4.1 INSTITUTIONAL AND LEGAL ASPECTS.
It is estimated at the present time that the regulation be it customary or modern, does not sufficiently take in account the conservation of the biological diversity even though, on the whole it already contributes to its conservation. Thus, in the traditional society, the use of natural resource is submitted to a customary regulation under the control of a customary chief.
4.1.1 TRADITIONAL ORGANISATION OF NATURAL RESOURCES MANAGEMENT.
Nowadays, land problem constitutes one of the thorny elements in the issues of soil management. In spite of the different reforms, customary practices are part of the daily life of villagers. The natural resources are placed under the sovereignty of a land custodian or village chief. In the traditional society land law is imperative at the level of the customary exploitation and conflict resolution.
a) Access to land in the rural environment
Land is considered a property whose access is reserved to all, including strangers. However, there are rules of land tenure. The different types of uses are: permanent use right that is acquired by inheritance, or after clearing or yet by lineage (or segment of lineage) and temporary use right that is a loan granted by a permanent use holder.
In the traditional environment, land is an inalienable property and by this fact it cannot be the object of an exchange, of mortgage, of sale or even less definitive gift. The advantage of the traditional system is that land is a sacred property and it escapes despoilment. Its major inconvenience resides in the nature of the system of land concessions notably the temporary loan, source of permanent insecurity for the recipient.
b) Traditional right of use of forest and other resources
The traditional African society in general and Burkinabè in particular distinguishes two types of forests:
the sacred forests that represent places of cult and are therefore shielded from all forms of exploitation. They are rarely more than ten hectares each;
the bush that represents the non-sacred forest areas whose exploitation is subject to rules and customs generally under the authority of land owners or bush chief. It is there that rural and other various activities take place.
Traditional rights of use include nuances according to the produce to which they apply.
The Right to exploit trees is exercised by the land custodian village chief, or the land lineage chief or by the recipient owner of loaned land. Generally, the land owner sets the rules for the exploitation of so-called sacred trees (or useful ones) such as the néré, the shea nut, the baobab, the fig-tree, the kapok tree, etc.
In general, traditional hunting in Burkina Faso is yearly and collective (beat). In addition, it exists the individual hunt that is the regular hunter fact.
The management of lakes is also the responsibility of customary authorities. Permission to fish is given by the customary chief in the Mosi area, water chief in the Bissa area and no one can fish without their authorisation. In the Gurunsi area, every village can have a backwater that it exploits as it pleases the villagers. Traditionally, there are some accredited fishermen.
The lands traditionally reserved for agricultural activities raise the issue of breeders’ access to pastures, and their uses are regulated on a consensual and control basis.
4.1.2 STATE LEGISLATION ON NATURAL RESOURCES MANAGEMENT
The Constitution of Burkina Faso states that all citizens have a right to a healthy environment, but they also have a duty to protect resources of the environment (article 101 of the constitution). Thus, the management of natural resources and the environment in general falls within the competence of the law that determines the practical measures on the subject.
The legislation in force on the management of resources concerns several aspects of its management, from land to irrigated perimeters, and is complex enough. Indeed, most of the present laws concerning the environment are still characterised by their partial colonial nature. As all the old French colonies of the subregion, Burkina Faso inherited the colonial legislation as regards land, forestry, fauna and fishing in French West Africa. Although many texts were subsequently adopted, the colonial legislation still subsists in many domains. The fact is that all this set of colonial texts organises a protection with little efficiency of the environment. Elaborated at a time when conceptions about natural resources protection were still recent, they are limited in general to a utilitarian approach. Nowadays, this conception has evolved a lot to consider the environment as a property that deserves a particular protection, no more in an immediate perspective but for present and future generations.
Other evils that characterise the environmental legislation up to a recent date are: multiplicity, inefficiency and often confusion.
The multiplicity of texts results from the fact that elaborated in the colonial and post colonial contexts, their conception was not perceived in a globalised approach of promotion and protection of the environment. It was an ad hoc legislation, destined to manage punctual situations. This punctual approach, consisting in legislating just as the circumstances arose, inevitably entailed some consequences that hindered the pursuit of coherent and effective actions;
Confusion: to the multiplicity of texts is added the multiplicity of actors on the ground; all things that create confusion in the sharing of roles and responsibilities linked to the application of texts;
The ineffectiveness of this legislation results from the fact that most of these enforcement texts were disseminated in the administration, without hold over the realities on the ground. These texts imprinted with the colonial spirit resolutely opted for excessive repression of the populations that did not understand why on their own land they were excluded from the exploitation of the natural resources (e.g.: case of forest reserves).
To mitigate the perverse effects of these situations the authorities often proceed to the adoption and/or rereading of some measures. For example, we can mention: the Agrarian and Land Reorganisation, Forestry Code, Environmental Code, Water Code, Draft Orientation Texts on Decentralisation, etc.