A New Dawn: The African Court on Human and People’s Rights Historic Judgment on the Indigenous Peoples Rights

Logo Courtesy of African Court on Human and Peoples' Rights   

“The forest is what we call land”

James Sang, Ogiek community member

On 26^th May 2017, the African Court on Human and Peoples Rights delivered a historic judgment in favour of the Ogiek, a forest dwelling community.[1] This came after a eight year long legal battle and decades of routinely being subjected to forced eviction, without consultation and compensation, from their ancestral lands by the Government of Kenya (GoK). At the heart of forced eviction was the alleged need to preserve Kenya’s largest closed-canopy forest ecosystem and a water catchment area,[2] spanning about 4000 hectares in five counties,[3] and which has been under threat from illegal settlement and illegal extraction of natural resources.[4]

Following the GoK’s decision in 2009 to evict people living in the Mau forest complex in order to protect the water catchment zone, the Minority Rights Group (MRG), Ogiek Peoples Development Programme (OPDP) and Centre for Minority Rights Development (CEMIRIDE), also the original complainants, on behalf of 30,000 Ogiek members, filled a suit against the Government of Kenya (GoK) at the African Commission of Human and Peoples Rights (“the Commission”) citing the far reaching implications the order had on the political, social and economic well-being of the Ogiek community. Along with it, they requested the commission to issue measures requiring the GoK to halt any land transactions in the Mau Forest Complex and to refrain from any act that would irreparably prejudice the application pending determination.  Subsequent repeated violation of these measures by the GoK led the Commission to transfer the case to the African Court on Human and People’s Rights in 2012 (the current application). The applicant further alleged violation of Article 1,2,4,8, 14, 17(2)(3), 22 and 23 of the Charter and prayed that the court order respondent to halt the eviction, recognize Ogieks historical land, and issue orders as to compensation for the loss suffered through the loss of property, natural resources and freedom to practice religion and culture.

Before addressing the substantive issues of the application, the court at the 28^th Ordinary session issued an order of provisional measure on the ground that the respondent, through the Ministry of Land, issued a directive lifting the restriction imposed on all transactions for land measuring five acres or less within the Mau forest complex.[5]

Substantively, the court heard and dismissed objections raised by the GoK on its material and temporal jurisdiction to hear the application as well as the objection on admissibility of the application in as far as the Locus Standi of the of the original complainants, exhaustion of local legal remedies and the nature of the case is concerned. Further, the court addressed the alleged violations of rights provided for in the Charter. Most importantly, the violation of the right to life (Article 4), right to culture and the protection of traditional values (Article 17(2)(3), the right to practice religion (Article 8), the right to property (Article 14) and the right to development (Article 22). It also considered the question of remedy, which in whole included an order to halt the eviction of the Ogiek from East Mau complex, recognizing Ogiek’s historic land and order of payment of compensation.

In the end, the court determined that the Ogiek, having a clear historic attachment to the Mau Forest, are a distinct indigenous people. It also found that the Ogiek had property rights over the land they traditionally occupied and used, even though the colonial and Kenyan authorities had denied them a formal title. The court determined that the practice of religion was inextricably linked to land and any interference with access to land was an interference with this right. In this case, it noted that the Mau Forest is a spiritual home of the Ogiek and that the limitation imposed were unjustifiable. The court further considered the right to culture in a dual dimension: individual nature and the collective nature. It noted that this right was essential to the Ogiek’s identify and that the eviction for the preservation of the natural environment could not constitute a legitimate aim but was rather a measure that violated this right leaving the Ogiek community vulnerable and forcing them to assimilate. Finally, the court found that the GoK had not taken adequate legislative measures to implement the rights violated in the Charter. To this effect, the court ordered the GoK to take appropriate measures within a reasonable period to remedy all violations established. Finally, the court reserved its’ ruling on reparation and instead directed the issue to be dealt with in a different application by the applicant.

This judgment is a huge victory not only for the Ogiek community but also other Indigenous communities in general. Most importantly, by ruling that through a persistent denial of Ogiek land rights, their religious and associated cultural and hunter-gatherer practices were also violated, a strong message was sent to the GoK and other governments on the the need to respect the rights of the indigenous peoples and further, put measures for the realization of these rights. In this case, the court was generous enough to lay down the duty of the GoK to put measures for the implementation of the judgment.  However, the implementation of the orders/ judgment cannot be analyzed without addressing the government’s attitude during this case and in other similar presided cases.  In any event, the GoK has, time and again demonstrated a pattern of empty promises towards implementation of measures and orders made against them.

The Ogiek ought not to lose hope. They must push for the implementation of the court’s decision by lobbying the national government, maintaining a presence in Parliament and using other spaces to remind the GoK of its duty.

[1] ACPHR v GoK

[2] The Mau water catchment feeds into Lakes Victoria, Nakuru, Baringo, Turkana and Natron, and supports the ecosystems and livelihoods of millions of people.

[3] J Sang “Kenya: Ogiek in the Mau Forest” (2001) Forest Peoples Programme

[4] Mau Task Force 17-18. The forest is divided into seven blocs comprising South-West Mau (Tinet), East Mau, Ol’donyo Purro, Transmara, Maasai Mau, Western Mau and Southern Mau.

[5] Summary of fact 2 paragraph 5

Author: Rose Birgen

Contracting Justice Workshop: Exploring socially just research processes

Participants at the Contracting Justice Workshop
(Photo credit: Cath Traynor/Natural Justice)

On the 13^th and 14^th March Natural Justice hosted a workshop centred on community-research contracts ensuring socially just research processes. This workshop aimed to gain valuable insights from indigenous communities through exploring the development of a ‘community-researcher contract’ between communities and researchers within the context of researching indigenous knowledge related to climate change.

The objectives of the workshop included legally empowering participants on issues related to laws and policies on indigenous knowledge systems, intellectual property rights and research ethics, and exploring the concept of contracts as a tool, and also critically reflecting upon the trail implementation of ‘community-researcher contract’ between two indigenous communities and three institutions conducting research with them.

The first day focused on legal empowerment and internal community discussions with representatives from the Nama, Griqua and Khomani San communities and a legal adviser.  The following day wider stakeholders were invited, including representatives from the University of Cape Town, Indiana University (USA), legal experts, civil society organisations including the Heinrich Boell Stiftung Southern Africa, the Open Society Initiative for Southern Africa, and the Open and Collaborative Science in Development Network (OCSDNet). These varied interests and opinions contributed to a productive discussion regards where the tensions lie between the respective parties regards how research with indigenous peoples, both in terms of the frameworks that guide research processes and how in practice research with indigenous communities is conducted. Areas of tensions were identified and the role that community-researcher contracts could play to resolve these discussed.

Important aspects concerning policies alongside ethical and legal approaches were raised and considered in detail throughout the session. Issues were voiced surrounding the importance of consent processes, openness of research – but also some of the dangers of making indigenous knowledge open, particularly regards intellectual property issues, and that research process should benefit communities.

A particular notable and worthwhile moment of the workshop was hearing the opinions and viewpoints of the indigenous community’s youth representatives who stressed the importance of transparency, participatory action, capacity for further legal empowerment of the community members and beneficiation. Their involvement in this session was especially valuable for other participants in order to better understand from the community perspective, where and what the key issues were regards the development and implementation of research projects with communities or in their traditional lands.

Looking forward, these discussions will feed into the final analysis of the potential role of ‘community-researcher contracts’ as a tool to protect communities rights and to enable communities to negotiate mutually-beneficial research processes with research institutions. This analysis is being conducted by Natural Justice’s Climate Change Program together with research partners Dr. Laura Foster (Indiana University) and Dr. Tobias Schonwetter (Intellectual Property Unit, University of Cape Town), the Nama community in Khuboes, and the Griqua community in Vredendal.

CAPE TOWN HUB- SKILL SHARE SESSION: Land Rights of Indigenous Peoples in Africa; With a Special Focus on Central, Eastern and Southern Africa

Guest Speaker & author

Dr. Albert Kwokwo Barume,

UN Chair to Expert Mechanism on the Rights of Indigenous Peoples

On the 31^st of October 2016, the Cape Town hub hosted a Skill and Information Sharing Session with our eminent guest speaker, Dr. Albert Barume.  He is an African lawyer from the DRC region. He is one of the leading experts around land, human rights and related matters affecting indigenous peoples. He played a key role in leading the protection of rights and norms of indigenous peoples in especially the Africa region and internationally. He also led on the process engaging African governments to support the vote in favour of adopting the UN Declaration on the Rights of Indigenous Peoples during 2007. Which resulted in the development of the Advisory Opinion of the African Commission on Human and Peoples Rights Commission on the UN Declaration on the Rights of Indigenous Peoples impacting the adoption of the UNDRIP during September 2007. He also serves as an expert member to the African Commission’s special mechanism called the Working Group on Indigenous Populations/Communities in Africa.  For our skill share session he was a discussant to his book called, Land Rights of Indigenous Peoples in Africa: With a Special Focus on Central, Eastern and Southern Africa.

He touched on important issues ranging from the human rights-based meaning pertaining the conceptualization of indigenous peoples’ rights in Africa. He also discussed the land rights challenges faced by IPs in the region. Highlighting the importance of the preservation and protection of their land use and management systems, as well as their ways of life. 

CAPE TOWN HUB: SKILL SHARE SESSION: The Making and Unmaking of Patent Ownership: Technicalities, Materialities, and Subjectivities

Hoodia (Photo credit: Cath Traynor)

 Guest Blog by Dr. Laura A. Foster

Dr. Laura Foster recently led a seminar with Natural Justice regarding her newly published article titled “The Making and Unmaking of Patent Ownership: Technicalities, Materialities, and Subjectivities” regarding issues of indigenous peoples’ knowledge, patent ownership and benefit sharing. The seminar sparked an informative discussion on how the assumptions and rules of patent ownership are designed to value certain forms of knowledge production over others, namely that of knowledge produced in a lab over that of indigenous peoples knowledge. Foster stressed the importance of also examining how knowledge produced by scientists in the lab and indigenous peoples in the Kalahari are in fact similar rather than different. An abstract and excerpt from her new article is featured here.

Abstract

Feminist sociolegal studies have recently taken up the technicalities of doctrines, documents, and regulations to better understand the law. In an affiliated move, feminist science studies turned to the materialities of theories, practices, and nonhuman organisms to make critical sense of science. These methodological turns focus not on gender, per se, but on precise mechanisms of law and science that structure, reinforce, and reconfigure power and inequality. Drawing on these methodological approaches, this article attends to the technicalities and materialities of patent ownership and benefit sharing in South Africa in regards to San peoples’ struggles over the patenting of the Hoodia gordonii plant. An examination of patent documents, benefit-sharing agreements, legislative appendixes, and the biology of plants generates an understanding of how patent ownership, rather than being natural or value-neutral, is a historical and sociocultural process shaping, refashioning, and being inscribed across multiple scales of nation-state jurisdictions, divergent ways of knowing, and biochemical orderings of plants

Excerpt

Hoodia seedlings (Photo credit: Cath Traynor)

Scientists with the South African Center for Scientific and Industrial Research (CSIR) obtained a provisional patent in 1997 related to the Hoodia gordonii  plant, which they found to be responsible for suppressing appetite.  The patenting of Hoodia properties, officially granted in 1999, incited a network of actors as the plant was poised to become the next blockbuster weight-loss drug. CSIR scientists collaborated with the UK biotechnology firm Phytopharm and the global pharmaceutical company Pfizer, and eventually with Unilever, to develop Hoodia- based products for the growing “obesity epidemic” in the United States. Angered over the patenting of Hoodia , indigenous San peoples mobilized against CSIR and its commercial partners, accusing them of stealing their knowledge without prior informed consent (Barnett 2001; Wynberg 2004). San claimed historical discovery of the plant they referred to as !Khoba  as a source of water and energy when food supplies were low. Their knowledge of the plant’s properties and uses in conditions of scarcity was now being appropriated to treat obesity. San’s collective organizing led to the signing of a benefit sharing agreement in 2003, whereby CSIR agreed to give San peoples 6 percent of their royalty income from future Hoodia  sales and 8 percent of milestone payments.

My own ethnographic research into Hoodia  arose when San–CSIR benefit sharing seemingly faltered. Unilever dropped the project in late 2008, casting doubt over the promise of Hoodia -based products and monies to San. Legal uncertainty also ensued with the adoption of the Bio-Prospecting, Access and Benefit-Sharing Regulations4  in 2008 (hereafter, BABS Regulations). Despite this uncertainty, Khomani San I spoke with considered benefit sharing to be a success because it brought recognition to San peoples. Benefit sharing simultaneously recognized two divergent ways of understanding Hoodia —one emanating from San and the other from CSIR researchers. The mechanisms underlying this recognition, however, remain unexamined. Several accounts have produced valuable histories of San struggles over the patenting of Hoodia  and subsequent benefit-sharing negotiations (Comaroff and Comaroff 2009; Vermeylen 2008; Wynberg, Schroeder, and Chennells 2009). Delving into the technicalities and materialities relevant to these struggles, however, provides additional insights into how patent ownership and benefit sharing become sites for the fashioning (and unfashioning) of human and nonhuman subjects, albeit in limited and unequal ways.

In particular, I examine the technicalities of two Hoodia patent documents, the San–CSIR benefit-sharing agreement, and a South African legislative appendix governing benefit sharing to understand how patent ownership is constituted. To guide my analysis, I draw upon a recent turn in feminist sociolegal studies toward the technical and everyday details of law to understand how hierarchies of power and knowledge are produced and contested (Riles 2005; Valverde 2009). For instance, I find that the Hoodia invention and its scope of patent ownership differ in South Africa versus the United States. Through this analysis, patent ownership emerges not as a Lockean natural property right, but as a contingent and historical process.

Furthermore, I analyze how patents involve the making of both human and nonhuman subjects. While feminist sociolegal studies turn to technicalities, feminist science studies takes up the materialities of human and nonhuman matter. Attention is placed not only on the discursive representations of humans and nonhumans, but also on how the unpredictability of their biologies and materialities provoke their discursive constraints (Alaimo 2011; Barad 2007; Bennett 2010; Coole and Frost 2010). Considering the biochemistry of the plant, I show how Hoodia patent ownership and benefit sharing become sites for the interrelated engendering of both San and Hoodia . The liveliness of the plant inscribes San agency and conditions of law, and vice versa. In the end, I argue that patent ownership and benefit sharing are contingent scalar processes; as such, they are best understood through attention to scale, specificity, and the making of human and nonhuman subjects that are co-constituted by and against the law.

Citation

This excerpt can be cited as follows: PoLAR: Political and Legal Anthropology Review, Vol. 39, Number 1, pps. 127–143. 

The full text of the article can be found at http://onlinelibrary.wiley.com/doi/10.1111/plar.12135/abstract

Dr. Laura Foster (@DrLauraAFoster) (fosterl at indiana.edu) 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. 

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.

“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 17^th May in relation to the 15^th 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. 

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.

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.

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. 

UN Human Rights Experts Reject World Bank's Proposed Replacement of Safeguard Policies

Anyone following the ongoing update to the World Bank's environmental and social safeguard policies (safeguard policies) would do well to read the 12 December 2014 letter to Bank president Jim Yong Kim from the special procedures mandate-holders of the United Nations Human Rights Council (special procedures). According to the special procedures, contrary to President Kim's repeated reassurances, the draft Environmental and Social Framework (ESF) is a dilution of the safeguard policies they are supposed to replace.

While the special procedures address several issues, they make three critical points:

First, the special procedures note that while the international community has accepted that development must respect human rights, the Bank is "an increasingly isolated outlier" in failing to commit to human rights requirements in the draft ESF. Second, they refute the Bank's oft-repeated claim that taking human rights considerations seriously will put the Bank at a competitive disadvantage. Not only does the Bank's view accelerate a race to the bottom, it is also irrelevant given that human rights are a matter of legal obligation. This relates to the special procedures' third point, which is that not only is the Bank bound by international law; so too are the Bank's 188 member states, all of which have ratified at least one of the core international human rights treaties. The Bank has a "due diligence responsibility" not to be complicit in states' violations of their human rights obligations.

More than 93% of Extractives Developments Involve Inhabited Land - New Report

In a new analysis of almost 73,000 concessions in eight tropical forested countries, more than 93% of mining, logging, agriculture, oil and gas developments were found to involve land inhabited by Indigenous Peoples and local communities. The report, Communities as Counterparties: Preliminary Review of Concessions and Conflict in Emerging and Frontier Markets, prepared by The Munden Project, highlights the alarming amount of land that governments have handed over to the private sector for mining, logging, agriculture, oil and gas, including 40% of all land in Peru and 30% in Indonesia. The researchers found that these concessions often generate conflict with local communities. Examining 100 such instances, the report identifies major patterns in how and why these conflicts occurred, and puts forth recommendations for avoiding them.

1st Africa Indigenous Peoples' Conference on Land Policy Frameworks

On 13 and 14 August, Stephanie Booker and Shalom Ndiku of Natural Justice attended the International Land Coalition's 1st Africa Indigenous Peoples' Conference on Land Policy Frameworks in Nairobi, Kenya. The central theme of the two day meeting was: "Mainstreaming Indigenous Peoples' Right to Land in Land Policy and Legislation Framework in Africa within the Indigenous Peoples Rights Framework". Over 50 people based across the continent attended the meeting to discuss a number of core issues including:

• Key issues and the state of play of Indigenous Peoples' rights in Africa;
• Key global and regional trends regarding Indigenous Peoples' land rights;
• The state of land policy frameworks and land reform in Africa;
• Mechanisms to address land and resource rights;
• Good practices in protection and management of indigenous peoples' land, territories and resources; and,
• Benefit-sharing mechanisms on natural resources.

Participation of Indigenous Peoples in REDD+: Workshop Report Published

In September 10-12, 2013, Natural Jusice’s Dr. Cath Traynor attended an international expert workshop entitled: "Practical Approaches to Ensuring the Full and Effective Participation of Indigenous Peoples in REDD+". the workshop was held in Weilburg, Germany, and was co-hosted by BMZ, Forest Carbon Partnership Facility (FCPF) and the UN-REDD Programme.  

The workshop offered space for the analysis of REDD+ participation and consultation standards, explored practical approaches and shed light on unsolved questions evolving around the challenge to provide for legitimate, effective and yet feasible inclusion of Indigenous Peoples in REDD+processes. Dr. Traynor shared with the participants the value of community protocols, and the work that Natural Justice is doing in this area.  This, and other contributions and insights are included in the recently published workshop report.

AU Access and Benefit Sharing Policy Frameworks and Guidelines Ready for Adoption

Gino Cocchiaro, Natural Justice, took part in the Validation Workshop on the AU Guidelines  for the Coordinated Implementation of the Nagoya Protocol on Access and Benefit Sharing from the 11th to the 14th of August in Addis Ababa, Ethiopia. The workshop was attended by African government representatives, experts on access and benefit sharing, indigenous people and local community representatives.

The workshop produced a final policy framework and guidelines on access and benefit sharing, which will both be presented to the The African Ministerial Conference on the Environment (AMCEN) for adoption. Natural Justice provided assistance to the indigenous people and local community representatives attending the meeting to ensure that the text adequately reflected their calls for recognition of their customary laws, community protocols and procedures.

Upcoming Book: Indigenous Peoples, National Parks, and Protected Areas

The University of Arizona Press, is set to release a new book, “Indigenous Peoples, National Parks, and Protected Areas”. This passionate, well-researched book makes a compelling case for a paradigm shift in conservation practice. It explores new policies and practices, which offer alternatives to exclusionary, uninhabited national parks and wilderness areas and make possible new kinds of protected areas that recognize Indigenous peoples’ rights and benefit from their knowledge and conservation contributions. The author, Stan Stevens, has spent more than 30 years working with the Sharwa (Sherpa) people of Nepal, whose homeland is a national park and UNESCO World Heritage Site.  

A vast number of national parks and protected areas throughout the world have been established in the customary territories of Indigenous peoples. In many cases these conservation areas have displaced . This book breaks new ground with its in-depth exploration of changes in conservation policies and practices—and their profound ramifications for Indigenous peoples, protected areas, and social reconciliation.