Africa's indigenous San win in court, now face regulations

FREDERICKSBURG, Va. - The High Court in Botswana ruled Dec. 13 that the indigenous peoples of the Kalahari Desert have been ''wrongfully deprived of their possessions,'' including land where their ancestors may have hunted and gathered for more than 20,000 years. The ruling opened the door to an unprecedented restoration of semi-nomads to their ancient practices, and laid another brick in the legal framework of recognized indigenous rights that has spread from the United States in the 1950s to Australia, New Zealand, Canada and the world, excepting Asia and, until now, Africa.

The Botswana government decided not to appeal the decision from Botswana's lengthiest and most expensive court proceeding. But a day after the High Court handed down a finding hailed as precedent for indigenous rights the world over, the government shifted the ground of the debate from litigation to regulation. Despite the government's removal of some 3,000 Kalahari San (also known as ''Bushmen'' or Basarwa) from their territories to state-supported settlements, only the 189 still with the lawsuit from its original filing as a class action in 2002 will be extended an automatic right of return; others will need permits.

Permits will be required for any hunting, though San permitting will not be tasked with the onerous provisions others have to meet. Returning San will be restricted to ''subsistence'' water needs, as assessed by park authorities. The water regulations may prove a setback to potential San re-settlers, The Associated Press reports, because the government shut down the parched region's main well or ''bore hole'' in 2002.

As for the land itself, the state attorney general issued the following view, again according to AP: ''The Central Kalahari Game Reserve remains state land. It is owned by the state and subject to the laws of the republic.''

Rebecca Adamson, president of First Peoples Worldwide in Fredericksburg, Va., said that through regulations implementing the court decision, the state can be expected to strip the San of control over the Kalahari's resources. Now that the court decision is final, FPW plans to make grants to San community organizations that will strengthen their rights and capacities over the desert's resources, which the San know intimately.

Adamson recognized the pattern of colonization that led to the San settlements on her first stay in the Kalahari, in 1995. ''Under the guise of progress, civilization and profit, people are absolutely destroyed. ... You create a dependency for food, you create a dependency for cash, and then you are in the settlements.''

Adamson made the San case FPW's first project. FPW mounted training workshops among the San on constitutional and legal land rights, and later receded into a fund-raising role on behalf of the long court case (attorney services were provided pro bono, but other expenses had to be met).

''I think there's two aspects to the case,'' Adamson said of the court decision. ''One of them has huge significance, and that's just how it plays in the continent of Africa, because Africa has so far withstood really recognizing indigenous peoples within the borders of the countries. So for the first time ever, we've got an actual Supreme Court ruling in one of the countries that upholds a recognition of indigenous rights.

''Now, the downside to the case is, it's not a land claims case. It's not that the San are going to have the Kalahari game reserve back, and that they're going to be in control of it. ... But they can return, they were in legal possession of their territories and they were illegally evicted.''

Between 1996 and 2002, the government relocated the San from the Kalahari to crowded settlements bordering their former homelands. They gained cars, houses, cattle and a cash economy imposed by the Botswana government. They lost their homelands, which became what the government called the Central Kalahari Game Reserve: a big-game sightseeing attraction advertised as a conservationist necessity. According to many accounts going back more than a decade, the settlements encouraged alcoholism and prostitution, indicators of a spiritual despondency in a people used to tracking the great herds of eland and gemsbok, gathering the forest's resources and following the seasonal star constellations. The southern star in its silver-blue brilliant phase meant ''winter has washed its face'' and the San should hunt the eland bull, according to the late John Hardbattle, a San spokesman.

But the cordon fences the government had erected around the game reserve cut the animals off from their direct traces to water, and many of them died of thirst along the high fences, Hardbattle related during a fund-raising visit to the United States in 1996. Many more were segregated within the Central Kalahari Game Reserve, where any San who hunted them was ''poaching.''

Nor could the San any longer live among them in nature, as in times past, the government decided.

But the prospect that they may again has helped to inspire the Bay and Paul Foundations in New York to commit funds to FPW for re-granting. Fred Bay, the foundation's executive director, said the San working knowledge of biodiversity in the Kalahari is unrivaled and essential to preserve. The exploitation of resources is affecting our planet's climate and biodiversity, he added, and Native resources are some of the most targeted.

''I have three grandchildren now, and I don't want to want leave them a world with an environment ... that is in critical condition. And that's what we're doing.''