Tuesday, August 30, 2016

Reclaiming the Nama Past to Adapt to the Future

Exploring national responsibility past & present through
diagrams and graphs
By Julia Röttinger, Intern with the Climate Change Program

On the 26th and 27th of August 2016 Dr Cath Traynor and intern Julia Röttinger held a workshop with the Kuboes Youth Group facilitated by Gerren De Wett who himself is a community and lives in Kuboes. It was the first time that Natural Justice worked with that specific youth group and therefore interesting to see how the young participants between 23 and 31 years would react.

Studies on climate change have indicated that vulnerable groups, which include Indigenous Peoples are likely to be negatively impacted, and groups such as the Nama People in Kuboes, Richtersveld are expected to suffer climate change impacts, with effect principally felt through water resource availability and food security. The workshop therefore introduced key issues related to climate change: namely climate science, climate justice, the role of indigenous knowledge and community rights issues.

On the first day some background information on Natural Justice’s work was given before moving on to the topic of climate change and climate justice. The young adults were asked to explain what they associate with climate change. It was interesting to see how the group engaged with the topic through participatory activities.  After the first session it was clear that the group had some knowledge on climate change which helped to introduce climate justice including the issues of responsibility and the moral obligation of more developed countries to act. Short videos and other activities raised awareness and caught the group’s interest which made it easier to connect to the last task. After discussing their own experience as active pastoralists of climate change impacts in the Richtersveld area, the participants went out to interview Kuboes’ elders in order to find out more about changes in the climate during the past 30-50 years.

Mapping international to local responses
to climate change
The second day started with a short icebreaker activity which was facilitated by one of the youth group members, Regina, and energized the group. It was obvious that everyone was more comfortable now and the young adults were open and keen to learn more about the topic. The next session started off with an introduction to climate change responses on all levels – from international to municipal –through this the group realised how much is being done in theory. Further, an activity illustrated that there are ways to engage on climate change and climate justice issues on all levels as well as to participate and use human and also indigenous rights in engagements. In the next part the interview outcomes were discussed and reflected. The members had a very interactive and participatory conversation and came to the conclusion that they would like to learn much more about their indigenous knowledge with regard to climate change from the elders in the Nama community.  Furthermore, the group prepared a “participation contract” for the Peer-to-Peer Learning Exchange with Small-Scale Rooibos Producers in Nieuwoudtville (Northern Cape) for the following weekend which the youth group members are definitely looking forward to.
Energizers from Forum Theater approaches
In summary, the objectives and expectations of the workshop, such as raising awareness of climate change and climate justice issues, examining impacts of climate change in the Richtersveld area as well as highlighting the value of Nama indigenous knowledge and its relevance to climate change adaptation were achieved. 

The Quiver Tree (a long-lived giant tree Aloe)
is shifting its distribution towards the poles in response to climate change

Friday, August 12, 2016

Roads to Justice: the impacts of road construction in northern Kenya

“The control man has secured over nature has far outrun his control over himself.”
Ernest Jones,The Life and Work of Sigmund Freud, 1953

In East Africa, Kenya is considered a new frontier for business and development – hence the term “engine” of the region (David 2015). Since the country adopted its Vision 2030 strategy, emphasis has been placed on trade, industrial expansion and infrastructure development, with the aim of not only providing a stable economic environment but also transforming and solidifying the country as a middle-income economy (Kenya’s Vision 2030). To realize this goal, there has been consistent budget allocation and foreign investment into the country’s infrastructure development and growth, which has transitioned Kenya into the current explosive era of infrastructure expansion (Laurance 2016). The recent budget allocation, including external financing, gives a total of Kshs 117.6 billion - approximately USD 1.17 billion (Budget statement Fiscal year 2016/ 2017). But it is the transport routes, particularly roads, which have been identified as critical to maintain and expand this new frontier (Kenya’s Vision 2030 MTP2 2013-2017). The A2 Road Project, designed to bitumenize the 505km stretch of unpaved road from Merrile River, in central Kenya, to the Kenyan-Ethiopia border town of Moyale, fits well into this narrative.

It is hoped that by October 2016, the road construction will open the country’s undeveloped northern region to much yearned economic development (Marsabit CIDP 2013-2017). A region marginalised socially, economically and politically with the aide of colonial policies, some of which have continued well after independence. Pastoralism continues to be the the most productive and prominent livelihood in the region with livestock (cows, goats, and camels) being kept through a well regulated traditional system of grazing (CIDP 2013-2017). Since water is scarce, the community has designated water points, albeit limited, in different areas that are able to support both residents and their livestock (CIDP 2013-2017). Given the precarious nature of the environment and the importance of pastoralism, it is only sensical that any development project should strengthen these livelihood mechanisms. Therefore, we must be cognizant of the benefits and potential negative impacts that roads, such as the one in Northern Kenya ,may bring (Laurance 2015).

Fortunately, Kenyan law is not oblivous to the potential impacts such a development project can have on people and their environments. Kenya’s Constitution inscribes a fundamental right to a clean and healthy environment for all people, and for the benefit of future generations. The Environmental Management and Coordination Act (EMCA), the framework environmental law of Kenya, empowers citizens to participate in environmental processes as well as minimising and mitigating environmental damage. EMCA also stipulates that Environmental Impact Assessments (EIA), a participatory process of assessing potential environmental impacts of projects (Clayton &Sadler 2004), must occur prior to the commencement of projects. If approved, the EIA results in the issuance of an environmental license, which sets out numerous conditions to mitigate social and environmental impacts (Section 63 EMCA; excerpts from Kohli & Menon 2009).
Consistent with national law, an EIA study on the road was conducted and a report filed with Kenya’s chief environmental regulator, the National Environmental Management Authority (NEMA) in 2009 (A2 Road EIA 2009). In 2011, an environmental license to conduct the project under certain conditions was issued to the Kenya National Highways Authority (KeNHA), the project’s proponent (EIA/ 447). KeNHA then contracted two China-based companies (China Wu Yi and Jiangxi Zhongmei Engineering Construction Limited) and one based in Turkey (Gulsan Holding) to carry out the construction.

Five years on and the road construction almost complete, we are able to assess the roads constructions compliance with Kenya’s laws, including the environmental license. Community monitoring to investigate the project site, including interviews with affected communities, has highlighted numerous instances of non-compliance of the Environmental Management Plan (EMP), environmental license and national law.

Culverts and bridges have been poorly designed or constructed leaving surrounding areas and homes prone to floods resulting in the loss of human life and livestock. In other areas, constructed bridges have blocked community dams that were a collecting point downhill hence limiting accessibility of water for livestock and domestic use in these areas. Excavated materials have been disposed alongside the road blocking access routes for animals and residents to water points and grazing fields.

The excavation for the road has also resulted in unregulated clearing of vegetation, damaged existing livestock water pans and exposed borrow pits – the latter two resulting in human and livestock death and injury as reported by the people living in the area. Plastic bags used for construction have either not been disposed of or only partially burnt – a concern for pastoralists who believe livestock have died as a result of consuming this litter. Community water dams have been polluted and water tables disrupted leaving the community with insufficient water supplies, or no water all together, forcing them to walk long distances to access other water points. There has been direct physical displacement and dispossession without adequate compensation and a failure to adequately address dust storms from quarry sites.

All of these impacts are considered within the EIA study, environmental management plan, environmental license or national laws and, hence, should have been adequately dealt with. So, why is it that these impacts have occurred? Some of the reasons that must be explored relate to: the limited amount of monitoring that occurs during projects; vaguely drafted environmental license conditions, which are difficult to implement and monitor like ‘all waste water is disposed as per the standards set out in then Water Quality Regulation’ (Condition 3.1; Kohli and Menon 2009); and poor and ineffective response from relevant government agencies. Further, a disempowered citizenry, who don’t know the law nor mechanism to access systems of justice, are unable to exert the necessary pressure to hold the relevant government bodies and project actors accountable.

We have much work to do to improve the implementation of our laws but it is unwise to apportion blame to one group, given the real challenges that exist with funding and capacity of government agencies. As a starting point, we all must inherently accept that the rule of law, as a fundamental pillar of a democratic society, is completely fused to our plans for development because the law is not there to deprive us of a prosperous nation but to protect and enliven that which we, as Kenyan’s, hold dear.

Rose Birgen is a legal researcher with Natural Justice's Extractives, Infrastructure and Industry Program.

Thursday, June 30, 2016

What's it like to intern with Natural Justice?

Quirine Govers, International Intern with Natural Justice February-May 2016 reflects on her experience based with the Cape Town Office.

My internship at Natural Justice, Cape Town has given me more than I ever could have imagined. Arriving in mid-February I was tasked with helping to develop a shadow report for the United Nations(!). The report focused on the current situation for the indigenous people of South Africa. Whilst interning I was also able to help develop other projects, including the Traditional Knowledge Bill in South Africa and the Khwe Bio-cultural Community Protocol.

The invaluable experience I got from working at Natural Justice was in part not only due to the interesting projects that I was working on but also the colleagues who worked alongside me. Their passion and enthusiasm were truly inspiring, in particular Yvette Fleur, indigenous fellow, and Lesle Jansen, my internship supervisor.

One of my most memorable experiences is a trip to Bwabwata National Park in Namibia where I worked on the Khwe Bio-cultural Community Protocol. The focus of which is to assert the rights, challenges and visions as a community for the Khwe, a San-grouping in Namibia. Living and working amongst them, I got to fall asleep to sounds of Hyena’s howling and waking to the growls of Hippos. The Khwe let me become a part of their culture, helping with traditional cold burnings that prevent wildfires, as well as teaching me how they track animals. Whilst it is nice to learn about different cultures in a classroom or at work, it does not quite compare to eye-opening experience of real-life interactions.

If you have any interest in Human Rights, Indigenous People and Environmental Law then I highly recommend working at Natural Justice, you will not be disappointed.
Leopard print, Bwabwata National Park, Namibia.

Elephants, Bwabwata National Park, Namibia

Tuesday, June 28, 2016

Kukula Traditional Health Practitioners Association Bio-Cultural Community Protocols Revision Workshop & Peer-to-Peer Learning Exchange

Community mapping
Natural Justice’s Cath Traynor together with Mina Buthelezi (SANParks BSP/K2C Data Collector & Field Assistant), and Prof. Wayne Twine (Wits University) facilitated a 3-day workshop with the Kukula Traditional Health Practitioners Association to revise their bio-cultural community protocol (BCP). The Kukula’s original BCP was finalized in 2010, and the past 6 years have seen a growth in Kukula membership, a change in their priorities plus the introduction by the South African Government of several new laws and policies which will impact the Kukula. The objectives of the workshop were to (i) finalize the BCP revision process, (ii) focused discussions concerning leveraging the revised BCP, (iii) furthering engagement around medicinal plant issues with protected areas managers, and (iv) peer-to-peer learning exchange with Ndindani Community Nursery in Phalaborwa.

During the first session of the workshop the Kukula agreed on a BCP revision process, this was then followed by a discussion of new laws and policies of relevance to the Kukula, which had been analysed by Johan Lorenzen. These included a reminder of the ‘Indigenous Knowledge Research Ethics Policy’, and an introduction of the possible implications of the ‘Bioprospecting, Access and Benefit Sharing Amendment Regulations, 2015, made in terms of the National Environmental Management Biodiversity Act 10 of 2004, and the Intellectual Property Laws Amendment Act, 2013.

Further sessions on the first day related to engaging with protected areas managers. Prof. Twine (Wits University) facilitated the session which included a mapping exercise to demonstrate the geographic coverage of Kukula members, and Louise Swemmer (Social & Economic Scientist, Savanna & Arid Research, Kruger National Park, SANParks) discussed SANParks Pepper Bark Project and engaging traditional healers [the pepper-bark (Warburgia Salutaris ) is an endangered species, once widespread in South Africa but now limited to monitored populations inside protected areas, it is threatened by harvesters who strip it’s bark in an unsustainable way – the bark is used in traditional medicines]. Tshifhiwa Ramatshimbi from Mariepskop Forest Reserve then provided an update on the application procedures to harvest plants or seeds from the reserve and actions required to ensure adherence to regulations.

Louise Swemmer, SANParks
Tshifhiwa Ramatshimbi,
Mariepskop Forest Reserve

The second day of the workshop focused on procedural issues relating to healing and traditional practitioners and included a practical session exploring medical certificates for sick leave. New developments were then discussed and these included a data monitoring framework introduced by Mina Buthelezi, fundraising initiatives, and Dr. Britta Rutert introduced (via teleconference) a new potential research project with a focus on indigenous entrepreneurs, within which the Kukula will consider participation.

On the final day of the workshop the Kukula traveled up to Ndindani Community Nursery in Phalaborwa, Limpopo Province. There they met key nursery members and also Michele Hofmeyer (Skukuza Indigenous Plant Nursery, SANParks), and Thembi Marshal (K2C) who have been assisting the members to establish the nursery and develop a business plan. Challenges were shared which included developing business plans with short-medium- and long-term strategies, moving from funding to income generation phases, accessing land and markets, and utilizing the land available fully by planting a variety of seasonal produce. The Ndindani Nursery members then escorted the Kukula on a nursery tour highlighting their vegetable produce and also their recently established medicinal plant nursery, which includes pepper-bark saplings. During the tour the Kukula identified some additional indigenous medicinal plant species growing within the nursery grounds.

Medicinal plant identified by the Kukula

Ndindani Community Nursery - vegetable production

During the workshop the Kukula had highlighted the importance of certificates, and thus at the end of the workshop ‘certificates of attendance’ were provided for all participants. Over the next few months the Kukula hope to finalize the text of their revised BCP, and deepen their relationships with SANParks and Mariepskop Forest Reserve.

The Kukula with their 'certificates of attendance'

Tuesday, May 31, 2016

A Griqua community’s cultural and spiritual pilgrimage to their ancestral lands and sacred site

Aerial view of Ratelgat.
Photo credit: Griqua National Conference
A reflection by NJ’s Indigenous Fellow, Yvette le Fleur

The month of May was approaching, and as a Griqua (Khoisan) it is customary to start planning your cultural and spiritual pilgrimage towards the northern part of the Western Cape province of South Africa, to the sacred farm called, Ratelgat. Griqua legend has it that the Paramount Chief Andrew Abraham Stockenstrom Le Fleur I, the founder of the Griqua National Conference (GNC), walked in the region on a very hot summer’s day. He was thirsty and could find no water in this semi-arid dessert. He then prayed to God for water. God instructed him to follow the trail of the ratel to a hole with water. Therefore he named this piece of land, “Ratelgat” (honey badger hole).

For Griqua, this historical farm is of utmost spiritual and cultural significance. It is this sacred territory to which our ancestors in the early twentieth century escaped from the harsh impacts of colonialism, under the leadership of the then Paramount Chief A.A.S Le Fleur I. They sought out this farm to protect our indigenous identity, foster our culture and to maintain our hard fought independence as an indigenous community. 

However, this land was not really suitable for livelihood purposes: the lack of fresh water and, suitable grazing lands along with poor agricultural soil, hampered the possibility of economic developmental projects. Furthermore, during the early twentieth century Le Fleur’s inability to get access to funding from the colonial government institutions to buy this farm for the community furthermore discouraged him and his community. That state of affairs eventually led to their decision to abandon the farm temporarily in 1938. After they left, it was subsequently transferred to colonial ownership.

In 1994, with the dawn of the new constitutional dispensation in South Africa, the GNC, under the leadership of Paramount Chief A.A.S. le Fleur II, started to negotiate with the new democratic government to buy back the Ratelgat farm for the community. In May 1999, we acquired the farm, in the name of the Griqua National Conference Development Trust, through the post-apartheid land reform programme. It has subsequently also been declared a provincial heritage site.

For us the acquisition of this piece of land is not only an inheritance in the land itself but even more significant to the Griqua, is the inheritance of the spirit of our ancestors; who could survive through very difficult circumstances the onslaught of colonialism on this very arid piece of land in the heart of the succulent Karoo. Also quite remarkably, this semi-arid vegetation includes 133 endangered succulent plant species adapted to survive the dry climate conditions. Thus, today this farm has spiritual, cultural, heritage and ecological value for the Griqua.
Griqua community members at the monument site.
Photo credit: Griqua National Council.
The Griqua community come from across South Africa to undertake the pilgrimage to Ratelgat and to pay tribute to, and to commemorate, the legacy of our ancestors, now under the leadership of Paramount Chief Alan Andrew le Fleur.

This year I too, once again took the pilgrimage to Ratelgat. I arrived at the farm early on Saturday 14th May. The weekend’s celebrations commenced in the traditional manner; we all gathered together in prayer to give thanks to God for keeping everyone safe on the road and asked God to bless the weekend ahead.
Aunty Mary, an elderly Griqua woman preparing
food. Photo credit: Griqua National Council.

We then moved on to the customary greeting practice of the Griqua. This century old practice entails that we form a circle and then walk inside the circle greeting each and every one by looking them in the eye and shaking their hand (“Kringgroet”).
The rest of the day was focused on cultural activities, such as the indigenous games, and later towards the evening the young people provided entertainment through performances of the dance called ‘Rieldans’ (‘ghabara’), which is a traditional Khoi-Khoi dance. The evening ended with some traditional food prepared at the Lapa (kookskerm).

The Sunday morning commenced with an early morning prayer session to spiritually prepare for the day ahead. Then everyone left the cultural area and proceeded to the sacred sites. We first visited the ancestral graveyard in commemoration of their legacy. The second sacred sight visited, and where the main ceremony took place, is the monument site. This site also contains the grave of our previous paramount chief Andrew Abraham Stockenstrom Le Fleur II. The celebration of this weekend also commemorates the birth of the latter as he was born on 11th May 1923.

Monument and grave of A.S.S. Le Fleur II.
Photo credit: Griqua national Council.
The ceremony consists of various speakers sharing old Griqua stories, remembering the ancestors and the chiefs, as well as sharing their sentiment about the day. The ceremony closed by moving closer to the monument to kneel around it, while the ‘vog’ (respected elders who intercede between God and the community) communicate with God through prayers. We believe that prayers given on this day and on this site are very powerful and bring the Griqua great blessings. 

This pilgrimage left me with a feeling of great satisfaction and a sense of well-being. The proximity to God and my ancestors, and the reminder of the legacy they have left behind, gave me renewed energy and courage.

Monday, May 30, 2016

Building climate resilient societies through empowerment of women

Participants at the UN Women Multi-Country Office Workshop.
Photo courtesy of UN Women Africa
The South Africa Multi-Country Office (MCO) of UN Women recently hosted a workshop on ‘Building climate resilient societies: Strategies towards a gender responsive climate change agenda’, 18-20 May, 2016. The purpose of the work is to strengthen women’s voices to advocate for gender sensitive climate agreements, national adaptation plans and regional frameworks as well as furthering the outcomes of the International Climate Change process by collectively advancing the gender and climate agenda with partners in civil society and government.
Cath Traynor, from Natural Justice’s Climate Change Programme participated in the workshop which included members from civil society, the media and small holder women farmers from South Africa, Lesotho, Swaziland and Botswana. The first day focused on setting the scene and Ms Anne Githuku-Shongwe, UN Women Representative shared that the UN team was meeting to discuss the current El Niño phenomena and climate change, and indeed days later the UN General-Secretary, Ban Ki-moon announced the appointment of 2 Special Envoys on El Niño and Climate. Ms. Githuku-Shongwe shared the UN Women focus areas in the region which include renewable energy, livelihood issues including HIV/AIDS, gender-based violence and women’s political representation, and the need for gender-responsive budgeting. Ms, Ayanda Mvimbi, Programme Specialist UN Women South Africa MCO, then introduced an overview of the United Nations Framework Convention on Climate Change (UNFCCC) and the role of women as change agents, she summarised pivotal gains for women as well as key issues such as adequate representation of women and gender in different strategic frameworks relating to climate change, gender mainstreaming, and key opportunities for engagement.
Participants finalizing the declaration
During the workshop rural women then shared the impact of climate change and their agency, and commission groups discussed key questions and emerging themes. Rural women smallholders shared challenges regards access to land and resources and energy, that the burden of the loss of livelihoods through climate change is falling on women, their concern that several Southern African Development Community (SADC) countries have declared national drought emergencies, that rural women are excluded from decision-making processes, and that the issue of climate change on rural women smallholders requires urgent attention. A ‘declaration by rural women, smallholder farmers organisations and supporting civil society and media in the southern Africa region’ was produced, which highlighted women’s concerns, urged Heads of States and governments at the next SADC Summit in August 2016 to listen to the voice of women, implement existing commitments and policies of international and regional conventions that are pro rural smallholders and gender equity, to ensure that under the UNFCCC Paris Agreement, nationally determined contributions (NDCs) are ambitious and address gender inequality, and for the full and effective participation of rural women smallholders in policy making, implementation and monitoring processes. Action on land ownership by women, food sovereignty, support and legal protection for indigenous knowledge systems and knowledge holders rights, the right to water, and the provision of transparent information on climate, services and rights, amongst others, was also called for.
UN Women Representative, Ms Anne
Githuku-Shongwe receives the
declaration and states she will
ensure it reaches the relevant
Less than a week after the workshop the SADC Secretariat established a ‘Regional El-Niño Response Team’, SADC noted that “At least 27 million people, translating to about 9 per cent of the SADC’s 293 million population, are already affected by the current disaster and this figure is likely to increase” and that the 2015/2016 El Niño phenomenon is affecting livelihoods and the quality lives of especially women. The Response Team will prepare a regional drought appeal with the aim to mobilise resources to meet the needs of people requiring humanitarian support in the Region.

Thursday, May 26, 2016

Argentinian National Ombudsman Issues Resolution Recognizing Kachi Yupi Community Protocol

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.

Wednesday, May 18, 2016

UN Special Rapporteur Holds Dialogue on Indigenous Peoples' Rights and Conservation Activities

On 11 May 2016, Victoria Tauli-Corpuz, UN Special Rapporteur on the rights of indigenous peoples, held a dialogue on Indigenous peoples’ rights and conservation activities with conservation NGOs during the 15th UN Permanent Forum on Indigenous Issues. The Dialogue provided an opportunity for conservation NGOs to provide the Special Rapporteur with information for a report on the issues that she will be submitting to the UN General Assembly in 2016. The Special Rapporteur will also transmit her recommendations on conservation and indigenous peoples' rights to the IUCN World Conservation Congress in September 2016.

Several large conservation NGOs, as well as Natural Justice, attended the Dialogue. Among many issues addressed, one organization mentioned the need for practical guidance on multi-actor involvement in conservation initiatives, and, in particular, best practices regarding indigenous peoples. Another noted that there is a continuing gap between policies--both international and organizational--and project design, implementation and monitoring. Related to this it was noted that there is a need to develop a better understanding of customary governance of the environment and the natural resources that indigenous peoples steward and rely upon. Others agreed that monitoring and evaluation of conservation activities represents a challenge.

Natural Justice had the opportunity to intervene, and we noted the work we are doing to, among other things, identify the international human rights responsibilities and obligations of conservation actors. It is generally accepted that States have the primary duty to protect human rights. However, NGOs have a responsibility to respect human rights that is analogous to the responsibility of businesses to respect human rights as enumerated in the UN Guiding Principles on Business and Human Rights.

We noted that this conclusion is important for two reasons. First, it means that the policies of conservation NGOs regarding indigenous peoples should flow from international human rights sources, such as the UN Declaration on the Rights of Indigenous Peoples and ILO Convention No. 169. In other words, conservation NGOs should develop such policies not as a voluntary exercise but rather as part of satisfying their international human rights responsibilities. Second, if NGOs take the position that they do have the responsibility to respect human rights as enumerated in the UN Declaration and other international instruments, there could be a positive influence on States as well, which often ignore these instruments despite the fact that they have adopted or ratified them.

The Dialogue closed with the Special Rapporteur noting that there have been positive outcomes of indigenous peoples allying themselves with conservation organizations. At the same time, the reality is that problems regarding conservation activities are occurring as well. The Special Rapporteur looked forward to continuing discussions as she works toward finalizing her report for the UN General Assembly.