Biocultural Rights Journey with Rooibos 237
of their once wealth. The Western Cape province holds 18 prisons where a vast
majority of Khoikhoi communities are living under a forcibly labelled identity
of “Coloured”. The evidence of genocide, slavery, cultural assimilation and land
dispossession across a 400-year period is layered by apartheid spatial planning
where the wealthy owns 70% of the land in South Africa. It remains a miracle
that this community was able to secure this victory of the Rooibos agreement.
On top of these layers of oppression, academics, advocating in the name of
these communities, were silently seeking to ensure this victory never saw the
light of day. Yet, this divine miracle did indeed occur through the sweat of a long
journey after nearly a decade of hard work.
Natural Justice lead the first crack at this miracle victory by running an international campaign, with the Berne Declaration, against Nestlé, for their illegal
patent applications which were in violation of the Nagoya Protocol. Their sourcing of the plant material was done in violation of South Africa’s bioprospecting regulatory framework. This international campaign set the global stage for
Rooibos to emerge as an ABS case. This was critical work at the time, but it fell
short in so far as recognising the communities as the TK holders. While the campaign opened the door to start addressing the ethical sourcing of Rooibos as a
biotrade resource, their campaign did not address the fundamental issue, namely
the recognition of the Khoikhoi communities, as the TK rights holders.
Parallel and unconnected, in 2011, the South African San Council wrote a
letter to the government informing them of their claim as TK holders of Rooibos.
A certain synchronicity of events aligned, a Khoikhoi Indigenous lawyer, joining
Natural Justice at that time, a second Indigenous lawyer, heading Open Society’s Indigenous Peoples Program, and the Chairperson of the Khoikhoi national
community body, all met by divine coincidence. Once together, they then could
form an alliance, with Natural Justice, to support the National Khoisan Council (NKSC) to ensure the second claim to Rooibos, as TK holding communities, included them, as the NKSC, alongside that South African San Council.
This now meant that two Indigenous communities, namely, the Khoikhoi and
the San, had staked their claim as TK holders of the uses of Rooibos. And so,
the eight-year journey could unfold to ensure the SA Rooibos industry would
be held accountable for benefit-sharing in the context of the Nagoya Protocol,
on the basis that the Khoikhoi and San were the first inventors of the uses of
Rooibos.
The Rooibos BCP process was a delicate process that could have fallen apart
at any point. The Rooibos case was fought in the most unlikely circumstances,
namely, being that none of these communities are documented as Indigenous
or cultural communities in South Africa. They have no form of constitutional
recognition on par with other cultural communities, their languages are not
official languages, they have no access to their natural resources and as a result
of extreme land dispossession, they are no longer able to show a connection
to the land. They comprise different alliances, namely, the San’s four historical
communities, the 40 Khoikhoi communities and the Cederberg belt Indigenous
of their once wealth. The Western Cape province holds 18 prisons where a vast
majority of Khoikhoi communities are living under a forcibly labelled identity
of “Coloured”. The evidence of genocide, slavery, cultural assimilation and land
dispossession across a 400-year period is layered by apartheid spatial planning
where the wealthy owns 70% of the land in South Africa. It remains a miracle
that this community was able to secure this victory of the Rooibos agreement.
On top of these layers of oppression, academics, advocating in the name of
these communities, were silently seeking to ensure this victory never saw the
light of day. Yet, this divine miracle did indeed occur through the sweat of a long
journey after nearly a decade of hard work.
Natural Justice lead the first crack at this miracle victory by running an international campaign, with the Berne Declaration, against Nestlé, for their illegal
patent applications which were in violation of the Nagoya Protocol. Their sourcing of the plant material was done in violation of South Africa’s bioprospecting regulatory framework. This international campaign set the global stage for
Rooibos to emerge as an ABS case. This was critical work at the time, but it fell
short in so far as recognising the communities as the TK holders. While the campaign opened the door to start addressing the ethical sourcing of Rooibos as a
biotrade resource, their campaign did not address the fundamental issue, namely
the recognition of the Khoikhoi communities, as the TK rights holders.
Parallel and unconnected, in 2011, the South African San Council wrote a
letter to the government informing them of their claim as TK holders of Rooibos.
A certain synchronicity of events aligned, a Khoikhoi Indigenous lawyer, joining
Natural Justice at that time, a second Indigenous lawyer, heading Open Society’s Indigenous Peoples Program, and the Chairperson of the Khoikhoi national
community body, all met by divine coincidence. Once together, they then could
form an alliance, with Natural Justice, to support the National Khoisan Council (NKSC) to ensure the second claim to Rooibos, as TK holding communities, included them, as the NKSC, alongside that South African San Council.
This now meant that two Indigenous communities, namely, the Khoikhoi and
the San, had staked their claim as TK holders of the uses of Rooibos. And so,
the eight-year journey could unfold to ensure the SA Rooibos industry would
be held accountable for benefit-sharing in the context of the Nagoya Protocol,
on the basis that the Khoikhoi and San were the first inventors of the uses of
Rooibos.
The Rooibos BCP process was a delicate process that could have fallen apart
at any point. The Rooibos case was fought in the most unlikely circumstances,
namely, being that none of these communities are documented as Indigenous
or cultural communities in South Africa. They have no form of constitutional
recognition on par with other cultural communities, their languages are not
official languages, they have no access to their natural resources and as a result
of extreme land dispossession, they are no longer able to show a connection
to the land. They comprise different alliances, namely, the San’s four historical
communities, the 40 Khoikhoi communities and the Cederberg belt Indigenous