Justice is still not being done in the exploitation of indigenous products

There has been a sea change in the biodiversity business. International and national laws now oblige companies and researchers to “do the right thing”. Indigenous people and local communities must be included as beneficiaries in ventures exploiting their knowledge or resources.

Communities must give their consent before any bioprospecting – exploring biodiversity for valuable genes and biochemicals. And there must be conservation benefits.

But what does this means in practice? The evidence is ambivalent, raising questions about who “qualifies” for benefits and “who was first” in claiming knowledge ownership. There are also questions about how to regulate these “access and benefit-sharing” arrangements without creating an unwieldy bureaucracy.

In South Africa significant progress has been made to develop workable models of benefit sharing. But, as is the case in many countries, major challenges prevent access and benefit sharing from adding up to social justice.

How Hoodia paved the way

Perhaps the most famous case involves the succulent plant Hoodia. It has long been used by the indigenous San people, the oldest and most marginalised inhabitants in Africa, to stave off hunger and thirst. Active ingredients of the plant were patented by South Africa's Council for Scientific and Industrial Research. Lucrative deals were also signed to develop anti-obesity products.

This was done without the consent or knowledge of San communities, despite being based on their traditional knowledge. The research council was subsequently forced to negotiate with the South African San Council, leading to a benefit-sharing agreement in 2003.

Although Hoodia was later abandoned as a commercial product due to safety and efficacy concerns, the case has been precedent setting. San communities claim to be primary traditional knowledge holders of all southern African biodiversity. As such, they are now at the front line of many access and benefit-sharing deals in the region. This has paid rich dividends.

For example, Sceletium tortuosum or kanna, a succulent plant well known for its mood-enhancing properties, is the subject of an agreement between HG&H Pharmaceuticals and the South African San Council. This has led to South Africa registering its first International Certificate of Compliance under the Nagoya Protocol.

An agreement between the South African San Council, the National Khoisan Council and a local pharmaceutical company, Cape Kingdom Nutraceuticals, gives San and Khoi communities 3% of the profits from products using buchu. The essential oil from buchu is widely used in international flavour and fragrant industries.

A third agreement, founded on the back of the highly successful rooibos tea industry, involves the San Council in an agreement with Nestlé, based on the development of a novel tea product.

Still cause for concern

But amid this optimism there is cause for concern. The San have a long history of dispossession, persecution and relocation. Most live in remote, arid environments, eking out a living through agriculture, livestock, wage labour and the harvesting of plants. They often don't have rights or traditional claim to the land they work.

Introducing huge sums of money into these communities could be potentially catastrophic. Their wide dispersion across remote parts makes the situation particularly fraught. Ensuring the equitable distribution of funds is a hard task.

A further complication is that several groups hold traditional knowledge about the same plants to which San communities lay claim. Almost all of such groups have, to varying degrees, the San as their forebears. The most significant of these include Khoi communities. Originally pastoralists, they are today often urbanised and more and more politicised.

Although absent from Hoodia negotiations, the National Khoisan Council has increasingly become a partner to various benefit-sharing agreements. It was established by former President Nelson Mandela to accommodate historical leadership of Khoi and San within the South African constitutional framework.

What this means in practice is ambiguous, and is often embroiled in the politics of identity and representation. There is a lack of clarity about who exactly “qualifies” as being San or Khoi, and a concern that benefits will flow only to an elite leadership.

In some cases, such as for the kanna plant, San have involved other groups in benefit-sharing arrangements. This was because initial research took place with traditional healers of the indigenous Nama community. But there are many communities who have customary rights and ownership over plant resources yet do not necessarily identify themselves as “indigenous”. Whose knowledge counts under such circumstances?

Cederberg in the Western Cape, for example, includes some of the only areas where buchu and rooibos grow naturally and are wild-harvested. The communities are typically mixed-race descendants of settlers, former slaves and Khoi people. The harvesting and use of these plants have formed a central part of their livelihoods and cultures for decades.

Most of these harvesters and small-scale farmers remain completely unaware of the access and benefit-sharing regulations that protect their rights. Yet they are often traditional knowledge holders.

They also do not easily associate themselves with San and Khoi political structures.

A South African natural products industry that remains largely untransformed, with racially skewed white ownership, aggravates this. So too does the global landscape which is often monopolised by a handful of large corporations.

Broader vision needed

More regulation does not necessarily help. Government approaches have been highly managerial, working in silos and territorial of their individual mandates. Insufficient human capacity, limited community experience and poor knowledge of bioprospecting mar regulators dealing with access and benefit sharing – despite good intentions.

A persistent backdrop is the politically charged nature of bioprospecting and the oft-competing directives to commoditise biodiversity and traditional knowledge. The concern, borne out in South Africa, is that governments entangle themselves in unworkable laws and adopt a “tick-box approach”. This aims to ensure regulatory compliance rather than social justice and economic development.

Such experiences provide rich lessons for implementation of international agreements like the Nagoya Protocol, as well as wider initiatives aiming to reduce societal inequalities.

Importantly, they emphasise that establishing greater benefits for indigenous people and local communities is essential. But this won't be achieved by access and benefit sharing alone. Equal attention should be given to:

• building the long-term financial and technical capacity of communities to engage in commercialisation;
• transferring technology to African countries;
• adding value to raw material;
• facilitating market access; and
• interrogating the unequal power relations of African natural product value chains.

Realising such changes will not be possible without securing rights to the resources, knowledge and land that have been alienated over centuries. Also to be considered are the broader threats causing rampant loss of biodiversity and culture. These include mining and industrial agriculture. Greater integration of these issues is vital if the objectives of achieving equity, conservation and economic development are to be achieved.

Rachel Wynberg, Associate Professor and DST/NRF Bio-economy Research Chair, University of Cape Town.