Civil Society Newsletter on Biodiversity Features Two Articles by Natural Justice

The Convention on Biological Diversity (CBD) is known for being relatively open to civil society engagement. As just one example, the CBD Alliance and CBD Secretariat jointly produce a newsletter called [square brackets] ahead of major CBD meetings. The eighth issue has just been released to coincide with the upcoming meetings of the Working Group on Article 8(j) and Related Provisions (7-11 October) and the Subsidiary Body on Scientific, Technical and Technological Advice (14-18 October).

This issue of [square brackets] includes articles on "The Nagoya Protocol and the emergence of biocultural rights" by former Natural Justice Association member Kabir Bavikatte, on the proposal for the CBD to adopt the term "indigenous peoples" by Caroline de Jong (Forest Peoples Programme) and Holly Jonas (Natural Justice), and on the need for strengthened implementation of the CBD by S. Faizi (CBD Alliance Chairperson). The eighth issue of [square brackets] can be downloaded here.

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Learning about intellectual property, community protocols and ABS

A training for indigenous peoples and local communities in Africa on intellectual property, biocultural community protocols (BCPs) and access and benefit sharing (ABS) is taking place in Addis Ababa, Ethiopia, from the 23rd to the 27th of September. The meeting is organized by the ABS Initiative, in collaboration with Natural Justice, the Indigenous Information Network, the Indigenous Peoples Coordination Committee of Africa and hosted by the African Union Commission.

Intellectual property protections, such as patents, are often placed over developments that have originated from the knowledge held by indigenous and local communities. Unfortunately, these communities rarely provide their consent for such actions nor are able to share in any benefits that emerge from the developments.

Therefore, African indigenous people and local community representatives have requested training on the intellectual property regime, its linkages with access and benefit sharing and tools, such as community protocols, that can be used to protect their knowledge.

During the week long training, participants will share information on patents, geographical indications, plant variety protections, trade marks, the Nagoya Protocol on Access and Benefit Sharing and community protocols.

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James Anaya on the "resource curse" in the global south

Professor James Anaya (United Nations Special Rapporteur on the Rights of Indigenous Peoples) has written an opinion article for Al Jazeera entitled "Is natural resource development a blessing, a 'quick-fix,' or a curse?" Drawing on his experiences as a UN investigator, he argues that the resource curse is alive and well in the global south, with profits from natural resource extraction failing to reach the people and communities who bear the brunt of its environmental and social impacts, and that the heart of the problem often lies in lack of recognition of the rights of the Indigenous peoples and local communities living on the land.

Referencing the community land and resource rights conference currently taking place in Interlaken, he calls on the new UN Sustainable Development Goals to include recognition of land rights, including rights based on traditional use and occupancy, in order to address deep-rooted problems of contested ownership. For more information, please read the Al Jazeera article and download Anaya's thematic report on extractive industries and Indigenous peoples, which was recently submitted to the Human Rights Council.

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Practical Approaches to Ensuring the Full and Effective Participation of Indigenous Peoples in REDD+: Assessing Experiences and Lessons to Date.

Cath Traynor (Natural Justice) attended the Joint Expert Workshop on Practical Approaches to Ensuring the Full and Effective Participation of Indigenous Peoples in REDD+: Assessing Experiences and Lessons to Date on 10-12 September at the Castle of Weilburg, Germany.

The central workshop question was “how can we encourage and enable the full and effective participation of Indigenous Peoples in REDD+ decision making?”  Participants discussed local level experiences and examined national level participation of Indigenous Peoples in REDD+ country programmes. Critical issues that emerged included:

• The policy and procedures which govern the operations of the Forest Carbon Partnership Facility and UN-REDD Programme are distinct and complex, and although some harmonisation of guidelines has occurred, further streamlining in line with the United Nations Declaration on the Rights of Indigenous Peoples is required.
• Safeguards operational guidance is limited and implementation remains a real challenge.
• Whether full and effective participation of Indigenous Peoples is possible without recognition of their rights to lands, territories and natural resources.
• REDD+ processes need to take into account the customary structures of Indigenous Peoples and ensure that they are fairly represented on national REDD+ decision-making bodies and that they can meaningfully influence REDD+ processes.
• Institutionalising Indigenous Peoples participation through legal frameworks and enforcement could enhance participation.
• In some countries the REDD+ process has provided a space for Indigenous Peoples to enter into dialogue with governments and to call for a greater recognition of their rights.

The biocultural community protocols approach provides important lessons for local-level Indigenous Peoples participation and these could inform REDD+ processes.

The key messages from the workshop will be released shortly by the hosting institutions: the German Federal Ministry for Economic Cooperation and Development, the Forest Carbon Partnership Facility, and the UN-REDD Programme.

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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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UN Secretary General Calls on States to Honor Treaties With Indigenous Peoples on International Day of the World's Indigenous Peoples

Friday, 9 August 2013, was the International Day of the World's Indigenous Peoples. This important day was recognized at United Nations headquarters in New York, where Indigenous peoples from around the world gathered for a special event with the theme "Indigenous peoples building alliances: Honouring treaties, agreements and other constructive arrangements." Prior to the start of the special event, hundreds of indigenous and non-indigenous rowers arrived several blocks north of UN Headquarters in Manhattan, after having collectively travelled thousands of miles on rivers and horseback to honour the first treaty -– the Two Row Wampum -– concluded between Dutch immigrants and the Haudenosaunee (a confederacy of six nations, with capital in the Onondaga nation, in NY State) 400 years ago, in 1613.

The special event was chaired by Paul Kanyinke Sena, Chair of the UNPFII, who moderated a panel made up of Mary Morgan Moss, Ambassador, Deputy Permanent Representative of Panama to the UN; Ivan Šimonović  UN Assistant Secretary-General for Human RIghts, and Chief Oren Lyons of the Onandaga people. Also attending was UN Secretary General Ban Ki-moon, who spoke of the importance of honoring treaties between States and Indigenous peoples. He noted that while Indigenous people had made it clear that they want development, such development must "take into account culture, and identity and the right to define their own priorities." He stated that "the post-2015 development agenda needs, therefore, to incorporate the rights, perspectives and needs of Indigenous peoples" and "urged member states to take concrete steps to address the challenges facing Indigenous peoples, especially their marginalization and exclusion, by honoring all commitments and examining what more can be done."

Mr. Šimonović highlighted four key messages that should help narrow the gap between the promises made in treaties and the realities on the ground: first, we must ensure that there are effective remedies available in cases of violations of treaties, in particular when they involve human rights issues; second, UN and regional mechanisms should pay increasing attention to treaty observance, and those involved in the implementation of treaties should engage with human rights bodies when human rights issues are at stake; third, while it is crucial that we monitor and address violations, we should also identify and learn from situations where compliance with treaty obligations has been achieved; and fourth, as the need for compliance with existing treaties is stressed, we should also pay attention to the ongoing work in many states to draw up new treaties in order to ensure that their eventual content is fully in line with the rights of Indigenous peoples. He noted that we should start by ensuring a process that is fully in line with the principle of free, prior and informed consent and other human rights principles. (Note: all uses of the pronoun "we" by Mr. Šimonović.)

J. Eli Makagon from Natural Justice attended this event.
More information on the International Day can be found here.
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Natural Justice Participates in Workshop hosted by International Council on Mining and Metals

Sankar Pani of Natural Justice has participated in a workshop organized by International Council on Mining and Metals (ICMM) on human rights issues on 27 May 2013 and on indigenous peoples issues on 29 May 2013, held at the University of Western Australia, Perth. 

The multi-stakeholder workshop was attended by industry practitioners from ICMM member companies, civil society organizations, academia and experts from international organizations and research institutions from the entire Asia-Pacific region. The event was co-facilitated by the Institute of Business and Human Rights. 

The multi-stakeholder day on Human Rights and Indigenous Peoples has discussed the following aspects: 

• ICMM’s guidance in the area of Human Rights and Indigenous people
• Sharing of perspectives and to explore challenges and opportunities around implementing the UN Protect, Respect and Remedy Framework and Guiding Principles (including the due diligence and grievance mechanisms elements) 
• Sharing of perspectives and to explore challenges and opportunities around implementing effective engagement and decision-making processes with Indigenous Peoples (including Free, Prior and Informed Consent) 
• Facilitate peer-learning and exchange which contributes to the creation of regional networks around the key issues discussed 

The following points emerged from the discussion:

• Local communities consent for the project is more important and need to be prioritized at the very early stage of beginning of a project. There are ample of examples where the projects could not move ahead even they have obtained all necessary statutory clearances with active support from respective government. 
• There has been an increase in conflicts in existing and proposed mining areas across the globe and mostly local people are resisting to such projects out of their bad experiences with earlier such projects. So it is extremely important to establish good practices and responsible mining so as to remove the blots and scars the community had in past. 
• Cultural rights of indigenous community have to be respected before any kind of developmental activity started in their territory.
• There should be enough measures taken so that community can play a vital role in terms of decision making in the operation of the project and by this way community can start owning the process and conflicts can be minimized

In the context of effective participation and decision making, Natural Justice has suggested to experiment with the idea of bio-cultural community protocol. Since this idea is of more broad based and participatory approach and can able to sort out the issues and suggest some remedy emerged from the community consultation process.

The ideas that emerged from the consultation process of this regional workshop will be taken forward by ICMM in consultation with its members. The relevant points will be incorporated in ICMM policy document on Human Rights and Indigenous People.

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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.

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Submission to UN Working Group on Human Rights and Transnational Corporations and Other Business Enterprises

On 1 March 2013, Natural Justice with the Centre for Indigenous Knowledge and Organisational Development (CIKOD) made a further submission to the United Nations Working Group on Human Rights and Transnational Corporations and Other Business Enterprises regarding indigenous peoples, business and human rights.

The submission was in response to a concept and discussion note prepared by the Working Group, given its decision to submit a thematic report to the 68th session of the General Assembly that will focus on the situation of indigenous peoples with regard to the prevention of negative impacts of business activities on the rights of indigenous peoples.

Public consultations were held on 14 February 2013 in Geneva and these, and other, submissions addressed the following focus questions:

1. Focus: What specific issues and challenges should the Working Group take into account in drafting this report? 
2. Existing guidance and standards: What existing standards and documents should the Working Group take into account in drafting this report? 
3. Existing practices and initiatives: What existing practices and initiatives should the Working Group take into account in drafting this report?
4. What focused insight can the Working Group bring to the issue of business impacts on indigenous peoples, given the role and thematic scope of other UN bodies on the rights of indigenous peoples? 
5. The submissions included case studies on gold mining in Tanchara, Ghana and Lamu, Kenya. 

This, and other submissions, are available here.

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Submission to the UN Global Compact on Practice Note on FPIC

On 1 March 2013 Natural Justice submitted a letter to the United Nations Global Compact, commenting on their Draft Practice Note on Free, Prior and Informed Consent (the draft practice note can be found here). The concept note aims to identify key issues that companies should consider in appropriate engagements with indigenous peoples.

Natural Justice’s submission sought to clarify elements of the draft practice note, bringing it into line with international human rights and environmental legal principles found in instruments such as the Declaration on the Rights on Indigenous Peoples, the Convention on Biological Diversity, the Nagoya Protocol and the UN Guiding Principles on Business and Human Rights as well as the work of the Special Rapporteur on the Rights of Indigenous Peoples, the Special Rapporteur on Extreme Poverty and Human Rights, the Permanent Forum on Indigenous Issues and the Expert Mechanism on the Rights of Indigenous Peoples and international jurisprudence such as the Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya and Saramaka v. Suriname.

Global Compact was urged to:
1. Amend its practice note to reflect international standards, by specifying the obligations of states to respect the rights of indigenous peoples to free prior and informed consent with respect to projects and decisions that are likely to affect them;
2. Amend its practice note to reflect a company’s obligation to apply and respect internationally recognized human rights (such as the Declaration on the Rights of Indigenous Peoples), and to honour these rights where there are conflicts with domestic laws.

This and other submissions are available here.

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ICCA Studies Featured in Stockholm Resilience Centre Research News

Indigenous rangers in Australia are increasingly gaining

recognition for "caring for country", including through the
Indigenous Protected Area programme. Photo courtesy:
Craig Wheeler, Mapoon Ranger

Two studies focusing on Indigenous peoples' and community conserved territories and areas (ICCAs) have been featured in the Stockholm Resilience Centre's Research News in an article entitled "The Invisible Guardians: Enforcing legal mechanisms can highlight Indigenous peoples' importance in natural resource governance".

The first study, coordinated by Kalpavriksh and co-edited by Natural Justice, focuses more on non-legal aspects and is published as Volume 64 of the Convention on Biological Diversity Technical Series along with 19 country studies. The second, coordinated by Natural Justice, focuses more on legal and institutional aspects and includes 15 national and three regional reviews and a review of international law and jurisprudence (all available here). The synthesis report (available in English, Spanish and French) argues that while there are a number of positive developments in the way ICCAs are recognized and supported at the international and national levels, Indigenous peoples and local communities are still often discriminated against in practice, including in ways that undermine the integrity and resilience of their territories, areas and natural resources.

The article on the Stockholm Resilience Centre's Research News also includes a video interview with Joji Carino (Indigenous Peoples' International Centre for Policy Research and Education, Tebtebba).

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International Conference on Heart of Borneo Initiative

The proposed Heart of Borneo boundary

(in yellow). Courtesy of WWF-Malaysia.

The island of Borneo is one of the world's major biodiversity hotspots, with thousands of plant and animal species found nowhere else on earth. It is politically divided into the Malaysian states of Sabah and Sarawak, the Indonesian provinces of West, Central, South, and East Kalimantan, and the state of Brunei Darussalam. In 2007, the three national governments signed the Heart of Borneo Declaration, a unified conservation vision for "maintaining Bornean natural heritage for the benefit of present and future generations". The Heart of Borneo initiative, which is facilitated by the Worldwide Fund for Nature-Malaysia (WWF-Malaysia), aims to protect 22 million hectares of the largest contiguous forest in Southeast Asia through effective management of forest resources and a network of protected areas, productive forests, and other sustainable land uses.

From 6-7 November, Holly Shrumm (Natural Justice) attended an international conference entitled "Heart of Borneo +5 and Beyond: Shaping and Nurturing Sabah's Future Together". Held in Kota Kinabalu, Sabah, the conference was organised by the Sabah Forestry Department and co-hosted by a range of other government agencies and non-governmental organisations, including the Sabah Biodiversity Centre, Partners of Community Organisations in Sabah (PACOS Trust) and Land Empowerment Animals People (LEAP).

The first session on global perspectives on conservation included a diverse group of presenters, most notably, on renewable energy (Dr. Daniel Kammen, Energy and Resources Group, University of California-Berkeley), on the connections between people and forests (Dr. Tint Lwin Thaung, Executive Director, The Centre for People and Forests), and on the drivers of deforestation (Rhett Butler, founder of Mongabay.com).

The second session introduced a new and complementary initiative called "Forever Sabah", which aims to transform Sabah's current trajectory into a diversified, conservation-based green economy. The multi-stakeholder panel was moderated by Darrel Webber (Secretary General, Roundtable on Sustainable Palm Oil) and included interventions from Sam Mannan (Director, Sabah Forestry Department), Cynthia Ong (LEAP), Anne Lasimbang (PACOS Trust), Dr. Glen Reynolds (the Royal Society's South East Asia Rainforest Research Programme), Jeffrey Horowitz (Avoided Deforestation Partners), and Abdullah Latiff Mohamad (WWF-Malaysia).

The bulk of the rest of the conference consisted of breakout sessions (which included presentations and  open discussions about next steps for Heart of Borneo) on the following five themes: forests and biodiversity; agriculture and plantations; infrastructure and energy development; community development; and tourism. When the groups presented their outcomes in plenary, a common thread throughout - bolstered by strong representation of Indigenous community members from across Sabah - was the need to recognise Native Customary Rights and land title and to ensure participation of Indigenous peoples and local communities in the Heart of Borneo design, implementation, and monitoring and evaluation process.

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State of the World's Minorities and Indigenous Peoples

With the threats faced by indigenous peoples and minorities increasing, Minority Rights Group International (MRG) has released its annual “State of the World’s Minorities and Indigenous Peoples Report.” The report finds that “the scale and severity of the threats to indigenous peoples and minorities have reached new proportions, due to an unprecedented demand for the world’s remaining resources.” 

The report “provides concrete evidence of how the generation of vast revenues from logging and dams, oil and mineral extraction, coastal tourism, fish farming, conservation parks and large-scale agriculture, is often at the expense of the rights of indigenous peoples and minorities.” According to the report, “despite a wave of new commitments from governments and corporations, the revenues from natural resource development continue to flow out of the regions where poor communities live, while the harms stay behind.” 

The report can be downloaded here. The global press release can be found here. MRG can be found on Facebook (here) and Twitter (here).

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