Community, Customary Law and Political Stability - New Study in East Africa; New Representation in Australia

Results of a study published this week highlight community-based systems of justice and governance in resolving conflicts between communities in East Africa.

International non-governmental organisation, Minority Rights Group International (MRG), has this week released a report which explains the need to utilise traditional systems for conflict resolution and governance. The study consulted with communities in Karamoja and Teso in Uganda. Simon Nangiro, Executive Director of Karamoja Agro-Pastoralist Development Programme, explains: "Both communities in Karamoja and Teso have their own systems of negotiation and compensation when resolving conflicts." As Nangiro explained to Reuters, "We are advocating to the government to give a place to customary institutions, for elders to play a role in the justice system, because they are the ones living with the people."

Significantly, greater emphasis on traditional systems strengthens trust and belief in negotiations, arguably the basis for the legitimacy of any legal framework. The research established that past abuses by the state had led to mistrust in local communities, eroding the legitimacy of stte intervention. In contrast, community-based mechanisms were established and resilient, despite the external pressures of imposed boundary disputes, competition for land and environmental damage: "interviewees were virtually unanimous in their opinion that these mechanisms are an essential part of conflict and justice regulation in these communities, because they are accessible where often the state is absent, and because, being based on traditional principles of spirituality and peaceful coexistence, the outcomes are respected by community members."

Indeed, the sustainability of communities supported by traditional governance systems resonates with traditional knowledge with respect to environmental and agricultural sustainability, as distinct from adversarial models of justice. The press release explains: "Communities in both Karamoja and Teso, traditionally pastoralists, strive for amicable relations and depend on each other for survival in harsh environmental conditions. Government imposed conditions on their traditional way of life, shortage of resources, problems involving cattle rustling and border disputes have led to increasing conflict between the groups in recent times."

The study follows earlier work by MRG in strengthening traditional community governance structures, including assisting with the establishment of the Regional Elders Council in East Africa. The Interim Council included 13 elders, and was chaired by Eunice Marima. The Council, now composed of 10 elders including 4 women, is chaired by Dr Abdullahi Haji Wako (pictured at right), a member of the Borana community in Kenya, implements traditional systems of conflict resolution for communities in Ethiopia, Uganda, Kenya and Tanzania.

In Australia, a National Representative Body for Aboriginal and Torres Strait Islander peoples has been proposed by the Australian Human Rights Commission in a new report, Our Future in Our Hands. The Steering Committee behind the proposal is led by Social Justice Commissioner Tom Calma (pictured at right), an Aboriginal elder from the Kungarakan tribal group and a member of the Iwaidja tribal group. In his speech at the launch of the report, Calma emphasised the importance of the establishment of a national representative body for Aboriginal and Torres Strait Islander peoples both as a true exercise of self-determination and in terms of national governance: "We have suffered from the absence of a strong national representative organisation over the past five years. And governments have also suffered from the absence of a national body."

Previously, Aboriginal and Torres Strait Islander peoples were represented by the Aboriginal and Torres Strait Islander Commission (ATSIC), which was abolished by the Howard government in 2005, which criticised the Commission for corruption and mis-handling of funds. Some have criticised the proposed replacement, saying that it may not offer appropriate representation for those in remote areas. And already, the independence of the new body is in doubt with Indigenous Affairs Minister, Jenny Macklin, refusing to commit funds to ensure its financial self-sufficiency.

This is amid criticisms this week from the UN Special Rapporteur on Indigenous People, Professor James Anaya, who has described entrenched racism in Australia after his 12 day visit. Anaya has condemned the ongoing intervention into remote indigenous communities, commenced by the Howard government but controversially continued by the new Rudd administration. Although Anaya was congratulatory of Prime Minister Rudd on the 2008 apology to indigenous Australians that was reported around the world, the intervention continues the historical discrimination.

Terri Janke (pictured below left) has recently proposed a national approach in another context, that of indigenous and traditional knowledge. The conflict between conventional intellectual property rights and communal systems of traditional knowledge and cultural expression is well-documented, and calls for sui generis systems of protection have not led to substantial actions towards protection of traditional knowledge, in the Australian context or internationally. Ms Janke, an Indigenous arts lawyer, writer and consultant, has recently produced Beyond Guarding Ground: A Vision for a National Indigenous Cultural Authority. Her report calls for a national authority for indigenous culture, pursuant to Article 31 of the UN Declaration on the Rights of Indigenous Peoples (UN Dec):

Article 31

(1). Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.

(2). In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.

Emphasising the requirement of prior and informed consent, the report provides a model of the procedure for approval to use material, which includes applications to the national authority, the identification of rights-holders and a consideration of the propose use of the material, examination of the application by committee and then a procedures for the granting of consent and the monitoring of the use of the material according to the terms and conditions under which that consent is granted. The model both provides assistance to indigenous right-holders as well as establishes a system by which material can be revived culturally and socially in a secure and appropriate way.

Terri will be delivering a public lecture on the model as part of the 20th Anniversary Celebration of the Jabal Centre, Friday 2 October 2009, Australian National University (ANU).

Robynne Quiggan, indigenous lawyer and quoted in Janke's report, explains with respect to music: "Observing customary law means finding out who can speak for that music."

Giving respect to customary systems of governance within national frameworks ensures that those who can speak are able to speak.

Matawa First Nations Wisdom Left out of Legislative Process.

Matawa First Nations Chiefs have released a statement earlier this month, rejecting two proposed mining Bills from the province of Ontario.

Constance Lake Chief Arthur Moore, appearing before the Standing Committee on General Government this month, has raised concerns and disappointment with the process of the Bills. In particular, no public hearings were held in any First Nations Communities - Nibinamik; Constance Lake; Webequie, and Eabametoong. Chief Moore states, "To get a real sense of the North, you have to come to the communities and meet the people ... it is disrespectful to plan meetings that will affect people's lives - away from where they live." He calls for greater respect for communities and for the engagement of community wisdom in drafting such legislation: "The province must take the entire process more seriously, and draft stronger acts that include Matawa First Nations recommendations that were submitted by Chiefs, Counsellors, and Community Members."

The first, Bill 173: An Act to amend the Mining Act, makes several amendments, including the amendment of the purpose clause (Section 2) to include a statement that mining activities are encouraged in a manner consistent with the recognition and affirmation of existing Aboriginal and treaty rights. The new Section 14 also includes a new sub-section (2) giving the Minister discretion to consider any other factors appropriate, including: "... whether the lands meet the prescribed criteria as a site of Aboriginal cultural significance." Nevertheless, the Bill does not guarantee such factors and leaders have expressed concern about its implementation.

The second, Bill 191: The Act with respect to land use planning and protection in the Far North", has been rejected by Matawa First Nations as dividing the Matawa First Nations Tribal Council through the introduction of an arbitrary boundary in order to designate the area to which the Act applies. The boundary actually divides traditional territory in some cases. As a result, Matawa First Nation Chiefs are requesting the withdrawal of Bill 191 and have also asked for changes to Bill 173.

Documenting Knowledge: Traditions and Technologies

The role of documentation in the protection of traditional knowledge is more complex and contentious that perhaps it first appears.

Certainly, documentation projects do suggest the building of relationships within communities and with primary knowledge-holders, and they have been lauded as important mechanisms for capacity-building and for creating commercial value through intellectual property (IP) products. However, the very notion of IP as the primary mechanism by which to protect traditional knowledge is itself troublesome. At the most recent 14th session of the World Intellectual Property Organization (WIPO) Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), the International Institute for Environment and Development (IIED) emphasised the role of customary approaches as distinct from IP frameworks. Michel Pimbert, Director of IIED's Sustainable Agriculture, Biodiversity and Livelihoods Programme, says "Intellectual property standards are in conflict with flexibility and adaptability." Co-author of the IIED Report, "Protecting Traditional Knowledge from the Grassroots Up," Alejandro Argumedo, a plant scientist for the Quechua-Aymara Association for Nature and Sustainability Development (ANDES) in Peru, describes traditional management as somewhat contrary to the commercial principles of intellectual property, explaining "The communities developed their own agreement for sharing the benefits derived among themselves, based on traditional principles." Krystyna Swiderska, who coordinated the research for the IIED project and co-authored the report, will participate in a QMIPRI Herchel Smith Seminar on these issues in London, 5 October. If you would like more details and to reserve a place, please email QMIPRI.

My own work in this area certainly confirms similar hesitations and criticisms of intellectual property systems. What is of interest, however, is the potential to appropriate IP-related schemes in relevant and sustainable ways (including sustainability with respect to the knowledge itself). WIPO's documentation projects are indeed relevant to these questions and, although coming from an IP context, are not necessarily driven by IP agenda as such. For instance, at the 12th Session of the IGC presentations on various community documentation projects detailed some of these issues. Representatives spoke of the need to create programmes where the younger members of communities were engaging with elders as "stars" and as knowledge-holders, thus "replenishing the cup of knowledge" in ways that become more relevant and more contemporary for younger members (in terms of the technology) and are at the same time traditional. In other words, traditional mechanisms drive the application of the technology, not the other way around. One presenter noted that many government initiatives focus on the youth, without concentrating on elders. Documentation becomes a project where the elders are the focus, giving the younger members something to emulate rather than abandon.

In this respect, the WIPO assistance for documentation is of great interest. The filming of knowledge is a significant medium, dynamic and interactive and described as some as closest to the traditional transfer of knowledge (as distinct from recording through text). It is also a contemporary and relevant technology for younger generations.

Earlier this month, WIPO launched, as part of the Creative Heritage Project, a further documentation project with the Maasai of Kenya, working with the Indigenous Movement for Peace Advancement and Conflict Transformation (IMPACT) and Kenya's National Museums. In addition to assistance with technology and equipment, the project includes IP training so that communities understand the materials being created in an IP-context, as well as the knowledge being sustained through traditional mechanisms supported by technology. Whether or not IP might be relevant or even effective as protection for TK, nevertheless it is essential for communities to understand what might be created in a wider legal context when materials are documented and circulated. Knowledge about IP therefore becomes a form of protection in itself, ensuring that the design of projects is achieved in such a way so as to avoid rendering knowledge vulnerable to expropriation through the very mechanism of IP itself. Training is undertaken by WIPO together with the American Folklife Library of Congress and the Center for Documentary Studies at Duke University (CDS).

Maasai Cultural Heritage project co-ordinator, Kolol Ole Tingoi, describes some of the same issues for documentation in his comments on the project, explaining: "This is a milestone to the community. As we preserve our own cultural traditions, we will also manage our intellectual property interests." Tingoi, together with Anne Tomme and Kiprop Lagrat of the National Museums of Kenya, has undertaken a 3-month training programme with WIPO in partnership with American Folklife Library of Congress and CDS. Wend Wendland of WIPO told Reuters, "It gives them some control. Very often it is the recording which is misappropriated."

The value of the project is not in terms of creating IP as such, but in terms of managing IP as an inevitability of any documentation initiative. Importantly, the documentation is managed within the community and is not undertaken by an external reesearcher with no connection to the community. The very action of the documentation may itself be undertaken in such a way that it is itself traditional, sustaining the mechanism of tradition as a means by which to transmit knowledge, and realising and indeed demonstrating that knowledge immediately within the community and to the benefit of the community. Documentation, thus becomes a technology of the traditional.

Agricultural Displacement and Community Response - Paraguay

Paraguay is one of the world's largest producer's of soy, with soy amounting to 38% of the country's total agricultural output. But with the expansion of soy farming in Paraguay has come the displacement of indigenous and campesino families from their land, mostly migrating into Greater Asuncion. Claudio Rolon, of the National Secretariat on Children and Adolescents (SNNA), explains, "indigenous and campesino (peasant) families are abandoning their land, suffocated by the encroachment of soy crops and the use of toxic agrochemicals."

When President Fernando Lugo assumed office in August last year, the SNNA launched a programme to assist such indigenous squatter settlements, and Cerro Poty is one such settlement that has come within the programme. Established in the late 1990s, Cerro Poty is a community of Guarani families from Canendiyu.

The programme is notable for its efforts to identify traditional organisational structures, including leaders, and to introduce efforts to assist communities that build upon cultural and social activities as well as economic. In particular, the programme has supported local industry in crafts and skills specific to the Guarani. Adriana Closs, SNNA communications director, says "The community is recovering its craft-making skills, and now we are taking the next step: helping them sell their products." Significantly, the programme facilitates traditional crafts and productivity as a source of community cohesion and sustainability: "The aim is to support the work of craftspeople, building on the woodcarving talent and skills of the Guarani."

Indigenous Agricultural Knowledge in Managing Climate Change

Indigenous and traditional knowledge is being recognised for its critical role in managing climate change, and more recently mainstream attention to traditional agricultural knowledge sees increased respect for sustainable and ancient methods.

In a project supported by the Kenneth Lee Foundation and Oxfam, farmers in Bolivia's Amazon are turning to traditional irrigation systems in more sustainable agriculture. The system relies on building "camellones" (pictured at left and below right) which are platforms of raised seedbed, constructed above flood level and surrounded by canals. The result is a sustainble use of flood waters without the loss of seeds and crops. The canals capture the water during floods and provide for irrigation during dry seasons.

The system dates back to 1000BC to AD1400 when it was used by pre-Columbian cultures in Beni. The Director of the Kenneth Lee Foundation, Oscar Saavedra, says "The floods were the basis for development and the flourishing of a great civilisation." The region has experienced some of the worst floods in 50 years, largely attributed to climate change. According to the BBC, about 400 families have now enlisted in the camellones project, mostly growing maize, cassava and rice. Although the uptake of the method is still described as experimental, confidence in the traditional methods is growing. Dunia Rivero Mayaco, a mother of 3 from Puerto Almacen near Trinidad, is reported, "I had planted rice, maize, bananas and onions on my plot of land. But the water left nothing ... So that's why I am working here on the camellones." (At right: Such traditional irrigation systems may also lead to less need for clearing for farmland)

In India, traditional indigenous engineering is being implemented in order to establish sustainable systems of water management in modern agriculture.

Although much of the knowledge was transmitted through oral means and practical application, some documentation of the legal and administrative aspects of the knowledge is in fact held in the Treatise of administration, by Kautilya, adviser and minister of Indian emperor Chandragupta Maurya, 321-297 BC. Rajendra Singh (pictured below left) explains, "In Indian tradition, the knowledge was transmitted through practical work under the direction of respected elders and gurus. Thus the people engaged in practical work were really the pupils of the indigenous knowledge system ... The prosperous pupils provided help to the poorest who were working for water conservation, and the state provided only the land. It was a pupil-driven decentralised water management, which is another name for indigenous water management."

Singh attributes conservation of forest, water and other natural resources to "eco-friendly cultural traditions", dharma/parampara, and explains the conflict between this approach and the colonial notion of nature as a resource to be exploited. Singh calls for a revival of indigenous and traditional systems to restore the balance betwen nature and industry in Indian society.

One such tradition to be revived is that of Johad. Johads are concave mud barriers built across slopes to catch rainwater run-off. On all but one side there is a high embankment, the 4th side being open in order for water to enter. Water collected during monsoons penetrates the sub-soil and restores groundwater levels, available later through the use of wells and other means for irrigation of crops and water for animals. Singh explains, "When I went to Bheekampura in 1985, this unique traditional water management system was still alive in the collective memory of the people but remained alienated from the global environment."

Non-governmental organisation Tarun Bharat Sangh (TBS) began to revive the tradition of Johad. Johads started to be built in and by the communities themselves: "No engineer was called for consultation; we were guided entirely by the traditional wisdom of the people who have mantained the ecological balance for generations." As Singh says, the wisdom has been "perfected by tradition."

Logging in Peruvian Reserve

Recent reports suggest there is proof of illegal logging for mahogany being undertaken in the Murunahua Reserve for uncontacted indigenous group, the Murunahua Indians.

Chris Fagan, Conservation Scientist with Round River Conservation Studies (Round River), has published photographs that appear to show logging camps within the Murunahua Reserve, in the Peruvian Amazon. Fagan is reported, "All four camps looked to be active. Illegal logging in protected areas is a serious threat to the indigenous people who live in the region. Not only are these ‘uncontacted’ people extremely vulnerable to diseases brought by outsiders, but there is a history of violent conflict between them and loggers."

As well as the threat to the land and the communities of indigenous peoples in the area, the entry of loggers into the region brings with it the risk of disease with even physical extinction. An outbreak of Swine Flu has been reported in the remote Matsigenka tribe, living beside the Urubamba river in the Peruvian Amazon. The virus is thought to have been carried by boat passengers. Dr Stafford Lightman, professor of medicine at Bristol, is reported as explaining "This could be devastating, infecting whole communities simultaneously, leaving no-one to care for the sick or bring in and prepare food."

Peru's institution for Andean, Amazonian and Afro-Peruvian Peoples, INDEPA, has announced it will investigate the claims of illegal logging.