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The Rooibos Benefit Sharing Agreement–Breaking New Ground with Respect, Honesty, Fairness, and Care

  • DORIS SCHROEDER, ROGER CHENNELLS, COLLIN LOUW, LEANA SNYDERS and TIMOTHY HODGES...

Abstract

The 1992 Convention on Biological Diversity (CBD) and its 2010 Nagoya Protocol brought about a breakthrough in global policy making. They combined a concern for the environment with a commitment to resolving longstanding human injustices regarding access to, and use of biological resources. In particular, the traditional knowledge of indigenous communities was no longer going to be exploited without fair benefit sharing. Yet, for 25 years after the adoption of the CBD, there were no major benefit sharing agreements that led to significant funding streams for indigenous communities. This changed with the signing of the Rooibos Benefit Sharing Agreement in South Africa, described in this paper. As the authors report, the Rooibos Agreement is a superlative in two respects. It is the biggest benefit sharing agreement between industry and indigenous peoples to date. It is also the first industry-wide agreement to be formed in accordance with biodiversity legislation. This article is a co-production between traditional knowledge holders, the lawyer who represented their interests, the Co-Chair of the Nagoya Protocol negotiations, and an ethicist who analyzed the major challenges of this historic agreement. With no precedent in the benefit sharing world, the agreement stands as a concrete example of the ‘art of the possible.’ Although the rooibos case is unique in a number of aspects, the experience offers many transferable insights, including: patience; incrementalism; honesty; trust; genuine dialogue; strong legal support; a shared recognition that a fair, win-win deal is possible; government leadership; and unity amongst indigenous peoples. Such ingredients of success can apply well beyond southern Africa.

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Copyright

This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.

Footnotes

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Acknowledgements: The authors of this article wish to acknowledge two San leaders who have contributed immensely toward the San Code of Research Ethics and the Rooibos Benefit Sharing Agreement (RBSA). Both Andries Steenkamp and Mario Mahongo, leaders of rare humility and integrity, died tragically within the past few years. They are acknowledged to have been key architects of the RBSA. The authors would also like to acknowledge the members of the San Council, and in particular Zeka Shiwarra, Chrisjan Tieties, and Elmarie Bott, who assisted with negotiations over its last year.

Thanks to Dr Kate Chatfield, Prof. Tomi Kushner, Julie Cook and Dr Armin Schmidt for excellent comments; also to Julie and Tolu Oloruntoba for editorial support and to Armin for producing the Rooibos map for the article.

Footnotes

References

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Notes

1. Convention on Biological Diversity 1992; available at https://www.cbd.int/doc/legal/cbd-en.pdf (last accessed 17 Aug 2019).

2. Schroeder D, Bisupati B. Ethics, Justice and the Convention on Biological Diversity, United Nations Publication, 2010; available at https://tinyurl.com/y49j2yke (last accessed 17 Aug 2019).

3. Nagoya Protocol 2010; available at https://www.cbd.int/abs/doc/protocol/nagoya-protocol-en.pdf (last accessed 17 Aug 2019).

4. National Environmental Management Biodiversity Act (NEMBA) 2004; available at https://www.environment.gov.za/sites/default/files/legislations/nema_amendment_act10.pdf (last accessed 17 Aug 2019).

5. In 1995, human genetic resources were excluded from the CBD, leaving genetic resources of plant, animal, and microorganism origin, as well as related traditional knowledge within its scope, see Schroeder, D. Benefit Sharing – High Time for a Definition. Journal of Medical Ethics 2007;33(4):205–9.

6. For example, the 2016 Swiss Academy of Science Agreement on Access and Benefit-sharing for Academic Research; available at https://tinyurl.com/y53a8zru (last accessed 17 Aug 2019).

7. For example, World Intellectual Property Organization. Model Access and Benefit Sharing Agreement between Australian Government and Access Party; available at https://www.wipo.int/tk/en/databases/contracts/texts/australiaprovider.html (last accessed 17 Aug 2019).

8. Knight, A, Underhill, P, Mortensen, H, Zhivotovsky, L, Lin, A, Henn, B, Loui, D, Ruhlen, M, Mountain, J. African Y Chromosome and mtDNA Divergence Provides Insight into the History of Click Languages. Current Biology 2003;13(6):464–73.

9. Barnard, A. Hunters and Herders of Southern Africa: A comparative Ethnography of the Khoisan Peoples. New York and Cambridge: Cambridge University Press; 1992.

10. The licensing to Pfizer and Unilever was indirect via a UK company called Phytopharm.

11. Additional small-scale benefit sharing agreements were signed by the South African San Council with individual companies, including HG&H (Pty) Ltd (sceletium, see Box 1), Cape Kingdom (buchu), Nestle (rooibos), Puris (Pty) Ltd (buchu) and Zuplex (Pty) Ltd (rooibos, hoodia, buchu, and others).

12. The term ‘Khoi-San’ is increasingly used in the public domain as a unifying name for the Khoi or KhoiKhoi, and the San or Bushmen—two distinct groupings in southern Africa. However, this umbrella term is not suitable for discussing the San peoples. The Khoi or KhoiKhoi are regarded as pastoral and of more recent descent than the San, who are descended from hunter-gatherers (see note 9, Barnard 1992).

13. Translational science is the effort of building on basic research leading up to specific products. The term is mostly used in medicine, and is also referred to as ‘bench to bedside’ research, see Goldblatt, E, Lee, W. From bench to bedside: The growing use of translational research in cancer medicine. American Journal of Translational Research 2010;2(1):118.

14. San Code of Research Ethics 2017; available at http://www.globalcodeofconduct.org/affiliated-codes/ (last accessed 17 Aug 2019).

15. Whilst the health properties of rooibos claimed by the San and Khoi are not proven, there are at least 141 patents pending or registered in relation to various health applications (see Wynberg, R. Making sense of access and benefit sharing in the rooibos industry: Towards a holistic, just and sustainable framing. South African Journal of Botany 2017;110:3951).

16. Siyanda Samahlubi Consulting for DEA. Traditional Knowledge Associated with Rooibos and honeybush Species in South Africa, October 2014.

17. South African Rooibos Industry. South African Rooibos Industry Report for Benefit Sharing Negotiations as made available to legal teams, 2017.

18. World Intellectual Property Organization. Rooibos - Disputing a Name, Developing a Geographical Indication, 2018; available at https://www.wipo.int/ipadvantage/en/details.jsp?id=2691 (last accessed 17 Aug 2019).

19. First source: Rooibos Council. Rooibos Industry Fact Sheet 2018; available at https://sarooibos.co.za/wp/wp-content/uploads/2018/08/SARC-2018-Fact-Sheet-1.pdf (last accessed 17 Aug 2019). Second source: see note 15, Wynberg 2017. Third source: Joubert, E, de Beer, D. Rooibos (Aspalathus linearis) beyond the farm gate: From herbal tea to potential phytopharmaceutical. South African Journal of Botany 2011;77(4):869–86.

20. According to NEMBA, bioprospecting means “any research on, or development or application of, indigenous biological resources for commercial or industrial exploitation” (see note 4, NEMBA 2004).

21. Biotrade means “the current buying and selling of milled, powdered, dried, sliced or extract of indigenous genetic and biological resources for further commercial exploitation” (see UNCTAD. Facilitating BioTrade in a Challenging Access and Benefit Sharing Environment. UNCTAD/WEB/DITC/TED/2016/4:11; available at https://unctad.org/en/PublicationsLibrary/webditcted2016d4_en.pdf (last accessed 17 Aug 2019).

22. See note 4, NEMBA 2004, at 13.

23. See note 15, Wynberg 2017.

24. Wynberg R. Rooibos: a testing ground for ABS in South Africa. University of Cape Town, Voices for Biojustice, 2018; available at http://bio-economy.org.za/wp-content/uploads/2018/04/Rooibos-Policy-Brief-FINAL-1.pdf (last accessed 17 Aug 2019).

25. Laird, S, ed. Biodiversity and Traditional Knowledge: Equitable Partnerships in Practice. London: Earthscan; 2002, at 417.

26. The information in the table was provided by those co-authors who were part of the process, the lawyer acting on behalf of the San (RC) and the San Leadership (CL, LS).

27. In June 2019, DEA became DEFF (Department of Environment, Fisheries and Forestry). The earlier name, DEA, will be used throughout this publication, as it covers the nine years preceding the signing of the Rooibos Agreement in March 2019.

28. The Heiveld Coooperative (http://www.heiveld.co.za/index.html ) was formed in 2000 to represent members from the local rooibos farming community in the region of the Cederberg known as the Suid Bokkeveld.

29. See note 15, Wynberg 2017.

30. The Rooibos Benefit Sharing Agreement (RBSA, 2019) is currently only available to the negotiating partners.

31. See note 3, Nagoya Protocol 2010.

32. See note 30, RBSA 2019.

33. See note 30, RBSA 2019.

34. See note 30, RBSA 2019.

35. Berlin, B, Berlin, E. Community Autonomy and the Maya ICBG Project in Chiapas, Mexico: How a Bioprospecting Project that Should Have Succeeded Failed. Human Organization 2004;63(4):472–86.

36. Feinholz-Klip, D, Barrios, L, Cook, Lucas J. The Limitations of Good Intent: Problems of Representation and Informed Consent in the Maya ICBG Project in Chiapas, Mexico. In: Wynberg, R, Schroeder, D, Chennells, R. Indigenous Peoples, Consent and Benefit Sharing – Lessons Learned from the San Hoodia Case. New York and London: Springer; 2009, 315–31, at 315.

37. See note 36, Wynberg 2009.

38. Chennells R, Haraseb V, Ngakaeaja M. Speaking for the San: Challenges for Representative Institutions. In Wynberg 2009 (see note 37), at 165–89.

39. Chennells R, Schroeder D. The San Code of Research Ethics - Its Origins and History, Report for the South African San Council and the TRUST project, 2019; available at http://www.globalcodeofconduct.org/wp-content/uploads/2019/02/SanCodeHistory.pdf (last accessed 17 Aug 2019).

40. Stavenhagen R. Human rights and indigenous issues - Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people. UN Economic and Social Council, 2005 E/CN.4/2006/78/Add.2.

41. “For thousands of generations, San populations lived by hunting and gathering as the sole occupants of Southern Africa,” Hitchcock R, Biesele M, Ikeya K. Updating the San: Image and Reality of an African People in the Twenty-first Century. Senri Ethnological Studies 2006;70.

42. San and Khoi Memorandum of Association signed on July 18 2013, which committed them to joint negotiations regarding the rooibos, honeybush, hoodia, and buchu plant species.

43. Honeybush was also investigated by the TK report commissioned by the DEA to investigate TK. On receipt of the report, the San and Khoi commenced negotiations on Rooibos first.

44. See note 3, Nagoya Protocol 2010.

45. Ives, S. Farming the South African ‘bush’: Ecologies of belonging and exclusion in rooibos tea. American Ethnologist 2014;41(4):698713.

46. Wynberg R, Custers S. Determining a Fair Price and Equitable Benefit for Small-Scale Rooibos Tea Producers. An Analysis of the Costing and Pricing of Small-Scale Production of Organic and Fair Trade Rooibos, and Benefit Flows along the Rooibos Value Chain, 2005. Report Prepared for Fair Trade Assistance, Netherlands.

47. See note 15, Wynberg 2017.

48. See note 15, Wynberg 2017.

49. See note 15, Wynberg 2017.

50. See note 36, Wynberg 2009.

51. See note 38, Chennells 2009.

52. Chennells, R. Vulnerability and Indigenous Communities: Are the San of South Africa a Vulnerable People? Cambridge Quarterly of Healthcare Ethics 2009;18(2):147–54.

53. Weijer, C. Protecting Communities in Research: Philosophical and Pragmatic Challenges. Cambridge Quarterly of Healthcare Ethics 1999;8(4):503–13.

54. Weijer, C, Golds, G, Emanuel, E. Protecting communities in research: Current guidelines and limits of extrapolation. Nature Genetics 1999;23:275–80.

55. Schroeder, D, Gefenas, E. Vulnerability – Too Vague and Too Broad? Cambridge Quarterly of Healthcare Ethics 2009;18(2):113–21.

56. Given that the San leadership co-authored this paper, the San example is taken here. The Khoi leadership or the indigenous farming communities would be able to give other examples from their communities. The principle about the vulnerability to exploitation would, however, be the same.

57. See note 39, Chennells 2019.

58. See note 52, Chennells 2009.

59. Callaway E. South Africa’s San people issue ethics code to scientists. In: Nature | News, 20 March 2017; available at https://www.nature.com/news/south-africa-s-san-people-issue-ethics-code-to-scientists-1.21684 (last accessed 17 Aug 2019).

60. For a definition of the values, see Schroeder, D, Chatfield, K, Chennells, R, Singh, M, Herissone-Kelly, P. Equitable Research Partnerships - A Global Code of Conduct to Counter Ethics Dumping. New York and London: Springer; 2009.

61. See note 14, San Code of Research Ethics 2017.

62. Andries Steenkamp, a former chairperson of the South African San Council, was a leader of unique personal integrity who “exuded an air of confidence and open curiosity, quick to understand and appreciate the persons across the table, and slow to take personal offence” (see note 39, Chennells 2019). Andries was one of the main negotiators of the Rooibos agreement until his early death in 2016. In his honor, his name was chosen for the RBSA trust that will benefit the San.

63. All quotes from the Andries Steenkamp Benefit Sharing Trust were obtained from the South African San Council. The deeds for the trust are not publicly available.

Acknowledgements: The authors of this article wish to acknowledge two San leaders who have contributed immensely toward the San Code of Research Ethics and the Rooibos Benefit Sharing Agreement (RBSA). Both Andries Steenkamp and Mario Mahongo, leaders of rare humility and integrity, died tragically within the past few years. They are acknowledged to have been key architects of the RBSA. The authors would also like to acknowledge the members of the San Council, and in particular Zeka Shiwarra, Chrisjan Tieties, and Elmarie Bott, who assisted with negotiations over its last year.

Thanks to Dr Kate Chatfield, Prof. Tomi Kushner, Julie Cook and Dr Armin Schmidt for excellent comments; also to Julie and Tolu Oloruntoba for editorial support and to Armin for producing the Rooibos map for the article.

Keywords

The Rooibos Benefit Sharing Agreement–Breaking New Ground with Respect, Honesty, Fairness, and Care

  • DORIS SCHROEDER, ROGER CHENNELLS, COLLIN LOUW, LEANA SNYDERS and TIMOTHY HODGES...

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