Harry Jonas is creating legal instruments called Bio-cultural Community Protocols which are giving indigenous communities control over their natural resources, preserving bio-cultural diversity, and changing the landscape of environmental law. Harry is ensuring that indigenous rights are formally acknowledged globally through these protocols and is building an international grassroots network of citizen organizations and legal professionals to ensure the effective adoption and implementation of BCPs.
La idea nueva
Convinced that indigenous peoples and rural communities have long possessed customary laws that establish clear rules for how they manage and share their natural resources and traditional knowledge, Harry is partnering with these communities to help recover, organize, and “translate” these customary laws into their formal equivalent. Dubbed Bio-cultural Community Protocols or BCPs, these more formal versions of customary law then serve as innovative tools to articulate the concerns of communities in a language and a format that is comprehensible to lawmakers and other stakeholders, and thus, commands greater attention, transparency, and accountability in all legal processes. In other words, armed with BCPs, communities now have a concrete way to assert their rights when engaged in formal dialogue with the government or private and research sectors about their natural resources and/or traditional knowledge.
Not only is this placing natural resources back in the hands of communities, but through his BCPs and advocacy work at the community, national, and international level to ensure the widespread recognition of these new legal instruments, Harry is effectively creating a new way of looking at community justice and environmental law altogether. He is transforming the way the legal profession thinks about empowering communities, and spearheading a new field of public interest environmental law that places community rights at the heart of the legislation process rather than at the periphery.
Indigenous peoples and rural communities are increasingly subject to the expropriation of their natural resources and traditional knowledge. Unintentionally, the global momentum around biodiversity conservation has often been the catalysis for this. Adopted in 1992, the United Nations Convention on Biological Diversity identifies three goals: 1) conservation 2) sustainable use of biodiversity, and 3) the fair and equitable sharing of benefits arising from the use of biodiversity and biodiversity-related knowledge. The details of exactly how countries that are party to the Convention will execute this third objective, also known as Access and Benefit-Sharing (ABS), are still currently being negotiated. However, it is clear that its aim is to affirm the rights of governments and their peoples over the genetic resources and associated traditional knowledge in their lands. It requires their consent be given prior to any access to these resources, and that any benefits arising from the use of these resources be shared.
Therefore, ABS seeks to ensure the conservation and sustainable use of biodiversity while affirming the rights of all parties affected. However, the reality on the ground is that government has often taken on the role of parens patria, making decisions on behalf of communities under the pretext that communities are unorganized and do not have effective decision-making structures. This has wreaked havoc on communities’ livelihoods through the dispossession of their lands and their removal from the very ecosystems that are often the greatest and most reliable service providers, ensuring food, shelter, and healthcare in situations where it has been challenging for the government to do so. Furthermore, this usurpment of local control over natural resources and the subsequent erosion of communities’ cultures of conservation has actually led to a further loss of biodiversity, says Harry, who, like many other leading environmentalists, firmly believes that conservation and sustainable use of biodiversity are best ensured when natural resource management is firmly placed in the hands of the community. Lacking this understanding of the integral role communities play in ecosystem management, combined with other factors, governments’ control of these natural resources has been marked by corruption and poor management. At times governments, alongside corporations, have dictated to agrarian and pastoral communities which types of crops and animals to breed based on their own political and financial interests. These political and economic efforts, often done in the name of economic development and the greater national interest, are many times misaligned with local dietary needs and local production systems, and are severely disadvantageous to the livelihoods of small-scale farmers and pastoral communities.
In the rare occasions when communities have been able to assert control over their natural resources, the result has not been much better. One of the first landmark cases that entitled a community beneficiation from their resources involved the San community who entered into an ABS agreement around the commercial use of traditional knowledge of the Hoodia plant. Trained as a lawyer, Harry found himself negotiating on behalf of the San to ensure that the community’s traditional knowledge was not misappropriated, and to create an agreement which would enable profits from the use of the plant to flow back into the community. For the first time in Africa, a landmark case had been won which forced corporations and governments to guarantee profit flow back into communities as well as guarantee the formal recognition of local ownership of indigenous knowledge. The ABS agreement was put in place and the San were to benefit from pharmaceutical companies’ use of the plant for commercial medicinal purposes. However, there were no protocols in place to map out how resources would be allocated. As a result, the ABS agreement led to friction in the San community and it became impossible to effectively implement. This case was a theoretical victory in community rights, but a practical nightmare to implement.
This breakdown revealed to Harry that the problem at hand is two-fold. Not only are indigenous and rural communities struggling to assert their rights in the creation of ABS agreements with governments and corporations, but in some cases they lack equally transparent protocols to effectively deal with the new, often financial resources that enter their communities as a result of a successful ABS agreement.
Harry co-founded Natural Justice to facilitate the creation of BCPs in indigenous and rural communities as a tool to “translate” customary laws relating to the use of natural resources and traditional knowledge into more formal language that is comprehensible to lawmakers, and thus forces a higher level of transparency and accountability in ABS negotiations with governments and corporations. He is also working on the national and international levels to ensure BCPs move from only sometimes being used when ABS agreements are being negotiated, to them becoming codified in national law, and explicit in the UN Convention on Biodiversity, and thus, always present in these negotiations.
At the heart of Harry’s strategy is the conviction that much of the necessary knowledge that needs to be formalized into BCPs already lies within the community in the form of customary laws. At most, some cases may require a bit of digging up, as well as expanding to include the issue of how to deal with new, likely financial resources entering communities after a successful ABS agreement. So Harry convenes multi-stakeholder workshops to provide a platform where oral traditions and unwritten norms around resource management are distilled and documented by community-based organizations (CBOs) and lawyers who can assist in drawing up the BCPs. This encourages widespread community buy-in by facilitating culturally-rooted, participatory decision-making processes within communities with the aim of asserting their rights to their communally managed lands and traditional knowledge. It also thoroughly equips the CBOs and lawyers with the necessary information to enter into discussions with governments and corporations on the communities’ behalf and formulate fair ABS agreements.
On the national level, while Harry often engages with government in the role of negotiator on behalf of the communities, he has deliberately and skillfully also positioned himself to serve in the role of advisor to government. When countries sign onto international conventions like that on biodiversity, the next step is to create domestic laws that make the goals of the convention a reality in their respective countries. So as governments attempt to create the laws to implement the ABS objective, Harry has signed on to serve as a legal advisor. He is able to serve in this role due to the almost exclusive insight he has on creating a tool, BCPs, which achieves the precise goal of ABS—his understanding as a lawyer as to how laws are made and implemented. Harry is currently advising the Governments of South Africa (Department of Science and Technology and the Department of Water and Environmental Affairs) and India (National Biodiversity Authority) to ensure domestic ABS laws recognize customary laws and traditional authorities as well as support community management of natural resources, and that any ABS deals that are brokered are fair and equitable. Working as partners to government no doubt increases the likelihood that BCPs will be absorbed into national law as a legitimate tool to accurately implement the ABS stipulation of the Convention on Biodiversity. It also allows Harry to provide communities with even more insight on the processes and legislation that can benefit them. Harry’s approach is particularly relevant and essential in rural communities, which are often far removed from the centers of legislation and struggle to keep abreast of the latest policies.
Another strategy in increasing the legitimization of BCPs is simply facilitating their spread, including across borders and onto the international level. To do this, Harry is actively involved in training CBOs to craft BCPs directly, as well as in developing materials that can facilitate this training without his presence. Through a two-year “Training-of-Trainers Program” currently being launched, for example, he works closely with influential CBOs across Africa to develop a network of well-capacitated, key organizations in different parts of the continent, who in turn will transfer these skills to other CBOs in their regions. Harry has also begun to work with networks of indigenous peoples, pastoralists, farmers, and traditional healers in Asia and Latin America, and many of these actors have already begun to support other members of these networks in the process of developing BCPs.
Harry has chosen South Africa, Kenya, India, and Malaysia in which to pilot his work, specifically, because he believes these strategic countries have the greatest potential to influence other countries in their regions. Within these countries, he works closely with strategically identified indigenous, agrarian and pastoralist communities to develop BCPs that exemplify community control and decision-making processes relating to their resources. Harry then highlights these examples as best practices to governments in his capacity as legal advisor to African countries in their development of domestic ABS laws, as well as in the countries’ ongoing negotiations toward an explicit international regime on ABS to be included in the Convention on Biodiversity.
On an even larger scale, Harry has developed a methodology for documenting and sharing best practices that is strategically designed to help rapidly spread his approach to environmental and community rights. He is equipping teams of lawyers with tools and resources so that they are able to effectively help communities create BCPs, link legislation to empowering communities, and ensure the implementation of BCPs in ABS agreements. Harry is designing a web portal which will have participatory video, case studies, best practices, relevant documents, and an online forum to serve as a BCP resource center. He plans to create a database of public interest lawyers to enforce the protocols. Essentially, Natural Justice, through its BCP model and by developing the corresponding infrastructure, is creating a new landscape for environmental law, one rooted it what Harry terms “community-led lawyering.” For the first time in South Africa, and globally, Harry is proving that it is possible for communities to develop legal instruments based on their customary laws and ensure that lawmakers and courts recognize these instruments. He is creating perhaps the first truly effective interface between community lawmaking processes and national and international law.
In fact, due to his strong efforts to facilitate the creation of BCPs on the ground and codify them in national law, combined with his role as lobbyist and advisor to UN working groups and intergovernmental bodies, Harry reports a high likelihood that BCPs will officially become part of the international regime on ABS, which is currently being negotiated and which 194 countries will be party to. If and when this occurs, the use and impact of BCPs will increase exponentially around the world.
The impact of BCPs, however, can already be observed today. With them as tools, Natural Justice is working with rural and farming communities to give them rights over their traditional knowledge with respect to the outside appropriation of their flora and fauna, animal husbandry, and crop modification. In India, for example, Natural Justice has successfully assisted a farming community assert their rights over rice production on their land by developing BCPs, and now the Indian government must consult with farmers before bringing new rice varieties into their regions. BCPs also strengthened an ABS agreement involving the pastoral community of the Maasai. Maasai herders in Kenya breed a certain type of sheep which is perfectly suited for the East African terrain. New Zealand scientists who have expressed interest in replicating this specific breed now have to compensate the Maasai for the sharing of their traditional knowledge based on the BCPs of the Maasai community. In South Africa, Natural Justice is working with a group of traditional healers to ensure that the land where they cultivate indigenous plants is conserved, their traditional knowledge is documented and protected, and plants used for medicinal purposes are preserved. Communities are now benefiting from best practice cases such as these, and gaining control over their animal, crop and plant genetic diversity through the adoption of BCPs in ABS agreements.
Harry originally envisioned BCPs as a tool to reverse a history marked by the dispossession of community lands in the false name of biodiversity conservation, as well as a way for communities to determine how new financial resources would be allocated when they are compensated by a third party for access to their traditional knowledge. However he soon realized that the scope for impact was much larger. Harry’s long-term vision is for BCPs to be recognized as legal instruments in every multilateral environmental agreement and domestic environmental law that affects community management of resources.
An environmentalist and social entrepreneur, Harry has a long history in the field of environmental policy and advocacy. As a politics student interested in environmental policy, he spent a year at Georgetown University in Washington D.C., where he first encountered the links between social and environmental movements. He interned for Defenders of Wildlife during the reauthorization of the Endangered Species Act and saw the dangers associated with power politics and the hidden might of Capitol Hill lobbyists. Harry continued his studies and earned both a J.D. and MA degree in international environmental law, and worked with numerous legal COs. Upon qualification, he helped established Protimos, a start-up CO aiming to provide legal assistance to communities to uphold their environmental rights. He then opened an office for Protimos in Cape Town. Harry’s deep interest in grassroots social dynamics and political change coupled with his critique of the international legal (UN) framework led to the birth of Natural Justice.