230 Leslé Jansen and Rayna Sutherland
Environment, Forestry and Fisheries) requesting negotiations with the R ooibos
industry in accordance with the South Africa’s legislative requirements: the
National Environmental Management: Biodiversity Act 10 of 2004 (Natural
Justice & the ABS Capacity Development Initiative, 2018). Two years later, the
NKSC joined them in what would become a shared journey to seek recognition
as the knowledge holders to the uses of Rooibos. The industry-wide negotiations
were then collectively initiated by both councils in their first meeting with the
South African Rooibos Council (SARC) that same year, in 2012.
As this journey further progressed and took shape as a priority, intellectual
property and ABS rose as the key relative focus for the community protocol. As
the ABS negotiations, and more deeply, the struggle for recognition as knowledge holders to the uses of Rooibos intensified, it was decided to shift attention
onto this process (National Khoi and San Council & Cederberg Belt Indigenous
Farmers Representatives, 2019). The significance of the issue at hand was recognition of the Khoikhoi as the TK holders of Rooibos, along with the San, and
uniting the diversity of Khoikhoi communities to organise collectively, including the unrepresented Cederberg belt Indigenous farming communities.
In terms of the struggle for recognition, part and parcel to this process was
the South African government commissioned TK study to enquire whether
the Khoikhoi and San were the undisputable knowledge holders to the uses of
Rooibos and honeybush (DEA, 2014). Similarly, the Rooibos industry submitted
their official notice to conducting an independent TK study that they planned to
commission for their own research on the same issue. Although they commissioned their report as intended, their results were never made public. However,
the South African government’s study found that there was “no evidence that
disputes” the communities’ claim to being the TK holders (DEA, 2014, p. iii).
With the publication of the study, affirming their TK status, and the successful
signing of the first ABS agreement for Rooibos, between Nestlé, the NKSC and
the San Council, the momentum of this journey continued as the NKSC formed
an ABS subcommittee for ABS/Intellectual Property, which would become the
central ABS Negotiations Team for Rooibos as well as other plant ABS agreements (Natural Justice & the ABS Capacity Development Initiative, 2018). The
agreement with Nestlé was also strategically used to insert a clause stating that
all Rooibos sourced should be ethically done in compliance with the law (ibid.).
A year later, the NKSC began to outreach with the Cederberg belt communities to include them in the Rooibos industry negotiations and eventually, the
Cederberg belt community joined the NKSC ABS negotiations committee in
2015. The process continued to develop as, in 2016, the South African Rooibos
industry, through the SARC, came to the negotiations table overseen by, what
was then known as, the Department of Environmental Affairs. At this stage, a
specific Rooibos Biocultural Community protocol was opened by the NKSC.
The goal of the negotiations was an industry-wide agreement, including a TK
levy on the use of TK associated with Rooibos. The goal of the Rooibos BCP
was to document the Khoikhoi as the TK holders to Rooibos and as will later
Environment, Forestry and Fisheries) requesting negotiations with the R ooibos
industry in accordance with the South Africa’s legislative requirements: the
National Environmental Management: Biodiversity Act 10 of 2004 (Natural
Justice & the ABS Capacity Development Initiative, 2018). Two years later, the
NKSC joined them in what would become a shared journey to seek recognition
as the knowledge holders to the uses of Rooibos. The industry-wide negotiations
were then collectively initiated by both councils in their first meeting with the
South African Rooibos Council (SARC) that same year, in 2012.
As this journey further progressed and took shape as a priority, intellectual
property and ABS rose as the key relative focus for the community protocol. As
the ABS negotiations, and more deeply, the struggle for recognition as knowledge holders to the uses of Rooibos intensified, it was decided to shift attention
onto this process (National Khoi and San Council & Cederberg Belt Indigenous
Farmers Representatives, 2019). The significance of the issue at hand was recognition of the Khoikhoi as the TK holders of Rooibos, along with the San, and
uniting the diversity of Khoikhoi communities to organise collectively, including the unrepresented Cederberg belt Indigenous farming communities.
In terms of the struggle for recognition, part and parcel to this process was
the South African government commissioned TK study to enquire whether
the Khoikhoi and San were the undisputable knowledge holders to the uses of
Rooibos and honeybush (DEA, 2014). Similarly, the Rooibos industry submitted
their official notice to conducting an independent TK study that they planned to
commission for their own research on the same issue. Although they commissioned their report as intended, their results were never made public. However,
the South African government’s study found that there was “no evidence that
disputes” the communities’ claim to being the TK holders (DEA, 2014, p. iii).
With the publication of the study, affirming their TK status, and the successful
signing of the first ABS agreement for Rooibos, between Nestlé, the NKSC and
the San Council, the momentum of this journey continued as the NKSC formed
an ABS subcommittee for ABS/Intellectual Property, which would become the
central ABS Negotiations Team for Rooibos as well as other plant ABS agreements (Natural Justice & the ABS Capacity Development Initiative, 2018). The
agreement with Nestlé was also strategically used to insert a clause stating that
all Rooibos sourced should be ethically done in compliance with the law (ibid.).
A year later, the NKSC began to outreach with the Cederberg belt communities to include them in the Rooibos industry negotiations and eventually, the
Cederberg belt community joined the NKSC ABS negotiations committee in
2015. The process continued to develop as, in 2016, the South African Rooibos
industry, through the SARC, came to the negotiations table overseen by, what
was then known as, the Department of Environmental Affairs. At this stage, a
specific Rooibos Biocultural Community protocol was opened by the NKSC.
The goal of the negotiations was an industry-wide agreement, including a TK
levy on the use of TK associated with Rooibos. The goal of the Rooibos BCP
was to document the Khoikhoi as the TK holders to Rooibos and as will later