Thursday, May 26, 2016

Argentinian National Ombudsman Issues Resolution Recognizing Kachi Yupi Community Protocol

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Guest blog by Pia Marchegiani, FARN

In a major development for the communities of Salinas Grandes and Laguna de Guayatayoc in Northern Argentina, the National Ombudsman (Defensor del Pueblo de la Nación in Spanish) has issued a national resolution, Resolution No. 25/16 (link to Resolution, in Spanish), that officially acknowledges the community protocol finalized by the communities in December 2015. The protocol is entitled “Kachi Yupi; Tracks in the salt; Consultation and Free Prior Informed Consent (FPIC) procedure for the communities of Salinas Grandes and Laguna de Guayatayoc.”

This is the first time that the Argentinian government has recognized a community protocol in this manner. The National Ombudsman is an independent institution within Congress created by the Argentine Constitution with the dual mandate of protecting human rights and monitoring public administration. Resolutions such as these are issued by the National Ombudsman when rights are not being respected or are threatened to be ignored. Thus, they seek to improve enforcement and contribute to policy making. In conjunction with issuing the Resolution, the Ombudsman’s office has also featured the Kachi Yupi protocol on its website, along with an article about the Resolution (see http://bit.ly/1Ts5Aqg). These actions raise the profile of the Kachi Yupi protocol and send a message to government agencies that it is a document that should be respected and used when interacting with the communities of Salinas Grandes and Laguna de Guayatayoc.

Resolution No. 25/16 urges various national and provincial authorities of Salta and Jujuy, including the ministries of infrastructure, mining and energy, agrobusiness, and environment to respect the FPIC procedure described by the communities in the Kachi Yupi protocol for any administrative or legislative measure that may affect them. The Resolution states that appropriate FPIC procedures should also be respected before the implementation of plans or development programs and before any authorization for the exploration or exploitation of resources in these territories is granted.

The Resolution is an important step because it shows that the national government is paying attention to and calling for respect for a process designed in a participatory manner by the communities themselves, and which is inherently respectful of their own culture and worldview. The Ombudsman’s action arrives at a time in which the communities of Salinas Grandes and Laguna de Guayatayoc are faced with a new challenge to the integrity of their land and resources: they have recently learnt through media articles that mining companies continue to seek exploration permits to exploit lithium on their territories.

The public recognition of Kachi Yupi, which was developed in a consensual manner after two years of hard work, strengthens the communities in their struggle to defend their territories and rights.


Pia Marchegiani is a lawyer with Fundación Ambiente y Recursos Naturales (FARN).

Wednesday, May 25, 2016

“The Indigenous World 2016” yearbook launch

IWGIA (International Working Group for Indigenous Affairs) have published “The Indigenous World 2016” yearbook, which was officially launched in New York on 17th May in relation to the 15th session of the United Nations Permanent Forum on Indigenous Issues.

The yearbook offers a global update on the contemporary situation of the indigenous peoples and their human rights and gives an overview of the main developments that have affected indigenous peoples during 2015.

Lesle Jansen from Natural Justice, contributed to the South Africa country specific report.

Please find the electronic version of the Indigenous World 2016 here. 

Tuesday, May 24, 2016

UN mechanisms address "inaccurate statement" made by World Bank on concept of 'broad community support'


Credit: World Bank
As part of the so-called Third Phase of consultations on the revisions to its environmental and social safeguard policies, the World Bank held a meeting in February 2016 in Addis Ababa on its proposed indigenous peoples policy, known as ESS7. The meeting was attended by representatives from several governments, including South Sudan, Kenya and Tanzania, as well as UN mechanisms on indigenous peoples and two civil society organizations.

Following the meeting, the Bank drafted a summary document of what was discussed, claiming expressions of "broad acceptance" among the participants in regard to a few different issues. One of these issues was free, prior and informed consent (FPIC). According to the Bank, there was "broad acceptance that the outcome of the FPIC process needed to be operationally defined consistent with the current approach under OP 4.10 where the outcome is broad community support."

On 20 May 2016, the UN Special Rapporteur on the rights of indigenous peoples, the Chairperson of the Expert Mechanism on the Rights of Indigenous Peoples, and the Chairperson of the UN Permanent Forum on Indigenous Issues (collectively the UN Mechanisms) wrote a letter to Bank President Jim Kim clarifying that the summary document was inaccurate. The UN Mechanisms noted that "it was never the objective of the [meeting] to generate interpretive comments on international standards. … Hence, it cannot be concluded that there was 'broad acceptance' among the participants of defining the outcome of FPIC as 'broad community support'" (emphasis in original).

Although the clarification is an embarrassing one for the Bank, the letter does more than simply correct a mistake. The UN Mechanisms express serious concern regarding the use of the term "broad community support", or BCS, in ESS7 in regard to FPIC. They note that BCS "is an ambiguous concept with no legal basis under international law" and that the Bank's own internal review on the implementation of its existing indigenous peoples policy shows that BCS "has failed to ensure good faith consultation leading to outcomes" that guarantee respect for indigenous peoples' rights. The letter notes a number of additional problems with the concept of BCS and discusses the principle of FPIC more broadly. It calls on the Bank to "adhere to its international responsibilities and support FPIC over BCS in the final version of ESS7."

The letter by the UN Mechanisms come as the final draft of the new environmental and social safeguard policies goes to the Bank Board of Directors for review and approval. It is anticipated that the new safeguard policies will be approved later in 2016.

Tuesday, May 17, 2016

Access and Benefit Sharing Meeting with Khoi-San Rooibos Farming Community in Wupperthal, Cedarburg Region

Photo:Lesle Jansen/Natural Justice
On 16 March 2016 Natural Justice, together with the National Khoi-San Council (NKSC) in partnership with the South African Department of Environmental Affairs (DEA) held a community consultation with the Khoi-San Rooibos farming community from Wupperthal in the Cederberg region. The consultation concerned the issue of access to indigenous biological resources by third parties and the benefit sharing thereof in accordance with  the Convention on Biological Diversity and the more recent  Nagoya Protocol. 

The NKSC and the South African San Council has been struggling for the last three years to get the South African Rooibos Industry to comply with their benefit sharing obligations under  Nagoya Protocol (CBD) and the South African Regulations on Bioprospecting, Access and Benefit-sharing.

The meeting was hosted by the Wupperthal Cooperative and DEA. At the consultation meeting, Mr Cecil Le Fleur, the chairperson of the NKSC, as well as Natural Justice, gave inputs on the negotiation process with the Rooibos Industry. The DEA then presented a recent Traditional Knowledge Report, commissioned by them, which confirms the Khoi-San as the Traditional Knowledge holders of the Rooibos plant.

Photo:Lesle Jansen/Natural Justice
During 2014 the NKSC made a national decision that the Khoi-San historical Rooibos farming communities should be the main beneficiaries in a benefit-sharing agreement with the Rooibos Industry. What the NKSC deems important is the recognition of the Khoi and San as the traditional knowledge holders to the uses of Rooibos.  The Cederburg belt region communities, such as Wupperthal is now forming part of the negotiating team with the NKSC and the SA San Council.


The Wupperthal community gave their support for negotiations to continue with the Rooibos Industry. Both the DEA and the NKSC will continue to hold legal empowerment meetings with the Khoi-San Rooibos farming communities in this region.

Wednesday, May 11, 2016

Should Research Communications Be Shared?” Indigenous Peoples’ Knowledge, Climate Change, and Research Contracts in South Africa

Guest blog by Dr. Laura Foster

Dr. Laura Foster recently spoke at the Annual Meeting of Force 11: The Future of Research Communications and e-Scholarship in Portland, Oregon from April 17- 19, 2016. Dr. Foster spoke about the joint research project on Indigenous Peoples’ Knowledge, Climate Change, and Intellectual Property between Natural Justice, IP Unit at University of Cape Town Faculty of Law, Indiana University - Bloomington, and the Griqua and Nama Nations of South Africa. The project is funded by the Open and Collaborative Science in Development Network (OCSDNet) through the International Development Research Centre (Canada) and iHub (Kenya).

 Foster shared insights from the joint research project on a panel about success stories in research and knowledge communication from outside Europe and North America and how those stories inform ways of improving research communication globally. Dominique Babini, Dora Ann Lange Canhos, and Juan Pablo Alperin also joined the panel and spoke on similar issues.

 In her remarks, Foster provoked the audience to consider how histories of colonial violence against indigenous peoples require us to think differently about notions of open and collaborative science. In particular, she highlighted how insights from the Indigenous Peoples’ Knowledge, Climate Change, and Intellectual Property project demonstrate the need for a more critical approach or what might loosely be called a “situated openness.” This concept draws upon Donna Haraway’s notion of “situated knowledge” and insights from feminist science studies and indigenous methodologies.

Foster argued that a situated openness requires a way of doing research that assumes knowledge production is situated within particular historical, political, and socio-cultural relations. It considers how open and shared knowledge practices can democratize knowledge, while also recognizing how such notions are embedded within colonial histories that explicitly deployed openness as a way to legitimate the taking of indigenous peoples’ knowledge. Furthermore, it aims to develop practices of knowledge production that are more responsive to contesting hierarchies of power and inequality, so collaborative research production might involve simultaneous modes of being open, closed, sharing, and restrictive.  

 In other words, the Indigenous Peoples’ Knowledge, Climate Change, and Intellectual Property project is working towards a more robust notion of situated openness in order to democratize science in more meaningful ways.

 Dr. Laura Foster (@DrLauraAFoster) is Assistant Professor of Gender Studies at Indiana University, where she is also Affiliate Faculty in the IU Maurer School of Law and African Studies Program. She is also a Senior Research Associate in the Intellectual Property Unit at University of Cape Town Faculty of Law. Her current book project examines how contestations over patent ownership rights, Indigenous San knowledge, and Hoodia plants in South Africa present emerging sites of struggle over who does and does not belong. 

Monday, May 9, 2016

Recognizing and Supporting International Community Conserved Areas (ICCAs) and Other Community Conservation Initiatives within the Convention of Biological Diversity

Street Art, Montreal, Canada
Natural Justice’s Cath Traynor recently joined Global Forest Coalition (GFC), the Indigenous Peoples’ and Community Conserved Area (ICCA) Consortium, and the Community Conservation Resilience Initiative (CCRI) at the Twentieth meeting of the Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA), 25-30 April and the First meeting of the Subsidiary Body on Implementation (SBI) 2-6 May, Convention on Biological Diversity in Montreal, Canada.

Both SBSTTA and SBI considered a range of agenda items relevant to indigenous peoples’ and community conserved territories and areas and other forms of community conservation. Position papers were produced for both meetings and for each key agenda item the papers highlighted key issues and additional documents and identified how to strengthen the draft recommendations to more appropriately recognise and support ICCAs and other forms of community conservation. During both meetings GFC, ICCA Consortium and CCRI members actively followed key items, presented statements, and submissions to the Secretariat and hosted a Side Event. An important item under consideration was the mainstreaming of biodiversity and ahead of the meetings GFC released a Briefing Paper on ‘Mainstreaming Biodiversity and the Resilience of Community Conservation’ which outlines how mainstreaming requires reforming a diverse range of sectors and processes that are currently harming biodiversity and the peoples and communities who depend directly upon biodiversity for their survival, livelihoods and culture. The paper illustrates how ICCAs and other forms of community conservation can play a key role in the process and considers challenges, the importance of governance, mainstreaming in the agriculture, forestry and fisheries sectors and provides recommendations.

Both SBSTTA and SBI produced recommendations which will be considered at the Thirteenth Meeting of the Conference of the Parties to the Convention on Biological Diversity will take place 4-17 December, 2016, Cancun, Mexico.

Friday, May 6, 2016

Beyond Protected Areas

A side event was held at the twentieth meeting of the Convention on Biological Diversity's Subsidiary Body on Scientific, Technical and Technological Advice on 'other effective area-based conservation measures. On Monday 25 April, the WCPA Task Force on Other Effective Area-based Conservation Measures (OECMs) and the Secretariat of the CBD (SCBD) hosted a side event on OECMs. The event was chaired by Kathy MacKinnon (Chair, WCPA/Co-Chair, Task Force on OECMs) and was opened by Braulio Dias (Executive Secretary, SCBD) who underscored the importance of developing guidance on OECMs as a means of contributing to the security of biologically diverse areas that lie beyond the current protected area estate. Trevor Sandwith (Director, Global Protected Areas Programme, IUCN) suggested that the development of guidance on OECMs provides an important opportunity to consider the factors that lead certain areas that are currently not considered to be protected areas to support the conservation of biodiversity and to explore means of enhancing those qualities. Harry Jonas (Natural Justice/Co-Chair, Task Force on OECMs) presented an overview of the Task Force, the roadmap developed in Cambridge (January 2016) and the Task Force’s progress to date. David MacKinnon (Canadian Council on Ecological Areas - CCEA) presented on the CCEA’s work on OECMs, including a screening tool. Questions were raised by, among others, Puri Canals (Mediterranean Protected Areas Network), Simone Lovera (Global Forest Coalition) and Sarah Pearson Perret (Switzerland). Further information about SBSTTA-20 is available here.  

Thursday, May 5, 2016

MARGINALISATION AND INEQUALITIES COURSE (OSISA)

Reflections from Indigenous Fellows Ivan and Yvette

Natural Justice’s Cape Town office held its monthly Skills and Information Sharing Session on 25 April 2016. At this session the Cape Town office’s two indigenous fellows, Ivan Vaalbooi and Yvette le Fleur, shared their reflections with the team about their learning at the Open Society’s Initiative for Southern Africa (OSISA) Marginalisation and Inequalities Course, which they attended in Johannesburg from 2 to 15 April.

This course aimed at providing knowledge around marginalisation and inequalities in Southern Africa, as well as the skills to use the knowledge gained when working with marginalised communities and inequalities in society. The knowledge is also useful in influencing policies and laws. It is said that inequality in Southern Africa is amongst the highest in the world. This course identified domains in which these inequalities, marginalisation and social exclusion manifest itself in this region. These domains are ethnicity, race, class and nationality, gender, people with disabilities, youth and identity, as well as indigenous peoples. It also looked at how marginalisation and inequalities could be addressed through social policy for the development of Southern Africa that has respect for the human rights of marginalised peoples under the domains of exclusion and inequalities mentioned above. The course brought a wide array of indigenous peoples, activists, academics and experts alike together in this discussion.

The knowledge gained at this course is important for Natural Justice as its work is focused on such marginalised indigenous and local communities in Southern Africa impacted by their human, environmental and related resource rights.

OSISA supports both Yvette and Ivan’s fellowship with Natural Justice for a period of one year. Yvette is a youth from the Griqua Khoisan community, West Coast of the Western Cape. Ivan is from the Khomani San community in the Kalahari, Northern Cape. They appreciated understanding how policy can be influenced to address the concerns many of their communities continue to face within South Africa’s period of continued decolonisation in post colonial and apartheid South Africa. Natural Justice wishes to congratulate OSISA on running a very successful workshop and for their continued support of Southern Africa’s most marginalized communities, in particular their Indigenous Rights Programme .


Yvette and Ivan is looking forward to incorporate these learnings in their current work around land restitution, access and benefit sharing and related intellectual property rights work in both South Africa and Namibia. 

Wednesday, May 4, 2016

Intern Lorna Born reflects on Participatory Action Reserach with the Nama Community in the Richtersveld, South Africa


We left Cape Town early on Monday morning, driving northerly while the sun drifted over us, settling down in the west as we stopped for the night in Springbok. After an interview in the morning with municipality officials from the Richtersveld Municipality, we continued our driving to arrive in the afternoon in Kuboes where we met up with our community guide, Gerren. We soon discovered that time moves differently in the desert and we found ourselves adjusting to a new clock. This clock didn’t have numbers but rather activities. Sunlight dictated waking hours and insects directed when we could sleep. Our chalet was located right on the bank of the Orange River and the lush green that crowded the banks contrasted starkly with the expansive desert that surrounded us.

It proved pretty tough to track down some of the pastoralists as their lifestyles involve moving around the desert and grazing their stock. Stock posts showed where they’d settle own for the night but the day involved constant movement. We drove around bumpy, rocky roads just outside the Richtersveld Transfrontier Park searching for pastoralists, usually sticking near to the river as vegetation was densest here. We completed several interviews with Gerren, who organized the meet ups by gathering information on where the pastoralists might possibly be and by being our translator. For most of the interviews, we sat on chairs under the trees or scattered around a fire with a potjie in it. One interview took place in a house in Kuboes – a small town within the Richtersveld World Heritage Site. We were welcomed into homes and stock posts and the interviews were carried out without a hitch and before we knew it, our time in the Richtersveld was over.

We drove to Port Nolloth on Friday afternoon to stay the night after our interview in Kuboes. Mercifully, we arrived in Cape Town on Saturday afternoon and thus had time to readjust our internal clocks to cope with traffic, slog and being indoors. 

This blog is the personal views of Lorna Born. Lorna successfully completed a two-month voluntary internship with the Climate Change Program at Natural Justice, she has a Bachelors degree in Marine Biology and Environmental and Geographical Sciences from the University of Cape Town.

Tuesday, May 3, 2016

International Symposium Held on Project Analyzing Community Protocols in the Context of Extractive Industries


Are community protocols useful in assisting communities to respond to the challenges posed by extractive industries? For the last three years, four communities in Argentina, India, Kenya, and Zimbabwe, respectively, have been participating in a project that seeks to answer this question (click here for more information). On Thursday April 14, a Symposium at the Heinrich Böll Stiftung's  headquarters in Berlin brought community members and supporting organizations that are part of the project together with experts involved in relevant fields to present and discuss experiences as well as lessons-learned from the project so far.

The Symposium provided an opportunity for participants to learn more about the process going on in each country through parallel working groups. During the working groups, each project partner gave a presentation on the process thus far and participants were able to ask questions and share their own thoughts and experiences. The presentations showed that the various protocol processes had helped communities to decide on their priorities, articulate appropriate ways for obtaining free, prior and informed consent, and led to the formation of community groups to deal with specific issues caused by extractive activities. In the afternoon, a "World Café" session addressed several guiding questions relevant to developing community protocols, including how to identify the "community" to ensure meaningful stakeholder engagement, options for benefit sharing arrangements in the context of extractive industries, and how communities can ensure that impact assessments are conducted with their participation.

The Symposium also served as the launch of the Community Protocols Toolbox, a publication developed as part of the project. The Toolbox provides practical guidance for facilitators on what to consider before developing a protocol. It breaks the protocol process down into five main elements (facilitator’s perspective, community background, process, outcome, and legal landscape), with context provided for each element. It also provides tools for actually engaging in the process of developing protocols, including tools for holding meetings, ensuring an inclusive process, and for finding relevant national and international laws. It is currently available in hard copy in English, but we hope to make it available in other languages soon. Over the next few months, work will also continue on a research paper to provide an overview of the different processes and seek to identify good practices for protocol processes in the extractive industries context.