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

Abstract

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

A Regional Review of Genetic Resource Access and Benefit Sharing – Key Issues and Research Gaps

“…a more sophisticated policy and law landscape to enable right holders to negotiate and the capacity of representative groupings to negotiate on behalf of users and their end users. 103 More research is required to detail these more complex landscapes to properly understand the dimensions of necessary policy and law to enable and deliver ABS. Another area that is evolving rapidly and might be expected to be addressed in future literature is traditional knowledge.…”

Inclusion in Global Environmental Governance: Sustained Access, Engagement and Influence in Decisive Spaces

“…Third, this case focuses on issues of social justice and environmental conservation related to traditional knowledge, natural resource ownership, and economic and social benefits, which are relevant for addressing the societal impact of global environmental regulations [11]. The CBD is considered a breakthrough in global policymaking as it combined concern for the environment with a commitment to addressing human injustices [30]. Given its relative openness to Indigenous peoples' participation, this representative case allows us to observe attempts to include a vulnerable group in the process of building a transnational regulation that highly affects them.…”

“…Before the CBD, a business could exploit a natural genetic resource and develop commercial products without permission and without sharing any benefits [6]. For example, Merck Pharmaceuticals patented a treatment for glaucoma derived from biological material found exclusively in the Amazon region, but Indigenous peoples and local communities did not receive benefit from the commercial product [30]. To promote equitable and sustainable use, the Nagoya Protocol establishes that benefits from the use of genetic resources must be shared with the holder of traditional knowledge, particularly Indigenous peoples [28].…”

“…As an international legally-binding regulation, the Nagoya Protocol establishes fair access and benefit-sharing agreements aiming to address distributive injustices and redress the balance in favor of the disadvantaged Indigenous peoples and local communities, historically among the deprived social groups [5,11]. One example is the 2019 Rooibos Benefit-Sharing Agreement between the San and Khoi peoples of Southern Africa and industry, which recognizes their traditional knowledge and biological resource rights in any commercial and industrial use of Rooibos, used for health and cosmetic products [30]. Since its inception, the Nagoya Protocol acknowledged the important role of Indigenous peoples and their participation has been a hallmark of the CBD negotiations [31,32].…”

Editorial: the unexpected power of research ethics

“…The San applied the core values of their research ethics code to co-negotiate the biggest benefit-sharing agreement the world has ever seen. Signed in 2019, the San and other traditional knowledge holders will henceforth receive a share of the Rooibos industry's profits to compensate them for their historic contribution to the industry (Chennells and Schroeder et al, 2019b). On the one hand, this is far away from research and research ethics.…”