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. 

Peer-to-Peer Learning Exchange between Kuboes youth and the Nieuwoudtville community

Drieka Koopman and Kuboes share knowledge around
livestock keeping at Sonderwaterkraal (Photo credit: Cath Traynor)

The peer-to-peer learning exchange between the Kuboes youth group and the Nieuwoudtville community took place between 2-4 September, 2016. Natural Justice had reached out to the local environmental NGOs Indigo Development & Change and the Environmental Monitoring Group (EMG) who have been supporting the small-scale Rooibos farmers to adapt to climate change through community-based approaches.  Natural Justice’s Dr Cath Traynor and intern Julia Röttinger, joined eight Kuboes youth and Community Co-Researchers Gerren De Wet (Kuboes) and Reino Le Fleur (Vredendal) in Nieuwoudtville, to learn more about their climate change adaptation processes and share perspectives from the Richtersveld.

Rietjiehuis Ecolodge
(Photo credit: Cath Traynor)

After a warm welcome on Friday afternoon and brief introduction to the NGOs’ work Shannon Parring, Albert ‘Berty’ Kooman (Indigo – Development & Change), Siyabonga Myeza (EMG) took everyone to the Rietjiehuis Eco Lodge in Melkkraal where they had a traditional potjekos and spent the next two nights. The Eco Lodge is run by Marie Syster and consists of a few traditional reed huts which are located on a quiet piece of land surrounded by untouched beautiful nature, with goats and chickens freely roaming. The sustainable accommodation offers the full experience including cooking on an open fire and solar powered lamps in the huts.

Rooibos farmers Jan and Drieka explain the "pot experiment"

(Photo credit: Cath Traynor)

Saturday started off with a short hike to local rooibos farmers Jan and Drieka where they explained their “pot experiment”, a study by PhD students who are monitoring the growth of rooibos plants with the help of the local Rooibos farmers. The different pots get separate treatments, such as different types of soil as well as amounts of water or sun, which is hoped will show what might happen to Rooibos in the future due to climate change impacts. The whole area is famous for its organic Rooibos tea, Rooibos plants are endemic to the area, and the tea is in high demand, especially overseas. The community owns the land and also controls the entire Rooibos production process through the Heideveld Co-operative, which is becoming more and more successful. It was interesting to hear how the community have organised themselves for the benefit of all.

Jan's own observations on Rooibos

propagation have resulted in the
high survival rates of his seedlings

(Photo credit: Cath Traynor)

Every three months the community has a “Climate Change Preparedness” workshop with Indigo and EMG where participants exchange their experiences as small scale farmers raising questions such as: When did I plant or harvest? What has changed? And what can I do better? Those workshops are helping the participants to adapt to changing circumstances by learning from each other.

The next stop was Sonderwaterkraal, home to Drieka Koopman, who is a female pastoralist and had started a livestock monitoring project a couple of years ago. The Kuboes youth group used that opportunity to ask Drieka everything about keeping livestock and noticeable changes in the weather patterns over the past few decades. It turned out that here too, just like in the Richtersveld area, the climate has become drier with much less rainfall. It is therefore more difficult now to find good grazing areas for the animals and to maintain the health of the livestock.

Driving back to Melkkraal the participants had some time to reflect on the eventful and interesting day so everyone could share their thoughts in the next session at the Eco Lodge in the early evening. It was exciting to see how the Kuboes youth group was inspired by the Nieuwoudtville community and the young leaders in the NGOs. All participants were very comfortable with one another and happy to share their thoughts, future plans but also fears with regard to brining change and adaption projects to their own community. 

The last reflection session on Sunday morning, led by Siyabonga and Shannon, in their office gave another insight in the young leaders’ minds and showed how the youth can engage with traditional knowledge from the communities’ elders in order to adapt to climate change.  Berty Koopman shared ‘Berty’s Journey’ a touching film of his journey back to his parents farm at Sonderwaterkraal, and discussions with his elders regards their lives and local knowledge.  It was the perfect ending to an inspiring weekend filled with learning, valuable experiences and new friends. It seems like the next “peer-to-peer learning exchange” might take place between the Kuboes youth group and their own community’s elders.

Exchange participants
(Photo credit: Cath Traynor)

Exploring knowledge co-production processes for effective adaptation: Natural Justice shares insights at the 2nd Southern African Adaptation Colloquium

Mr Gerren De Wet at the 2nd Southern African Adaptation
Colloquium

Dr. Cath Traynor (Natural Justice) and Community Researcher Mr Gerren De Wet (Indigenous Nama youth) attended the recent 2^nd Southern African Adaptation Colloquium recently in  Johannesburg, South Africa (which was hosted by GSRI, Wits University, ACDI and the Adaptation Network). A key theme of the conference was “knowledge co-production and learning”, and we presented a reflection co-authored with Dr Laura Foster (Indiana University, Bloomington) regards conducting formal Participatory Action Research (PAR) with indigenous communities. We started with provocations, asking questions such as “who gets to produce scholarly knowledge?” and “who gets to benefit from such knowledge?” Through applying a critical approach to our own research processes, our findings suggest that those who get to produce scholarly knowledge are those that first, meet the criteria of funders, and second those who adhere to the normative standards of human subject research approaches and research ethics processes. In an attempt to counter more extractive research processes, we as researchers have co-developed community-researcher contracts with communities, these aim to outline expectations regards how knowledge shared by community participants will be used and also to ensure protection of their indigenous knowledge. Through examining our own research processes and the formal research structures we work within, we hope to develop practices of knowledge production that are more responsive to hierarchies of power and inequality.

During the colloquium, presenters and the participants shared ideas and approaches regards how social learning values and methodologies could contribute towards and improve climate change adaptation, in a variety of situations from cities, to rural communities, to engage different sectors such as youth, and how better to ensure co-design in adaptation projects. Funding sources for adaptation were discussed and government representatives presented their perspectives of the UNFCCC COP21 Paris Agreement, and how South Africa is responding with its adaptation strategy, mainstreaming of adaptation, and the development of monitoring and evaluation for adaptation. Trends in transformative adaptation were also debated and the colloquium finished with a session on how South Africa can better prepare professionals and researchers for knowledge co-production processes in climate change. 

Natural Justice met with adaptation practitioners from the Environmental Monitoring Group and Indigo Development and Change to plan a Peer-to-Peer Learning Exchange between the Nama youth and the Nieuvoudtville community.

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 26^th and 27^th 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

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.

Quirine

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

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'

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.

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.

OUTCOMES FROM THE CIVIL SOCIETY MEETING: Debrief on COP21 and reporting on activities of the Policy and the Communications Working Group

The first of the two CSO Debriefs on COP 21 organized by the Organization “Project 90 by 2030” was convened on the 8^th of March in Cape Town. The participants were representatives of a great deal of non-governmental organizations and observers of climate negotiations.  The purposes of this workshop, like its corresponding follow up in Johannesburg scheduled on the 11^th of March, are numerous:

 Report back from the ad-hoc working groups: policy and communications;

• Exchange Knowledge and viewpoints on COP 21 outcomes and implications for South Africa;
• Review of civil societies red lines for COP 21 and identify key messages for year ahead;
• Identify civil society events and actions around international and national climate change policy in 2016;
• Develop a joint press release: what a coalition of civil society is expecting from South Africa in light of the Paris agreement;

In this connection, the meeting started with the presentation by Jaco du Toit (WWF South Africa) on the outcomes of the Paris Agreement, particularly stressing the implications of the bottom-up approach endorsed by the Parties and its reflections on the text of the Agreement. As a result, it was shown that an additional effort seems to be required to attain the global goal of 2° C of temperature increase. The pledges currently submitted by the Parties are supposed to restrain the increase of global temperature by 3.5° C - whereas the absence of any action inspired by the business-as-usual approach would lead to an increase by 4.5° C.

The intervention by Happy Khambule (Policy and Research Coordinator of Project 90 by 2030 and co-organizer of the meeting) focused on a review of the Civil Society Red-Lines, striking a balance with the last meeting in November 2015. Such Red-Lines are a set of “non-negotiables” agreed by a great deal of NGOs and enshrined in a document submitted to the South African Government prior to COP21. Their purpose is to drive and influence South African policy vis-à-vis climate change, pushing for climate-smart and sustainable choices.

In the last part of the meeting, participants were encouraged to talk and discuss, finding a common positions regards South Africa’s response to climate change, both in the national and in the international arena. Consensus was reached that there are 6 main priorities to work on in order to improve the existing framework:

• Revision of South African Intended Nationally Determined Contributions (INDCs): These can be improved upon so that South Africa takes the lead in the fight against climate change, by setting and pursuing more ambitious targets;
• Civil Society Organization (CSO) strengthening: public participation in climate-related matters is to be improved, particularly by studying strategic alliances with enterprises. The proposal was raised to set up frequent climate change meetings on a regular basis;
• Stronger engagement in CODESA, a forum in which a great variety of South African stakeholders gather in order to deeply discuss climate issues.
• Avoid double counting: the Paris Agreement bans double counting on several occasions in the final draft. However, there are the gaps and the weaknesses in the enforcement of this rule, as to date no mechanism has been put in place yet. As a result – also due to the complexity of the topic – there are still many ways by which countries may circumvent this obstacle and few are the institutional mechanisms to denounce and stop such unlawful practices. Possible ways forward include the institution of a national register grouping together every single mitigation project and/or the parallel standardization of accounting rules;
• Signature of the Agreement: South Africa is encouraged to take this step before the deadline of April 2017.

Brief by Luchino Ferraris - International Fellow at Natural Justice.

Natural Justice – Cape Town Office - Skill and Information Sharing Session February 2016

Natural Justice’s Cape Town office hosted its second monthly Skill and Information Sharing Session on 29 February 2016. We were honored with the presence of Mr. Wilberforce Laate, our Ghanaian partner from CIKOD. His discussion focused on endogenous development and traditional leadership. It is particularly of interest since Natural Justice is currently working with the National Khoi & San Council to realize the formal recognition of Khoi-San peoples’ customary leadership institutions and its communities.

This approach of endogenous development entails the idea of taking a look backward, to pick up ideas and values that were useful from the past, in developing the future. It advocates that all aspects of a community must be regarded in that community’s development, those relating to the spiritual world, material world and social world. According to this endogenous development approach, development is already active in communities all the time. It is also a combination of both indigenous and appropriate external knowledge and support.

Mr. Laate also shared the traditional authority system in Ghana; how it works and what challenges they have faced and how they have been addressing these issues since the late 1950s when their colonial system ended.

The Traditional and Khoi-San Leadership Bill 2015 (PDF), the first to give recognition to Khoi-San leadership institutions, is currently in South African parliament and open for public consultation (see Parliament news here and here). Thus, at this time, Mr. Laate’s insight on endogenous development and his example of the place of traditional authorities in Ghana serves as a shared African experience.

Recognizing the Rights of Communities and Knowledge Holders in Climate Change Adaptation – UNFCCC COP21 Side Event

Ms. Swiderska, Dr. Reid, Mr. Argumendo, Dr. Song, Dr. Castro, Dr. Traynor & Mr. Le Fleur
(Photo courtesy of Matt Wright/IIED)

During the recent UN Climate Change Conference in Paris (30^th November – 12^th December), the Adaptation Committee released its 2015 Overview Report “Enhancing Coherent Action on Adaptation 2012-2015”, the publication provides information on adaptation to Parties and the broader adaptation community. Within the report the Adaptation Committee recommends that Parties underline the importance of indigenous and traditional knowledge (I&TK), and encourage their integration into National Adaptation Plans (NAPs). They suggest, one way that this integration can be supported is through enhancing the accountability and enforcing implementation of existing laws, rules and procedures dealing with I&TK and practices thus ensuring recognition of the rights of communities and holders of I&TK and practices throughout the adaptation process.

Natural Justice’s Dr. Cath Traynor’s presentation entitled “Indigenous Knowledge in Climate Change Adaptation: Recognition of the Rights of Communities and Knowledge Holders” spoke directly to this issue. Dr. Traynor was part of a panel on the NJ, GTA, IIED co-hosted Side Event “Supporting Poor, Vulnerable, and Indigenous Communities”, 7^th December, 2015. Dr. Traynor introduced preliminary findings of the “Empowering Indigenous Peoples and Knowledge Systems Related to Climate Change Adaptation and Intellectual Property Rights” OCSDNet project, these included reflections on the university research ethics procedures, which although they seek to ensure the protection of and consent from human subjects, at the same time secures power relations, between ‘expert’ researchers who are seen to produce knowledge and vulnerable subjects who produce mere data. Efforts towards more open and collaborative research needs to understand these complex tensions that shape, and are shaped by, knowledge production and engage critically in the ethics procedures themselves. To ensure that community rights are recognized in adaptation, community-researcher contracts have also been developed, their purpose is to ensure that community intellectual property in adaptation is controlled and protected in accordance with the UN Declaration on the Rights of Indigenous Peoples, and South African Policies and Laws. Mr. Reino Le Fleur, Indigenous Griqua youth representative and Community Co-Researcher on the OCSDNet project, then shared his experiences and his plans for connecting youth with I&TK of their elders, a linkage which in some communities in South Africa is being lost due to the historical dispossession of lands, and the negative impacts of colonisation, apartheid and globalisation upon traditional livelihoods.

During the Side Event, Ms. Krystyna Swiderska (IIED), Mr. Alejandro Argumento (ANDES) and Dr. Yinching Song (Centre for Chinese Agricultural Policy, Chinese Academy of Science) discussed the importance of biocultural heritage in adaptation practices and highlighted 5 key actions and the benefits of farmer to farmer seed networks. 

Dr. Carlos Potiatra Castro (University of Brazillia/GTA) then shared experiences from the development of the Bailique Community Protocol, Brazil. The process entailed integrating customary norms and internal governance structures into the protocol, consideration of national and international legislation as it applies to the communities and public policies that they have a right to access. To date, the process has resulted in land regularisation, and empowerment of the communities to negotiate with external actors. The community protocol approach is highly relevant to landscape scale mitigation and adaptation programmes and projects and could also contribute to REDD+ as a recent Policy Brief illustrates (search for “BCPs” here).

Dr. Hannah Reid (IIED) then summarised a study that aimed to quantify the funding for local adaptation activities against ten principles intended to guide good ‘quality’ funding allocations. Projects scored well in terms of effectiveness, flexibility and sustainability but poorly on transparency, accountability and urgency.

The session drew to a close with questions from the audience, which included asking how a community is defined, and the pro’s and con’s of an I&TK database, and a wrap-up from Mr. Delfin Ganapin (UNDP-GEF Small Grants Programme). Presentations and related materials can be found on the UNFCCC Side Events webpage, search for the “Natural Justice” adaptation session held at 15:00-16:30 hrs, Monday 07 December, 2015. 

UN Climate Change COP21 Side Event: Monday 7th December 2015

 

When: Monday 7 December, 15:00 – 16:30 hrs

Where: COP21/CMP11, Parc des Expositions, Le Bourget conference site, side event room - OR 03

This event will share a variety of recent research concerning:

• Supporting the adaptation practices and traditional knowledge (TK) of Indigenous peoples and local communities, and the importance of biocultural heritage.
•  The protection of knowledge holders and the sharing of TK in adaptation initiatives.
•  The role of community protocols as a tool to reach the most vulnerable communities through participation and biodiversity legislation.
•  The quantity and quality of adaptation finance reaching those most in need.

Who: Dr. Hannah Reid, International Institute for Environment and Development (IIED)

Ms. Krystyna Swiderska, (IIED), Mr. Alejandro Argumedo (ANDES), Peru & Dr. Yiching Song (Centre for Chinese Agricultural Policy, Chinese Academy of Science)

Dr. Cath Traynor (Natural Justice) & Mr. Reino Le Fleur (Griqua representative)

Ms. Roberta Ramos, Grupo de Trabalho Amazonico (GTA), & Munduruku representative

Dr. Carlos Potiatra Castro, University of Brasilia

Mr. Delfin Ganapin, UNDP-GEF Small Grants Programme

You are invited to find out more at this side event. Light snacks will be served at 14.45 hrs.

The Kukula Traditional Health Practitioners Association Explore Opportunities with Skukuza Indigenous Plant Nursery, Kruger National Park, South Africa

KTHPA  SANParks staff at Nkuhlu
Enclosure (Photo:  Cath Traynor)

KTHPA discussing medicinal plants with
SANParks staff (Photo: Cath Traynor)



 

 

 

 

 

 

 

 

 

 

The Kukula Traditional Health Practitioners Association (KTHPA) of Bushbuckridge, South Africa visited Kruger National Park’s Skukuza Indigenous Plant Nursery earlier this year. The Kukula were invited by Michele Hofmeyr, the Manager of the nursery after she attended the Kukula’s Biocultural Community Protocol (BCP) Revision Workshop. The aim of the visit was to explore areas of mutual interest: South African National Parks (SANParks) is developing a list of medicinal plant species of interest to communities in the bufferzone areas of the park, and KTHPA are interested to access propagules of medicinal plant species that only occur within the park.

 

Members of the Kukula spent an afternoon in the nursery, looking at the existing stock of medicinal plant species, learning how the different species are propagated, and discussing which species may be suitable for KTHPA to propagate themselves. The following day, Nursery staff joined the Kukula on a walk in the Nkuhlu Enclosure, a 139 ha fenced area consisting of dense woody vegetation thickets along the Sabie and Crocodile Rivers. The KTHPA members identified species of particular interest, and SANParks staff collected specimens so that scientific names could be ascertained.

 

The nursery kindly donated seedlings and plants to the Kukula, including saplings of the pepper-bark tree (Warburgia salutaris), this is a highly sought-after medicinal plant, which is critically endangered, and one that the nursery is cultivating on a large-scale.



KTHPA at SANParks Skukuza
Indigenous Plant Nursery
(Photo: Cath Traynor)

Michele Hofmeyer, SANParks
Skukuza Indigenous Plants Nursery 
Manager sharing her knowledge regards
successfully germinating different
plant species (Photo: Cath Traynor)

Natural Justice, together with partners K2C and Wits Rural Facility are supporting the Kukula Traditional Health Practitioners to revise their BCP, and to utilize it to constructively engage with external stakeholders such as SANParks. Running throughout South Africa’s legislation on conservation is the balance between conservation on the one hand and sustainable use for the benefit of communities on the other. Through collaborations such as these KTHPA hope to both conserve biodiversity and to advance the health of their communities through their traditional healing practices.