Forest Dwellers Presentation to the
PM on the strategic issues of the Forests of Kenya

Many indigenous peoples and rural communities (in Kenya) especially forest dwellers have experienced discrimination and rights violations through national development policy incoherence. The incoherence has lead 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 peoples.

African governments need to give greater attention and dialogue to sustainable non-agricultural traditional economies that rely on
transhumant pastoralism, hunting and gathering and fishing, all of which have a low carbon foot print and cause less soil degradation and deforestation than by poor agricultural practices by dominant peoples.

The Traditional Ecological Knowledge (TEK) of indigenous peoples and local communities is a vast, complex and fragile resource for the world (Kenya) which is not well integrated into State planning or formal education; Governments (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 Peoples Rights and the UN Declaration on the Rights of Indigenous Peoples.

Deforestation is a crisis for Kenya and the Globe in general and with a direct impact on local livelihoods, and global climate situation and security. Proposed solutions at a National level on climate change must take into consideration elements that pose a serious threat to indigenous land tenure and human rights.

The government must develop a regulatory and standards 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

1. It does not recognize forest dwelling communities who have lived 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 and on the sustenance and protection 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 of” these 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-basedapproaches… 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 forest 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 the 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 peoples’ 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 Rights 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 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”²¹.

Livelihoods Land use and & agribusiness

“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 communities²².

Issue related to “Indigenous peoples - climate change and natural resources”

“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.” ²³

“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 change²⁴”.

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”²⁵.

-”Promote the conservation and sustainable use of biodiversity, taking into account the value of biodiversity and the ecosystem system services it generates, and the contribution of indigenous and local communities in maintaining it”²⁶.

- 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 communities²⁷“.

- 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”²⁸.

-
“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 Peoples²⁹”

- “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 use³⁰“.

- “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.³¹“

- “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.³²”

• ”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 law/s” where often “traditional resource rights… are collective in nature” and “crucial for the sustainable use of biological diversity and cultural survival”³³.

• 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”³⁴.
  

- 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 systems³⁵.”

Reference Sources

1. Statement by Ahmed Djoghlaf, CBD Executive Secretary on “Climate Change and Biodiversity or the Unprecedented Planetary Environmental

2. 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
   

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

2. 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)