility to preserve and protect property which belongs to the nation and to the public as a whole. This is by no means accepted in all State jurisdictions of that country and is still the subject of very considerable controversy and debate. But it does accord with the notion of res publicae and res omnium communes of Roman and Roman-Dutch law.

Even the Jews of old provided in their own Torah (Leviticus) that every fifty years any owner of land, or his descendants, was required to return to the seller or his family free of charge whatever land that owner had acquired fifty years earlier. That was precisely because the wisdom of the ages had taught that great nation the importance of starting afresh and not perpetuating the monopolies of land by a chosen privileged few.

The concept of individual private and exclusive ownership of property, particularly of land and natural resources, is indeed much younger than most of us realise. One only has to look at the communal ownership of African tribal land in this country to appreciate this fact. And in the United Kingdom, where public access to unimproved agricultural land is already protected by common law, there is now an even stronger lobby today by the present Labour Government to make mountains, moors, heath and lakes even more accessible to all.

And yet, let us not live in the ivory tower of philosophy or the dream world of the theory. Every man needs to own certain things to maintain his own privacy, dignity and his peace of mind. Moreover, our mountains need protection. They need man's ingenuity to save them and the environment from his own destruction. This is all the more so in a country with the dreaded legacy of apartheid where the discrepancy between ‘haves' and ‘have-nots' is such that fiscal priorities and the concentration of wealth preclude the possibility of expropriating all those natural resources that have fallen into the private hands of the privileged few. We, as mountaineers, can each contribute to save, acquire and protect those resources by applying ordinary pragmatic, common-sense practices and procedures of good husbandry during our lifetime. During that fraction of a second in the year lifetime of our planet as described above, we can still act collectively and individually as trustees or as custodians of that which has been entrusted to us, but always in the full knowledge that, if we fail that trust or refuse to share it in some way, it shall and must be taken away from us and given to someone else to do better.

It is here that our Club can play so important a part. Having been privileged to inherit the notion of dominium and full ownership of even our mountains or other natural resources such as underground water, let us all ensure that, subject to adequate controls and the demands of sustainability of use, they be shared with all who respect them. Let us thereby ensure that, when others are tired or need the solace of the silent places still available to man, we contribute as mountaineers to that availability - so that, escaping from the multitudes around us, we all, as human beings, can continue to share the silent message that they offer. Lao Tso told us many, many years ago: 'All things in nature work silently. They come into being and possess nothing. They fulfil their function and make no claim.' The mountains are no different and from them we can relearn that humility and sense of awe which arrogant modern man has so sadly forgotten. Through them we can hope to rediscover our deeper soul and touch that part of our inner being which ties us to whatever has preceded our own very short sojourn on earth. Through them we are given the opportunity to relive that same experience and environment on earth which inspired those very truths which are contained in the Beatitudes to which I refer at the beginning.

It is not good for man to be or live alone. It is even less good and more destructive for him never to be alone.

François Junod (1927 - ) is an honorary member of both the Transvaal and Magaliesberg Sections and is an ex-Chairman of the Transvaal Section (1964 - 1965). Having studied at Stellenbosch (BA), Cambridge (BA, MA and LIB), the Sorbonne (Cert Criminology) and Berkeley (MA Political Science), he has practised law as a junior and senior advocate for 42 years where he specialised in land law, water law and expropriations. François has assisted the Mountain Club in Gauteng for many years with the acquisition and protection of his and their climbing areas, including Tonquani, Cedarberg, Dome, Likkewaan, Castle Gorge and Trident.

In 1995 he was called in upon by the Minister of Water Affairs and Forestry, Professor Kader Asmal, and helped full-time pro deo over a period of three years with the Water Law Review Process and the revision of the whole Water Law legislation for this country. The impact of this legislation on South African society is likely to be considerable.