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.

Rooibos Traditional Knowledge holders meet with Industry

Rooibos industry

Mr. Cecil Le Fleur, Chairman, National KhoiSan Council

The San and Khoi are the rightful knowledge holders regards traditional knowledge related to the rooibos plant, and they are currently negotiating with the rooibos industry in terms of the South African Access and Benefit Sharing legislation. They are legally supported by Lesle Jansen from Natural Justice and Roger Chennells from Albertyn Chennells Inc.   A basic industry-wide agreement is being sought, based purely upon traditional knowledge in the light of the South African legislation, which will simplify the access and benefit sharing and permitting requirements for the rooibos industry. The traditional rooibos farming communities will be the primary beneficiaries under any agreement reached.  The agreement will have significant benefits not only for the Khoi and San traditional knowledge holders, but also for the rooibos industry.  These stakeholders met on 2nd December 2015 in Clanwilliam to further develop these negotiations.

Harvested rooibos, South Africa

Traditional rooibos farming communities from Wupperthal and surrounding areas, South Africa

The Origins of the Khoekhoen in Southern Africa

Prof Smith addressing participants

Natural Justice met with Professor Andrew B. Smith, emeritus professor in the Department of Archaeology at the University of Cape Town, Cecil le Fleur, the Chairperson of the National Khoi & San Council also attended the meeting.

Prof Smith has specialized in the origins and development of herding societies of Africa, he has excavated key sites and worked with Khoekhoen (Khoi) descents in South Africa. Prof Smith introduced the Khoekhoen, who were aboriginal herders in the Western and Southern Cape, South Africa and Namibia. The Khoekhoen were similar to other transhumant pastoralists, their livelihoods were based on stock and they moved with their herds on a seasonal basis. 

Prof. Smith pieced together evidence from archaeological excavation sites, including animal bones, pottery shards, and stone tools, which together with an examination of the linguistic origins of the very diverse Khoekhoen language, and genetic DNA analysis of Khoi descendants, indicates that the Khoekhoen herders are linked to East Africa. The various evidence suggests that the Khoekhoen arrived in the Western Cape approximately 2200 years before present, and that they had migrated with their herds, which were predominately sheep, from the North, probably East Africa.

UNPFII 13th Session: Report by Mr. Cecil le Fleur, the Chairperson of the National Khoi & San Council (NKC)

Dus die interim Verenigde Nasies se Permanente Forum rondom Inheemse Mense se Kwessies verslag van die Nationale Voorsitter, Mr. Cecil le Fleur, van die Nationale Khoi & San Raad gedateer 

19 May 2014.

Geagte Raadslede

Groete hier uit New York.

Ek het reeds ons voorlegging in die VN Permanente FORUM gelees. Dit was goed ontvang deur meeste inheemse verteenwoordigers hier. As ek dit so stel, bedoel ek diegene wat persoonlik by my so aangedui het.

Natural Justice legally supports the National Khoi-San Council in historic benefit sharing agreement

On 19 August 2013, the indigenous San and Khoikhoi groups signed a historic benefit sharing agreement with Cape Kingdom Nutraceuticals Pty under South Africa’s Biodiversity Act 10 of 2004. Cape Kingdom Nutraceuticals is a pharmaceutical company that processes Buchu, a small shrub endemic to the Western Cape used for its essential oils. Buchu’s medicinal qualities are associated with the traditional knowledge (TK) of the Khoikhoi and San peoples. The agreement acknowledges that the Khoikhoi and San’s medicinal plant knowledge predates that of subsequent South African inhabitants and that the Khoikhoi and San are “legally entitled to a fair and equitable share of the benefits that result from the commercial development of the Buchu plant.” Although the San Council was previously involved in entering into similar agreements, this marks the first time the Khoikhoi represented by the National Khoi-San Council (NKC), entered into such an agreement where their TK is recognized as such.

During November 2012 Natural Justice entered into a memorandum of understanding with the National Khoi-San Council. Under this agreement, Natural Justice offers legal support to the NKC in its ongoing struggle for legal recognition of its collective rights which includes amongst others, legal processes relating to benefit sharing.  Natural Justice was also able to assist the NKC in forming a negotiating team with the San council represented by Roger Chennels.  In terms of this historic partnership,the NKC and the San council act as a representative structure for the Khoikhoi and San peoples to protect their rights around associated traditional knowledge for related plants. 

It is all too rare for a private company to recognize, especially financially, traditional knowledge and the intellectual property rights of indigenous peoples. Under the benefit sharing agreement with Cape Kingdom, the Khoikhoi and San communities will receive 3 percent of the profits related to Buchu products. Cape Kingdom also commits to share its knowledge of the commercial use of the plant with the indigenous communities in exchange for the San and Khoikhoi endorsing the products. In response to the agreement, NKC Chairperson Cecil LeFleur stated: “We are very proud and excited to be part of this process. Today we share the benefits of our historical knowledge with Cape Kingdom Nutraceuticals. We feel that this partnership will be to the benefit of the Khoikhoi and San people in South Africa, and will contribute to our development and empowerment.”

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Natural Justice Meets with Khoi & San Communities in the Eastern Cape

Lesle Jansen and Steph Booker of Natural Justice attended a three day meeting of the Khoi & San communities in the Eastern Cape from 28 to 30 June 2013.  Set in Graaff-Reinet, the heart of the Karoo, representatives of the Khoi-San communities met to discuss issues of land claims in terms of the Restitution of land rights Act 22 of 1994 and possible impacts of fracking by Shell and other international companies in their traditionally owned and utilized territories.  Supported by Treasure the Karoo Action Group, Mr Jonathan Deal and Pastor Barry Wuganaale (of the Ogoni Peoples from Nigeria) shared their views on the likely impacts of fracking on the environment (such as impacts on water sources), on the community (such as a lack of meaningful employment), and the very threats to the Khoi & San as Indigenous Peoples of South Africa.

African Caucus Meets with UN Special Rapporteur

Prof James Anaya
Photo Credit: UN

During the twelfth session of the United Nations Permanent Forum on Indigenous Issues (UNPFII) held in New York, representatives of indigenous peoples and organisations may request a meeting with the UN Special Rapporteur, Prof James Anaya, concerning matters falling within his mandate.

On Monday, 20 May 2013, on acceptance of their request for a meeting, the Southern African delegation of the African Caucus, accompanied by the Open Society Initiative of Southern Africa (OSISA), represented by Mr Delme Cupido, and the Indigenous Peoples of Africa Coordinating Committee (IPACC), represented by Mr Joram Usep, met with Prof Anaya.  The meeting took place in the United Nations building before the opening of the Twelfth Session of the UNPFII.

Among the delegation was the Chairperson of the National Khoisan Council (NKC), Mr Cecil Le Fleur, who raised the concerns of the Khoi-San peoples in South Africa, in particular, the lack of implementation of the recommendations made to the South African government in 2005 by Prof Anaya’s predecessor, Prof Rodolfo Stavenhagen.   At the conclusion of the meeting, Prof Anaya asked that the NKC put together a report on these concerns which he will consider and take up with the South African government. 

United Nations Permanent Forum on Indigenous Issues Enters Second Week

The twelfth session of the United Nations Permanent Forum on Indigenous Issues (UNPFII) is currently taking place at United Nations headquarters in New York City from May 20 to May 31. The UNPFII is an advisory body to the UN Economic and Social Council, which is the UN platform on economic and social issues. The UNPFII brings together Indigenous peoples, governments, UN agencies, NGOs, and other stakeholders in unique fashion to collaborate on issues faced by Indigenous peoples. Natural Justice is attending the UNPFII and undertaking a number of activities, including supporting the Indigenous Peoples of Africa Coordinating Committee (IPACC) and the National Khoi-San Council, as well as launching the second edition of the Living Convention. This year, Mr. Kanyinke Sena, a former IPACC Executive Committee member, has been nominated as the Chair of the UNPFII. 

This session of the UNPFII is billed as a Review Year, and is addressing a number of different issues, including health, education, culture, human rights, and the World Bank. On Thursday, May 23, the UNPFII held a half day on the African region, where, among other things, a study on resilience, traditional knowledge and capacity- building for pastoralist communities in Africa was addressed. Natural Justice also helped in the preparation of statements on the Khoi-San communities as well as the World Bank that were read during plenary sessions of the UNPFII. During the second week, the UNPFII will address, among other issues, a Consolidated report on extractive industries and their impact on indigenous peoples, as well as the future work of the UNPFII.

NKC Calls on South African Government to Implement Recommendations from Former Special Rapporteur on Indigenous Issues

On Wednesday, 22 May 2013, on the topic of human rights, and during the Dialogue with the Special Rapporteur on Indigenous Issues, Prof James Anaya, Mr Cecil Le Fleur, delivered a statement on behalf of the National Khoisan Council in South Africa.  In the statement, Mr Le Fleur called upon the South African government to urgently implement the recommendations of the former Special Rapporteur on Indigenous Issues, Prof Rodolfo Stavenhagen set out in his report on his mission to South Africa.  He said that although South Africa is now a free country, it cannot be a true democracy if the Khoi-San peoples are not afforded the right to self-determination as envisaged by the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP).

In Mr Le Fleur acknowledged the progress made on the proposed Bill on Traditional Affairs by the South African government thus far, but expressed concern about the length of time it is taking the government to enact this legislation.  In addition, the proposed Bill does not adequately address the historical differences between the Khoi-San peoples and the other dominant tribes in South Africa, and the enactment of the Bill in its current form would lead to an unfair and inequitable outcome. 

In conclusion, the statement called for the following recommendations:

Statement by Africa Caucus at UNPFII

Baba Festus

The Twelfth Session of the United Nations Permanent Forum on Indigenous Issues (UNPFII) is currently underway in New York.   Issues of health, education, culture and human rights are the central themes that the Forum will be focusing on in this session. 

During the discussions on education on Tuesday, 21 May 2013, the African Caucus, in a statement to the Forum, advocated for culturally sensitive education for Indigenous Peoples, and recommended: 

• The introduction of mother tongue education from a young age.
• A curriculum that respects cultural diversity and does not subordinate indigenous knowledge systems
• That traditional knowledge be equitably integrated into the mainstream curriculum

 The Africa Caucus called on states to enact legislative frameworks that enables the implementation of their recommendations, and asked that UNESCO and UNICEF provide guidance on how to  implement them.  The statement was delivered by Baba Festus, a Khomani San from South Africa.

Major New Partnership - National Khoi-San Council and Natural Justice

NKC Chairperson Cecil Le Fleur
signing the MoU

Natural Justice has established a ground-breaking relationship with South Africa’s National Khoi-San Council (NKC), the government-convened body of representatives from Khoe and San communities of South Africa. Natural Justice’s Lesle Jansen, Laureen Manuel and Johan Lorenzen presented Natural Justice’s proposed partnership with the NKC, which the Open Society Initiative of Southern Africa (OSISA) has agreed to support, to the Council from 6-7 November, 2012, in Bloemfontein, South Africa. A memorandum of understanding committing both parties to the completion of the proposed activities was signed between Natural Justice and NKC on November 7, 2012.  

Natural Justice will support NKC to achieve three objectives through the partnership:

• Support the Council in having meaningful consultations amongst Council communities, members and with government;

• Engage in legal training for the NKC around the National Traditional Affairs Bill and its continued negotiations;

• Consult with Khoe and San communities to draft a self-governance model based on the human rights issues set out in the UN Mission report recommendations of 2005. 

The initial partnership is for 12 months but it is hoped that this will be the foundation of an enduring relationship. 

Collective Statement of Khoe Tribal Groupings

On the occasion of the International Day of the World's Indigenous Peoples, representatives of the Griqua National Forum, the Khoi Heritage and Development Council, the Indigenous Peoples of Africa Coordinating Committee (IPACC) and Natural Justice released a collective statement. The statement recognises the historic denial of rights and degradation of Khoe and San culture experienced under colonialism and Apartheid. It notes the continued lack of formal recognition of Khoe and San customary communities and leadership post-Apartheid. 

The declaration closes by embracing the recommendations of Professor Rodolfo Stavenhagen, the former UN Special Rapporteur on Indigenous Peoples’ Rights, which include: 

• Indigenous communities should be recognized as such constitutionally in parity with the speakers of the 11 official languages; 
•  National framework legislation, as recommended in the Status Quo reports should be promptly enacted with the full participation of the indigenous communities; 
• In the case of indigenous communities that were dispossessed of their lands during colonial era and discriminatory legislation or practice before the Native Land Act of 1913 positive legal and judicial action should be undertaken to enable these communities and legitimate claims for restitution within a wider perspective of human rights and transitional justice. Likewise the government is urged to provide the necessary resources and technical cooperation to these indigenous communities, enabling them to file claims; 
• Official socio- economic statistics should be disaggregated to specify indigenous communities and special poverty relief and social services delivery programs should be designed to target indigenous communities within South Africa’s efforts to meet their Millennium Development Goals.  

The full declaration can be downloaded here. Other community declarations can be found here.