Biocultural Rights Journey with Rooibos 231
be explored, organise the communities collectively, with due representation, for
resource governance and benefit-sharing.
In 2019, negotiations concluded, and the finalised ABS agreement brought
the Rooibos Industry into compliance with their benefit-sharing obligations as
per international and South African bioprospecting law and regulations ( Natural
Justice & the ABS Capacity Development Initiative, 2018). In terms of international law, the ABS agreement is grounded by the UN Convention on B iological
Diversity (CBD) and Nagoya Protocol on Access and Benefit-Sharing (Article
7 and Article 12), a supplementary agreement to the CBD. Specifically, one of
the fundamental objectives of Article 1 of the CBD is the fair and equitable
sharing of the benefits arising out of the utilisation of Indigenous biological
resources. In this way, the agreement centrally incorporates FPIC for access to
resources and TK (Natural Justice, n.d.). In terms of South African Law, the
National Environmental Management: Biodiversity Act 10 of 2004 and the
Bioprospecting, Access and Benefit Sharing Regulation of 2008 (No. R. 138 of
2008) were enacted in order to provide a regulatory framework for ABS (Natural
Justice, n.d.). The South African legislative framework goes beyond the Nagoya
Protocol’s standard of regulating “genetic components” of resources to regulating the utilisation of the whole of the Indigenous biological resource (Natural
Justice, n.d.). This policy approach has been crucial for the Khoikhoi with regard
to Rooibos and social justice.
These benefit-sharing obligations are upheld in the form of a TK levy, a
percentage of the profits from the marketing of Rooibos by the South African
Rooibos industry, as a benefit to be shared with Khoikhoi and San communities.
The first levy payment by the Rooibos industry was expected to be due and
payable to Khoikhoi and San communities in June 2020. However, the industry
reported that the payment would be delayed due to governmental administrative
lags and the impact of COVID-19 on their own farming. While the first Rooibos
levy was not paid by the industry to the South African Biodiversity Fund, the
Fund should, in turn, pay the levy over to the two groups. Both the Khoi and
San have formed their representative community trusts for the purposes of distributing the projected benefits to their communities, once the levy is received.
Significance of Restitution for Landless Knowledge Holders
Given the unredressed colonial and apartheid legacies the Khoikhoi continue
to experience, inclusive of their enduring landlessness and, at the time of signing of the agreement, their constitutional unrecognition, this landmark ABS
agreement was not only historically precedent setting for Indigenous peoples,
but incredibly significant and symbolic for the Khoikhoi. The Khoikhoi have
lived as landless people, made to work as farm labourers on others’ commercial farms or lease the land upon which they stewarded their precious Rooibos.
While they labour on these lands, without constitutional recognition of their
customary community as the first peoples of these same lands, they are instead
be explored, organise the communities collectively, with due representation, for
resource governance and benefit-sharing.
In 2019, negotiations concluded, and the finalised ABS agreement brought
the Rooibos Industry into compliance with their benefit-sharing obligations as
per international and South African bioprospecting law and regulations ( Natural
Justice & the ABS Capacity Development Initiative, 2018). In terms of international law, the ABS agreement is grounded by the UN Convention on B iological
Diversity (CBD) and Nagoya Protocol on Access and Benefit-Sharing (Article
7 and Article 12), a supplementary agreement to the CBD. Specifically, one of
the fundamental objectives of Article 1 of the CBD is the fair and equitable
sharing of the benefits arising out of the utilisation of Indigenous biological
resources. In this way, the agreement centrally incorporates FPIC for access to
resources and TK (Natural Justice, n.d.). In terms of South African Law, the
National Environmental Management: Biodiversity Act 10 of 2004 and the
Bioprospecting, Access and Benefit Sharing Regulation of 2008 (No. R. 138 of
2008) were enacted in order to provide a regulatory framework for ABS (Natural
Justice, n.d.). The South African legislative framework goes beyond the Nagoya
Protocol’s standard of regulating “genetic components” of resources to regulating the utilisation of the whole of the Indigenous biological resource (Natural
Justice, n.d.). This policy approach has been crucial for the Khoikhoi with regard
to Rooibos and social justice.
These benefit-sharing obligations are upheld in the form of a TK levy, a
percentage of the profits from the marketing of Rooibos by the South African
Rooibos industry, as a benefit to be shared with Khoikhoi and San communities.
The first levy payment by the Rooibos industry was expected to be due and
payable to Khoikhoi and San communities in June 2020. However, the industry
reported that the payment would be delayed due to governmental administrative
lags and the impact of COVID-19 on their own farming. While the first Rooibos
levy was not paid by the industry to the South African Biodiversity Fund, the
Fund should, in turn, pay the levy over to the two groups. Both the Khoi and
San have formed their representative community trusts for the purposes of distributing the projected benefits to their communities, once the levy is received.
Significance of Restitution for Landless Knowledge Holders
Given the unredressed colonial and apartheid legacies the Khoikhoi continue
to experience, inclusive of their enduring landlessness and, at the time of signing of the agreement, their constitutional unrecognition, this landmark ABS
agreement was not only historically precedent setting for Indigenous peoples,
but incredibly significant and symbolic for the Khoikhoi. The Khoikhoi have
lived as landless people, made to work as farm labourers on others’ commercial farms or lease the land upon which they stewarded their precious Rooibos.
While they labour on these lands, without constitutional recognition of their
customary community as the first peoples of these same lands, they are instead