San Hoodia CaseA Report for GenBenefit (2007)

Roger ChennellsChennells & Albertyn , Stellenbosch, South Africa

Zone IV-B, 4th Floor, India Habitat Centre,Lodhi Road, New Delhi-110 003, India

Phone: 91-11-24682177-80 Fax: 91-11-24682173-74Email: dgoffice@ris.org.in

Websites: ris.org.inhttp:www.newasiaforum.org

in collaboration with

MINISTRY OF INDIAN COUNCIL OF ENVIRONMENT & FORESTS MEDICAL RESEARCH

International Conference on Access and Benefit Sharingfor Genetic Resources

March 6-7, 2008, Magnolia Hall, India Habitat Centre, Lodhi Road New Delhi, India

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San Hoodia Case A Report for GenBenefit (2007) Roger Chennells Chennells & Albertyn , Stellenbosch, South Africa

To be cited as follows: Chennells, Roger (2007). San Hoodia Case. A Report for GenBenefit, available at: www.uclan.ac.uk/genbenefit.

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GENBENEFIT PROJECT

SAN HOODIA CASE REPORT

1 INTRODUCTION The San peoples of Southern Africa fell under the international spotlight after a valuable patent was taken out on the appetite suppressant properties of the Hoodia, a plant that they had used for this purpose since time immemorial. The South African Council for Scientific and Industrial Research (CSIR) had conducted research on the Hoodia and finally registered the patent in 1996 without any attempt at obtaining prior informed consent from the sources of the research lead that led to their ‘discovery’. The San’s subsequent challenge in a process of negotiations initially with the CSIR and subsequently with other stakeholders in order to secure a fair sharing of the benefits, launched them headlong into the rapidly changing world of international law relating to traditional knowledge, biodiversity and intellectual property/ patent law. In addition the San’s engagement in this process has resulted in irreversible modification and even revolution of aspects of their former lives, as former hunter-gatherer peoples struggling to adapt to the modern world. This case study examines the impact of the current law and practice associated with the extraction of genetic resources that are the subject of traditional knowledge, and subsequent benefit sharing agreements, on the San peoples. The perspective of the author is that of one associated with, and thus not independent from, the various choices and strategies followed by the San peoples. 2 THE LEGAL ENVIRONMENT The broad legal environment within which the San Hoodia case plays out can be described as the international and domestic law relating to human rights, to biodiversity, to property rights (of states and individuals) and intellectual property rights of indigenous peoples. The rapid evolution of these legal rights is interwoven with realpolitik, in the form of competition between nations for economic power flowing from ownership of or trade in the above, and inevitably with the pervasive disparity between the views and interests of developed and developing countries. Alongside this, indigenous peoples are increasingly asserting their own interpretation of human and collective rights. Right to Property The Universal Declaration of Human Rights of 1948 (UDHR) together with the two Covenants1 that make up the International Bill of Rights2 form the basis for a general right to property. Article 17.1 states that ‘everyone has the right to own property,’ and article 27.2 states that ‘everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author’. It is thus an uncontroversial statement to assert that the right of property forms an accepted part of international law. States through their practices and treaties recognise the property rights of their citizens and of other states and their nationals, without which recognition of overseas

1 The International Covenant on Civil and Political Rights of 1966, and the International Covenant on Economic, Social and Cultural Rights of 1966. 2 Steiner HJ and Alston P, ‘International Human Rights in Context’ (Clarendon Press, Oxford, (1996) pg 121.

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investment and international commerce would be impossible.3 The issue of the nature and extent of these rights, and the degree to which they can be enforced nationally and internationally, remains the contested terrain of current international debate and law. In a discussion of this issue, Schermers describes fundamental human rights as being ‘human rights of such importance that their international protection includes the right, perhaps even the obligation, of international enforcement’. 4 Most property rights, which in the terminology of domestic law are divided into categories such as real, personal, equitable, tangible, intangible and intellectual rights, depend for their enforceability on the status and reach of prevailing international law, as well as the local or domestic laws of the holder of such rights. Modern governments continuously change their laws relating to the use of land, personal goods, tax, welfare and so on, as they respond to internal and external forces. Rights to Intellectual Property ‘Intellectual Property’ is a generic term that came into regular use in the twentieth century, covering copyright, patents, designs, trade marks as the most common forms. A useful definition of intellectual property rights (IPR) is that they are ‘rights of exploitation in information’5 Property rights generally by their nature allow the bearer of the rights to exclude others from the use of this resource, which in the field of IPR is pure information. Patents, the subject of this case study, are rights granted by a state to an inventor, for a limited time, to exclude all others from making, using, selling, and/or importing the patented process, or invention, into the state’s jurisdiction.6 This right can be bought, sold, licensed, and protected by law. The present international intellectual property regime is a western positive law regime that has been powerfully shaped by liberal political traditions. IPR systems link the origination of rights to individuals or corporations, and maximise the capacity of such owners to trade in and benefit from those rights. Capitalist economies, led by the USA, have progressively become information economies, and IPR regimes have moved to the centre stage of trade regulation and global markets. The new capitalism is at its core about the control of information and knowledge, and the quest for such control pervades the battlegrounds that are the continuing sources of evolving international law below. This case study focuses on the attempt at protection under intellectual property rights (IPR) of traditional and indigenous knowledge. Intellectual Property and Traditional Knowledge Until the late twentieth century, the development of international law and practice effectively excluded the previously silent constituency known as ‘indigenous peoples’. The word ‘indigenous’ is derived from the Latin word ‘indigena’ which means ‘born in a country’ or according to the Oxford dictionary ‘belonging naturally to the soil, region, etc’7. Various definitions are in circulation, most of which are based upon self-identification, and which include some or all of the following characteristics: people who are the descendants of the

3 Drahos, Peter. ‘The Universality of Intellectual Property Rights, Origins and Development’ in Intellectual Property and Human Rights. WIPO, 1999. 4 Schermers, H.G. ‘The international protection of the right of property’ in F. Matscher and H. Petzold (eds) Protecting Human Rights; The European dimension. (Carl Heymanns Verlag KG, Koln, 1988), pp 565, 579 5 Drahos, op cit pp 14 6 Dorr, RC and Munch, CH. Protecting trade secrets, patents, copyrights, and trademarks: . 3rd ed (New York, Aspen Law and Business 2002), pp 4-11. 7 Hodgson, DL. ‘Introduction; Comparative perspectives on the Indigenous rights movement in Africa and the Americas’ , American Anthropologist 104 (4 ) (2002) pp 1037–1049.

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oldest or original populations of a country, with strong links to territories, who have a sense of a common cultural or social identity, who possess ethnic characteristics that distinguish them from politically dominant groups.8 The United Nations recognised the emergence of this previously marginalised constituency by declaring a decade of indigenous peoples from 1995 to 2004, subsequently extended for a further decade. It has been estimated that there are 5 290 groups of indigenous peoples in the world, totalling 357 million people. Some argue persuasively that they are the single most disadvantaged set of populations in the world today. 9 Since about 1975 the profile of the indigenous peoples’ movement rose as an increasingly vocal constituency serious about articulating and protecting their distinct rights inter alia to culture and intellectual property. 10 In the subsequent three decades particular rights of indigenous peoples have emerged and crystallised,11 such as the rights to traditional ‘knowledge, innovations and practices’ articulated under article 8 (j) of the Convention for Biological Diversity (CBD). With the long awaited UN Draft Declaration on the Rights of Indigenous Peoples currently blocked in the UN system, the only substantive international law on the distinctive rights of indigenous peoples remains the International Labour Organisation (ILO) Convention 169, of 1991. 12 A book entitled Paradigm Wars. Indigenous Peoples’ Resistance to Economic Globalisation, describes the essence of the conflict between the world view of indigenous peoples and that represented by the present global economic system. At the heart of the conflict are different notions of how the world should be, and in particular, the degree to which humankind should exploit nature, in the interests of growth. The cosmology shared by indigenous peoples, juxtaposed against the ‘mechanistic worldview of industrialisation and globalisation’ is aptly described.

Many indigenous peoples are still awed by the magic of the cosmos and the mystery of life. Our rituals, world views, belief systems, and stories affirm our surrender to this mystery and magic. Among the most important to us are our understanding and reverence of nature, our experience of living in community and reciprocity with the spirits of the natural world, our respect for the sacredness of all life. 13

The abovementioned paradigm clashes squarely with that of the dominant western states across a number of fracture lines, including the belief of the earth as a sacred place to be shared by all, the notion of collective as opposed to individual human rights, and the belief of the sacredness of life, including traditional knowledge relating to nature, as opposed to IPR systems that seek to privatise such knowledge. As stated by Dutfield14, the relationships between intellectual property, biogenetic resources and traditional knowledge have become ‘politicised’, with the fight being waged between governments, non-governmental

8 Posey DA and Dutfield G. Beyond Intellectual Property. (Ottawa. International Development Research Centre. 1996). 9 Stevenson, D.J (jnr) ‘Key Legal and Ethnoecological Components of a Bioprospecting Agenda’. High Plains Applied Anthropologist 16, (1997) pp 114-121. 10 Hodgeson. Op cit. p 1040. 11 Anaya, J. Indigenous Peoples in International Law. (New York. Oxford University Press, 2000). 12 Article 15 requires signatory states to safeguard indigenous peoples’ rights to natural resources, and Article 13 (1) requires states to respect the ‘collective’ aspects of indigenous peoples’ relationship to their lands. 13 Tauli Corpuz, V. ‘Our Right to Remain Separate and Distinct’. Paradigm Wars. Special report of the International Forum on Globalisation Committee on Indigenous Peoples. Editors Jerry Mander and Victoria Corpuz Tauli (2002). 14 Dutfield, G. Intellectual Property, Biogenetic Resources and Traditional Knowledge (Earthscan, London, 2004).

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organisations (NGOs) and traditional advocates on a number of terrains15. The most important of these terrains for the purposes of this paper are the Convention for Biological Diversity (CBD) of 1992, the Bonn Guidelines on Access and Benefit Sharing (2002) and the TRIPs agreement of the World Trade Organisation (WTO)16. The differing world views on the rights to own, control and benefit from natural resources clashed in the negotiations leading up to the adoption of the CBD in 1992. A ‘Permanent Sovereignty’ group made up largely of developing countries believed that states have the right to permanent sovereignty over their territories, including their natural resources, were perceived to have largely achieved their objectives with the affirmation in the preamble that ‘States have sovereign rights over their own biological resources’. 17 Although this ‘sovereign right’ to control access to genetic resources, as affirmed in article 15, was by no means drafted as an absolute right, the affirmation of this principle was seen as a victory for the developing country negotiators.18 A ‘Common Heritage’ group propounded the principle that biogenetic resources were part of the common heritage of humankind, similar to the sea and airspace, and that all nations should have a right to benefit from them19. This principle is enshrined in the Access and Benefit Sharing provisions of the CBD, as described below. Finally an ‘Intellectual Property Rights’ group propounded the view that the IPR system was best suited for the regulation of the distributive aspects of the commercial uses of biogenetic resources, and ensuring fair benefits. 20 The CBD came into force in 1993, and now has 190 parties.21 The three objectives of the CBD are 1) the conservation of biological diversity, 2) the sustainable use of its components, and 3) the fair and equitable benefit sharing of the benefits arising out of the utilization of genetic resources. Article 8(j) of the CBD is the most important source of rights for indigenous peoples, requiring state contracting parties to

1. respect, preserve and maintain knowledge, innovation and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity

2. promote the wider application with the approval and involvement of the holders of such knowledge, innovations and practices, and

3. encourage the equitable sharing of the benefits arising from the utilisation of such knowledge, innovations and practices.

Article 15 of the CBD is explicit regarding rights and access to genetic resources. It recognises the sovereignty of States over their natural resources, and provides that access to these resources shall be subject to the prior informed consent (PIC) of the provider State, as well as based upon mutually agreed terms in order to ensure the sharing of benefits arising from the commercial or other utilisation of such resources. Some indigenous activists strongly criticise the fact that the CBD places sovereignty over biological resources in the hands of

15 Other important agreements are the UPOV convention (International Convention for the Protection of Certain Varieties of Plants (1991) and the International Treaty of Plant Genetic Resources for Food and Agriculture (1983). 16 The 1994 Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) which is administered by the World Trade Organisation (WTO). 17 Dutfield. G (2004) op cit. 18 Dutfield G (2004) p 6. 19 Dutfield G. (2004) p 10. 20 Dutfield G. (2004) p 12. 21 As of 11 July 2007.

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States, rather than the indigenous peoples whose rights under Article 8(j) are far more vague.22 In 2002 the CBD contracting parties finally operationalised the above provisions, by adopting the Bonn Guidelines23 which were designed to assist parties in developing overall access and benefit sharing (ABS) strategies, and to help them when establishing legislation and policy measures. The emphasis of the guidelines is on the obligation for users to seek prior informed consent of providers, prior to access and benefit sharing measures. These guidelines were adopted unanimously by 180 countries, which gives them an indisputable authority as evidence of international will. In August 2002 this international will was reinforced by the World Summit on Sustainable Development (WSSD), which called on all countries to negotiate an ‘international ABS regime to promote .. the fair and equitable sharing of benefits arising out of the utilization of genetic resources.’24 Indigenous critics again pointed out that indigenous peoples’ rights remain vulnerable, being subject to the national sovereignty of states over natural resources, as set out in national laws.25 The TRIPS agreement, administered by the intergovernmental World Trade Organisation (WTO) is the central international agreement promoting the standardisation of national IPR regimes, and is an important forum for the resolution of issues related to IPRs, biological resources, and traditional knowledge (TK). The public policy objectives of TRIPS are clear from the formal objectives of the agreement, namely to ‘contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge, and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.’ Member states are obliged to implement minimum IPR standards, extending patent and other IPR protection within the country. The conflicting objectives and priorities between the TRIPS Council and the CBD, as well as the debate regarding the amendment of the much disputed Article 27.3 (b)26 are beyond the scope of this paper, but are relevant in the ongoing debate around the protection of TK. Indigenous peoples challenge the IPR and patent systems as being incompatible with their collectively owned, shared knowledge systems. At various fora indigenous peoples assert the iniquity and inability of IPR to safeguard their rights, and call on States to develop sui generis or in other words specially designed methods of TK protection27. Indigenous peoples presented a statement entitled ‘No to patenting of Life’ in opposition to the TRIPS agreement, adding ‘ Patenting and commodification of life is against our fundamental values and beliefs regarding the sacredness of life and life processes, and the reciprocal relationship which we maintain with all creation’. 28 South Africa has complied with its obligations under the CBD by promulgating the Biodiversity Act in 2004, chapter 6 of which contains clear policy and provisions on

22 Harry, Debra, ‘The BS in Access and Benefit Sharing (ABS): Critical Questions for Indigenous Peoples,’ in The Catch, Perspectives on Benefit Sharing, edited by Beth Burrows, published by the Edmonds Institute (2005). 23 The Bonn Guidelines on Access to Genetic Resources and the Fair and Equitable Sharing of the Benefits Arising out of their Utilization. 24 Report of the World Summit on Sustainable Development. A/Conf 199/20 4 September 2002 Resolution 2, Annex, para. 44 (0). 25 Harry, Debra, (2005) Op cit. 26 This clause allows the ‘patenting of life’ which in recent years has been allowed in certain patent regimes. 27 Correia, C. Traditional Knowledge and Intellectual Property. Discussion paper commissioned by the Quaker United Nations Office, Geneva. (2001) pp 11 – 14: 28 Tauli-Corpuz, V. Biodiversity, Traditional Knowledge and Rights of Indigenous Peoples (Third World Network, Penang, 2003) p 25.

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‘Bioprospecting Access and Benefit-sharing’. Key requirements include a permitting process for bioprospecting29, and a process of consultation followed by PIC where traditional uses form part of genetic resources. ‘Holders of knowledge’ are further explicitly entitled to receive benefits, which should be recorded in a ‘benefit sharing agreement’. Long-awaited regulations giving clear practical effect to the Act are due to be promulgated in July 2007. The South African Patents amendment Act 2004 (reference please Lynette) which requires disclosure of the source of traditional knowledge forming part of a patent application, and the long-delayed South African Traditional Knowledge Bill, which sets out the rights of holders of traditional knowledge, are domestic efforts to comply with best practice in the fast evolving field of indigenous peoples rights in the field of knowledge protection. The fast evolving law and practice around ‘benefit sharing’30 providing indigenous peoples clear rights to TK related to genetic resources is the context within which the Hoodia case is still playing out. It is noteworthy that none of these laws and frameworks were yet in place in 1996 when the CSIR patented a utility patent31 (generally referred to as the P57) relating to the appetite suppressant active ingredients of the Hoodia32, nor when the San first perceived in 2001 that their traditional knowledge had been ‘stolen’ and commoditised. 3 THE PRINCIPAL PARTIES The principle parties described in this case study are the San, the CSIR, the Hoodia Growers Association, and other parties. The San The San peoples (also known as Bushmen) of Southern Africa are generally regarded as the longest continuously living population in one location in the history of humankind.33 Unequivocal remains of their ancestors excavated just outside Cape Town date back approximately 120 000 years.34 Humankind’s fascination with our origins as hunter-gatherers and with the exotic or ‘primitive’ other has ensured that the San have become an icon of popular culture, a fixture in anthropological text books and films, and more recently, a subject of anthropological and political controversy. To some they represent pristine ‘hunter-gatherers’ to others Apartheid’s most oppressed and marginalised victims, none of which polarities capture the present realities.35 At about the time the settlers landed in the Cape, the

29 Bioprospecting is the exploration of biodiversity for commercially valuable genetic resources and biochemicals. See Hayden, Cori. When nature goes public (Princeton University Press, 2003) p 50-53. 30 Definition by Schroeder, Doris, 'Benefit sharing: it’s time for a definition,' Journal of Medical Ethics, 33 (2007) 205-209. 31 A utility patent, as opposed to a plant or a design patent, is any new or useful process… or any useful improvement thereof. The patent must comply with the three requisites of non-obviousness, novelty, and usefulness. 32 The ‘P57’ patent is a complex and broad patent, which includes the method of extracting the active principle being the ‘appetite suppressant agent’. 33 Stevenson, D. The patenting of P57 and the Intellectual Property Rights of the San Peoples of Southern Africa (First Peoples Worldwide (publisher), 2003) p 24. 34 Lee RB, Hitchcock R and Biesele M; Foragers to First Peoples. Cultural Survival Quarterly (2002) 26 (1) p 9-12. 35 Hitchcock R, Ikeya K, Biesele M, and Lee, R: Introduction ; Updating the San: Image and Reality of an African People in the 21st Century. Senri Ethnological Studies, (70) National Museum of Ethnology, Osaka, Japan. (2006) p 1-4.

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San occupied an area stretching from the Congo Zambezi watershed in Central Africa, to the Cape, numbering about 300 000 people36. The San today number approximately 100 000 people, living primarily in Botswana, Namibia and South Africa, with scatterings of populations in Angola, Zimbabwe and Zambia.37 After centuries of first genocide and marginalisation, leading to loss of land and consequently to a large extent loss of culture and identity, they occupy an unchallenged niche as the poorest of the poor in these countries,38 living in conditions of relative powerlessness. This paper will not traverse some of the issues that have fascinated anthropologists, such as the correctness or otherwise of the word ‘San’, or of their genetic or cultural relationship to the ‘Khoi’ or ‘Khoi-Khoi’ herders who lived alongside the San for the past 2000 years. The word San was first used by the Harvard Kalahari Research Group as a replacement for ‘Bushmen’ in 1961,39 which term is somewhat contested by outsiders. Whilst other terms are in use in various contexts, for example Basarwa in Botswana, and Bushmen by many including the San themselves, San leaders have on various occasions agreed that the word San represents the only known over-arching term that describes their peoples.40 One of the burning issues that continues to rage amongst anthropologists concerning the San, and termed ‘the Kalahari debate’ involves essentially two positions on understanding their current vulnerable status. The first position is held by the ‘traditionalists’, who essentially see the San as primitive hunter-gatherers, relics of our forebears who have been isolated and have lived in harmony with nature, with a relatively resilient and static culture, until recent times. The ‘revisionists’ on the other hand employ an economic social analysis and declare the San peoples to be an impoverished underclass, victims of an unrelenting class war against a host of more economically dominant peoples.41 Both of these positions, and the literally thousands of research papers on the San, provide valuable insights into their plight. Until recently, and as stated by Mathambo Ngakaeaja at an international conference in 1997, ‘the San have been treated as objects of research…. they have not been involved in the research agendas of the academics, and their own needs and aspirations have been ignored’ 42 He went on to announce the Working Group of Indigenous Minorities in Southern Africa’s (WIMSA)43 policy that no research would take place on the San in the future, without the researcher completing a comprehensive research contract with San leadership. This assertion was angrily received by some social scientists, accustomed to unilateral research on hapless San communities. Today whilst a minority of San live in villages on their own land,44 most live in conditions of abject poverty on land to which they have no rights or traditional claim. Living in small rural

36 Lee, R. Kalahari Hunter Gatherers. Studies of the !Kung San and their neighbours (Cambridge, Harvard University Press, 1976) p 5. 37 Estimates by San NGOs are that their populations are Botswana 55000, Namibia 35 000, South Africa, 8500, Angola 3000, Zimbabwe and Zambia unknown. (Kuru Family of Organisations Annual Report 2006) 38 Suzman J. (ed) An Introduction to the Regional Assessment of the Status of the San in Southern Africa (Windhoek: Legal Assistance Centre, 2001). 39 Lee RB. “Introduction,” Kalahari Hunter Gatherers. Studies of the !Kung San and their neighbours (Cambridge, Harvard University Press, 1976) p 5. 40 Hitchcock R, Ikeya K, Biesele M and Lee RB. (2006) op cit, p 5-6 41 Barnard, A. “Lourens van der Post and the Kalahari Debate” in Miscast, Negotiating the Presence of the Bushmen, edited by Pippa Skotnes, (UCT Press, Cape Town, 1996) p 239. 42 /Useb J and Chennells R. Indigenous Knowledge Systems and protection of San Intellectual Property: Media and Research Contracts. Before Farming, (2003) 43 San NGO, more below. 44 The approximately 4000 !Kung of the N=a Jaqna conservancy (formerly W Bushmanland) in Namibia, the approximately 5000 Jun/uasi of the Nyae Nyae (formerly East Bushmanland) in Namibia, the approximately 800 =Khomani San of Northern Cape, South Africa, have secured rights to live on their traditional land.

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villages in regions dominated by more powerful African cultures, in sterile government resettlement villages, or as labourers working on commercial ranches, they live in an uneasy twilight zone between their former traditional ways and the modern world. In common with other ‘first nations’ elsewhere in the world, the San have to a large extent succumbed to the social breakdown and culture loss exacerbated by alcohol abuse and hopelessness.45 A number of NGOs, known as the Kuru Family of Organisations, and employing a significant number of San people, provide development assistance to these far-flung San communities. In 1996, and after a decade of uncoordinated development assistance to disparate San groups, San leaders formed WIMSA,46 their own San umbrella organisation, charged with uniting and representing the interests of San communities from Botswana, Namibia and South Africa. Regular meetings were held across national boundaries, encouraging a sense of solidarity amongst the different San groups, who recognised their essential San kinship despite their linguistic, cultural, national and other differences. WIMSA secured a significant early achievement by securing a unanimous decision at its General Assembly in 1998, subsequently confirmed on many occasions, that the San culture and heritage is a collective asset, owned and to be shared by all San across all boundaries. Heritage was understood to encompass all tangible and intangible aspects of culture, traditional knowledge, rock art, myths and music. This important policy decision was to be of significant importance when the San came to negotiate their rights under the Hoodia case some years later. In June 2001 the San ascertained through an article printed in the London Observer newspaper, and instigated by Biowatch, a South African NGO specialising in issues of environmental biodiversity, that San traditional knowledge relating to the Hoodia formed an essential component of a CSIR patent that had been licensed to Pfizer for an appetite suppressant drug. The San had already begun to articulate and advocate for their rights to land and culture, and were thus institutionally prepared to challenge what they perceived as a clear breach of their rights. There had been no attempt at consultation by the CSIR. The Hoodia plant (known amongst other names as Ghaap, or !Khoba) was but one of hundreds of plants traditionally, and still used by San communities, for their medicinal, appetite suppressant and other properties. WIMSA mandated the South African San leaders to register a San Council, and to negotiate with the CSIR, the holders of the patent, on behalf of all San. The trajectory of the negotiations which are not the primary focus of this paper, is set out below. The appropriateness of the agreements that emerged, in the light of the particular state of vulnerability of the San peoples, and the degree to which the widely spread and disparate San peoples understood the implications of what was being negotiated in their name, is discussed further below. The Council for Scientific and Industrial Research (CSIR) and Licencees. The CSIR is a South African research institute, and one of the largest in Africa, with a research and development budget alleged to be about 10 per cent of that on the entire African continent. Following leads in documented research related to the use of the Hoodia species as an appetite and thirst suppressant,47 the CSIR began a series of confidential research and trials from 1963 to investigate and isolate the active ingredients. Tests were initially inconclusive,

45 Silvain, R. “Drinking Fighting and Healing, San Struggles for Survival and Solidarity in the Omaheke Region,” in Hitchcock, Ikeya, Biesele and Lee (eds) (2006) op cit p 131. 46 Working Group for Indigenous Minorities in Southern Africa. This name was chosen for the San organisation in order to avoid the use of the words ‘San’ or ‘Bushmen,’ which words were strongly disapproved of by certain Southern African Governments http://www.san.org.za/wimsa/home.htm, accessed: 10 August 2007. 47 White A, and Sloane BL, The Stapeliae, Vol. III, second edition (Pasadena, California, 1937).

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and were suspended for a number of years until 1982 when they were resumed again with the benefit of new technology.48 Rachel Wynberg49 provides a detailed discussion of the ecology and use of the Hoodia, as well as of the species’ commercial development, which details are beyond the scope of this discussion. By 1995 the first patent application had been lodged in South Africa,50 which was followed over the next years with a succession of progressive international patent applications.51 In 1997 the CSIR signed the primary licensing agreement with Phytopharm, that would enable the further development and commercial exploitation of the codenamed ‘P57’ Hoodia patent. In 1998 Phytopharm duly sublicenced the right to further develop and commercialise the P57 patent to US drug manufacturer Pfizer, which was the status quo when the San first heard about the patent in June 2001. This confidential and complex set of licensing agreements provides the CSIR as patent holder with a guaranteed stream of future milestone payments and royalties based upon the progressive development of the patent as a drug or medicine (milestone payments) and finally upon commercial results (royalties). After two years of negotiations, resulting in a benefit sharing agreement signed with the San in March 2003, the entire licensing picture changed when Pfizer elected to withdraw from the venture and return the licence to Phytopharm.52 Phytopharm subsequently entered into a sublicense with international food giant Unilever, with the new vision of developing the P57 technology in a food supplement as opposed to a clinical drug. Unilever continues to drive all aspects of the commercialisation process, whilst it pursues the extensive range of clinical trials and market research that precede the anticipated release of a ‘breakfast bar’ under the ‘Slimfast’ brand in late 2008. The CSIR, Phytopharm and Unilever thus form a complex commercial joint venture, founded upon the commercial exploitation of the P57 as envisaged by the licensing agreements, with the shared intention to maximise profits and benefits from the P57 patent. The San, through their negotiated agreement with the CSIR, as is set out below, joined and thereby became intimately associated with the success or otherwise of this joint venture.53 The South African Hoodia Growers Association Between 2001 and 2005 the international market for Hoodia exploded, with literally hundreds of dietary products being advertised on the internet and appearing on pharmacy shelves. Most products were of dubious authenticity, containing unsubstantiated quantities of dried Hoodia, making unfounded claims, and in many cases implying association with the San peoples. Poaching and illegal harvesting of wild Hoodia was widespread, and farmers planted hundreds of hectares in the expectation of the boom that was to follow. Legislation in South Africa was one step behind, and the registration of Hoodia as an Appendix II CITES listed

48 Wynberg, R. “Rhetoric, Realism and Benefit Sharing. Use of Traditional Knowledge of Hoodia Species in the Development of an Appetite Suppressant,” Journal of World Intellectual Property, Werner Publishing Company Limited. Vol. 7, no 6 (2004) pp 854 -856 49 Wynberg, R. (2004) op cit pp 854 – 858. 50 South African Patent number 983170. 51 UK patent GB 2338235 and World Patent WO 98/46243 covering ‘pharmaceutical compositions having an appetite suppressant activity’, including ‘raw materials, active substances and mode of action.’ 52 “Pfizer returns Rights of P57 for Obesity,” Phytopharm press release 30 July 2003. http://www.phytopharm.co.uk/news/newsreleases/?filterType1=text&dateMode=years&year=2003&filterArg1=P57&y=6&range=today&filterType2=date&id=1698&x=6, accessed: 10 August 2007. 53 Chennells R. “Ethics and Practice in EthnoBiology; Prior Informed Consent with Indigenous Peoples,” Biodiversity and the Law: Intellectual Property, Biotechnology and Traditional Knowledge, Edited by C McManis (Earthscan Publications, UK, 2007) pp 413 to 427.

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plant in order to control the unbridled commercial trade was only effected in October 2004,54 too late to save many wild Hoodia populations. The San were approached by a group of Hoodia growers who were cognisant of their obligations to share benefits with the San under the as yet unpromulgated Biodiversity Act regulations. The San approach was to accept that this new market in raw Hoodia as a food additive or dietary supplement, despite being unruly and not yet controlled nationally or internationally, was likely to grow over the years, and that the San had a clear right to share in the benefits. It was ascertained and concluded that signing an agreement to share benefits with Hoodia growers who were committed to transparent standards of legality and quality, would not constitute a breach of the San’s prior agreement with the CSIR. Negotiations were then entered into between the South African San Council and the Hoodia Growers, who had constituted themselves as the South African Hoodia Growers (Pty) Ltd (SAHG). In March 2006, and after many meetings aimed at establishing a fair percentage for the San in the light of a volatile new market, an agreement was concluded with the SAHG providing the San an effective 6% of the value of Hoodia sold by growers. Another substantial group of Hoodia growers, constituted under an organisation named the Cape Ethnobotanical Growers Association (CEGA), declared themselves to be similarly of the intention to share benefits with the San, but were not prepared to join the SAHG. It was then decided between the San, the SAHG and the CEGA to include the all-important provincial environmental government agencies (responsible for all growing and CITES permits) in the ensuing discussions, and to negotiate a new, all-inclusive agreement setting out a model framework that would bind all Hoodia growers that were of intention to comply with the ABS requirements of the CBD. After a year of negotiations, a comprehensive benefit sharing agreement was concluded between the San and the newly formed Southern African Hoodia Growers Association on 15 March 2007.55 This agreement, which initially provides the San a modest R 24 per dried kilogram of Hoodia exported, has the aim of securing a transparently managed Hoodia market, with all role players committed to best practices as set out in the agreement. The San peoples are to provide two directors out of the seven directors that will run the organisation. The agreement, whilst negotiated in South Africa, has been drafted in such a way as to welcome and enable the participation of Hoodia growers from neighbouring Namibia and Botswana in due course. Other parties The governments of South Africa, Namibia and Botswana are the three SADC56 range states that share the Hoodia genetic resource, and that are therefore mutually linked in the manner in which they interpret and implement their rights and obligations under Article 15 of the CBD. Currently these three countries differ significantly in the manner and degree to which they have implemented their duties to require prior informed consent relating to access to genetic resources from ‘indigenous and local communities’, the obtaining of ‘mutually agreed terms’,

54 Convention on International Trade in Endangered Species of Wild Fauna and Flora, Amendments to Appendices I and II of CITES, Thirteenth Meeting of the Conference of the Parties, Bangkok, Thailand, 2-14 October 2004, thus establishing a standardized international trading framework and monitoring regime for Hoodia. See Wynberg, “Rhetoric, realism and Benefit Sharing,” p 854. 55 The agreement will be renegotiated after one year, in the light of currently fluctuating and unpredictable prices, in order to enable parties to again consider an appropriate financial benefit to the San. 56 Southern African Development Community

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and benefit sharing with such communities. These SADC countries are bound by the decision taken by the World Summit for Sustainable Development to negotiate an international ABS regime. This was confirmed at the Seventh Conference of the Parties to the CBD (COP 7)57 in Kuala Lumpur, Malaysia in February 2004 which mandated an ad hoc group to negotiate an international ABS Protocol by the year 2011. At the most recent COP 8 meeting in Curatiba, Brazil, in 2006 a heavily bracketed draft text of the ABS protocol was produced, which is still far from a consensus.58 It will be impossible to implement the principles of the CBD and the Bonn Guidelines without the participation and cooperation of other state parties. The San have called on the South African Government to meet with the Governments of Switzerland and Germany, in order to discuss the fact that numerous Hoodia products appear illegally on the pharmacy shelves in those countries, without a benefit sharing agreement with the San. It is anticipated that progress will be made in the years ahead, as part of an ABS regime, to force countries to close down any Hoodia products which are not legally sourced, and which do not share benefits with the San in accordance with the requirements of the CBD. 4 THE NEGOTIATION PROCESS. The negotiation process of the Hoodia case has been covered extensively in recent publications.59 An abbreviated outline is provided below of the trajectory, which will serve as a backdrop and framework for a more detailed discussion of the case study. The following is a chronology of San-related developments leading to the patenting of P57 and the subsequent negotiation process up to the present.60 Thereafter some of the issues arising during the negotiations, such as PIC, representation, and factors influencing the vulnerability of the San are discussed. Date Activity or Event 25000 BC to 17th Century

The San, descendants of early Homo Sapiens Sapiens, occupy the whole of Southern Africa, employing hunter gatherer cultural practices largely unchanged until the arrival of European sailors. Practices include medicinal and other use of plants, including Hoodia.

2000 BC First evidence of migration into Southern Africa of pastoralists, regarded as the ancestors of the KhoeKhoe or KhoiKhoi people of today (the Nama, Griqua, Damara, Koranna etc ).

200 AD to 1200 AD

Migration south of Zambezi river by Bantu-speaking (African) peoples, ancestors of Southern Africa’s majority populations. (Zulu, Xhosa, Tswana, Herero, Ovambo etc).

1200 to present

Extensive cultural and trade interaction, and some intermarriage between Bantu, KhoiKhoi and San peoples.

57 The seventh Conference of the Parties of the CBD. (The COP is held every two years) 58 Namibia Country Study, Access to Biological Resources and the Sharing of Benefits from their Use, (2007) authors Krugman H and Katjirua J, SADC regional biodiversity support program, Annexure A. 59 Wynberg, R. (2004) op cit. pp 854 – 864. Stevenson D. (2002) pp 5-10, Namibia Country Report, (2007) op cit, pp 72-91. 60 Some of the earlier historical dates are contested by archaeologists and anthropologists. The dates provided are drawn from Steyn HP, Vanished Lifestyles, The Early Cape Khoi and San ( Unibook Publishers, Pretoria, 1990), and Crawhall N. Written in the Saand. Auditing and Managing Cultural Resources with Displaced Indigenous Peoples, A South African Case Study ( Rondebosch, South African San Institute in cooperation with Unesco, 2001).

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1652 to 1900 Dutch Settlers land at the Cape. Process of colonial settlement, and subjugation of local tribes commences. Legalised hunting and extermination of San and Khoi peoples takes place as Afrikaner Boers (farmers) drive their stock northwards and ‘tame’ the hinterland.

1910 Union of South Africa formed as a self-governing colony within British Commonwealth.

1937 Publication of San traditional knowledge relating to the Hoodia by Dutch ethnobiologist R Marloth. Published in book by White and Sloane (1937).

1945 The CSIR established as South Africa’s premier scientific research and development institute.

1949 Afrikaner based National Party wins election, and begins to enforce ‘Apartheid’ policies. San forced to assimilate with Coloureds.

1955 Promulgation of the Coloured Registration Act, forcing all indigenous people of colour to register either as Bantu or Coloured. Thus eliminating recognition of San peoples by government.

1963 to 1996 The CSIR research programme on the Hoodia continues, sporadically, leading to the isolation of the appetite suppressant bioactive compound and registration of SA patent 983170 in 1996, (codenamed P57), followed by patent application worldwide in subsequent years.

1997 to 1998 The CSIR signs a licensing agreement with UK drug research company Phytopharm enabling Phytopharm to further research and develop the P57 patent leading to market exploitation, in exchange for royalties based upon sales. In 1998 Phytopharm further sublicenses the rights to develop and exploit P57 to international drug manufacturer Pfizer.

June 2001 Article published in UK Observer newspaper announces the development of P57 patent, and quotes Phytopharm Chief Executive Officer as surmising that the San are to the best of his knowledge ‘extinct’. The San inform the CSIR through their lawyer that the San intend to claim their legal intellectual property rights.

Sept 2001 to March 2002

The South African San Council is officially mandated by WIMSA to negotiate with the CSIR. WIMSA conducts its own research to establish current uses and practices regarding the Hoodia. The San and the CSIR sign a Memorandum of Understanding on 19 March 2002, in which the CSIR acknowledges that the San traditional knowledge led to the patent, and undertakes a formal commitment to negotiate a benefit sharing agreement

12/13 June 2002

The San leaders of WIMSA drawn from Namibia, South Africa and Botswana hold a consultative workshop at Molopo Lodge in South Africa to discuss and debate the issues relating to intellectual property and Hoodia. Inputs are received from the CSIR and Biowatch. The meeting confirms the negotiating mandate given to the SA San Council.

March 2002 to March 2003

The San and the CSIR exchange information, meet monthly, and negotiate terms of a benefit sharing agreement. San leaders undergo continuous training on matters of IP, in order to ensure their full understanding and engagement on all issues. The San hold a WIMSA workshop in October 2002 to further debate and agree on principles of benefit sharing amongst themselves, including confirmation of the collective ownership of heritage by all San.

21 March 2003

OUTCOME ‘A’ The San and the CSIR (Department of Arts, Science and Technology) sign a Benefit Sharing Agreement at Molopo Lodge, South Africa. The San are to

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receive (inter alia) 6% of the CSIR’s royalties from licensees, after products sold by the licensee (Pfizer).

July 2003 Pfizer announces its decision to withdraw from the P57 agreement and return the licensing rights to Phytopharm.

24/25 October 2003

The San hold a consultative workshop at Upington, South Africa to discuss sharing of benefits. Delegates include the leadership of WIMSA in addition to San representatives from Botswana, Namibia and South Africa. The decision is taken unanimously that the San Hoodia Trust shall allocate money as follows: 75% equally between the three operating San Councils of WIMSA (currently South Africa, Namibia and Botswana), with 25% reserved for Trust administration (including 5% to WIMSA). It was noted that if and when a San Council is registered in Angola, such a council will share equally with the others.

March 2003 to present

The San Hoodia Benefit Sharing Trust is elected, formed, and registered in February 2005, and meets a number of times to establish policies and procedures. First payments are made to Namibia, South Africa and Botswana San Councils. The Trust continues to develop capacity to manage the anticipated payments to San Councils.

June 2004 Phytopharm announces that it has sublicensed the P57 commercialisation rights to Unilever, with the intention of developing and marketing an appetite suppressant energy bar.

September 2004

The Biodiversity Act 10 of 2004 is promulgated in South Africa, stipulating permits, prior informed consent and benefit sharing agreements where traditional knowledge is used in bioprospecting.

21 February 2006

Negotiations between the San and the South African Hoodia Growers (SAHG) are concluded, and a benefit sharing agreement for 6% payment of sales of raw hoodia is signed on 21 February 2006.

March 2006 to March 2007

Negotiations commence between the San, the Cape Ethnobotanical Growers Association (CEGA), the SAHG and the Provincial Government environmental departments of Northern and Western Cape to replace the San SAHG agreement with a comprehensive benefit sharing agreement that covers Hoodia growers in Southern Africa.

15 March 2007

OUTCOME ‘B’ A comprehensive Benefit Sharing agreement is signed between the San and the Southern African Hoodia Growers Association (SAHGA) with approval of the South African Government, allocating to the San approximately 6% of sales of Hoodia, currently set at R 24 per dry kilogram of processed Hoodia sold by growers.

Prior Informed Consent A legal agreement or contract requires the two or more parties to ‘consent’ to the terms of the agreement. Injustice occurs when one of the parties is induced to sign an agreement before having had sufficient opportunity to become fully informed, prior to conclusion of the contract. The phrase ‘Prior Informed Consent’, or PIC, has evolved in international law as a requirement for fairness, especially in situations where one party is less powerful or knowledgeable than the other, and might have been induced into a hasty or inappropriate agreement.

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In the field of bioprospecting, the PIC of the indigenous providers of traditional knowledge related to genetic resources, has become an acknowledged legal requirement before any benefit sharing agreement can be concluded. Whilst the term is implied in Article 8(j) of the CBD,61 it is expressly set out in numerous articles of the Bonn Guidelines,62 requiring the PIC of both the provider State and the indigenous community supplying traditional knowledge. Article 31 for example requires states to respect the ‘legal rights of indigenous and local communities where traditional knowledge associated with genetic resources is being accessed’ and requires prior informed consent to be obtained ‘in accordance with their traditional practices, national access policies and subject to domestic laws.’ The rationale underlying PIC is deeply embedded in a general principle of contract law, based upon fairness and equity, which requires that all parties should fully understand the implications of the contract. It is clearly as impossible for an uninformed party, as it is for a drunk or insane person, to understand the full implications of concluding a contract. Therefore, if one party to a contract is not sufficiently informed, whether due to their own lack of knowledge, or due to subterfuge on the part of the other, the contract is voidable. If there is no proper ‘meeting of the minds’, there is no valid contract.63 The CSIR clearly breached their duty under international law by registering patent P57 without obtaining the PIC of the San. As many analyses of the case have described,64 the subsequent negotiations between the CSIR and the San secured the ‘consent’ of the San ex post facto, which could wryly be termed ‘post informed consent’. On a formal level, the 2003 benefit sharing agreement between the San and the CSIR was legally concluded with the South African San Council, securing consent after the event. However behind the discreet veil of the formal legal agreement, and on analysis of the differentiated, scattered and vulnerable state of the San peoples, it can be legitimately questioned at what stage the community can be said to have fully consented. When has prior informed consent been obtained? It is the writer’s view that all of the detailed laws and guidelines on PIC are to some extent deficient in that they refer to the ‘indigenous and local community’ as an assumed entity, failing to acknowledge the swampland of ambiguity that surrounds the existence of such communities in practice. Referring to a group as a ‘community’ takes for granted the knowledge of how these particular people organise themselves, and how they make decisions, for a host of different purposes. Relationships between family, kinship and larger tribal groups are invariably based upon intricate norms and customs evolved over thousands of years, which are designed to accommodate the normal matters of life and survival in their particular environment. The very perception of the word leadership in the lives of indigenous communities is an entirely different notion to that understood in the West, and is usually predicated upon remarkably high levels of consensus painstakingly secured with all affected persons. For example, the San peoples traditionally did not recognise any form of overall leadership, but acknowledged that certain individuals would take the lead and be followed in their particular areas of expertise, such as hunting, healing, and matters of custom. The power or right to speak on behalf of another, so integral to settled societies with hierarchies of status

61 ‘…with the approval and involvement of the holders of such knowledge.’ Emphasis added. 62 For example Articles 13, 14 (b), 16(d) 24 to 40 63 Chennells, R. The Role and Efficacy of Contracts in the Promotion of Access and Benefit Sharing. Third Roundtable on ABS governance, Institute du Development et des Relations Durable Internationale /United Nations University, Paris, 3 and 4 November 2005. 64 Wynberg, R. (2004) op cit. pp 859 – 864.

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and power, is a foreign concept in the world of a rural San person.65 In the past, as described by Katz and Biesele in their book Healing makes our Hearts Happy, when tension arose in a community, for example where one individual or group felt slighted by another in any manner, they would resort to a healing dance in which equality and the egalitarian balance would be restored. Engagement by a government or a commercial organisation with an indigenous community as a partner requires an agreement to meet, to discuss issues. In other words, a consultation. However this very concept carries the assumption by the more powerful entity that it is dealing with an independent, representative indigenous organisation that is in a position to negotiate on behalf of its people. The primary principle of contract law requires an engagement with a valid legal entity that can ‘sue and be sued’. Clearly in view of this imbalance, some form of special treatment is required before those that speak on behalf of indigenous communities can engage and compete on equal terms.66 The Bonn Guidelines acknowledge this basic power imbalance, and repeatedly propose ‘support measures’ and ‘capacity building’ as a requirement in order to address the evident imbalance between parties.67 Despite the work of WIMSA and other NGOs in assisting with San development, when negotiations commenced in 2001 the San leadership structures were still fragile in the extreme. Methods of giving feedback and obtaining mandates were at best rudimentary. How were they to obtain real ‘consent’ from their far-flung community? How much consultation was sufficient? To what degree was the CSIR entitled to question whether the San Council was sufficiently representative of the broader San community? At what point were the San leaders sufficiently informed to engage and negotiate a binding contract, and to what degree did the San leaders understand the long term consequences of the complex agreement? All of these questions are valid when obtaining PIC from an indigenous community. The need for PIC, referred to more commonly in this context as FPIC (Free and Prior Informed Consent) has been long recognised in the fields of international contract and treaty law. Resource extraction industries (such as mining, forest logging, fishing) are comparable to bioprospecting in that powerful corporations intrude on the erstwhile peaceful lives of remote peoples, and seek approval in order to achieve their commercial objectives. Analysis of the conduct of these industries thus provides much practical material on the question of what constitutes proper PIC with indigenous or local communities. In many cases what has passed for consultation has been at best inadequate, and in too many cases, a mere sham. Treaties concluded with tribes by transfer of ‘blankets and whisky’ are legendary. A commonly repeated complaint is that ‘companies continually abuse the principle of PIC, using coercion, deception and co-option to gain the consent and participation of indigenous communities.’68 Companies are powerful beyond comprehension for vulnerable, local communities. They are able to employ an arsenal of strategies to co-opt, persuade, manipulate and otherwise bring about the subjugation of a local community.69 Few examples are encountered where the

65 Katz, R and Biesele M. Healing Makes Our Hearts Happy (Inner Traditions International, Vermont. 1997). 66 Saugestadt, S. Indigenous Peoples, National Models and Recent International Trends. University of Botswana, (1993) p 23 67 Bonn Guidelines, article 16 (vii) 20 (b) and 44 (d) 68 Tebtebba. “The Philippine Mining Act of 1995,” p 135 in Paradigm Wars, Special report of the International Forum on Globalisation Committee on Indigenous Peoples, Editors Jerry Mander and Victoria Corpuz Tauli (2002). 69 “Focus on extractive industries,” Part four, Paradigm Wars (2002) op cit. pp 129 – 149.

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fragility of the indigenous communities, and the predictable future implications for their societies, are fully recognised. An ‘encounter’ is the term that has been coined to describe the range of events that occur when an extractive industry company first meets with and requires the consent of an indigenous community.70 Downing suggests that such an encounter consists of the following four dimensions. Firstly ‘perceptions and objectives’. Who is indigenous? Pre-suppositions about each other and the desired outcome. An example of a pre-supposition by the non-indigenous negotiating party in mining negotiations is its belief that the large financial risks undertaken by the company justifies the urgency of its negotiations, and its imposition of strict deadlines for reaching agreement. Another is that the documented likelihood of the undesired social impacts that tend to follow such rapid economic development of remote peoples (such as alcoholism, prostitution etc) are not the responsibility of the company, and it will not be its fault if the indigenous community choose to resort to such practices. In other words, it is bolstered by the belief that indigenous peoples have a choice not to drink.71 The indigenous party to such an encounter often has totally different views relating to the importance of timelines, of land, of full consensus, and of the nature and value of the short term material benefits offered by the company. The two parties inhabit different realities, different world views, and their perceptions of each other and of the desired outcomes are initially literally worlds apart. Secondly, the parties ‘capacities to sustain and/or resist negotiations’. Parties in an encounter are placed under extreme pressure to reach agreement. The company invariably needs to resolve the issue rapidly in order to secure the lucrative licensing or prospecting deal, whilst the indigenous group hastily attempts to acquire sufficient understanding of the issues at stake in order to negotiate with confidence. The material inducements offered by the company exert unprecedented pressure on a rural community unaccustomed to the ways of the modern world, and the offering of inducements to groups or individuals in the community generate unprecedented conflict. If the leaders attempt to resist the inducements inherent in the negotiations, the company can be sorely tempted to strike a deal with another group of leaders more amenable to receiving the benefits. The loss of ‘sovereignty’ that is engendered when a community is literally forced into hasty negotiations, has been described as a ‘new form of poverty’ in communities affected by mining, which can lead rapidly to homelessness, alcoholism, societal breakdown.72 Thirdly, strategies and tactics for dealing with each other. Both parties are required to strategise, weigh up options, consider relative strengths and weaknesses, and employ where appropriate a blend of assertion, relationship building, power and threats during the encounter. Resource extraction companies on the one hand employ a range of trained professionals to drive the process, whilst the leaders of the indigenous party are rapidly drawn into a previously unknown environment. The entire engagement revolves around the company’s pursuit of profit resulting from its resource extraction process, and the indigenous leaders are required to rapidly acquire sufficient perspective of the entire issue in order to act appropriately in the interests of their community. The very question as to what

70 Downing T (ed) Indigenous peoples and mining encounters; Mining Minerals and Sustainable Development. Published by International Institute for Environment and Development April 2002, p3. 71 Downing T. (2002) op cit. p 8. 72 Downing T. (2002) op cit. p 3.

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will in fact lead to the best outcome for the local community, and whether it should accede to a contract that will change rural lives for ever, is a complex question for the most astute social scientist. All too often the indigenous community cannot withstand the temptation of inducements and short term commercial gain. Fourthly, socio-economic risks and benefits, namely possible changes to livelihoods and culture of project-affected peoples. This dimension is the most difficult for representatives of an indigenous community, as well as their advisors, to predict or understand. The leaders themselves are caught in a bewildering process of rapid change, whilst negotiating against highly experienced gladiators in the alien jousting pits of commercial and intellectual property law. An apt warning provided by Downing is that ‘the most serious sustainability risks from mining are those that challenge an indigenous people’s rights to their culture and heritage, degrading their indigenous well-being.73 Societal instability amongst aboriginal Australians following receipt of material wealth has been well documented.74 The following definition provided by the World Bank’s extractive industries review contains a useful lesson for the San. ‘Free, prior and informed consent (FPIC) should not be understood as a one-off, yes-no vote or as a veto power for a single person or group. Rather it is a process by which indigenous peoples, local communities, government, and companies may come to mutual agreements in a forum that gives affected communities enough leverage to negotiate an outcome leaving the community clearly better off.’ 75 Representation, and decision-making by the San As described above, the San peoples were at all times during the negotiations formally represented by WIMSA, which since its inception in 1996 formed a political and representative network representing San rights in Southern Africa. WIMSA depends on funds from international donors, has relied heavily upon non-San technical assistance, and reports annually on its progress. It is axiomatic that an immense gulf still exists between the worlds and aspirations of rural San communities on the one hand, and the leaders occupying this representative structure formed with the assistance of donors to articulate a united San voice. The degree to which WIMSA has in the short space since its inception succeeded in effectively representing the differentiated and widespread San communities is debated further below. This section first describes the formal or legal decision making process, and then looks at some aspects of the remote San communities being represented by these structures. WIMSA has a constitution which complies with Western notions of governance and accountability, in order to show the democratic and transparent governance expected by donor funders, who expect a fiscally responsible corporate community. The WIMSA Board of Trustees is elected from the San leadership of each country (currently only South Africa, Namibia and Botswana are effectively organised) and all important policy decisions are taken by the General Assembly, a meeting of representatives from San communities in all three

73 Downing T. (2002) op cit. p 4. 74 Altman J. and Smith D.E. The economic impact of mining moneys: the Nabarlek case, Western Arnhem Land, Centre for Aboriginal Economic Policy Research – Discussion Paper. No.63 (1994) and Altman J. Kakadu Regional Social Impact Study: Community Action Plan 1997. Report of the Study Advisory Group, July 1997. 75 MacKay, F. Indigenous Peoples’ Right to Free, Prior and Informed Consent and the World Bank’s Extractive Industries Review. Forest Peoples’ Programme, (2004) p 6.

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countries. A mandate was formally granted to the South African San Council, in turn based upon a constitution requiring elected representatives from the !Khomani, !Xun and Khwe San communities, to negotiate with the CSIR on behalf of all the San peoples. This San Council met frequently to receive specialised training in the field of intellectual property, and received assistance and encouragement from many quarters, including local and international NGOs. Their legal advisor in the negotiations, namely the author of this case study, was conscious of the need and intention not to impose his own views, ideas and strategies too strongly; but the degree to which this intention was achieved is not the focus of this discussion. Apart from normal feedback with their communities, the San council held broader consultative workshops during the course of negotiations, which were the formal opportunities to discuss and debate the issues. In addition council members were expected to hold meetings in their own communities to ensure that the information reached their constituencies. As has been documented in a number of papers, the Hoodia negotiations, contests between two very differently armed and equipped parties, achieved two consecutive legal outcomes. Each outcome was at the time of agreement judged by the negotiating teams, (within the limits of their perception) to be sufficiently fair, and will no doubt be evaluated with the advantage of hindsight in the future. In each case, the San agreement was signed by the South African San Council, formally mandated by WIMSA. A superficial analysis would probably conclude that the San Council effectively represented the San peoples. Democratic representation is one of the requirements of the modern world to confirm leadership. Agreements require that an indigenous people form a ‘legal structure’ in a corporate form that can be sued, open bank accounts, etc. In the resource extraction industry negotiations are frequently stymied by the company’s lack of understanding of issues such as who speaks legitimately for the group, and of the manner in which decisions are made. In the San culture, virtually unchanged for thousands of years, consensus was always sought prior to a decision, and no one person would speak for others. Social hierarchies were virtually unknown, and leadership was a shifting notion depending upon the issue. For example one person would be an acknowledged leader in hunting, another in healing, another in matters of culture and engagement with the world as noted before. Many authors have described the tensions that arise when certain persons are appointed by outsiders into positions of power, leading to a power struggle between those with more ‘traditional’ or conservative tendencies, and those who are better able to assimilate the political skills rewarded by representational democracy. Regarding capacity of leaders to assert their rights, early studies of San by Schapera pointed out that they had little, if any voice in decision making against other groups, that they could not speak on their own behalf in customary court proceedings, and that they often had no say over their employment conditions on cattle posts.76 Capacity (in a modern sense) and confidence of leaders is still generally low.77 Where power or money is at stake, it is a regrettable fact that outsiders in the form of NGOs, farmers and anthropologists still tend to manipulate and influence key individuals.78 The formation of cooperative governance is a major challenge to the egalitarian San, who tenaciously value personal autonomy. The Ju/’hoansi of the Nyae Nyae in Namibia (formerly East Bushmanland) have for example received development assistance since the 1960s. An

76 Schapera, I. A Handbook of Tswana Law and Custom (London, Frank Gass, 1938) pp 250 – 252. 77 Suzman J. Regional Assessment of the Status of the San in Southern Africa (Legal Assistance Centre, Namibia, 2001) pp 8-18. 78 Robins, S. “Whose Culture, Whose Survival? The =Khomani San land claim and the Cultural Politics of Community and Development in the Kalahari,” Conference on ‘Indigenous Africans,’ (Centre for African Studies, University of Edinburgh, 2000) p 13.

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article describing difficulties faced by this San community in adapting to a representative structure over four decades provides a microcosm of the challenges facing the San in the entire region79. Community meetings in which literally hundreds of people participated attempted to employ the traditional consensus-style decision making. Due to a lack of trust in representatives, no decisions are made without attempting to guage the opinions of the entire population, which is practically difficult and expensive with 35 far-flung villages connected by poor roads. After twenty years of assistance, the movement towards an efficient structure is clearly painstaking. The Hei//om of northern Namibia have had similar institutional difficulties. A community trust fund was formed with donor money, and after some meetings four individuals were selected whose signatures were required to release the funds. After many years the funds could still not be released, as conflicts grew around perceptions of the trustworthiness of those individuals. As stated in a depressing analysis, ‘Hei//om find it difficult to know who can be trusted enough to run a trust fund.’80 Jealousy is a curse that follows the material success or increased status of individuals, and the San, despite their famed egalitarian reciprocity networks, are by no means immune to this evil. Steven Robins describes the problems, jealousies and deep conflict that followed the !Khomani San successful land claim in 2002. Devastating power struggles emerged between a ‘traditional’ group, who believed in the old ways of acquiring leadership, and a ‘western’ group, who acquired the right to lead through the vote81. Kinship relationships lead to strong expectations of assistance from leaders, challenging Western codes of conduct that ban nepotism and corruption. Robins questions the extent to which interested NGOs or other outsiders are entitled or obliged to intervene, to bolster the weaker voices, to curb perceived corruption, or to prevent marginalisation of women or other groups. The San Hoodia Benefit Sharing Trust is the institution formed by the San and the CSIR in accordance with the Trust Act of South Africa in order to receive and distribute the Hoodia royalty money amongst the San. The formation of this body, comprised of seven elected San trustees, and two non-San, has been analysed at some length by Wynberg82. The agreement reached by the San at their meeting on 24 October 2003 namely that the Trust is to divide the royalty proceeds equally between the San Councils of the Southern African States, lays a sound foundation for equitable benefit sharing. Wynberg expresses a cautionary note by warning against the ‘fraught questions of administering the funds, of determining beneficiaries and specific benefits across geographical boundaries and within different communities, and of minimizing the social and economic impacts and conflicts that could arise with the introduction of large sums of money into poor communities.’83 The mandate of the San Hoodia Trust, the actions of which (under the South African Trust Act) fall under the scrutiny of the Master of the High Court in South Africa, is to distribute the anticipated large sums of money fairly amongst this vulnerable community. How to acquit itself of this task in a manner which is fair, beyond reproach, and most importantly contributes towards the wellbeing rather than the further breakdown of the San, will be a Herculean challenge.

79 Hitchcock R, Biesele M. “Controlling their Destiny. Ju/’hoansi of Nyae Nyae,” Cultural Survival Quarterly, Spring (2002) p 14. 80 Widlok, T. “Hei//om Trust in the Hei//om Trust,” Cultural Survival Quarterly, Spring (2002) p 20. 81 Robins, S. (2000) p 13. 82 Wynberg, R. (2004) p 864. See also Krugmann H. (2007) p 76. 83 Wynberg, R. (2004) p 869.

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One of the clearest tests facing the San, as described by Saugestad,84 is that they need to increasingly find and express their own voice, free from the well-meaning, paternalistic or even hostile ‘outsider-activism’ that so influences their lives. Why are the San still vulnerable ? In essence, vulnerability describes a state of heightened susceptibility to physical or mental harm or attack. For instance, a Scandinavian in the Kalahari is vulnerable to heatstroke in a way the locals are not, whilst a Kalahari San person in England is vulnerable to common winter flu or a pedestrian traffic accident in a way the locals are not. Numerous studies have been made in order to try to understand why the San persistently remain vulnerable in comparison with other peoples. The regional assessment of the Status of the San in Southern Africa commissioned by the Legal Assistance Centre in 2001, an in depth analysis of San communities which included those in Angola, Zambia and Zimbabwe, makes sobering reading. Despite decades of development assistance, and despite the fact that South Africa, Namibia and Botswana are amongst the most developed countries in Africa, the San are by far the poorest, most marginalised and dispossessed of all communities. Some of the possible factors contributing towards this vulnerability are discussed below. A Hunter -gatherer world view? Jared Diamond85 posed the burning question, why it is that over 12000 years of development, some societies acquire material wealth through pastoralist or agriculturalist economies, and others, such as the San, show little interest in bettering themselves materially, and remain essentially hunters and gatherers. Without entering the ‘Kalahari debate’ about primordial societies, it is suggested that the San peoples today, despite the fact that some have received schooling, are still essentially a hunter-gatherer society in transition. Many of the traits of hunter gatherers, such as a focus on the present, a lack of interest in long term planning, a discomfort with hierarchies and formal structures, and a lack of understanding of material wealth, remain imbued in their world view. Another attempt to answer why indigenous peoples of today seem to steadfastly resist ‘advancement’ is posed in Hugh Brody’s book, ‘The Other Side of Eden,’86 which equates humankind’s mindless quest to conquer and control the world with the curse that God placed upon Adam and his descendants, recorded in the book of Genesis. The indigenous peoples of the world, who accept their land as it is and have no desire to control nature, are therefore free from what is characterised as the ‘curse’. This book provides a fascinating analysis and some explanations for the lack of motivation or drive amongst San to ‘better themselves’. San elders of today are still able to reflect on the quality of the lives that they remember, compared to the loss of land, dignity, culture and sense of order that characterises their lives in the modern resettlement villages. These elders are vocal in their rejection of the modern aspirations of possessions and alcohol, but often lack the means to influence the youth, or to chart a course that will lead to retention of some of the old values. Newly resettled residents

84 Saugestad, S. “San Development and Challenges in Development Cooperation,” in Hitchcock et al (eds) (2006) pp 171 – 178. 85 Diamond, JM. Guns Germs and Steel: The Fates of Human Societies (W.W. Norton & Company, New York & London, 1999). 86 Brody, H. The Other Side of Eden: Hunters, Farmers, and the Shaping of the World (North Point Press, New York, 2001).

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of New Xade in Botswana, recently evicted from ancient traditional lands in the Central Kalahari Game reserve by a self-righteous and ‘development’ focussed government, express confusion and sadness at the lack of understanding and empathy shown by the authorities. The intangible but potent value of the evicted San’s culture, which linked to their traditional land, was a prime contributor towards their sense of identity and self-esteem, is totally absent from the thinking of the Botswana government.87 How can one place a value on loss of land and culture? Both Suzman and Crawhall have described the positive results amongst the youth when San development projects harness and revive valued components of culture and language.88 The Kuru NGOs thus attempt a conscious balance between revival of culture and language, together with the more practical aspects of development assistance.89 The annual Kuru San dance festival is currently attended by over fifty different dance groups, who gather to perform the famous healing dance amongst their San peers. Increasing numbers of San leaders today are able to proudly acknowledge their hunter-gather roots in a manner which is neither romantic nor primordialist, whilst accepting the need for this culture to adapt steadily in response to the challenges of modern life. These leaders see the Hoodia case as an opportunity to manage this uncharted process of adaptation and change. Poverty and lack of health? San NGOs are able to readily access donor funding, largely due to the sad fact that they are the poorest of the poor. Behind the stark reality of this poverty, lurks a nagging question associated with other hunter-gatherer societies. Why is it that the San peoples in so many cases are so subservient to other groups, lacking in assertiveness or apparent ambition to ‘better’ themselves? The objective fact that they earn by far the lowest per capita income in Southern Africa, and are amongst the most lacking in basic health, as concluded in Suzman’s regional assessment, masks a far deeper problem.

Poverty is the clearest objective index of the status of the San, and throughout Southern Africa San communities are characterised by widespread unemployment and an acute reliance on welfare services, (where available) casual labour, begging and/or charity.’90

Especially where they are removed from their traditional lands, the pervading air of lassitude and hopelessness is reminiscent of the similar fate of the first peoples of America, Canada and Australasia. Ingstad concludes that ‘loss of land results in loss of health via loss of self-esteem.91 A form of spiritual impoverishment thus takes root after loss of traditional land, of which the symptoms are a deadly cocktail of societal breakdown, alcoholism, prostitution and passive anarchy. The vital need for traditional land as a foundation for culture is expressed in all the international conventions on indigenous peoples rights referred to above, and the dispossessed San bear devastating witness to that need. Renee Silvain’s description of the state of the San farm labour communities in the Omaheke region of Namibia92 is especially

87 Sugawara, K. “Voices of the dispossessed,” Cultural Survival, op cit. (2002) p 28. 88 Suzman, J. (2001) op cit. p 37. Crawhall N. “Reclaiming Language and Identity”. Cultural Survival Spring (2002) p 49-50. 89 Kuru Family of Organisations. Annual Report, (2005) 90 Suzman, J. (2001) op cit. p 9. 91 Ingstad, B. “Our Health was better in the time of Queen Elizabeth. The Importance of Land to the Health Perception of Botswana San,” in Hitchcock R et al (eds) Updating the San. Image and Reality of an African People in the 21st Century (National Museum of Ethnology, Osaka, 2006) p 75. 92 Silvain, R. “Drinking, Fighting and Healing. San Struggles for Survival and Solidarity in the Omaheke Region, Namibia,” in Hitchcock R et al (eds) (2006) op cit. p 131.

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depressing, as it is difficult to imagine how the situation can be improved. She describes how the San egalitarian values provide space for aggressive drunkenness in response to their new conflicts and the hopelessness of their plight. However the same values enable ready forgiveness of the drunken wrongdoer, with the result that there is little incentive to curb the drinking.

Ironically, San tolerance, patience and egalitarian attitudes both create a permissive environment for drinking and fighting, and constitute the values that are vital to maintaining their social relationships… The San have little choice but to respond with increasing tolerance towards the very actions that pose the most serious threat to their cohesion.93

Where San have been resettled in Western style villages in order to be more easily ‘civilised’, such as New Xade, Tsumkwe, and Platfontein, the sense of hopelessness and disaffection are particularly palpable. HIV/ Aids has recently joined tuberculosis and alcoholism as a significant cause of early death, associated with poor communities. In reaffirming the link between poor health and low self esteem, Suzman describes the myriad of internal social problems encountered in his report.

Drunkenness, depression, domestic violence and apathy all conspire against San efforts to improve their own status and capacity. Poor cultural health and the low self-image among San clearly contribute substantially to social and other problems. 94

Much of this low self image is carried at the deepest levels of consciousness by societies that have been subjected to unimaginable levels of trauma, as is described in the next section. Collective Trauma as a root cause of societal problems? The trauma95 inflicted upon indigenous populations by Colonial invasions has been remarkably similar, from the Americas to Australasia to Africa. Superior weaponry devastated entire populations, and the convenient terra nullius96 doctrine provided comfort to governments responsible for atrocities committed in their name. Genocide was rationalised as retaliation against their theft of cattle, imposing law and order on a ‘lawless land’, and clearing farming land of ‘vagrant and treacherous savages’. The Times of London described the San as ‘in appearance, they are little above the monkey tribe, and scarcely better than the mere brutes of the field.’97 Martineau in 1832 described the Bushmen as the original inhabitants of the Cape, who were ‘hunted down like so many wild beasts, which made them fierce in their revenge.’ 98 Penn’s description of the systematic destruction of the Cape San by

93 Silvain, R. (2006) op cit, p 149 94 Suzman, J. (2001) op cit p 40 95 Trauma will be understood as ‘the condition of psychological shock or severe distress from experiencing a disastrous event outside the range of usual experience, causing a disturbance in normal behaviour’. 96 The doctrine held by colonial empires to the effect that land occupied by indigenous or local peoples, who did not maintain a recognised system of ‘ownership’ of the land, was in fact empty land and thus was able to be occupied by the civilizing invaders. 97 History of the Bosjemans. The Aborigines of Southern Africa (Chapman, Alcoate and Company, London, 1847) p39. 98 Martineau, H. Life in the Wilds. A Tale. Illustrations of political economy, No 1. (London, Lawrence and Wishart, 1832).

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the authorities, is breathtaking in its horror.99 The colonial government was driven by a conviction that the San society, being incompatible with the creation of a ‘civilized society’, needed to be eradicated. No mercy was shown towards these hapless victims of Western folly, which was only partially explained by the fact that they were regarded as less than human. During the 18th century thousands of San were systematically exterminated by hunting parties, their women and children taken into servitude. Large tracts of land were wrested from them by the Trekboers, supported by colonial law. The San naturally retaliated to the invasion of their land, robbed the colonists of their stock, and filled them with fear of their poisoned arrows, but by the end of the eighteenth century their culture and society had been devastated and those that survived were taken into servitude. Many that escaped the genocide died of disease or starvation because of the destruction of the land and the game that were their livelihood. The following extract from Theal is a fitting summary to this brief epitaph.

They (the San) could not adapt themselves to their new environment, they tried to live as their predecessors had lived, and therefore they were fated to perish. The wave of European colonisation was not to be stayed from rolling on by a group of savages who stood in its course.’100

The exhibition Miscast at the South African National Gallery in 1996101 shocked the world with photographs of dead San men and women hanging from trees after hunting parties, of trophy heads, of San body parts preserved for scientific research. The exhibition provided a shocking visual reminder of the sustained, merciless and unspeakable carnage wreaked on generations of San in the name of civilisation. San visitors to the museum, despite being aware of their history of subjugation, were equally horrified at the starkness of the visual record and reminder of their desolate origins. The present social conditions of the San reflect the traumatic experience of decades, centuries of dispossession, including relocations, loss of language, traditional lifestyles and values, of genocide, slavery and humiliation. In an insightful Master's thesis dealing with San loss of identity, Irene Staehelin describes how the alcoholism, lethargy and general sense of disorientation are not only the legacy of this dark history, but they also contain a dangerous potential for self-perpetuation.102 Sousan Abadian103 in a study of collective trauma of indigenous peoples makes the critical point that cultural dispossession is connected to alienation, and that unresolved collective trauma is an essential cause to explain present day dysfunction. She describes ‘unresolved’ trauma as being a failure to productively integrate, move through and release traumatic experiences. Communities and individuals are unable to create meaning from the repressed experiences in a manner that enhances rather than debilitates their lives. Abadian continues that the experience of trauma profoundly distorts individual perceptual filters, values and behaviours, adding that money alone is not sufficient to bring about the healing. Alcoholism, violence and apathy continue to destroy the social

99 Penn, N. “Fated to Perish. The Destruction of the Cape San,” in Skotnes, P. Miscast. Negotiating the Presence of the Bushmen (UCT Press, Cape Town, 1996) pp 81– 91. 100 Theal, GM. (1892 – 1919). The History of South Africa, Vol. 4. p 49. 101 Skotnes, P. Miscast. Negotiating the Presence of the Bushmen, (UCT Press, Cape Town, 1996). 102 Staehelin, I. Lost, Contested and Found. The recovery of Bushman Identities Through Access to History and Cultural Heritage, (Masters Thesis, Boston University, 2001) p 4. 103 Abadian, S. From Wasteland to Homeland: Trauma and the Renewal of Indigenous Peoples and their Communities, (Cambridge, Harvard University, 1999).

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fabric of indigenous societies that receive well-meaning support from NGOs and governments, which results in donors scratching their heads, or blaming these people as being ‘doomed to extinction’ and ‘not wanting to help themselves.’ Addictive behaviour, such a blight on the lives of indigenous peoples, is explained as a by-product of non-validated and suppressed grief, rage and shame.104 Many authors have found that indigenous children carry and perpetuate the burden of their parents’ unresolved pain in a never-ending spiral of trauma and violence. The abduction of children, which occurred with the San as well as aboriginals in Australia and North America, is another root cause of their current fragile state. This particular form of debilitating wounding is associated with a tendency to further spirals of poverty and apathy. Individuals thus affected are described as suspecting non-indigenous peoples of being in a form of conspiracy against them, and as mistrusting all those in authority. A state of low personal capacity is the norm, linked to and driven by a pervasive low personal and collective self-esteem. On a collective level, these factors lead to dysfunctional communities whose members are not able to interact with their leaders or amongst each other in constructive ways. In summary, this constellation of many self-destructive behaviours in indigenous communities, and particularly the San, is a result of unresolved traumas suffered through past experiences of colonial violence, compounded by the ongoing situation of alienation and hopelessness. It is suggested that the state of unresolved trauma underpinning the state of the San has received far too little acknowledgement. Moving creatively away from this victimhood and towards empowerment will be central to San development, whether carried out by NGOs as in the past, or by the San themselves. 5 LESSONS LEARNED The San Hoodia case is in many ways unique, with its own distinct origins and trajectory. The San peoples managed to preserve their negotiating unity, throughout two sets of negotiations for benefit sharing dispensations, despite the astonishing divergence of their scattered society, and stand to earn significant money via the San Hoodia Benefit Sharing Trust in the years to come. The international Hoodia industry is burgeoning, and the San are relatively well placed in their legal relationships both with the CSIR/Phytopharm/Unilever licensees, as well as with the Hoodia Growers Association, to play a role as this market develops. With the above in mind, the following are some of the lessons learned from the case. The lack of a legal and policy environment Both Hoodia agreements referred to above were negotiated in a domestic legal and policy vacuum. In 2003 the South African Biodiversity Act was not yet promulgated, and when the San negotiated with the Hoodia Growers in 2006, the regulations requiring inter alia benefit sharing agreements were also not in force. The domestic legal and policy environment in the countries that grow Hoodia is inadequate in many ways. South Africa, Botswana and Namibia do not yet have a coherent joint framework of law and policy reflecting the prescriptions of the CBD, relating to the Hoodia, and to benefit sharing. In Namibia and Botswana, for example, the governments seem determined to ignore the IP rights of the San. No country yet has regulations in force legally requiring a benefit sharing agreement, or proper conservation of vulnerable Hoodia stocks.

104 Staehelin. I. (2001) op cit. p 148.

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The lesson learned by the San was that it is possible to negotiate binding rights despite the lack of an enabling domestic legal environment. The general principles of international law flowing from the CBD guided the parties in both sets of negotiations referred to above, and they were able to reach binding agreements despite the fact that no policy or law was yet in place. This is evidence of the power and ability of negotiating parties to meet each other, to establish rules of engagement, to commit to act in good faith, and to attempt to strike a balance encompassing the long term requirements of divergent parties. The international legal environment moves even more slowly than the local. The ABS regime proposed at the WSSD in 2002 is stagnated, and no mechanisms currently exist for preventing countries from selling Hoodia products that, contrary to the CBD and Bonn Guidelines, do not have a benefit sharing relationship with the San. One of the future tasks of the San will be to engage with the governments of Southern Africa, and to persuade them to take more decisive steps to prevent the international illegal exploitation of the Hoodia. The lack of law will not inhibit the San, as previously seen. Sustaining unity amongst the indigenous group. The San as a party to this complicated set of legal relationships, seem to have managed to articulate and secure their legal rights, over a sustained period, with remarkable success. One of the most crucial foundations of this ability was the bedrock of unity that was achieved at an early stage between leaders and since then sustained. Bearing in mind the porous and indeterminate boundaries that exist in most indigenous communities, and the levels of poverty and alienation within the San communities, this was a crucial component of success thus far. Indigenous communities considering the securing of such legal rights would be advised that a clear negotiating position is impossible without a stable and mandated leadership. The San have learned that favourable laws do not secure rights. There is no substitute for them establishing unity, improving their own capacity, and asserting their own legal rights. Governments at best provide enabling frameworks, but they are not capable of doing what communities need to do. Experience has shown that rights need to be effectively demanded by those that claim such rights. Years of training of San leaders in the field of heritage, IP, culture and human rights resulted in a leadership who were sufficiently knowledgeable and eager to assert their own rights against others. At the same time, it should be noted that San leaders are not immune to the trauma that has so deeply influenced their communities, and they too will need to receive appropriate support and assistance from trusted and well-equipped sources. Too much democracy at an early stage would have stymied the negotiations. The San leaders were able to negotiate effectively with the CSIR because they had built a sufficiently coherent structure, based upon sound and abiding principles which aimed at benefiting all San. If they had waited until they were able to fully consult the entire community, they would probably still be enmeshed in that process, and the benefits of the agreements would have been lost. The term ‘sufficient consensus’ aptly describes the realpolitik behind the San decision to negotiate and reach an agreement, despite the fact that the entire community were not yet involved in any practical manner.

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Outsider Influence As stated by Robins above, outsider influence is seldom absent in a benefit sharing case involving a vulnerable community. NGOs, governments, companies, concerned individuals, well-meaning but not necessarily well-equipped, are all able to influence the outcome. Whilst outsiders are often to blame for divisions that occur in communities, it is also axiomatic that vulnerable groups require appropriate and sensitive assistance in order to protect their rights. In the Hoodia case, the NGOs and advisors105 were in a long term relationship with the San peoples. The legal advice given to the San was embedded in the principles of San development organisations, and therefore to a degree aware of the complexities of this particular community. The most dangerous outsider influence occurs where powerful international companies (often with compliance by government) engage with vulnerable communities, and employ various forms of manipulation (by coercion, persuasion, bribery and other inducements) to achieve ‘consent’.106 In this process, the assistance of dedicated NGOs, with a long term commitment, is invaluable. Funders and NGOs that impose externally formed targets, outputs and changes on the assisted community, without understanding of the complexities of their inner world, unwittingly contribute towards further alienation and disempowerment. ‘Above all, move at the pace of the people’ was the advice of an anthropologist who had worked with the Amazon Indians for over thirty years.107 Western standards and methods of governance The beneficiary San community has little experience of governance as the term is understood today. The ancient systems of hunting, foraging, sharing networks and consensual decision-making were indeed an effective form of self-governance, evolving for thousands of years before the intrusion of the modern world. Leadership was a variable concept, unrelated to exercise of power over others. Intrusion of new resources external to traditional economies, such as money and political power disrupted old sharing systems, bringing about new tensions. The notion of casting votes for leaders today to represent groupings larger than family clans is still perceived as foreign by many San, despite more than a decade of the practice. Norms and values relating to how leadership should be exercised, and how finances should be managed have not yet settled and found root with the new leaders. Indigenous peoples everywhere struggle initially to manage and allocate finances with the degree of democracy, fairness and transparency required by funders and governments, and there should be empathy for this situation. Currently all the Hoodia money will be paid into the San Hoodia Benefit Sharing Trust, which is subject to the Trust Laws of South Africa. These laws are very restrictive, and the Trustees as well as the San Councils will require assistance in order to properly receive, allocate, and account for large amounts of money, in a manner that is perceived by the San communities to be effective and fair. The question that has been posed is to what extent should the San be allowed to evolve their own systems and standards of governance, separate from and not necessarily in line with the strict notions of democracy and fairness that are imposed by Western capitalism?

105 WIMSA, the South African San Institute, (SASI) The Kuru Family of Organisations (KFO) 106 Castillo, F. “For Careful Consideration: Issues in Obtaining Voluntary, Prior Informed Consent of Indigenous Peoples in the Philippines,” presentation at: Workshop Prior Informed Consent and Benefit Sharing, Kalk Bay, South Africa, June 2006. http://www.uclan.ac.uk/facs/health/ethics/staff/projects/wellcome_trust/docs/CTWorkshop.pdf, accessed: 10 August 2007. 107 Martin von Hildebrand. Personal communication.

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Beneficiary challenges The San are, as has been described above, and despite the resilience of their negotiating structures throughout this case, an exceptionally vulnerable indigenous community. Having cleared the hurdle of negotiating sound benefit sharing agreements, which will result in a flow of money into the communities, the focus now understandably shifts onto the San themselves. How will they resist some of the predictable problems that will emerge? Others will attempt to join and enjoy the spoils of the San beneficiaries. The positions of leaders on the San Councils will become contested, as they wield new levels of power to allocate money within their countries. Temptations to cut corners, to divert benefits to favoured groups, various forms of nepotism and corruption will arise. Leaders, themselves victims of the collective San trauma described above, will need help. Trustees of the San Hoodia Benefit Sharing Trust will come under pressure to pay money out to inexperienced San Councils, and to relax stringent requirements of financial accounting. San Councils will become the effective funders and drivers of San development, and San NGOs will have to renegotiate relationships within this unaccustomed paradigm. Communities of San deep in the Kalahari, thus far oblivious to the entire Hoodia saga, will need to be afforded opportunities to engage and benefit from the money. The divergent demands of competing ideologies, such as ‘traditionalists’?? on the one hand and those promoting modern adaptation on the other, will need to be balanced, and responded to. Governments need to be firmly warned not to withdraw health and educational support from a community perceived as being ‘rich’ from benefit sharing. All of the above pose unenviable, but historic tasks for San leaders. Finding the uncharted path representing the divergent aspirations of their communities from hunter gatherer to materialist cultures, will be a worthwhile achievement. San leaders, in possession of the financial power to influence their own development, will experience the burden of extreme responsibility. The apathy and victimhood reflected in the current state of their communities, brought about by trauma and powerlessness, can now be addressed. But how? The leaders themselves need healing. It is suggested that San leaders, with help from committed NGOs, should acknowledge the complexity of the potent opportunity now placed in their hands, as they shape their collective future. 6 CONCLUSION The San Hoodia case and the benefit sharing scenario is evolving fast within an equally fluid international legal and policy framework, creating useful precedents and a range of benefits for observers. The lessons learned will continue to influence governments and indigenous peoples worldwide, as they reflect on the manner in which these benefit sharing arrangements are conducted, and as they devote attention to their own protection of intellectual property and biodiversity. The degree to which Western governments agree to prevent products appearing on their shelves which are illegal, not having a benefit sharing agreement with the San, will be a practical benchmark for the awaited international ABS regime. Indigenous peoples will be encouraged to value and preserve their traditional knowledge, and to form strong organisations that are able to secure the associated legal rights. The San leaders are aware of the test of their mettle that awaits them. Most important of the reflections above is the fact that this timely ‘windfall’ for the San, appropriately in the views of some, has befallen one of the most vulnerable groups on earth. Vulnerability can occur in many forms, but the long term results of collective trauma in particular produce a deep psychological and spiritual component to their defencelessness,

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separate from but interlinked with the more visible symptoms of poverty, alcoholism, passivity and hopelessness. It is to be hoped that governments and other stakeholders will join the San in celebrating what is a significant milestone in their history, and more importantly support them as they use the benefits of the case to seek out the elusive path of communal healing and sustainable development.