Biocultural Rights Journey with Rooibos 229
Overall, the post-apartheid era, hoped to mark a shift towards equity and
justice, brought an unexpected challenge for the Khoikhoi. As the nation looked to
rebuild in the conceptualisation of the new democratic South Africa, the Khoikhoi were all but excluded from envisioning their right to self- determination on
par with the rest of South African society. Within this broad challenge of unrecognition, the Khoikhoi were equally left out of processes of development and
rebuilding from land restitution to recognition and protection of their languages.
With layers of justice and healing due to their communities, in 2012, the NKSC
decided to develop a community protocol with the objective of articulating
the Khoikhoi communities’ struggles as a non-recognised African Indigenous
community in South Africa (National Khoi and San Council & Cederberg Belt
Indigenous Farmers Representatives, 2019). As aligned with the historical and
living contemporary struggles outlined, the identified priority issues for the protocol were as follows: constitutional recognition, recognition of their Indigenous language, land rights, intellectual property and Access and Benefit- Sharing
(ABS), women and youth, and healing and economic development.
The BCP Process
The Rooibos Restitution Journey
In 2010, shortly before the Khoikhoi began their community protocol process, a
biopiracy case linked to Rooibos came to light in South Africa (National Khoi
and San Council & Cederberg Belt Indigenous Farmers Representatives, 2019).
At that time, the multinational company, Nestlé, applied for patents to the uses
of Rooibos and honeybush without the consent of the resource provider, South
Africa (Natural Justice & the ABS Capacity Development Initiative, 2018). In
the same vein, consent was also neither sought nor freely given from the knowledge holders, the Khoikhoi and San. As a response, the pan-African non-profit
organisation (NPO), Natural Justice and Swiss NPO, The Berne Declaration
(now known as the Public Eye), successfully launched a high-profile campaign
against Nestlé, for contravening South African Law and the UN Convention
on Biological Diversity and its Nagoya Protocol on ABS (National Khoi and
San Council & Cederberg Belt Indigenous Farmers Representatives, 2019). This
advocacy campaign rendered the patent application unsuccessful. Thereafter, in
2013, Nestlé approached both South Africa and its knowledge holders of Rooibos
to seek consent for the development of a Rooibos tea product (Natural Justice &
the ABS Capacity Development Initiative, 2018). This opened the development
of a benefit-sharing agreement between Nestlé, the South African San Council
and the NKSC.
Parallel to the unfolding of the Nestlé biopiracy case and then benefit-sharing
process, the roots of a broader industry-wide benefit-sharing negotiations process began to take hold. First, the South African San Council wrote to the
Minister of the then Department of Environmental Affairs (now Department of
Overall, the post-apartheid era, hoped to mark a shift towards equity and
justice, brought an unexpected challenge for the Khoikhoi. As the nation looked to
rebuild in the conceptualisation of the new democratic South Africa, the Khoikhoi were all but excluded from envisioning their right to self- determination on
par with the rest of South African society. Within this broad challenge of unrecognition, the Khoikhoi were equally left out of processes of development and
rebuilding from land restitution to recognition and protection of their languages.
With layers of justice and healing due to their communities, in 2012, the NKSC
decided to develop a community protocol with the objective of articulating
the Khoikhoi communities’ struggles as a non-recognised African Indigenous
community in South Africa (National Khoi and San Council & Cederberg Belt
Indigenous Farmers Representatives, 2019). As aligned with the historical and
living contemporary struggles outlined, the identified priority issues for the protocol were as follows: constitutional recognition, recognition of their Indigenous language, land rights, intellectual property and Access and Benefit- Sharing
(ABS), women and youth, and healing and economic development.
The BCP Process
The Rooibos Restitution Journey
In 2010, shortly before the Khoikhoi began their community protocol process, a
biopiracy case linked to Rooibos came to light in South Africa (National Khoi
and San Council & Cederberg Belt Indigenous Farmers Representatives, 2019).
At that time, the multinational company, Nestlé, applied for patents to the uses
of Rooibos and honeybush without the consent of the resource provider, South
Africa (Natural Justice & the ABS Capacity Development Initiative, 2018). In
the same vein, consent was also neither sought nor freely given from the knowledge holders, the Khoikhoi and San. As a response, the pan-African non-profit
organisation (NPO), Natural Justice and Swiss NPO, The Berne Declaration
(now known as the Public Eye), successfully launched a high-profile campaign
against Nestlé, for contravening South African Law and the UN Convention
on Biological Diversity and its Nagoya Protocol on ABS (National Khoi and
San Council & Cederberg Belt Indigenous Farmers Representatives, 2019). This
advocacy campaign rendered the patent application unsuccessful. Thereafter, in
2013, Nestlé approached both South Africa and its knowledge holders of Rooibos
to seek consent for the development of a Rooibos tea product (Natural Justice &
the ABS Capacity Development Initiative, 2018). This opened the development
of a benefit-sharing agreement between Nestlé, the South African San Council
and the NKSC.
Parallel to the unfolding of the Nestlé biopiracy case and then benefit-sharing
process, the roots of a broader industry-wide benefit-sharing negotiations process began to take hold. First, the South African San Council wrote to the
Minister of the then Department of Environmental Affairs (now Department of