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Forest Dwellers - issues
Forest Dwellers Presentation to the PMF on the strategic issues
of the Forests of Kenya
July 2008
Many Kenyan indigenous peoples and rural communities especially
forest dwellers, have experienced discrimination and rights
violations through national development policy incoherence. The
incoherence has led to policies that have undermined traditional
livelihoods hence aggravating poverty.
State decisions on land use and natural resources management
requires Free Prior and Informed Consent of indigenous peoples and
communities, whether or not the current legal system formally
recognises aboriginal title and traditional tenure of indigenous
people.
African governments need to give greater attention and dialogue to
sustainable non-agricultural traditional economies that rely on
transhumant pastoralism, hunting, gathering and fishing, all of
which have a low carbon foot print and cause less soil degradation
and deforestation than poor agricultural practices.
The Traditional Ecological Knowledge (TEK) of indigenous peoples
and local communities is a vast, complex and fragile resource for
Kenya which is not well integrated into state planning or formal
education; Kenya should encourage greater integration of
programming between different agencies dealing with traditional
knowledge of biodiversity, economic development, social
development and human rights;
Biological diversity and cultural diversity are interdependent and
need to be valued and considered together in state planning.
The Kenya and African Governments needs to promote public
awareness and involvement in the implementation of the Convention
on Biological Diversity, notably articles 8J and 10C, and the
Programme of Work on Protected Areas; ILO 169, the articles in the
Universal Declaration of Human Rights, African Charters on Human
and People’s Rights and the UN Declaration on the Rights of
Indigenous Peoples.
Deforestation is a crisis for Kenya and the Globe in general with
a direct impact on local livelihoods, global climate situation and
security. Proposed solutions to climate change at a National level
must take into consideration elements that pose a serious threat
to indigenous land tenure and human rights.
The government must develop a regulatory and standard framework
that will protect the integrity of our ecosystems, bring the
global climate benefits directly to the people and introduce
punitive measures to intermediaries who abuse such a system.
Specific issues with regard to Forest Policy and the Forest Act
2005
While it is claimed that the Forest Act 2005 recognizes the rights
of local communities, the Act has very many shortcomings and the
recognition is within narrow remit:
1. It does not recognize those
forest dwelling communities who have always lived and resided
inside forests for millenia such as the Yiakku, Ogiek, Sengwer.
2. By failing to recognise the existence of forest dwellers, their
lives, their human rights and livelihoods are at a very high risk.
Implications of the Forest Act 2005 on Kenya’s UN commitments
on biodiversity
The Forest Act 2005 in its current form violates internationally
recognised biodiversity commitments on indigenous and local
communities and their rights sustainance and protection of forest
biodiversity through indigenous knowledge.
In general, to protect forests and promote biological and cultural
diversity, the government should prohibit “any actions that seek
to exclude Indigenous peoples and forest dependent communities
from ‘conservation’ areas”.
UN commitments call upon governments to:
- “Protect and encourage customary use of biological resources”
and ”knowledge, innovations and practices of indigenous and local
communities, embodying… the conservation and sustainable use of
biological diversity and promote their wider application with the
approval and involvement ofthese communities also in respect to
the protected areas. 1
- Ensure that ecosystem’s biodiversity “management should be
decentralized to the lowest appropriate level” to be ‘owned’ by
local people and locally accountable (local community being part
of the ecosystem). 2
-”Enable indigenous and local communities to develop and implement
adaptive community-management systems to conserve and sustainably
use forest biological diversity” and “to resolve land tenure and
resource rights and responsibility” by “community-based approaches…
integrating traditional forest-related knowledge and
benefit-sharing”. 3
- “Ensure full and informed participation of indigenous people,
local communities,… in the decision-making” on “conservation and
management of forest biodiversity” and also “on valuation of
biodiversity”,.through use of “traditional knowledge… for the
establishment and management of forest protected areas”. 4
- Ensure ”transfer of forest management and user rights…
accompanied by adequate security of tenure … Understanding the
impact of forest tenure is essential if governments are to…
promote sustainable use and stakeholder participation.” ”Improving
local rights and access to forest resources are prerequisites to
sustainable forest management”. 5
- Ensure “active participation of indigenous peoples, women and
other forest-dependent” so that “local communities,… should be
involved in a transparent and participatory way in forest
decision-making… that affects them” and to use local
ecosystem-adapted “traditional forest-related knowledge and
practices in sustainable forest management” 6.
- “Establish mechanisms for the equitable sharing of both costs
and benefits arising from the establishment and management of
protected areas” and ”ensure that any resettlement of indigenous
communities as a consequence of the establishment or management of
protected areas will only take place with their prior informed
consent”. 7
These are basic international recommendations and commitments of
both biodiversity protection as well as of human rights:
- “Conservation… ought not to cause indigenous and local
communities to be removed from lands … traditionally occupied or
used by them, by force… Where they consent to removal … they
should be compensated and given assurance of the possibility to
return” according to ”mutually agreed terms”. 8
- “Indigenous peoples shall not be forcibly removed from their
lands or territories. No relocation shall take place without the
free, prior and informed consent of the indigenous peoples
concerned”. “Indigenous peoples have the right to the conservation
and protection of the environment” “recognizing that respect for
indigenous knowledge, cultures and traditional practices
contributes to sustainable… management of the environment”. 9
- Countries shall ”ensure that the establishment of protected
areas on the traditional lands… of indigenous and local
communities is done with the approval” and ”prior informed consent”
of the communities and “recognize land tenure of indigenous and
local communities and pursue the fair and equitable resolution of
land claims”. 10
- “If we are… to significantly reduce the loss of biodiversity,…
we must fully recognize and value indigenous and local communities
as custodians of the Earth’s biodiversity”. “The conservation,
sustainable use and equitable sharing of the benefits that nature
provides - the three objectives of the Convention on Biological
Diversity” ”are the cornerstones of indigenous societies” and
their ”trans-generational obligations”. Thus the UN Declaration on
the Rights of Indigenous Peoples “is of great significance… to the
implementation…. of the Convention” on Biological Diversity, which
is fully “in line with article 26 of the Declaration11 which says
that:
“Indigenous peoples have the right to the lands, territories and
resources which they have traditionally owned, occupied or
otherwise used or acquired” and right to “use, develop and control
the lands, territories and resources that they possess by…
traditional occupation or use”. “States shall give legal
recognition and protection to these lands, territories and
resources… with due respect to the customs, traditions and land
tenure systems of the indigenous peoples”12.
Climate change Carbon Trade and the Forest Act 2005
Loss and degradation of natural forests and biodiversity have
followed in Kenya and elsewhere from the expanding commercial
takeover of land, forest and water for monoculture plantations,
commercial agribusiness, mining, logging, extractive industries,
dams, urban settlements, roads, tourism, etc.
- “Impacts on the natural functions of our planet have never been
as destructive as in the last 50 years. It is estimated that over
the past hundred years humans have increased species extinction
rates by as much as 1000 times the typical background rates over
Earth’s history – as inferred from the fossil record over Earth’s
history.” 13
- “Biodiversity decline and loss of ecosystem services continue to
be major global threats” for “life on Earth”. “These unprecedented
changes are due to human activities” of “globalized,
industrialized… world, driven by expanding flows of goods,
services, capital, people”14.
The growing commercial flows for industries and urban centres of
consumption are thus the major cause of the loss of natural
heritage, biodiversity, wildlife and of displacement of natural
forest regeneration and indigenous forest communities.
“There is booming demand for forest products but little benefit
accrues to forest communities”. ”Joint Forest Management in its
current form is an extremely weak tenurial arrangement, where most
powers are vested with the forest department” and its officers,
which are “both the regulators and competitors in certain markets”.
The loss of biodiversity… affects all segments of society and “the
poor will suffer the most” - especially as “more than 1.6 billion
people depend on forests and forest products for their livelihood”.
“If a person has the right to live freely but does not have” safe
access to natural sources of life, the “person… has no human
rights at all” and now “the environmental degradation and
biodiversity loss that we have caused, and continue to cause” will
most “limit the ability of poor households, who most directly rely
on ecosystem services”. 15
The issue of Forest related historical injustices
Forest Act 2005 avoids to mention of the “historical injustice”
against sustainable indigenous forest life, as this is what needs
to be done to protect natural heritage according to The World
Conservation Union (IUCN), also regarding the protected forests :
To “address… historical injustices caused through the
establishment of protected areas”, countries should “establish
participatory mechanisms for the restitution of indigenous
people’s lands, territories and resources that have been taken
over by protected areas without their.. .consent”16.
Increased discrimination – more environmental degradation
Forest Act 2005 increases in legislation the discrimination
against equal fundamental rights of people by any discriminatory
“restrictions imposed on the right to access and limitations to
commercial exploitation by forest dwellers”, yet industry and
other stakeholders can be afforded legal mandates that far exceed
those of forest dwellers.
“Causes of deforestation and forest degradation… include land use
(urban development), road building, mining, building of hydraulic
facilities (construction of dams), extraction of oil, gas and
other mineral resources, cattle grazing, water erosion”, etc. “The
loss of biodiversity caused by land conversion of a natural forest
is a cost carried by society at large, over a long term, whereas
the… gains often benefit only few… at a short term.”
”Deforestation lies at the core of the environmental problems… it
is a significant source of greenhouse gases, is a major driver of
biodiversity loss and is conducive to land degradation”.
Therefore the Government of Kenya should:
- “Address the direct and underlying ‘drivers’ of deforestation
and destruction of biodiversity… by reducing demand for
agricultural and forest products and energy; removing trade and
investment liberalisation rules that fuel deforestation”.
- “Ensure that all forest protection programs are based upon and
uphold the rights of Indigenous Peoples (as laid down in the UN
Declaration on the Rights of Indigenous Peoples), women and local
communities, by prohibiting any actions that seek to exclude
Indigenous peoples and forest dependent communities from
‘conservation’ areas.”
- Address “outstanding land and tenure questions and the free and
prior informed consent of affected communities… as a prerequisite,
before the implementation of… programs” on conservation and
“promote community-based forest management and reforestation,
natural regeneration and ecosystem restoration”.
Forest Act 2005 abates discrimination of fundamental rights
The implementation of the Forest Act 2005 does not stop unjust
discrimination and eviction of forest dwelling communities.
“Policies and legislation which legally prohibit or criminalize
traditional activities” or are “severing or restricting the
relationship indigenous and local communities have with
traditional lands”, lead to “loss of ancestral lands” and “loss of
biodiversity knowledge”.
“Many protected areas were established on lands held in common
property by communities”, “without due regard for the… communities
who live within”. “Protected areas legislation often made it an
offence for indigenous and local communities to use their
traditional territory and the resources”17.
Thus such colonially inherited discriminative attitudes and laws,
which criminalise sustainable indigenous/precolonial occupation
and holding of land as ‘unauthorised’ in terms of modern legal
documents are deeply problematic.
The Forest Act 2005 recognises traditional access rights but not
the dweller rights. Dwellers have a right to continue to live in
and use the forest and land in their traditional form.
Indigenous communities have a right to continue to live in and use
the territories traditionally occupied and used by them. This is
what countries are internationally committed and urged to do to
eliminate discrimination of fundamental rights and to sustain the
biodiversity and ecosystems.
“In no case may a people be deprived of its own means of
subsistence”, which should be ensured also by Kenya “to the
maximum of its available resources”, “by all appropriate means,
including particularly the adoption of legislative measures”.
Kenya should “guarantee that the rights… will be exercised without
discrimination of any kind” also regarding “the right of everyone
to an adequate standard of living…, including adequate food… and
housing”.
Indigenous peoples have “right… to be secure in the enjoyment of
their own means of subsistence” so that they, when “deprived of
their means of subsistence… are entitled to just and fair redress”
and so that :
- Even when done for “ostensibly environmental purposes”, “forced
evictions constitute gross violations of …human rights to adequate
housing, food, water, health, education, work, security of the
person, security of the home”, and ”affected… often include…,.
indigenous peoples”. “Right to full and prior informed consent…
must be guaranteed”. 18
- “States are under a particular obligation to protect against the
displacement of indigenous peoples… with a special dependency on
and attachment to their lands” and to ensure.”the right to…
voluntary, dignified and safe return” and “when restitution is not
possible,… compensation or just reparation”19.
- “Indigenous peoples have the right to the lands, territories and
resources which they have traditionally owned, occupied or
otherwise used or acquired”, “right to the conservation and
protection of the environment and the productive capacity of their
lands or territories” and “to be secure in the enjoyment of their
own means of subsistence”, “recognizing that respect for
indigenous knowledge, cultures and traditional practices
contributes to sustainable… management of the environment”20.
- “Protection from forced evictions… and security of tenure”
should be ensured, “conferring legal (21, 22) security of tenure
upon those … who do not have formal titles to home and land”.
“Given the scale of the crisis of homelessness and landlessness…,
and the undeniable link between” them, governments should ensure
“the right to land as a human right”. Where land has been taken,
the evicted should be compensated with land commensurate in
quality, size and value” and “access to timely remedy… return,
restitution, resettlement… compensation”23.
Livelihoods and Land use change (protected areas)
“The Forest Act 2005 should recognize land tenure of indigenous
and local communities and pursue the fair and equitable resolution
of land claims” and ”ensure that the establishment of protected
areas on the traditional lands… of indigenous and local
communities is done with the approval” and ”prior informed consent”
of the communities24.
“The unprecedented loss of biodiversity, compounded by climate
change in an increasingly urbanized world, is the most important
planetary challenge facing mankind. Never … has anthropogenic
change to our planet’s natural functioning been so destructive as
it has been over the last half-century, resulting in an
unparalleled loss of biodiversity on Earth. The current rates of
biodiversity loss are estimated to be up to 100 times the natural
rate. This unprecedented biodiversity loss is being compounded by
the negative impact of climate change… More than 80% of
biodiversity is found in tropical forests. However, every minute,
20 hectares of forests are disappearing… Globally, at least 4.4
million trees are cut down every day … by the end of this century,
two thirds of the Earth’s remaining species are likely to be
extinct.” 25
“A biologically diverse tropical forest typically holds 50 times
more carbon per unit of area than a monoculture plantation
replacing it”. Thus “to promote biodiversity in forest management
has a large potential to mitigate climate change26”.
Countries should therefore:
- Ensure that “actions for reducing emissions from deforestation
and forest degradation in developing countries do not run counter
to the objectives of the CBD … on forest biodiversity; but …
provide benefits for forest biodiversity,… to indigenous and local
communities, and involve biodiversity experts including holders of
traditional forest-related knowledge, and respect the rights of
indigenous and local communities”.
- “Promote forest restoration and minimize deforestation and
forest degradation, as a major contribution to reduce biodiversity
loss and greenhouse gas emissions” (and “increase awareness among
consumers … and take measure to address the impacts of their
unsustainable consumption patterns on forest biodiversity”27.
-”Promote the conservation and sustainable use of biodiversity,
taking into account the value of biodiversity and the ecosystem
services it generates, and the contribution of indigenous and
local communities in maintaining it”28.
- Respect “the unique value of biodiversity related traditional
knowledge, innovations and practices of indigenous and local
communities, especially those of women, in contributing to the
understanding and evaluation of impacts of climate change” and
“document, analyse and apply” these “with the full and effective
participation [and prior informed consent] of indigenous and local
communities29″.
- Respect traditional knowledge to be “valued equally with and
complementary to western scientific knowledge, and that this is
fundamental in order to promote full respect for the cultural and
intellectual heritage of indigenous and local communities relevant
to the conservation and sustainable use of biological
diversity”30.
- “Promote sustainable management of forests, including the
management of non-timber forest products, and… of, ecosystem
services” through “the fair and equitable sharing of the benefits
arising out of the use of genetic resources and associated
traditional knowledge” with “full and effective participation of
indigenous and local communities … also noting the United Nations
Declaration on the Rights of Indigenous Peoples31″
- “Respect… indigenous and local communities’ equal but different
knowledge systems, decision-making processes and timeframes, their
diversity, their distinctive spiritual and material relationship
with … lands and waters traditionally occupied or used by them”
and other “cultural property of indigenous and local communities
relevant for biological diversity, conservation and sustainable
use32″.
- “Support and assist indigenous and local communities to retain
control and ownership of their traditional knowledge, innovations
and practices” and the related “balance of collective and
individual rights and obligations” and “respect the integrity,
morality and spirituality of the cultures… of indigenous and local
communities and avoid the imposition of external concepts,
standards and value judgements in inter-cultural dialogue.33″
- “Protect and enhance the relationships of affected indigenous
and local communities with the environment” giving them “fair and
equitable benefits for their contribution to any activities/interactions
related to biodiversity and associated traditional knowledge”,
ensuring “access by indigenous and local communities to lands and
waters traditionally occupied or used by” them “with the
opportunity to practice traditional knowledge on those lands and
waters.34″
- ”Recognize traditional land tenure of indigenous and local
communities” and ”access to traditional lands and waters” as
”fundamental to the retention of traditional knowledge and
associated biological diversity”. “Indigenous and local
communities should determine for themselves, the nature and scope
of their respective resource rights regime according to their
customary laws” where often “traditional resource rights… are
collective in nature” and “crucial for the sustainable use of
biological diversity and cultural survival”35.
- Recognize “the holistic interconnectedness of humanity with
ecosystems” and indigenous communities “as traditional guardians
and custodians of these ecosystems through the maintenance of
their cultures, spiritual beliefs and customary practices…
including linguistic diversity… as keys to the preservation of
biological diversity”36.
- Provide for “Indigenous and local communities… the opportunity
to actively participate in research that affects them or which
makes use of their traditional knowledge…, and decide on their own
research initiatives and priorities, conduct their own research”.
“All decisions regarding activities/interactions related to
biological diversity… impacting on… lands and waters traditionally
occupied or used by indigenous and local communities, ought to… be
made at the lowest possible level… to ensure… effective
participation and the recognition of indigenous and local
community institutions, governance and management systems37.”
Reference Sources
1. Statement by Ahmed Djoghlaf, CBD Executive Secretary on
“Climate Change and Biodiversity or the Unprecedented Planetary
Environmental Challenge Facing Mankind” delivered at the G8
Dialogue series, Tokyo, 16 June 2008:
http://www.cbd.int/doc/speech/2008/sp-2008-06-16-ias-en.pdf
2. CBD Secretariat Press Release “Biodiversity: A Missing Link for
Mitigating Climate Change -World Environment Day celebrated in
Montreal” on 6 June 2008:
http://www.cbd.int/doc/press/2008/pr-2008-06-06-wed-en.pdf
3. DRAFT DECISIONS FOR THE NINTH MEETING OF THE CONFERENCE OF THE
PARTIES TO THE CONVENTION ON BIOLOGICAL DIVERSITY” May 2008
http://www.cbd.int/cop9/doc/
4. Forest Act 2005 (Kenya)
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