On 17 July 2014, the Namibian, a local daily in Namibia, reported a rather momentous event: the development of a biocultural community protocol of the Khoe community of the Bwabwata National Park — the first of its kind in Namibia.
Around 6,700 Khoe people reside in Bwabwata National Park in Namibia’s West, and in the Kavango and Zambezi regions; they survive mainly as hunters and gatherers. The Khoe developed the protocol with assistance from the Namibian Ministry of Environment and Tourism and Natural Justice (an international collective of environmental and community lawyers). The protocol sought to articulate the Khoe’s values, priorities, and procedures for decision-making around their resources, as well as set out their rights and responsibilities under customary, state, and international law. The protocol would be used as the basis for engaging with external actors such as the government, companies, academics, and non-governmental organizations, who seek access to the Khoe lands, and traditional and genetic resources for research and development, commercialization, conservation, and other legal and policy frameworks.
To appreciate the momentousness of the Khoe protocol, it would be important to put it in the context of the larger law and policy debates around biodiversity conservation and community rights. The legal discourse around conservation of biodiversity during the colonial and post-independence period has been based on a ‘fines and fences’ approach. Lands and waters that had been historically stewarded by communities were fenced off and classified as national parks, wildlife sanctuaries, and other kinds of protected areas. Communities were dispossessed in the name of conservation and penalized for carrying on their traditional livelihoods and customary practices.
In the late 1960s, the excesses of the ‘fines and fences’ approach was ‘scientifically’ justified on the basis of a theory of ‘tragedy of the commons’. The theory argued that where consequences regarding commonly held resources are borne by the community as a whole, individuals would maximize self-interest to the detriment of the community and sustainability of the resources. The theory therefore proposed that long-term sustainability of common-pool resources is best ensured when such resources are privatized or state-controlled.
Extensive research since the 1990s on governance of the commons by political scientists and economists such as Elinor Ostrom and Arun Agarwal unequivocally established that state control and privatization of common pool resources are not necessarily the best solutions to ensure conservation, and in many cases are counter-productive. Contrary to the ‘tragedy of the commons’ assertion of the destruction of common pool resources due to mismanagement by communities, researchers working on the commons established that under certain conditions communities are best able to conserve ecosystems.
Recent research evaluating the effectiveness of protected areas under different kinds of management regimes traced forest change in three diverse landscapes: the Chitwan District of Nepal, the Mahananda Wildlife Sanctuary in West Bengal, India, and the Tadoba-Andhari Tiger Reserve in Maharashtra, India. The research found that a protectionist approach that excludes local communities is likely to fail without expensive government inputs. Conservation is also likely to fail in cases where outsiders or dominant insiders impose rules on the community for use of resources. However the research also proved that effective management of forest resources occurs when community members are genuinely involved in decision-making and in developing rules for the use of these resources.
The Convention on Biological Diversity and the Discourse of Stewardship
Perhaps the most far-reaching legal instrument recognizing the role of indigenous peoples and local communities in conserving ecosystems is the Convention on Biological Diversity (CBD). The CBD entered into force in 1993 and currently has 193 states that are parties to it. The CBD advocates a ‘rights and incentives’ approach to conservation and sustainable use of biodiversity. This approach seeks to recognize certain rights over genetic resources and associated traditional knowledge while ensuring the fair and equitable sharing of benefits arising from the commercial and research utilization of such resources and knowledge.
While the Convention on Biological Diversity is explicit in Article 15.1, regarding the rights of states over genetic resources, Articles 8(j) and 10(c) of the CBD recognize the rights of communities to their knowledge, innovations, practices, and customary sustainable use of relevant biological resources. Through Articles 8(j) and 10(c), the CBD firmly lays the foundation for a discourse of stewardship affirming the rights of communities to local ecosystems and ways of life that nurture these ecosystems. They are based on the principle that biodiversity is best conserved when common pool resources are governed and managed by communities whose lifestyles are integrally intertwined with these resources.
The principles and the framework of the Convention on Biological Diversity has spawned a range of other legal instruments all of which underscore the role of communities in conserving ecosystems and affirm community rights to common pool resources as a way to stem the alarming loss of biodiversity. These instruments include the Akwé: Kon Guidelines, the Addis Ababa Principles, and the Tkarihwaié:ri Code of Ethical Conduct, the Programme of Work on Protected Areas (PoWPA), and the Nagoya Protocol on Access and Benefit Sharing. The preamble of the Nagoya Protocol notes ‘the interrelationship between genetic resources and traditional knowledge, their inseparable nature for indigenous and local communities, the importance of the traditional knowledge for the conservation of biological diversity and the sustainable use of its components, and for the sustainable livelihoods of these communities.’ The Nagoya Protocol in Articles 6and 7 goes further than the CBD and explicitly recognizes the rights of communities to their genetic resources and associated traditional knowledge commons.
Rethinking Property and the Emergence of Biocultural Rights
The rights of communities in the swathe of legal instruments birthed by the Convention on Biological Diversity are rooted in the principle that effective conservation and sustainable use of ecosystems can only be ensured by recognizing the rights of those who manage and govern these ecosystems as common pool resources. These rights are increasingly referred to in law as ‘biocultural rights’ and are justified not on the basis of communities having a formal legal title to certain lands and waters, but on the basis of historical stewardship founded on the cultural practices and spiritual beliefs.
The emergence of biocultural rights forces a rethink of the conventional understanding of property as private property. Instead biocultural rights make a case for the right to commons by arguing that property need not be perceived purely as a thing that one has absolute rights over, but can also be viewed as a network of use and stewarding relationships amongst a number of rights holders. Within a rights discourse, biocultural rights can be contextualized as a subset of the third generation grouporsolidarityrights. The notion of stewardship is critical for a discourse of biocultural rights, for it provides the ethical content for these rights — whereby rights to land, culture, traditional knowledge, self-governance, etc. are informed by a set of values that are not anthropocentric but biocentric.
Realizing Biocultural Rights — Towards Biocultural Community Protocols
The steady recognition of biocultural rights in international environmental law has led to questions about how best to affirm these rights to steward common pool resources. The dilemma in law presents itself as: ‘when there are multiple stewards of common pool resources, how can decisions regarding these resources effectively take on board the diverse concerns and interests?’
This question became particularly relevant in the context of the international negotiations towards the Nagoya Protocol. State parties on many occasions argued that when it comes to community managed genetic resources or traditional knowledge commons, it would be best for the state to make decisions regarding third party access to such resources and knowledge since communities are neither homogenous nor have homogenous interests. The private and the research sectors also raised concerns of high transaction costs in securing the consent of communities in accessing their resources and knowledge especially due to the inability of companies or researchers to discern the customary laws or decision making structures.
It was in this context, that the African Group of countries supported by the indigenous peoples groups in the Nagoya Protocol negotiations suggested biocultural community protocols (BCPs) as a solution. BCPs — or what later came to be known as community protocols in the Nagoya Protocol — are community-led instruments that promote participatory advocacy for the recognition of and support for ways of life that are based on the sustainable use of biodiversity, according to customary, national, and international laws and policies. The value and integrity of BCPs lie in the process that communities undertake to develop them, in what the protocols represent to the community, and in their future uses and effects.
Biocultural community protocols in essence begin with the end in mind, which is conservation and sustainable use of biodiversity. They then describe the way of life of the community, its customary laws, cultural and spiritual values, governance and decision-making structures, etc., all of which contribute to the stewarding of the ecosystem commons. The community then identifies its current challenges and lays claim to a range of rights in domestic and international law. In essence, the broad rights claim allows the community to determine for itself its way of life, which in turn ensures the continuation of their stewardship practices. The value of community protocols lies in their ability to act as the glue that holds together the total mosaic of a community life that is fragmented under different laws and policies, with the understanding that the conservation of Nature is a result of a holistic way of life.
The Nagoya Protocol in Article 12.1 requires parties to recognize biocultural community protocols or other community protocols as legal documents that assert community claims over their common pool resources and providing clear rules and conditions of access to community commons by third parties. Increasingly communities such as the Khoe are now developing BCPs as charters of biocultural rights asserting stewardship claims over community managed commons in areas that extend beyond access and benefit sharing to potentially address situations of mining, carbon stocks, and ecosystem services.
While the Nagoya Protocol foregrounded biocultural community protocols as innovative legal tools for communities to assert stewardship claims over their resource and knowledge commons, communities are also advocating BCPs as effective safeguards in the context of REDD+ under the UN Framework Convention on Climate Change (UNFCCC). The cross-sectoral application of biocultural community protocols was bound to happen since the critical issue that underlies all the innovative financing mechanisms for conservation — be it REDD+, ABS or other kinds of payments for ecosystem services — is one of recognizing and incentivizing stewardship of ecosystems through safeguarding the biocultural rights of communities.
For communities such as the Khoe, biocultural community protocols make the critical link in law between conservation of ecosystem commons and the recognition of the biocultural rights of communities stewarding these commons. The immense value of BCPs lie in their ability to act as effective legal vehicles engendering the discourse of biocultural rights thereby transforming the basis of property from ownership to stewardship.